GENERAL EQUIPMENT LOAN AGREEMENT <INSERT NAME OF BORROWER> This Equipment Loan Agreement ( “AGREEMENT”) is made and entered into this ______ day of _________________, 20____ (“EFFECTIVE DATE”), by and between the CITY OF RIVERSIDE, a California charter city and municipal corporation (“LENDER”), and _____________________________________________ (“BORROWER”). Individually, LENDER or BORROWER may be referred to as a “PARTY” and collectively LENDER and BORROWER may be referred to as the “PARTIES”. RECITALS WHEREAS, the LENDER has authorized the purchase of equipment and systems funded by the Urban Area Security Initiative (“UASI”) Grants; and WHEREAS, the UASI Grant provides that all equipment, supplies and training funded through the UASI Grant is for the mutual benefit of the member Cities and/or agencies in the Riverside UASI Region and not for the exclusive benefit of the LENDER or other member Cities and/or agencies; and WHEREAS, the BORROWER is a local public safety and governmental agency within the Riverside UASI Region that is contemplated in Grants; and WHEREAS, the BORROWER has expressed a need to utilize equipment that was purchased by LENDER using UASI Grant Funds; and WHEREAS, LENDER and BORROWER desire to contract for shared use of the equipment and desire to set forth their rights, duties, and liabilities in connection with their performance. AGREEMENT NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the PARTIES hereby agree as follows: 1. LOAN OF THE EQUIPMENT. 1.1 BORROWER understands and agrees that it shall be deemed a Participating Agency under the terms and conditions of the regional Training and Equipment Memorandum of Understanding, dated _________________, 20____ between the City of Riverside, Office of Emergency Management and BORROWER regarding
Urban Area Security Initiative (UASI) Grant Funding (“MOU”), attached hereto as Exhibit A and incorporated herein by this reference. All terms of the MOU shall apply to BORROWER during the loan and use of the Equipment. 1.2 LENDER agrees to loan the BORROWER the following equipment listed in Exhibit B, attached and incorporated herein by this reference (“Equipment”), when the Equipment is reasonably available and not currently being used by the LENDER or another UASI member or Participating Agency. 2. TERM. The AGREEMENT’S initial term (“TERM”) shall commence on the date that all parties fully execute the AGREEMENT (“EFFECTIVE DATE”) and shall continue for one (1) year or until the expiration of the MOU referenced above, or the agreement is terminated by either PARTY in accordance with Section 28 or any other provision of this AGREEMENT. 3. REQUESTS TO USE AND RETURN OF EQUIPMENT. 3.1 BORROWER agrees to provide the LENDER with as much reasonable advance notice as possible when it intends to request use of the Equipment. 3.2 BORROWER acknowledges that LENDER may deny BORROWER’s request to utilize the Equipment if the LENDER has a prescheduled event or operation for which the LENDER plans to utilize the Equipment, or the Equipment is already on loan to another UASI member or Participating Agency. 3.3 When not being utilized for public safety activities of the BORROWER, the BORROWER shall immediately return the Equipment to the LENDER at the location where the Equipment was delivered to the BORROWER. Upon mutual agreement by the PARTIES, BORROWER may return the Equipment to a location that is different from the location where the Equipment was delivered to the BORROWER. 3.4 The BORROWER agrees that it will, upon return of the Equipment to the LENDER during the term and normal course and scope of this AGREEMENT and/or final termination of this AGREEMENT, return the Equipment in as good condition and repair as the Equipment existed on the last date the BORROWER accepted receipt of the Equipment; reasonable wear and tear excepted. 3.5 BORROWER acknowledges that LENDER may enter into agreements with other BORROWERS according to the terms of the MOU for Equipment Loan
Agreements that may result in the Equipment being unavailable to the BORROWER at the BORROWER’s requested time. 4. RESTRICTED USES. BORROWER shall use the Equipment during the TERM exclusively for the operation of public safety activities in compliance with the MOU and all federal, state, and local laws. BORROWER understands and agrees that the Equipment shall not be utilized for any operation or activity that is not contemplated in the MOU or that is not directly related to the public safety duties and responsibilities of the BORROWER. 5. TRAINING AND SUITABILITY OF USE. 5.1 Prior to receipt of the Equipment by the BORROWER, the LENDER shall provide BORROWER’s designated personnel with general training regarding proper and safe use of the Equipment. BORROWER represents and agrees that no personnel employed or under the supervision of the BORROWER shall be permitted to operate or utilize the Equipment until they have received appropriate and necessary training in the use of said Equipment. 5.2 LENDER has made no representation regarding the suitability of the Equipment for any particular purpose, including BORROWER’s intended use of the Equipment, and the BORROWER has not relied upon any representation of the LENDER with regards to the suitability of the Equipment for any particular purpose, including BORROWER’s intended use of the Equipment. BORROWER understands that BORROWER’s intended use of the Equipment may necessitate additional training to ensure compliance with statutes, regulations, ordinances, and other laws regarding the operation of the Equipment. Any such additional training or shall be obtained by the BORROWER at the BORROWER’s sole expense. 6. INSPECTION – NOTICE OF INCIDENT. 6.1 BORROWER shall, at its sole expense, perform such inspections as are necessary to ensure that the Equipment is in good repair and safe condition as of the time the equipment is delivered to BORROWER. 6.2 BORROWER shall, at its sole expense, perform such inspection as is necessary to ensure that the Equipment is in good repair and safe condition as of the time the Equipment is returned to the LENDER. Before returning the Equipment to LENDER, the BORROWER shall notify LENDER in writing of any incident
