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Home My WebLink AboutC-7530-1 - Agreement for Use of 4340 Campus Drive, Newport Beach, CA 4400 Campus Drive, Newport Beach, CA, and 4341 Birch Street, Newport Beach, CAAGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND ENTERPRISE RENT -A -CAR COMPANY OF LOS ANGELES, LLC, A DELAWARE LIMITED LIABILITY COMPANY, FOR USE OF 4340 CAMPUS DRIVE, NEWPORT BEACH, CA, 4400 CAMPUS DRIVE, NEWPORT BEACH, CA, AND 4341 BIRCH STREET, NEWPORT BEACH, CA THIS AGREEMENT for use of the building(s) and structure(s) ("Agreement") located at 4340 Campus Drive, Newport Beach, California (the "4340 Property"), 4400 Campus Drive, Newport Beach, California (the "4400 Property'), and 4341 Birch Street, Newport Beach, California (the "4341 Property") (collectively, the "Premises"), is made and entered into as of this 27th day of August, 2018 ("Effective Date") by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and ENTERPRISE RENT -A -CAR COMPANY OF LOS ANGELES, LLC, a Delaware limited liability company ("Enterprise"), for use of the Premises 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 Premises is completed, unless otherwise terminated as provided herein. 2. OWNERSHIP OF PREMISES Enterprise hereby acknowledges, warrants and represents to City that (i) 4320- 4360 L.P., a Nevada limited partnership, is the legal, vested owner of the 4340 Property and the 4341 Property ("4320-4360 Owner"), and additionally, that (ii) JS 4400 LLC, a Nevada limited liability company, is the legal, vested owner of the 4400 Property ("JS 4400 Owner") (collectively, "Owner' or "Owners"), including the underlying real property and all building(s) and/or structure(s) on said Premises, and that Owners have full and complete control over the Premises excepting those rights granted to Enterprise for the Premises by virtue of those certain three (3) separate Ground Leases all dated May 17, 2017. 3. USE BY CITY 3.1 For no compensation, Enterprise hereby grants the City permission to use the Premises 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 Premises. Enterprise hereby acknowledges that the Premises, including all buildings and/or structures located thereon, will be demolished in the near 1 future and that the Training Program will not in any way, shape or form reduce the value of the Premises or create any additional demolition costs or work for Enterprise. 3.2 Enterprise 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 Premises after the City's use of the Premises. Furthermore, Enterprise agrees that Enterprise shall not hold the City liable for any damage caused to the Premises by the City. 4. ASBESTOS Enterprise shall provide City with an asbestos inspection report certifying that structure(s) and/or building(s) at the Premises are free from asbestos or informing the City of the level, location, and type of asbestos found on the Premises. 5. HOLD HARMLESS 5.1 To the fullest extent permitted by law, Enterprise shall indemnify, defend, and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively "Indemnified City Parties") and Owners 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 which may arise from or in any manner relate (directly or indirectly) to Enterprise's use of the Premises or any breach of the terms and conditions of this Agreement by Enterprise. 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 Enterprise, its successors and/or assigns (collectively "Indemnified Enterprise Parties") and Owners 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 which may arise from or in any manner relate (directly or indirectly) to City's Training Program or any breach of the terms and conditions of this Agreement by City. 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. 2 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 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 Enterprise 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. 6.10 Consent of Owner. Enterprise shall submit this Agreement to the Owners of the Properties promptly after it has been executed by both parties, and each party shall provide such further information and shall take such further action as the Owner may reasonably request in connection with its review and approval of this Agreement. 3 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: 09 - zo • i R By: f AQDn tfi. Harp City Attorney ATTEST: q D � BrownLeilani 1. CITY OF NEWPORT BEACH, a California municipal corporation Date: 4120 Jtg By: VVG K. Leung vManager ENTERPRISE: Enterprise Rent-A-Car Company of Los Angeles, LLC, a Delaware limited l)iability company Date: 4//9//� Thoma—s Klinger, VP 6f Finvan¢ Date: �=o l8 U By: ilm of Rental 6frjAtJ QuTEt.a CONSENT BY OWNER The undersigned hereby certifies to Enterprise and City, as named in the foregoing Agreement, that: (1) as of the date this Consent, the undersigned is the legal, vested owner of the Premises, as defined in the Agreement, and (2) the undersigned consents to the use of the Premises, as described in the Agreement, and the terms, execution, and delivery of the Agreement. 4320.4360 L.P., ada limited partnership Title: 9 fr"nl Date: � i -1 y JS 4400 LLC evada limited liability company Title:?K. 1.1 Date: J 'r /' t 1