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HomeMy WebLinkAboutNES, INC. (NCC TRAINING) N-2024-315 f* ( training 620 Coolidge Dr.,Ste.#100,Folsom,CA 95630 NARCOTICS,CLAN LABS a ILLICIT CANNABIS (916)353-2360/(800)NES`ADVISE/Fax(916)353-2375 —A DIVISION OF NES— www.nes-ehs.com INSURANCE NOT ON FILE WORK MAY NOT PROCEED CITY CLERK LETTER OF AGREEMENT DATE: SEP 1 9 2024 o . C July 31, 2024 Sgt. Brandon Sontag#3078 bsontag@santa-ana.org Training/Defensive Tactics Santa Ana Police Department (714) 245-8050 desk 60 Civic Center Plaza, PO Box 1981 Santa Ana, CA. 92701 Sgt. Sontag: This Letter of Agreement(LOA)is being issued to confirm your authorization for NES,Inc.(NES) to provide the following services: NCC(NES) will provide a three-day Cannabis Operations Hazards & Safety for Law Enforcement training program consisting of three days of lecture on behalf of the Santa Ana Police Department. It is expected that there will be 22 participants in attendance. Training is anticipated to be conducted September 18-20, 2024, as mutually agreed upon between the Santa Ana Police Department. The training will be held at a training facility provided by the Santa Ana Police Department and will include AV equipment, a dry erase board or flip chart and adequate space to safely host demonstrations as needed.The class will run each day from 8:00 am—5:00 pm. Our terms and conditions for this project are as follows: ➢ The Services are limited to those specified above. Under no circumstances shall NES be responsible or liable for the performance of any services beyond the scope of services de- scribed above unless and until such scope of services is amended in writing in accordance with the attached Contract Terms and Conditions, Client Information Form, and Insurance Requirements (Attachments A, B, and C, respectively). ➢ Services are to be initiated upon approval of this LOA. ➢ The Contract Terms and Conditions attached to this LOA are an integral part of our agreement. > All NES services are progress billed monthly unless previously arranged and agreed upon by both parties. > Services performed by NES are confidential as set forth in the attached Contract Terms and Conditions. > The cost of services quoted is valid for 90 days from the date of this signed LOA. > Preparation, 1 instructor, travel costs, course instruction, 22 field guides, and exercise setup and oversight will be billed for a fixed fee of$13,534.00 USD or $615.18/person. Santa Ana Police Department NES,Inc. Cannabis Operations Hazards&Safety for 1 620 Coolidge Dr.,Ste.#100 Law Enforcement Folsom,CA 95630 July 31,2024 ( tranng 620 Coolidge Dr.,Ste.#100,Folsom,CA 95630 NARCOTICS,CLAN LABS 8 ILLICIT CANNABIS (916)353-2360/(800)NES-ADVISE l Fax(916)353-2375 -A DIVISION OF NES- www.nes-ehs.com To initiate services and to signify your acceptance of the terms and provisions set forth in this Letter of Agreement and the attached Contract Terms and Conditions(collectively, "Agreement"), please sign and return one copy of this Letter of Agreement via email (mjohnson@nes-ehs.com) or fax (916-353-2375). I look forward to working with you on this project. If you have any questions or need additional information,please contact me at(916) 353-2360. Sincerely, e-4277, Brian Escamilla President and Clan Lab Program Director To initiate services and signify your acceptance of the terms and provisions of the Agreement, please sign, and return one copy of this LOA. Agreed to and accepted by: Date (See attached signature page) Client Signature Print Name **Please identify the Point of Contact and Billing Contact for this project on the attached Client Information Form (Attachment B). ** ...in accordance with the attached Contract Terms and Conditions, Client Information Form, and Insurance Requirements (Attachments A,B, and C, respectively)." Santa Ana Police Department NES,Inc. Cannabis Operations Ha:ards&Safety for 2 620 Coolidge Dr.,Ste.#100 Law Enforcement Folsom,CA 95630 July 31,2024 IN WITNESS WHEREOF,the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY 0 SANTA ANA 4W itt; . HALL , �) AL ARO NUNEZ City Manager APPROVED AS TO FORM: RECOMMENDED FOR APPROVAL: SONIA R. CARVALHO City Attorney By: .----- 0. .. J HAN MAR Z ROBERT RODRIGUE Assistant City Attorney Acting Chief of Police Attachment A Contract Terms and Conditions NCtraining Contract Terms and Conditions NARCOTICS, CLAN LABS & ILLICIT CANNABIS -A DIVISION OF NES- 1. OFFER AND ACCEPTANCE. All NES, Inc. ("NES") proposals are submitted on the condition that the Contract Terms and Conditions of NES in effect at such time will establish the scope of liability and responsibility that governs service, and obligations resulting therefrom. These Contract Terms and Conditions, and the Letter of Agreement ("Letter of Agreement") to which they are attached (these Contract Terms and Conditions and the Letter of Agreement are sometimes hereinafter referred to collectively as the "Agreement"), become a binding contract upon the Client's written or verbal authorization to NES to proceed with the services described in the Letter of Agreement. In the event of any conflict between the terms and provisions of the Letter of Agreement and these Contract Terms and Conditions,the terms and provisions of the Letter of Agreement shall prevail. Upon Client's execution of the Letter of Agreement,the contract prices and terms are agreed upon and are not subject to renegotiation except with the mutual agreement of both parties. The services to be performed by NES shall be limited to those specified in the Letter of Agreement and under no circumstances shall NES be responsible for or liable in connection with the performance of any services beyond the scope of services specifically described in the Letter of Agreement. 