Loading...
HomeMy WebLinkAboutAction Target, Inc. - Police Indoor Firearms Range - 2009AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND ACTION TARGET, INC. THIS AGREEMENT is entered into this 3`d day of March, 2009, by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and ACTION TARGET, INC. (the "CONTRACTOR"). RECITALS WHEREAS, the CITY desires to employ a CONTRACTOR to upgrade the Police Department range, by replacing the berm trap and installing a new target system. WHEREAS, the CITY has determined that the CONTRACTOR is qualified by experience and ability to perform the services desired by the CITY, and the CONTRACTOR is willing to perform such services. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. ENGAGEMENT OF CONTRACTOR. The CITY 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 Exhibits "A" and "B". The CONTRACTOR shall be responsible for all research and reviews related to the work and shall not rely on personnel of the CITY for such services, except as authorized in advance by the CITY. The CONTRACTOR shall appear at meetings cited in Exhibits "A and B" to keep staff and City Council advised of the progress on the project. The CITY may unilaterally, or upon request from the CONTRACTOR, from time to time reduce or increase the Scope of Services to be performed by the CONTRACTOR under this Agreement. Upon doing so, the CITY and the CONTRACTOR agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction or increase in the compensation associated with said change in services, not to exceed a factor of 10% from the base amount. 3. PROJECT COORDINATION AND SUPERVISION. Police Lieutenant Jose Tellez hereby is designated as the Project Coordinator for the CITY 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 or the progress and execution of this Agreement for the CONTRACTOR. Delve arrrmoe) thereby is designated as the Project Coordinator for the CONTRACT R. 4. COMPENSATION AND PAYMENT. The compensation for the CONTRACTOR shall be based on actual work performed. Billings shall include labor classifications, respective rates consistent with Exhibits "A" and "B". Invoices will be processed for payment and remitted within thirty (30) days from receipt of invoice, provided that work is accomplished consistent with Exhibits "A" and "B" as determined by the CITY. 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 CITY and for furnishing of copies to the CITY, if requested. 5. ACCEPTABILITY OF WORK. The City 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 City 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 City or the CONTRACTOR shall give to the other written notice. Within ten (10) business days, the CONTRACTOR and the City shall each prepare a report which supports their position and file the same with the other party. The City 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. Completion dates or time durations for specific portions of the Project are set forth as follows: Work to be started within ,b work days of Purchase Order date (notice to proceed). Work to be completed within 9 work days of start date. 7. DISPOSITION AND OWNERSHIP OF DOCUMENTS. The Memoranda, Reports, Maps, Drawings, Plans, Specifications and other documents prepared by the CONTRACTOR for this Project, whether paper or electronic, shall become the property of the CITY for use with respect to this Project, and shall be turned over to the CITY 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 CITY 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 CITY's prior authorization regarding reproduction, which authorization shall not be unreasonably withheld. The CONTRACTOR shall, upon request of the CITY, execute any further document(s) necessary to further effectuate this waiver and disclaimer. The CONTRACTOR agrees that the CITY 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 CITY'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 CITY 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 CITY, or for any 2 liability to the CITY should the documents be used by the CITY for some project other than what was expressly agreed upon within the Scope of this project, unless otherwise mutually agreed. 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 CITY and are not entitled to any of the rights, benefits, or privileges of the CITY'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 CITY 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 CITY. 