HomeMy WebLinkAboutOntario Police Department; 2016-05-10; CA1428AGREEMENT FOR USE OF THE CARLSBAD SAFETY TRAINING CENTER (STC)
BETWEEN
THE CITY OF CARLSBAD AND THE ONTARIO POLICE DEPARTMENT
1. PARTIES AND DATE
This Agreement_ fpr use of the Carlsbad Safety Training Center (STC) ("Agreement") is
entered into this I 0 t:Y I day of l\/\9' , 7Q l & , by and between the
City of Carlsbad, a municipal corporation organi d under the laws of the State of California with
its principal place of business at 5750 Orion Street, Carlsbad, California 92010 {"City"), and the
Ontario Police Department, a California municipal law enforcement agency with its principal
place of business at 2500 South Archibald Avenue, California 91762 ("Agency"). City and
Agency are sometimes individually referred to as "Party" and collectively as "Parties" in this
Agreement.
2. RECITALS
2. 1 Agency desires to use certain City facilities located at 5750 Orion Street in the
City of Carlsbad, California, known as the Carlsbad Safety Training Center ("STC Facilities");
and
2.2 Agency desires to use the STC Facilities for the purposes of Firearms Training
and other Law Enforcement Training Activities on or about April1, 2016 ("Training Events").
2.3 City is willing to allow the Agency to use the STC Facilities pursuant to the terms
and conditions set forth below.
3. TERMS AND CONDITIONS
3.1 STC Facilities. City agrees to allow Agency to use the STC Facilities pursuant to
this Agreement including the conditions, requirements and fees as described in Exhibit "A",
Exhibit "8", and the STC Standard Operating Procedures (SOP), as may be amended from time
to time by the City at its sole and absolute discretion, all as incorporated herein by this
reference. The STC Facilities are subject to the needs of the City and as such the Agency's use
of STC Facilities may be cancelled by the City at any time. In the event City determines, in its
sole and absolute discretion, that the STC Facilities are needed for any City purposes, the
Agency shall immediately vacate the STC Facilities upon notice by the City. It will also be
understood that the STC Facilities will be made available on an "as is" basis.
3.2 Training Events. Agency represents and warrants that all attendees,
participants, students, observers, instructors and any other persons brought to the STC
Facilities by the Agency ("Agency Invitees") are qualified to participate in the Training Events,
and use of the STC Facilities. The City retains the discretion to terminate this Agreement and
requires all Agency Invitees to immediately vacate the STC Facilities if the Training Events or
anyone's participation in the Training Events poses any kind of threat or liability to the City, the
public, Agency Invitees or anyone else. Agency Invitees shall not be considered an employee
or agent of City for any purpose related to the Training Events.
3.3 Release of Liability I Assumption of Risk. In consideration of the City's
Agreement to allow the Agency to use the STC Facilities, the Agency, on behalf of itself and its
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elected officials, officers, employees, contractors, agents, volunteers, students, and all Agency
Invitees hereby releases and forever discharges the City and each of its elected officials,
officers, employees, contractors, agents, and volunteers from any and all known and unknown,
certain or contingent, past, present or future obligations, liabilities, demands, claims, costs,
expenses, debts, controversies, damages, actions, and causes of action of every nature,
character, or description which they may have against the City, arising from or in any way
related to the Training Events, use of STC Facilities or this Agreement. Furthermore, Agency
assumes all risks associated with using the STC Facilities for the Agency's purposes, including
but not limited to inspections of the facility prior to and after use, determination that the facilities
"as is" status is appropriate for the Agency's Training Events, supervision and control of all
Agency Invitees involved in the Agency's use of the STC Facilities including Agency Invitees,
members of the general public and anyone else exposed during the period of time the Agency is
using the STC Facilities.
AGENCY HEREBY ACKNOWLEDGES THAT IT HAS READ AND IS FAMILIAR
WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542
{"SECTION 1542"), WHICH IS SET FORTH BELOW:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN
BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR."
BY SIGNNING BELOW, AGENCY HEREBY WAIVES THE PROVISIONS OF
SECTION 15421N CONNECTION WITH THE RELEASE MATTER .
Printed Name of Agency Representative
3.4 Indemnification I Hold Harmless. Agency shall indemnify, defend and hold
harmless City, its elected officials, officers, employees, contractors, agents, and volunteers
("Indemnified Parties") from and against any and all claims, damages, demands, liability, costs,
losses and expenses, including, without limitation, court costs and reasonable attorneys' fees
and costs, arising out of, in connection with or in any way related to Agency's actions or
inactions related to this Agreement, including without limitation any actions or inactions related
to use of STC Facilities or the Training Events, to the fullest extent permitted by law.
