HomeMy WebLinkAboutC-7616-1 - Irrevocable License Agreement for Purchase, Installation, and Use of Tide Monitoring Equipment at Balboa Yacht Basin1�1 IRREVOCABLE LICENSE AGREEMENT BETWEEN
r BASIN MARINE, INC., AND THE CITY OF NEWPORT BEACH
FOR PURCHASE, INSTALLATION, AND USE OF
TIDE MONITORING EQUIPMENT AT BALBOA YACHT BASIN
This LICENSE AGREEMENT ("Agreement') is made and entered into as of this
28th day of January 2019 ("Effective Date"), by and between Basin Marine, Inc. a
California corporation ("Licensor"), and the City of Newport Beach, a California municipal
corporation and charter city ("Licensee"), and is made with reference to the following:
RECITALS
A. Licensee is owner of certain harbor frontage and tidelands, together with certain
abutting upland property known as "Balboa Yacht Basin" located on Harbor Island
Drive in the City of Newport Beach, County of Orange, in the State of California
("Balboa Yacht Basin").
B. Pursuant to that certain Lease Agreement entered into by and between the City of
Newport Beach, and Basin Marine, Inc., on January 1, 2001, Licensor leases from
Licensee a portion of the Balboa Yacht Basin for use as a shipyard/boat repair
facility and other uses incidental thereto ("Leased Premises").
C. Licensee desires to purchase and permanently install a Tide Gauge Assembly on
the wall located adjacent to, and additionally, on the wall located upon, the Leased
Premises for long-term measurement of water surface elevations in Newport
Harbor, at an approximate cost to Licensee of Seventy Thousand Dollars and
00/100 ($70,000.00).
D. Licensor desires to authorize Licensee, upon the terms and conditions set forth
herein, to enter upon the Leased Premises to install and use a Tide Gauge
Assembly.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows.-
LICENSE
ollows:
LICENSE
1.1 Licensor hereby authorizes Licensee to enter upon, over, and under the
area generally defined as the two block walls, designated herein as Wall A and Wall B,
both located at the end of the walkway between the Balboa Yacht Basin Marina and the
Leased Premises, with Wall A located along the property line between the Balboa Yacht
Basin Marina and the Leased Premises, and Wall B located upon the Leased Premises
and including the underlying seawall, as depicted on Exhibit "A," attached hereto and
incorporated herein by this reference ("License Area"), for installation and use of a Tide
Gauge Assembly.
1.2 The Tide Gauge Assembly shall be comprised of, but is not necessarily
limited to, a radar sensor, data logger, solar panel, communication antenna, staff gauge,
and conduit with conductor wire, as generally depicted in Exhibit "B" attached hereto and
incorporated herein by this reference ("Tide Gauge Assembly").
1.3 Licensee may utilize the License Area at any time and without notice for
setup, installation, assembly, disassembly, repair, maintenance, observation, calibration,
operation, and any other activity incident to use of the Tide Gauge Assembly.
1.4 Licensee shall ensure that the Tide Gauge Assembly is maintained in an
orderly manner and free of debris.
1.5 All costs associated with installation and use of the Tide Gauge Assembly
shall be borne solely by Licensee.
1.6 Installation of the Tide Gauge Assembly includes, but is not necessarily
limited to, permanent attachment of the Tide Gauge Assembly by bolts or other
permanent means directly to the block walls and the underlying seawall. Licensee shall
be solely responsible for performing any necessary repairs or maintenance arising out of
installation of the Tide Gauge Assembly.
1.7 Licensee may only assign, transfer, contract or subcontract its rights arising
out of this Agreement upon the condition that that such assignment, transfer, contract or
subcontract does not materially increase the use authorized by this License.
2. TERM
The term of this Agreement shall commence on the Effective Date and shall
continue indefinitely, or until terminated as set forth herein.
3. FEES
The parties enter into this Agreement in exchange for the terms, covenants, and
conditions set forth in this Agreement, which are a material part of the consideration for
this Agreement. Neither party shall owe, nor demand from, the other party any form of
pecuniary compensation of any nature whatsoever arising out of the License authorized
by this Agreement.
4. TERMINATION
This Agreement may be terminated by Licensee at any time, without cause, upon
the giving of thirty (30) calendar days written notice of termination to Licensor.
5. ADMINISTRATION
This License shall be administered by the Public Works Department of the City of
Newport Beach. The Public Works Director or his/her designee shall be the License
Administrator and shall have the authority to act for Licensee under this License. The
Basin Marine, Inc. Page 2
License Administrator or their authorized representative shall represent Licensee in all
matters pertaining to this License.
