HomeMy WebLinkAboutC-7878-1 - Indemnification and Hold Harmless AgreementINDEMNIFICATION AND HOLD HARMLESS AGREEMENT
THIS INDEMNIFICATION AND HOLD HARMLESS AGREEMENT ("Agreement") is
made and entered into this / day of /VWYI 2020, ("Effective Date") by and
between the CITY OF WESTMINSTER (the "City"), and the City of Newport Beach
("Indemnitor") (collectively referred to as the "Parties").
RECITALS
A. WHEREAS, the City is the owner of Westminster Police Range and Safety Training
Center located at 7351 Hazard Ave., Westminster, CA 92683 (the "Training Center"); and
B. WHEREAS, Indemnitor desires to have its police officers use the Training Center
for purposes of training and qualification requirements; and
C. WHEREAS, the City grants permission to Indemnitor to use the City's Training
Center, subject to the fees and certain conditions set forth in this Agreement.
NOW, THEREFORE, the Parties hereto agree as follows:
1. Right to Use the Training Center & Fee for Use. Subject to the terms of this
Agreement, Indemnitor and its police officers may use the Training Center, subject to
reasonable availability and thirty (30) days advanced notice for scheduling. Indemnitor's
anticipated use of the Training Center is for police training and qualification purposes.
Indemnitor agrees to pay the City in accordance with the fee schedule set forth in Exhibit "A,"
attached hereto and made a part of this Agreement (the "Fee Schedule"). City's compensation
for Indemnitor's use of the Training Center pursuant to this Agreement, including all
reimbursable items and any and all fees whatsoever, shall not exceed Twenty Five Thousand
Dollars and 00/100 ($25,000.00), without prior written authorization from Indemnitor.
2. Method of Billing. Indemnitor shall pay City's invoice within forty five (45) days
from the date the Indemnitor receives said invoice. Said invoices shall be based on the total
amount of activities and time spent at the Training Center.
3. Term. This Agreement shall commence on the Effective Date and continue for a
period of five (5) year(s), ending on 1,-w,4YI 4,92lunless previously terminated as provided
herein or as otherwise agreed in writing by the parties.
4. Termination. Either party has a right to terminate this Agreement with or without
cause. Termination shall occur only with at least seven (7) days advance written notice to the
person identified for notices in this Agreement. In the event of termination, Indemnitor shall pay
City for time spent at the Training Center up until the date of the written notice of termination.
5. Compliance with all Laws. Indemnitor, at its sole cost and expense, shall
comply with all of the requirements of all municipal, state and federal laws, regulations and
authorities now in force, or which may hereafter be in force pertaining to the use of the Training
Center. Indemnitor and each of its police officers agree to fully obey and to comply with all
posted rules, regulations and all orders of the Westminster Rangemaster and Range Staff as
well as the Westminster Police Range and Safety Training Center Policy (the "Training Center
Policy") as more fully described in Exhibit "B", attached hereto and made a part of this
Agreement. Indemnitor and each its police officers understand that they may be excluded from
WPD Range and Safety Training Center Indemnification and Hold Harmless Agmt Page 1 of 6
the Training Center for failure to fully obey and to comply with all posted rules, regulations, all
orders of the Westminster Rangemaster and Range Staff and Training Center Policy, without
any liability to the City, its officials, police officers, employees, volunteers, attorneys, assigns or
anyone else acting on the City's behalf.