3.5 Assumption of Risk Agreement and Participant Release. Agency shall ensure
that all Agency Invitees observing or participating in the Training Events sign and execute a
release, substantially in the same form as set forth in the attached Exhibit "8", incorporated by
this reference ("Participant Release"). No one shall attend or participate in the Event or use the
STC Facilities without signing and executing a Participant Release also commonly known as a
Hold Harmless Agreement.
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3.6 Insurance. Agency shall, at its sole expense, procure and maintain for the
duration of its obligations under this Agreement insurance against claims for injuries to persons
or damages to property which may arise from or be in connection with the STC Facilities and
the Training Events or activities conducted by the Agency, its elected officials, officers,
employees, contractors, agents, volunteers, students, and Agency Invitees. The insurance shall
take the form of a commercial general liability policy or approved self-funding agreement, to
include bodily injury, personal injury, and property damage coverage, written on an occurrence
basis with a company reasonably acceptable to the City, in an amount not less than Two Million
Dollars ($2,000,000) to cover any activities performed by any person under the permission
granted herein and any damage or loss suffered or incurred by the City, its elected officials,
officers, employees, contractors, agents, and volunteers resulting from such activity. The
insurance will be obtained from an insurance carrier admitted and authorized to do business in
the State of California. The insurance carrier is required to have a current Best's Key Rating of
not less than "A-:VII" OR with a surplus line insurer on the State of California's List of Eligible
Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least
"A:X". Agency shall maintain Workers Compensation coverage in the statutorily required
amounts, if applicable. Agency shall require its insurer to waive all rights of subrogation against
City, its elected officials, officers, employees, contractors, agents, and volunteers, except for
any liability resulting from the willful misconduct or grossly negligent acts of City. The Agency
will provide evidence of such insurance coverage to City's satisfaction prior to initiating the
Training Events. The Agency shall cause all such policies to be endorsed to add the City, its
elected officials, officers, employees, contractors, agents, and volunteers as Additional
Insured's. Agency's self-funded programs will be required to provide evidence that meets City's
requirements as determined at the sole and absolute discretion of the City.
3.7 Governmental Approvals. Agency shall or has obtained all necessary and
applicable federal, state and local approvals, certifications, and permits to conduct the Training
Events prior to use of STC Facilities. City reserves the right to require Agency to provide proof
regarding these approvals, certifications, and permits, if applicable.
3.8 Scheduling of Facility I Cancellations. Agency may schedule use of the City's
Facilities on an "as available", "first come first served" basis by contacting the City's Facility
Manager. In the event Agency is unable to use its allotted time(s), it shall, contact the City's
Facility Manager within ten (10) business days. Agency will be invoiced for hours scheduled not
actual hours used if sufficient notice for cancellation is not provided.
3.9 Term of Agreement. The term of this Agreement shall commence upon
execution of this Agreement by City, and shall terminate five (5) years from the date of
commencement. It is also understood that the City may terminate this Agreement at any time
for any or no reason.
3.10 Payments for Use of STC Facilities. City shall invoice Agency on an hourly fee
based upon Agency scheduling and use of STC Facilities. All STC Facility use fees shall be in
accordance with the STC Facility fee table which may be amended by the City from time to time.
Agency shall remit payment in full to the attention of City of Carlsbad, 1635 Faraday Avenue,
Carlsbad, CA 92008, within thirty days (30) days of receipt of such invoice. A late charge
equivalent to 5% of the unpaid balance shall be assessed on all accounts ten (10) or more days
past due. Agency shall be liable for the payment at the full cost of the use of the STC Facilities
for the hours scheduled for Training Events whether or not Agency subsequently uses the STC
Facilities or not.
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3.11 Accidents I Damage Investigations. The Agency Safety Officer, as such person
is described in the STC Facilities Standard Operating Procedures (SOP), shall immediately
report any injury or non-injury accidents, equipment damage and/or negligent firearm
discharges immediately to the City Facility Manager. The parties agree to fully and promptly
cooperate in the investigations of injury or non-injury accidents, equipment damage and/or
negligent firearm discharges arising from Agency's use of the STC Facilities. The City's Facility
Manager will coordinate such investigations for the purpose of determining cause, responsibility
and any physical or operational modifications or improvements deemed necessary to improve
facility safety. In the event damage to the STC Facility requires repair and/or replacement, City
shall affect such repair and present to the Agency an invoice for the cost of the
repairs/replacement plus 5% (five percent) for City administrative costs. Agency shall remit
payment in full to the attention of City of Carlsbad, 1635 Faraday Avenue, Carlsbad, CA 92008,
within thirty days (30) days of receipt of such invoice. A late charge equivalent to 5% of the
unpaid balance shall be assessed on all accounts ten (10) or more days past due.