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 CITY 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 CITY, it being understood that the CONTRACTOR, its agents, servants, and employees are as to the CITY wholly independent CONTRACTORs and that the CONTRACTOR's obligations to the CITY 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. LABOR COMPLIANCE PROGRAM A. Pursuant to Labor Code Section 1771.7, the City has implemented and shall enforce a Labor Compliance Program (LCP). The Contractor, and any subcontractors, is required to comply with the requirements of the City's LCP, and applicable provisions of the Labor 3 Code and Federal, State, and local laws related to Labor. The Contractor hereby expressly agrees to comply with the requirements of the City's LCP, and applicable provisions of the Labor Code and Federal, State, and local laws related to Labor at no additional cost to the City. B. The City's LCP includes, but is not limited to, provisions requiring the Contractor to comply with the prevailing rates of wages, maintenance and submission of weekly certified payroll records, employment of apprentices, compliance with legal hours of work, and debarment as set forth in the Articles herein. The City's LCP also requires the Contractor to attend a pre -construction meeting and allow City representatives to conduct on site interviews of workers to ensure that prevailing wages are being paid. Failure to comply with these provisions or any other provisions of the City's LCP shall result in the withholding of Contract payments by the City. The Contractor expressly acknowledges these provisions and agrees to comply with these provisions and any provisions in the City's LCP. C. The Contractor shall require subcontractors to comply with these provisions at no additional cost to the City. 13. PREVAILING RATES OF WAGES A. The Contractor is aware of the requirements of Califomia Labor Code Sections 1720 et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 et seq. ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on certain "public works" and "maintenance" projects. Since this Project involves an applicable "pubic works" or "maintenance" project, as defined by the Prevailing Wage Laws, and since the total compensation is $2,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. The Contractor shall obtain a copy of the prevailing rates of per diem wages at the commencement of this Agreement from the website of the Division of Labor Statistics and Research of the Department of Industrial Relations located at www.dir.ca.gov/dlsr/. In the altemative, the Contractor may view a copy of the prevailing rates of per diem wages at the City Engineers office. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to perform work on the Project available to interested parties upon request, and shall post copies at the Contractor's principal place of business and at the Project site. Contractor shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or allege failure to comply with the Prevailing Wage Laws and/or the City's LCP. B. The Contractor and each subcontractor shall forfeit as a penalty to the City not more than fifty dollars ($50) for each calendar day, or portion thereof, for each worker paid less than the stipulated prevailing wage rate for any work done by him, or by any subcontract under him, in violation of the provisions of the Califomia Labor Code. The difference between such stipulated prevailing wage rate and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid Tess than the stipulated prevailing wage rate shall be paid to each worker by the Contractor. C. As a further material part of this Contract, Contractor agrees to hold harmless and indemnify the City, its elected officials, officers, employees and agents from any and all claims, liability, loss, costs, damages, expenses, fines and penalties, of whatever kind or nature, including all costs of defense and attorneys' fees, arising from any alleged failure of Contractor or its subcontractors to comply with the prevailing wage laws of the State of Califomia. If the City or any of the indemnified parties are named as a party in any dispute arising from the failure of Contractor or its subcontractors to pay prevailing wages, Contractor agrees that the City and the other indemnified parties may appoint their own independent counsel, and Contractor agrees to pay all attorneys' fees and defense costs of the City and the other indemnified parties as 4 billed, in addition to all other damages, fines, penalties and losses incurred by the City and the other indemnified parties as a result of the action. 14. 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 CITY 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 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 CITY, or, when no time is specified, then within a commercially reasonable time. Accordingly, unless the CONTRACTOR has notified the CITY otherwise, the CONTRACTOR warrants that all products, materials, processes or treatments identified in the project documents prepared for the CITY are reasonably commercially available. Any failure by the CONTRACTOR to use due diligence under this sub -paragraph will render the CONTRACTOR liable to the CITY for any increased costs that result from the CITY'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. 15. 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 CITY setting forth the provisions of this non-discrimination clause. 16. CONFIDENTIAL INFORMATION. The CITY 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 CITY. 