6. Indemnification of City. Indemnitor, as a material part of the consideration to be
rendered to City under this Agreement, hereby waives any and all claims against City for
damage to equipment or other personal property, in, upon, or about the Training Center, and
hereby waives any and all claims for bodily injury (including death), liability, damages, lawsuits,
expenses (including, but not limited to, medical expenses and attorneys' fees) and any other
liability to persons in or about the Training Center, arising out of the use of the Training Center
by "Indemnitor Parties," including Indemnitor, Indemnitor, its officials, police officers, agents,
employees, volunteers, subcontractors, or invitees. Indemnitor further agrees to indemnify the
"Released Parties," including the City, its elected and appointed officials, police officers, agents,
volunteers, employees, and attorneys, and anyone else acting on the City's behalf, against and
shall hold and save them and each of them harmless from any and all actions, suits, claims,
damages to persons or property, losses, costs, penalties, obligations, errors, omissions, or
liabilities (herein "Claims or Liabilities") that may be asserted or claimed by any persons, firm, or
entity arising out of or in connection with the use of the Training Center by Indemnitor Parties, or
arising from the negligent acts or omissions of Indemnitor Parties, or arising from Indemnitor
Parties' performance of or failure to perform under this Agreement, whether or not there is
concurrent passive or active negligence on the part of the Released Parties in connection
herewith:
(a) Indemnitor shall defend any action or actions filed in connection with any
of said Claims or Liabilities and shall pay all costs and expenses, including legal costs and
attorneys' fees incurred in connection therewith;
(b) Indemnitor shall promptly pay any judgment rendered against the
Released Parties for any such Claims or Liabilities arising out of or in connection with the
performance of or failure to perform under this Agreement; and Indemnitor agrees to save and
to hold the Released Parties harmless there from;
(c) In the event that the City, its elected or appointed officials, police officers,
agents, employees, volunteers, attorneys, or anyone acting on their behalf, is made a party to
any actions or proceeding filed or prosecuted against Indemnitor for such damages or other
claims arising out of or in connection with Indemnitor's performance under this Agreement,
Indemnitor agrees to pay to the City, its officials, police officers, agents, volunteers, attorneys or
employees, any and all costs and expenses incurred by them in such action or proceeding,
including, but not limited to, legal costs and attorneys' fees;
(d) The Parties further expressly agree that this indemnification provision is
intended to be as broad and inclusive as is permitted by the law of the State of California and
that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding,
continue in full force and effect.
(e) City agrees to indemnify Indemnitor Parties, against and shall hold and
save them and each of them harmless from any and all actions, suits, claims, damages to
persons or property, losses, costs, penalties, obligations, errors, omissions, or liabilities that
may be asserted or claimed by any persons, firm, or entity arising out of or in connection with
City's provision of the Training Center for use by Indemnitor Parties, or arising from the
WPD Range and Safety Training Center Indemnification and Hold Harmless Agmt Page 2 of 6
negligent acts or omissions of Released Parties, or arising from City's performance of or failure
to perform under this Agreement, whether or not there is concurrent passive or active
negligence on the part of the Indemnitor Parties in connection herewith.
7. Release. With the exception of City's obligation to defend, indemnify, and hold
harmless Indemnitor Parties as set forth in this Agreement, Indemnitor hereby releases and
forever discharges the Released Parties, and each and every one of them, from and against
any and all Claims or Liabilities, including, but not limited to, any demands, actions and causes
of action whatsoever which Indemnitor may have or may hereafter have specifically arising in
any way out of the exercise by Indemnitor of the rights afforded by this Agreement. This is a
complete and final release and shall be binding upon Imdemnitor and covers claims arising out
of or connected with Indemnitor's presence and/or the use of all or any portion of the Training
Center by Indemnitor.
8. Waiver of Civil Code Section 1542, Further, the Parties expressly agree to
waive and relinquish all rights and benefits that it may have under Section 1542 of the Civil
Code of the State of California. That section reads as follows:
"§ 1542. [General release; extent] A general release does not extend to claims
which the creditor does not know or suspect to exist in his favor at the time
of executing the release, which if known by him must have materially
affected his settlement with the debtor."
9. Waiver. The delay or failure of either party at any time to require performance or
compliance by the other of any of its obligations or agreements shall in no way be deemed a
waiver of those rights to require such performance or compliance. No waiver of any provision
of this Agreement shall be effective unless in writing and signed by a duly authorized
representative of the party against whom enforcement of a waiver is sought. The waiver of any
right or remedy in respect to any occurrence or event shall not be deemed a waiver of any right
or remedy in respect to any other occurrence or event, nor shall any waiver constitute a
continuing waiver.