3.12 Facility Inspections I Cleanup. The parties will conduct a joint inspection of STC
Facilities before and after use. All damages will be annotated on inspection sheets provided by
the City's Facility Manager to Agency. Agency shall be responsible for general cleanup of the
STC Facilities following its use of the same. For purposes of this Agreement, "cleanup" for STC
Facilities will be described in further detail in the STC Facilities SOP.
3.13 Notices. Except as otherwise expressly provided by law, any and all notices or
other communications required or permitted by this Agreement to be served on or given to
either party to this Agreement shall be in writing and shall be deemed duly served or given when
personally delivered to the party to whom it is directed or to any managing or executive officer or
director of that party in lieu of personal service when deposited in the United States mail, first
class postage prepaid, addressed as follows:
If to Agency:
Ontario Police Department
Attn: Training Manager (SWAT)
2500 S. Archibald Avenue
Ontario, CA 91762
If to City:
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008
Attn: Rhonda Heather
Contract Administration
3.14 Survival. Agency's obligations to release, indemnify, defend, and hold harmless
the City as set forth in this Agreement, shall survive expiration or termination of the term of this
Agreement and shall remain in effect until there is no risk to the City of any liability for any
claims or losses due to the use of the STC Facilities for the Training Events.
3.15 Interpretation. The provisions of this Agreement are intended by the parties to be
interpreted and construed to provide the fullest protection possible under the law to the City.
3.16 Selection of Counsel. Agency's obligation to indemnify the City under this
Agreement shall include the obligation of the Agency to defend City with legal counsel of City's
own choosing. In the event City elects not to select such counsel, the designation of such
counsel shall be made by the Agency but shall be subject to prior approval by City.
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3.17 Entire Agreement. This written document contains the entire agreement of the
parties and supersedes any prior oral or written statements or agreements between the parties.
No supplement, modification, or amendment of this Agreement shall be binding unless executed
in writing by the parties.
3.18 Waiver and Severability. No waiver of any default shall constitute a waiver of any
other breach or default, whether of the same or of any other covenant or condition. No waiver,
benefit, privilege or service voluntarily given or performed by either party shall give the other
party any contractual right by custom, estoppel or otherwise. If any provision of this Agreement
is invalid or unenforceable with respect to any party, the remainder of this Agreement or the
application of such provision to persons other than those as to whom it is held invalid or
unenforceable, shall not be affected and each provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
3.19 Counterparts. This Agreement may be signed in counterparts, each of which
shall constitute an original and which collectively shall constitute one instrument.
3.20 Authority; Binding on Successors and Assigns. Each party warrants that the
individuals who have signed this Agreement have the legal power, right, and authority to enter
into this Agreement and bind each respective party. This Agreement shall be binding on and
inure to the benefit of the successors and permitted assignees of the respective parties.
Notwithstanding the foregoing, this Agreement may not be assigned by Agency unless City
consents in writing to such assignment.
3.21 Governing Law and Venue. This Agreement shall be governed by the laws of the
State of California. Any action to interpret or enforce this Agreement shall be brought and
maintained exclusively in the courts of and for San Diego County, California.
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4. AUTHORITY
The individuals executing this Agreement and the instruments referenced in it, on behalf of
Agency, each represent and warrant that they have the legal power, right and actual authority to
bind Agency to the terms and conditions of this Agreement.
CITY OF CARLSBAD
By: lliA.
fell..... City Manager or Division Director
as authorized by the City Manager Faviola Medina
Deputy City Clerk
Proper notarial acknowledgment of execution by Agency must be attached. If a corporation,
Agreement must be signed by one corporate officer from each of the following two groups:
AGENCY
By:
Group A
Chairman,
President, or
Vice-President
APPROVED AS TO FORM:
Group B
Secretary,
Assistant Secretary,
CFO, or Assistant Treasurer
By:
Signature
Name (Print)
Title (Print
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ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of San Bernardino
on .f\~r' \ ~~. dLJ }~ before me Karen M. Morrison, Notary Public
'--~~~~~~~~~~~~~~~~~~
(insert name and title of the officer)
personally appeared~~~~'~~~~·~~~~~~~~~~~~~~~~~~~~~~~~~
who proved to me on the basis of satisfactory eviden to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signatur~ Ylt~ (Seal)
EXHIBIT "A"
SAFETY TRAINING CENTER FACILITY DESCRIPTION,
CAPABILITIES AND LOCATION
1. The Carlsbad Safety Training Center (STC) is a four-acre facility that provides training
resources which can replicate emergency scenarios and high risk training events that
Joint First Responders may encounter when conducting public safety operations. The
STC Facilities are predominantly used by firefighting and law enforcement agencies to
maintain and enhance their First Responder capabilities and to increase the readiness of
internal public safety networks. The training conducted at this facility is crucial to
building a rapid and capable First Responder Agency that can respond to emergencies
within the City of Carlsbad and outlying cities.
