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Home My WebLink About08 - BA-049 Lifeguard Vehicle Sponsorship AgreementREPLACEMENT STAFF REPORT & AGREEMENT CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 8 March 11, 2003 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Fire Department Timothy Riley, Fire Chief, 644 -3101, triley @city.newport- beach.ca.us SUBJECT: Lifeguard Vehicle Sponsorship Agreement ISSUE: The existing Lifeguard Vehicle Sponsorship Agreement between the City and Chevrolet has expired. Should the City enter into a new agreement for 13 new Chevrolet vehicles in exchange for some limited sponsorship rights on our beaches? RECOMMENDATION: Enter into an agreement between the City, as a party to the Beaches of Southern California Coalition, and the Chevrolet Motor Division of the General Motors Corporation for sponsorship of lifeguard vehicles. Approve Budget Amendment BA, transferring $8,450 from unappropriated Internal Service Fund reserves to General Service Account 6120 -9102 for the cost to transfer and install emergency equipment onto the loan vehicles. DISCUSSION: PROPOSED AGREEMENT In anticipation of the expiration of our current lifeguard vehicle sponsorship agreement, the City of Newport Beach joined the Beaches of Southern California Coalition on October 22, 2002. This agreement allows for group implementation of beach sponsorship programs among the member cities to maximize marketing revenues and reduce costs. Through this agreement, the State of California, as the agent for the Coalition, solicited the attached Lifeguard Vehicle Sponsorship Agreement from the Chevrolet Motor Division of the General Motors Corporation. In general, the terms of the agreement are: • Term of the agreement shall be for one one -year period with an option to extend for one additional three -year period. • Chevrolet will provide the City with eight S -10 pick -ups and five Tahoes during the term of the agreement. • Chevrolet will provide normal warranty services. City shall be responsible for normal vehicular maintenance. This will save the City as much as 75% (or $33,325) of the normal maintenance costs for a lifeguard vehicle or over $130,000 for the six -year life of this contract. • Chevrolet shall be granted the exclusive rights to advertise, sponsor events, and promote itself as the Official Marine Safety Vehicle Sponsor of the Beaches of Southern California. No other motor vehicle company may be promoted on the beach as part of any sponsorship program affiliated with a party to the Coalition. • Chevrolet will be allowed to participate in any City- sponsored event that takes place on our beach, subject to the City's Special Event Permit Process, without paying any normal permit fees. • Chevrolet agrees to submit to the City for prior approval, all Sponsor identification, advertising, promotional T.V. or radio commercials, and other display materials to be used in conjunction with this agreement. • City shall pay to the State of California a commission equivalent to 8% of the fair market lease value for each vehicle ($5,199 per year.) This equates to a $33,238 per year savings in vehicle replacement costs or $132,952 over the life of the six -year contract. • Chevrolet will be allowed to place a decal or sticker on each sponsorship vehicle identifying Chevrolet as the "Official Marine Safety Vehicle Sponsor of the Beaches of Southern California" similar to that found in Illustration A. • Chevrolet will be allowed to produce public safety signage on our 35 lifeguard towers as illustrated in Illustration B. EXPERIENCE WITH PAST SPONSORSHIP AGREEMENT Our recent lifeguard vehicle sponsorship agreement began in May 1998, and expired on March 7, 2003. The original agreement was one, two -year term with the option for an additional two -year term. At the expiration of the original agreement, all parties verbally agreed to extend until such time as a new agreement could be negotiated. Therefore, the City has continued to benefit from the previous agreement for one additional year without paying any further commission to the County of Los Angeles. Over the five years, the agreement saved the City over $111,670 in replacement costs and over $100,000 in maintenance costs. The previous agreement also granted Chevrolet the right to place a decal on all sponsorship vehicles touting Chevrolet as the "Official Marine Safety Vehicle of the Orange Coast Beaches," the right to display their products at City- sponsored events on our beaches, required the City to participate in one joint sponsorship event, and allowed Chevrolet to use the City logo on their promotional materials and ad campaigns. Over the five years, Chevrolet only exercised their right to place a decal on our vehicles and nothing else. ALTERNATIVES: The City Council may choose to forego entering into this agreement and take one of the following courses of action: 1) Direct staff to purchase new vehicles in lieu of participating in this sponsorship agreement. Since the City has been so successful in saving money the past five years while still contributing fully to the Internal Services Fund for lifeguard vehicles, we should have sufficient funds to purchase replacement vehicles. The General Services conservative estimate for replacing all vehicles at this time is $313,250. Such an action would require the deferral of other vehicles scheduled for replacement by other Departments in the upcoming budget. Since the prior sponsorship agreement has expired, we are obligated to return the existing sponsored beach vehicles immediately. It will be very difficult to continue to provide our current level of beach safety services if we return these vehicles prior to obtaining new ones. It could also prove difficult to purchase and equip new vehicles prior to Easter break and the beginning of our busy summer season. 2) Direct staff to seek out other vehicle sponsorship opportunities with a vehicle manufacturer other than Chevrolet. Chrysler Corporation may be interested in exploring a similar deal for their Jeep product. While the potential exists, there has been no such exploration to date and there is no guarantee that staff would be successful in locating and negotiating such an arrangement. Again, the loss of the current vehicles during this time could prove too big an obstacle to overcome. FISCAL IMPACT: As indicated in the body of the report, this agreement allows the City to operate 13 vehicles under the sponsorship agreement for the $5,199 cost of the sponsorship royalties paid to the State. The Department will continue to pay normal vehicle replacement rates equaling $38,437 into the Internal Services Fund. We will also continue to pay our normal vehicle maintenance rates equaling $44,433 into the vehicle maintenance funds in General Services with a very low expectation of like maintenance costs. We estimate the value of this agreement to the City (depending on future maintenance costs) at $262,952. The attached budget amendment will cover General Services' costs for removing all City -owned emergency equipment from the old sponsorship vehicles and install it on the new vehicles. The cost is estimated to be $650 per unit for a total of $8,450 for thirteen units. ENVIRONMENTAL REVIEW: This action requires no environmental review, because it is not a project pursuant to CEQA. ATTACHMENTS: Lifeguard Vehicle Sponsorship Agreement Illustration A Illustration B Budget Amendment Prepared and Submitte)q by: ILLUSTRATION A Option A -- 25 "Wx96 "H (job) proof file name: 661739GMprfR3.eps 01.08.03 notation: GM R•Works -- SoCal Bench Decals, Proof Rev. 3 dimensions: noted above (proof 1 /4th scale) 2201 Fifteenth Avenue West Seattle. Washington 96119 pe Alae: 206.28 4.7201 VM ■ Vmn Fur 206.284 8510 a ANIsk)n of QM Nameplate 2095 Mole Average San J s , Cahfmnla 95171 J ILLUSTRATION B WAR I 11G- D; V; N z VV i M, MI N 3 1 SHALLOA' %','AT' SUBMERGED ROCKS SANDBARS INSHORE HOLDS STRONG CURRENTS RIPTIDES SURFBCW DS. WAVES'ARI..', IX)VVI-RRA,- HAZARD(A.15 AND CHANGING C:ON'1)11'10\S MAY EXIST Lifeguard Flag System LIGHT CONDITIONS MODERATE CONDITIONS (Caution -1EAVYCONDITIONS (Danger) BOARD SURFING PROHIBITED CALL 9-1-1 IN CASE OF EMERGENCY BEACHES OF SOUTHERN CALIFORNIA COALITION mli CHEVROLET MOTOR DIVISION, GENERAL MOTORS CORP. LIFEGUARD VEHICLE SPONSORSHIP AGREEMENT 2003 BEACHES OF SOUTHERN CALIFORNIA COALITION LIFEGUARD VEHICLE SPONSORSHIP AGREEMENT Table of Contents I. Definitions ............................................................................. ..............................3 II. Grant of Rights ...................................................................... ..............................4 III. Grant of License .................................................................... ..............................7 IV. Sponsor's Obligations .......................................................... ..............................9 V. Consideration ........................................................................ ..............................9 VI. Term and Extension of Rights ............................................ .............................11 VII. Rights and Obligations of STATE ....................................... .............................11 VIII. Hold Harmless ...................................................................... .............................12 IX. Insurance ............................................................................... .............................13 X. Force Majeure ....................................................................... .............................14 XI. Default and /or Termination ................................................. .............................14 XII. Waiver ................................................................................... .............................15 XI11. Notices .................................................................................. .............................15 XIV. Assignment .......................................................................... .............................17 XV. Compliance with law ............................................................ .............................17 XVI. Severability of Provisions ................................................... .............................17 XVII. No Joint Venture .................................................................. .............................17 XVIII. Disputes ................................................................................ .............................17 XIX. Execution in Counterparts .................................................. .............................17 XX. Entire Agreement ................................................................. .............................17 Exhibit1 .................................................... .................................................................... 20 Exhibit2 ........................................................................................... .............................21 Exhibit3 ........................................................................................... .............................22 Exhibit4 ........................................................................................... .............................23 Exhibit5 ........................................................................................... .............................29 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement AGREEMENT NO. 001 BEACHES OF SOUTHERN CALIFORNIA COALITION LIFEGUARD VEHICLE SPONSORSHIP AGREEMENT BY AND BETWEEN CHEVROLET MOTOR DIVISION, GENERAL MOTORS CORPORATION, a Delaware Corporation, hereinafter referred to as "SPONSOR" AND CITIES of Seal Beach, Newport Beach, Laguna Beach, Solana Beach, Oceanside, Imperial Beach, Encinitas, and San Clemente, all municipal corporations or general law cities, hereinafter collectively referred to as "CITIES" AND ORANGE COUNTY, specifically the Public Facility Resource Department, a political subdivision of the State of California, hereinafter referred to as "ORANGE COUNTY "; AND STATE OF CALIFORNIA, specifically through the Department of Parks and Recreation, limited to its Orange Coast District hereinafter referred to as "STATE." RECITALS WHEREAS, CITIES, ORANGE COUNTY and STATE are responsible for the management of coastline within Orange and San Diego Counties; WHEREAS, CITIES ORANGE COUNTY AND STATE desire to obtain income or goods by selling rights on an exclusive basis within distinct categories of goods and services; Final 03/05103 1 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement WHEREAS, CITIES, ORANGE COUNTY and STATE are members of the BEACHES OF SOUTHERN CALIFORNIA COALITION ( "Coalition "), a coalition of public entities formed to jointly negotiate marketing agreements utilizing the expertise of STATE acting on behalf of the Coalition; WHEREAS, SPONSOR desires to obtain the exclusive rights to provide and display sponsorship identification on lifeguard vehicles being used in Orange County and San Diego county beaches; WHEREAS, SPONSOR also desires the right to purchase the exclusive rights to advertise, sponsor events, and promote itself, as the "Official Marine Safety Vehicle Sponsor of the Beaches of Southern California Coalition "; WHEREAS, STATE is authorized by the provisions of the Public Resources Code Sections 5009.1, 5009.2, and 5009.3 to enter into donor and sponsorship agreements and license the use of its logo(s) on Orange Coast Beaches that are owned or operated by the State of California; WHEREAS, ORANGE COUNTY is authorized by the provisions of the Codified Ordinance of the County of Orange Division 5, Section 2 -5 -127 to sell the right(s) to advertise on Beaches of Southern California that are owned or operated by the County of Orange; WHEREAS, CITY of IMPERIAL BEACH is authorized by the provisions of Article XI, Section 7 of the California Constitution and Government Code Sections 37350 and 37351 to sell the right(s) to advertise on Beaches of Southern California that are owned or operated by the City of Imperial Beach; WHEREAS, CITY of NEWPORT BEACH is authorized by the provisions of Article XI, Section 7 of the California Constitution and Government Code Sections 37350 and 37351 to sell the right(s) to advertise on Beaches of Southern California that are owned or operated by the City of Newport Beach; WHEREAS, CITY of SAN CLEMENTE is authorized by the provisions of Article XI, Section 7 of the California Constitution and Government Code Sections 37350 and 37351 to sell the right(s) to advertise on Beaches of Southern California that are owned or operated by the City of San Clemente; and WHEREAS, CITY of SEAL BEACH is authorized by the provisions of Section 28 -2002 of the Seal Beach City Municipal Code to sell the right(s) to advertise on Beaches of Southern California that are owned or operated by the City of Seal Beach; WHEREAS, the CITY of SOLANA BEACH is authorized by the provisions of Article XI, Section 7 of the California Constitution and Government Code Sections 37350 and 37351 to sell the right(s) to advertise on Beaches of Southern California that are owned or operated by the City of Solana Beach; Final 03/05/03 2 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement IT IS THEREFORE agreed by and between the parties as follows: Definitions As used herein, the terms set forth below shall be defined as follows: A. "Agreement Year" shall mean the 365 -day period beginning on the Commencement Date or any subsequent 365 -day period commencing on the expiration of a prior Agreement Year. B. "Commencement Date" shall mean the date this Agreement is approved and fully executed by SPONSOR and STATE. C. "Lifeguard Vehicle(s)" shall mean the Chevrolet vehicles as to which the rights of possession and use are being granted hereunder to the Beaches of Southern California Coalition and the individual Public Entity Parties thereof. D. "Logo(s)" shall mean any source - identifying symbol or seal in existence belonging to any party hereto or to be developed by parties to this Agreement as mutually agreed upon. E. " Mark(s)" shall mean any word, name, trademark, service mark, copyright, and other intellectual property owned by any of the parties hereto that has merchandising capability or goodwill associated with or symbolized by the Mark(s). F. 'Beaches of Southern California' shall mean those beaches within Orange and San Diego Counties over which the Public Entity Parties have cumulative operational authority. G. "Premium(s)" shall mean any promotional article used for the purpose of increasing the sales of particular products, including those of SPONSOR. H. 'Promotional Events' shall mean events conducted on the beach by the SPONSOR. "Public Entity Party(ies)" shall mean that individual member or those members of the Beaches of Southern California Coalition participating in this Lifeguard Vehicle Sponsorship Agreement. "Special Events" shall mean events that are sponsored by the Public Entity Parties on the Beaches of Southern California, except for the Public Entity Parties of the Cities of Laguna Beach and Oceanside and the County of Orange. Notwithstanding anything herein to the contrary, the Final 03/05/03 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement annual Ocean Festival in the City of San Clemente shall not be deemed a "Special Event ". K. "Safety Signage" shall mean permanent and semi - permanent signage placed on the Beaches of Southern California for the purpose of educating the public about the safe enjoyment of the beach. L. "Sponsor Identification" shall mean that display on the 12" X 15" space on the Lifeguard Vehicles mutually agreed to between the SPONSOR and the Public Entity Parties. II. Grant of Rights Subject to the conditions set forth herein below and upon execution of the Agreement by all the parties, the Public Entity Parties shall grant to SPONSOR the following rights: A. SPONSOR may advertise itself as the "Official Marine Safety Vehicle Sponsor of the Beaches of Southern California" and to be the SPONSOR of the Beaches of Southern