HomeMy WebLinkAboutC-2650 - License Agreement for the Use of the 29th Street Dockp
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AMENDMENT NO. FOUR TO
LICENSE AGREEEMENT
U BETWEEN THE CITY OF NEWPORT BEACH AND SCHOCK BOATS
FOR THE USE OF THE 29TH STREET DOCK
THIS AMENDMENT NO. FOUR TO LICENSE AGREEMENT ("Amendment No.
Four") is made and entered into as of this 30th day of June, 2019 ("Effective Date"), by
and between the CITY OF NEWPORT BEACH, a California municipal corporation and
charter city ("City"), and SAILS BY SCHOCK, INC, a California corporation ("Schock"),
whose address is 2900 Lafayette Avenue, Newport Beach, California, 92663, and is made
with reference to the following:
RECITALS
A. On December 6, 2007, City and Schock entered into a License Agreement
("Agreement') to allow Schock the continued use of the 29th Street Dock
("Premises") on a non-exclusive basis.
B. On May 3, 2017, City and Schock entered into Amendment No. One to the
Agreement to extend the term of the Agreement six (6) months.
C. On November 13, 2017, City and Schock entered into Amendment No. Two to the
Agreement to extend the term of the Agreement an additional six (6) months.
D. On June 30, 2018, City and Schock entered into Amendment No. Three to the
Agreement to extend the term of the Agreement an additional twelve (12) months.
E. The parties desire to enter into this Amendment No. Four to extend the term of the
Agreement an additional twelve (12) months
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. TERM
Section 4 of the Agreement is amended in its entirety and replaced with the
following:
"Term: The term of the non-exclusive license granted hereunder (`Term") shall
commence retroactively on July 1, 2007 (the "Commencement Date") and shall terminate
on July 1, 2020, unless terminated earlier as set forth herein."
2. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
[SIGNATURES ON NEXT PAGE]
SAILS BY SCHOCK, INC Page 1
IN WITNESS WHEREOF, the parties have caused this Amendment No. Four to
be executed on the dates written below.
APPROVED AS TO FORM:
CITY ATT RN Y'S OFFICE
Date: 5 2E3 go 19
By: I,. LL
r.6,
City Attorney
p
ATTEST: !`02�
Date: f
By: ALOU- obm=
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: fns
By:
Grace K. Leung
City Manager
SCHOCK: SAILS BY SCHOCK, INC, a
California corporation
Date: G
BY:
Steven Schock
Chief Executive Officer
`a�W PpRT Date: 7 —�
BYR th ScIfock
0qC/FOR�`P Secretary
[END OF SIGNATURES]
SAILS BY SCHOCK, INC Page 2
O
V)
9
N
cJ AMENDMENT NO. THREE TO
LICENSE AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH AND SCHOCK BOATS
FOR THE USE OF THE 29TH STREET DOCK
THIS AMENDMENT NO. THREE TO LICENSE AGREEMENT ("Amendment No.
Three") is made and entered into as of this 30th day of June, 2018 ("Effective Date"), by
and between the CITY OF NEWPORT BEACH, a California municipal corporation and
charter city ("City"), and SAILS BY SCHOCK, INC., a California corporation ("Schock"),
whose address is 2900 Lafayette Avenue, Newport Beach, California 92663, and is made
with reference to the following:
RECITALS
A. On December 6, 2007, City and Schock entered into a License Agreement
("Agreement') to allow Schock the continued use of the 29th Street Dock
("Premises") on a non-exclusive basis.
B. On May 3, 2017, City and Schock entered into Amendment No. One to the
Agreement to extend the term of the Agreement six (6) months.
C. On November 13, 2017, City and Schock entered into Amendment No. Two to the
Agreement to extend the term of the Agreement for an additional six (6) months.
D. The parties desire to enter into this Amendment No. Three to extend the term of
the Agreement an additional twelve (12) months.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. TERM
Section 4 of the Agreement is amended in its entirety and replaced with the
following:
"Term: The term of the non-exclusive license granted hereunder ("Term") shall
commence retroactively on July 1, 2007 (the "Commencement Date") and shall terminate
on July 1, 2019, unless terminated earlier as set forth herein."
2. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
[SIGNATURES ON NEXT PAGE]
Sails by Schock, Inc. Page 1
IN WITNESS WHEREOF, the parties have caused this Amendment No. Three to
be executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTO�RNEEY' � OFFICE
Date:
��, - - " -, 0
Aaron C. Harp c)(0 IR -19
City Attorney Qtml�
ATTEST -
Date:
Date:
: hhg�
�Ullnlll 1. UIVVVII
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: 'iT3
By: i? e"—
Dave'I ff
City Manager
SCHOCK: SAILS BY SCHOCK, INC., a
California corporation
Date: ( - ;Z9 -� 8
BY��G��Z(/�
Steven Schock
Chief Executive Officer
Date: C,
'g /7
By:
Rdtfi Schock
Secretary
[END OF SIGNATURES]
Sails by Schock, Inc. Page 2
CERTIFICATE OF INSURANCE
CHECKLIST
City of Newport Beach
This checklist is comprised of requirements as outlined by the City of Newport Beach. "
Date Received: Il/l/17 Dept./Contact Received From: Melissa
Date Completed: 12/15/17 Sent to: Melissa By: Jan
Company/Person required to have certificate: Sails by Schock Inc dba: Schock Boats
Type of contract:
I. GENERAL LIABILITY
® N/A
EFFECTIVE/EXPIRATION DATE: 10/1/17 —10/1/18
❑ No
A.
INSURANCE COMPANY: National Casualty Company
❑ Yes
B.
AM BEST RATING (A-: VII or greater): A+/ XV
❑ N/A
C.
ADMITTED Company (Must be California Admitted):
Is Company admitted in California?
® Yes ❑ No
D.
LIMITS (Must be $1M or greater): What is limit provided?
$1M/$2M+$4M Umb
E.
ADDITIONAL INSURED ENDORSEMENT — please attach
❑ Yes ❑ No
F.
PRODUCTS AND COMPLETED OPERATIONS (Must
include): Is it included? (completed Operations status does
not apply to Waste Haulers or Recreation)
❑ Yes ❑ No
G.
ADDITIONAL INSURED FOR PRODUCTS AND
COMPLETED OPERATIONS ENDORSEMENT (completed
Operations status does not apply to Waste Haulers)
❑ Yes ❑ No
H.
ADDITIONAL INSURED WORDING TO INCLUDE (The City
its officers, officials, employees and volunteers): Is it
included?
® Yes ❑ No
I.
PRIMARY & NON-CONTRIBUTORY WORDING (Must be
included): Is it included?
M Yes ❑ No
J.
CAUTION! (Confirm that loss or liability of the named insured
is not limited solely by their negligence) Does endorsement
include "solely by negligence' wording?
❑ Yes ® No
K.
ELECTED SCMAF COVERAGE (RECREATION ONLY):
Z N/A ❑ Yes ❑ No
L.