10. Entire Agreement. This Agreement constitutes the entire agreement between
the parties with respect to any matter referenced herein and supersedes any and all other prior
writings and oral negotiations. This Agreement may be modified only in writing, and signed by
the parties in interest at the time of such modification. The terms of this Agreement shall
prevail over any inconsistent provision in any other contract document appurtenant hereto,
including exhibits to this Agreement.
11. Notices. Any notices, documents, correspondence or other communications
concerning this Agreement or the work hereunder may be provided by personal delivery or mail
and shall be addressed as set forth below. Such communication shall be deemed served or
delivered: a) at the time of delivery if such communication is sent by personal delivery; and, b)
48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such
communication is sent through regular United States mail.
WPD Range and Safety Training Center Indemnification and Hold Harmless Agmt Page 3 of 6
IF TO INDEMNITOR:
Newport Beach Police Dept.
City of Newport Beach
Attn: Range Master
870 Santa Barbara Drive
Newport Beach, CA 92660
Tel: (949) 644-3681
IF TO CITY:
Professional Standards Unit
Westminster Police Depart.
City of Westminster
8200 Westminster Blvd.
Westminster, CA 92683
Tel: 714-898-3315
Fax: 714-898-5932
Attn: PSU Commander
12. Severability. If any provision of this Agreement is determined by a court of
competent jurisdiction to be unenforceable in any circumstance, such determination shall not
affect the validity or enforceability of the remaining terms and provisions hereof or of the
offending provision in any other circumstance.
13. Governing Law. This Agreement shall be governed by and construed under the
laws of the State of California without giving effect to that body of laws pertaining to conflict of
laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto
agree that the sole and exclusive venue shall be a court of competent jurisdiction located in
Orange County, California.
14. Attorneys' Fees. In the event that litigation is brought by any party in connection
with this Agreement, neither party shall be entitled to recover from the opposing party any
costs or expenses, including reasonable attorneys' fees, incurred by the other party in the
exercise of any of its rights or remedies hereunder or the enforcement of any of the terms,
conditions, or provisions hereof.
15. Costs. Each party shall bear its own costs and fees incurred in the preparation
and negotiation of this Agreement and in the performance of its obligations hereunder except
as expressly provided herein.
16. Knowing and Voluntary. This Agreement is an important legal document and in
all respects has been voluntarily and knowingly executed by the Parties hereto. The Parties
specifically represent that prior to signing this Agreement they have been provided a
reasonable period of time within which to consider whether to accept this Agreement. The
Parties further represent that they have each carefully read and fully understand all of the
provisions of this Agreement, and that they are voluntarily, knowingly, and without coercion
entering into this Agreement based upon their own judgment. The Parties further specifically
represent that prior to signing this Agreement they have conferred with their counsel to the
extent desired concerning the legal effect of this Agreement.
17. Cooperation. In the event any claim or action is brought against either party
relating to this Agreement, the other party shall render any reasonable assistance and
cooperation which might be required.
18. Amendments. Only a writing executed by the parties hereto or their respective
successors and assigns may amend this Agreement.
WPD Range and Safety Training Center Indemnification and Hold Harmless Agmt Page 4 of 6
19. No Third Party Beneficiary Rights. This Agreement is entered into for the sole
benefit of City and Indemnitor and no other parties are intended to be direct or incidental
beneficiaries of this Agreement and no third party shall have any right in, under or to this
Agreement.
20. Headings. Paragraphs and subparagraph headings contained in this Agreement
included solely for convenience and are not intended to modify, explain or to be a full or accurate
description of the content thereof and shall not in any way affect the meaning or interpretation of
this Agreement.
21. Construction. The Parties have participated jointly in the negotiation and drafting
of this Agreement. In the event an ambiguity or question of intent or interpretation arises with
respect to this Agreement, this Agreement shall be construed as if drafted jointly by the
Parties and in accordance with its fair meaning. There shall be no presumption or burden of
proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of
this Agreement.
22. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original. All counterparts shall be construed together and shall
constitute one Agreement.
23. Corporate Authority. The persons executing this Agreement on behalf of the
Parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said
Parties and that by doing so the Parties hereto are formally bound to the provisions of this
Agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by and through their respective authorized officers, as of the date first above written.
