The URL can be used to link to this page

Home My WebLink AboutC-7793-1 - Agreement for Use of 1200 Irvine Avenue (for Training)AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND MARINER SQUARE 2017, LLC, FOR USE OF 1200 IRVINE AVENUE THIS AGREEMENT for use of the building(s), structure(s), improvements and land ("Agreement") located at 1200 Irvine Avenue, Newport Beach, California ("Property"), is made and entered into as of this 19th day of December, 2019 ("Effective Date") by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and MARINER SQUARE 2017, LLC, a Delaware limited liability company ("Owner"), for use of the Property by the City for various 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 Owner hereby acknowledges that the buildings, structures, and improvements located on the Property will be demolished in the near future. Before the work to demolish commences, and for no consideration, Owner hereby grants the City permission to use the Property for various purposes, such as but not limited to, City Fire Department training and City Police Department training ("License"). The License may include, but is not limited to, the cutting of holes in the roof, floor, and walls, the breaking of windows, doors, and other similar activities that may cause extensive damage to the interior and exterior of the structures and improvements upon the Property. 4. ASBESTOS Owner shall provide City with an asbestos inspection report, or other equivalent information acceptable to the City, certifying that buildings, structures and other improvements upon the Property are free from asbestos and/or adequately informing the City of the level, location, and type of asbestos present on the Property. * 01A,06cbdl�� "07- w&, -y7 � An -L-5 Mariner Square 2017, LLC Page 1 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, employees, and any person or entity affiliated therewith (collectively "City 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 or conditions of this Agreement by Owner, grant of the License, or Owner's negligence or willful misconduct. 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 City Parties. 5.2 To the fullest extent permitted by law, City shall indemnify, defend and hold harmless Owner, its officers, agents, employees, volunteers, successors and/or assigns and any person or entity affiliated therewith (collectively "Owner Parties") from Claims which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement by City, or City's negligence or willful misconduct. Notwithstanding the foregoing, nothing herein shall be construed to require City to indemnify Owner Parties from any Claim arising from the sole negligence or willful misconduct of Owner Parties. 5.3 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. 5.4 Owner hereby acknowledges that City will cause damage to the buildings, structures, and improvements upon the Property, and hereby releases the City from any and all obligations to demolish, remove, restore, repair, and/or otherwise abate or clean up such damage. Furthermore, Owner forever releases, discharges, and shall hold the City harmless from any Claims arising out of such damage, including Claims encompassed by California Civil Code Section 1542, which reads: A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party. Mariner Square 2017, LLC Page 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 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. [SIGNATURES ON NEXT PAGE] Mariner Square 2017, LLC Page 3 01 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: 0 • i l • m By. D AlC �r A on C. Ha City Attorney ATTEST:'` Date: By: Leilani I. Brown City Clerk Mariner Square 2017, LLC CITY OF NEWPORT BEACH, a California municipal corporation Date:_�2�, I By: Gr K. Leung Manager OWNER: Mariner Square 2017, LLC, a Delaware limited liability company By: Mariners OPCO, LLC, a Delaware limited liability company Its: Managing Member By: Melia Homes, Inc., a California corporation Its: Managjng Vember Date: I Z 2O 111Y By: President - fv [END OF SIGNATURES] Page 4