HomeMy WebLinkAboutC-7652-1 - Agreement for Use of 20462 SW Birch Street, Newport Beach, CA for Fire Department Personnel Trainingr
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' AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND
V RICHARD AND MARILYN MORIARTY, OWNERS OF
20462 SW BIRCH STREET, NEWPORT BEACH, CALIFORNIA,
FOR USE OF 20462 SW BIRCH STREET, NEWPORT BEACH,
CALIFORNIA, FOR FIRE DEPARTMENT PERSONNEL TRAINING
THIS AGREEMENT for use of the building(s), structure(s), and land ("Agreement")
located at 20462 SW Birch Street, Newport Beach, California (the "Property"), is made
and entered into as of this 11th day of April, 2019 ("Effective Date") by and between the
CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"),
and RICHARD ANTON MORIARTY and MARILYN KAYLA MORIARTY, husband and
wife and owners of the Property as Community Property with Right of Survivorship
(collectively, "Owner"), for use of the Property by the City's Fire Department for training
purposes.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. TERM
The term of this Agreement shall commence on the Effective Date, and shall
continue until demolition of said Property is completed, unless otherwise terminated as
provided herein.
2. OWNERSHIP OF PROPERTY
Owner hereby acknowledges, warrants and represents to City that Owner is the
legal, vested owner of the Property, including the underlying real property and all
building(s) and/or structure(s) on said Property, and that Owner has full and complete
control over the Property.
3. USE BY CITY
3.1 For no compensation, Owner hereby grants the City permission to use the
Property for various training purposes by City's Fire Department and its personnel
("Training Program"). The Training Program may include, but is not limited to, the cutting
of holes in the roof and similar activities that will cause extensive damage to the interior
and exterior of the Property. Owner hereby acknowledges that the Property, including all
buildings and/or structures located thereon, will be demolished in the near future and that
the Training Program will not in any way, shape or form reduce the value of the Property
or create any additional demolition costs or work for Owner.
3.2 Owner hereby acknowledges that City has no obligation to demolish,
remove, and/or clean up any portion of any building(s), structure(s), trash or debris
remaining on the Property after the City's use of the Property. Furthermore, Owner agrees
Richard and Marilyn Moriarty Page 1
that Owner shall not hold the City liable for any damage caused to the Property by the
City.
4. ASBESTOS
Owner shall provide City with an asbestos inspection report certifying that
structure(s) and/or building(s) at the Property are free from asbestos or informing the City
of the level, location, and type of asbestos found on the Property.
5. HOLD HARMLESS
5.1 To the fullest extent permitted by law, Owner shall indemnify, defend and
hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers, and employees (collectively "Indemnified Parties") from and against any and
all claims (including without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation
attorney's fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate
(directly or indirectly) to any breach of the terms and conditions of this Agreement or City's
use of the Property. Notwithstanding the foregoing, nothing herein shall be construed to
require Owner to indemnify the City from any Claim arising from the sole negligence or
willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed
as authorizing any award of attorney's fees in any action on or to enforce the terms of this
Agreement. This indemnity shall apply to all claims and liability regardless of whether
any insurance policies are applicable.
5.2 To the fullest extent permitted by law, City shall indemnify, defend and hold
harmless Owner, its successors and/or assigns (collectively "Owner") from and against
any and all claims (including without limitation, claims for bodily injury or death), demands,
obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties,
liabilities, costs and expenses (including, without limitation attorney's fees, disbursements
and court costs) of every kind and nature whatsoever (individually, a Claim; collectively,
"Claims"), which may arise from or in any manner relate (directly or indirectly) to any
breach of the terms and conditions of this Agreement or City's use of the Property.
Notwithstanding the foregoing, nothing herein shall be construed to require City to
indemnify the Owner from any Claim arising from the sole negligence or willful misconduct
of the Owner. Nothing in this indemnity shall be construed as authorizing any award of
attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity
shall apply to all claims and liability regardless of whether any insurance policies are
applicable.
6. STANDARD PROVISIONS
6.1 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
esu`
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of the same or any other term, covenant, or condition contained herein, whether of the
same or a different character.
6.2 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
6.3 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
6.4 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
6.5 Amendments. This Agreement may be modified or amended only by a
written documented executed by both Owner and City and approved as to form by the
City Attorney.
6.6 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
6.7 Controlling Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
6.8 No Attorney's Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorney's fees.
6.9 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATTORNEY'S OFFICE a California municipal corporation
Date:_'/l0/11 Date: t�
By:
Aaron C. Harp
City Attorney
ATTEST:
Date: '/ o -m
By:
Gr06 K. Leung
City Manager
OWNER: Richard Anton Moriarty and
Marilyn Kayla Moriarty, husband and wife
Date: 4�i-tAV,
By: L By:
Leilani Bro 61
City alerk
Richard and Marilyn Moriarty
Richard Anton Moriarty
Date
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Marilyn ayl cart
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