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3. Award Contract - Shooting RangeCity of Kalispell Post Office Box 1997 - Kalispell, Montana 59903 Telephone: (406) 758-7701 Fax: (406) 758-7758 TO: Doug Russell, City Manager-- FROM: Roger Nasset, Chief of Police SUBJECT: Award Contract - Shooting Range Partnership MEETING DATE: November 19, 2012 BACKGROUND: In 2008, the City of Kalispell convened a steering committee of private citizens and local, state, and federal law enforcement to research the need for an indoor public safety training facility in the Flathead Valley. The group concluded that there was a need for a multi -disciplinary public safety training facility that would partner with the public and firearms safety organizations such as Hunter Safety. The rationale behind this thought was threefold: 1) the current outdoor range provided only basic, albeit important, training opportunities, 2) there has been a concern about access to this range in the future, and 3) there is a need to provide simulated training to improve critical -thinking and decision -making by officers. The culmination of our research led to the City of Kalispell's submittal of a FY2009 Appropriations Request to purchase land, build a structure, purchase a driving and shooting simulator, and supply the equipment for a live fire private/ public range inside the structure at an estimated cost of $5.5 million dollars. In September of 2009, we were awarded a Technology Grant in the amount of $750,000.00 to purchase the internal technology components of a firing range, shooting simulator, and driving simulator. With the award of $750,000.00 we shifted our focus to finding a private party that was willing to enter into an agreement that would allow the City of Kalispell to outfit the building on their property with the technology purchased through the grant. In July, 2012, the City of Kalispell published a Request for Proposal for a "Public/Private Shooting Range Partnership". After successfully completing and fulfilling the RFP process, the lone applicant Bob Hughes, owner of Northwest Shooter, was selected by the committee as a very suitable partner. Bob Hughes currently owns and operates Northwest Shooter, located at 32 Western Village (two miles North of Glacier National Airport on Hwy. 2) in Columbia Falls. Northwest Shooter is a commercially operated shooting range which also sells retail shooting supplies and handguns. Northwest Shooter opened in September of 2011 and since that time has registered more than 2000 shooters, exceeding their expectations. They offer multiple instructional courses for firearm and personal safety training. The current range is a 25 yard static firing lane configuration and is limited to handguns. The current facility meets and exceeds all federal air quality standards. Within the partnership agreement, Northwest Shooter has agreed to supply the land on which they will construct a 50 yard tactical live fire range. This range will meet specifications sufficient to handle pistol and rifle shooting. The range will have an overhead garage door access that will make vehicle training possible and 24/7 access for law enforcement if a trainer is available. Within Northwest Shooter's existing building they will provide space for a Shooting Simulator to be purchased with the grant. This range built with grant funding will be available for public use, as is the existing range, and will provide a benefit to Northwest Shooter as well as Public Safety. We are working toward establishing an advisory team comprised of representatives from local and regional law enforcement agencies to assist in establishing e, operational procedure and I protocols. A representative from the City of Kalispell will chair this committee. RECOMMENDATION: Council authorize the City Manager to sign the attached agreement with Northwest Shooter for the shooting range partnership. Respectively submitted, RZogleNLasset . 44 Chief of Police ;I!����, THIS AGREEMENT is entered into this _. day of November, 2012, between the City of Kalispell with its business office at 201 First Avenue East, Kalispell, Montana 59901 and hereafter referred to as "CITY" and and Robert Hughes and Jeff Hughes, doing business as Hughes Boys LLC, and Jeff Hughes, doing business as Northwest Shooter, located and doing business at 32 Western Village Lane, Columbia Falls, Montana and hereafter referred to as "CONTRACTOR". WHEREAS, CITY is the Grantee of a grant from the U.S. Department of Justice in the amount of $750,000 which purpose is to provide firearms training in a shooting range environment for law enforcement. A copy of said grant is attached to this Agreement as Exhibit A; and WHEREAS, pursuant to said grant, CITY intends to purchase specialized shooting range equipment to be placed in a privately held and managed shooting range to be made available for use by CITY law enforcement personnel as well as other law enforcement agencies; and WHEREAS, CONTRACTOR is the owner and operator of an indoor shooting