resulting in injury to any person(s) and/or damage to any part/piece of the Equipment. 7. ALTERATIONS. BORROWER shall not modify or alter the Equipment without the prior written consent of LENDER. In the event that modifications or alterations are made to the Equipment in accordance with this AGREEMENT, upon termination of this AGREEMENT, BORROWER shall remove said modifications and alterations at its own expense and leave the Equipment in the same condition it was at the time such modifications and alternations were made, unless the PARTIES mutually agree to maintain the modifications and alternations to the Equipment. 8. OPERATING COST – FUEL REIMBURSEMENT. 8.1 BORROWER shall be responsible for returning the Equipment to the LENDER with a substantially similar amount of fuel as was provided when the BORROWER received the Equipment from the LENDER. For purposes of this agreement, substantially similar shall be determined by comparing the use log fuel indication on the date of delivery to the BORROWER with the actual amount of fuel present in the Equipment on the date it is returned to the LENDER. 8.2 In the event that any circumstance or situation prevents the BORROWER from refueling the Equipment prior to returning the Equipment to the LENDER, BORROWER agrees to pay to the LENDER the dollar amount/cost deemed necessary by the LENDER to re-fuel the Equipment to the substantially similar amount present in the Equipment at the time the BORROWER received the Equipment. Invoices for payment of fuel costs shall be paid to the LENDER within thirty (30) days of mailing by the LENDER to the BORROWER. 8.3 The LENDER shall not be responsible to reimburse BORROWER for any fuel remaining in the Equipment that may be in excess of the amount indicated in the use log on the date of delivery to the BORROWER. 9. INDEMNIFICATION / HOLD HARMLESS. BORROWER agrees to and shall indemnify and hold the LENDER, its elected officials, employees, agents, or representatives, free and harmless from all claims, actions, damages and liabilities of any kind and nature arising from bodily injury, including death, or property damage, based or asserted upon any actual or alleged act or omission of BORROWER, its employees, agents, or subcontractors, arising, relating to, or in any way connected with the use of the
Equipment and performance under this AGREEMENT, unless the bodily injury or property damage was actually caused by the sole negligence of the LENDER, its elected officials, employees, agents or representatives. As part of the foregoing indemnity, BORROWER agrees to protect and defend at its own expense, including attorney’s fees, the LENDER, its elected officials, employees, agents or representatives from any and all legal actions based upon such actual or alleged acts or omissions. BORROWER hereby waives any and all rights to any types of express or implied indemnity against the LENDER, its elected officials, employees, agents or representatives, with respect to third party claims against the BORROWER relating to or in any way connected with the use of the Equipment under this loan AGREEMENT. 10. INSURANCE – CERTIFICATES. 10.1 LENDER is a self-insured public entity for the purposes of professional liability, general liability, and workers’ compensation. 10.2 BORROWER is a self-insured public entity at levels commensurate with LENDER’s self-insurance program for the purposes of professional liability, general liability, and workers’ compensation. Prior to receipt of the Equipment, BORROWER shall provide to the LENDER a copy of BORROWER’s certificate of self-insurance. In the event BORROWER has separate insurance policies for professional liability, general liability, and workers’ compensation at levels commensurate with LENDER’s self-insurance program, BORROWER shall provide a copy of those insurance certificates to the LENDER prior to receipt of the Equipment. No Equipment shall be lent until such proof of insurance is provided. 11. DAMAGE, DESTRUCTION, THEFT OF EQUIPMENT. 11.1 During the term(s) of this AGREEMENT, if any casualty, other than resulting from LENDER’s use of the Equipment, renders a portion of the Equipment unusable for the purpose intended, then BORROWER shall, at BORROWER’s sole expense, restore the Equipment and repair any damages caused by such casualty as soon as reasonably possible and this AGREEMENT shall continue in full force and effect. 11.2 BORROWER agrees to repair or replace any/all Equipment if lost, stolen, or damaged beyond repair while in the possession of BORROWER. BORROWER also understands and agrees that the lost, stolen, or damaged Equipment shall be replaced with that of like kind or capability, as determined by the PARTIES, and at the BORROWER’s sole expense.