CITY OF WESTMINSTER,
A municipal corporation
0�iu%Q'K�
Sherry Jo s City Manager
Ill
M CA,� h'Wn
ATTEST:
J_k�
Christine Cordon, City Clerk
of the City of Westminster
Date: 45' 211 P'?Z
APPROVED A O FOR
City Attorney ate
APPROVED AS TO INSURANCE
B
RISK NA EMENT
WPD Range and Safety Training Center Indemnification and Hold Harmless Agmt Page 5 of 6
INDEMNITOR:
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: ')I Do
By:�---'
-IO-�Aaron . Harp
City Ati�orney
ATTEST: �A
Date: �� aC�J
By: aMJAA�,
Leilani I. Brown
City Clerk
�LrFOR%
CITY OF NEWPORT BEACH,
a Califory�ii� cipalorporation
Date:
,(T. Lewis
lice Chief
WPD Range and Safety Training Center Indemnification and Hold Harmless Agmt Page 6 of 6
CERTIFICATE NO.
ISSUE DATE (MM/DD/YYYY)
GL1-8775 CO
CERTIFICATE OF COVERAGE
1 05/18/2020
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE
CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR
CSAC Excess Insurance
ALTER THE COVERAGE AFFORDED BELOW. THIS CERTIFICATE OF COVERAGE DOES NOT CONSTITUTE A
Authority
CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE
CERTIFICATE HOLDER
C/O ALLIANT INSURANCE SERVICES, INC.
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED and/or requesting a WAIVER OF
PO BOX 6450
NEWPORT BEACH, CA 92658-6450
SUBROGATION, the Memorandums of Coverage must be endorsed. A statement on this certificate does
not confer rights to the certificate holder in lieu of such endorsement(s).
PHONE (949) 756-0271 / FAX (619) 699-0901
COVERAGE A - CSAC Excess Insurance Authority
y
LICENSE #OC36861
Member:
COVERAGE
CITY OF NEWPORT BEACH
AFFORDED B
ATTN: BARBARA SALVINI
COVERAGE
100 CIVIC CENTER DR
AFFORDED C
NEWPORT BEACH, CA 92660
COVERAGE
AFFORDED D
Coverages
THIS IS TO CERTIFY THAT THE MEMORANDUMS
OF COVERAGE LISTED BELOW HAVE BEEN ISSUED TO THE MEMBER NAMED ABOVE FOR
THE PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH
RESPECT TO WHICH THIS CERTIFICATE MAY BE
ISSUED OR MAY PERTAIN. THE COVERAGE AFFORDED BY THE MEMORANDUMS
DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS, AND CONDITIONS OF SUCH MEMORANDUMS. LIMITS SHOWN MAY
HAVE BEEN REDUCED BY PAID CLAIMS.
CO
TYPE OF COVERAGE
MEMORANDUM
COVERAGE EFFECTIVE
COVERAGE EXPIRATION
LIABILITY LIMITS
LTR
NUMBER
DATE (MM/DD/YYYY)
DATE (MM/DDNYYY)
A
nX Excess General Liability
EIA PE 19 EL -89
07/01/2019
07/01/2020
$1,000,000
Limits inclusive of the
Member's Self -Insured
Retention of $500,000
Description of Operations/Locations/Vehicles/Special Items:
AS RESPECTS EVIDENCE OF COVERAGE BETWEEN CITY OF NEWPORT BEACH AND CITY OF WESTMINSTER FOR USE OF TRAINING
CENTER FOR POLICE TRAINING.
Cancellation
Certificate Holder
SHOULD ANY OF THE ABOVE DESCRIBED MEMORANDUMS OF COVERAGES BE CANCELLED
BEFORE THE EXPIRATION DATE THEREOF, NOTICE WIL BE DELIVERED IN ACCORDANCE
WITH THE MEMORANDUMS OF COVERAGE PROVISIONS.
CITY OF WESTMINSTER
8200 WESTMINSTER BLVD.
AUTHORIZED REPRESENTATIVE
WESTMINSTER, CA 92683
CSAC EXCESS INSURANCE AUTHORITY
CERTIFICATE NO.