2. The STC Facilities consists of a primary training building which houses two indoor
shooting ranges (25 yards and 100 yards), multiple storage areas, and three classrooms
with audio visual systems, and a training room for computer generated training
scenarios. The outside areas of the facility consists of a residential live fire burn prop,
four story commercial tower with multiple live fire burn props, confined space training
area, trench extrication area, vehicle extrication area, city streetscape, emergency
vehicle training area (grinder), parking, and various equipment storage areas that house
City of Carlsbad Police and Fire related equipment.
3. General Location Information:
a. The STC is located at 5750 Orion Street, Carlsbad, CA 92010.
b. U.S. Geological Survey (USGS) Information:
-Map Sheet: San Luis Rey Quadrangle. California-San Diego (7.5 Minute Series)
-Latitude and Longitude: N 33° 8' 16.1 06" W 11 r 16' 0.397"
-Grid Reference System (1 0-digit/WGS-84 Datum): 11 S MS 75118 66596
FACILITY FEES
Safety Training Center-1 Shooting Range -Half Day $500
Safety Training Center-1 Shooting Range -Full Day $1,000
Safety Training Center-2 Shooting Ranges -Half Day $600
Safety Training Center-2 Shooting Ranges -Full Day $1,200
Safety Training Center -Classroom -Half Day (Seats 48) $296
Safety Training Center-Classroom -Full Day (Seats 48) $528
Safety Training Center-Grinder-Half Day (EVOC or Scenarios) $236
Safety Training Center-Grinder-Full Day (EVOC or Scenarios) $418
Safety Training Center-Grinder/Residential Prop (No Fire Ops)-Half Day $327
Safety Training Center-Grinder/Residential Prop (No Fire Ops) -Full Day $599
Safety Training Center-Grinder/Commercial Prop (No Fire Ops) -Half Day $327
Safety Training Center-Grinder/Commercial Prop (No Fire Ops) -Full Day $599
Safety Training Center-Streetscape-Half Day $100
Safety Training Center-Streetscape -Full Day $145
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EXHIBIT "B"
PARTICIPANT RELEASE
(HOLD HARMLESS CERTIFICATION)
I, (print name), have voluntarily
requested that the City of Carlsbad ("City") allow me to use or observe the use of the facilities at
the Carlsbad Safety Training Center and/or the various safety training apparatus located at
5750 Orion Street, Carlsbad, California, 92010, known as the Carlsbad Safety Training Center
("STC Facilities"), for the purposes of conducting Firearms Training and other Law Enforcement
Training Activities on or about June 1, 2016 ("Training Events"). I hereby acknowledge,
understand and agree that the City is allowing the use of said STC Facilities for my sole benefit.
I also acknowledge, understand and agree that by using STC Facilities I may be exposed to
risks of damage to my person or property, including, but not limited to, personal property
damage, personal bodily injury, mental or psychological effects, gunshot wounds, small
explosions, strikes from bullet fragments and shell casings, falls from high structures, trip and
snag hazards, falls on wet surfaces, lead contamination, falling debris, motor vehicle accidents,
and/or other known and unknown hazards that may result in serious bodily injury or death. I
understand, acknowledge and agree that such serious bodily injury or death may be caused,
either directly or indirectly, in whole or in part, by the fact that I am present upon the STC
Facilities site whether or not I may be participating in or observing a Training Event.