NOTICE OF CANCELLATION:
❑ N/A ® Yes ❑ No
II. AUTOMOBILE
LIABILITY
EFFECTIVE/EXPIRATION DATE: Not Required
A. INSURANCE COMPANY:
B. AM BEST RATING (A-: VII or greater)
C. ADMITTED COMPANY (Must be California Admitted):
Is Company admitted in California?
D. LIMITS - If Employees (Must be $1M min. BI & PD and $500,000
UM, $2M min for Waste Haulers): What is limits provided?
E LIMITS Waiver of Auto Insurance / Proof of coverage (if individual)
(What is limits provided?)
F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste
N/A
❑ Yes ❑ No
Haulers only):
® N/A
❑ Yes
❑ No
G. HIRED AND NON -OWNED AUTO ONLY:
❑ N/A
❑ Yes
® No
H. NOTICE OF CANCELLATION:
❑ N/A
0 Yes
0 No
III. WORKERS' COMPENSATION
EFFECTIVE/EXPIRATION DATE: 10/1/16 —10/1/17
A.
INSURANCE COMPANY: Scottsdale Indemnity Company
B.
AM BEST RATING (A-: VII or greater): A+/ XV
C.
ADMITTED Company (Must be California Admitted):
® Yes
❑ No
D.
WORKERS' COMPENSATION LIMIT: Statutory
® Yes
❑ No
E.
EMPLOYERS' LIABILITY LIMIT (Must be $1 M or greater)
$1,000,000
F.
WAIVER OF SUBROGATION (To include): Is it included?
® Yes
❑ No
G.
SIGNED WORKERS' COMPENSATION EXEMPTION FORM:
® N/A ❑ Yes
❑ No
H.
NOTICE OF CANCELLATION:
❑ N/A ❑ Yes
❑ No
ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED
IV. PROFESSIONAL LIABILITY
® N/A ❑ Yes ❑ No
V POLLUTION LIABILITY 4/30/174/30/18 ROCKHILL INS CO
AM Best Rate: A- / XII Non -Admitted $1,000,000 ❑ N/A ® Yes ❑ No
V BUILDERS RISK
HAVE ALL ABOVE REQUIREMENTS BEEN MET?
IF NO, WHICH ITEMS NEED TO BE COMPLETED?
® N/A ❑ Yes ❑ No
® Yes ❑ No
Agent of Alliant Insurance Services Date
Broker of record for the City of Newport Beach
RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than _
Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑ Yes ❑ No
Reason for Risk Management approval/exception/waiver:
Approved:
Risk Management
* Subject to the terms of the contract.
Date
AMENDMENT NO. TWO TO LICENSE AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH AND SCHOCK BOATS
FOR THE USE OF THE 29TH STREET DOCK
THIS AMENDMENT NO. TWO TO LICENSE AGREEMENT ("Amendment No.
Two") is made and entered into as of this 13th day of November, 2017 ("Effective
Date"), by and between the CITY OF NEWPORT BEACH, a California municipal
corporation and charter city ("City"), and SAILS BY SCHOCK, INC., a California
corporation ("Schock"), whose address is 2900 Lafayette Avenue, Newport Beach,
California 92663, and is made with reference to the following:
RECITALS
A. On October 6, 2007, City and Schock entered into a License Agreement
("Agreement') to allow Schock the continued use of the 29th Street Dock
("Premises") on a non-exclusive basis.
B. On May 3, 2017, City and Schock entered into Amendment No. One to the
Agreement to extend the term of the Agreement six (6) months.
C. The parties desire to enter into this Amendment No. Two to extend the term of
the Agreement an additional six (6) months.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. TERM
Section 4 of the Agreement is amended in its entirety and replaced with the
following:
"Term: The term of the non-exclusive license granted hereunder ('Term") shall
commence retroactively on July 1, 2007 (the "Commencement Date") and shall
terminate on July 1, 2018, unless terminated earlier as set forth herein."
2. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
[SIGNATURES ON NEXT PAGE]
IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to
be executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: t1 f r4
M
City Attorney
ATTEST:
Date: Zvi
By: dr
A�
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: 1 a1 'l �%;)-v4
By:
Da iff
City Manager
SCHOCK: SAILS BY SCHOCK, INC., a
California corporation
Date: 1/ 1-7 - / %
B y:
Steven Schock
Chief Executive Officer
Date: l%
By: � K
R Sch ck
Secretary
[END OF SIGNATURES]
Sails by Schock, Inc. Page 2
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5 AMENDMENT NO. ONE TO LICENSE AGREEMENT
i BETWEEN THE CITY OF NEWPORT BEACH AND SCHOCK BOATS
v FOR THE USE OF THE 29TH STREET DOCK
THIS AMENDMENT NO. ONE TO LICENSE AGREEMENT ("Amendment No.
One") is made and entered into as of this 3rd day of May, 2017 ("Effective Date"), by
and between the CITY OF NEWPORT BEACH, a California municipal corporation and
charter city ("City"), and SAILS BY SCHOCK, INC., a California corporation ("Schock"),
whose address is 2900 Lafayette Avenue, Newport Beach, California 92663, and is
made with reference to the following:
RECITALS
A. On October 6, 2007, City and Schock entered into a License Agreement
("Agreement") to allow Schock the continued use of the 29th Street Dock
("Premises") on a non-exclusive basis.
B. The parties desire to enter into this Amendment No. One to extend the term of
the current Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. TERM
Section 4 of the Agreement is amended in its entirety and replaced with the
following:
"Term: The term of the license granted hereunder ("Term") shall commence
retroactively on July 1, 2007 (the "Commencement Date") and continue for a period of
five (5) years, unless terminated earlier as set forth herein.
This Agreement shall automatically be extended, on the same terms and
conditions as set forth in this Agreement, for one (1) term of five (5) years ("Renewal
Term") unless at least thirty (30) days prior to the expiration of the Term, Schock notifies
City in writing of Schock's intention not to extend this Agreement and by the end of the
Term, Schock also complies with the surrender conditions of Section 20 below.
Notwithstanding the above, this Agreement shall not be automatically extended if
Schock has defaulted in the performance of any term or condition of the Agreement and
has failed to cure such default after notice as provided in this Agreement.
Notwithstanding the above in this Section 4, at the end of the Renewal Term, this
Agreement shall automatically be extended, on the same terms and conditions as set
forth in this Agreement, for one (1) additional term of six (6) months ("Additional Term"),
subject to the termination provisions in Section 16 hereof."
2. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
[SIGNATURES ON NEXT PAGE]
Sails by Schock, Inc. Page 2
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to
be executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTOR _ EY' OFFICE
Date: a
By:
Aaron C. Harp cAM o�lziII
City Attorney
ATTEST:
Date: �• c
By: -64 —
Leilani I. -Brown
City Clerk
RN%P'
A
p
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: 1; y-31 -1 1
Dave Kiff
City Manager
SCHOCK: SAILS BY SCHOCK, INC., a
California corporation
Date:
By•
Steven Schoc
Chief Executive Officer
Date: !J'- 30 -/ 7
By: s;e�zrl
R th Schock
Secretary
[END OF SIGNATURES]
Sails by Schock, Inc. Page 3
Final, 12-5-07
0119140 &1 11
This License Agreement ("Agreement") is entered into this day of
, 2007 by and between the City of Newport Beach ("City"), a municipal
corporation, and Sails by Schock, Inc., a California corporation , whose address is
2900 Lafayette Avenue, Newport Beach, California 92663 ("Schock"). Schock and City
are each a "Party" and together the "Parties" to this Agreement.
