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HomeMy WebLinkAbout11 - Westnet AgreementE June 14, 1999 Council Agenda Item No. 11 To: Mayor and Members of the City Council From: Timothy Riley, Fire and Marine Chief lvc Subject: Agreement with Westnet RECOMMENDATION If desired, approve the Automate Rescue Series Sponsorship agreement with Westnet to provide enhanced communications equipment for two lifeguard rescue vessels. BACKGROUND Westnet is a communications company that has developed a system that will be very beneficial to lifeguard rescue vessel operations. The Automate Rescue Series equipment will: • Improve communications between lifeguard vessels and land -based personnel while in operation, • Improve communications between personnel on a vessel while in operation under high noise conditions; • Provide a warning detection system to alert the lifeguard operators of vessel or engine problems before failure occurs; • Provide an information and location detection system that communicates with a land -based information processing center. This is a new system and needs to be installed in an application that will test function and durability. Westnet is willing to install this system at no cost on the City's two main lifeguard rescue vessels in exchange for the ability to: • Place the company's product logo on a small part of the lifeguard vessel; • Use the City seal in the company's promotional materials for the system; • Use photographs of the vessel in the company's promotional material; • Use the City's endorsement of the Westnet System at the discretion of the City Manager; • Have Department personnel participate in interviews about their experience with the system with approval of the Department's Chief; • Have lifeguard vessels available for media publicity when not in use. The value of this system, if it were to be purchased, would be $30,000. AUTOMATE RESCUE SERIES SPONSORSHIP AGREEMENT THIS Automate Rescue Series Sponsorship Agreement ( "Agreement "), entered . into this day of , 1999, by and between CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and WESTNET, INC., (a corporation) whose address is 901 East Santa Ana Boulevard, Santa Ana, California, 92701, ( "Westnet "), is made with reference to the following: RECITALS WHEREAS, Westnet realizes and appreciates the importance of Newport Beach Fire & Marine Department ( "Department ") and the services it provides to the community. Westnet has provided to City a proposal to improve the abilities of the Department and enhance the quality of the Department's communications on board lifeguard rescue vessels operated by the Department. Under the terms of the proposal, Westnet has offered to donate two (2) automate rescue series systems to the Department in exchange for certain rights to utilize the City's seal for limited promotional and publicity purposes. WHEREAS, the automate rescue series has been represented to have a total value of thirty thousand dollars ($30,000.00) and is comprised of two (2) marine headset intercom communications system, two (2) vessel telemetry systems and two (2) vessels to land communications link emergency alert receivers. WHEREAS, the Westnet proposal will provide the following benefits to the • Department: • Improve communications between lifeguard vessels while in operation; • Improve communications between personnel on a vessel while in operation under high noise conditions especially helicopter patient transfer operations; • Improve communications between vessels and land based personnel; • Warning detection system to alert the lifeguard operators of vessel or engine problems before failure occurs; • Information, collection and location detection system leads to a land based information processing center and management system. WHEREAS, City is authorized under Article II, Section 200 of the City Charter to enter into this Agreement. WHEREAS, City Council is required to approve the use of City seal for commercial purposes or for any purpose other than for City purposes. WHEREAS, City Council finds that the proposal will be beneficial to the Department and the citizens and visitors who use City harbor and beaches. 1 WHEREAS, City Council finds that the rights granted by this Agreement are appropriate, and due to benefits received, are beneficial for City. IT IS THEREFORE AGREED by and between the Parties as follows: 1. Definitions. The following definitions shall apply general to the provisions of this Agreement: a. "Commencement date' shall mean the date this Agreement is approved and fully executed by all Parties hereto. b. "Lifeguard vessel" shall mean Sea Watch I and Sea Watch II, twenty -nine foot (29') Crystaliner Rescue Boats. C. "City seal" shall mean official seal, colors and name of City and Department. 2. Grant of Entitlements: Subject to the conditions set forth below, and as sole consideration for the Westnet System, the City hereby grants to Westnet the following entitlements: a. The right to place Westnet's product logo on lifeguard vessels not to exceed an area of 240 square inches to read as follows "AutoMate rescue series equipped." b. The right to use the City seal in Westnet's promotional and publicity materials, including paid advertisements, news and editorial releases subject to prior consent, and design approval by the City Manager. C. The right to take photographs of the lifeguard vessels and to use those photographs in Westnet's promotional and publicity materials both in paid advertisements and in news and editorial releases. d. City endorsement of the Westnet Systems by the Department as approved is the discretion of the City Manager. e. The Department's personnel participation in interviews by trade and other publications concerning their experience with the Westnet System, upon request by Westnet and approval of the Department's Chief. f. Availability of lifeguard vessels when not in use, for demonstration at dock or sea, for media publicity. g. Westnet is granted the right to use the City's seal under the terms and conditions of this Agreement, provided however the use of the City's seal is limited to use in connection with Westnet's products and do not extend . to any other products, goods or services. All usage of the City's seal must first have prior written approval of the City Manager. All required approvals shall not be unreasonably withheld. 