California Coalition within the "Motor Vehicles" category. B. During the term of this Agreement, Public Entity Parties will not conduct nor participate in promotional activities with any other motor vehicle or component parts manufacturers or distributors within the Beaches of Southern California, which may conflict with the rights granted to SPONSOR in this Agreement, without the prior written approval of SPONSOR. Public Entity Parties further represent and warrant that no other motor vehicle or component parts manufacturers or distributors will participate in any way in the Special Events without the prior written approval of SPONSOR. This Agreement does not affect any events or activities at the Beaches of Southern California, where such events or activities are sponsored or organized by a third -party not affiliated with Public Entity Parties ("Third - Party Event'). However, Public Entity Parties shall attempt to notify SPONSOR thirty (30) days in advance of any such Third -Party Event or as soon as is practicable. Public Entity Parties shall use reasonable efforts to arrange initial introductions between SPONSOR and any third -party sponsor or organizer, not affiliated with SPONSOR, of any significant commercial event and /or activity at the Beaches of Southern California, if such third -party is not sponsored by an automotive company or has other conflicting commitments known to Public Entity Parties. C. The SPONSOR is granted the right to place "Official Marine Safety Vehicle Sponsor of the Beaches of Southern California" decals /stickers on the Lifeguard Vehicles provided by SPONSOR. The Public Entity Parties Final 03/05/03 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement will be allowed to place identification on the vehicles. However, the Public Entity Parties must obtain SPONSOR's prior written approval before placing any additional decals or stickers on the vehicles. D. The SPONSOR is granted the right to produce and display Safety Signage on those lifeguard towers and tide boards at the Beaches of Southern California described in Exhibit 1. The Public Entity Parties are solely responsible for the creation and the accuracy of all safety messages on any Safety Signage. The number and type of sign placement is described in Exhibit 1. Signage will be primarily safety information and may include a small picture or Logo of SPONSOR's choice. The size of the Signage and Logo are subject to the approval of individual Public Entity Parties. SPONSOR is entitled to approximately ' /< of Safety Signage space or mutually agreed upon size. SPONSOR branding will not interfere with or diminish the effectiveness of the Public Entity Party's safety message. E. The SPONSOR is granted the right to preclude any Public Entity Party's use of SPONSOR's Logo or Mark without prior approval, which approval shall not be unreasonably withheld. F. SPONSOR is granted the right to give to STATE and the Cities of Newport Beach, Seal Beach, Solana Beach, and Imperial Beach a promotional brochure, which each agree to include in a total of two (2) regular Public Entity Parties mailings to their respective employees during the term of this Agreement. G. SPONSOR is granted the right to host an annual meeting each year at an appropriate Beaches of Southern California venue for General Motors Corporation and its Orange County dealers to present to the fleet managers of Public Entities Parties and their staff any new developments related to vehicle models and maintenance. This meeting also may include the test driving of vehicles. The Public Entity Parties will be responsible for obtaining any appropriate permits for the test drive. The time, date, and location of the meeting must be mutually agreeable to SPONSOR and the Public Entity Party responsible for the selected venue; however, the duration of the meeting shall not exceed twelve consecutive hours. Rental permit fees will be waived for such meetings. However, insurance, waivers and other standard permit requirements may be imposed. SPONSOR will be responsible for all reimbursable expenses incurred by the Public Entity Party in conjunction with hosting such meetings, so long as the Public Entity Party obtains written approval from SPONSOR before incurring any such expenses. H. Each Public Entity Party will work with SPONSOR to produce a joint public relations event consisting of a press release and one press conference at Final 03/05/03 5 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement Final 03/05/03 the Beaches of Southern California with local media outlets to announce commencement of the Agreement. Special and Promotional Events: 1. To the extent that any of the Public Entity Parties, excluding the Cities of Laguna Beach and Oceanside and the County of Orange, conduct Special Events within the Beaches of Southern California as to which sponsorship opportunities are made available by the Public Entity Parties, the SPONSOR is granted the right to advertise its "Official Marine Safety Vehicle Sponsor of the Beaches of Southern California" status in association with such Special Events. Special Event sponsorship advertising is subject to prior written approval by Public Entity Parties. 2. To the extent that the distribution /sale of Premiums is generally allowed at Special Events, the SPONSOR is granted the right to distribute and /or sell SPONSOR's Premiums in conjunction with Special Events. To the extent the following activities are allowed at Beaches of Southern California through the existing permitting process of the Public Entity Party(ies), and subject to standard special event permitting conditions except otherwise applicable event fees: a) The SPONSOR is granted the right to display vehicles, merchandise, banners, cold air - filled balloons, and signage at Special Events. b) The SPONSOR is granted the right to erect tents at Special Events. c) The placement, size, and locations of above - mentioned items will be mutually agreed upon by the SPONSOR and the affected Public Entity Parties. d) Insofar as within the Public Entity Parties' control, the SPONSOR will be provided 12 tickets and 6 VIP parking spots to all Special Events that require tickets. The SPONSOR is granted the right to conduct up to two (2) Promotional Events per year on each of the Beaches of Southern California properties, excluding the City of Laguna Beach, subject to the permitting procedures of the respective Public Entity Party(ies). Normally applicable Special Event permit conditions and requirements shall be applicable except all fees will be waived for such Promotional Events. SPONSOR will be responsible for all reimbursable expenses incurred by Public Entity Party(ies) in 0 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement conjunction with hosting such Promotional Events, so long as the applicable Public Entity Party obtains written approval from SPONSOR before incurring any such expenses. The SPONSOR is granted the right to two (2) temporary product display spaces (30' x 30') located in high traffic areas on each of the Beaches of Southern California, or other mutually agreed -upon locations, in conjunction with Promotional Events, subject to the permitting procedures of the respective Public Entity Party(ies). All fees will be waived for any such display. The displays may be erected 48 hours prior to the commencement of the Promotional Event and must be removed within 48 hours of the end of the Promotional Event. III. Grant of License A. SPONSOR is granted a non - exclusive, non - assignable license to use Public Entity Parties' Logos as specifically identified in Exhibit 2 hereto (here and after "Logos "), created and owned by the respective Public Entity Party, and that may be registered with the U.S. Patent and Trademark Office on the principal register, in connection with the advertising and promotion of the SPONSOR'S "Official Marine Safety Vehicle Sponsor of the Beaches of Southern California" status as authorized herein per the terms of this Agreement. B. In connection with each use of any Logo, the SPONSOR shall identify the respective Public Entity Party as the owner and, where applicable, will indicate said ownership by designating the letter R in a circle after each and every use. C. Except as required by law or specifically authorized by this Agreement, no other name, trademark, inscription, or designation whatsoever shall be affixed to any goods or Premiums produced subject to this Agreement, nor shall same appear in any advertising or promotional material placed or produced by SPONSOR in connection with such goods or Premiums. Furthermore, other than the approved Logos, SPONSOR shall at no time adopt or use, without prior written consent of Public Entity Parties, any variation of Logos or any work or mark likely to be similar to or confused with Logos. D. The SPONSOR acknowledges the exclusive right, titles, and interest in and to Logos by the respective Public Entity Parties. SPONSOR further covenants that it shall not at any time challenge or contest the validity, ownership, title, and registration of the Public Entity