2. PROPOSAL TERMS. The terms proposed in the Letter of Agreement, unless otherwise stated, shall remain valid for thirty (30) calendar days. Unless the Letter of Approval is executed by the Client and returned to NES within such period,the proposal will terminate unless otherwise accepted in writing by NES. Notwithstanding anything in this Agreement to the contrary, NES may immediately terminate this Agreement(and any other agreements between NES and the Client or any affiliate thereof)if the Client fails to make any payment when due. 3. PAYMENT TERMS. Invoices, submitted in accordance with paragraph 4 herein, are due and payable to NES within 30 days of receipt. Client shall notify NES of any invoice discrepancies AND agrees to pay all amounts not in dispute within the terms specified herein.Non-payment within the terms and conditions herein will be considered a material breach of this contract. Client's payments hereunder shall not be delayed or extended due to Client's failure to secure reimbursement from any third party. Clients without established credit with NES (or Non- Commercial Accounts)will be required to submit advance payment. 4. INVOICING. Time and Materials Projects: Client recognizes that NES' proposal is an estimate of cost only. Actual costs may vary based on conditions or changes encountered during the course of the work and/or during review of relevant project data and historical records.Invoices will be issued monthly. All labor and expenses incurred shall be invoiced and reimbursed as set forth in the NES Rate Schedule unless otherwise stated in the Letter of Agreement. Lump Sum/Fixed-Price Projects: All lump sum/fixed-priced projects will be invoiced monthly based on estimated percentage of completion. No cost element detail is provided on fixed-price or lump sum projects. 1 5. CONFIDENTIALITY. The Client acknowledges and agrees that the business methods and information ("Confidential Information") of NES are proprietary in nature and a valuable asset of NES. NES expects the Confidential Information to remain proprietary and confidential. Except as specifically contemplated hereby,the Confidential Information will(i)not be used by the Client, and(ii) be kept confidential by the Client and, except as required by law,will not be disclosed by the Client in any manner whatsoever to anyone who is not a party to this Agreement. Upon termination of this Agreement,the Client shall promptly return all Confidential Information in its possession to NES. Client acknowledges that dissemination or reuse of NES reports or data outside the scope and intent of this Agreement will be at Client's sole risk and liability. The technical and pricing information contained in any Letter of Agreement submitted by NES hereunder, or any addendum thereto, is to be considered confidential and proprietary, and shall not be released, disclosed, or otherwise made available to any third party without the express written consent of NES. 6. NoN-DISCLOSURE AGREEMENT. NES will hold in confidence all confidential and proprietary information regarding the Client that is furnished to NES by the Client and marked confidential and all confidential reports generated hereunder and will not disclose such information to any third party without the Client's authorization except as necessary or appropriate in the performance of services or in response to a subpoena or other legal process. 7. NONSOLICITATION. The Client agrees that during the term of this Agreement and for a period of one (1) year immediately following the termination of this Agreement, Client will not hire any current or former NES employee("NES employee")or solicit or induce any NES employee to become an employee or independent contractor of Client or anyone else. IF CLIENT VIOLATES ITS OBLIGATIONS UNDER THIS PARAGRAPH, CLIENT SHALL IMMEDIATELY PAY NES AN AMOUNT EQUAL TO ONE YEAR'S SALARY FOR SUCH EMPLOYEE AS LIQUIDATED DAMAGES. CLIENT AND NES AGREE THAT THE ACTUAL AMOUNT OF DAMAGES SUFFERED BY NES AS A RESULT OF ANY BREACH OF THIS PROVISION BY CLIENT WOULD BE DIFFICULT OR IMPRACTICABLE TO DETERMINE AS OF THE DATE OF THIS AGREEMENT AND THAT AN AMOUNT EQUAL TO ONE YEAR'S SALARY FOR SUCH PERSON IS A REASONABLE ESTIMATE OF THE AMOUNT OF SUCH DAMAGES. 8. INDEMNIFICATION. The Client shall indemnify, defend and hold NES, and its officers, directors, employees, subsidiaries,parents and affiliates("NES Indemnified Persons"),harmless from and against any and all claims,suits,damages,losses,expenses,costs,obligations, liabilities, recoveries and deficiencies, including interest, penalties and reasonable attorneys' fees, that any Indemnified Person shall incur or suffer in connection with or relating to this Agreement or the services provided hereunder, except for such Indemnified Persons' gross negligence or willful misconduct. NES shall indemnify, defend and hold Client, its City Council, officials, officers, directors, employees, agents, and volunteers ("City Indemnified Persons"), harmless from and against any and all claims, suits,damages, losses,expenses, costs, obligations, liabilities,recoveries and deficiencies, including interest, penalties and reasonable attorneys' fees, that any Indemnified Person shall incur or suffer in connection with or relating to this Agreement or the services provided hereunder, except for such Indemnified Persons' negligence or willful misconduct. 