range facility located at the address stated above and desires to construct and install the equipment and assets necessary to meet the specifications of the CITY and the grant documents; and WHEREAS, CITY duly noticed and advertised a request for qualifications for the services described above and CONTRACTOR was selected by CITY based upon its stated qualifications to provide the specified services. NOW THEREFORE, the parties agree as follows: 1. Purpose. The purpose of this Agreement is to define the public -private partnership between CITY and CONTRACTOR regarding the planning, development, operation and maintenance of a live fire tactical shooting range for law enforcement training. Both parties are committed to the development of the shooting range facilities that will be housed on the current shooting range grounds located at 32 Western Village Lane, Columbia Falls, Montana and that will contain the technology components for a live fire shooting range and provide space for a force on force law enforcement training shooting simulator. In an effort to accomplish these objectives, the parties agree to work toward this common goal in a manner that permits a quality shooting range development while recognizing the responsibilities of each party. 2. Term. This Agreement shall be effective the day and year first above written, and shall continue through a period of ten (10) years, unless sooner terminated. 3. Funding and Grant Commitments and 0Nations. CITY will provide the sum of SEVEN HUNDRED AND FIFTY THOUSAND ($750,000) DOLLARS to the project received from grant funds issued by the U.S. Department of Justice COPS Technology Program Grant 2009CKWX0478 for the purposes set forth in the grant documents attached hereto. Both parties acknowledge reading the grant documents and having a complete understanding of the requirements of the grant and hereby agree that each shall strictly adhere to all such requirements of the grant. 4. Ownership, Ownership p of the shooting simulator and any other components purchased through the grant funding that are not considered fixtures (permanently affixed to the structure) shall remain in the ownership of CITY and may be removed by CITY upon termination of the Agreement. Upon termination CONTRACTOR shall have the option to purchase said property at an agreed upon depreciated price. 5. RtevyeEIMMent Responsibilities. The CONTRACTOR shall provide the necessary secure space at the address stated above to facilitate a multiple lane 50 yard tactical indoor shooting range or range of similar specifications (as agreed upon by CITY) and provide within this secure space housing for a shooting simulator of the size of at least 24' X 24' with a minimum ceiling height of 9'6", utilizing the grant funding as described above. This facility shall be fully constructed and available for use by CITY on or before the 1st day of September, 2013. CONTRACTOR agrees it will maintain liability insurance covering its construction activities which names CITY as an additional named insured. Coverage amounts will not be less than $1.5 million per occurrence or less than $3 million per aggregate. Contractors performing development activities at the complex at the request of CONTRACTOR must also maintain general liability insurance coverage consistent with CITY'S normal requirements, as well as workers compensation coverage on its employees consistent with State law. Representatives of CITY and CONTRACTOR will meet regularly for the purpose of conferring about the construction and this Agreement. 6. Maintenance and Repair Responsibilities. Improvements at the shooting range, including the improvements purchased with the grant funding, are to be maintained in new condition, less reasonable wear and tear. It is the intent of the parties that the improvements not deteriorate through misuse or lack of attention, maintenance, or repair. CONTRACTOR is responsible for the maintenance and repair activities of the shooting range facility. CITY, as owner of certain components, agrees to cooperate with CONTRACTOR in matters of warranty demands. 7. Management and ®aeration of Sho2jjgg,i2an�e Facility. CONTRACTOR shall manage and operate the shooting range facility, providing all of the services necessary to meet the grant requirements. USE AGREEMENT FOR SHOOTING RANGE C'IYY *T SN't*T: A PAGE - 2 1 a. Public Use. CONTRACTOR shall maintain regular business hours, six days a week, for its retail sales and indoor pistol range. The store and range shall be staffed with knowledgeable firearms people. Range personnel shall be certified firearms instructors. Public education in the safe use of firearms is a particular focus as instructional courses shall be offered regularly. In the new tactical facility, safety and use of firearms training will be expanded to include rifles and shotguns. b. Law Enforcement Use. Both the live fire tactical range and the use -of - force simulator will be available to law enforcement personnel 24/7 via secure electronic access. Reservation scheduling in 4-hour time blocks will be made on a private secure web -based scheduling system. Law enforcement use will be the scheduling priority on a departmental first come, first served basis. The tactical range will be closed to the public when scheduled by law enforcement. c. CONTRACTOR will be the operator of the tactical range and simulator. Accordingly no costs will accrue to CITY for operations, maintenance, repairs, or personnel. 