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 5 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 CITY. 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 CITY for any damages caused by breach of this condition, pursuant to the provisions of Section 14. 17. INDEMNIFICATION AND HOLD HARMLESS. The CONTRACTOR agrees to defend, indemnify, and hold harmless the City of National City, its officers and employees, against and from any and all liability, Toss, 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. 18. WORKERS' COMPENSATION. The CONTRACTOR shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of Califomia, the applicable provisions of Division 4 and 5 of the Califomia Government Code and all amendments thereto; and all similar state or Federal acts or laws applicable; and shall indemnify, and hold harmless the CITY and its officers, and employees from and against all claims, demands, payments, suits, actions, proceedings and judgments of every nature and description, including reasonable attomey's fees and defense costs presented, brought or recovered against the CITY 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 under this Agreement. 19. INSURANCE. The CONTRACTOR, at its sole cost and expense, shall purchase and maintain, and shall require its subCONTRACTORs, 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 City. Said endorsement shall be provided prior to commencement of work under this Agreement. E. The aforesaid policies shall constitute primary insurance as to the CITY, its officers, employees, and volunteers, so that any other policies held by the CITY shall not 6 contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CITY of cancellation or material change. F. Said policies, except for the Professional Liability and Workers' Compensation policies, shall name the CITY 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 Califomia 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 City's Risk Manager. In the event coverage is provided by non -admitted "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 CITY's 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 CITY 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 CITY. 20. 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. Attomey's fees to the prevailing party if other than the CITY shall, in addition, be limited to the amount of attomey's fees incurred by the CITY in its prosecution or defense of the action, irrespective of the actual amount of attomey's fees incurred by the prevailing party. 21. 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, Califomia, 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, Califomia, 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 7 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. 22. TERMINATION. A. This Agreement may be terminated with or without cause by the CITY. 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 CITY 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 CITY. 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, whether paper or electronic, shall immediately become the property of and be delivered to the CITY, 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 CITY by the CONTRACTOR's breach, if any. Thereafter, ownership of said written material shall vest in the CITY all rights set forth in Section 6. E. The CITY 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. 23. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered; or sent by ovemight 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 ovemight 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 Califomia) 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 CITY: Debbie Lunt Purchasing Division / Finance Dept. City of National City 1243 National City Blvd. National City, CA 91950-4301 To CONTRACTOR: Live //4r"mto) C-P �. 3vx 634 PH gP-0 t' I U5 1 lb FX o j — 3 77 - eo9 EM G ti ttb 6C-161, Ccwt 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. 24. 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 City of National City. The CONTRACTOR also agrees not to specify any product, treatment, process or material for the project in which the CONTRACTOR has a material financial interest, either direct or indirect, without first notifying the CITY of that fact. The CONTRACTOR 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 CITY in which the CONTRACTOR has a financial interest as defined in Govemment 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 CITY. ❑ 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 CITY for all damages, costs or expenses the CITY may suffer by virtue of any violation of this Paragraph 21 by the CONTRACTOR. 25. 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. 9 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 Califomia. 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. 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. CITY OF NATIONAL CITY By: Ron Morrison, Mayor APPROVED AS TO FORM: ACTION TARGET, INC. (Corporation — signatures of two corporate officers) (Partnership — one signature) (Sole proprietorship — one si n B�! (—Warne) c/itiel-t,/2 //If -e)b (Print) (Title) 10 George H. Eiser, III City Attorney By: (Name) t, fF 44111.