12. BORROWER’S DEFAULT. The occurrence of the following event(s) shall constitute a default and breach of this AGREEMENT by BORROWER: 12.1 The failure of BORROWER to perform any material provisions of this AGREEMENT to be performed by BORROWER, including but not limited to the repair or replacement of lost, stolen, or damaged Equipment in the possession of the BORROWER, upon written notice by LENDER to BORROWER. 13. LENDER’S REMEDIES ON BORROWER’S DEFAULT. The remedies contained herein are in addition to, and not in lieu of, any other remedies available to LENDER under relevant state or federal law. 13.1 In the event of any default by BORROWER, which is not cured by BORROWER, LENDER may, at its election, pursue any and all methods/process(es) available by law to enforce the terms of this AGREEMENT. 13.2 On termination of this AGREEMENT for default pursuant to this section, LENDER shall have the right to recover from BORROWER all amounts for any and all damages, which may be the direct or indirect result of such default, including, but not limited to: 13.2.1 Any amount necessary to compensate the LENDER for all detriment proximately caused by BORROWER’s default which LENDER proves could not have been reasonably avoided. 14. NOTICES. Any notices, documents, correspondence, or other communication concerning this AGREEMENT or the services provided hereunder may be provided by personal delivery or U.S. Mail. If personally delivered the notice shall be deemed delivered at the time of the personal delivery. If sent by U.S. Mail the notice shall be deemed delivered forty-eight (48) hours after deposit in the U.S. Mail as reflected by the official U.S. postmark. TO THE LENDER: City of Riverside 3900 Main St. Riverside, CA 92501 TO THE BORROWER: _____________________________ _____________________________ _____________________________
Either PARTY may change the address for delivery of notices by sending notice of the change to the other PARTY in conformity with this Section. 15. ASSIGNMENT. BORROWER shall not voluntarily or by operation of law assign, transfer or encumber all or any part of the BORROWER’s interest in this AGREEMENT without LENDER’s prior written consent. Any attempted assignment, transfer or encumbrance shall be void and shall constitute a breach of this AGREEMENT and cause for the termination of this AGREEMENT. Regardless of LENDER’s consent, no subletting or assignment shall release BORROWER of BORROWER’s obligation to perform all other obligations to be performed by BORROWER hereunder for the term of this AGREEMENT. 16. ENTIRE AGREEMENT. This AGREEMENT constitutes the entire agreement and the understanding between the PARTIES, and supersedes any prior agreements and understandings relating to the subject matter of this AGREEMENT. 17. REMEDIES; WAIVER. All remedies available to either PARTY for one or more breaches by the other PARTY are and shall be deemed cumulative and may be exercised separately or concurrently without waiver of any other remedies. The delay or failure of either PARTY to require performance or compliance of the other of any of its obligations under this AGREEMENT shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this AGREEMENT shall be effective unless made in writing and signed by a duly authorized representative of the PARTY against whom it is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of such right or remedy with respect to any future occurrences or events and shall not be deemed a continuing waiver. 18. AMENDMENT. No amendment(s) to this AGREEMENT shall be effective unless it is in writing and signed by both PARTIES.
19. SUCCESSORS AND ASSIGNS. This AGREEMENT shall be binding on and inure to the benefit of the PARTIES to this AGREEMENT and their respective heirs, representatives, successors, and assigns. 20. SEVERABILITY. If any provision of this AGREEMENT is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this AGREEMENT shall remain in full force and effect. 21. TIME OF ESSENCE. Time is of the essence of each provision of this AGREEMENT which specifies a time within which performance is to occur. In the absence of any specific time for performance, performance may be made within a reasonable time. 22. PROVISIONS ARE COVENANTS AND CONDITIONS. All provisions, whether covenants or conditions, on the part of either PARTY shall be deemed both covenants and conditions. 23. CONSENT. Whenever consent or approval of either PARTY is required that PARTY shall not unreasonably withhold, condition, or delay such consent or approval, unless the provision providing for such consent or approval specifically provides such consent or approval may be given in the PARTY’s discretion. 24. EXHIBITS. All exhibits referred to are attached to this AGREEMENT and incorporated by reference. 25. CHOICE OF LAW. This AGREEMENT shall be governed and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws.