2 3. Westnet's Obligations: a. Westnet agrees to submit to City for City Manager's prior approval all advertising, promotional television and radio commercials or other display material to be used by Westnet in connection with this Agreement. Such • material shall be submitted not less than fifteen (15) business days prior to their proposed release to the public. If the material is not disapproved in writing within ten (10) business days after receipt, it is deemed approved. b. Westnet agrees that it will not cause or permit City's seal or the name of the City's Department, to be used or exploited in any manner contrary to public morals, or which violates prevailing standards of good taste, or reflects unfavorably upon the good names, good will reputation image in whole or part of City, and the Department. C. This Agreement does not authorize the manufacturer, or sale of any premium product or other product by Westnet, using the City's seal. If Westnet desires to sell, or distribute for sale any premium or product bearing the City's seal or name of City's Department, such use must first be negotiated by and between City and Westnet, and approved under a separate licensing agreement. 4. Consideration: a. For the rights and benefits granted to Westnet herein, Westnet agrees to deliver to City the following products referred to collectively in this . Agreement as the "Westnet System" within the following time periods: i. Phase 1: Two (2) marine headset intercom communications systems shall be delivered within sixty (60) days after the commencement date. ii. Phase 2: Two (2) vessel telemetry systems shall be delivered and installed within one hundred twenty (120) days after the commencement date. iii. Phase 3: Two (2) vessels to land communications link emergency alert receivers shall be delivered and installed within one hundred eighty (180) days after the commencement date. b. Westnet will install each system component in separate installation phases as provided above. If Westnet fails to install the Westnet System as provided above, or the Westnet System fails to perform satisfactorily, this Agreement may be terminated as provided in this Agreement, but Westnet shall have no liability to City on account of its failure to install the Westnet System, other than the obligations specified in this Agreement on termination. C. Westnet and City anticipate that the Westnet System will assist the • Department in its lifeguard vessel operations. If the Westnet System or any piece of the equipment within the Westnet System interferes with the 3 Department operations or the operation of a lifeguard vessel and cannot be repaired or inference stopped within twenty four (24) hours of notification by City and/or Department, the equipment must be removed and not replaced until repaired. d. City understands that this installation is intended to test the Westnet System in actual use and to demonstrate its capabilities. Westnet does not warrant the Westnet System in any way, and disclaims all warranties, express and implied. Notwithstanding the foregoing, Westnet will, for the term of this Agreement, repair or replace any or all parts of the Westnet System found to be defective in materials, workmanship, or design, at Westnet's sole cost and expense. Westnet's obligation to repair or replace does not cover any loss or damage to the Westnet System caused by City's employees or others, or otherwise outside of Westnet's control. e. At the end of the term of this Agreement, Westnet System will become the property of City without further consideration. 5. Term and Extension of Rights: a. This Agreement shall have an initial term of two (2) years from the date it is signed by all parties and approved by City, unless terminated earlier as provided in this Agreement. Westnet shall have the option to extend the term of this Agreement for an additional one (1) year immediately following the initial term, by giving written notice to City of Westnet's intention to extend the Agreement at least one hundred eighty days (180) prior to the expiration of the initial term. b. Notwithstanding the foregoing, this Agreement may be terminated by Westnet without cause and in Westnet's complete discretion any time before Westnet exercises any of its entitlements to publicity under Section 2 of this Agreement. In the event of such termination, Westnet shall remove all of the Westnet System and repair or replace any damage caused to any City vessel in connection with the installation of the Westnet System. 6. Indemnification: a. Westnet agrees to indemnify, defend and hold harmless City, its officers, employees, agents and representatives from and against any and all claims, demands, obligations, causes of actions and lawsuits and all damages, liabilities, fines, judgment costs (including settlement costs) and expenses associated therewith, arising out of, or related to (1) Westnet's use of City's seal, or the name of City's Department authorized by this Agreement; (2) any claim of false or deceptive advertising resulting from, arising out of or related to Westnet's use of the City seal in advertising or promotional materials; (3) the failure of Westnet, or those acting under it, to comply with the terms and conditions of this Agreement; and (4) Westnet's negligent installation or operation, repair or design of the Westnet System. 