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HomeMy WebLinkAboutGilroy Historical Society (Fire Engine 1923 Seagrave) - Agreement for Transfer and Use of Historic Fire EngineAGREEMENT FOR TRANSFER AND USE OF HISTORIC FIRE ENGINE This Agreement, by and between the GILROY HISTORICAL SOCIETY, a non -profit public benefit corporation (hereinafter "Society ") and the CITY OF GILROY, a California municipal corporation (hereinafter "City ") is made in Gilroy, California, and is effective as of the date set forth below (the 'Effective Date "). REMAIN A. Society is the owner of that certain 1923 Seagrave Fire Engine, vehicle number 142635, California License Plate Number HC7847 (the "Vehicle "); B. Society desires to transfer ownership, and City desires to acquire ownership, of the Vehicle; C. The parties desire that Society will retain an ability to use the Vehicle from time to time for displays or parades; D. The parties also desire that if City should, during the term of this Agreement, find itself unable to maintain the Vehicle, the City shall offer the Vehicle to Society before disposing of it. AGREEMENT NOW, THEREFORE, the parties hereto agree as follows: 1. Transfer of Vehicle. For good and valuable compensation, the sufficiency of which is hereby agreed, Society hereby transfers and City hereby accepts ownership of the Vehicle subject to the terms set forth herein. Society shall, concurrently with the execution of this Agreement, complete and execute a bill of sale to the City ('Bill of Sale') which Bill of Sale is substantially similar to that attached hereto as Exhibit "A" 2. Condition of Vehicle. City has had the opportunity to inspect the Vehicle and Society and City acknowledge that the City's acquisition of the Vehicle reflects adequate compensation therefor. City is purchasing the Vehicle "as is" with no guarantees related to functionality or potential uses of the Vehicle. 3. Restoration/Storage/Rijzht to Reacquire. For the term of this agreement, City agrees to continue the ongoing efforts, begun prior to the Effective Date, to restore and maintain the Vehicle. Such restoration activities maybe completed using volunteered time and donated funding. Nothing herein shall be deemed to require City to use City fiords for such restoration. City shall have ongoing responsibility to store the Vehicle. In the event that City can no longer maintain, restore or properly store the Vehicle, City shall offer to transfer ownership of said Vehicle back to Society. In the event that Society does not wish to reacquire the Vehicle or does not respond to such offer from City within thirty (30) days, this Agreement shall terminate and the C it y may maintain or dispose of the Vehicle in its discretion. \VPAPP \724151.1 Page 1 of 4 042407 - 04706096 AGREEMENT FOR TRANSFER AND USE OF HISTORIC FIRE ENGINE 4. Operation and Use. Day to day operation and use of the Vehicle shall be determined by the Gilroy Fire Department. City shall permit Society to use the Vehicle for occasional events related to displaying the vehicle (e.g. parades or historical exhibits). City, in its discretion, may require that any drivers of the vehicle to be City employees. Society agrees that it shall give City reasonable notice of such events, but no fewer than thirty (30) days prior to an event, and City shall make a good faith effort to make the Vehicle available to Society therefor. Such notice shall be in writing unless otherwise indicated by City. Society shall indemnify, defend with counsel of City's choice and hold the City free and harmless from all suits, fees, claims, demands, causes of action, costs, losses, damages, liabilities and expenses (including without limitation attomeys' fees) incurred by City in connection with injury including death to persons or damage to property suffered through any act or omission, including passive negligence or active negligence, or both, of the Society, its employees, agents, contractors, subcontractors, or any one directly or indirectly employed or authorized by Society to use the Vehicle, or arising in any way from the use of the Vehicle pursuant to this Agreement. 5. Term. The term of this Agreement shall commence on the Effective Date and extend for a period of fifty (50) years, unless otherwise earlier terminated pursuant to the terms set forth herein. 