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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 City of Irvine Page 2 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 City of Irvine Page 3 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. City of Irvine Page 4 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. City of Irvine Page 6 [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] City of Irvine ---- -------- -- -- -- -------------------- - Page 8