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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