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HomeMy WebLinkAboutC-9992-1 - Vehicle Use Donation AgreementMercedes-Benz USA, LLC 1 VEHICLE USE DONATION AGREEMENT THIS VEHICLE USE DONATION AGREEMENT ("Agreement") is made as of the latest date next to the signatures below, by and between Mercedes-Benz USA, LLC ("Donor") as one party and the City of Newport Beach, a California municipal corporation and charter city, acting by and through the City of Newport Beach Fire Department, as second parties (the second parties are collectively referred to herein as the "City"). WHEREAS, the City may accept gifts, donations, bequests or grants from any source for any purpose related to powers and duties of the City and the general welfare of its citizens and on such terms and conditions as donors may impose; WHEREAS, the Donor desires to provide certain Mercedes-Benz vehicle(s) (the "Vehicle(s)"), more particularly described on Exhibit A attached hereto, for use by the City's Fire Department for the purpose of conducting rescue training demonstrations (the "Purpose"); WHEREAS, the Donor desires to provide the Vehicle(s) to the City to use for the Purpose at no cost to the City; and WHEREAS, the City has determined that using the Vehicle(s) for the Purpose enhances and benefits the public welfare of its citizens by supporting fire rescue operations in the City and increasing the education and awareness of fire rescue operations and is therefore willing to accept the Vehicle(s) to be used for the Purpose, under the terms and conditions herein set forth. NOW THEREFORE, the parties agree as follows: 1. Donor shall donate use of the Vehicle(s) to the City exclusively for the Purpose (the "Donation"). 2. The City agrees and does hereby accept the Vehicle(s) for use, conditioned on the terms contained in this Agreement, including exhibits, and further agrees the Vehicle(s) shall be used by the City solely for the Purpose. 3. The City, in accepting the Donation of use of the Vehicle(s), has made no determination of the value of the Donation, and makes no representations or assurances as to the value of the Donation, for tax purposes or otherwise. 4. Donor shall transport the Vehicle(s) to the City at a mutually agreeable location. Upon delivery of the Vehicle(s) to the City, the Vehicle(s) shall not be driven on any public streets, roadways or highways in any manner. Mercedes-Benz USA, LLC 5. The City shall always maintain the Vehicle(s) and any detached parts in a secure location while the Vehicle(s) are in the possession of City and is responsible for the security of the same. 6. Title to the Vehicle(s) will remain in Donor's name, and Vehicle(s) may not be sold, transferred or loaned to any other parties without the prior written authorization of Donor, in its sole discretion. 7. City shall use the Vehicle(s) solely for the Purposes. It is contemplated that the Purpose shall include but is not limited to destruction of the Vehicle(s) whether by fire or other means and that other persons such as instructors, fire fighters, and rescue personnel. 8. No components(s) from the Vehicle(s) will be used as replacement component(s) or part(s) on any vehicle that is driven. 9. City agrees and acknowledges that it shall comply with any and all Federal, State and/or local laws, regulations and safety guidelines with regard to its possession, use and disposal of the Vehicle(s) and components at all times. 10. The City, for and in consideration of the Donation of use of the Vehicle(s), the adequacy of which is hereby acknowledged, herewith releases any and all claims and causes of action in law or in equity, or arising under any local, State and/or Federal laws, which the City may currently have or have in the future against Donor, its parent, affiliates, subsidiaries, officers, directors, employees, agents and representatives, with respect to the Vehicle(s). 11. City acknowledges and agrees that using the Vehicle(s) for training/demonstration events may involve dangerous activities, including without limitation the risk of electric vehicle battery fires, and shall conduct such events in a safe manner in accordance with all applicable laws and regulations. City further agrees to indemnify, hold harmless and defend Donor and its parent, affiliates, subsidiaries, directors, officers, and employees from and against any and all liability, loss, damage, cost and expense that Donor may suffer as a result of any claims, suits, demands, actions, causes of action, penalties, expenses, or costs, whether foreseen or unforeseen, including reasonable attorneys' fees, that may be made or had against Donor by way of (a) any negligence, reckless acts and/or intentional or willful misconduct by the City, its employees, agents, directors, officers, servants and representatives, in connection with its performance under this Agreement; (b) the City's use, possession and/or disposal of the Vehicle(s), including any damages or personal injuries that may be suffered by any persons attending or participating in the City's use, possession and disposal of the Vehicle(s). City agrees to defend, indemnify and hold harmless Donor regardless of whether such actions allegedly result from a manufacturing or design defect, the sole, joint or concurrent negligence, gross negligence or intentional conduct of Donor or any affiliated entity or person, or from breach of contract, breach of warranty, deceptive trade practices, or any other known and unknown cause of action which 0A Mercedes-Benz USA, LLC may now exist or which may be legally created in the future. This obligation by City to indemnify and defend Donor shall survive the termination of this Agreement. 