HomeMy WebLinkAboutC-5886 - Agreement for Use of the Newport Beach K9 Training FacilitiesC()
! AGREEMENT FOR USE OF THE NEWPORT BEACH K9 TRAINING FACILITIES
BETWEEN THE CITY OF NEWPORT BEACH AND THE CITY OF IRVINE
THIS AGREEMENT FOR USE OF THE NEWPORT BEACH K9 TRAINING
FACILITIES ( "Agreement ") is made and entered into as of this 1!tday of May, 2014
( "Effective Date ") by and between the CITY OF NEWPORT BEACH, a California
municipal corporation and charter city ( "City "), and the CITY OF IRVINE, a California
municipal corporation whose address is 1 Civic Center Plaza, Irvine, California 92606
( "Agency "). City and Agency are sometimes individually referred to as "Party" and
collectively as "Parties" in this Agreement.
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. Agency desires to use certain City facilities located at 3300 Newport Boulevard
and 1499 Monrovia Avenue in the City of Newport Beach, California, known as
the Newport Beach K9 Training Facilities ( "K9 Facilities ").
C. Agency desires to use the K9 Facilities for the purpose of K9 training ( "Training
Events ").
D. City is willing to allow Agency to use the K9 Facilities pursuant to the terms and
conditions set forth below.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
Parties as follows:
1. TERM
The term of this Agreement shall commence upon the Effective Date and shall
terminate five (5) years thereafter, unless terminated earlier as provided herein. It is
also understood that the City may terminate this Agreement at any time for any or no
reason.
2. CONDITIONS
2.1 K9 Facilities. City agrees to allow Agency to use the K9 Facilities
pursuant to this Agreement. The K9 Facilities are subject to the needs of the City and
as such the Agency's use of K9 Facilities may be cancelled by the City at any time. In
the event City determines, in its sole and absolute discretion, that the K9 Facilities are
needed for any City purposes, the Agency shall immediately vacate the K9 Facilities
upon notice by the City. It will also be understood that the K9 Facilities will be made
available on an "as is" basis.
2.2 Training Events. Agency represents and warrants that all attendees,
participants, students, observers, instructors and any other persons brought to the K9
Facilities by the Agency ( "Agency Invitees ") are qualified to participate in the Training
Events and use of the K9 Facilities. The City retains the discretion to terminate this
Agreement and requires all Agency Invitees to immediately vacate the K9 Facilities if
the Training Events or anyone's participation in the Training Events poses any kind of
threat or liability to the City, the public, Agency Invitees or anyone else. Agency Invitees
shall not be considered an employee or agent of City for any purpose related to the
Training Events.
2.3 Governmental Approvals. Agency shall or has obtained all necessary and
applicable federal, state and local approvals, certifications, and permits to conduct the
Training Events prior to use of K9 Facilities. City reserves the right to require Agency to
provide proof regarding these approvals, certifications, and permits, if applicable.
2.4 Scheduling of Facility /Cancellations. Agency may schedule use of the K9
Facilities on an "as available," "first come first served" basis by contacting the City's K9
Facilities' manager.
2.5 Accidents /Damage Investigations. The Parties agree to fully and promptly
cooperate in the investigations of injury or non -injury accidents, equipment damage
and /or damage to the K9 Facilities arising from Agency's use of the K9 Facilities. The
City's K9 Facilities Manager will coordinate such investigations for the purpose of
determining cause, responsibility and any physical or operational modifications or
improvements deemed necessary to improve facility safety. In the event damage to the
K9 Facilities caused by Agency's use of the K9 Facilities requires repair and /or
replacement, City shall affect such repair and present to the Agency an invoice for the
cost of the repairs /replacement plus five percent (5 %) for City administrative costs.
Agency shall remit payment in full to the attention of City of Newport Beach, 100 Civic
Center Drive, P.O. Box 1768, Newport Beach, CA 92660, within thirty days (30) days of
receipt of such invoice. A late charge equivalent to five percent (5 %) of the unpaid
balance shall be assessed on all accounts ten (10) or more days past due.