Parties in and to the intellectual property or the validity of this Agreement. SPONSOR'S use of Logos shall inure to the benefit of the Public Entity Parties. Final 03/05/03 7 1� Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement E. If SPONSOR acquires any trade rights, trademarks, equities, titles, or other rights in and to the Logos, by operation of law, usage, or otherwise, SPONSOR shall assign and transfer upon the expiration of this Agreement the same to Public Entity Parties without any consideration. F. All rights not specifically conferred by this Agreement with regard to Logos are reserved to the Public Entity Parties. G. Each Public Entity Party, at its sole discretion, shall take whatever action it deems advisable in connection with any unauthorized use of its Logo by a third party. Each Public Entity Party shall bear the entire cost and expense associated with any such action, and any recovery or compensation that may be awarded or otherwise obtained as a result of any such action shall belong to said Public Entity Party. H. Public Entity Parties shall have the right to approve the quality of the reproduction of Logos on any materials, including Premiums, as well as the associational use or co- joining of such Logos with any event, cause, or third party. I. SPONSOR ACKNOWLEDGES AND AGREES THAT THERE ARE NO WARRANTIES, GUARANTIES, CONDITIONS, COVENANTS, OR REPRESENTATIONS BY PUBLIC ENTITY PARTIES AS TO MARKETABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHER ATTRIBUTES, WHETHER EXPRESS OR IMPLIED (IN LAW OR IN FACT), ORAL OR WRITTEN WITH RESPECT TO LOGOS. J. The SPONSOR understands that the rights granted herein with respect to Logos specifically identified in Exhibit 2 hereto are limited to use in connection with SPONSOR'S products and promotions as permitted by this Agreement and do not extend to any other products, goods, or services. Each and every such usage must first have written approval of affected Public Entity Parties, which approval shall not be unreasonably withheld. K. In the event of termination or expiration of this Agreement, any and /or all parties shall cease all use of the Logo(s) and Mark(s) of the other parties as soon as practicable, but in any event within thirty (30) days, unless the Logo(s) or Mark(s) have been placed in media requiring a longer lead time, and, in such instance, no longer than ninety (90) days. Any and all Premiums will be destroyed or provided at no cost to Public Entity Parties where a Logo or Mark belonging to a Public Entity Party is featured on the Premium. Final 03/05/03 8 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement IV. Sponsor's Obligations A. The SPONSOR agrees to submit to the respective affected Public Entity Parties for their prior review and approval all Sponsor Identification, advertising, promotional T.V. and radio commercials, or other display material to be used by SPONSOR in connection with the Coalition and the Public Entity Parties or in connection with SPONSOR's designation as the "Official Marine Safety Vehicle Sponsor of the Beaches of Southern California ". Such material shall be submitted not less than ten (10) business days prior to its proposed release to the public. If the material is not disapproved in writing within five (5) business days after receipt, it is deemed approved. B. The SPONSOR agrees that it will not cause or permit the Logo(s) and Mark(s) licensed by and /or developed pursuant to this Agreement to be used or exploited in any manner contrary to public morals, that violates prevailing standards of good taste, or that reflects unfavorably upon the good names, good will, reputation, and image, in whole or in part, of the Coalition or any or all of the Public Entity Parties. C. The SPONSOR agrees not to use any Premium in connection with the rights herein granted unless prior written approval of such Premium has been obtained from the Public Entity Parties, which approval shall not be unreasonably withheld. D. The manufacture of any Premium product using the Logo(s) or Mark(s) must be first approved by the respective affected Public Entity Parties, which approval shall not be unreasonably withheld. E. If the SPONSOR desires to sell or distribute for sale any Premium bearing the Logo(s) and /or Mark(s) of any Public Entity Party(ies), the pertinent parties shall negotiate a separate licensing agreement. F. No later than two (2) weeks prior to the date of any Special or Promotional Event, the SPONSOR shall request, through the appropriate Public Entity Party permit process, permission for the display of signage, banners, cold air - filled balloons, and installation of tents, indicating when, where, number, size, nature of material, proximity to other structures, and length of time, for each and every Special and Promotional Event. In addition, SPONSOR shall comply with standard permit conditions, including the provision of insurance and waivers, applicable to the activity proposed. V. Consideration A. For the rights and benefits granted to SPONSOR herein, SPONSOR agrees to deliver to the Public Entity Parties sixty -seven (67) new Chevrolet vehicles as described in Exhibit 3 for use by the Public Entity Final 03105/03 0 r Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement Parties' Lifeguard Divisions. The terms and conditions for the loan of these Lifeguard Vehicles is as follows: The Lifeguard Vehicles are and shall remain the property of SPONSOR; 2. The Lifeguard Vehicles will be delivered for distribution within 60 days from the Commencement Date of the Agreement; 3. During the term of this Agreement, SPONSOR may replace a portion of the Lifeguard Vehicles each year; provided, however, that each Lifeguard Vehicle may be replaced no more than once every three years. The timing of such vehicle replacement and the determination of the vehicle to be replaced shall be mutually agreed upon between the SPONSOR and the applicable Public Entity Party, in an effort to enable the Public Entity Party to appropriate the necessary resources for outfitting the replacement vehicle; 4. Delivery of Lifeguard Vehicles shall be taken by the Public Entity Parties at an authorized Chevrolet dealer within ten (10) miles of the respective Public Entity Parties to be identified by the Public Entity Party and approved by SPONSOR. The SPONSOR is not liable for any reasonable and unavoidable delay beyond its control in making the Lifeguard Vehicles available to the Public Entity Parties; Upon receipt of the Vehicle(s), Public Entity Parties will execute and deliver to SPONSOR a copy of the Loan of Vehicle Terms and Conditions and Vehicle Receipt, attached hereto and incorporate as Exhibit 4. B. If any of the Public Entity Parties fail to enact this agreement through signature of the authorized representative, then all rights granted herein to SPONSOR and all consideration granted herein by SPONSOR are nullified in respect to that particular non - executing Public Entity Party. C. If SPONSOR chooses to extend this Agreement according to the provisions set forth in Section VI, Term and Extension of Rights, below, replacement Lifeguard Vehicles shall be delivered within 60 days after the commencement of the fourth Agreement Year. In exchange, Public Entity Parties shall deliver to SPONSOR, at the designated Chevrolet dealer locations after removal of safety equipment, all Lifeguard Vehicles then currently in use and not purchased by Public Entity Parties. Final 03105/03 Ii If, Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement VI. Term and Extension of Rights A. This Agreement shall be deemed to begin on the Commencement Date and shall continue for one (1) Agreement Year. SPONSOR shall have the right to one (1) optional extension of three (3) additional Agreement Years on the same terms set forth herein subject to the provisions concerning termination set forth in Sections VI.0 and VII, below. SPONSOR shall provide to the Public Entity Parties through STATE, at least One Hundred Eighty (180) days prior to the expiration of this Agreement, written notice as to whether SPONSOR will or will not exercise its one (1) optional extension. B. If the Coalition continues to desire Lifeguard Vehicle sponsorship subsequent to termination of this Agreement, the Coalition shall give SPONSOR the opportunity to negotiate a new Agreement. The Coalition, through STATE, shall provide to SPONSOR, at least One Hundred Eighty (180) days prior to the expiration of this Agreement, a written status report as to the intentions and needs of the Coalition vis -a -vis Lifeguard Vehicle sponsorship. SPONSOR shall advise the Coalition through STATE, at least One Hundred Twenty (120) days prior to the expiration of this Agreement, as to whether or not SPONSOR desires to negotiate a new sponsorship agreement. If SPONSOR elects not to participate on the terms of the proposal and the parties are unable to negotiate mutually acceptable terms, then the Coalition shall be free to negotiate with others; however, provided that within the first six months following the expiration of this Agreement the Coalition