12. City acknowledges and agrees that it has sufficient insurance or self-insurance coverage in place to meet its obligations to the Donor pursuant to this Agreement. 13. The City acknowledges and agrees that the Vehicle(s) may be a "pre -production" vehicle and as such may not fully comply with local, state, or federal emissions or safety regulations and may not be operated on any roads, public or private. 14. City shall not nor permit any third party, under any circumstances, to reverse engineer the Vehicle(s), or any of its systems, sub -systems or components, while the Vehicle(s) are in City's possession. As such, City shall not, under any circumstances, use, disseminate, disclose, compile, store, reproduce, sell and/or publish any technical, proprietary and/or confidential information or trade secrets regarding the Vehicle(s), the Vehicle(s)'s technical and mechanical properties and functions, as well as how the Vehicle(s) are manufactured and/or engineered. 15. The City agrees and acknowledges that when the Vehicle(s) is no longer usable for the Purpose, City is solely responsible for disposing of the Vehicle(s) and all components in accordance with all applicable Federal, State and/or Local laws. City further agrees and acknowledges that it shall bear the entire cost associated with properly disposing of the Vehicle(s) and all components, excluding any costs arising out of or related to transfer of title or vehicle registration, if any. 16. The City will destroy by crushing or arrange for the destruction or crushing of the Vehicle(s) and any component thereof by a third parry at such time as the Vehicle(s) no longer can be nor will be used for the Purpose. The City shall provide Donor with photographs that clearly illustrate the destruction of the Vehicle(s) and or components within two (2) weeks after the Vehicle(s) or component is destroyed. The obligation to provide such photographs applies in each instance in which the Vehicle(s) or a component is destroyed by the City. Notwithstanding the foregoing, the airbag module on the Vehicle will be disposed of according to the procedures outlined in the passive restraint systems supplement to the applicable Vehicle(s)'s service manual provided by Donor to City in connection with signature of this Agreement. 17. City agrees and acknowledges that it accepts the Donation of the use of the Vehicle(s) and components from Donor in their current "as is" condition with all known and unknown faults and deficiencies. Donor makes no promises, guarantees and or warranties of any kind, express or implied, statutory or otherwise, as to the Vehicle(s) or any of its components, including without limitation its condition, quality, utility, functionality and or safety, and to the fullest extent allowed under the law expressly disclaims warranties of merchantability and fitness for any particular purpose. 3 Mercedes-Benz USA, LLC 18. The City recognizes that the words "Mercedes-Benz" and the Three -Pointed Star within a circle are registered trademarks and tradenames of Mercedes-Benz Group Aktiengesellschaft, hereafter referred to as "MBAG", and such trademarks and trade names together with others are exclusively owned by MBAG. There shall be no use of the tradenames "Mercedes-Benz" or "Mercedes" or the Three -Pointed Star trademark except in connection with the tradenames on the Vehicle(s). Prior written consent of Donor must be obtained for any other purpose. 19. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture between the Donor and City. Neither party shall have the right to obligate or bind the other in any manner whatsoever. Nothing herein contained shall give or is intended to give any such rights of any kind to any third party. 20. The parties agree to comply with all applicable laws and regulations in the performance of their respective obligations as set forth herein. This Agreement shall be interpreted and construed in accordance with the laws of Georgia, excluding its conflict of law's provisions. Any disputes arising in connection with this Agreement shall be subject to the jurisdiction and venue of the state and federal courts of Fulton County, Georgia. 21. This Agreement shall have no force or effect until signed by an authorized representative of both the Donor and the City and shall upon full execution constitute the entire understanding between the Donor and the City with respect to the subject matter of this Agreement and shall supersede all prior agreements. Any modifications to this Agreement must be in writing and signed by a duly authorized representative of each party. 22. If any provision of this Agreement is declared illegal, void or unenforceable, the remaining provisions shall continue in full force and effect. 