8. User fees. The annual user fee for the CITY will be $50 per officer. CONTRACTOR may establish fees to be paid to it by all other users. 9. Indemnification. CONTRACTOR, and its successors and assigns, undertake to indemnify CITY, and its officers and agents, from any liability, loss or damage CITY may suffer as a result of any claims, demands, costs or judgments against it arising from the activities of the Shooting Range that are not the result of negligent, reckless or intentional acts of the CITY or its agents. CONTRACTOR, and its successors and assigns, agree to defend against any and all claims brought or actions filed against CITY, or its officers and agents, with respect to the subject of the indemnity contained herein, whether the claims or actions are rightfully or wrongfully brought or filed. In case a claim should be brought or an action filed with respect to the subject of the indemnity herein, CONTRACTOR agrees that CITY may employ attorneys of its own selection to appear and defend the claim or action on behalf of CITY, at the expense of CONTRACTOR. CITY, at its option, shall have the sole authority for the direction of the defense and shall be the sole judge of the acceptability of any compromise or settlement of any claims or actions against CITY. 10. Insurance Coverage. CONTRACTOR shall, during the term of this agreement, maintain liability insurance coverage. The insurance policy must, unless not available from the insured, name the CITY as an additional insured and be written on a "primary —noncontributory basis." The coverage shall be obtained from an insurance that is duly licensed and authorized to transact insurance business and write insurance within the state of Montana, with a minimum of "A.M. Best Rating" of A-, III, as will protect the CONTRACTOR, the various acts of subcontractors, the CITY and its officers, employees, agents, and representatives from claims for bodily injury and/or property damage which may arise from operations and completed operations under this Agreement. All insurance shall remain in effect throughout the life of this Agreement. All insurance policies must contain a provision or endorsement that the coverage afforded will not be canceled, materially changed, or renewal refused until at least forty-five (45) days prior written notice has been given to CONTRACTOR, CITY, and all other additional insured to whom a certificate of insurance has been issued. The Commercial General Liability policy shall not be for less than $1.5 million per occurrence and not less than $3 million aggregate. A Workers Compensation policy shall be in effect of not less than the statutory requirements. a. If CONTRACTOR fails to perform any of its obligations under this Agreement or otherwise breaches any terms or conditions of this Agreement, the CITY may, by written notice, terminate this Agreement THIRTY (30) days thereafter. The CITY may then take possession of such materials, appliances, and equipment as may be on the site that was acquired with grant funds and owned by the CITY as set forth in paragraph 4 of this Agreement. . In the event of a termination pursuant to this Section 11, CONTRACTOR shall be entitled to payment only for those services CONTRACTOR actually rendered. C. Any termination provided for by this Section l I shall be in addition to any other remedies to which the CITY may be entitled under the law or at equity. d. In the event of termination under this Section 11, CONTRACTOR shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 12. Limitation on Contractor's Damages-, Time for Asserting Claim: a. In the event of a claim for damages by CONTRACTOR under this Agreement, CONTRACTOR's damages shall be limited to contract damages and CONTRACTOR hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event CONTRACTOR wants to assert a claim for damages of kind or nature, CONTRACTOR shall provide CITY with written notice of its claim, facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within ten (10) days of the facts and circumstances PAGE C; t 4 giving rise to the claim. In the event CONTRACTOR fails to provide such notice, CONTRACTOR shall waive all rights to assert such claim. 