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HomeMy WebLinkAboutContracts & Agreements_123-2004_CCv0001.pdf ACKNOWLEDGMENT OF "AS IS" CONDITION OF EQUIPMENT DONATED BY CITY OF REDLANDS AND WAIVER, RELEASE AND INDEMNITY AGREEMENT This Agreement is made and entered into this .7th day of_§�eptembeg 2004, by and between the City of Redlands, a municipal corporation ("City") and Newberry Community Services District ("Accepting Party"). RECITALS WHEREAS,the City wishes to donate certain breathing equipment apparatus("Equipment") from City's Fire Department; and WHEREAS, Accepting Party wishes to accept said Equipment being donated to it in an "AS IS" condition; and WHEREAS, by execution of this Agreement,Accepting Party expressly agrees to accept said donated Equipment in an "AS IS" condition and "WITH ALL FAULTS" and to relieve and release the City of Redlands from any and all liability by its acceptance of the donated Equipment; NOW, THEREFORE, in consideration of the mutual promises contained herein,the City of Redlands and Newberry Springs Community Services District-agree as follows: AGREEMENT Section 1. "AS IS" Condition of Equipment. Accepting Party hereby acknowledges and agrees that the Equipment is being donated to it by the City and accepted by the Accepting Party in an "AS IS" condition and "WITH ALL FAULTS." No representations or warranties have been made or are made and no responsibility has been or is assumed by City or by any elected official, officer, person, firm, agent or representative acting or purporting to act on behalf of the City as to any matters concerning the Equipment, including, without limitation,the condition or repair of the Equipment; and the safety and use of said Equipment. Section 2. Fitness. The parties agree that all understandings and agreements regarding the fitness for purpose and use of said Equipment are set forth fully herein and are hereby waived by the Accepting Party after full investigation and being satisfied that the Equipment is being accepted "As Is" and without warranty. The Accepting Party has not relied upon a statement of representation by City and City makes no representations or warranties as to Equipment being donated to the Accepting Party. Accepting Party acknowledges that City has requested that Accepting Party inspect fully the Equipment, and investigate and rely solely on Accepting Party's own inspections or other information obtained or otherwise available to Accepting Party in deciding whether to accept said Equipment. lemltrs177 SALEOF EQt VMENT Section 3. Release. Accepting Party on behalf of itself, and its successors and assigns, waives and releases the City from any and all demands,claims, legal or administrative proceedings, losses, liabilities, damages, penalties, fines,judgments, costs or expenses whatsoever (including, without limitation, attorneys'fees and costs)either direct or indirect,known or unknown, foreseen or unforeseen. arising from or relating to the physical condition of the Equipment or any law or regulation applicable thereto with regard to the use of said Equipment and any and all actions or causes of action the Accepting Party and its employees may have for personal injury, property damage or wrongful death occurring to them arising out of or resulting to them from the Accepting Party's acceptance of said Equipment or use of said Equipment. Further, the Accepting Party does for itself, and its employees and their heirs, executors, administrators and assigns hereby release, waive, discharge and relinquish any action or causes of action, which may hereafter arise for the Accepting Party's employees and its estates, and agrees that under no circumstance will the Accepting Party or its employees,heirs,executors,administrators and assigns present any claim for personal injury,property damage or wrongful death against the City,or any of its elected officials, officers, agents or employees for any said causes of action, whether the same shall arise by the negligence of the above-said persons or otherwise. IT IS THE INTENTION OF THE ACCEPTING PARTY BY THIS INSTRUMENT TO ASSUME ALL RISKS ATTENDANT WITH ITS ACCEPTANCE OF SAID EQUIPMENT AS "AS IS" AND TO EXEMPT AND RELEASE THE CITY OF REDLANDS FROM LIABILITY FOR PERSONAL INJURY, PROPERTY DAMAGE OR WRONGFUL DEATH CAUSED BY NEGLIGENCE. Accepting Party especially waives any rights or benefits available to it with respect to the foregoing release under any provision about the law which generally provide that a general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time the release is agreed to, which, if known to such creditor, would materially affect the release. By the execution of this Letter Agreement, Accepting Party acknowledges that it fully understands the foregoing, and with this understanding, nonetheless elects to and does assume all risk for claims known or unknown, described above. The undersigned further acknowledges that it has been advised by legal counsel or has had the opportunity for legal counsel to advise them and is familiar with the provisions of California Civil Code Section 1542, which provides asfollows: 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. lem*rsU 12 SALE OF EQUIPMENT The undersigned,being aware of this code section,hereby expressly waives any rights it may have thereunder. as well as under any other statutes or common law principles of similar effect. Section 4. Defense and Indemnity. Accepting Party shall defend, indemnity and hold harmless City and its elected officials, agents and employees from and against any and all actions, claims,demands, lawsuits, losses and liability, including attorney's fees, arising frons ill y or death rl Jtir/ to persons or dainage to property that may be asserted or claimed by any person, firill, entity, corporation, p()litieal subdivision or ()the" ol-grallization arising out of, or in eontlectioll Witt) the Equipiliellt that is donated by this Agrmuietit to Ace.eptitig Party, oecasioned by ally act or n ()rllissi()ll of City or its eleeted officers, agents and elliployees. Section 5. Attompys' Fees. In the event any action is commenced to enforce or interpret any of the terms or conditions of this Agreement the prevailing party shall, in addition to any costs and other relief, be entitled to recover its reasonable attorneys' fees. Section 6. Entire Agreement. This Agreement represents the entire agreement and understanding between the parties as to the matters contained herein and any prior negotiations, proposals and oral agreements are superseded by this Agreement. Any amendment to this Agreement shall be in writing and approved by the City and Accepting Party. Section 7. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. With this understanding, Accepting Party agrees to accept said Equipment from City and acknowledges that he/she/it has read the foregoing and is fully and completely aware of its rights and liabilities as set forth in this Acknowledgment of"AS IS" Agreement and agrees to the terms of this Agreement. Date July 27, 2004 City of Redlands V 9/7/04 Ellen Johnson May r, Susan Peppltrl Date Chair,Newberry Community Services Dist. Accepting Party ATTEST: -s' Lowe Poyzer, i erk ICITIAtrsl 12 SALF OFI-QUIPMENT