% (Print) (Title) 11 ACTION TARGET National City Police Dept. National City, CA 91950 Quotation: 37465 By: Jason Snell Printed: 2009-Apr-15 Included Items: 1 Complete 20' Rubber Berm Trap 97,120.00 The angle of this trap is 40 or 45 degrees (pending customer decision) to save on footprint. Includes: 10 gage galvanized steel deck, all legs and bracing, 2' of chopped rubber over entire trap area, fire retardant, misc. parts and hardware, and training. The back wall will not need to be removed. The back door will remain fully functional. 1 Overhead Berm Trap Baffle 20' Wide 5,600.00 1 row of 3/8" AR500 steel baffles without fascia. Price includes: all steel plates and joints, hanging structure, misc. parts and hardware, and training. 1 Prevailing Wage Factory Installation 10,850.00 Sales Tax 3,190.20 Total 46.760.20 Payment Terms: Prevailing Wage Factory Installation Shipping Terms: FOB National Terms and Conditions: You must reference the Order Number above on your purchase order to secure best price. Price will be honored for 60 days from the quotation date if no other date is specified herein. Action Target reserves the right to adjust installation costs based upon the actual site conditions encountered. Unless explicitly itemized, price does not include taxes, bonds, fees, assessments, licences, mandatory wage requirements or other regulatory costs which may be applicable to the job site. Comments: Your Department shall be responsible for: Electrical services. The above terms and conditions are satisfactory and hereby accepted. In addition buyer acknowledges 1801 j 377- 8096 FX l Cq h,k a-,1-- A Pc off- a Quotation 37465 Page 2 he/she has read and understands the items customer is required to provide including a lead free work site. Product Sales Tax Rate: 9.75% GSA# GS-02F-9301C Layne Ashby Jason Snell Range Consultant -rx ACTION TARGET LIMITED WARRANTY Action Target, Inc. will repair or replace, at its option, any product which does not function correctly due to faulty components or workmanship for a period of ONE YEAR from date of installation completion. Action Target, Inc. will not warranty any product which falls into any of the following categories: 1. Any product which has been modified or altered by anyone other than an authorized Action Target service representative. 2. Any product which has been damaged due to improper armoring (i.e. bullet holes, etc.) 3. Any product which has been damaged due to user negligence. 4. Any product which has been damaged due to acts of nature or chance (earthquake, flood, fire, etc.). An Extended Parts and Labor Warranty is available through Action Target, Inc. The extended warranty includes a yearly range visit by Action Target. Action Target makes no other warranties, expressed or implied. Cert ID 43454 ACORD,, CERTIFICATE OF LIABILITY INSURANCE PRODUCER Wells Fargo Insurance Services of NY 330 Madison Avenue, 7 Floor New York NY 10017 (212) 682-7500 DATE (MM/DD/YYYY) 6/23/2009 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIC # INSURED Action Target P.O. Box 636 Provo UT 84603 INSURER A: Great American E&S Insurance 37532 INSURERB: Travelers Casualty & Surety INSURERC: Travelers Property Casualty Co INSURER D: 31194 03609 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 CONTRACT OR 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 LTR ADD% (NSRD TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE DATE (MM/DD/YY) POLICY EXPIRATION DATE (MM/DD/YY) LIMITS A X GENERAL X LIABILITY COMMERCIAL GENERAL LIABILITY PL1235378 3/18/2009 3/18/2010 EACH OCCURRENCE $ 1,000,000 AMAGE TO RENTED PREMSES (Ea occure ce) $ 50,000 CLAIMS MADE X OCCUR MED EXP (Any one person) $ Excluded GENL PERSONAL& ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 AGGREGATE LIMIT APPUES PER: POLICY X PRO LOC JECT PRODUCTS - COMP/OP AGG $ 2,000,000 C X AUTOMOBILE X X X X LIABILITY ANY AUTO Y8106557N571 6/1/2009 6/1/2010 COMBINED SINGLE LIMIT (Eaaccident) $ 1,000,000 BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ PROPERTY DAMAGE (Per accident) $ GARAGE LIABILITY ANY AUTO AUTO ONLY - EA ACCIDENT $ OTHER THAN EA ACC $ AUTO ONLY: AGG $ A EXCESS/UMBRELLA X LIABILITY OCCUR CLAIMS MADE DEDUCTIBLE RETENTION $ UM 1235379 3/18/2009 3/18/2010 EACH OCCURRENCE $ 6,000,000 AGGREGATE $ 6,000,000 $ $ $ B WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? If yes, describe under SPECIAL PROVISIONS below UB1845N06-09 1/31/2009 1/31/2010 WC X U- OTH- ORYUMI TORY LIMITS ER E.L. EACH ACCIDENT $ 1,000,000 E.L. DISEASE- EA EMPLOYEE $ 1,000,000 E.L. DISEASE - POLICY LIMIT $ 1,000,000 OTHER DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT / SPECIAL PROVISIONS The City of National City, its elected officials, officers, agents and employees are included as additional insureds with regard to the General Liability(attached CG 20 26) The City of National City, its elected