13. Laws and Regulations. CONTRACTOR shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers' compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 14. Non-discrimination in irin . All hiring by CONTRACTOR and subcontractors of persons performing work for CONTRACTOR will be on the basis of merit and qualification and will not discriminate on the basis of race, color, religion, creed, political ideas, sex, age, marital status, physical or mental disability, or national origin. a® Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior - level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. e If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute shall be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 16. Survival. CONTRACTOR's indemnification and warranty obligations shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 17. Headings. The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 18. Waiver. A waiver by CITY of any default or breach by CONTRACTOR of any covenants, terms, or conditions of this Agreement does not limit CITY's right to enforce such covenants, terms, or conditions or to pursue CITY's rights in the event of any subsequent default or breach. 19. Severability. If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. USE AGREEMENT OR SHOOTING �° �• �,1, 20. A licable Law. The parties agree that this Agreement is governed in all respects by the laws of the State of Montana and the parties expressly agree that venue will be in Flathead County, Montana, and no other venue. 21. Binding Effect. This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 22. Amendments. This Agreement may not be modified, amended, or changed in any respect except by a written document signed by all parties. 23. No Third-_Party,Beneficiary. This Agreement is for the exclusive benefit of the parties, does not constitute a third -party beneficiary agreement, and may not be relied upon or enforced by a third party. 24. CounteLpgrts. This Agreement may be executed in counterparts, which together constitute one instrument. 25. Assignment. CONTRACTOR may not assign this Agreement in whole or in part without the prior written consent of the CITY. No assignment will relieve CONTRACTOR of its responsibility for the performance of the Agreement. 26. Authority. Each party represents that it has full power and authority to enter into and perform this Agreement and the person signing this Agreement on behalf of each party has been properly authorized and empowered to sign this Agreement. 27. Independent Contractor. The parties agree and acknowledge that in the performance of this Agreement, CONTRACTOR shall render services as an independent contractor and not as the agent, representative, subcontractor, or employee of the CITY. The parties further agree that all individuals and companies retained by CONTRACTOR at all times will be considered the agents, employees, or independent contractors of CONTRACTOR and at no time will they be the employees, agents, or representatives of the CITY. 28. Agreement Documents: CONTRACTOR shall abide by the terms and conditions of this Agreement and all Exhibits attached hereto, which Exhibits consist of the following documents and are incorporated herein by this reference: Exhibit A: FY2009 Appropriations Request Form Exhibit B: Appropriations Award Letter dated September 21, 2009 Exhibit C: Grant Award Document Technology Program Grant Terms/Conditions Exhibit D: Extension Approval Dated January 19, 2012 Exhibit E: 2009 COPS Technology Program Grant Owner's Manual Exhibit F: Grant Modification Request, Approval and Worksheets A A W 29. ion: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained therein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and unless specifically made a part of this Agreement by reference. IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written. Attest: Theresa White City Clerk rRINWITA� AUBM F. = Doug Russell, City Manager Jeff Hughes Robert Hughes Jeff Hughes CITI'Ot��-j&ALINFELL-fj&fGt'AES-flOH'I'A� VNI'St 71 V14TER PAGE - 7 STATE OF MONTANA ):ss County of Flathead On this day of November, 2012, before me, the undersigned, a Notary Public for the State of Montana, personally appeared JEFF HUGHES and ROBERT HUGHES, in their managing member capacities in HUGHES BOYS, LLC and JEFF HUGHES as Principal of NORTHWEST SHOOTER and each executed the foregoing instrument as a free and voluntary act for the uses and purposes therein set forth and acknowledged to me that he executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year in this certificate first above written. Printed Name: Notary Public, State of Montana Residing at My Commission Expires STATE OF MONTANA ):ss County of Flathead On this day of November, 2012, before me, a Notary Public in and for the State of Montana, personally appeared DOUG RUSSELL, known to me to be the City Manager of the CITY OF KALISPELL, a municipality, that executed the within instrument, and - acknowledged that such City Manager subscribed, sealed and delivered said instrument as the free and voluntary act of said municipality, for the uses and purposes therein set forth, and that he was duly authorized to execute the same on behalf of said municipality. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal, the day and year first above written. Printed Name: Notary Public, State of Montana Residing at My Commission Expires