IVx]11r_1A-j
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City;
B. The State of California became the owner of tidelands on admission to the union
in 1850. City manages those tidelands pursuant to various legislative grants
from the State. The State Lands Commission, which administers tidelands,
generally requires a trustee to negotiate leases on the basis of the current market
value of the parcel. Failure of a trustee to receive consideration approximating
the fair market value of leased tidelands could, under certain circumstances, be
considered a violation of Section 6 of Article XVI of the State Constitution (the
prohibition of gifts of public funds to private entities);
C. City is the owner of approximately sixty-six linear feet (66') of dock, located on
tidelands, with floats and access ramps located at the end of 29th Street, as
shown on Exhibit "A," attached hereto and incorporated in full by this reference
(the "29th Street Dock" or the "Premises") ;
D. Schock conducts a boat sales and repair business at 2900 Lafayette Avenue and
uses the 29th Street Dock to dock its boats;
E. City has hired an appraiser to study the fair market value of the use of its
tidelands, including the use contemplated in this Agreement. The appraiser has
determined that the fair market value for Schock's use is Twenty and no/100
Dollars ($20.00) per lineal foot per month;
F. City and Schock previously entered into an agreement dated May 29, 1987 (the
"1987 Agreement"), for Schock's use of the 29th Street Dock in connection with
its boat sales and repair business. The 1987 Agreement expired on April 30,
1997. Between May 1, 1997 and April 30, 1998, Schock continued to use the
th
•Street Dock underof - 1987 Agreement. On December••: City and Schock entered into another agreement f• • of
29th StreetDock,agreement expired - 30, /16
SchockG. paid Three Thousand and 00/100 Do($3,000.00) for of
29th StreetDock from• •` December, 116and Three Thousand and
00/100 Do($3,000.00) of •th Street Dock from• •
H. City and Schock desire to enter into this Agreement to allow Schock the
continued use of the Premises on a non-exclusive basis, subject to the
covenants and conditions set forth in this Agreement.
In consideration of the mutual promises and obligations contained in this
Agreement, the receipt and sufficiency of which is hereby acknowledged, City
hereby grants to Schock the revocable right to temporarily occupy and use the
Premises, and Schock accepts the same on the following terms and conditions:
NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:
License:
City grants a non-exclusive license ("License") to Schock for the term of this
Agreement for Schock's boat sales and repair business. The License granted
herein is subject to the terms, covenants and conditions hereinafter set forth, and
Schock covenants, as a material part of the consideration for this License, to
keep and perform each and every term, covenant and condition of this
Agreement.
2. Use of the Premises:
Schock's use of the 29th Street Dock shall be limited to the retail sale of boats
and the repair of boats, subject to the terms of this Agreement.
Except as provided under this Agreement, Schock shall not make or permit to be
made any alterations, additions or improvements to the 29th Street Dock, nor
shall it paint, install decorations, or install any signs, lettering or advertising of
any type, or any other type of visual displays, on or about the 29th Street Dock
without the prior written consent of City.
3. Permits And Licenses:
Schock, at its sole expense, shall obtain and maintain during the term of this
Agreement, all appropriate permits, licenses and certificates that may be required
by any governmental agency.
51
61
Term:
The term of the license granted hereunder ("Term") shall commence retroactively
on 11 - "Commencement ! and continue for a period of
terminatedyears, unless earlier as set forth
This Agreement shall automatically be extended, on the same terms and
conditions as set forth in this Agreement, for one (1) term of five (5) years
("Renewal Term") unless at least thirty (30) days prior to the expiration of the
Term, Schock notifies City in writing of Schock's intention not to extend this
Agreement and by the end of the Term, Schock also complies with the surrender
conditions of Section 20 below. Notwithstanding the above, this Agreement shall
not be automatically extended if Schock has defaulted in the performance of any
term or condition of the Agreement and has failed to cure such default after
notice as provided in this Agreement.
License Fee:
a. Commencing July 1, 2007, and on the first (1S) of each month thereafter
during the Term and Renewal Term, Schock shall pay the "License Fee",
as defined below, to City.
b. The monthly License Fee shall be:
July 1, 2007 — June 30, 2008: $660.00
July 1, 2008 — June 30, 2009: $11320.00
C. Upon the third (3nd) anniversary of the Commencement Date and upon
each anniversary of the Commencement Date thereafter, the License Fee
shall be adjusted in proportion to changes in the Consumer Price Index.
Such adjustment shall be made by multiplying the original License Fee by
a fraction, the numerator of which is the value of the Consumer Price
Index for the calendar month three (3) months preceding the calendar
month for which such adjustment is to be made and the denominator of
which is the value of the Consumer Price Index for the same calendar
month immediately prior to Commencement Date. For example, if the
adjustment was to occur effective July 1, 2009, the index to be used for
the numerator is the index for the month of April 2009 and the index to be
used for the denominator is the index for the month of April preceding the
Commencement Date. The "Consumer Price Index" to be used in such
calculation is the Consumer Price Index, All Urban Consumers (All Items),
for the Los Angeles Anaheim Riverside Metropolitan Area, published by
the United States Department of Labor, Bureau of Labor Statistics (1982
84 = 100). If both an official index and one or more unofficial indices are
published, the official index shall be used. If said Consumer Price Index is
no longer published at the adjustment date, it shall be constructed by
conversion I.. .: • in such _ index. no event,
_ • _ _ shall
the amount payable under this Agreement be reduced below the License
Fee in effect immediately preceding such adjustment.
. A ten percent (10%) penalty shall be added to the License Fee if not
received by City within thirty (30) days following the due date. In addition,
all unpaid fees shall accrue interest at the rate of One and a Half Percent
(1 Y2%) per month or any portion of a month until paid in full.
6. Maintenance
Schock shall be responsible for maintenance of the Premises, including pier,
gangway, float and pile. Schock's obligation to maintain the Premises shall
include a regular preventative maintenance program, together with routine
repairs caused by normal wear and tear, to be provided by a licensed service
company acceptable to City. Schock shall obtain all required Building permits
necessary for such repair.
City shall be entitled, with a Schock representative, to inspect the 29th Street
Dock for compliance with the terms of this Agreement, and with all applicable
Federal, State and local (including those of the City) government regulations.
