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HomeMy WebLinkAboutC-5649(A) - Bill of Sale Agreement for Surplus Trash Collection VehiclesBILL OF SALE AGREEMENT WITH CR &R INCORPORATED FOR SURPLUS TRASH COLLECTION VEHICLES V THIS BILL OF SALE AGREEMENT ( "Agreement") is made and entered into as of this 7-T day of March, 2014, by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ( "City"), and CR &R INCORPORATED, a California corporation whose address is 11292 Western Avenue. Stanton, California, 90680 ( "Buyer"), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City presently owns eighteen (18) trash collection vehicles (hereinafter "Vehicles "). C. City and Buyer entered into an agreement entitled "Agreement between the City of Newport Beach and CR &R Incorporated for Residential Solid Waste Collection and Recycling Services" ( "Trash Agreement ") whereby Buyer agreed to provide residential trash services to City's residents. As part of the Trash Agreement, Buyer agreed to purchase the Vehicles for use in its operations. D. City desires to dispose of such surplus property for the benefit of the City. E. The City and Buyer desire to enter into this Agreement to set forth the terms of purchase of the Vehicles by Buyer. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties that this Agreement is made for the purchase and sale of the Vehicles on the following terms and conditions as set forth herein. TO BE SOLD City, in consideration of the covenants and agreements of Buyer hereinafter set forth, does hereby agree to sell, transfer, assign and convey unto Buyer, its successors and assigns the following Vehicles: City Vehicle Number Vehicle Identification Number (VIN) Vehicle License Plate Number Vehicle Model Year Make 5003 1GDM7C1G68F401664 1268561 2008 GMC 5020 4VMDAKHE2WN744855 999199 1998 Volvo 5021 4VMDAKHE6WN744857 999198 1998 Volvo 5023 4VMDAKHE4WN744756 999197 1998 Volvo City Vehicle Number Vehicle Identification Number (VIN) Vehicle License Plate Number Vehicle Model Year Make 5026 3BPZH28X7AF108809 1242726 2010 Peterbilt 5027 3BPZH28X3AF108810 1242727 2010 Peterbilt 5030 1 FVABZAK13DL67790 1129395 2003 Freightliner 5031 1FVACFAK03RL67788 1129391 2003 Freightliner 5007 4V2HCFH06RN685994 378551 1994 White/ GMC 5010 4V2HCMFE4WNT44849 999218 1998 White/ GMC 5011 4V2HCFH08RN685995 378552 1994 White/ GMC 5014 4VMHCMFE2WN744852 999219 1998 White/ GMC 5019 4VMHCMHE6XN766771 1007324 1998 White/ GMC 5032 1FVHCFAK43RL67789 1156905 2003 Freightliner 5033 4V2HC6HEX1N313023 1064338 2001 Volvo 5034 5VCACSLE3AH210385 1347755 2010 Autocar 5035 5VCACSLE3AH210386 1347756 2010 Autocar 5036 4V2HC2HEOYN252848 I 1056020 2000 Volvo 2. AS -IS PURCHASE 2.1 It is expressly understood and agreed that Buyer has fully examined the Vehicles and has relied on its own discretion and judgment with regard to the transactions contemplated hereunder. Except as expressly provided herein, the Vehicles are sold on an "as is" basis, with no representations or warranties of City of any kind, type or nature, including, without limitation, any representation or warranty regarding the value, compliance with specifications, age, use, merchantability, design, quality, description, durability, operation or conditions of the assets, whether visible or not. All sales are final. The Vehicles may not be returned and no refunds will be issued. 2.2 The City shall complete California Department of Motor Vehicle Notice of Transfer and Release of Liability Forms (REG 138) within five (5) days of the sale of the Vehicles. 3. CONSIDERATION In consideration of the total sum of One Million Five Hundred Thousand Dollars and 001100 ($1,500,000.00) the City agrees to sell and Buyer agrees to buy the Vehicles. 4. PAYMENT TERMS Buyer agrees to pay the City Ow Million Five Hundred Thousand Dollars and 00/100 ($1,500,000.00) at the time of delivery of the Vehicles, which shall occur on or before the 31St day of March, 2014. 5. COSTS Buyer shall pay all taxes, costs, and fees imposed by any governmental entity as well as all operating costs and expenses. The Vehicles will be delivered to Buyer at the City's Maintenance Yard, 592 Superior Avenue, Newport Beach, CA (`Delivery Location "). 4 6. REGISTRATION AND OWNERSHIP TERMS 6.1 Upon confirmation of payment in full as set forth in paragraph 4 above, the City agrees to promptly complete and execute all necessary forms and to take all necessary steps to transfer ownership and registration of the Vehicles to Buyer. Buyer shall bear all costs associated with the transfer of ownership and registration and shall pay said amount prior to delivery of the Vehicles. 