HomeMy WebLinkAboutFireblast451; 2014-04-10; PEM999PEM999
AGREEMENT FOR GAS OPERATED UVE FIRE BURN PROP
ANNUAL PREVENTATIVE MAINTENANCE SERVICES
(FIREBLAST 451, INC.)
//THIS AGREEMENT is made and entered into as of the /^ day of
// /^/- / / 2014, by and between the CITY OF CARLSBAD, a municipal
corporation, ("City"), and FIREBLAST 451, a California corporation, ("Contractor").
RECITALS
A. City requires the professional services of a supplier that installs and services gas
operated live fire burn props for firefighting training.
B. Contractor has the necessary experience in providing professional services and
advice related to cleaning, calibrating, maintaining, and functional operability of gas operated
live fire burn props used by fire service personnel for non-emergency firefighting training.
C. Contractor has submitted a proposal to City and has affirmed its willingness and
ability to perform such work.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein. City and Contractor agree as follows:
1. SCOPE OF WORK
City retains Contractor to perform, and Contractor agrees to render, those services (the
"Services") that are defined in attached Exhibit "A", which is incorporated by this reference in
accordance with this Agreement's terms and conditions.
2. STANDARD OF PERFORMANCE
While performing the Services, Contractor will exercise the reasonable professional care and
skill customarily exercised by reputable members of Contractor's profession practicing in the
Metropolitan Southern California Area, and will use reasonable diligence and best judgment
while exercising its professional skill and expertise.
3. TERM
The term of this Agreement will be effective for a period of one (1) year from the date first above
written. The City Manager may amend the Agreement to extend it for four (4) additional one (1)
year periods or parts thereof in an amount not to exceed seventeen thousand dollars ($17,000)
per Agreement year. Extensions will be based upon a satisfactory review of Contractor's
performance, City needs, and appropriation of funds by the City Council. The parties will
prepare a written amendment indicating the effective date and length of the extended
Agreement.
4. TIME IS OF THE ESSENCE
Time is of the essence for each and every provision of this Agreement.
5. COMPENSATION
The total fee payable for the Services to be performed during the initial Agreement term will not
exceed seventeen thousand dollars ($17,000). No other compensation for the Services will be
allowed except for items covered by subsequent amendments to this Agreement. The City
reserves the right to withhold a ten percent (10%) retention until City has accepted the work
and/or Services specified in Exhibit "A".
Incremental payments, if applicable, should be made as outlined in attached Exhibit "A".
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6. STATUS OF CONTRACTOR
Contractor will perform the Services in Contractor's own way as an independent contractor and
in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be
under control of City only as to the result to be accomplished, but will consult with City as
necessary. The persons used by Contractor to provide services under this Agreement will not
be considered employees of City for any purposes.
The payment made to Contractor pursuant to the Agreement will be the full and complete
compensation to which Contractor is entitled. City will not make any federal or state tax
withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be
required to pay any workers' compensation insurance or unemployment contributions on behalf
of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within
thirty (30) days for any tax, retirement contribution, social security, overtime payment,
unemployment payment or workers' compensation payment which City may be required to
make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work
done under this Agreement. At the City's election. City may deduct the indemnification amount
from any balance owing to Contractor.
7. SUBCONTRACTING
Contractor will not subcontract any portion of the Services without prior written approval of City.
If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the
acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly
employed by the subcontractor, as Contractor is for the acts and omissions of persons directly
employed by Contractor. Nothing contained in this Agreement will create any contractual
relationship between any subcontractor of Contractor and City. Contractor will be responsible for
payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of
a subcontractor by the terms of this Agreement applicable to Contractor's work unless
specifically noted to the contrary in the subcontract and approved in writing by City.
8. OTHER CONTRACTORS
The City reserves the right to employ other Contractors in connection with the Services.
9. INDEMNIFICATION
Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees
and volunteers from and against all claims, damages, losses and expenses including attorney's
fees arising out of the performance of the work described herein caused by any negligence,
recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or
indirectly employed by any of them or anyone for whose acts any of them may be liable.
The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or
makes to or on behalf of an injured employee under the City's self-administered workers'
compensation is included as a loss, expense or cost for the purposes of this section, and that
this section will survive the expiration or earty termination of this Agreement.
10. INSURANCE
Contractor will obtain and maintain for the duration of the Agreement and any and all
amendments, insurance against claims for injuries to persons or damage to property which may
arise out of or in connection with performance of the services by Contractor or Contractor's
agents, representatives, employees or subcontractors. 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-:VH". OR
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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".
10.1 Coverages and Limits.
Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk
Manager or City Manager approves a lower amount. These minimum amounts of coverage will
not constitute any limitations or cap on Contractor's indemnification obligations under this
Agreement. City, its officers, agents and employees make no representation that the limits of
the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to
protect Contractor. If Contractor believes that any required insurance coverage is inadequate.
Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at
Contractor's sole expense.
10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit
per occurrence for bodily injury, personal injury and property damage. If the submitted policies
contain aggregate limits, general aggregate limits will apply separately to the work under this
Agreement or the general aggregate will be twice the required per occurrence limit.
10.1.2 Automobile Liabilitv. (if the use of an automobile is involved for
Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and
property damage.
10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation
limits as required by the California Labor Code. Workers' Compensation will not be required if
Contractor has no employees and provides, to City's satisfaction, a declaration stating this.
10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to
Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be
maintained for a period of five years following the date of completion of the work.
I I If box is checked. Professional Liability
City's Initials Contractor's Initials Insurance requirement is waived.
10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under
this Agreement contain, or are endorsed to contain, the following provisions:
10.2.1 The City will be named as an additional insured on Commercial General
Liability which shall provide primary coverage to the City.
10.2.2 Contractor will obtain occurrence coverage, excluding Professional
Liability, which will be written as claims-made coverage.
10.2.3 This insurance will be in force during the life of the Agreement and any
extensions of it and will not be canceled without thirty (30) days prior written notice to City sent
by certified mail pursuant to the Notice provisions of this Agreement.
10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this
Agreement, Contractor will furnish certificates of insurance and endorsements to City.
10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance
coverages, then City will have the option to declare Contractor in breach, or may purchase
replacement insurance or pay the premiums that are due on existing policies in order to
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maintain the required coverages. Contractor is responsible for any payments made by City to
obtain or maintain insurance and City may collect these payments from Contractor or deduct the
amount paid from any sums due Contractor under this Agreement.
10.5 Submission of Insurance Policies. City reserves the right to require, at any time,
complete and certified copies of any or all required insurance policies and endorsements.
11. BUSINESS LICENSE
Contractor will obtain and maintain a City of Carisbad Business License for the term of the
Agreement, as may be amended from time-to-time.
12. ACCOUNTING RECORDS
Contractor will maintain complete and accurate records with respect to costs incurred under this
Agreement. All records will be clearty identifiable. Contractor will allow a representative of City
during normal business hours to examine, audit, and make transcripts or copies of records and
any other documents created pursuant to this Agreement. Contractor will allow inspection of all
work, data, documents, proceedings, and activities related to the Agreement for a period of
three (3) years from the date of final payment under this Agreement.
13. OWNERSHIP OF DOCUMENTS
All work product produced by Contractor or its agents, employees, and subcontractors pursuant
to this Agreement is the property of City. In the event this Agreement is terminated, all work
product produced by Contractor or its agents, employees and subcontractors pursuant to this
Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy
of the work product for Contractor's records.
14. COPYRIGHTS
Contractor agrees that all copyrights that arise from the services will be vested in City and
Contractor relinquishes all claims to the copyrights in favor of City.
15. NOTICES
The name of the persons who are authorized to give written notices or to receive written notice
on behalf of City and on behalf of Contractor under this Agreement.
For Citv For Contractor
Name Jason T. Kennedy Name Joe Gonzalez
Title Facility Manager Title Customer Service Administrator
Property and
Environmental
Department Management (PEM) Address 545 Monica Circle
City of Cartsbad Corona, CA 92880
Address 5750 Orion Street Phone No. 951-277-8319
Cartsbad, CA 92010 Email jgonzalez@fireblast.com
Phone No. 760-931-2236
Each party will notify the other immediately of any changes of address that would require any
notice or delivery to be directed to another address.
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16. CONFLICT OF INTEREST
Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the
requirements of the City of Carisbad Conflict of Interest Code. The Contractor shall report
investments or interests in all four categories.
17. GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed of federal, state and local laws and ordinances and
regulations which in any manner affect those employed by Contractor, or in any way affect the
performance of the Services by Contractor. Contractor will at all times observe and comply with
these laws, ordinances, and regulations and will be responsible for the compliance of
Contractor's services with all applicable laws, ordinances and regulations.
Contractor will be aware of the requirements ofthe Immigration Reform and Control Act of 1986
and will comply with those requirements, including, but not limited to, verifying the eligibility for
employment of all agents, employees, subcontractors and consultants whose services are
required by this Agreement.
18. DISCRIMINATION AND HARASSMENT PROHIBITED
Contractor will comply with all applicable local, state and federal laws and regulations prohibiting
discrimination and harassment.
19. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Services the following procedure will
be used to resolve any questions of fact or interpretation not othenA/ise settled by agreement
between the parties. Representatives of Contractor or City will reduce such questions, and their
respective views, to writing. A copy of such documented dispute will be forwarded to both
parties involved along with recommended methods of resolution, which would be of benefit to
both parties. The representative receiving the letter will reply to the letter along with a
recommended method of resolution within ten (10) business days. If the resolution thus
obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be fonwarded
to the City Manager. The City Manager will consider the facts and solutions recommended by
each party and may then opt to direct a solution to the problem. In such cases, the action of the
City Manager will be binding upon the parties involved, although nothing in this procedure will
prohibit the parties from seeking remedies available to them at law.
20. TERMINATION
In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may
terminate this Agreement for nonperformance by notifying Contractor by certified mail of the
termination. If City decides to abandon or indefinitely postpone the work or services
contemplated by this Agreement, City may terminate this Agreement upon written notice to
Contractor. Upon notification of termination. Contractor has five (5) business days to deliver any
documents owned by City and all work in progress to City address contained in this Agreement.
City will make a determination of fact based upon the work product delivered to City and of the
percentage of work that Contractor has performed which is usable and of worth to City in having
the Agreement completed. Based upon that finding City will determine the final payment of the
Agreement.
Either party upon tendering thirty (30) days written notice to the other party may terminate this
Agreement. In this event and upon request of City, Contractor will assemble the work product
and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for
work performed to the termination date; however, the total will not exceed the lump sum fee
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payable under this Agreement. City will make the final determination as to the portions of tasks
completed and the compensation to be made.
21. COVENANTS AGAINST CONTINGENT FEES
Contractor warrants that Contractor has not employed or retained any company or person, other
than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that
Contractor has not paid or agreed to pay any company or person, other than a bona fide
employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration
contingent upon, or resulting from, the award or making of this Agreement. For breach or
violation of this warranty. City will have the right to annul this Agreement without liability, or, in
its discretion, to deduct from the Agreement price or consideration, or othenwise recover, the full
amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee.
22. CLAIMS AND LAWSUITS
By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must
be asserted as part of the Agreement process as set forth in this Agreement and not in
anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false
claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal
prosecution. Contractor acknowledges that California Government Code sections 12650 et seg..
the False Claims Act applies to this Agreement and, provides for civil penalties where a person
knowingly submits a false claim to a public entity. These provisions include false claims made
with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of
information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to
recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a
false claim may subject Contractor to an administrative debarment proceeding as the result of
which Contractor may be prevented to act as a Contractor on any public work or improvement
for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction
is grounds for City to terminate this Agreement.
23. JURISDICTIONS AND VENUE
Any action at law or in equity brought by either of the parties for the purpose of enforcing a right
or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the
County of San Diego, State of California, and the parties waive all provisions of law providing for
a change of venue in these proceedings to any other county.
24. SUCCESSORS AND ASSIGNS
It is mutually understood and agreed that this Agreement will be binding upon City and
Contractor and their respective successors. Neither this Agreement or any part of it nor any
monies due or to become due under it may be assigned by Contractor without the prior consent
of City, which shall not be unreasonably withheld.
25. ENTIRE AGREEMENT
This Agreement, together with any other written document referred to or contemplated by it,
along with the purchase order for this Agreement and its provisions, embody the entire
Agreement and understanding between the parties relating to the subject matter of it. In case of
conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor
any of its provisions may be amended, modified, waived or discharged except in a writing
signed by both parties.
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26. AVTffiFimr _ .
The individuals •xecuUng this Agreement and the instruments referenced in it on behalf of
Contractor each repfeeent and wan^nt that they have the legal power, right and actual authority
to bind Contractor to the tenns and conditions of this Agreement.
CONTRACTOR
FIREBLAST 451, Int.. a Califomia
(sign here)
Leah Eqelin/Vicgjresident
(print name^e)
CITY OF CARLSBAD, a municif»l
corporation ofthe State of Caiifomia
iafleriiir*MayeF^Diwsion Diredor
auttiorissed tyy' tfw City Manager
Jinfi Howell
Rick Ec^elin/President
(print nanWHtle)
If required by City, proper notarial acknowledgment of execution by contractor must be
attached. If a conaoration. Agreement must be signed by one corporate officer from each of the
following tm gmips.
Chairman,
Preskient, or
Vice-PrMklerrt
Secnrtary,
AssisUHit Secretary,
CFO or Assistent Treasurer
Othendae, the corporation must attich a resolution certified by the secretary or assistant
secretary under corporate seal empowering'the officer(8) signing to bind ttte corpcH^on.
APPROVED AS TO FORM:
CELIA A. BREWER, City Attomey
Msfstant City Attomey
City AtKmvy Appromi Ven^ 1/3<yi3
CALIFORNIA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
State of Califomia
County of
On MA^g-^ Z^-m before me, Nm PAP 1^/^,^017^/ fa8>U
(Here insert name and title of the officer)
personally appeared
who proved to me on the basis of satisfactory evidence to be the personj^) whose name^/l^kFe-subscribed to
the within instrument andacknowledged to me that(^sh«/tb€y executed the same in^Mte/tfeeir authorized
capacity(^), and that bVfu^or/their signature^ on the instrument the personj^, or the entity upon behalf of
which the person^^ acteoTexecuted the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of Califomia that the foregoing paragraph
is true and correct.