26. VENUE. The parties hereto agree that all actions or proceedings arising in connection with this AGREEMENT shall be tried and litigated either in the Superior Court of the State of California for the County of Riverside or the United States District Court for the Central District of California, Riverside Division. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 27. ATTORNEY’S FEES AND COSTS. In the event that litigation is brought by any PARTY in connection with this AGREEMENT, each party shall bear their own attorneys’ fees and costs. 28. RIGHT TO TERMINATE. This AGREEMENT may be terminated at any time by thirty (30) days written notice by either PARTY, or for material breach of this AGREEMENT. 29. HEADINGS. The subject headings of the sections of this AGREEMENT are included for the purposes of convenience only and shall not affect the construction or the interpretation of any of its provisions. 30. SURVIVAL. The obligations of the PARTIES that, by their nature, continue beyond the term of the AGREEMENT, will survive the termination of the AGREEMENT. 31. PUBLIC RECORDS DISCLOSURE. All information received by LENDER concerning this AGREEMENT, including the AGREEMENT itself, may be treated as public information subject to disclosure under the provisions of the California Public Records Act, Government Code § 7920.000 et seq. (the “Public Records Act”). The PARTIES understand that although all materials received in connection with this AGREEMENT are intended for the exclusive use of the PARTIES, they are potentially subject to disclosure under the provisions of the Public Records Act.
32. CONDITION OF EQUIPMENT. The LENDER shall take reasonable efforts to deliver the Equipment to BORROWER clean and free of debris, but makes no warranty as to the condition of the Equipment at the time of delivery or the Equipment’s suitability for a particular use. BORROWER agrees that it has not relied upon any representation by LENDER as to the condition of the Equipment or the Equipment’s suitability for a particular use when determining whether to enter into this AGREEMENT or utilize the Equipment pursuant to the terms of this AGREEMENT. 33. MATERIAL REPRESENTATION. If during the course of the administration of this AGREEMENT, a PARTY determines that the other PARTY has made a material misstatement or misrepresentation or that materially inaccurate information has been provided to the PARTY, this AGREEMENT may be immediately terminated. If this AGREEMENT is terminated according to this section, the terminating PARTY is entitled to pursue any available legal remedies. 34. INTERPRETATIONS. The PARTIES have participated jointly in the negotiation and drafting of this AGREEMENT. In the event an ambiguity or question of intent or interpretation arises with respect to this AGREEMENT, this AGREEMENT shall be construed as if drafted jointly by the PARTIES and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any Party by virtue of authorship of any of the provisions of this AGREEMENT. 35. COUNTERPARTS. This AGREEMENT may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the PARTY executing (or on whose behalf such signature is execute) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof. 36. CORPORATE AUTHORITY. Each person executing this AGREEMENT on behalf of the PARTIES hereto warrant that they are duly authorized to execute this AGREEMENT on behalf of said PARTIES and that by doing so, the PARTIES hereto are formally bound to the provisions of this AGREEMENT.
37. ORDER OF PRECEDENCE. In the event of any inconsistency or conflict in this AGREEMENT and any of the attached Exhibits or Attachments, the terms set forth in this AGREEMENT shall prevail. 38. FORCE MAJEURE. A PARTY shall not be liable for any failure or delay in the performance of this AGREEMENT for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, governmental orders or any other force majeure event. 39. COMPLIANCE WITH LAW. BORROWER agrees to abide by all federal, state, and local laws, ordinances and regulations, including, but not limited to, the acquisition of any necessary permits for alterations made to the Equipment. 40. NON-DISCRIMINATION. In the performance of this AGREEMENT, use of the Equipment, and in the hiring and recruitment of employees, BORROWER shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law. 41. DIGITAL AND COUNTERPART SIGNATURES. Each Party intends and agrees to the use of digital signatures that meet the requirements of the California Uniform Electronic Transactions Act (Civil Code §§ 1633.1, et seq.), California Government Code § 16.5, and California Code of Regulations Title 2 Division 7 Chapter 10, to execute this Agreement. The parties further agree that the digital signatures of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures for purposes of validity, enforceability, and admissibility. For purposes of this section, a “digital signature” is defined in subdivision (d) of Section 16.5 of the Government Code and is a type of “electronic signature” as defined in subdivision (h) of Section 1633.2 of the Civil Code. This Agreement may be executed in any number of counterparts, each of which will be an original, but all of which together will constitute one instrument. Each certified or authenticated electronic copy of an encrypted digital signature shall be deemed a duplicate original, constituting one and the same instrument and shall be binding on the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed on the day and year first above written.LENDER: CITY OF RIVERSIDE, a California and municipal corporation By: __________________________ City Manager Attest: __________________________ City Clerk Certified as to Availability of Funds: By: ____________________________ Chief Financial Officer APPROVED AS TO FORM: By: _______________________________ Deputy City Attorney BORROWER: <INSERT NAME OF BORROWER> By: ________________________ Title: _______________________
EXHIBIT A
EXHIBIT A [NAME OF MOU]
EXHIBIT B
EXHIBIT B [LIST OF EQUIPMENT]