6.2 Special provisions regarding City Vehicle numbers 5026. 5027. 5034 and 5035. Vehicle numbers 5026, 5027, 5034 and 5035 were purchased by the City through a grant program with the South Coast Air Quality Management District ( "AQMD "). In accordance with the grant agreement, AQMD Contract No. ML09046, the obligation to accrue mileage on City Vehicle numbers 5026, 5027, 5034 and 5035 within the AQMD shall be a continuing obligation of the Buyer and shall remain in full force and effect until the expiration of the five (5) year operation period. Therefore, AQMD is an intended third party beneficiary of this Agreement, as it relates to City Vehicle numbers 5026, 5027, 5034 and 5035. This obligation shall be passed down to any subsequent purchaser, lessee or transferee during this five (5) year term and AQMD shall be an intended third -party beneficiary of any subsequent agreement. Vehicle numbers 5026 and 5027 entered service on March 22, 2010 and Vehicle numbers 5034 and 5035 entered service on March 25, 2010. Buyer shall comply with the continuing obligation to operate the Vehicles for a period of no less than five (5) years from the date the Vehicles entered service. 6.2.1 Buyer acknowledges that at the time of execution of this Agreement, AQMD had not made a final determination as to AQMD's requirements for reimbursement or compliance with operational conditions. AQMD may make a determination as to their election to require reimbursement pursuant to the terms of the grant (up to $32,500) or to require Buyer to comply with the continuing obligation to operate the vehicles for a period of no less than five (5) years from the dates the vehicles entered service. Buyer agrees to comply with any determination issued by AQMD as it may relate to the City Vehicle numbers 5026, 5027, 5034 and 5035, at its sole cost and expense. 7. RISK OF LOSS Until this transaction is consummated the entire risk of loss with respect to the Vehicles shall be borne by the City. From and after delivery of the Vehicles, risk of loss shall be borne by Buyer. 8. ADMINISTRATION This Agreement will be administered by the Finance Department. The Finance Director shall be the Sale Administrator and shall have the authority to act for City under this Agreement. The Sale Administrator or authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 3 9. HOLD HARMLESS To the fullest extent permitted by law, Buyer shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "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 this Agreement, the Vehicles or the breach of any term of this Agreement. Notwithstanding the foregoing, nothing herein shall be construed to require Buyer to indemnify the Indemnified Parties 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. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Buyer. 10. RESERVED 11. CLAIMS The Buyer and the City expressly agree that in addition to any claims filing requirements set forth in the Agreement, the Buyer shall be required to file any claim the Buyer may have against the City in strict conformance with the Government Claims Act (Government Code sections 810 et seq.). 12. COMPLIANCE WITH ALL LAWS Buyer shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including, but not limited to, federal, state, county or municipal, whether now in force or hereinafter enacted. 13. 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. 14. WAIVER A waiver by either parry of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 4 15. 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. 16. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement any other attachments attached hereto, the terms of this Agreement shall govern. 17. 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. 18. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Buyer and City and approved as to form by the City Attorney. 19. 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. 20. 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. 21. COUNTERPARTS This Agreement may be execute din 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. [SIGNATURES ON NEXT PAGE] 5 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: Date: By: r�� By: Aaron C. Ft&o Dave Ki City Attorney `�1 City Manager ATTEST: Date: By:_4&hk,-- Leilani I. Brown City Clerk LV0Rp%PP BUYER: CR&R INCORPORATED, a California corporation Date: -,-7 L [END OF SIGNATURES] C