7. Services to be Performed by Schock
In addition to the payment of the License Fee, Schock shall also:
a. Maintain the 29th Street Dock in a safe and working condition;
b. Maintain vehicle access on surrounding public streets by complying with
City of Newport Beach Municipal Code parking regulations; and
C. Prohibit all vessels (owned and under the care of Schock) from being
moored overnight at the 29th Street Dock without prior written permission
from City. Schock further agrees and understands that the 29th Street
Dock is and continues to be public property and that the public shall not be
denied access to and use of the 29th Street Dock.
8. Standard of Care:
Schock agrees to perform all services required hereunder in a manner
commensurate with community professional standards.
9. Acceptance of Condition of Premises:
Schock shall accept the 29th Street Dock in "as is" condition, with no warranty,
4
express • • from the City I to any latent, patent, foreseeable I •.
unforeseeable condition of the 2 9th Street Dock.
Nothing herein shall be deemed to create a leasehold interest, easement or any
property right, or to grant any possessory or other interest in the 29th Street Dock,
other than a revocable license to use and access the 29th Street Dock for the
term set forth in this Agreement.
11. Reservation of Rights:
Schock understands, acknowledges and agrees that any and all authorizations
granted to Schock under this Agreement are non-exclusive and shall remain
subject to all prior and continuing regulatory and proprietary rights and powers of
City to regulate, govern and use City property, as well as any existing
encumbrances, deeds, covenants, restrictions, easements, dedications and other
claims of title that may affect City property.
12. Inspection:
City shall be entitled to inspect the 29th Street Dock for compliance with the terms
of this Agreement, and for compliance with all applicable Federal, State and local
(including those of the City) government laws, statutes, ordinances, rules and
regulations. City may exercise these inspection rights at any time without notice.
13. City Retention Rights:
Schock's right to use the 29th Street Dock during the Term of this Agreement
shall be subordinate and junior to the rights of City to use and occupy the 29th
Street Dock for any purpose that does not interfere with Schock's use.
14. Prohibition Against Transfers:
Schock shall not assign, sublease, hypothecate, or transfer this Agreement or
any interest therein directly or indirectly, by operation of law or otherwise. Any
attempt to do so without the prior written consent of City shall be null and void,
and any assignee, sublessee, hypothecate or transferee shall acquire no right or
interest under this Agreement of such attempted assignment, hypothecation or
transfer.
Schock is also prohibited against leasing, renting, transferring or assigning any
space located at the 29th Street Dock to any other person or entity for any reason
whatsoever.
The sale, assignment, transfer or other disposition of any of the issued or
outstanding capital stock of Schock, or of the interest of any general partner or
joint venture or syndicate member or cotenant if Schock is a partnership or joint
venture or syndicate or cotenancy, which shall result in changing the control of
Schock, shall be construed as an assignment of this Agreement. Control means
fifty percent (50%) or more of the voting power of the corporation.
15. Taxes:
Schock shall pay all possessory interest taxes, property taxes, real property
taxes, fees and assessments which may at any time be imposed or levied by any
public entity and attributable to Schock's use of the 29th Street Dock. City hereby
gives notice to Schock, pursuant to Revenue and Tax Code Section 107.6 that
this Agreement may create a possessory interest which is the subject of property
taxes levied on such interest, the payment of which taxes shall be the sole
obligation of Schock.
16. Termination:
a. In the event Schock fails or refuses to perform any of the provisions hereof
at the time and in the manner required hereunder, Schock shall be
deemed in default in the performance of this Agreement. If such default is
not cured within a period of five (5) days after Schock receives written
notice of default, specifying the nature of such default and the steps
necessary to cure such default, City may terminate the Agreement by
giving written notice to Schock thereof.
b. Notwithstanding Section 16(a) above, either party shall have the option, at
its sole discretion and without cause, of terminating this Agreement by
giving thirty (30) days' prior written notice to the other party as provided
herein. Upon termination of this Agreement, Schock shall pay to City that
pro -rated portion of fees specified in this Agreement that is unpaid prior to
the effective date of termination.
17. Independent Parties:
City and Schock intend that the relationship between them created by this
Agreement is that of Licensor -Licensee. The parties intend and agree that at all
times during the term of this Agreement, Schock shall have sole legal
responsibility to remit all federal and state income and social security taxes, to
provide for workers compensation and unemployment insurance, and to provide
liability insurance in amounts as required by City.
18. Indemnification:
To the fullest extent permitted by law, Schock hereby agrees to defend,
indemnify, and hold City harmless from and against any and all liability, claims
damages, suits, penalties, actions, demands, judgments, losses, or expenses of
any kind or nature, including damage to any property and injury (including death)
to any person (collectively, "Claims"), arising out of or resulting in any way, in
whole or in part, from its use, maintenance, repair or occupation of the Premises,
or any acts or omissions, intentional or negligent, of Schock or its officers, agents
or employees in the performance of their duties and obligations under this
Agreement, except to the extent such claims are caused by the sole negligence
or willful misconduct of City, its officers, agents and employees.
19. Insurance:
Without limiting Schock's indemnification of City, Schock shall obtain, provide
and maintain at its own expense during the term of this Agreement, a policy or
policies of liability insurance of the type and amounts described below and in a
form satisfactory to City.
A. Certificates of Insurance. Schock shall provide certificates of insurance
with original endorsements to City as evidence of the insurance coverage
required herein. Insurance certificates must be approved by City's Risk
Manager prior to commencement of performance or issuance of any
permit. Current certification of insurance shall be kept on file with City at
all times during the term of this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on its
behalf shall sign certification of all required policies.
C. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner
to transact business of insurance in the State of California, with an
assigned policyholders' Rating of A (or higher) and Financial Size
Category Class VII (or larger) in accordance with the latest edition of
Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
D. Coverage Requirements.
i. Workers' Compensation Coverage. Schock shall maintain
Workers' Compensation Insurance and Employer's Liability
Insurance for its employees in accordance with the laws of the
State of California. In addition, Schock shall require each
subcontractor to similarly maintain Workers' Compensation
Insurance and Employer's Liability Insurance in accordance with
the laws of the State of California for all of the subcontractor's
employees. Any notice of cancellation or non -renewal of all
Workers' Compensation policies must be received by City at least
thirty (30) calendar days (10 calendar days written notice of non-
payment of premium) prior to such change. The insurer shall agre'...
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to waive all rights of subrogation against City, its officers, agent
employees and volunteers for losses arising from work performe
by Schock for City.
General Liability Coverage. Schock shall maintain commercial
general liability insurance in an amount not less than One Million
Dollars ($1,000,000.00) per occurrence for bodily injury, personal
injury, and property damage, including without limitation,
contractual liability. If commercial general liability insurance or
other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to the work to be performed
under this Agreement, or the general aggregate limit shall be at
least twice the required occurrence limit.
