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HomeMy WebLinkAboutMEGGITT TRAINING SYSTEMS, INC.INIRANCE NC i ON FILE N-2018-161 WORK MAY NO'i PROCEED �LERK OF COUNCIL DATE; ,AUG 0 G 2010 AGREEMENT WITH MEGGITT TRAINING SYSTEMS % FOR INSTALLATION AND USE OF TRAINING SIMULATOR yy�a� FOR BETA PROGRAM PHASE 111 THIS AGREEMENT is made and entered into this lst day of August, 2018 by and between Meggitt Training Systems, Inc., a Delaware Corporation ("Contractor"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS A. Contractor is seeking regional partnerships with law enforcement agencies to provide increased awareness and receive feedback from law enforcement on the use of Contractor's virtual training simulators during the beta program of its system described below, B. As part of a Beta Program Phase, Contractor will install the equipment and train Department staff on the use of the Contractor's FATSTO 30OLE system ("Training Simulator") at no cost to the City. C. In undertaking the performance of this Agreement, Contractor represents that it is knowledgeable in its field and that any services performed by Contractor under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Contractor shall perform during the term of this Agreement, the tasks and obligations including providing all labor, materials, tools, equipment, and training necessary to fully and adequately complete the services described and set forth in Exhibit A, attached hereto and incorporated by reference. 2. COMPENSATION a. Contractor shall not charge City any monies for the installation of the equipment, the use of the training simulator, or the training, during the 8 -month Beta Testing Phase detailed below in Section 3. Contractor understands that the use of the equipment is limtt"d to testing the equipment during the 8-inonth Beta Testing phase only and City is under no obligation to purchase the equipment or enter into an Agreement with Contractor. b. At the end of the 8 -month. Beta Testing Phase, City shall have the sole discretion to invite qualified vendors to provide similar training simulators for testing and, use by City personnel for such time as is necessary. Thereafter, City shall have the sole discretion to issue a Request for Proposal to obtain proposals from qualified vendors - Page I of 7 including but not limited to Contractor for the purchase or leasing of a training simulator. Upon review of the RFP's, the City shall have to sole discretion as to the selection of a qualified vendor. Purchase or lease of any training simulator from a qualified vendor will be subject to approval by the City Council. 3. TERM — BETA PROGRAM PRASE Beta program phase, as used herein, shall commence on the date mentioned above and continue for an eigbt-month terns unless terminated earlier in accordance with Section 14, below. Upon delivery of the equipment to the City, the parties agree the use of the training systems equipment by the City shall be for a four to eight month period for the beta program testing of the system. 4. INDEPENDENT CONTRACTOR Contractor shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Contractor performs the services which are the subject matter of this Agreement; however, the services to be provided by Contractor shall be provided in a manner consistent with all applicable standards and regulations governing such services. Contractor shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Contractor shall maintain and shall require its subcontractors, if any; to obtain and maintain insurance as described below: a. Commercial General. Liability Insurance. Contractor shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional irisured(s) and shall include, but not be limited to protection against claims arising from. bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Contractor's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and. (c) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. Page 2 of 7 c. Worker's Compensation Insurance. In accordance with the provisions of Section 3700 of the Labor Code, Contractor, if Contractor has any employees, is required to be insured against liability for worker's compensation or to undertake self- insurance. Prior to commencing the perfonnance of the work under this Agreement, Contractor agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. If Contractor is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim with $2,000,000 in the aggregate. E. The following requirements apply to the insurance to be provided by Contractor pursuant to this section: i, Contractor shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. ii. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved by the City, iii. Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. iv. Where the amounts or coverage provided by the certificates of insurance provides coverage greater than those listed by this Agreement, the amounts provided by the certificates of insurance shall be incorporated by reference into the Agreement. V. Contractor shall supply City with a fully executed additional insured endorsement. f. If Contractor fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not affect Contractor's right to be paid for its time and materials expended prior to notification of termination. Contractor waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 6. INDEMNIFICATION Contractor agrees to defend, and shall indemnify and hold harmless the City, its officers, agents, employees, contractors, special counsel, and representatives from liability: (1) 'r personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligent operations of the Contractor, its subcontractors, agents, employees, or other persons acting on its behalf which relates to the services described in section I of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and. hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial Page 3 of 7 or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of,, or effects, arising from this Agreement. The Contractor further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Notwithstanding the foregoing, to the extent Contractor's services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor. INTELLECTUAL PROPERTY INDEMNIFICATION Contractor shall defend and indemnify the City; its officers, agents, representatives, and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in the work product or documents provided by Contractor to the City pursuant to this Agreement. 