WITNESS my hand and official seal
Signature of Notary PubTTc ubiic (Notary Seal)
AJ M. PADILLA L
COMM. #1991825
Notary Public - California —i
RIVERSIDE COUNTY
^'^^My Comm. Exp. Sep. 21, 2016 f
ADDITIONAL OPTIONAL INFORMATION
DESCRIPTION OF THE ATTACHED DOCUTVtENT
^ (Title or descripiion of attached document)
(Title or description of attached document continued)
Number of Paoes Document Date
(Additional information)
CAPACITY CLAIMED BY THE SIGNER
• Individua] (s)
• Corporate Officer
(Title)
• Partner(s)
• Attomey-in-Fact
• Tnjstee(s)
• Other
INSTRUCTIONS FOR COMPLETING THIS FORM
Any acknowledgment completed in Califomia must contain verbiage exactly as
appears above in lhe noiary section or a separate acknowledgment form must be
properly completed and attached lo that document. The only excepiion is if a
documenl is lo be recorded outside of Califomia. In such instances, any alternative
acknowledgment verbiage as may be printed on such a document so long as the
verbiage does not require the notary to do something thai is illegal for a notary in
Califomia (i.e, certifying the authorized capacity of the signer). Please check the
documenl carefully for proper notarial svording and attach this form ifrequired.
• State and County information must be the State and County where the document
signer(s) personally appeared before the notary public for acknowledgment.
• Date of notarization must be the date that the signer(s) personally appeared which
must also be the same date the acknowledgment is completed.
• The notary public must pnnt his or her name as it appears within his or her
commission followed by a comma and then your title (notary public).
• Pnnt the name(s) of document signer(s) who personally appear at the time of
notarization.
• Indicate the correct singular or plural forms by crossing off incorrect forms (i e
he/she/they^ is /are ) or circling the correct forms. Failure to correctly indicate this
infomiation may lead to rejection of document recording.
• The notary seal impression must be clear and photographically reproducible
Impression must not cover text or lines If seal impression smudges, re-seal if a
sufficient area permits, otherwise complete a different acknowledgment form.
• Signature ofthe notary public must match the signature on file with the office of
the county clerk.
•:• Additional information is not required but could help to ensure this
acknowledgment is not misused or attached to a different document
Indicate title or type of attached document, number of pages and dale.
•'• Indicate the capacity claimed by the signer If the claimed capacity is a
corporate officer, indicate the title (i.e. CEO, CFO, Secretary).
• Securely attach this document to the signed document
2008 Version CAPA vl2.10.07 800-873-9865 www.NotaryClasses.com
EXHIBIT "A"
SCOPE OF SERVICES
Fireblast 451, Inc., shall provide the following annual preventative maintenance checks and
services on all gas operated live fire burn props at the City of Cartsbad Safety Training Center
located at 5750 Onon Street, Carlsbad, CA 92010:
. Program reinstallation from onginal software on all main control consoles in both the
residential and commercial live fire burn props. Program upgrades will be at the cost of
Fireblast 451, Inc., (when applicable). This refers to updates to program software only.
Verify and calibrate gas monitoring system to include alarm system testing.
Remove, clean and reinstall flame detection systems.
Inspect ignition probes. Clean or replace as required.
Conduct leak checks on LPG fittings and verify pressure regulator(s) are displaying pressure
accurately.
Conduct inspections of all electrical panels, verifying that voltage, wiring, emergency stops,
and dead man pedals are functioning properiy.
Conduct inspections and functional testing on remotes and mobile control consoles.
Change fluid in nitrogen generator.
Verify accuracy of temperature monitoring system and probes.
Change fluid in air compressor(s).
Drain moisture from air compressors.
Inspect ventilation and airflow fans. Adjust belts and lubricate fittings as necessary.
Test smoke machine and distribution system.
Clean smoke machine nozzles.
Test LPG valve body for safety shut off accuracy.
Inspect water-cooling system for adequate levels of dispersion.
Clean and Lubricate gas valves.
Test ventilation prop rams (If applicable).
Conduct a full system inspecfion including burn quality test and ignifion.
Provide maintenance training to facility maintenance personnel as required.
Includes emergency service calls/repairs and spare parts not to exceed $1,800 per year
Fireblast 451, Inc., is the Sole Source Service Provider for the gas operated live fire burn props
located at the City of Carisbad Safety Training Center.
Fireblast 451, Inc., will contact the STC facility manager for scheduling.
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