officials, officers, agents and employees are included as additional insureds with regard to the Commercial Automobile CERTIFICATE HOLDER CANCELLATION The City of National City 1243 National City Blvd National City CA 91950 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE ACORD 25 (2001/08) ©ACORD CORPORATION 1988 Page 1 of 3 6/23/2009 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25 (2001/08) Page 2 of 3 DESCRIPTION OF OPERATIONS SECTION CONTINUED DATE 6/23/2009 CERTIFICATE HOLDER: The City of National City 1243 National City Blvd National City CA 91950 INSURED: Action Target P.O. Box 636 Provo UT 84603 DESCRIPTION OF OPERATIONS CONTINUED: Waiver of Subrogation with regard to the Workers' Comepnsation is in favor of The City of National City. DOC (10/2003) Page 3 of 3 AGREAT AMERICAN INSURANCE COMPANIES Subsidiaries of American Financial Corporation 5B0 WALNUT STREET, CINCINNATI, OHIO 45202 CG 20 26 (Ed. 11 85) THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED --DESIGNATED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the followin COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name of Person or Organization: THE CITY OF NATIONAL CITY, ITS ELECTED OFFICIALS, OFFICERS, AGENTS AND EMPLOYEES 1243 NATIONAL CITY BLVD. NATIONAL CITY, CA 91950 (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule as an insured but only with.respect to liability arising out of your operations or premises owned by or rented to you. CG 20 26 (Ed. 11/85) PRO (Page 1 of 1) POLICY NUMBER: Y-810-6557N571-TIL-09 COMMERCIAL AUTO ISSUE DATE: 08-03-09 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM MOTOR CARRIER COVERAGE FORM TRUCKERS COVERAGE FORM Paragraph c. of the WHO IS AN INSURED provision includes the person or organization indicated below, but only for his, her or its liability because of acts or omissions of an "insured" under paragraphs a. or b. of that provision, subject to the following additional pro- visions: Person or Organization THE CITY OF NATIONAL CITY 1. No liability is assumed by that person or organi- zation for the payment of any premiums stated in the policy or earned under the policy. 2. In the event of cancellation of the policy, written notice of cancellation will be mailed by us to that person or organization. Address 1243 NATIONAL CITY BLVD NATIONAL CITY, CA 91950 CA T3 01 02 99 Page 1 of 1 TRAVELERSJ WORKERS COMPENSATION AND EMPLOYERS LIABILITY POLICY ENDORSEMENT WC 04 03 06 (01) — 001 POLICY NUMBER: (YACRUB-1845N50-6-09) WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT-CALIFORNIA We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule. THE ADDITIONAL PREMIUM FOR THIS ENDORSEMENT SHALL BE 2.000 % OF THE CALIFORNIA WORKERS' COMPENSATION PREMIUM OTHERWISE DUE ON SUCH REMUNERATION. SCHEDULE PERSON OR ORGANIZATION JOB DESCRIPTION THE CITY OF NATIONAL CITY .1243 NATIONAL CITY BLVD. NATIONAL CITY, CA 91950 DATE OF ISSUE: 07-17-09 STASSIGN: RESOLUTION NO. 2009 — 219 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY WAIVING THE BIDDING PROCESS AND ACCEPTING A PROPOSAL IN THE AMOUNT OF $46,760.20, AND AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH, ACTION TARGET, INC. FOR THE PURCHASE AND INSTALLATION OF A POLICE INDOOR FIREARMS RANGE WHEREAS, the Police Department has an indoor firearms range that is used to train officers in the use of department approved firearms and to maintain proficiency through required qualification shooting exercises throughout the year. The original bullet trap system installed in the range consisted of rubber lamellas (curtains) which captured and contained the fired projectiles; however, the rubber lamellas system required frequent replacement which is costly; and WHEREAS, there are currently available more modern and efficient bullet trap systems that require Tess maintenance. The bullet trap system proposed is the Action Target Inc. Rubber Berm Trap which consists of approximately two feet of chopped rubber granules spread on top of an angled support steel modular structure to create a backstop or "berm" to catch the bullets fired into it. The chopped rubber is a softer collection medium, ricochets and lead dust can be significantly reduced which is an important feature to the Police Department for the indoor range; and WHEREAS, Section 2.60.220 B of the Municipal Code provides that the requirements of formal bidding may be waived when the commodity, regardless of value, can be obtained from only one source; and WHEREAS, Section 2.60.220 D of the Municipal Code provides that the requirements of formal bidding may be disposed with when the City Council determines by best business judgment that due to special circumstances, it is in the City's best interest to purchase a commodity directly or enter into a contract without compliance with the bidding procedure; and WHEREAS, it is requested by staff that the City Council waive the formal bidding requirements as authorized by subsections B and D of Section 2.60.220 of the Municipal Code, and award the contract to Action Target, Inc. for