The URL can be used to link to this page

Home My WebLink AboutC-6059 - Bill of Sale Agreement for Mediterranean Fan Palm Trees.1�_ s BILL OF SALE AGREEMENT WITH INSTANT JUNGLE INTERNATIONAL FOR MEDITERRANEAN FAN PALM TREES THIS BILL OF SALE AGREEMENT ( "Agreement ") is made and entered into as of this ei?' day of March, 2015, by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ( "City"), and INSTANT JUNGLE INTERNATIONAL, a California corporation whose address is 2560 South Birch Street, Santa Ana, California, 92707 ('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 fifteen (15) Chamaerops Humulis Mediterranean Fan Palms (hereinafter "Trees "). C. City's Trees are located at City's Marina Park project site at 1600 West Balboa Boulevard, Newport Beach, California and are in need of being moved in an effort to facilitate the development of the Marina Park project. D. City has solicited offers from prospective buyers for the Trees in an effort to relocate the Trees while emphasizing safety, receiving fair market value, facilitating the construction efforts at the City's Marina Park site and consideration of the environment. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties that this Agreement is made for the purchase and sale of the Trees on the following terms and conditions as set forth herein. 1. 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 Trees: Quantity Tree Type I Sale Price 15 Chamaero s Humulis Mediterranean Fan Palm I $300.00 /each 2. AS -IS PURCHASE It is expressly understood and agreed that Buyer has fully examined the Trees and has relied on its own discretion and judgment with regard to the transactions contemplated hereunder. Except as expressly provided herein, the Trees 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 Trees may not be returned and no refunds will be issued. 3. CONSIDERATION In consideration of the total sum of Four Thousand Five Hundred Dollars and 00/100 ($4,500.00) the City agrees to sell and Buyer agrees to buy the Trees. 4. PAYMENT TERMS Buyer agrees to pay to the City Four Thousand Five Hundred Dollars and 00/100 ($4,500.00) at the time of delivery of the Trees, which shall occur on or before the 6th day of March, 2015. 5. COSTS Buyer shall pay all taxes, costs, and fees imposed by any governmental entity as well as all operating costs and expenses. Buyer shall take possession of the Trees within three (3) calendar days of execution of this Agreement at the City's Marina Park, 1600 West Balboa Boulevard, Newport Beach, California ( "Delivery Location "). 6. RISK OF LOSS Until Buyer's possession and removal of the Trees from 1600 West Balboa Boulevard, Newport Beach, California, the entire risk of loss with respect to the Trees shall be borne by the City. From and after delivery of the Trees, risk of loss shall be borne by Buyer. 7. 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. 8. 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 Trees, 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 Instant Jungle International Page 2 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. :»y4:fv /fie. 10. 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.). 11. 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. 12. 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. 13. 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 of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 14. 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. 15. 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. 16. 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. Instant Jungle International Page 3 17. 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. 18. 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. 19. CONTROLLING LAW AND VENUE The laws of the State of California shall govem 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. 20. 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. [SIGNATURES ON NEXT PAGE] Instant Jungle International Page 4 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNE 'S OFFICE Date: Bv: Aaron C. Harp cA-m oL17r-) - City Attorney ATTEST: Date: By: O�4g- , 6t:::� Leilani I. Brown City Clerk AL1 F0 CITY OF NEWPORT BEACH, A California municipal corporation Date: 3 - 3 - /S By: Dan Ma siewicz Finance Director BUYER: INSTANT JUNGLE California corporation Date: M INTERNATIONAL, a Signed in Counterpart Name :Gregory Wallace Title: President Date: Signed in Counterpart Name: Andrew Blanton Title: Secretary/Vice-President [END OF SIGNATURES] Instant Jungle International Page 5 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO : CITY A 'S FORM: OFFICE Date: By: -- Aaron C. Harp or v+ -hrji� City Attorney CITY OF NEWPORT BEACH, A California municipal corporation Date: By: Dan Matusiewicz Finance Director ATTEST: BUYER: Date: INSTANT California Date: By: By: Leilanl I. Brown Name City Clerk Title: JUNGLE INTERNATIONAL, a By; Name: Andrew Blan on Title: SecretaryNice- President [END OF SIGNATURES] Instant Jungle International Page 5