shall not offer terms to others that are materially different than those previously offered to SPONSOR without first offering such different terms to SPONSOR. C. Any party may terminate this Agreement effective as of December 31 of any year by giving written notice to the others through STATE of the termination prior to the immediately preceding July 1. Termination by one Public Entity Party shall not impact other Public Entity Parties. VII. Rights and Obligations of STATE The parties hereto recognize that STATE has and continues to solicit and negotiate proposals and agreements on behalf of the Coalition pursuant to the Beaches of Southern California Coalition Agreement. As a result thereof, the parties hereto recognize that STATE has the following rights and obligations. A. STATE will assist Public Entity Parties in identifying the number and model of the donated Lifeguard Vehicles for each Public Entity Party and, thereafter, will assist in resolving distribution and promotion problems. B. The Public Entity Parties shall pay a commission to STATE upon receipt of Lifeguard Vehicles and on the anniversary of the Commencement Date each year the Agreement is in force. The commission shall be equal to Final 03/05/03 11 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement eight percent (8 %) of the annual lease value of the Lifeguard Vehicles delivered to the respective Public Entity Parties as specified in Exhibit 5. VIII. Hold Harmless A. SPONSOR 1. SPONSOR hereby waives all claims and recourse against the Coalition and the individual Public Entity Parties, as well as their respective Supervisors, councils, council members, departments, officials, agents, employees, successors and assigns, including the right to contribution for loss or damage to persons or property arising from, growing out of, or in any way connected with or incident to SPONSOR's products, Premiums, and /or activities under this Agreement, except claims arising from and to the extent of the negligence of one or more of the Public Entity Parties, including the Public Entity Party(ies)'s negligent use or possession of any Lifeguard Vehicle, or other wrongful acts for which the Public Entity Party(ies) is /are responsible under law. Final 03/05/03 2. SPONSOR shall protect, indemnify, hold harmless, and defend the Public Entity Parties against any and all claims, demands, obligations, causes of action, and lawsuits, and all damages, fines, judgments, costs (including settlement costs), and expenses associated therewith including the payment of reasonable attorneys fees, court costs, litigation costs, consultant or expert fees, and other expenses associated there with, arising out of, related to, or resulting from the products, Premiums, and /or activities of SPONSOR in connection with this Agreement, except for liability arising out of and to the extent of the negligence of one or more of the Public Entity Parties, their officers, agents, or employees, including the negligent use or possession of any Lifeguard Vehicle, or other wrongful acts for which the Public Entity Party(ies) is /are responsible under law. SPONSOR's indemnification shall extend to any claim of false or deceptive advertising and to the failure of SPONSOR to comply with the terms and conditions of this Agreement. 3. All new vehicle warranties shall remain in effect and SPONSOR shall indemnify Public Entity Parties for all damages arising from a manufacturing defect in the Lifeguard Vehicles. 4. In the event one or more of the Public Entity Parties are named as a defendant in any claim or legal action as to which the Public Entity Parties are entitled to indemnification under the terms hereof, upon tender of the claim or action by one or more of the Public Entity Parties to SPONSOR, SPONSOR shall assume the Public Entity Party(ies)'s defense and represent the Public Entity 12 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement Party(ies) in such legal action at SPONSOR 's expense with attorneys of the choosing of SPONSOR. B. Public Entity Parties 1. The Public Entity Parties covenant to and agree for the benefit of SPONSOR and its directors, officers, employees, and agents that the Public Entity Parties are each solely responsible for their individual activities underthis Agreement and that each will bear all responsibility for and hold SPONSOR and its directors, officers, employees, and agents harmless with respect to all such activities including, without limitation, all expenses that could not be reasonably mitigated or avoided by SPONSOR, damages payable to third parties, excluding consequential losses and lost profits, fines, reasonable legal expenses (including, without limitation, attorneys fees, court costs, litigation costs, consultant or expert fees, and other expenses associated therewith), incurred by SPONSOR as a result of (i) the sole or concurrent negligence of the particular Public Entity Party or (ii) the use or possession by the Public Entity Party of any Lifeguard Vehicle, or (iii) other wrongful acts for which the Public Entity Party is solely or concurrently responsible, except for any portion attributable to the liability of SPONSOR. The Public Entity Parties shall be obligated to reimburse SPONSOR for such expense upon written submission of a detailed statement with supporting documentation of the payment of such losses. Each Public Entity Party shall be responsible for its own actions and the parties agree there shall be no joint and several liability imposed under this Agreement. 2. Should SPONSOR be named as a defendant in any action for which SPONSOR is held harmless by a Public Entity Party(ies), SPONSOR may tender such action to the responsible Public Entity Party(ies) for defense of such action and the responsible Public Entity Party(ies) if in accordance with law in effect at the time of such tender will accept the tender and assume the defense of SPONSOR with attorneys of the choosing of the Public Entity Party(ies). IX. Insurance A. The Public Entity Parties will provide SPONSOR with proof of full coverage during the term of this Agreement in the amount listed below: Final 03105/03 1. Automobile Liability: $5,000,000 for the Lifeguard Vehicles per occurrence combined single limit for personal injury and property damage; comprehensive fire; and theft collision. 13 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement 2. Commercial General Liability (including contractual and spectator's liability): $1,000,000 per occurrence combined single limit for personal injury and property damage; 3. Workers Compensation: Statutory for California including Employer's Liability with limits of not less than $500,000. B. Each Public Entity Party shall furnish SPONSOR with a certificate showing the applicable coverage, naming General Motors Corporation as an additional insured (except A(3) Workers Compensation), stating that such insurance is primary in coverage to any other insurance that may be available to General Motors Corporation, and at least thirty (30) days' prior written notice to SPONSOR of cancellation, modification, or material change to the policy. Such certificate shall be in a form acceptable to SPONSOR and must be underwritten by and an insurer satisfactory to SPONSOR. The purchase of appropriate insurance coverage or the furnishing of the certificate by each Public Entity Party shall not release each Public Entity Party from its obligations or liabilities under this Agreement. C. The foregoing notwithstanding, the provision to SPONSOR by any or all of the Public Entity Parties of proof of self insurance shall fully satisfy the requirements of Paragraphs X.A and X.B above for the relevant Public Entity Parties. X. Force Majeure Any delay or failure of any party to perform its obligations hereunder shall be excused to the extent that it is caused by an event or occurrence beyond its reasonable control such as, by way of example and not by way of limitation, acts of God, actions by governmental authority (whether valid or invalid), fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, or labor problems; provided the party claiming force majeure promptly notifies the other party of the event of force majeure, the anticipated duration of the event of force majeure, and the steps being taken to remedy the failure. Should the event of force majeure continue beyond thirty (30) days, or such shorter time period as may be reasonable under the circumstances, any party may terminate this Agreement, and any affected party shall be entitled to a pro rata refund for services not yet performed by another party. XI. Default and /or Termination A. Any non - defaulting party may cancel this Agreement as to itself , without liability to another party, if another party defaults or repudiates or breaches any of the terms of this Agreement; and does not correct such failure or breach within ten (10) days, or such shorter period if commercially reasonable, after receipt of written notice from the non - defaulting party specifying such failure or breach. Final 03/05/03 14 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement B. Any party may cancel this Agreement as to itself immediately, without liability to another party, upon the happening of any of the following or any other comparable event: (1) insolvency of the other party; (2) filing of any petition by or against another party under any bankruptcy, reorganization, or receivership law; (3) execution of an assignment for the benefit of another party's creditors; or (4) appointment of any trustee or receiver of another party's business or assets or any part thereof; unless such petition, assignment, or appointment be withdrawn or nullified within fifteen (15) days of such event. C. In the event this Agreement is canceled by one or more parties, each party shall cease using the terminating party(ies)'s Marks, and the terminating party(ies) shall return those funds, if any, paid to it by SPONSOR for services that have not yet been performed. In addition, if vehicles are loaned to the terminating party(ies), said party(ies) shall promptly return the vehicles to SPONSOR. Further, all SPONSOR's rights in regards to the terminating party(ies) under the Agreement shall terminate. D. The foregoing remedies are in addition to, and not in lieu of, any other rights or remedies that a party may have at law or in equity; provided however, that in no event will any party be liable to the other for incidental, consequential, or punitive damages arising out of a breach of this Agreement. E. The parties agree that for the purposes of determining breach, termination, and /or default, each Public Entity Party shall be treated as e separate and individual party for its own acts and omissions. Therefore, Public Entity Party can be terminated from this Agreement and such termination will not cause this Agreement to terminate. In addition, such breach, termination, and /or default will not change the rights and obligations of any other Public Entity Party. XII. Waiver Failure by any party at any time to require performance by another party of any provision hereof shall in no way affect the right to require full performance any time thereafter, nor shall the waiver by any 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. XIII. Notices A. Any notice required or permitted to be given by any party under or in connection with this Agreement shall be in writing and shall be deemed duly given when personally delivered, sent by cable or facsimile and confirmed by letter, or three business days after being sent by registered Final 03/05/03 15 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement or certified mail return receipt requested, postage prepaid, or expedited courier service. The addresses for notice are: Coalition General Correspondence: Department of Parks and Recreation Marketing Division 1416 Ninth Street Sacramento, CA 95814 Mr. John McMahon, Deputy Director, Chief of Marketing Sponsor: Chevrolet Motor Division General Motors Corporation 515 Marin St., Suite 101 Thousand Oaks, CA 91360 Attn: Bill Beasley, Regional Division Marketing Manager (During the term of this Agreement, SPONSOR may designate a different address for notification purposes; provided that any such address shall be located in the State of California.) Public Entity Parties: Department of Parks and Recreation Orange Coast District Mike Tope, District Superintendent 3030 Avenida del Presidente San Clemente, CA 92672 County of Orange Attention: Patti Schooley #1 Irvine Park Road Orange, CA 92862 City of Laguna Beach Marine Safety Department 505 Forest Ave. Laguna Beach, CA 92651 City of Newport Beach City Clerk 3300 Newport Blvd. Newport Beach, CA 92663 City of San Clemente Beaches, Parks and Recreation Director Bruce Wegner 100 North Seville San Clemente, CA 92672 City of Seal Beach Attn: City Clerk Joanne Yeo 211 8th Street Seal Beach, CA 90740 City of Solana Beach 111 S. Sierra Ave. Solana Beach, CA 92075 City of Encinitas 505 S. Vulcan Ave. Encinitas, CA 92024 -3633 City of Oceanside 301 N. The Strand Oceanside, CA 92054 City of Imperial Beach Public Safety Director 865 Imperial Beach Boulevard Imperial Beach, CA 91932 B. SPONSOR will notice Public Entity Parties individually and directly when coordinating Special or Promotional Events or other cases where the notice pertains to only one Public Entity Party. Public Entity Parties will be noticed at the addresses listed above. Final 03105103 16 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement C. STATE and SPONSOR will be copied on all notices given by any party under or in connection with this Agreement. XIV. Assignment No party shall transfer or assign its rights, nor delegate its obligations under this Agreement to a third party, without the prior written approval of the other parties XV. Compliance with law Each party will perform its obligations under this Agreement in compliance with all applicable laws, orders, or regulations of all appropriate jurisdiction. XVI. 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. XVII. No Joint Venture Nothing herein contained shall be deemed to constitute this a joint venture, partnership or agency relationship between the parties and none of them shall be responsible for any obligations of the other, except as herein specifically provided. XVIII. Disputes Any and all disputes arising out of or in connection with the negotiation, execution, interpretation, performance, or nonperformance of this Agreement (including the validity, scope, and enforceability of this arbitration provision) shall be settled by mutual agreement of the parties, and, in the absence of such agreement, through submission to binding arbitration. The location for the arbitration shall be at a mutually agreeable location. XIX. Execution in Counterparts This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument XX. 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. Final 03/05/03 17 Beaches of Southern California Coalition AGREEMENT No. 001, entered into this Chevy Lifeguard Vehicle Sponsorship Agreement day of 200_ IN WITNESS WHEREOF, SPONSOR hereto has executed this Beaches of Southern California Coalition Lifeguard Vehicle Sponsorship Agreement on the date set forth above. CHEVROLET MOTOR DIVISION, GENERAL MOTORS CORPORATION in STATE OF CALIFORNIA) COUNTY OF VENTURA) On appeared 2003, before me the undersigned notary public, personally the person(s) whose name is subscribed to this instrument, and acknowledged that he executed it. Final 03/05/03 18 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement BEACHES OF SOUTHERN CALIFORNIA COALITION MEMBER AGREEMENT NO. 001, entered into this day of 200_ IN WITNESS WHEREOF, each party hereto has executed this Beaches of Southern California Coalition Lifeguard Vehicle Sponsorship Agreement on the date set forth above. By: Signature of Authorized Person Print the Name of Authorized Person Title of Authorized Person Name of Agency Address City Zip Code Signature of Legal Counsel Printed Name of Legal Counsel Final 03/05103 19 2 r' Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement BEACHES OF SOUTHERN CALIFORNIA COALITION LIFEGUARD VEHICLE SPONSORSHIP AGREEMENT Exhibit 1 Lifeguard and Tide Board Safety Signage SPONSOR is granted the right to produce and display beach Safety Signage on the following properties: Beaches Number & Type of Signs Bolsa Chica, Huntington State, Doheny, San Clemente State, San Onofre 45 lifeguard towers Newport 35 lifeguard towers Seal 8 lifeguard towers Sunset, Aliso, Salt Creek, Capo, Poche, Dana Pt., Harbor, Strands, Table Rock, Thousand Steps, West Street, 25 lifeguard towers Solana 4 lifeguard towers Oceanside 14 lifeguard towers & 3 tide boards Imperial 8 lifeguard towers Final 03/05/03 20 `7 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement BEACHES OF SOUTHERN CALIFORNIA COALITION LIFEGUARD VEHICLE SPONSORSHIP AGREEMENT mo-� Exhibit 2 Public Entity Party Logos California State Parks City Of Newport Beach County of Orange City Of Seal Beach City Of San Clemente City Of Solana Beach I City Of Oceanside City of Imperial Beach City of Encinitas Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement BECHES OF SOUTHERN CALIFORNIA COALITION LIFEGUARD VEHICLE SPONSORSHIP AGREEMENT Exhibit 3 SPONSOR agrees to provide sixty -seven (67) courtesy vehicles to the Coalition as follows: Public Entity Party Silverado S10 Suburban or Tahoe Trailblazer Total State of California 15 15 City of San Clemente 2 1 3 City of Laguna Beach 1 3 4 City of Newport Beach 8 5 13 City of Solana Beach 3 1 4 City of Seal Beach 4 2 6 City of Oceanside 1 5 1 7 County of Orange 5 2 7 City of Imperial Beach 3 1 4 City of Encinitas 1 1 2 4 Final 03105103 22 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement BEACHES OF SOUTHERN CALIFORNIA COALITION LIFEGUARD VEHICLE SPONSORSHIP AGREEMENT Exhibit 4 Loan of Lifeguard Vehicle Terms and Conditions and Lifeguard Vehicle Receipt Chevrolet Motor Division of General Motors Corporation ( "SPONSOR ") agrees to loan the Lifeguard Vehicle(s) outlined in Exhibit 3 of the Lifeguard Vehicle Sponsorship Agreement to the Public Entity Party members of the Beaches of Southern California