E. Endorsements. Each general liability insurance policy shall be endorsed
with the following specific language:
The City, its elected or appointed officers, officials, employees,
agents and volunteers are to be covered as additional insureds with
respect to liability arising out of work performed by or on behalf of
Schock.
ii. This policy shall be considered primary insurance as respects to
City, its elected or appointed officers, officials, employees, agents
and volunteers as respects to all claims, losses, or liability arising
directly or indirectly from Schock' s operations. Any insurance
maintained by City, including any self-insured retention City may
have, shall be considered excess insurance only and not
contributory with the insurance provided hereunder.
iii. This insurance shall act for each insured and additional insured as
though a separate policy had been written for each, except with
respect to the limits of liability of the insuring company.
iv. The insurer waives all rights of subrogation against City, its elected
or appointed officers, officials, employees, agents and volunteers.
V. Any failure to comply with reporting provisions of the policies shall
not affect coverage provided to City, its elected or appointed
officers, officials, employees, agents or volunteers.
vi. The insurance provided by this policy shall not be suspended,
voided, canceled, or reduced in coverage or in limits, by either party
except after thirty (30) calendar days (10 calendar days written
notice of non-payment of premium) written notice has been
received by City.
TimelZ Notice of Claims. Schock shall give City prompt and timely notice
of any claim made or suit instituted arising out of or resulting from
Schock's performance under this Agreement.
G. Additional Requirements.
If the insurance is written on a Claims Made Form, then, following
termination of this Agreement, said insurance coverage shall
survive for a period of not less than five (5) years;
ii. The insurance policies shall provide for a retroactive date of
placement coinciding with the effective date of this Agreement;
iii. The insurance shall be approved as to form and sufficiency by the
City's Risk Manager and the City Attorney.
20. Hazardous Substances:
a. From the date of execution of this Agreement and throughout the Term,
Schock shall not use, store, manufacture or maintain on the 29th Street
Dock any Hazardous Substances.
b. For purposes of this Agreement, the term "Hazardous Substance" means:
(i) any substance, product, waste or other material of any nature
whatsoever which is or becomes listed, regulated, or addressed pursuant
to the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Section 9601 et seq. ("CERLCA"); the Hazardous
Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; the
Resource Conversation and Recovery Act, 42 U.S.C. Section 6901 et seq.
("RCRA"); the Toxic Substances Control Act, 15 U.S.C. Section 2601 et
seq.; the Clean Water Act, 33 U.S.C. Section 1251 et seq.; the California
Hazardous Waste Control Act, Health and Safety Code Section 25100 et
seq.; the California Hazardous Substance Account Act, Health and Safety
Code Sections 25330 et seq.; the California Safe Drinking Water and
Toxic Enforcement Act, Health and Safety Code Sections 25249.5 et seq.;
California Health and Safety Code Sections 25280 et seq. (Underground
Storage of Hazardous Substances); the California Hazardous Waste
Management Act, Health and Safety Code Sections 25170.1 et seq.;
California Health and Safety Code Sections 25501 et seq. (Hazardous
Materials Response Plans and Inventory); or the Porter -Cologne Water
Quality Control Act, Water Code Sections 13000 et seq., all as they, from
time -to -time may be amended, (the above-cited statutes are here
collectively referred to as "the Hazardous Substances Laws") or any other
Federal, State or local statute, law, ordinance, resolution, code, rule,
regulation, order or decree regulating, relating to, or imposing liability or
standards of conduct concerning, any hazardous, toxic or dangerous
waste, substance or material, as now or at any time hereafter in effect; (ii)
any substance, product, waste or other material of any nature whatsoever
which may give rise to liability under any of the above statutes or under
any statutory or common law theory, including but not limited to
negligence, trespass, intentional tort, nuisance, waste or strict liability or
under any reported decisions of a state or federal court; (iii) petroleum or
crude oil; and (iv) asbestos.
C. Notwithstanding any contrary provision of this Agreement, and in addition
to the indemnification duties of Schock set forth in Section 18 in this
Agreement, Schock agrees to indemnify, defend with counsel reasonably
acceptable to City, protect, and hold harmless the City, its officials,
officers, employees, agents, and assigns from and against any and all
losses, fines, penalties, claims, damages, judgments, or liabilities,
including, but not limited to, any repair, cleanup, detoxification, or
preparation and implementation of any remedial, response, closure or
other plan of any kind or nature which the City, its officials, officers,
employees, agents, or assigns may sustain or incur or which may be
imposed upon them in connection with the use of the 29th Street Dock
provided under this Agreement, arising from or attributable to the storage
or deposit of Hazardous Substances. This Section is intended to operate
as an agreement pursuant to Section 107(e) of CERCLA, 42 USC Section
9607(e), and California Health and Safety Code Section 25364, to insure,
protect, hold harmless, and indemnify City for any claim pursuant to the
Hazardous Substance Laws or the common law.
d. City agrees that City will not, and will not authorize any third party to use,
generate, store, or dispose of any Hazardous Substances on, under,
about or within the 29th Street Dock in violation of any law or regulation.
City and Schock each agree to defend, indemnify and hold harmless the
other and the other's partners, affiliates, agents and employees against
any and all losses, liabilities, claims and/or costs (including reasonable
attorneys' fees and costs) arising from any breach of any representation,
warranty or agreement contained in this Section. This Section shall
survive the termination of this Agreement. Upon expiration or earlier
termination of this Agreement, Schock shall surrender and vacate the 29th
Street Dock and deliver possession thereof to City on or before the
termination date free of any Hazardous Substances released into the
environment at, on or under the 29th Street Dock that are directly
attributable to Schock.
21. Compliance with Laws:
Schock, at its sole cost, shall observe, perform, and comply with all laws,
statutes, ordinances, rules, and regulations promulgated by any governmental
agency, including all applicable zoning ordinances, building codes and
environmental laws. Schock shall not occupy or use the 29th Street Dock, or
permit any portion of the 2 9th Street Dock to be occupied or used for any use or
purpose that is unlawful in part or in whole, or deemed by City to be disreputable
in any manner or extra hazardous in any way.
22. Not Agent of City:
Neither anything in this Agreement nor any acts of Schock shall authorize
Schock or any of its employees, agents or contractors to act as agent, contractor,
joint venturer or employee of City for any purpose.
23. No Third Party -Beneficiaries:
City and Schock do not intend, by any provision of this Agreement, to create in
any third party, any benefit or right owed by one party, under the terms and
conditions of this Agreement, to the other party.
24. Notices:
All notices and other communications required or permitted to be given under this
Agreement, including any notice of change of address, shall be in writing and
given by personal delivery, or deposited with the United States Postal Service,
postage prepaid, addressed to the parties intended to be notified. Notice shall be
deemed given as of the date of personal delivery, or if mailed, upon the date of
deposit with the United States Postal Service. Notice shall be given as follows:
To City: Administrative Services Department
Revenue Division
Attention: Income Contract Administrator
City of Newport Beach
PO Box 1768
3300 Newport Boulevard
Newport Beach, CA, 92658
To Schock: Sails by Schock
Marie Schock
2900 Lafayette Avenue
Newport Beach, CA 92663
25. Entire Agreement/Amendments:
a. The terms and conditions of this Agreement, all exhibits attached hereto,
and all documents expressly incorporated by reference, represent the
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27.
entire Agreement of the parties with respect to the subject matter of this
Agreement.