I HEREBY ACKNOWLEDGE, UNDERSTAND AND AGREE that I am fully aware of the
risks and hazards inherent in using or observing the use of STC Facilities or participating in a
Training Events, and I hereby accept and assume full responsibility for any and all risks of
damage, injury, effects or death resulting to me or my property while using or observing the use
of the STC Facilities, or participating in a Training Event, or resulting from the use or condition
of STC Facilities, whether or not using STC Facilities, and whether or not the risks are known or
unknown to me or to City. (Initial)
I HEREBY ACKNOWLEDGE, UNDERSTAND AND AGREE, in consideration for the City
allowing me to use or observe the use of STC Facilities or to participate in the Training Events,
that I, my personal representatives, heirs, next-of-kin and assigns (collectively the "Releasers")
hereby release, waive, discharge, and covenant not to sue or bring any claim or demand,
whether administrative, judicial or otherwise, against the City and its elected officials, officers,
employees, contractors, agents, and volunteers for any and all liability from and for any loss or
damage to me or the other Releasers, and from and for any claims or demands therefor on
account of injury to the person or property of me or the other Releasers, including, but not
limited to, personal property damage, personal bodily injury, mental or psychological effects, or
death, whether caused by the negligence or willful misconduct of me, the City, other participants
in the Training Events, or anyone else while I participate in the Training Events, or the condition
of STC Facilities and whether or not using STC Facilities, and whether or not the risks are
known or unknown to me or the City. (Initial)
I HEREBY ACKNOWLEDGE, UNDERSTAND AND AGREE to release on my behalf and
on behalf of the Releasers any and all unknown claims. I understand and agree that the
released claims include not only claims presently known to me and/or the Releasers, but also
include all known and unknown, suspected and unsuspected, claims, rights, demands, actions,
obligations, liabilities, and causes of action of every kind and character that would otherwise
come within the scope of the claims released herein. I understand that I and/or the Releasers
may hereafter discover facts different from what 1/they now believe to be true, which if known,
could have materially affected the terms of this release, waiver, indemnity and hold harmless
certification, but we (the Releasers and I) nevertheless waive and relinquish any claims or rights
based on such different or additional facts. With respect to the released claims, I knowingly and
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voluntarily waive and relinquish any and all rights or benefits that I and/or the Releasors may
now have, or in the future may have, under the terms of Section 1542 of the California Civil
Code, which provides as follows:
"A general release does not extend to claims which the creditor
does not know or suspect to exist in his or her favor at the time of
executing the release, which if known by him or her must have
materially affected his or her settlement with the debtor."
___ (Initial)
I HEREBY ACKNOWLEDGE, UNDERSTAND AND AGREE to defend, indemnify, save
and hold free and harmless the City and its elected officials, officers, employees, contractors,
agents, and volunteers from any and all liability from loss, damage, cost or injury, including
death, to any property or persons, including third parties, in any manner arising out of or incident
to any acts, omissions or willful misconduct of me while I participate in the Training Events,
whether while using STC Facilities, including without limitatiol') the payment of attorneys' fees
and costs (with attorneys of City's choosing, in its sole and absolute discretion). Further, I shall
defend at my own expense, including attorneys' fees and costs (with attorneys of City's
choosing, in its sole and absolute discretion), the City and its elected officials, officers,
employees, contractors, agents, and volunteers in any action or proceeding, legal,
administrative or otherwise, based upon such acts, omissions or willful misconduct.
___ (Initial)
I HEREBY ACKNOWLEDGE, UNDERSTAND AND AGREE that this release, waiver,
indemnity and hold harmless certification is intended to be as broad and inclusive as is
permitted by the laws of the State of California, and that if any portion thereof is held invalid, it is
agreed that the balance shall, notwithstanding, continue in full legal force and effect.
___ (Initial)
I HEREBY ACKNOWLEDGE, UNDERSTAND AND AGREE that I have read,
understand, and voluntarily sign this release, waiver, indemnity and hold harmless certification
and have had the opportunity to review this certification with legal counsel, and I agree that no
oral representations, statements or inducements apart from the foregoing written certification
have been made, and I further agree this certification shall be binding on me and my personal
representatives, heirs, assigns and next-of-kin. (Initial)
I HEREBY ACKNOWLEDGE, UNDERSTAND AND AGREE that I am age 18 or older,
and that I will strictly abide by all safety requirements and other instructions given to me by any
and all City personnel and/or agency instructors at all times during my presence on the STC site
and during my participation in any Training Events or use of STC Facilities. (Initial)
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I HAVE CAREFULLY READ, UNDERSTAND, ACKNOWLEDGE AND AGREE TO THIS
RELEASE, WAIVER, INDEMNITY AND HOLD HARMLESS CERTIFICATION. I.
UNDERSTAND THAT I AM GIVING UP VALUABLE LEGAL RIGHTS BY SIGNING THIS
RELEASE, WAIVER, INDEMNITY AND HOLD HARMLESS CERTIFICATION. I HAVE
AGREED TO SIGN THIS CERTIFICATION OF MY OWN FREE WILL I UNDERSTAND THAT
I MAY SEEK THE ADVICE OF AN ATTORNEY IN ANY MATTER CONNECTED WITH THIS
RELEASE, WAIVER, INDEMNITY AND HOLD HARMLESS CERTIFICATION BEFORE
SIGNING.
PARTICIPANT SIGNATURE:
By:
Signature
Printed Name
Date
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