6. Risk of Loss. In the event the Vehicle is involved in an accident or, for some mechanical reason, becomes permanently inoperable at any time during the term of this Agreement, either party may elect to terminate this Agreement. In the event of such accident, if City elects to terminate this Agreement, it shall offer to transfer ownership of the Vehicle back to Society, prior to disposing of the Vehicle. In the event the Vehicle is damaged or becomes involved in an accident while in physical possession of either party, such party agrees to use all available insurance coverage to cover the loss and restore the Vehicle. If such insurance will not otherwise cover the cost of restoration, this Agreement may be terminated as further set forth in the preceding paragraph. Neither party shall bear any responsibility to the other for damage to the Vehicle to the extent not covered by insurance, whether or not damage to the Vehicle was caused by the negligence of the party in possession of the vehicle at the time said damage was incurred. 7. Notices. Any notice or communication required hereunder between City or Society shall be in writing, and may be given either personally, by fax (with immediate follow up by first class mail) or by first class mail, return receipt requested. Notice, whether given by fax, mail or personal delivery, shall be deemed to have been given and received on the actual receipt by any of the addresses designated below as the party to whom notices are to be sent. Any party hereto may at any tine, upon written notice to the other party hereto, designate any other address in substitution of the address to which such notice or communication shall be given or method of service by which delivery may be made. Such notices or communications shall be given to the parties at their addresses set forth below: \VPAPP \724151.1 Page 2 of 4 042407 - 04706096 AGREEMENT FOR TRANSFER AND USE OF HISTORIC FIRE ENGINE To the CITY: City of Gilroy: Fire Department 7070 Chestnut St Gilroy, CA 95020 Attention: Fire Chief To Society: Gilroy Historical Society P.O. Box 1621 Gilroy, CA 95021 -1621 Attn: President 8. Complete Agreement. Except as may otherwise be explicitly set forth herein, this Agreement constitutes the final, complete, and exclusive statement of the terms hereof between and among the City and Society related to the subject matter set forth herein. Neither party is relying on any representation or warranty outside those expressly set forth or referenced in this Agreement. Any and all amendments to this Agreement must be in writing and executed by both parties. 9. Interpretation. The parties hereto acknowledge and agree that, although this Agreement has been drafted by City's legal counsel, Society and/or its legal counsel have reviewed, or had an opportunity to review, the terms hereof. Consequently, the doctrine that ambiguities in an agreement should be resolved against the drafting party shall not be employed in connection with this Agreement and this Agreement shall be interpreted in accordance with its fair meaning. 10. No Third -Party Beneficiaries. No person or entity, other than Society and City and their permitted successors and assigns, shall have any right of action under this Agreement. 11. Amendments. Amendments to this Agreement shall be effective only upon the mutual agreement in writing of the parties hereto. No amendment shall be binding upon City unless duly executed by the City Administrator or his or her designee. 12. Partial Invalidity. If any term, provision or condition contained in this Agreement shall, to any extent, be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, and each and every other term, provision and condition of this Agreement shall be valid and enforceable to the fullest extent possible permitted by law. 13. Assignment. Notwithstanding any other provision of this Agreement, Society may not assign its rights under this Agreement without the prior written consent of City. 14. Governing This Agreement will be governed by and construed in accordance with the laws of the State of California. Signatures of parties on following page. \VPAPP \724151.1 Page 3 of 4 042407 - 04706096 AGREEMENT FOR TRANSFER AND USE OF HISTORIC FUZE ENGINE IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the dates set forth below. Dated: May 7, 2008 CIT ILROY, a Municipal Corporation By: Name: Tom Haglund Title: City Administrator AT4E�T By: . Name: a a Freels Title: City Clerk APPR VED AS TO FORM: By: ( Cp � Name: Linda A. Callon Title: City Attorney GILROY HISTORICAL SOCIETY Dated: May 7, 2008 By: Q--j� ) L" N : Connie Rogers Title: President Dated: May 7, 2008 By: Name: Roberta Hugha Title: Vice President \VPAPP \724151.1 Page 4 of 4 042407 - 04706096