• This written Agreement• •' any and all prior agreements,oral
or written, regarding the subject matter between Schock and the City.
C. No other agreement, promise or statement, written or oral, relating to the
subject matter of this Agreement, shall be valid or binding, except by way
of a written amendment to this Agreement.
. The terms and conditions of this Agreement shall not be altered or
modified except by a written amendment to this Agreement signed by
Schock and City.
e. If any conflicts arise between the terms and conditions of this Agreement,
and the terms and conditions of the attached exhibits or the documents
expressly incorporated by reference, the terms and conditions of this
Agreement shall control.
f. Any obligation of the parties relating to monies owed, as well as those
provisions relating to limitations on liability and actions, shall survive
termination or expiration of this Agreement.
Waivers:
The waiver by either party of any breach or violation of any term, covenant or
condition of this Agreement, or of any ordinance, law or regulation, shall not be
deemed to be a waiver of any other term, covenant, condition, ordinance, law or
regulation, or of any subsequent breach or violation of the same or other term,
covenant, condition, ordinance, law or regulation. The subsequent acceptance by
either party of any fee, performance, or other consideration which may become
due or owing under this Agreement, shall not be deemed to be a waiver of any
preceding breach or violation by the other party of any term, condition, covenant
of this Agreement or any applicable law, ordinance or regulation.
Costs And Attorneys' Fees:
The prevailing party in any action brought to enforce the terms and conditions of
this Agreement, or arising out of the performance of this Agreement, shall not be
entitled to recover its attorneys' fees.
City Business License:
Schock shall obtain and maintain during the duration of this Agreement, a City
business license as required by the Newport Beach Municipal Code.
12
9MINIV Me IT OF PI
This Agreement shall be construed in accordance with the laws of the State of
California in effect at the time of the execution of this Agreement. Any action
brought relating to this Agreement shall be adjudicated in a court of competent
jurisdiction in the County • Orange.
30. 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.
31. Time is of the Essence:
Time is of the essence for this Agreement.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in
duplicate on the date and year first written herein.
City of Newport Beach
A Municipal Corporation
we7-�,e-
omer Bludau, City Manager
Assistant City Attorney
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Sails by Schock, Inc.
a California coraarAtion
M
Name:
fees l &a �t'►r�
Title:
/a --1Y- ai
Date:
By:
Name:
Title:
Date:
C -also
LICENSE AGREEMENT
This AGREEMENT, entered into this I L02' day of 1998, by
and between the CITY OF NEWPORT BEACH, a municipal corporation
(hereinafter referred to as `City "), and SCHOCK BOATS, a California Corporation
(hereinafter referred to as "Schock ") whose address is 2900 Lafayette Avenue,
Newport Beach, California, 92663, and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under
the laws of the State of California with the power to carry on its business
as it is now being conducted under the statutes of the State of California
and the Charter of City.
B. City is owner of approximately 57' of dock with floats and access ramps
located at the end of 29`h Street. City dock, floats and access ramps are
shown on Exhibit "A" ("29' St. Dock ").
C. Schock conducts a boat sales and repair business at 2900 Lafayette
Avenue.
D. City and Schock entered into an Agreement dated May 29, 1987 for use
of the 29th St. Dock, which Agreement expired on April 30, 1997.
Between May 1, 1998 and April 30, 1998, Schock continued to use the
29th St. Dock under the terms of the 1987 Agreement.
E. City and Schock desire to enter into an Agreement to allow Schock the
use of the 29th St. Dock effective May 1, 1998.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. TERMS
The term of this License Agreement shall be effective as of the 18'
day of May 1998 and shall terminate on the 30th day of June 2006,
unless terminated earlier as set forth herein.
2. LICENSE GRANT
City grants to Schock a license to the use of the 29"' St. Dock for
Schock's boat sales and repair business upon terms and conditions
of this Agreement.
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3. SERVICES TO BE PERFORMED BY SCHOCK
Schock shall:
a. Maintain the 29" St. Dock in a safe and working condition.
b. Pay to City fees in the amount of six thousand dollars
($6,000) per year to be used by City to repair and replace
boats and materials for the City sailing program. Payment
shall be made biannually with first payment of $3,000. due
within ten (10) days of City Council approval of this
Agreement, the second payment of $3,000.00 due on
January 1, 1999, and $3,000.00 each July 1st and January
1st thereafter. Commencing on July 1, 2001, Schock agrees
to pay increased fees adjusted to the fair market value
established for rental rate per lineal foot of comparable
facilities. In addition, Schock agrees to pay an additional
$1,000. for May and June of 1998, at the same time first
payment is due.
C. Maintain vehicle access on surrounding public streets by
complying with City of Newport Beach Municipal Code
(NBMC) parking regulations.
d. Prohibit all vessels from being moored overnight at the 29'"
Street Dock without prior permission from City. Schock
further agrees and understands that the 29" Street Dock is
and continues to be public property and that the public shall
not be denied access to and use of the 291" Street Dock.
4. STANDARD OF CARE
5.
Schock agrees to perform or pay for all services, materials
hereunder in a manner commensurate with the community
professional standards and agrees that all services will be
performed by qualified and experienced personnel or companies
who are not employed by City nor have any contractual relationship
with City.
City and Schock intend that the relationship between them created
by this Agreement is that of Licensor - Licensee. The parties intend
and agree that al all times during the performance of services
pursuant to this agreement, Schock shall have sole legal
responsibility to remit all federal and state income and social
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security taxes, to provide for workers compensation and
unemployment insurance, and to provide liability insurance in
amounts as required by City.
6. INDEMNIFICATION AND INSURANCE
Schock shall indemnify and hold harmless City, its City Council,
boards and commissions, officers and employees from and against
any and all loss, damage, liability, claims, suites, costs and
expenses whatsoever, including reasonable attorneys' fees,
regardless of the merit of any such claim or suit arising from or in
any manner connected to Schock's use, maintenance and repair of
29th St. Dock pursuant to this Agreement.
City shall indemnify and hold harmless Schock, its officers and
employees from and against any and all loss, damage, liability,
claims, suits, costs and expenses whatsoever, including
reasonable attorneys' fees, regardless of the merit of any such
claim or suit arising from or in any manner connected to City's
negligent performance of services or work conducted or performed
pursuant to this Agreement.
Schock shall furnish to City with certificates showing current
insurance coverage of a minimum of one million dollars
($1,000,000) in general commercial liability and Workers'
Compensation (as required by State Law). The commercial
liability policy shall be issued by an insurance company licensed to
sell insurance in the State of California and shall carry a special
endorsement naming City as additional insured. All insurance shall
be maintained for the term of the Agreement.
7. PROHIBITION AGAINST TRANSFERS
Schock shall not assign, sublease, hypothecate, or transfer this
Agreement or any interest therein directly or indirectly, by operation
of law or otherwise. Any attempt to do so without said consent
shall be null and void, and any assignee, sublessee, hypothecate
or transferee shall acquire no right or interest by reason of such
attempted assignment, hypothecation or transfer.