6. INDEMNITY AND LIABILITY FOR DAMAGES
Licensee shall indemnify, defend and hold harmless Licensor from and against any
and all claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorney's fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate
(directly or indirectly) to any breach of the terms and conditions of this Agreement, any
work performed or services provided under this Agreement including, without limitation,
defects in workmanship or materials (including the negligent and/or willful acts, errors
and/or omissions of Licensee, employees, vendors, suppliers, and anyone employed
directly or indirectly by any of them or for whose acts they may be liable or any or all of
them). Notwithstanding the foregoing, nothing herein shall be construed to require
Licensee to indemnify the Licensor from any Claim arising from the sole negligence or
willful misconduct of Licensor. Nothing in this indemnity shall be construed as authorizing
any award of attorney's fees in any action on or to enforce the terms of this Agreement.
This indemnity shall apply to all claims and liability regardless of whether any insurance
policies are applicable. The policy limits do not act as a limitation upon the amount of
indemnification to be provided by the Licensee.
7. CONFLICT OF INTEREST
Licensor or its employees may be subject to the provisions of the California
Political Reform Act of 1974 ("Act"), which (a) requires such persons to disclose any
financial interest that may foreseeably be materially affected by the work performed under
this Agreement, and (b) prohibits such persons from making, or participating in making,
decisions that will foreseeably financially affect such interest. If subject to the Act,
Licensor shall conform to all requirements of the Act. Notwithstanding Section 9, failure
to conform to the requirements of the Act constitutes a material breach and is grounds for
immediate termination of this Agreement by Licensee. Licensor shall indemnify and hold
harmless Licensee for any and all claims for damages resulting from Licensor's violation
of this Section.
8. NOTICE
8.1 All notices, demands, requests or approvals to be given under the terms of
this Agreement shall be given in writing, and conclusively shall be deemed served when
delivered personally, or on the third business day after the deposit thereof in the United
States mail, postage prepaid, first-class mail, addressed as hereinafter provided.
8.2 All notices, demands, requests or approvals to Licensee shall be addressed
to Licensee at:
Basin Marine, Inc. Page 3
Public Works Department
City of Newport Beach
Attn: License Administrator
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
8.3 All notices, demands, requests or approvals to Licensor shall be addressed
to Licensor at:
Basin Marine, Inc.
Attn: David L. New, President
829 Harbor Island Drive
Newport Beach, CA 92660
9. BINDING ON SUCESSORS AND ASSIGNS
Licensor agrees that this Agreement shall remain in full force and effect from
execution thereof, and shall be binding upon Licensor's heirs, successors and assigns of
Licensor's interest in the Leased Premises. Licensor shall provide prompt written notice
of this Agreement to any heir, successor or assign of Licensor's interest in the Leased
Premises.
10. STANDARD PROVISIONS
10.1 Recitals. The parties acknowledge that the above Recitals are true and
correct and are hereby incorporated by reference into this Agreement.
10.2 Compliance with all Laws. The parties shall at their own cost and expense
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted.
10.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a different character.
10.4 Integrated Agreement. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
10.5 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
Basin Marine, Inc. Page 4
10.6 Amendments. This Agreement may be modified or amended only by a
written document executed by both Licensor and Licensee and approved as to form by
the City Attorney of the City of Newport Beach.
10.7 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
10.8 Controlling Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange.
10.9 No Third Party Rights. The parties do not intend to create rights in or grant
remedies to, any third party as a beneficiary of this Agreement, or of any duty, covenant,
obligation or undertaking established herein.
10.10 No Attorneys' Fees. In the event of any dispute under the terms of this
Agreement the prevailing party shall not be entitled to attorneys' fees.
10.11 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
Basin Marine, Inc. Page 5
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: of • Z $ • t 'I
By:
Aar C. Harp ^"w �•as cq
City Attorney
ATTEST:
Date: ,
By:
Leilani I. Brown
City Clerk
LICENSEE: CITY OF NEWPORT BEACH
a California municipal corporation
Date:
By:
Gra . Leung
City(Manager
LICENSOR: Basin Marine, Inc., a
California corporation
Date:
By:
By:
gned in Counterpart
David L. New
President
Signed
Derek J. New
Secretary
[END OF SIGNATURES]
Attachments: Exhibit A: Depiction of License Area
Exhibit B: Depiction of Tide Gauge Assembly
in Counterpart
Basin Marine, Inc. Page 6
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: Qt . 2t • 1 n
By:i
Aar C. Harp "AAJ
City Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
LICENSEE: CITY OF NEWPORT BEACH
a California municipal corporation
Date:
By:
Grace K. Leung
City Manager
LICENSOR: Basin Marine, Inc., a
Califo corporation
Date: 7
By: _
Da d L. New
President
ew LL�
Secretary
[END OF SIGNATURES]
Attachments: Exhibit A: Depiction of License Area
Exhibit B: Depiction of Tide Gauge Assembly
Basin Marine, Inc. Page 6
EXHIBIT A
DEPICTION OF LICENSE AREA
(see attached)
Basin Marine, Inc. Page A-1
EXHIBIT B
DEPICTION OF TIDE GAUGE ASSEMBLY
(see attached)
Basin Marine, Inc. Page B-1