HomeMy WebLinkAbout2021-10-19; City Council; Resolution 2021-238RESOLUTION NO. 2021-238
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, APPROVING THE AGREEMENT FOR MAINTENANCE TRAINING
IN PATROL AND NARCOTIC DETECTION SERVICES WITH MANK9, INC.
EXHIBIT 1
WHEREAS, the City Council of the City of Carlsbad, California has determined that it is in the
best interest of the city to approve the agreement with Man K-9 for maintenance training in patrol and
narcotics detection services; and
WHEREAS, the police department has been utilizing the services of Man K-9 for several decades;
and
WHEREAS, weekly training is necessary for the police department's K-9 Unit in order to maintain
safety and proficiency; and
WHEREAS, the contractor is preferred vendor for this type of service due to their longstanding
exemplary service to the city; and
WHEREAS, the contractor has requested that the city agree to a yearly agreement utilizing their
preferred terms; and
WHEREAS, the terms proposed by Man K-9 include requiring that the city to "release, indemnify,
and hold Man K-9 harmless from any and all manners of damages, claims, loss, liabilities, costs of
expenses, causes of actions or suits, whatsoever in law or equity (including, without limitation,
attorney's fees and related costs) arising out of or related to the services provided by Man K-9." The
agreement also states that the city indemnifies the contractor for any claims that arise out of the sole
negligence or willful misconduct of the city; and
WHERAS, the city attorney's office recommends that this agreement be approved by city
council.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as
follows:
1. That the above recitations are true and correct.
2. That the Chief of Police is authorized to execute the agreement with Man K-9 for
Maintenance Training in Patrol and Narcotic Detection Services, attached hereto as
Attachment "A", and all future amendments.
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AGREEMENT FOR MAINTENANCE TRAINING IN PATROL AND NARCOTIC DETECTION SERVICES MANK9, INC. THIS AGREEMENT is made and entered into as of the ______________ day of
_________________________, 20___, by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and ManK9 Inc., a K9 seller and trainer, ("Contractor"). RECITALS A. City requires the professional services of a police K9 trainer that is experienced in regular maintenance training in patrol and narcotic detection. B. Contractor has the necessary experience in providing professional services and advice related to police K9 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 year from the date first above written. The Chief of Police may amend the Agreement to extend it for three additional one year periods or parts thereof. 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 be no more than nineteen thousand five hundred fifty-two dollars ($19,552). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. If the City elects to extend the Agreement, the amount shall not exceed nineteen thousand five hundred fifty-two dollars ($19,552) per Agreement year. 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".
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Incremental payments, if applicable, should be made as outlined in attached Exhibit "A". 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. INDEMNITY See Scopes of Services (Exhibit A).
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-:VII"; OR with a surplus line insurer on the State of California’s List of Approved Surplus Line Insurers (LASLI) with a rating in the latest Best’s Key Rating Guide of at least “A:X”; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report.
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10.1 Coverage and Limits. Contractor will maintain the types of coverage and minimum limits indicated below, unless the
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. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. 10.1.1 Commercial General Liability (CGL) Insurance. Insurance written on an “occurrence” basis, including personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 10.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work for City). $2,000,000 combined single-limit per accident for bodily injury and property damage.
10.1.3 Workers' Compensation and Employer's Liability. 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 Liability. 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. 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 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.
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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 Carlsbad 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 clearly 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 notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City For Contractor
Name Steve Thomas Name Laurie Hay
Title Lieutenant Title Managing Director
Department Police Address 5050 Santa Fe St
City of Carlsbad San Diego, CA 92109
Address 2560 Orion Way Phone No. 760-468-8830
Carlsbad, CA 92010 Email laurie@mank9.com
Phone No. 760-931-2100
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 Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all categories.
Yes No X 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 of the 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 otherwise 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 forwarded 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.
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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 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 otherwise 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 seq., 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. JURISDICTION 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 nor 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
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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.
26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of
Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. CONTRACTOR CITY OF CARLSBAD, a municipal corporation of the State of California
By: By:
(sign here) Division Director
(print name/title)
ATTEST:
By:
(sign here) FAVIOLA MEDINA
City Clerk Services Manager
(print name/title)
If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups. Group A Group B Chairman, Secretary, President, or Assistant Secretary, Vice-President CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM: CELIA A. BREWER, City Attorney
BY: _____________________________
Assistant City Attorney
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PRESIDENT
Deputy City Attorney
for
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EXHIBIT “A” SCOPE OF SERVICES The Regular Unit Maintenance Training is intended for 2 Single Purpose Patrol K9’s and 2 Dual
Purpose K9’s for a Maximum FOUR DOG unit, to maintain and keep its training up to date and shall consist of 16 hours in a 4 week month & 20 hours in a 5 week month of Patrol training per month for 12 month(s), plus 4 hours in a 4 week month & 5 hours in a 5 week month of Narcotic Detection training for a 4 Week Monthly rate: $1,504.00 & 5 Week Monthly rate: $1,880.00 effective August 1, 2021. Bi-annual P.O.S.T evaluation is included, at no charge, when conducted on a scheduled training day. Purchaser shall be billed monthly following the completion of each month's training. All invoices are due upon receipt. A late charge of 1.5%, or the maximum amount allowed by law, shall be added to invoices outstanding more than thirty (30) days.
Purchaser expressly understands that Seller makes no representations or warranties as to the health, safety, and/or fitness of the dog for the purpose and/or intent for which it is purchased.
Purchaser acknowledges and agrees that owning any animal, including but not limited to the dog, has inherent risks, including but not limited to the risk of dog bites and/or attacks to Purchaser and others. As part of this contract, and not by way of limitation, Purchaser absolutely and forever waives and relinquishes all of his/hers/its rights under Section 1542 of the Civil Code of the State of California to any party receiving a release from him/her/it. That Section reads: 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.