Schock understands and agrees that this Prohibition Against
Transfers includes, but is not limited to, the Prohibition against
leasing, renting, transferring or assigning any space located at the
29'" Street Dock to any other person or entity for any reason
whatsoever.
3
The sale, assignment, transfer or other disposition of any of the
issued or outstanding capital stock of Schock, or of the interest of
any general partner or joint venture or syndicate member or
cotenant if Schock is a partnership or joint venture or syndicate or
cotenancy, which shall result in changing the control of Schock,
shall be construed as an assignment of this Agreement. Control
means fifty percent (50 %) or more of the voting power of the
corporation.
8. PERMITS AND LICENSES
Schock, at its sole expense, shall obtain and maintain during the
term of this Agreement, all appropriate permits, licenses and
certificates that may be required in connection with the
performance of services hereunder.
9. RECORDS
Schock shall maintain complete and accurate records with respect
to sales, costs, expenses, receipts and other such information
required by City that relate to the performance of services under
this Agreement.
Schock shall maintain adequate records of services provided in
sufficient detail to permit an evaluation of services. All such
records shall be maintained in accordance with generally accepted
accounting principles and shall be clearly identified and readily
accessible.
10. NOTICES
All notices, demands, request or approvals to be given under this
Agreement, shall be given in writing and conclusively shall be
deem served when delivered personal or on the second day after
the deposit thereof in the Unites States mail postage prepaid,
registered or certified, addressed as hereinafter provided.
All notices, demands, requests, or approvals from Schock to City
shall be addressed to City at:
Newport Beach City Hall
3300 Newport Blvd.
P.O. Box 1768
Newport Beach, CA, 92658 -8915
Attention : Community Services Department
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All notices, demands, requests, or approvals from City to Schock
shall be addressed to Schock at:
Schock Boats
2900 Lafayette Avenue
Newport Beach, CA, 92663
11. TERMINATION
(a) In the event Schock hereto fails or refuses to perform any of
the provisions hereof at the time and in the manner required
hereunder, Schock shall be deemed in default in the
performance of this Agreement. If such default is not cured
within a period of five (5) days after Schock receives written
notice of default, specifying the nature of such default and
the steps necessary to cure such default, City may terminate
the Agreement forthwith by giving to Schock written notice
thereof.
(b) Notwithstanding section 11(a), above, either party shall have
the option, at its sole discretion and without cause, of
terminating this Agreement by giving thirty (30) days' written
notice to the other party as provided herein. Upon
termination of this Agreement, Schock shall pay to the City
that pro -rated portion of fees specified in this Agreement that
is unpaid prior to the effective date of termination.
12. COMPLIANCES
Schock shall comply with all laws, State or Federal and all
ordinances, rules and regulations enacted or issued by City.
13. WAIVER
A waiver by City 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.
14. INTEGRATED CONTRACT
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
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nature are merged herein. No verbal agreement or implied
covenant shall be held to vary the provisions hereof. Any
modification of this Agreement will be effective only by written
execution signed by both City and Schock.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the day and year first above written.
CITY OF NEWPORT BEACH,
a Municipal rporation
By:
Mayor
APPROVED S TO FORM:
By:_�
Robin L. Clauson,
Assistant City Attorney
SCHOCK BOATS
a California Corporation
a,f'y.IV
ATTEST:
By: �� AAI� r i / . lVW &'
LaVonne Harkless,
City Clerk
F:\ cat\ da \ks\Shared\Ag \Schock \071399.doc
11
• • c - ?k�-o
AGREEMENT
THIS AGREEMENT, entered into this -294L day of May,
1987, by and between the CITY OF NEWPORT BEACH, a municipal
corporation (hereinafter referred to as "City "), SAILS BY SCHOCK,
a California Corporation doing business as SCHOCK BOATS, whose
address is 2900 Lafayette Avenue, Newport Beach, California,
92663 (hereinafter referred to as "Schock "), is made with
reference to the following:
RECITALS:
A. The City is a municipal corporation duly organized
and validly existing under the laws of the State of California
with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the
Charter of the City.
B. Schock conducts a boat sales and repair business
and has offered to give boats to the City for use in the
intructional sailing program conducted by the Parks, Beaches and
Recreation Department.
C. The City desires to enter into an Agreement for the
provision of instructional boats.
D. Schock desires to enter into an Agreement for use
of the public street end at 29th Street and adjacent floats and
access ramps.
NOW, THEREFORE, it is mutually agreed by and between
the undersigned parties as follows:
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I . TERM
The term of this Agreement shall commence on the 1st
day of May, 1987, and shall terminate on the 30th day of April,
1997, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED BY SCHOCH
Schock shall perform the following services:
a. Maintain in a safe and working condition all floats
and access ramps constructed as public property at the end of
29th Street (hereinafter 1129th Street Ramp ").
b. Annually provide to the Parks, Beaches and
Recreation Department a total of five (5) Sabots and four (4)
Lido 14's for the first year of this Agreement for use in the
instructional sailing program. The number of Lido 14's will be
reserved to two (2) for the remainder of the term of this
Agreement.
c. Provide maintenance and repair of sailboats.
Schock's cost for the maintenance and repair shall not to exceed
five - hundred dollars ($500.00) per year.
d. Maintain vehicle access on surrounding public
streets by parking all vehicles and trailers in a manner which
will comply with City Municipal Code parking regulations.
e. Prohibit all vessels from being moored over night
at the 29th Street Ramp without prior permission from the City of
Newport Beach. Schock further agrees and understands that the
29th Street Ramp is and continues to be public property and that
the public shall not be denied access to the 29th Street Ramp.
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3. SERVICES TO BE PERFORMED BY CITY
City shall perform the following services:
a. Provide Schock with use of the floats and access
ramps constructed at the end of 29th Street for the purpose of
conducting business related to sales and repair services.
b. Return to Schock a total of five (5) Sabots
annually. Commencing in 1989, returning a total of two (2) Lido
14's for the remainder of the term of this Agreement.
4. STANDARD OF CARE
Schock agrees to perform all services hereunder in a
manner commensurate with the community professional standards and
agrees that all services will be performed by qualified and
experienced personnel who are not employed by the City nor have
any contractural relationship with the City.
5. INDEPENDENT PARTIES
City and Schock intend that the relationship between
them created by this Agreement is that of independent
contractor. The manner and means of conducting the work are
under the control of Schock, except to the extent they are
limited by statute, rule or regulation and the express terms of
this Agreement. No civil service status or other right of
employment will be acquired by virtue of Schock's services. None
of the benefits provided by City to its employees, including but
not limited to unemployment insurance, worker's compensation
plans, vacation and sick leave are available from City to Schock,
its employees or agents. Deductions shall not be made for any
state or federal taxes, FICA payments, PERS payments, or other
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purposes normally associated with an employer - employee
relationship. Payments of the above items, if required, are the
responsibility of Schock.
