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
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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:___________________________________