19 b. Westnet shall indemnify, defend and hold City, its officers, agents, employees, harmless against all liability for illegal competition or trade practices, patent design, common -law and /or statutory law which are based on the rights granted by City to Westnet pursuant to the terms and conditions of this Agreement. C. City agrees to indemnify, defend and hold harmless Westnet, its divisions and subsidiaries, and its respective officers, directors, agents and employees from and against any and all claims, demands, obligations, causes of actions and lawsuits and all damages, liabilities, fines, judgments, costs (including settlement costs) and expenses associated therewith arising out of City's negligent use or possession of the lifeguard vessels, the services performed or actions taken by City and the Department, in connection with this Agreement. Except for provisions of this paragraph 6 to the contrary, City assumes all liability and risks of loss or damage to the lifeguard vessels, for the death or injury to any person(s) or property of another and for other risks and liabilities arising from the negligent use, operation maintenance, possession or storage of the lifeguard vessels. 7. Default and Termination: a. The Parties agree that, without prejudice to any other rights available to them at law or pursuant to this Agreement, a party shall be deemed to be in default ( "breaching party ") and the other party ( "non- breaching party ") shall have the right to terminate this Agreement: i. If breaching party shall fail to perform its obligations under this Agreement after thirty (30) days written notice, except if such failure to perform is due to fire, earthquake, labor dispute, or other events reasonable beyond the control of the breaching party, in which cases the non- breaching party shall extend the time in which the breaching party may meet its obligations, the length of time for such extensions to be determined by the non - breaching party; or ii. If a party shall become bankrupt or insolvent, or enter into liquidation, or have a receiver appointed and is prevented from fulfilling its obligations as a result thereof. b. In the event of termination or upon expiration of this Agreement, Westnet shall immediately cease all use of the City's seal and name of Department, unless City's seal and name of Department have been placed in media which requires a longer lead time, but in no event longer than one hundred twenty (120) days. 8. Waiver: Failure by either party at any time to require performance by the other party of any provision hereof shall in no way affect the right to require full performance any time thereafter, nor shall the waiver by either party of a breach of any provision of this Agreement constitute a waiver of any succeeding breach of same or any other provision, nor constitute a waiver of the provision itself. 5 9. Notices: Any notice required or permitted to be given by either party under or in • connection with this Agreement shall be in writing and shall be deemed duly given when personally delivered or sent by registered or certified mail return receipt requested, postage prepaid, expedited courier services, or by cable or facsimile, confirmed by letter. Westnet shall designate an agent and maintain an address within California as the address to which such notice shall be given. The addresses for such notice are: CITYIDEPARTMENT: Fire and Marine Chief, Tim Riley Fire and Marine Department 3300 Newport Blvd. Newport Beach, CA, 92658 (949) 644 -3101 FAX 644 -3378 WESTNET: Richard Matheny, President 901 East Santa Ana Blvd. Santa Ana, CA, 92701 (714) 835 -0546 FAX 835 -1056 • 10. Assignment: Westnet shall not transfer or assign its rights, nor delegate its obligations under this Agreement to a thirty party, without the prior written approval of City. Any unauthorized transfer or assignment shall be null and void. 11. Compliance with Law: Each party will perform its obligations under this Agreement in compliance with all applicable laws, orders or regulations of all appropriate jurisdictions. 12. Severability of Provisions: This Agreement is to be governed by and construed according to the laws of the State of California. Should any individual provision of this Agreement be declared void, the validity of the remainder of this Agreement will not be affected and will remain in full force and effect. 13. No Joint Venture: Nothing herein contained shall be deemed to constitute this a joint venture, partnership or agency relationship between the Parties and neither of them shall be responsible for any obligations of the other, except as herein specifically provided. C7 14. Entire Agreement: This Agreement constitutes the entire Agreement between the Parties relating to the subject matter covered herein and cancels and supersedes all previous agreements between the Parties relating to the subject matter covered herein. . Any modification of this Agreement must be in writing and signed by the Parties. WHEREFORE, the Parties hereto have entered into this Agreement as of the date set forth below opposite the name of each signatory hereto. "WESTNET" WESTNET, INC. (a corporation) a Richard Matheny, President "CITY" CITY OF NEWPORT BEACH, a municipal corporation in Homer Bludau, City Manager APPROVED AS TO FORM: 0 By: Dated: Robin L. Clauson, Assistant City Attorney ATTEST: By: LaVonne Harkless, City Clerk F:l users\ cat\ sharedlda\Ag %Wesinet %051499.doc • 7