Coalition ( "COALITION ") from approximately March 2003 to February 2006 u pon the terms set forth below: COALITION'S ADDRESS: California Department of Parks and Recreation Attn: John McMahon, Deputy Director, Marketing Division P.O. Box 942896, Sacramento, CA 94296 -0001 916 - 651 -6700 Terms: 1. The Lifeguard Vehicles are, and shall remain, the property of SPONSOR 2. The Public Entity Parties agree that: (a) the Lifeguard Vehicle(s) will not be utilized illegally, improperly, for hire, as a public conveyance or in any manner for any political purpose whatsoever; (b) the Lifeguard Vehicle(s) shall be driven in a safe and prudent manner by insured, licensed drivers, eighteen (18) years of age or older who meet the GM Safe Driver Program Driver Conduct Requirements (attached hereto) and who are officers, directors, employees, agents or subcontractors of the Public Entity Parties, or who are driving the Lifeguard Vehicle(s) while on business related to the activities contemplated under this Agreement; (c) The Public Entity Parties shall ensure that no one modifies, disconnects, or otherwise interferes with the operation of the odometer, emission control equipment, or any other equipment, except in connection with repairs as required by the terms of this Agreement; (d) The Public Entity Parties acknowledge receipt of a nd w ill o btain from a ach d river of a Vehicle a s igned Driver C onduct Requirements form and shall retain each executed form for three (3) years and provide them to SPONSOR at SPONSOR'S request; (e) The Public Entity Parties will report all incidents /crashes involving damage to a Lifeguard Vehicle, including reporting incident/crash to ESIS (a subsidiary of CIGNA Insurance) at 1- 800 - 888 -0154 and to SPONSOR, and will follow instructions provided in the glove compartment of the Lifeguard Vehicle; (f) without limiting or altering any insurance or indemnification obligations contained in this Agreement, Public Entity Parties will cooperate with SPONSOR at no cost to the Public Entity Parities in the defense of any claims or lawsuits related to Public Entity Parties' use or possession of any Lifeguard Vehicle; (g) The Public Entity Parties will not make any repairs to a Lifeguard Vehicle without the explicit Final 03/05/03 23 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement prior consent of ESIS with the exception of the addition of standard required safety equipment; and (h) The Public Entity Parties shall be responsible for all fines, forfeitures and penalties incurred by reason of the use of the Lifeguard Vehicle(s). 3. SPONSOR MAKES NO WARRANTY OTHER THAN THAT EXPRESSED IN ITS NEW VEHICLE LIMITED WARRANTY, A PRINTED COPY OF WHICH IS FURNISHED WITH THE LIFEGUARD VEHICLE. SPONSOR authorizes Public Entity Parties to obtain, on SPONSOR'S behalf as owner of the Lifeguard Vehicle(s), such warranty service as is necessary and provided for under the new vehicle limited warranty. Ordinary operating expenses such as gas, oil, grease, tire repair and other incidentals are the responsibility of the Public Entity Parties. 4. Prior to the receipt of the Lifeguard Vehicles, the Public Entity Parties will provide SPONSOR with proof of full coverage during the term of this Agreement in the following amounts: Automobile Liability: $5,000,000 for the Lifeguard Vehicles per occurrence combined single limit for personal injury and property damage; comprehensive fire; and theft collision; Commercial General Liability (including contractual and spectator's liability): $1,000,000 per occurrence combined single limit for personal injury and property damage; Workers Compensation: Statutory for California including Employer's Liability with limits of not less than $500,000. Each Public Entity Party shall furnish SPONSOR with a certificate showing the applicable coverage, naming General Motors Corporation as an additional insured (except A(3) Workers Compensation), stating that such insurance is primary in coverage to any other insurance that may be available to General Motors Corporation, and at least thirty (30) days' prior written notice to SPONSOR of cancellation, modification, or material change to the policy. However, the foregoing notwithstanding, the provision to SPONSOR by any or all of the Public Entity Parties of proof of self insurance shall fully satisfy the requirements of Paragraphs X.A and X.B above for the relevant Public Entity Parties. 5. At the end of the term of the loan, The Public Entity Parties will return the Lifeguard Vehicle(s) to the nearest dealer location or such other location as designated by SPONSOR. If a Lifeguard Vehicle must be recovered by SPONSOR or repaired to restore it to the condition in which it was delivered (reasonable wear and tear, as defined by General Motors Corporation guideline, attached hereto, excepted), then Public Entity Parties will pay SPONSOR any costs incurred by SPONSOR to recover the Lifeguard Vehicle and to repair it. If, in SPONSOR'S opinion, a Lifeguard Vehicle cannot or s hould not be repaired based upon General Motors Corporation's policy for repairing /scrapping damaged vehicles, then the Lifeguard Vehicle must be returned to SPONSOR and the responsible Public Entity Party will pay SPONSOR the Lifeguard Vehicle's value, based upon the following formula: The amount General Motors Corporation would have received if the Vehicle had been sold at auction the month the Lifeguard Vehicle would have been returned to SPONSOR on the Final 03/05/03 24 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement three year schedule based on a similar make and model year vehicle with similar mileage, as determined by GM -NA Fleet and Commercial Operations Auction Results' report, less $4,000. Authorized Public Entity Party Signature: Title: D ate: Final 03/05/03 25 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement Exhibit 4 - Continued General Motors Safe Driver Program Driver Conduct Requirements I understand that the loan of this Vehicle is subject to the following terms, and verify that I am eighteen (18) years of age or older, possess a valid operator's license and will ... 1. ...display such license to the vehicle key issuer at each Vehicle exchange, and will comply with a license restrictions. 2. ...never drive while impaired by alcohol, drugs, medication, illness, fatigue, or injury. 3. ...ensure the proper use of safety belts and child safety restraints for all occupants. 4. ...obey all applicable motor vehicle laws, codes, and regulations. 5. ...drive in a defensive manner, anticipating situations where incidents are likely to occur. 6. ...refrain, at all times, from using radar /laser detection devices. 7. ...plan trips by selecting the safest route, depart early enough to observe posted speed and traffic regulations, and will be mindful of current and forecasted weather conditions. 8. ...report all incidents /crashes involving the vehicle to ESIS (General Motors' insurance claims administrator) at 1- 800 - 888 -0154 (direction is provided in the glove department of the vehicle) and to DIVISION. 9. ...not permit any other person to operate the Vehicle. Furthermore, by signing this receipt and acknowledgment, I verify that I have not been convicted within the past 36 months of any of the following motor vehicle violations: 1. Driving while operator's license is suspended, revoked, or denied. 2. Vehicular manslaughter, negligent homicide, felonious driving or felony with a vehicle. 3. Operating a vehicle while impaired, under the influence of alcohol or illegal drugs, or refusing a sobriety test. Final 03/05/03 26 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement 4. Failure to stop or identify after a crash (includes leaving the scene of a crash; hit and run; giving false information to an officer). 5. Eluding or attempting to elude a law enforcement officer. 6. Traffic violation resulting in death or serious injury. 