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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