2.6 Facilities Inspections. The Parties will conduct a joint inspection of K9
Facilities before and after use. All damages will be annotated on inspection sheets
provided by the City's. K9 Facilities Manager to Agency. Agency shall be responsible for
general cleanup of the K9 Facilities following its use of the same.
3. RELEASE OF LIABILITY /ASSUMPTION OF RISK
3.1 In consideration of the City's Agreement to allow the Agency to use the K9
Facilities, the Agency, on behalf of itself and its elected officials, officers, employees,
contractors, agents, volunteers, students, and all Agency Invitees hereby releases and
forever discharges the City and each of its elected officials, officers, employees,
contractors, agents, and volunteers from any and all known and unknown, certain or
contingent, past, present or future obligations, liabilities, demands, claims, costs,
expenses, debts, controversies, damages, actions, and causes of action of every
nature, character, or description which they may have against the City, arising from or in
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any way related to the Training Events, use of K9 Facilities or this Agreement.
Furthermore, Agency assumes all risks associated with using the K9 Facilities for the
Agency's purposes, including but not limited to inspection of the facility prior to and after
use, determination that the K9 Facilities' "as is" status is appropriate for the Agency's
Training Events, supervision and control of all Agency Invitees involved in the Agency's
use of the K9 Facilities including Agency Invitees, members of the general public and
anyone else exposed during the period of time the Agency is using the K9 facilities.
3.2 Notwithstanding the foregoing, nothing herein shall be construed to
require Agency to indemnify the City's Indemnified Parties from any Claim arising from
the negligence or misconduct of the City's Indemnified Parties.
AGENCY HEREBY ACKNOWLEDGES THAT IT HAS READ AND IS FAMILIAR
WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542
( "SECTION 1542 "), WHICH IS SET FORTH BELOW:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY
HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR."
BY SIGNING BELOW, AGENCY HEREBY WAIVES THE PROVISIONS OF
SECTION 1542 IN CONNECTION WITH THE LEASED MATTERS.
,Signature of AgencyrolentqWe
Da%jicl L - tACLgIard, 1r•
Printed Name of Agency Representative
4. INDEMNIFICATION /HOLD HARMLESS
4.1 To the fullest extent permitted by law, Agency shall indemnify, defend and
hold harmless City, its elected officials, officers, employees, contractors, agents, and
volunteers ( "Indemnified Parties ") from and against any and all claims, damages,
demands, liability, costs, losses and expenses, including, without limitation, court costs
and reasonable attorneys' fees and costs, arising out of, in connection with or in any
way related to Agency's actions or inactions related to this Agreement, including without
limitation any actions or inactions related to use of K9 Facilities or the Training Events.
4.2 Notwithstanding the foregoing, nothing herein shall be construed to
require Agency to indemnify the City's Indemnified Parties from any Claim arising from
the sole negligence or willful misconduct of the City's Indemnified Parties. Nothing in
this indemnity shall be construed as authorizing any award of attorney's fees in any
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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 Agency.
5. INSURANCE
5.1 Without limiting Agency's indemnification of City, and prior to
commencement of any Training Events, Agency shall obtain, provide and maintain at its
own expense during the term of this Agreement, policies of insurance of the type and
amounts described below and in a form satisfactory to City.
5.2 Proof of Insurance. Agency shall provide certificates of insurance to City
as evidence of the insurance coverage required herein, along with a waiver of
subrogation endorsement for workers' compensation. Insurance certificates and
endorsement must be approved by City's Risk Manager prior to commencement of
performance. Current certification of insurance shall be kept on file with City at all times
during the term of this contract. City reserves the right to require complete, certified
copies of all required insurance policies, at any time.
5.3 Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders' Rating
of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the
latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
5.4 Coverage Requirements
5.4.1 Workers' Compensation Coverage. Agency shall maintain
Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance
(with limits of at least one million dollars ($1,000,000)) for Agency's employees in
accordance with the laws of the State of California, Section 3700 of the Labor Code
Any notice of cancellation or non - renewal of all Workers'
Compensation policies must be received by City at least thirty (30) calendar days (ten
(10) calendar days written notice of non - payment of premium) prior to such change.
Agency shall submit to City, along with the certificate of insurance,
a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees
and volunteers.
