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HomeMy WebLinkAboutMITSUBISHI MOTORS NORTH AMERICA, INC. 1 - 2011INSURAiVCt [VOI REQUIRED YYQRK MAY PROCEED CLERK OF COUNCIL DATEa 1i11AR 2 2 201 N-2011-026 O •• F M S ? I? VEHICLE EVALUATION AGREEMENT W ;1l`i o? m GY?2??rr? NQ?JG,C? THIS AGREEMENT is made this ? day o£xary, 2011, b? and between MITSUBISHI MOTORS NORTH AMERICA, INC., a California corporation ("MMNA"), located at 6400 Katella Avenue, Cypress, California 90630- and The City of Santa Ana, a charter City ("Company"), located at 20 Civic Center Plaza, Santa Ana, CA, with reference to the following facts: WHEREAS, MMNA is in the business of importing, manufacturing and distributing in the United States Mitsubishi brand motor Vehicles and desires to provide to Company the Mitsubishi i-MiEV electric vehicle for use by Company for evaluation purposes; and WHEREAS, Company desires to obtain such Vehicle from MMNA to use for such purposes; NOW, THEREFORE, in consideration of the mutual covenants and on the basis of the representations and warranties herein set forth, the parties hereto agree as follows: 1. Vehicle, Delivery and Vehicle Use Term. MMNA shall Loan to Company the Mitsubishi i-MiEV vehicle ("Vehicle") to be used by Company for.the purposes set forth above in accordance with the terms and conditions of this Agreement. Except as specifically provided below, Company shall have the right to use the Vehicle as provided hereunder at no charge. The registered owner of all Vehicles shall at all times remain MMNA. The delivery schedule of the Vehicle will be mutually agreed upon by MMNA and Company, and MMNA shall deliver the Vehicle to Company at a mutually agreed location. The Vehicle provided hereunder shall be used for a maximum of 14 days from the d?.te of delivery to Company ("Vehicle Use Term"). MMNA may terminate this Agreement automatically if Company fails to fulfill any of its obligations hereunder in a timely fashion or if Company violates any of the terms of this Agreement. 2. Use. Company shall not use the Vehicles for any unlawful purpose, for racing, for the transportation of persons or property for hire or for off-road driving purposes and the Vehicles shall-not be used by anyone not legally qualified to drive. Company will insure that tl?e Vehicles will only be driven by Company employees. Off-road driving" shall mean the operation of the Vehicles in an area which is not a designated and maintained public or private road, regardless of whether the area is either dirt or hard- surfaced. The Vehicles may be- operated anywhere in the continental United States, but shall not be operated anywhere else, including Canada and Mexico, without MMNA's prior written consent. Company shall pay all traffic summons, penalties, and fines imposed by any governmental authority in connection with Company's operation and use of the Vehicles. 3. User's Responsibilities. Company shall ensure that all persons who use a Vehicle understand the terms and conditions of this Agreement. Company agrees that it is primarily responsible for each user's failure to perform in accordance with this Agreement, and that failure by Company or such users to perform the obligations hereunder may result in the termination of this Agreement. Company shall indemnify and hold MMNA harmless for any liabilities arising out of any such user's use of a Vehicle as further set forth below. 4. Maintenance and Repairs. All maintenance and repair work on the Vehicle and its various parts and components shall be performed only by MMNA or its designee at MMNA's cost and expense and Company shall not be entitled to repair or fix the Vehicles itself, and shall insure that no third person or entity does or attempts to do so. Notwithstanding the foregoing, Company shall be responsible for reimbursing MMNA for the costs and expenses of any maintenance and repairs to the Vehicles caused by Company's breach of this Agreement or negligence. 5. Insurance- MMNA will provide insurance on the Vehicle under MMNA's insurance policies. 6. Accident Reports and Legal 1?Iotices. In the case of damage to, theft of or an accident involving the Vehicle, Company shall immediately notify MMNA of the pertinent facts and circumstances relating to the damage, theft or accident. If any claim is made or action commenced for damages for death, bodily injury or property damage resulting from the operation, maintenance, use or repairs of the Vehicle, Company shall promptly notify MMNA's Legal Department and MMNA's Fleet Sales Manager thereof and forward by overnight courier to MMNA a copy of every demand, notice or summons or other process received in connection therewith. 7. Indemnity. MMNA does not hereby assume any liability for any act or omission of Company, its officers, directors, agents, servants, employees, pennittees or designees. Company agrees to defend and indemnify (including attorney's fees and costs) MMNA, Mitsubishi Motors Corporation ("MMC") -the manufacturer of the i-MiEV- and their respective officers, directors, and employees harmless from any and all claims against them, of any kind or. nature whatsoever, arising from the possession, operation, useof the Vehicle or. from any default or violation of any of the terms, covenants and conditions of this Agreement by Company, its officers, agents, employees, permittees, including, but not limited to, any and all expenses, liabilities, damages, costs and attorneys fees which MMNA may incur in connection with any such claims. Company does not assume any liability for any act or omission of MMNA, MMC, and their officers, agents, servants, employees, assignees, permittees, designees or any other persons or entities. MMNA agrees to defend, indemnify, and hold harmless Company, its officers, agents and employees from and against any and all third party claims against them, of any kind or nature whatsoever, to the extent attributable to or otherwise concerning (i) an alleged defect in manufacturing or .design of the Vehicle (excluding any claim based on the failure of the Vehicle to comply with Federal Motor Vehicle Safety Standards), and (ii) MMNA's actions or omissions in connection with 'the performance of -this Agreement, including, but not limited to, any and all expenses; liabilities, losses, damages, costs and attorney's or expert's fees which they may suffer or incur in connection with any such claims. 