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HomeMy WebLinkAboutAGMT - Orange County (MOU- Mass Notification Systems 2021)AMENDMENT NO. 1 TO INDEMNIFICATION AND HOLD HARMLESS AGREEMENT This Amendment No. 1 to Indemnification and Hold Harmless Agreement ("Amendment") is entered on this '76 day of January, 2021 by and between the City of Cypress ("City"), and the City of Seal Beach and the Seal Beach Police Department ("Indemnitor") (collectively referred to as the "Parties") RECITALS A. On or about February 12, 2007, the Parties entered into that certain Indemnification and Hold Harmless Agreement ("Agreement") pursuant to which the City granted permission to Indemnitor to use the City's Shooting Range, subject to certain conditions as stated therein. B. The City has updated its master fee schedule, including the fees chargeable for use of the City's Shooting Range and wishes to amend the Agreement by this Amendment to reflect such updated fees. TERMS Section 1. Agreement Changes. Section 1 of the Agreement entitled "Right to Use the Shooting Range & Fee for Use" is replaced in its entirety to read as follows: 1. Right to Use the Shooting Range &Fee for Use. Subject to the terms of this Agreement, Indemnitor and its police officers may use the shooting range, subject to reasonable availability and thirty (30) days advanced notice for scheduling. Indemnitor's anticipated use of the shooting range is for two days per quarter. Indemnitor agrees to pay the fee established in the City of Cypress' Master Fee Schedule, as may be duly amended by City from time -to -time, for the use of said shooting range. Members of West County SWAT are exempt from any fees." Section 2. Continuing Effect of Agreement. Except as amended by this Agreement, all provisions of the Agreement shall remain unchanged and in full force and effect. From and after the date of this Amendment, whenever the term "Agreement" appears in the Agreement, it shall mean the Agreement, as amended by this Amendment to the Agreement. Section 3. Affirmation of Agreement; Warranty Re Absence of Defaults. City and Indemnitor each ratify and reaffirm each and every one of the respective rights and obligations arising under the Agreement. Each party represents and warrants to the other 01004.0010/683542.1 that there have been no written or oral modifications to the Agreement other than as provided herein. Each party represents and warrants to the other that the Agreement is currently an effective, valid, and binding obligation. Indemnitor represents and warrants to City that, as of the date of this Amendment, City is not in default of any material term of the Agreement and that there have been no events that, with the passing of time or the giving of notice, or both, would constitute a material default under the Agreement. City represents and warrants to Indemnitor that, as of the date of this Amendment, Indemnitor is not in default of any material term of the Agreement and that there have been no events that, with the passing of time or the giving of notice, or both, would constitute a material default under the Agreement. Section 4. Adequate Consideration. The parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment. Section 5. Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the date and year first -above written. Approved As to Form: Aleshire & Wynder, LLP C_ Fred Galante Title: City Attorney Date: 01004.0010/683542.1 City of Cypress By: Peter Grant Title: City Manager Date: City of Seal Beach By: 9�LL (R �� Jill $ndram Title: City Manager Date: that there have been no written or oral modifications to the Agreement other than as provided herein. Each party represents and warrants to the other that the Agreement is currently an effective, valid, and binding obligation. Indemnitor represents and warrants to City that, as of the date of this Amendment, City is not in default of any material term of the Agreement and that there have been no events that, with the passing of time or the giving of notice, or both, would constitute a material default under the Agreement. City represents and warrants to Indemnitor that, as of the date of this Amendment, Indemnitor is not in default of any material term of the Agreement and that there have been no events that, with the passing of time or the giving of notice, or both, would constitute a material default under the Agreement. Section a Adp ;irate, Consideration. The parties hereto irrevocably stipulate and agree that they have each received adequate and independent Fonsideration for the performance of the obligations they have undertaken pursuant to this Amendment. Sections 5. Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the date and year first -above written. Approved As to Form: Aleshire & Wynder, LLP City of Cypress By: 6>4� By: Fred Galante Title: City Attorney Title: Date: Date: 01004.0010/683542.1 Peter Grant City Manager Citv of Seal Beach Jill Ingram +.." Title: City Manager Date: INDEMNIFICATION AND HOLD HARMLESS AGREEMENT THIS INDEMNIFICATION AND HOLD HARMLESS AGREEMENT ("Agreement") is made and entered into this 12th day of February , 2007, by and between the CITY OF CYPRESS and the CYPRESS POLICE DEPARTMENT (collectively the "City"), and the CITY OF SEAL BEACH and the SEAL BEACH POLICE DEPARTMENT ("Indemnitor")(collectively referred to as the "Parties"). RECITALS A. WHEREAS, the City is the owner of a Shooting Range Facility located at 5275 Orange Avenue, Cypress, CA 90630 (the "Shooting Range"); and B. WHEREAS, Indemnitor desires to have its police officers use the Shooting Range for purposes of meeting training and qualification requirements; and C. WHEREAS, the City grants permission to Indemnitor to use the City's Shooting Range, subject to the fee and certain conditions set forth in this Agreement. AGREEMENT NOW, THEREFORE, the Parties hereto agree as follows: 1. Right to Use the Shooting Range & Fee for Use. Subject to the terms of this Agreement, indemnitor and its police officers may use the Shooting Range, subject to reasonable availability and thirty (30) days advanced notice for scheduling. indemnitor's anticipated use of the Shooting Range is for two days per quarter. Indemnitor agrees to pay the City Fifteen ($15.00) Dollars per shooting officer, per day, for the use of said Shooting Range. 