HomeMy WebLinkAboutC-6314 - Equipment Loan Agreement EQUIPMENT LOAN AGREEMENT
BETWEEN CITY OF NEWPORT BEACH AND
G CITY OF FOUNTAIN VALLEY
THIS EQUIPMENT LOAN AGREEMENT ("Agreement") is made and entered into
as of this 1st day of October, 2015 ("Effective Date") by and between the CITY OF
NEWPORT BEACH, a California Municipal Corporation and charter city ("City"), and
CITY OF FOUNTAIN VALLEY ("FOUNTAIN VALLEY"), a Municipal Corporation whose
address is 10200 Slater Avenue, Fountain Valley, California 92708, and is made with
reference to the following:
RECITALS
A. City owns a 1997 American La France Fire Engine, License Plate number
1254761 ("Equipment").
B. FOUNTAIN VALLEY has requested to utilize the City's Equipment to
temporarily replace a front engine while it receives repair work.
C. City and FOUNTAIN VALLEY desire to enter this Agreement to loan the
Equipment pursuant to the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
A. City Agrees to the following responsibilities:
1. City will make available the Equipment for FOUNTAIN VALLEY's
use for a duration of no more than thirty (30) calendar days.
2. City will assign a designated location and time for FOUNTAIN
VALLEY to pick up and return the Equipment.
B. FOUNTAIN VALLEY agrees to the following responsibilities:
1. FOUNTAIN VALLEY will take possession of the Equipment without
any fee charged by the City. FOUNTAIN VALLEY shall assume risk of damage loss of
the Equipment upon taking delivery of said Equipment until it is returned to the City in
the same condition that the Equipment was delivered.
2. The Equipment shall be utilized for responding to calls for service
and firefighting operations and no other purposes.
3. FOUNTAIN VALLEY shall pick up and return the Equipment at the
location and time designated by the City.
4. FOUNTAIN VALLEY shall be responsible for all transportation
expenses upon delivery of Equipment by City and until returned to City.
5. FOUNTAIN VALLEY shall be responsible for obtaining and
adhering magnetic strips to the Equipment that shall cover all City seals, apparatus call
letters, and any other City identifying information on the exterior of the Equipment.
6. Indemnification.
(a) To the fullest extent permitted by law, FOUNTAIN VALLEY
shall indemnify, defend and hold harmless City, its City Council, boards and
commissions, officers, agents and employees (collectively, the "Indemnified 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 and
conditions of this Agreement or use of the Equipment (including the negligent and/or
willful acts, errors and/or omissions of FOUNTAIN VALLEY, its principals, officers,
agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed
directly or indirectly by any of them or for whose acts they may be liable or any or all of
them).
(b) Notwithstanding the foregoing, nothing herein shall be
construed to require FOUNTAIN VALLEY to indemnify the Indemnified Parties from any
Claim arising from the sole negligence or willful misconduct of the Indemnified Parties.
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. The
policy limits do not act as a limitation upon the amount of indemnification to be provided
by FOUNTAIN VALLEY.
7. Insurance. Without limiting FOUNTAIN VALLEY's indemnification
of City, and prior to use of the Equipment, FOUNTAIN VALLEY shall obtain, provide
and maintain at its own expense during the term of this Agreement or for other periods
as specified in this Agreement, policies of insurance of the type, amounts, terms and
conditions described in the Insurance Requirements attached hereto as Exhibit A, and
incorporated herein by reference, or the equivalent self insurance.
C. Additional Provisions.
1. Notices. All notices, demands, requests or approvals, including any
change in mailing address, 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 shall be addressed as follows:
FOUNTAIN VALLEY Page 2
Attn: Fire Chief Attn: Tony Coppolino
Fire Department Fire Department
City of Newport Beach CITY OF FOUNTAIN VALLEY
100 Civic Center Drivel P.O. Box 1768 10200 Slater Ave.
Newport Beach, CA 92658 Fountain Valley, CA 92708
2. Assignments. Neither party shall assign its performance of this
Agreement, nor any part thereof, without the prior consent of the non-assigning party.
3. Governing 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.
4. 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.
5. 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. 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. Amendments. This Agreement may be modified or amended only
by a written document executed by both FOUNTAIN VALLEY and City and approved as
to form by the City Attorney.
8. 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.
9. 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.
