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HomeMy WebLinkAbout2012 CON Focus Holding Co - Fire and Police TrainingAGREEMENT AND RELEASE BY AND BETWEEN THE CITY OF NATIONAL CITY and 1-4olcikCo-Le)ut L SG -- THE FOCUS-CROUPf OWNERS OF THE PROPERTY AT 41 — 43 E. 12th Street, 4ld`�� S NATIONAL CITY, CA 91950 THIS AGREEMENT is entered into this 4th day of September 2012, by and betw en the CITY OF NATIONAL CITY, a municipal corporation ("CITY") and The Focus Gfett7, LLC, Owners of the property located at 41- 43 E. 1 2tn Street National City, California 91950 ("Owners"), collectively referred to as the "PARTIES". RECITALS WHEREAS, the City of National City Fire Department desires the opportunity to participate in ventilation maneuvers and training operations in a vacant structure; and WHEREAS, the City of National City Police Department desires the opportunity to participate in SWAT training maneuvers and operations in a vacant structure; and WHEREAS, the OWNERS will be demolishing the structure located at 41- 43 E. 12th Street, National City, California (the "Property"); and WHEREAS, the CITY has discussed with the Owners the possibility of using the Property, prior to its scheduled demolition of the structures, by the National City Fire Department and Police Department to perform ventilation maneuvers, training operations, SWAT training activities, and the like (collectively referred to as "Training Operations"), at its location, but would not include any burning of the structures; and WHEREAS, Owners are legally able and authorized to make such offer and execute this agreement as they are the Owners of the Property, including the structures at this location. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. The Owners hereby agree to allow the National City Fire Department and Police Department to use the Property, free of charge, to conduct Training Operations, on or about September , 2012, prior to the Property's demolition. 2. The CITY agrees to be responsible for all Training Operation efforts and any consequential injury or damage to persons while such Training Operations occur at the Property, except for negligence in the execution of paragraph three herein. The CITY agrees to schedule this training operation with the Owners at their convenience and to provide a posted notice on the premise as to the intentions of the CITY prior to the Training Operations. 3. The Owners shall be responsible for assuring that all persons are vacated from such premises immediately prior to the operation by the CITY of such training, shall disclose any known dangerous or hazardous conditions on or of the Property, and shall confirm with City that the Training Operations have concluded prior to authorizing any demolition of his Property. 4. INDEMNIFICATION AND HOLD HARMLESS BY THE OWNERS. The Owners acknowledge and agree that Training Operations are a hazardous activity and hereby agrees to assume all risk of damage, liability, or loss to any personal or real property and agrees to hold CITY free and harmless from any and all damage to any personal or real property as a result of the Training Operations, whether caused by neglight act or omission of CITY or otherwise. The Owners agree to indemnify, hold harmless and release from liability the CITY, its agents, and employees, against and from any and all liability, loss, or damage to property, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, expert and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the negligence of the Owners or their agents or resulting from or arising out of the ventilation maneuvers and training operations, except for the sole negligence or willful misconduct by the CITY and except as provided in paragraph 2. 5. SIGNATURE AUTHORITY. The undersigned represent that they are authorized to sign this agreement, to bind the parties herein to this agreement. 6. MISCELLANEOUS PROVISIONS. A. Jurisdiction. Jurisdiction over any dispute or liability claims arising related to the canine, its handler, their agents, or the parties herein is Superior Court, South Bay Division, San Diego County. B. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. 2 D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. E. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. F. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. G. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. H. Entire Agreement. This Agreement supersedes any prior agree- ments, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. I. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. J. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) each party and such party's counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. CITY OF NATIONAL CITY City Manager Date: ii [isIi. 3 t-6(,Q,m,coos poi5&— THE FOCUS SROUP; LLC Date: Date: Ginny Miller 140-1v ito From: Frank Parra Sent: Monday, November 12, 2012 4:21 PM To: Ginny Miller Subject: RE: Focus Group Agreement Dates were October 9`h, 10t and 11th From: Ginny Miller Sent: Monday, November 12, 2012 3:27 PM To: Frank Parra Subject: RE: Focus Group Agreement Please send me the date the training began across the street. Thanks! Ginny Miller Executive Assistant to the City Attorney City of National City 1243 National City Blvd National City, CA 91950-4301 Office Hours: M-Th, 7:00 a.m. — 6:00 p.m. This electronic transmission, and any documents attached hereto, (a) are protected by the Electronic Communications Privacy Act (18 USC §§ 2510-2521), (b) may contain confidential and/or legally privileged information, and (c) are for the sole use of the intended recipient named above. If you have received this electronic message in error, please notify the sender and delete the electronic message immediately. Any disclosure, copying, distribution, or use of the contents of the information received in error is strictly prohibited. Thank you. RESOLUTION NO. 2012 — 189 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT AND RELEASE BY AND BETWEEN THE CITY OF NATIONAL CITY AND THE FOCUS GROUP, OWNERS OF THE PROPERTY LOCATED AT 41-43 EAST 12TH STREET IN NATIONAL CITY, TO ALLOW THE POLICE AND FIRE DEPARTMENTS TO USE THE VACANT STRUCTURE FOR TRAINING PURPOSES WHEREAS, The Focus Group, owners of the property located at 41-43 East 12th Street in National City, plan to demolish the vacant structure currently on the site and build a new one; and WHEREAS, the City and The Focus Group desire to enter into an Agreement and Release to allow the National City Police and Fire Departments to use the property, free of charge, for training purposes prior to demolition of the building; and WHEREAS, pursuant to the Agreement and Release, the City agrees to be responsible for all training operations and any consequential injury or damage to persons during the training, and The Focus Group agrees to be responsible for assuring that all persons are vacated from the premises immediately prior to the training operations, to disclose any known dangerous or hazardous conditions on or of the property, to confirm with the City that the training operations have concluded prior to authorizing any demolition of the property, and indemnify, hold harmless, and release the City from any liability concerning the training operations. NOW THEREFORE BE IT RESOLVED that the City Council of the City of National City hereby authorizes the City Manager to execute an Agreement and Release by and between the City of National City and The Focus Group, owners of the property located at 41-43 East 12th Street in National City, to allow the Police and Fire Departments to use the vacant structure for training purposes. ATTEST: PASSED and ADOPTED this 4th day of Septemb;a2012. N R.C/�a- Michael R. Dalla, it Clerk Y PROVED AS TO FO is G City Attorri Morrison, ayor Passed and adopted by the Council of the City of National City, California, on September 4, 2012 by the following vote, to -wit: Ayes: Councilmembers Morrison, Natividad, Rios, Sotelo-Solis, Zarate. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON Mayor of the City of National City, California City Jerk of the City National City, California By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2012-189 of the City of National City, California, passed and adopted by the Council of said City on September 4, 2012. City Clerk of the City of National City, California By: Deputy CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: September 4, 2012 AGENDA ITEM NO. 13 OEM TITLE: Resolution of the City Council of the City of National City authorizing the City Manager to sign an Agreement and Release by and between the City of National City and The Focus Group, Owners of the Property at 41- 43 E. 12th Street, National City, CA 91950 for training purposes for Police and Fire personnel in a vacant structure. (Fire) PREPARED BY: Walter Amedee DEPARTMENT: Fire PHONE: 619-336-4556 APPROVED BY: \?^ EXPLANATION: The Focus Group has decided to demolish the budding and plans to build a new structure located at 41- 43 E. 12th Street. This vacant structure provides a training opportunity for police and fire personnel to perform "real life" training such as ventilation maneuvers, SWAT activities, and the like. The training would not include any burning of the structures. The Focus Group has agreed to allow the National City Fire Department and Police Department to use the property, free of charge. The City agrees to be responsible for all training operations and any consequential injury or damage to persons during the training operations. The Focus Group will be responsible for assuring that all persons are vacated from such premises immediately prior to the training operations, will disclose any known dangerous or hazardous conditions on or of the property, and will confirm with City that the training operations have concluded prior to authorizing any demolition of the property. Notification will be provided to residents Wand businesses. The Focus Group agrees to indemnify, hold harmless and release the City from bility concerning the training operations. FINANCIAL STATEMENT: ACCOUNT NO. No financial impact. ENVIRONMENTAL REVIEW: ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: APPROVED: Finance MIS STAFF RECOMMENDATION: Authorize the City Manager to sign an Agreement and Release by and between the City of National City and The Focus Group, Owners of the Property at 41-43 E. 12th Street for police and fire training. BOARD / COMMISSION RECOMMENDATION: ATTACHMENTS: • 1. Agreement and Release by and between the City of National City and The Focus Group, Owners of the Property at 41- 43 E. 12th Street, National City, CA 91950 2. Resolution • RESOLUTION NO. 2012 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT AND RELEASE BY AND BETWEEN THE CITY OF NATIONAL CITY AND THE FOCUS GROUP, OWNERS OF THE PROPERTY LOCATED AT 41-43 EAST 12TH STREET IN NATIONAL CITY, TO ALLOW THE POLICE AND FIRE DEPARTMENTS TO USE THE VACANT STRUCTURE FOR TRAINING PURPOSES WHEREAS, The Focus Group, owners of the property located at 41-43 East 12th Street in National City, plan to demolish the vacant structure currently on the site and build a new one; and WHEREAS, the City and The Focus Group desire to enter into an Agreement and Release to allow the National City Police and Fire Departments to use the property, free of charge, for training purposes prior to demolition of the building; and WHEREAS, pursuant to the Agreement and Release, the City agrees to be responsible for all training operations and any consequential injury or damage to persons during the training, and The Focus Group agrees to be responsible for assuring that all persons are vacated from the premises immediately prior to the training operations, to disclose any known dangerous or hazardous conditions on or of the property, to confirm with the City that the training operations have concluded prior to authorizing any demolition of the property, and indemnify, hold harmless, and release the City from any liability concerning the training operations. NOW THEREFORE BE IT RESOLVED that the City Council of the City of National City hereby authorizes the City Manager to execute an Agreement and Release by and between the City of National City and The Focus Group, owners of the property located at 41-43 East 12th Street in National City, to allow the Police and Fire Departments to use the vacant structure for training purposes. PASSED and ADOPTED this 4th day of September, 2012. ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Claudia Gacitua Silva City Attorney Ron Morrison, Mayor • • • AGREEMENT AND RELEASE BY AND BETWEEN THE CITY OF NATIONAL CITY and THE FOCUS GROUP, OWNERS OF THE PROPERTY AT 41 — 43 E. 12th Street, NATIONAL CITY, CA 91950 THIS AGREEMENT is entered into this 4th day of September 2012, by and between the CITY OF NATIONAL CITY, a municipal corporation ("CITY") and The Focus Group, LLC, Owners of the property located at 41- 43 E. 12th Street National City, California 91950 ("Owners"), collectively referred to as the "PARTIES". RECITALS WHEREAS, the City of National City Fire Department desires the opportunity to participate in ventilation maneuvers and training operations in a vacant structure; and WHEREAS, the City of National City Police Department desires the opportunity to participate in SWAT training maneuvers and operations in a vacant structure; and WHEREAS, the OWNERS will be demolishing the structure located at 41- 43 E. 12th Street, National City, California (the "Property"); and WHEREAS, the CITY has discussed with the Owners the possibility of using the Property, prior to its scheduled demolition of the structures, by the National City Fire Department and Police Department to perform ventilation maneuvers, training operations, SWAT training activities, and the like (collectively referred to as "Training Operations"), at its location, but would not include any burning of the structures; and WHEREAS, Owners are legally able and authorized to make such offer and execute this agreement as they are the Owners of the Property, including the structures at this location. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. The Owners hereby agree to allow the National City Fire Department and Police Department to use the Property, free of charge, to conduct Training Operations, on or about September _, 2012, prior to the Property's demolition. 2. The CITY agrees to be responsible for all Training Operation efforts and any consequential injury or damage to, persons while such Training Operations • occur at the Property, except for negligence in the execution of paragraph three herein. The CITY agrees to schedule this training operation with the Owners at their convenience and to provide a posted notice on the premise as to the intentions of the CITY prior to the Training Operations. 3. The Owners shall be responsible for assuring that all persons are vacated from such premises immediately prior to the operation by the CITY of such training, shall disclose any known dangerous or hazardous conditions on or of the Property, and shall confirm with City that the Training Operations have concluded prior to authorizing any demolition of his Property. 4. INDEMNIFICATION AND HOLD HARMLESS BY THE OWNERS. The Owners acknowledge and agree that Training Operations are a hazardous activity and hereby agrees to assume all risk of damage, liability, or loss to any personal or real property and agrees to hold CITY free and harmless from any and all damage to any personal or real property as a result of the Training Operations, whether caused by neglight act or omission of CITY or otherwise. The Owners agree to indemnify, hold harmless and release from liability the CITY, its agents, and employees, against and from any and all liability, Toss, or damage to property, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, expert and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the negligence of the Owners or their agents or resulting from or arising out of the ventilation maneuvers and training operations, except for the sole negligence or willful misconduct by the CITY and except as provided in paragraph 2. 5. SIGNATURE AUTHORITY. The undersigned represent that they are authorized to sign this agreement, to bind the parties herein to this agreement. 6. MISCELLANEOUS PROVISIONS. A. Jurisdiction. Jurisdiction over any dispute or liability claims arising related to the canine, its handler, their agents, or the parties herein is Superior Court, South Bay Division, San Diego County. B. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. 2 • • • E. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. F. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. G. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. H. Entire Agreement. This Agreement supersedes any prior agree- ments, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. J. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) each party and such party's counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. --- Signature Page to Follow --- 3 • CITY OF NATIONAL CITY Mayor Date: THE FOCUS GROUP, LLC (Signatures of two corporate officers required) By: Date: Title: By: Date: • Title: • 4 OFFICE OF THE CITY CLERK 1243 National City Blvd. National City, California 91950 Michael R. Daila, CMC - City Clerk 619-336-4228 phone / 619-336-4229 fax November 20, 2012 Mr. Mark Goethals The Focus Group 7938 Ivanhoe Avenue, Suite B La Jolla, CA 92037 Dear Mr. Goethals, On September 4th, 2012, Resolution No. 2012-189 was passed and adopted by the City Council of the City of National City, authorizing execution of an Agreement with The Focus Group. We are enclosing for your records a certified copy of the above Resolution and a fully executed original Agreement. Michael R. Dalla, CMC City Clerk Enclosures cc: Fire Dept.