the following reasons: 1 The City of National City qualifies for State of California GSA pricing. Contract #GS-02F-9301 C. 2. There are limited providers of this type or product, quotes have been solicited from vendors but they were unable to meet the City's requirement of maintaining the existing footprint of the police range. Action Target, Inc. will maintain the existing footprint of the range by installing the modular steel support structure for the berm at a customized angle, eliminating the need to remove an existing steel structure/wall (9 x 20 ft. approximately) used as part of the previous bullet trap system. Action Target, Inc.'s quote was considerably less because they did not require the City to change the existing footprint of the range thereby eliminating the need for demolition. Resolution No. 2009 — 219 September 1, 2009 Page 2 3. The Action Target, Inc. system is an accepted product that is used by other law enforcement agencies including the Chula Vista Police Department. The Action Target, Inc. Rubber Berm Trap system consists of rubber, treated with a patented process consisting of a special fire retardant substance and non-flammable adhesive to stabilize the berm and prevent migration. 4. Because City staff has compared prices and options, no further purpose would be served by issuing a formal bid at this point in the process. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of National City hereby finds that the commodity being purchased can be obtained from only one source, and that due to special circumstances, it is in the City's best interest to purchase the commodity without compliance with the bidding procedure. BE IT FURTHER RESOLVED that the City Council waives the bidding process and authorizes acceptance of a proposal in the amount of $46,760.20, and authorizing the Mayor to execute an agreement with, Action Target, Inc. for the purchase and installation of a police indoor firearms range. PASSED and ADOPTED this 1st day of September, 2009. on Morrison, Mayor ATTEST: Micl4ael R. Dalla, C ty Clerk APPROVED AS TO FORM: lit George H. Eiser, III City Attorney Passed and adopted by the Council of the City of National City, California, on September 1, 2009 by the following vote, to -wit: Ayes: Councilmembers Morrison, Parra, Sotelo-Solis, Van Deventer, Zarate. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON Mayor of the City of National City, California ti City lerk of the City of National City, California By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2009-219 of the City of National City, California, passed and adopted by the Council of said City on September 1, 2009. City Clerk of the City of National City, California By: Deputy CQOCA-C,G City of National City, California COUNCIL AGENDA STATEMENT MEETING DATE Sept. 1 2009 AGENDA ITEM NO. 20 ITEM TITLE Resolution of the City Council of the City of National City waiving the bid process and authorizing the purchase / installation of a bullet trap system for the Police indoor firearms range, from Action Target Inc., in the amount of $46,760.20 from the General Fund. PREPARED BY DEPARTMENT Jose Tellez, Lieutenant I Police Department 336-4513 EXPLANATION i L� The Police Department has an indoor firearms range that is used to train officers in the use of department approved firearms and to maintain proficiency through required qualification shooting exercises throughout the year. The original bullet trap system installed in the range consisted of rubber lamellas (curtains) which captured and contained the fired projectiles; the rubber lamellas system required frequent replacement which is costly. Currently, there are more modern and efficient bullet trap systems that require less maintenance. The bullet trap system proposed is the Action Target Inc. Rubber Berm Trap which consists of approximately two feet of chopped rubber granules spread on top of an angled support steel modular structure to create a backstop or "berm" to catch the bullets fired into it. The chopped rubber is a softer collection medium, ricochets and lead dust can be significantly reduced which is an important feature to the Police Department for the indoor range. (See Attached) Environmental Review ✓ N/A Financial Statement The amount of $46,760.20 is from previously approved General Fund accounts for the repair and maintenance of the Police Department Range. Account No. 299 STAFF RECOMMENDATION In concurrence with the Purchasing Agent, it is recommended that the City proceed with the purchase as proposed, and that the Purchasing Agent be authorized to issue the resulting purchase order. BOARD / COMMISSION RECOMMENDATION N/A ATTACHMENTS ( Listed Below) Resolution No. ''a Q Q ex _ 1. Background 2. Resolution r CA IA INCORPORATED OFFICE OF THE CITY CLERK 1243 National City Blvd. National City, California 91950 Michael R. Della, CMC - City Clerk 619-336-4228 phone • 619-336-4229 fax ACTION TARGET, INC. Police Department Indoor Firearms Range Jose Tellez (Police) Forwarded Copy of Agreement to Vendor