In connection with such waiver and relinquishment, Purchaser acknowledges that it is aware that he may later discover facts in addition to or different from those which it now knows
or believes to be true with respect to the subject matter of this Agreement, but that it is their intention hereby fully, finally and forever, to settle and release all released matters, known or unknown, suspected or unsuspected, which now exist, may exist or previously existed between them and the party granting the release. In furtherance of such intention, the releases given here shall be in, and shall remain in, effect as full and complete releases, notwithstanding the discovery or existence of any such additional or different facts. Purchaser acknowledges and understands that there are certain risks involved in police k9 training, boarding, and care. You release, indemnify, and agree to hold Seller harmless from any and all manner of damages, claims, loss, liabilities, costs of expenses, causes of actions or
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suits, whatsoever in law or equity (including, without limitation, attorney's fees and related costs) arising out of or related to the services provided by Seller.
Purchaser expressly understands and agrees that Seller and its subsidiaries, affiliates, officers, employees, agents, partners and/or licensors shall not be liable to you for any direct,
indirect, incidental, special, consequential or exemplary damages, including but not limited to: damages for personal injury to you and/or a third party resulting from (i) any and all actions and omissions during the dog training, whether on Seller's property or otherwise; (ii) any attacks and/or dog bites by the dog named above and subject to this contract OR any dog present at the dog training session; (iii) illness and/or injury to your dog caused by or related to any other animal present at the training. Purchaser further agrees to indemnify and hold Seller and its subsidiaries, affiliates, officers, employees, agents, partners and/or licensors (including but not limited to the owners and/or lessors of property where the training takes place) harmless from any and all actions made by any third party related to or arising from this contract, including but not limited to actions brought as a result of any dog bite and/or attack by the dog named above and subject to this contract. Purchaser expressly agrees that as part of this indemnity it will be
responsible for any and all court costs, including but not limited to reasonable attorneys' fees for an attorney of Seller's choice, filing fees and additional costs.
Seller shall not be responsible for incidents occurring with regards to the dog(s) while they are in the sole custody of the officer(s), provided the incident does not arise from the gross negligence or willful misconduct of Seller. Purchaser agrees to indemnify Seller for any claims
for damages that arise while the dog(s) are in the sole custody of the officer(s) and the claim for damage arises out of the sole negligence or willful misconduct of Purchaser. Seller may provide Purchaser with certain equipment, including but not limited to: leather leash, choke chain, leather collar. Seller makes absolutely no representations regarding the condition and merchantability of any such items and Purchaser agrees to release, indemnify, and hold Seller harmless from any and all manner of damages, claims, loss, liabilities, costs of expenses, causes of actions or suits, whatsoever in law or equity (including, without limitation, attorney's fees and related costs) arising out of or related to the failure and/or defectiveness of any such equipment, including but not limited to any and all actions, including dog bites and/or attacks, by the dog subject to this Contract, and involving the failure and/or defectiveness of any
such equipment. Purchaser expressly agrees that all basic k9 handler academies and decoy classes must
be provided by MAN-K9. In any action brought under this Agreement, the prevailing party shall be entitled to recover
its actual costs and reasonable attorney’s fees pursuant to California Civil Code Section 1717 and all other litigation costs, including expert witness fees, and all actual attorney’s fees and litigation costs incurred in connection with the enforcement of a judgment arising from such action or proceeding. Purchaser expressly understands there is no express or implied warranty of merchantability related to products or services purchased or provided pursuant to this contract. If applicable, Purchaser agrees to provide Seller with a complete copy of its written policy on the use of police/security dogs. Seller and Purchaser expressly represent that Seller has no
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authority or discretion to create or modify Purchaser's policy on the use of police/security dogs. Under no circumstances shall Seller be deemed a policy-maker for Purchaser. Under no
circumstances shall Seller be liable for any use of the dog, whether 1) in accordance with or contrary to any purpose stated in Purchaser's written policy; or 2) during the ordinary course of Purchaser's business or otherwise.
Purchaser acknowledges that any of its subsidiaries, affiliates, officers, employees, agents, partners and/or licensors that take part in the training pursuant to this contract shall participate pursuant to the ordinary course of Purchaser's business, if any, and be covered by appropriate employee insurance(Workers’ Compensation Insurance). Purchaser further expressly understands and agrees with the following, which is an integral part of the contract: i. MAN-K9 INC. and its subsidiaries, affiliates, officers, employees, agents, partners and/or licensors, including but not limited to Manuel Villanueva, do not teach you, your officers,
employees, agents, or partners, any classes related to the USE OF FORCE and do not dictate policy in the USE OF FORCE exercised by you, your officers, employees, agents, or partners.
ii. MAN-K9 and its subsidiaries, affiliates, officers, employees, agents, partners and/or licensors, including but not limited to Manuel Villanueva, only teach dogs to perform according to Your policies and/or procedures.
iii. You expressly warrant and represent that MAN-K9 INC. and its subsidiaries, affiliates, officers, employees, agents, partners and/or licensors, including but not limited to Manuel Villanueva are not policy-makers for you and/or your department or Agency. iv. MAN-K9 INC. and its subsidiaries, affiliates, officers, employees, agents, partners and/or licensors, including but not limited to Manuel Villanueva, do not teach, recommend, advise or dictate when you, your officers, employees, agents, or partners should deploy the dog(s) in actual police/security/patrol work. v. You expressly warrant and represent that any dog trained pursuant to this Contract, by
MAN-K9 INC. and its subsidiaries, affiliates, officers, employees, agents, partners and/or licensors, including but not limited to Manuel Villanueva will be used only in accordance with the training provided and only for the purposes stated in Your department or agency's written policy.
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