9. LIMITATION OF LIABILITY. Notwithstanding anything in this Agreement to the 2 contrary, (i) regardless of the form of action (whether in contract, tort, strict liability or otherwise), the maximum aggregate liability of NES arising from, in connection with or relating to this Agreement shall not exceed the total fees contemplated by this Agreement and (ii) in no event will NES be liable for lost profits, business interruption, or for indirect, special, incidental, punitive, consequential or similar damages, even if advised of the possibility thereof. NES will not be liable for any failure or delay in the performance of its obligations hereunder by reason of any cause which is beyond its reasonable control. 10. INDEPENDENT CONTRACTOR. This Agreement does not establish NES as an employee, agent or legal representative of the Client for any purpose whatsoever, nor does it grant to NES any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the Client or to bind the Client in any manner except as otherwise expressly provided herein. At all times, NES, in fulfilling its obligations and in rendering the services called for hereunder, shall be acting as an independent Contractor with respect to the Client. Nothing contained herein shall imply a joint venture, partnership or association between the parties. 11. APPLICABLE LAW. The validity, performance, and construction of this Agreement shall be governed by and interpreted in accordance with the laws of the State of California, and NES and the Client consent to the exclusive venue and jurisdiction of the courts of the State of California located in Sacramento County, California, with respect to any cause of action or other legal proceeding arising from, relating to or in connection with this Agreement or the services performed by NES hereunder. 12. ATTORNEY'S FEES. In any action between the parties to this Agreement arising from, relating to or in connection with this Agreement, or the services provided by NES hereunder, the losing party shall pay to the prevailing party reasonable attorneys' fees, costs and expenses, court costs and other costs of action incurred in connection with the prosecution or defense of such action, whether the action is prosecuted to a final judgment. 13. NOTICES. All notices, requests, demands, instructions or other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been fully given: (i) upon actual delivery, if delivered personally or by overnight delivery service; or (ii) three (3) business days after deposit in the U.S. Mail if mailed first-class, postage prepaid, registered or certified mail, return receipt requested, to the address set forth in the Letter of Agreement. Either party hereto may change the address to which such communications are to be directed by giving written notice to the other party of such change in the manner above provided. 14. TESTIMONY. If at any time during the term of this agreement or anytime thereafter, NES receives a subpoena to appear as a witness or to produce documents related to the services provided as a result of this agreement or if NES is requested to participate or be present at a legal action such as but not limited to a deposition, arbitration, mediation or any other court ordered meeting related to this agreement, NES will notify Client. NES will appear or produce the specified documents listed in the subpoena unless the Client can successfully petition the court to negate the subpoena. In such cases, Client agrees to pay NES our expert witness rates as set forth in our current Schedule of Fees less any amounts paid to NES from an opposing attorney or opposing attorney's client for any services rendered. Testimony rates at deposition, trial, mediation or arbitration applies to office or courtroom waiting time as well as actual time testifying and will be 3 billed at our expert witness rate. All other work or services, including but not limited to research, preparation, investigation, sampling, consulting and review of data or procedures or telephone call will be billed at our standard rates. 15. MISCELLANEOUS. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matters herein, and supersedes and replaces any prior agreements and understandings, whether oral or written, by and between them with respect to such matters. The provisions of this Agreement(including the scope of services to be performed by NES) may be waived, altered, amended or repealed in whole or in part only upon the written consent of both parties to this Agreement. The failure of either party at any time to require performance of any provision of this Agreement shall not affect in any manner the right to require such performance at any time thereafter, nor shall the waiver of a breach of any provision hereof be held to be a waiver of any subsequent breach of the same provision or any other provision. If any provision of this Agreement shall be determined to be invalid or inoperative, the validity and effect of the other provisions hereof shall not be affected thereby, provided that no such severability shall be effective if it causes a material detriment to any party. The agreements of NES and the Client under this Agreement are intended solely for their benefit and no third-party beneficiary relationship shall be deemed to be created hereby. All remedies set forth in this Agreement are cumulative. 16. SMALL BUSINESS CERTIFICATION. NES is a State of California Certified Small Business. 