6. HOLD HARMLESS
Schock shall indemnify and hold harmless City, its City
Council, boards and commissions, officers and employees from and
against any and all loss, damage, liability, claims, suits, costs
and expenses whatsoever, including reasonable attorneys' fees,
regardless of the merit of any such claim or suit arising from or
in any manner connected to Schock's negligent performance of
services or work conducted or performed pursuant to this
Agreement.
City shall indemnify and hold harmless Schock, its
officers and employees from and against any and all loss, damage,
liability, claims, suits, costs and expenses whatsoever,
including reasonable attorneys' fees, regardless of the merit of
any such claim or suit arising from or in any manner connected to
City's negligent performance of services or work conducted or
performed pursuant to this Agreement.
7. INSURANCE
On or before the commencement of the term of this
Agreement, Schock shall furnish City with certificates showing
the type, amount, class or operations covered, effective dates
and dates of expiration of insurance coverage. Such
certificates, which do not limit Schock's indemnification, shall
also contain substantially the following statement: "The
Insurance covered by this certificate will not be cancelled by
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the insurer except after ten (10) days' written notice has been
received by the City of Newport Beach.
It is agreed that Schock shall maintain in force at all
times during the performance of this Agreement all coverage of
insurance required by this Agreement with an insurance company
that is acceptable to the City of Newport Beach and licensed to
do insurance business in the State of California.
Schock shall maintain the following insurance coverage:
A. WORKER'S COMPENSATION
Statutory coverage as required by the State of
California.
limits:
B. LIABILITY
Comprehensive general coverage in the following minimum
Bodily Injury: $250,000 each person
$500,000 each occurrence
$500,000 aggregate
Property Damage: $100,000 each occurrence
$250,000 aggregate
A combined single limit policy with aggregate limits in
the amount of $1,000,000 will be considered equivalent to the
required minimum limits shown above.
C. SUBROGATION WAIVER
Schock agrees that in the event of loss due to any of
the perils for which it has agreed to provide comprehensive
general liability insurance, that Schock shall look solely to its
insurance for recovery. Schock hereby grants to City, on behalf
of any insurer providing comprehensive general liability
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insurance to either Schock or City with respect to the services
of Schock herein, a waiver of any right of subrogation which any
such insurer of Schock may acquire against City by virtue of the
payment of any loss under such insurance.
D. FAILURE TO SECURE
If Schock at any time during the term hereof should
fail to secure or maintain the foregoing insurance, City shall be
permitted to obtain such insurance in Schock's name or as an
agent of Schock and shall be compensated by Schock for the costs
of the insurance premiums at the maximum rate permitted by law
computed from the date written notice is received that the
premiums have been paid.
E. ADDITIONAL INSURED
City, its City Council, boards and commissions,
officers, and employees shall be named as an additional insured
under all insurance coverages, except any professional liability
insurance, required by this Agreement. The naming of an
additional insured shall not affect any recovery to which such
additional insured would be entitled under this policy if not
named as such additional insured; and an additional insured named
herein shall not be held liable for any premium deductible
portion of any loss, or expense of any nature on this policy or
any extension thereof. Any other insurance held by an additional
insured shall not be required to contribute anything toward any
loss or expense covered by the insurance provided by this policy.
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F. LIMITATION OF INSURANCE
City and Schock agree that the insurance provided under
this Section shall not apply to any loss or damage to the boats
provided under this Agreement.
8. PROHIBITION AGAINST TRANSFERS
Schock shall not assign, sublease, hypothecate, or
transfer this Agreement or any interest therein directly or
indirectly, by operation of law or otherwise. Any attempt to do
so without said consent shall be null and void, and any assignee,
sublessee, hypothecate or transferee shall acquire no right or
interest by reason of such attempted assignment, hypothecation or
transfer.
Schock understands and agrees that this Prohibition
Against Transfers includes, but is not limited to, the
Prohibition against leasing, renting, transferring or assigning
any space located at the 29th Street Ramp to any other person or
entity for any reason whatsoever.
The sale, assignment, transfer or other disposition of
any of the issued and outstanding capital stock of Schock, or of
the interest of any general partner or joint venturer or
syndicate member or cotenant if Schock is a partnership or joint
venture or syndicate or contenancy, which shall result in
changing the control of Schock, shall be construed as an
assignment of this Agreement. Control means fifty percent (50 %)
or more of the voting power of the corporation.
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9. PERMITS AND LICENSES
Schock, at its sole expense, shall obtain and maintain
during the term of this Agreement, all appropriate permits,
licenses and certificates that may be required in connection with
the performance of services hereunder.
10. RECORDS
Schock shall maintain complete and accurate records
with respect to sales, costs, expenses, receipts and other such
information required by City that relate to the performance of
services under this Agreement.
Schock shall maintain adequate records of services
provided in sufficient detail to permit an evaluation of
services. All such records shall be maintained in accordance
with generally accepted accounting principles and shall be
clearly identified and readily accessible.
11. NOTICES
All notices, demands, requests or approvals to be given
under this Agreement, shall be given in writing and conclusively
shall be deemed served when delivered personally or on the second
business day after the deposit thereof in the United States Mail,
postage prepaid, registered or certified, addressed as
hereinafter provided.
All notices, demands, requests, or approvals from
Schock to City shall be addressed to City at:
Newport Beach City Hall
3300 Newport Boulevard - P.O. Box 1768
Newport Beach, CA 92658 -8915
Attention: Parks, Beaches and Recreation Director
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All notices, demands, requests, or approvals from City
to Schock shall be addressed to Schock at:
Schock Boats
2900 Lafayette Avenue
Newport Beach, CA 92663
12. TERMINATION
In the event Schock hereto fails or refuses to perform
any of the provisions hereof at the time and in the manner
required hereunder, Schock shall be deemed in default in the
performance of this Agreement. If such default is not cured
within a period of two (2) days after receipt by Schock from City
of written notice of default, specifying the nature of such
default and the steps necessary to cure such default, City may
terminate the Agreement forthwith by giving to Schock written
notice thereof.
Either party shall have the option, at its sole
discretion and without cause, of terminating this Agreement by
giving thirty (30) days' written notice to the other party as
provided herein. Upon termination of this Agreement, each party
shall pay to the other party that portion of compensation
specified in this Agreement that is earned and unpaid prior to
the effective date of termination.
13. COST OF LITIGATION
If any legal action is necessary to enforce any
provision hereof or for damages by reason for an alleged breach
of any provisions of this Agreement, the prevailing party shall
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be entitled to receive from the losing party all costs and
expenses in such amount as the court may adjudge to be reasonable
attorneys' fees.
15. COMPLIANCES
Schock shall comply with all laws, state or federal and
all ordinances, rules and regulations enacted or issued by the
City.
16. WAIVER
A waiver by the City 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.
17. INTEGRATED CONTRACT
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
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hereof. Any modification of this Agreement will be effective
only by written execution signed by both City and Schock.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed on the day and year first above written.
APPROVED AS TO FORM:
cico I ni. r'oa a ko
City Attorney
ATTEST:
City Clerk
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CITY OF NEWPORT BEACH,
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