8. RECORDS Contractor shall keep records and invoices in connection with the work to be performed under this Agreement. Contractor shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Contractor under this Agreement. All such records and invoices shall be clearly identifiable. Contractor shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Contractor shall allow inspection of ail work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Contractor under this Agreement. 9. CONFIDENTIALITY If Contractor receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Contractor agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered. by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Contractor disclosed in a publicly available source; (c) is in rightful possession of the Contractor without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) Page 4 of is independently developed by the Contractor without reference to information disclosed by the City. 1.0. CONFLICT OF INTEREST CLAUSE Contractor covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement, 11. DISCRIMINATION Contractor shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Contractor affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 12, EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Contractor, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Contractor. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Contractor or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which is not embodied herein. 13. ASSIGNMENT Contractor may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other Contractors retained by City. 14. TERMINATION This Agreement may be terminated by the City upon ten (10) days written notice of termination. Thereafter, Contractor shall be responsible for all expenses incurred in retrieving all of the equipment unless the City agrees to purchase the equipment prior to the termination of the pilot testing phase. Page 5of7 15. WAIVER No waiver of breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or right, or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 16. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California, Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 1.7. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All. Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 18. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax: 714- 647-6956 With courtesy copies to: David Valentin Chief of Police City of Santa Ana Sonia R. Carvalho City Attorney City of Santa Ana Page 6 of 7 N-2018-161 60 Civic Center Plaza P.O. Box 1988 Santa Ana, California 92702 Fax: 714-245-8190 To Contractor: Meggitt Training Systems, Inc. 296 Brogdon Road Suwanec, GA 30024 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 Fax: 714- 647-6515 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shalt be excluded. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. CITY OF SANTA ANA Lau odinez 1I Y�- City Manager APPROVED AS TO FORM: SONIA R. CARVALHO City mey By. Bogos0- Tamaraa Assistant City Attorney RECOMMENDED FOR APPROVAL: G a entin Chief of Police CONTRACTOR: Ti Title: R Page 7 of 7 EXHIBIT A SCOPE OF SERVICES N-2018-161 Cpl. Mike McCarthy Santa Ana Police Department Training Division 60 Civic Center Plaza Santa Ana CA 92701 EGGI17 Meggitt Training Systems (MTSI), of Suwanee Georgia, is in the final stage of release for the new five screen immersive FATS® 30OLE system and seeking regional partnerships within the law enforcement community to provide non -bias feedback from respected training sites. MTSI has selected Santa Ana Police Department based on its status within the law enforcement community. In an effort to increase awareness within the law enforcement community and aiding in the release of this product MTSI is requesting the following participation from the beta sites: 1. MTSI is seeking departments that will train Officers on the FATSO 30OLE and provide non -bias feedback on ease of use, content quality, quantity and reliability of the system. 2. Ability for department representatives to provide honest feedback to agencies seeking information on the FATS® 300LE, 3. Allow MTSI to conduct private demonstration when the system is not in use. 4. MTSI requests the ability to host a Vendor Day for local agencies. Involvement from the department would not be required but would be appreciated. S. MTSI requests the department participate in a media release and subsequent activity to positively highlight the capabilities of virtual simulation training within law enforcement and how that technology helps departments evaluate their officers. MTSI will install the equipment and train the instructor(s) in operation of the system at no cost to the department. MTSI will also offer law enforcement instructors to train the users how to best implement virtual training simulators into current training curriculum. The selected beta sites have no obligations to purchase and MTSI will assume all risk of damage to the loaner equipment. Term length of this beta program is intended to be 4 to 8 months, Additional time can be allowed at the department's requests and MTSI discretion. At any point during the evaluation the department can request that the equipment be removed and MTSI will do so at no cost. Juan Barillas Virtual System Sales Mobile: 470-266-8379 Meggitt Training Systems Inc.. Tel: +1 678 288 1090 286 arogoon Road, Suwanee, Georgia 30024, USA Fax; +1 678 288 1515 w .meggilttrainingsysterris.conr