ISSUE DATE (MM/DD/YYYY)
WC -3391
CERTIFICATE OF COVERAGE
05/18/2020
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO
CSAC Excess Insurance
RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY
OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BELOW. THIS
Authority
CERTIFICATE OF COVERAGE DOES NOT CONSTITITUE A CONTRACT BETWEEN THE
ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE
CERTIFICATE HOLDER
C/O ALLIANT INSURANCE SERVICES, INC.
IMPORTANT: If the certificate holder is requesting a WAIVER OF SUBROGATION, the
Memorandums of Coverage must be endorsed. A statement on this certificate does not confer
rights to the certificate holder in lieu of such endorsement(s).
PO BOX 6450
NEWPORT BEACH, CA 92658-6450
PHONE (949) 756-0271 / FAX (619) 699-0901
LICENSE #OC36861
COVERAGE
AFFORDED BY: A - See attached Schedule Of insurers
Member:
COVERAGE
CITY OF NEWPORT BEACH
AFFORDED BY: B
ATTN: BARBARA SALVINI
COVERAGE
100 CIVIC CENTER DR
NEWPORT BEACH, CA 92660
AFFORDED BY: C
COVERAGE
AFFORDED BY: D
Coverages
THIS IS TO CERTIFY THAT THE MEMORANDUMS OF COVERAGE AND POLICIES LISTED BELOW HAVE BEEN ISSUED TO THE MEMBER
NAMED ABOVE FOR THE PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR
OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE COVERAGE AFFORDED
BY THE MEMORANDUMS AND POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS, AND CONDITIONS OF
SUCH MEMORANDUMS AND POLICIES.
CO
LTR
TYPE OF COVERAGE
MEMORANDUM/
POLICY NUMBER
COVERAGE EFFECTIVE
DATE (MM/DD/YYYY)
COVERAGE EXPIRATION
DATE (MM/DD/YYYY)
LIABILITY LIMITS
A
EXCESS WORKERS'
See attached
07/01/2019
07/01/2020
WORKERS'COMPENSATION:
COMPENSATION &
Schedule of
Difference between
EMPLOYER'S LIABILITY
Insurers for policy
Statutory and Member's
numbers
$500,000 Retention
EMPLOYERS' LIABILITY:
Difference between
$5,000,000 and Member's
Retention
LIMITS APPLY PER OCCURRENCE FOR ALL PROGRAM MEMBERS COMBINED.
Description of Operations/Locations/Vehicles/Special Items:
AS RESPECTS EVIDENCE OF COVERAGE BETWEEN CITY OF NEWPORT BEACH AND CITY OF WESTMINSTER FOR USE OF TRAINING
CENTER FOR POLICE TRAINING.
Certificate Holder
Cancellation
SHOULD ANY OF THE ABOVE DESCRIBED MEMORANDUMS OF COVERAGE/POLICIES
BE CANCELLED BEFORE THE EXPIRATION THEREOF, NOTICE WILL BE DELIVERED IN
ACCORDANCE WITH THE MEMORANDUMS OF COVERAGE/POLICIES PROVISIONS.
CITY OF WESTMINSTER
AUTHORIZED REPRESENTATIVE
8200 WESTMINSTER BLVD.
WESTMINISTER, CA 92683
CSAC EXCESS INSURANCE AUTHORITY
CSAC EXCESS INSURANCE AUTHORITY
EXCESS WORKERS' COMPENSATION PROGRAM
2019/2020 SCHEDULE OF INSURERS
CITY OF NEWPORT BEACH
PROVIDER
MEMORANDUM/
POLICY NUMBER
LIMIT
CSAC Excess Insurance Authority
EIA PE 19 EWC-133
Workers' Compensation:
$50,000,000 each accident/each employee
for disease
(Difference between $50,000,000 and the
individual member's retention)
Employers' Liability:
$5,000,000 each accident/each employee
for disease
(Difference between $5,000,000 and the
individual member's retention)
Liberty Insurance Corporation
EW7-64N-444785-019
Statutory each accident/each employee
for disease excess of
$50,000,000