23. Any notice or other communication required or permitted hereunder shall be in writing, including email, and shall be deemed to have been given if placed in the United States mail, registered or certified, postage prepaid, or electronically transmitted, addressed as follows: If to the City: City of Newport Beach, California Newport Beach Fire Department Chad Spiker 100 Civic Center Dr. Newport Beach, CA 92660 If to Donor: Mercedes-Benz USA, LLC Attn: Tiffany Hughes One Mercedes-Benz Drive Sandy Springs, Georgia 30328 With copy to: Newport Beach Fire Department Justin Carr 100 Civic Center Dr. Newport Beach, CA 92660 With copy to: Mercedes-Benz USA, LLC Attn: General Counsel One Mercedes-Benz Drive Sandy Springs, Georgia 30328 4 Mercedes-Benz USA, LLC 24. Donor hereby acknowledges and agrees that the Vehicle(s) may be destroyed in execution of the Purpose and hereby agrees to hold the City harmless for any destruction or damage to the Vehicles, which destruction Donor understands is consistent with the Purpose. After the completion of the Purpose, the Vehicle(s) and any and all removed parts shall be removed by the City. The City shall be responsible for the final scrapping of the Vehicle(s) and for following all applicable laws regarding the same. 25. No waiver by either parry of any failure of the other party to keep or perform any undertaking or condition of this Agreement shall be deemed to be a modification of this Agreement or be a waiver of any preceding or subsequent breach of the same or any other undertaking or condition. 26. Neither party may assign this Agreement or any rights hereunder without the prior written consent of the other parry. 27. Donor makes no promises, guarantees and or warranties of any kind, express or implied, statutory or otherwise, as to the Vehicle(s) or any of its components, including without limitation its condition, quality, utility, functionality and or safety, and to the fullest extent allowed under the law expressly disclaims warranties of merchantability and fitness for any particular purpose. 28. City acknowledges and understands that Donor will be immediately and irreparably harmed if City uses the Vehicle(s) for purposes other than the Purpose, sell the Vehicle(s) or any of its components, systems or subsystems or reverse engineer the Vehicle(s) or any of its components, systems or subsystems. City further understands and acknowledges that such actions by City shall constitute a material breach of this Agreement and shall cause Donor to suffer damages for which it cannot be compensated monetarily and for which there is no adequate remedy at law. Accordingly, City agrees that, in addition to any available monetary relief, Donor will be entitled, without the posting of a bond or the necessity of proving actual damages, to injunctive relief against City upon making an adequate showing of a breach or threatened breach by City of this Agreement. 29. To the greatest extent permitted by applicable law, City agrees to (i) treat all information provided by Donor and or any of its affiliated entities or persons in connection with this Agreement, and including without limitation the existence and terms of this Agreement, as confidential and or proprietary information constituting data, records, or information of a proprietary nature, (ii) not to use any such information except for the purposes of this Agreement, and (iii) not to disclose any of such information to any third parry without Donor's prior written approval. Nothing contained in this section shall prohibit the City from disclosing information or this Agreement as required by applicable law. Mercedes-Benz USA, LLC 30. City hereby agrees that it will not take any of the following actions with respect to this Agreement or the Donation, possession or use of the Vehicle(s) hereby without first obtaining express written consent from Donor's business department contact, including but not limited to the following: 1) issuing a press release; 2) providing written or verbal commentary to the media; 3) making an external speech or taking other publicity -related activities including postings on any public forum relating to or which mentions Donor or the Donation provided for hereunder. In addition, City hereby agrees that it will refer any inquiries from the media concerning the Donation and the Agreement to Donor's corporate communications department for review and coordination prior to City making a response to such inquiry. Nothing contained in this section shall prohibit the City from disclosing information as required by applicable open records law, or in response to a court order or as required by any other applicable local, state or federal law. It is expressly understood that City represents and warrants to Donor that the City's signatories have read and understand this Agreement and are duly authorized to enter into this Agreement on the City's behalf. (Signatures on following page) 6 Mercedes-Benz USA, LLC IN WITNESS WHEREOF, the parties hereto, acting through their duly authorized agents, have signed this Agreement as of the dates below. CITY: City of Newport Beach, California Date: _ la % I Zo Z S By: Name race K. Leung Title: City Manager Attest: Date: �D a2 3 O`LDo2� By: Lena Shumway City Clerk Approved as to form: Date: Icy /DS A<_ By: N Aaron Harp Title: City Attorney DONOR: Mercedes-Benz USA, LLC By: Name: Tiffany Hughes Title: Customer Retention, LLBB Inventory Analyst Date: 11 /12/2025 7 EXHIBIT A Vehicle Identification Number(s): VIN W1KWJ8GB6MG094269 Mercedes-Benz USA, LLC