10. 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]
FOUNTAIN VALLEY Page 3
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
CITY OF NEWPORT BEACH,
A California municipal corporation
Date: Lo`
By:
Dave Ki
City Manager
APPROVED AS TO FORM:
CITY ATTP NEY'S OFFICE
Date:
By: C,
AT
Da -
By:
City Clerk
Aaron C. Harp
City Attorney
CITY OF FOUNTAIN VALLEY, a
MUNICIPAL CORPORATION
Date:
Signed in Counterpart
By:
David Cain
Finance Director/Treasurer
ATTEST:
Date:
Signed in Counterpart
By:
Robin Roberts
City Clerk
[END OF SIGNATURES]
Attachments: Exhibit A -- Insurance Requirements
FOUNTAIN VALLEY Page 4
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
CITY OF NEWPORT BEACH,
A California municipal corporation
Date:
By:
Dave Kiff
City Manager
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By:
Aaron C. Harp
City Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
CITY OF FOUNTAIN VALLEY, a
MUNICIPAL CORPORATION
Date:- cl),301 -5
By:
David Cain
Finance Director/Treasurer
ATTES�
Date:
By:
Robin Roberts
City Clerk
[END OF SIGNATURES]
Attachments: Exhibit A -- Insurance Requirements
FOUNTAIN VALLEY Page 4
EXHIBIT A
INSURANCE REQUIREMENTS
A. Provision of Insurance. Without limiting FOUNTAIN VALLEY's
indemnification of City, and prior to use of Equipment, FOUNTAIN VALLEY 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 or
the equivalent self-insurance. FOUNTAIN VALLEY agrees to provide insurance in
accordance with requirements set forth here. If FOUNTAIN VALLEY uses existing
coverage to comply and that coverage does not meet these requirements, FOUNTAIN
VALLEY agrees to amend, supplement or endorse the existing coverage.
B. 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. s
C. Coverage Requirement.
1. Workers' Compensation Insurance. FOUNTAIN VALLEY shall
maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily
injury by accident and each employee for bodily injury by disease in accordance with
the laws of the State of California, Section 3700 of the Labor Code.
2. FOUNTAIN VALLEY 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.
3. General Liability Insurance. FOUNTAIN VALLEY shall maintain
commercial general liability insurance, and if necessary umbrella liability insurance or
the equivalent self-insurance, with coverage at least as broad as provided by Insurance
Services Office form CG 00 01, in an amount not less than one million dollars
($1 ,000,000) per occurrence, one million dollars ($1,000,000) general aggregate. The
policy shall cover liability arising from premises, operations, personal and advertising
injury, and liability assumed under an insured contract (including the tort liability of
another assumed in a business contract) with no endorsement or modification limiting
the scope of coverage for liability assumed under a contract.
4. Automobile Liability Insurance_. FOUNTAIN VALLEY shall maintain
automobile insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of FOUNTAIN VALLEY
arising out of or in connection with Work to be performed under this Agreement,
including coverage for any owned, hired, non-owned or rented vehicles, in an amount
not less than five million dollars ($5,000,000) combined single limit each accident.
D. Other Insurance Requirements. The policies are to contain, or be
endorsed to contain, the following provisions:
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 FOUNTAIN VALLEY or others providing insurance evidence in
compliance with these requirements to waive their right of recovery prior to a loss.
FOUNTAIN VALLEY hereby waives its own right of recovery against City.
2. Additional Insured Status. All liability policies including general
liability, excess liability, pollution liability, and automobile liability, if required, shall
provide or be endorsed to provide that City and its officers, officials, employees, and
agents shall be included as insureds under such policies.
3. Primary and Non Contributory. All liability coverage shall apply on
a primary basis and shall not require contribution from any insurance or self-insurance
maintained by City.
4. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days notice of cancellation (except for nonpayment for which ten (10) calendar
days notice is required) or nonrenewal of coverage for each required coverage.
E. Additional Agreements Between the Parties. The parties hereby agree to
the following:
1. Evidence of Insurance. FOUNTAIN VALLEY 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 and other
endorsements as specified herein for each coverage. Insurance certificates and
endorsement must be approved by City's Risk Manager prior to use of Equipment.
Current certification of insurance shall be kept on file with City at all times during the
term of this Agreement. City reserves the right to require complete, certified copies of
all required insurance policies, at any time.
2. Enforcement of Agreement Provisions. FOUNTAIN VALLEY
acknowledges and agrees that any actual or alleged failure on the part of City to inform
FOUNTAIN VALLEY of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
3. Requirements not Limiting. 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.
FOUNTAIN VALLEY Page 6
4. Self-insured Retentions. Any self-insured retentions must be
declared to and approved by City. City reserves the right to require that self-insured
retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not
be considered to comply with these requirements unless approved by City.
5. City Remedies for Non-Compliance. If FOUNTAIN VALLEY fails to
provide and maintain insurance as required herein, then City shall have the right but not
the obligation, to purchase such insurance, to terminate this Agreement, or to suspend
FOUNTAIN VALLEY's right to proceed until proper evidence of insurance is provided.
Any amounts paid by City shall, at City's sole option, be deducted from amounts
payable to FOUNTAIN VALLEY or reimbursed by FOUNTAIN VALLEY upon demand.
6. Timely Notice of Claims. FOUNTAIN VALLEY shall give City
prompt and timely notice of claims made or suits instituted that arise out of or result
from FOUNTAIN VALLEY performance under this Contract, and that involve or may
involve coverage under any of the required liability policies. City assumes no obligation
or liability by such notice, but has the right (but not the duty) to monitor the handling of
any such claim or claims if they are likely to involve City.
7. FOUNTAIN VALLEY's Insurance. FOUNTAIN VALLEY 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 and prosecution of
the Work.
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