8. Test Vehicle. Company understands and acknowledges that the Vehicle provided hereunder is a prototype test vehicle. The Vehicle is a right-hand drive vehicle Santa Ana Borrowed Vehicle Agreementii.doc which complies with Japan motor vehicle safety standards and is sold to consumers in Japan. The Vehicle is not certified to comply with the Federal Motor Vehicles Safety Standards and MMI?IA makes no representation or warranty as to their compliance or safety, other than as set forth above. Company agrees that it will have responsibility for the selection of persons driving and handling the Vehicle and responsibility for explaining to the drivers and handlers of the Vehicle that it is a prototype test vehicle which is not certified under the Federal Motor Vehicles Safety Standards. 9. Return of Vehicle. Company shall return the Vehicle in the same condition as received, ordinary wear and tear excepted, at the same location where delivery was taken, upon the expiration of the Vehicle Use 't'erm or sooner upon demand of MMNA. MMNA. reserves the right to repossess the Vehicle at any time without demand at Company's expense if the Vehicle is in violation of the terms and conditions of this Agreement or if the Vehicle is not timely returned as provided herein. In the event of loss or damage to the Vehicle prior to return, and not the result of MMNA manufacture or maintenance, Company shall pay to MMNA on demand the amount of all resulting loss or expense. 10. Notices. Except as otherwise provided hereunder, notices shall be deemed as given when mailed by first class mail, postage paid, to the addresses of MMNA and Company as contained in this Agreement. All such notices shall be directed for MMNA to the Manager Fleet Sales, with a copy to MMNA's Legal Department. Notice to City shall be directed to Finance and Management Services, Fleet Division, 220 S. Daisy Avenue, Santa Ana; CA, 92703 I1. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 12. No Implied Waivers. The failure of either party to require any performance hereunder shall not affect the right to require such performance at any time thereafter. The waiver by either party of any rights upon a breach of this Agreement shall not constitute a? waiver of those rights upon any subsequent breach. The election by either party of a particular remedy shall not be exclusive of any other remedy, and all rights and remedies of the parties shall be cumulative. 13. Assignment. Company agrees not to assign, transfer, pledge or encumber this Agreement or any of its rights hereunder or any of MMNA's rights to the Vehicle and any such attempt will be void. 14. Amendment and Modification. No amendment or modification of this Agreement shall be binding unless executed in writing by the party to be bound thereby. 15. Entire Agreement. This Agreement, including any exhibit attached hereto, constitutes the complete and exclusive statement of the agreement between the parties, and supersedes all prior representations, understandings, and communications, oral and written, between the parties relating to the subject matter thereof. Santa Ana Borrowed Vehicle Agreementii.doc 16. Arbitration. Any controversy or claim arising out of or relating to the construction or application of any of the terms, provisions or conditions of this Agreement shall, on the written request of any party hereto, served on the other parties, be submitted to -arbitration in the City of Cypress, California and such arbitration shall comply. with and be governed by the provisions of the American Arbitration Association Rules then in effect. The costs of arbitration shall be borne equally by the parties. Judgment .on the award rendered by the azbitrator or arbitra#ors may be entered in any court having jurisdiction thereof. Each party shall be responsible for its own attorney's fees and costs. 17. Severability. The parties hereto expressly agree axed contract that it is not the intention of either of them to violate any public policy, statutory or common laws, rules, regulations, treaties or decisions of any government or agency thereof. If any paragraph, sentence; clause, word or combination thereof in this Agreement is judicially or administratively interpreted or construed as being in violation of any such provision of any jurisdiction, such paragraph, sentence, word, clause or combination thereof shall be inoperative in each .such jurisdiction and the remainder of this Agreement shall remain. binding upon the parties hereto in each such jurisdiction and the Agreement as a whole shall be unaffected elsewhere. IhI WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate as of the date first above written and each party shall retain one (1) copy. MITSUBISHI MOTORS CITY OF S?NTA?A?NJA NORTH AMERICA, INC. ?iyZ'"??[` O(. /J?"?- By: Mik?eb? ?i/?2? Its: V.P. Corporate Planning By: DAVID N. REAM Its: -City Manager, ATTEST: Maria D. Huizar, Cl? k o£ the Counci RECOMMENDED FOR APPROVAL: Francisco Gutierrez Executive Director - FMSA AP1'I2OVED AS TO FO12M ?????? Laura $ itt Sheedy Santa Ana Bon-owed Vehicle Agreementii.doci-MiEVLBorrowed VehiC??€Y?l?inY Attorney