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HomeMy WebLinkAbout2019-06-17-J01X Hold Harmless Agr_House BurnAGENDA ITEM: CITY OF WAUKEE, IOWA CITY COUNCIL MEETING COMMUNICATION MEETING DATE: June 17, 2019 AGENDA ITEM:Consideration of approval of a resolution approving Memorandum of Agreement – Hold Harmless related to a controlled burn FORMAT:Consent Agenda SYNOPSIS INCLUDING PRO & CON: The City of Waukee and Apple, Inc., have come to an agreement related to a controlled burn of an unoccupied residence located at 28531 S Avenue, Waukee. The controlled burn by the Waukee Fire Department is scheduled for a date from June 15 through June 29, 2019 and will be used for training purposes. FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS: COMMISSION/BOARD/COMMITTEE COMMENT: STAFF REVIEW AND COMMENT: The City Attorney and Fire Chief have reviewed the agreement and find it satisfactory. RECOMMENDATION: Approve the resolution. ATTACHMENTS: I. Proposed Resolution II. Memorandum of Agreement – Hold Harmless PREPARED BY: Becky Schuett REVIEWED BY: PUBLIC NOTICE INFORMATION – NAME OF PUBLICATION: DATE OF PUBLICATION: J1X THE CITY OF WAUKEE, IOWA RESOLUTION 19- APPROVING MEMORANDUM OF AGREEMENT – HOLD HARMLESS RELATED TO A CONTROLLED BURN IN THE NAME AND BY THE AUTHORITY OF THE CITY OF WAUKEE, IOWA WHEREAS, the City of Waukee, Dallas County, State of Iowa, is a duly organized Municipal Organization; AND; WHEREAS, the Waukee Fire Department intends to conduct a controlled burn of an unoccupied residence located at 28351 S Avenue, Waukee, Iowa, at the request of the property owner; AND; WHEREAS, a Memorandum of Agreement – Hold Harmless related to the proposed controlled burn is attached hereto as Exhibit “A.” NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Waukee that the Memorandum of Agreement – Hold Harmless is approved and shall be in effect when executed by both parties to the agreement. Passed by the City Council of the City of Waukee, Iowa, and approved the 17th day of June, 2019. ____________________________ William F. Peard, Mayor Attest: ___________________________________ Rebecca D. Schuett, City Clerk RESULTS OF VOTE: AYE NAY ABSENT ABSTAIN Anna Bergman R. Charles Bottenberg Courtney Clarke Shelly Hughes Larry R. Lyon 1 MEMORANDUM OF AGREEMENT-HOLD HARMLESS This Memorandum of Agreement-Hold Harmless (the “Agreement”) is entered into by and between the City of Waukee (“City”) and Apple Inc., a California corporation (“Owner”) as of the date the last of these parties signs, as set forth below. Section 1. Identity of the Parties. 1.1 City has authority to enter into this Agreement and to bind the City of Waukee Fire Department (the “WFD”) to its terms and conditions. References to City in this Agreement include the WFD. 1.2 Owner owns the Premises located at 28351 S Avenue, Waukee, Iowa (the “Premises”), which will be used by City for training purposes. Section 2. Purpose. The purpose of this Agreement is to authorize the use of the Premises and building(s) located on the Premises for training purposes as determined by the WFD (collectively referred to as “Building”). The training under this Agreement permits the WFD to burn the Building on the Premises. City will be responsible for all acts and omissions of the WFD in connection with this Agreement. All training and other activities the WFD performs under this Agreement shall comply with applicable law, and the WFD will not use fire-fighting foams with per- and polyfluoroalkyl substances (PFAS) on the Premises or in the Building. The training is scheduled to be held from June 15 through June 29, 2019. City will give Owner prior written notice of the specific day(s) when training will occur. Section 3. Liability/Hold Harmless 3.1 Owner understands that the training will involve damage/destruction to the Building its components and contents as well as vegetation on the Premises. Owner further understands and agrees that City will not pay for or reimburse Owner for property damage/destruction to the Building and Premises that results from the training. Owner further waives all claims against City for any damage/destruction to the Building and Premises as a result of WFD’s use of the Building for the training described in this Agreement. City agrees that the WFD is using the Premises and the Building “as is, where is”, with no representations or warranties from Owner, and at City’s sole risk. City releases Owner from any claims, liability or expense attributable to the condition of the Premises or the Building, or activities under this Agreement. City will vacate the Premises and the Building after the training is completed, but no later than the expiration date of this Agreement. City will leave the Premises and the Building in the condition the results from the training, but with no remaining fire. City is not required to remove debris and ash, but prior to vacating the Premises or the Building City will remove from the Premises and the Building any material relating to causing a fire, and will dispose of such materials, and any hazardous substances City or the WFD brought onto the Premises or the Building, as required by applicable law. 3.2 Owner understands it is responsible for debris removal and disposal and cleanup, including foundation, septic and water system removal and grading following the controlled burn/training exercise. It shall be the Owner’s obligation to secure demolition and debris removal and otherwise secure 2 the site following the training. Owner shall arrange to complete debris removal and cleanup within 90 days after the controlled burn/training is completed, at Owner’s sole cost and expense. 3.2 City hereby agrees, to the extent allowed under the law, to defend, indemnify and hold Owner harmless from all claims, liability, expense (including attorneys’ and experts’ fees and costs), damage, judgment, cause of action or suit for personal injury, death, or damage to tangible property which may accrue against Owner by third parties, to the extent arising from City’s and the WFD’s activities under this Agreement. Section 4. Compensation. Owner will not receive any compensation for City’s use of its Building. Section 5. Termination. This Agreement will terminate on June 30, 2019. Either party may terminate this Agreement earlier at any time, by providing verbal or written notice to the other party. Section 6. Other Terms. 6.1 Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the validity or enforceability of any other part or provision of this Agreement. 6.2 Amendments. This Agreement may be amended in writing from time to time by mutual consent of the parties. All amendments to this Agreement shall be fully executed by both parties and filed accordingly. Section 7. Execution. IN WITNESS HEREOF, in consideration of the mutual covenants set forth above and for other good and valuable consideration, the receipt, adequacy and legal sufficiency of which are hereby acknowledged, the parties have entered into the above Agreement and have caused their duly authorized representatives to execute this Agreement. Each party specifically states that it has read and fully understands this document, and that this document is releasing and waiving certain potential rights. By signing this document, each party freely and voluntarily agrees to the terms and conditions as set forth herein. City of Waukee By: __________________________________ Date: June _, 2019 Name: William F. Peard Title: Mayor Apple Inc. By: ____________________________________ Date: June __, 2019 Name:__________________________________ Title:___________________________________