5.4.2 General Liability Coverage. Consultant shall maintain commercial
general liability insurance in an amount not less than one million dollars ($1,000,000)
per occurrence for bodily injury, personal injury, and property damage, including without
limitation, blanket contractual liability to cover any activities performed by any person
under the permission granted herein and any damage or loss suffered or incurred by the
City, its elected officials, officers, employees, contractors, agents, and volunteers
resulting from such activity.
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5.5 Other Insurance Provisions or Requirements. The policies are to contain,
or be endorsed to contain, the following provisions:
5.5.1 Waiver of Subrogation. All insurance coverage maintained or
procured pursuant to this agreement shall be endorsed to waive subrogation against
City, its elected or appointed officers, agents, officials, employees and volunteers or
shall specifically allow Agency or others providing insurance evidence in compliance
with these requirements to waive their right of recovery prior to a loss. Agency hereby
waives its own right of recovery against City.
5.5.2 Enforcement of Contract Provisions. Agency acknowledges and
agrees that any actual or alleged failure on the part of the City to inform Agency of non-
compliance with any requirement imposes no additional obligations on the City nor does
it waive any rights hereunder.
5.5.3 Requirements not Limitinq. Requirements of specific coverage
features or limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided by any
insurance. Specific reference to a given coverage feature is for purposes of clarification
only as it pertains to a given issue and is not intended by any party or insured to be all
inclusive, or to the exclusion of other coverage, or a waiver of any type.
5.5.4 Notice of Cancellation. Agency agrees to oblige its insurance agent
or broker and insurers to provide to City with thirty (30) days' notice of cancellation
(except for nonpayment for which ten (10) days' notice is required) or nonrenewal of
coverage for each required coverage.
5.6 Timely Notice of Claims. Agency shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Agency's performance
under this Agreement.
5.7 Additional Insurance. Agency shall also procure and maintain, at its own
cost and expense, any additional kinds of insurance, which in its own judgment may be
necessary for its proper protection.
6. NOTICES
6.1 All notices, demands, requests or approvals to be given under the terms of
this Agreement shall be given in writing, and conclusively shall be deemed served when
delivered personally, or on the third business day after the deposit thereof in the United
States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All
notices, demands, requests or approvals from Agency to City shall be addressed to City
at:
Attn: Chief of Police
Newport Beach Police Department
870 Santa Barbara Drive
Newport Beach, CA 92660
City of Irvine Page 5
6.2 All notices, demands, requests or approvals from City to Agency shall be
addressed to Agency at:
Attn: Chief of Police
City of Irvine Police Department
1 Civic Center Plaza
Irvine, California 92606
7. STANDARD PROVISIONS
7.1 Survival. Agency's obligations to release, indemnify, defend, and hold
harmless the City as set forth in this Agreement, shall survive expiration or termination
of the term of this Agreement and shall remain in effect until there is no risk to the City
of any liability for any claims or losses due to the use of the K9 Facilities for the Training
Events.
7.2 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.
7.3 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.
7.4 Waiver. No waiver of any default shall constitute a waiver of any other
breach or default, whether of the same or of any other covenant or condition. No
waiver, benefit, privilege or service voluntarily given or performed by either party shall
give the other party any contractual right by custom, estoppel or otherwise.
7.5 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.
7.6 Counterparts. This Agreement may be signed in counterparts, each of
which shall constitute an original and which collectively shall constitute one instrument.
7.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney.
7.8 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.
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[SIGNATURES ON FOLLOWING PAGE]
City of Irvine Page 7
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATT RN Y'S OFFICE
Date: q
By:
Aa on C. Harp
Cit ttorney
ATTEST- .�
Date:
� n
By:
Leilani I. Brown
City Clerk
�.OpNiP
APPROVED AS TO FORM:
Date: 4all y
By.-
odd0, 2 7
Todd Litfin
City Attorney, City of Irvine
ATTEST:
Date: �e
By: W46ko
Molly McLau hlin
City Clerk, City of Irvine
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: '7 - (s -i
By: "7
Jay so
Chjef of Police
AGENCY: CITY OF IRVINE, a California
municipal corporation
Date: O t Q a01y
By:
Name: ' , a tt(,46
Title:
[END OF SIGNATURES]
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