2. 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 Shooting Range. Indemnitor and each its police officers agree to fully obey and to comply with all posted rules and regulations and all orders of the Cypress Range master. Indemnitor and each its police officers understand that they may be excluded from the Shooting Range for failure to fully obey and to comply with all posted rules and regulations and all orders of the Cypress Range master, without any liability to the City, its officials, police officers, employees, volunteers, attorneys, assigns or anyone else acting on the City's behalf. 3. 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 Shooting Range, and hereby waives any and all claims for bodily injury (1) (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 Shooting Range. 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 Shooting Range by indemnitor, its officials, police officers, agents, employees, volunteers, or invitees, provided for herein, or arising from the negligent acts or omissions of Indemnitor or its officials, police officers, agents, employees, volunteers, or invitees, agents, employees, subcontractors, or invitees hereunder, or arising from Indemnitor'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 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. (2) 4. Release. 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 and/or any of the persons described in Paragraph 3 above 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 Indemnitor and covers claims arising out of or connected with Indemnitor's presence and/or the use of all or any portion of the Shooting Range by Indemnitor and/or any of the persons described in Paragraph 3 above. 5. 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 1 542 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." 6. Termination. This Agreement shall continue until terminated by either party. Termination shall occur only with thirty (30) days advance written notice to the Chief of Police of the respective department. 7. No Waiver. No delay or omission in the exercise of any right or remedy by a nondefaulting party on any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party or any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 6. Sole Agreement. This Agreement contains the entire understanding between the entity Parties as to the specific subject matter hereof and supersedes any prior understanding and/or written or oral agreements between them respecting the within subject matter. There are no representations, agreements, arrangements, or understandings, oral or written, between and among the entity Parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. 9. Severability. In the event that any provision of this Agreement shall be held to be invalid, the same shall not affect, in any respect whatsoever, the validity of the remainder of this Agreement. 10. Choice of Law. This Agreement shall be governed and construed in accordance with the laws of the State of California. (3) 11. Attorneys' Pees. In the event of any dispute between the Parties hereto arising out of the terms of this Agreement, the prevailing party in such dispute shall be entitled to recover from the other all costs and expenses, including reasonable attorneys' fees and court costs incurred by the prevailing party in any such dispute (whether or not such dispute is prosecuted to a final judgment or other final determination), together with all costs of enforcement and/or collection of any judgment. 12. 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. 13. Modifications. Any alteration, change, or modification of or to this Agreement shall be made by written instrument executed by each party hereto in order to become effective. 14. No Third Party Beneficiaries. No person or entity shall be deemed to be a third party beneficiary hereof, and nothing in this Agreement (either express or implied) is intended to confer upon any person or entity any rights, remedies, obligations or liabilities under or by reason of this Agreement. 15. Ambiguity. The Parties acknowledge that this Agreement was jointly prepared by them, by and through their respective legal counsel, and any uncertainty or ambiguity existing herein shall not be interpreted against any of the Parties, but otherwise shall be interpreted according to the application of the rules on interpretation of contracts. 16. Authority. The persons executing this Agreement on behalf of the Parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. [SIGNATURE PAGE FOLLOWS] (4) IN WITNESS WHEREOF, the Parties hereto have executed this Agreement, consisting of a total of five (5) pages, on the day and year first above written. APPROVED AS TO FORM: ALESHIRE & WYNDER, LLP William W. W der,City Attorney (5) "CITY" CITY OF CYP SS, A Municipal rporati Jo ahorski, City Manager 3 Date Si ned "INDEMNITOR" CITY OF SEAL BEACH A Municipal Corporation Greg Bea Bien, Interim City Manager :S1 I 1 0-1 Date Signe