4 Attachment B Client Information Form NCCtraining 620 Coolidge Dr.Suite 100,Folsom,CA 95630 NARCOTICS,CLAN LABS&ILLICIT CANNABIS (916)353-2360/(800)NES-ADV!SE/Fax(916)353-2375 -A DIVISION OF NES- www.nesglobal.net Client Information Form The purpose of this form is to ensure that point of contact and billing information for our clients is managed accurately and efficiently.Please fill in or update the below fields(if needed)and return this form to the NES representative from whom you received it. Please provide point of contact(POC)information in the following table.The POC is the individual responsible for coordinating services to be performed by NES,for serving as site liaison,and/or to whom training certificates,plan documents,or other pertinent materials are to be sent prior to and/or following provision of contracted services.ifservices are to be provided at an alternate address,please inform in comments field. Point of Contact(POC) Company/Agency/Organization Name(or DBA Name) POC Name&Title Line I Line 2 Address Line 3 Line 4 Office Phone Mobile Fax POC Email Comments/Special Instructions Please provide billing contact information in the following table including the company/agency/organization name to be used for billing purposes.If some or all billing information is the same as in the above table,you may check this box to auto-fill the below table: ❑ Billing Contact Company/Agency/Organization Name Billing Contact Name&Title Line I Line 2 Address Line 3 Line 4 Office Phone Mobile Fax Billing Email Comments/Special Instructions Attachment C Insurance Requirements Prior to undertaking performance of work under this Agreement, NES shall maintain and shall require any subcontractors to obtain and maintain insurance as described below for the entire Term of this Agreement against claims for injuries to persons or damage to property which may arise from or in connection with services, products and materials supplied to City.Total cost of such insurance shall be borne by NES. MINIMUM SCOPE AND LIMIT OF INSURANCE 1. Commercial General Liability(CGL): Insurance Services Office Form CG 00 0lcovering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal &advertising injury with limits no less than $1,000,000 per occurrence and $2,000,000 aggregate. Required policy limits can be met with primary and umbrella/excess insurance policies. 2. Automobile Liability: Insurance Services Office Form CA 00 01 covering Code 1 (any auto), with limits no less than $1,000,000 combined single limits. In the event NES does not maintain commercial automobile liability insurance, City will accept evidence of personal automobile insurance. 3. Workers' Compensation: as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limit of no less than $1,000,000 per accident, policy or employee, for bodily injury or disease. Coverage is not required if NES has no employees and signs request to waive such insurance. 4. Professional Liability Insurance: with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 aggregate. If NES maintains broader coverage and/or higher limits than the minimum requirements for each line of coverage shown above, City requires and shall be entitled to the broader coverage and/or the higher limits maintained by NES.Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City. Other Insurance Provisions The above required insurance policies are to contain or be endorsed to contain the following provisions: 1. City, its City Council, its officers, officials, employees, agents,and volunteers are to be covered as additional insureds, under NES's CGL, Professional Liability, and Automobile Liability policies, with respect to any liability arising out of work or operations performed by or on behalf of the Instructor including materials, parts, equipment, and personnel furnished in connection with such work or operations. 2. NES's Insurance company(ies)agrees to waive all rights of subrogation against City, its City Council, its officers, officials, employees, agents, and volunteers for losses paid under the terms of any policy which arise from work performed by NES under this Agreement. 3. For any claims related to this contract, NES's insurance coverage shall be primary and any insurance maintained by City, its City Council, its officers, officials, employees, agents, or volunteers shall not contribute with it. 4. A severability of interest provision must apply for all the additional insureds, ensuring that NES's insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the insurer's limits of liability. 5. Insurance policies required herein shall provide that coverage shall not be canceled, suspended, voided, reduced in coverage or in limits, non-renewed by the carrier, or materially changed except after thirty(30)days prior written notice has been given to City.Ten (10) days prior written notice shall be provided to City for policy cancellation or non-renewal due to non- payment of premium. 6. Certificate Holder on each Evidence of Insurance certificate shall be: City of Santa Ana, Attention: Sgt. Dan Park, 20 Civic Center Plaza M-96, Santa Ana, CA 92701.The name and location of project must be included in the Description of Operations section of each certificate. Self-Insured Retentions Self-insured retentions must be declared to and approved by the City.The City may require the NES to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations,claim administration, and defense expenses within the retention. Acceptability of Insurers Insurance is to be placed with insurers authorized to conduct business in the State of California with a current A.M. Best rating of no less than A:VII, unless otherwise acceptable to City. • Verification of Coverage NES shall furnish City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements before work begins. However,failure to obtain the required documents prior to the work beginning shall not waive NES's obligation to provide them. City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. Special Risks or Circumstances City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.