7. Any other significant violation warranting suspension of license. Driver's Name: Driver's License Number and State: Driver's Signature: Final 03/05/03 27 (Number) (State) Date: _: v Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement Exhibit 4 - Continued General Motors Corporate Guidelines Normal Vehicle Wear and Tear • Windshield stone chips not in driver's field of vision. • Leading edge stone chips on painted surfaces. • One door ding, any door, less than the size of a nickel. • Scratches, regardless of length, in which exterior paint is not broken and sheet metal is OK (i.e. that can be buffed out). • Cleanable dirt, grime, and stains on exterior and interior surfaces. • Scuffed tires, wheels, moldings, sills, undercarriage components, and cargo areas. • Correctable misalignment or balance of wheels and tires. • Scratches, scuffs, scrapes, and minor dings in truck beds. • Any warrantable repairs. Final 03/05/03 m Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement BEACHES OF SOUTHERN CALIFORNIA COALITION LIFEGUARD VEHICLE SPONSORSHIP AGREEMENT Exhibit 5 The Public Party Entities agree to the following lease values and corresponding commission due STATE. Commissions are due no later than thirty (30) days from the start of each contract year. "Contract year" shall mean each twelve (12) month period that commences the first day of the calendar month immediately following the date of contract execution and extends twelve (12) months therefrom throughout the term of the contract. Entity Annual Lease Values Annual Public Parties Silverado S10 Suburban Trailblazer Total Commission ($5,6041yr) ($4,4641yr) or Tahoe ($5,7001yr) ($) $5,8561 r State of $66,960 $66,960 NA California City of San $8,928 $5,700 $14,628 $1,170 Clemente City of Laguna $5,604 $17,568 $23,172 $1,854 Beach City of Newport $35,712 $29,280 $64,992 $5,199 Beach City of Solana $13,392 $5,856 $19,248 $1,540 Beach City of Seal $17,856 $11,712 $29,568 $2,356 Beach City of $5,604 $22,320 $5,700 $33,624 $2,690 Oceanside County of $22,320 $11,400 $33,720 $2,698 Orange City of Imperial $13,392 $5,856 $19,248 $1,540 Beach City of $5,604 $4,464 $11,712 $21,780 $1,742 Encinitas Final 03/05/03 ME CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 8 March 11, 2003 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Fire Department Timothy Riley, Fire Chief, 644 -3101, triley @city.newport- beach.ca.us SUBJECT: Lifeguard Vehicle Sponsorship Agreement ISSUE: The existing Lifeguard Vehicle Sponsorship Agreement between the City and Chevrolet has expired. Should the City enter into a new agreement for 13 new Chevrolet vehicles in exchange for some limited sponsorship rights on our beaches? RECOMMENDATION: Enter into an agreement between the City, as a party to the Beaches of Southern California Coalition, and the Chevrolet Motor Division of the General Motors Corporation for sponsorship of lifeguard vehicles. Approve Budget Amendment BA , transferring $8,450 from unappropriated Internal Service Fund reserves to General Service Account 6120 -9102 for the cost to transfer and install emergency equipment onto the loan vehicles. DISCUSSION: PROPOSED AGREEMENT In anticipation of the expiration of our current lifeguard vehicle sponsorship agreement, the City of Newport Beach joined the Beaches of Southern California Coalition on October 22, 2002. This agreement allows for group implementation of beach sponsorship programs among the member cities to maximize marketing revenues and reduce costs. Through this agreement, the State of California, as the agent for the Coalition, solicited the attached Lifeguard Vehicle Sponsorship Agreement from the Chevrolet Motor Division of the General Motors Corporation. In general, the terms of the agreement are: • Term of the agreement shall be for one three -year period with an option to extend for one additional three -year period. • Chevrolet will provide the City with eight S -10 pick -ups and five Tahoes during the term of the agreement. • Chevrolet will provide normal warranty services. City shall be responsible for normal vehicular maintenance. This will save the City as much as 75% (or $33,325) of the normal maintenance costs for a lifeguard vehicle or over $199,000 for the six -year life of this contract. • Chevrolet shall be granted the exclusive rights to advertise, sponsor events, and promote itself as the Official Marine Safety Vehicle Sponsor of the Beaches of Southern California. No other motor vehicle company may be promoted on the beach as part of any sponsorship program affiliated with a party to the Coalition. • Chevrolet will be allowed to participate in any City- sponsored event that takes place on our beach, subject to the City's Special Event Permit Process, without paying any normal permit fees. • Chevrolet agrees to submit to the City for prior approval, all Sponsor identification, advertising, promotional T.V. or radio commercials, and other display materials to be used in conjunction with this agreement. • City shall pay to the State of California a commission equivalent to 8% of the fair market lease value for each vehicle ($5,199 per year.) This equates to a $33,238 per year savings in vehicle replacement costs or $199,428 over the life of the six -year contract. • Chevrolet will be allowed to place a decal or sticker on each sponsorship vehicle identifying Chevrolet as the "Official Marine Safety Vehicle Sponsor of the Beaches of Southern California" similar to that found in Illustration A. • Chevrolet will be allowed to produce public safety signage on our 35 lifeguard towers as illustrated in Illustration B. EXPERIENCE WITH PAST SPONSORSHIP AGREEMENT Our recent lifeguard vehicle sponsorship agreement began in May 1998, and expired on March 7, 2003. The original agreement was one, two -year term with the option for an additional two -year term. At the expiration of the original agreement, all parties verbally agreed to extend until such time as a new agreement could be negotiated. Therefore, the City has continued to benefit from the previous agreement for one additional year without paying any further commission to the County of Los Angeles. Over the five years, the agreement saved the City over $111,670 in replacement costs and over $100,000 in maintenance costs. The previous agreement also granted Chevrolet the right to place a decal on all sponsorship vehicles touting Chevrolet as the "Official Marine Safety Vehicle of the Orange Coast Beaches," the right to display their products at City- sponsored events on our beaches, required the City to participate in one joint sponsorship event, and allowed Chevrolet to use the City logo on their promotional materials and ad campaigns. Over the five years, Chevrolet only exercised their right to place a decal on our vehicles and nothing else. ALTERNATIVES: The City Council may choose to forego entering into this agreement and take one of the following courses of action: 1) Direct staff to purchase new vehicles in lieu of participating in this sponsorship agreement. Since the City has been so successful in saving money the past five years while still contributing fully to the Internal Services Fund for lifeguard vehicles, we should have sufficient funds to purchase replacement vehicles. The General Services conservative estimate for replacing all vehicles at this time is $313,250. Such an action would require the deferral of other vehicles scheduled for replacement by other Departments in the upcoming budget. Since the prior sponsorship agreement has expired, we are obligated to return the existing sponsored beach vehicles immediately. It will be very difficult to continue to provide our current level of beach safety services if we return these vehicles prior to obtaining new ones. It could also prove difficult to purchase and equip new vehicles prior to Easter break and the beginning of our busy summer season. 2) Direct staff to seek out other vehicle sponsorship opportunities with a vehicle manufacturer other than Chevrolet. Chrysler Corporation may be interested in exploring a similar deal for their Jeep product. While the potential exists, there has been no such exploration to date and there is no guarantee that staff would be successful in locating and negotiating such an arrangement. Again, the loss of the current vehicles during this time could prove too big an obstacle to overcome. FISCAL IMPACT: As indicated in the body of the report, this agreement allows the City to operate 13 vehicles under the sponsorship agreement for the $5,199 cost of the sponsorship royalties paid to the State. The Department will continue to pay normal vehicle replacement rates equaling $38,437 into the Internal Services Fund. We will also continue to pay our normal vehicle maintenance rates equaling $44,433 into the vehicle maintenance funds in General Services with a very low expectation of like maintenance costs. We estimate the value of this agreement to the City (depending on future maintenance costs) at $398,428. The attached budget amendment will cover General Services' costs for removing all City -owned emergency equipment from the old sponsorship vehicles and install it on the new vehicles. The cost is estimated to be $650 per unit for a total of $8,450 for thirteen units. ENVIRONMENTAL REVIEW: This action requires no environmental review, because it is not a project pursuant to CEQA. ATTACHMENTS: Lifeguard Vehicle Sponsorship Agreement Illustration A Illustration B Budget Amendment Prepared and Submitted by: ILLUSTRATION A Option A -- 25"Wxl6"H (job) proof file name: 661739GMprfR3.eps 01.08.03 notation: GM R "Works -- SoCnf Beach Decals, Proof Rev. 3 dimensions: noted above (proof 114th scale) ...4.3 h'.SI1.. l' J.. T.oi�.hpti�. G�•Y4�.`.fF . 'rh J..�: I -Y 2301 flReenth A� West ka[h Wa to 96119 M n: 206.281,320I Super G rn Fax: 206264.8510 a division of OM Nameplate 2095 Mote Avenue San Jose. CIAM=1a95131 ILLUSTRATION B ' Always Swim Neara Lifeguard '` ^ DIVING mOCEAN. SUKEOR BAY |S SHALLOW WATER SUBMERGED ROCKS SANDBARS INSHORE HOLDS ... CAN BADLY INJURE YOU SWIMMING InOCEAN O8 SURF CAN 8E HAZARDOUS' STRONG CURRENTS RIPTIDES SURFBOARDS... ENDANGER ANY SWIMMER WAVES ARE. n)YfEKFVL. HAZARDOUS AND CHANGING CONDI'TIONS MAY EXIST Lifeguard Flag System r— L|8HTCONDRlONG MODERATE CONDITIONS (Cammr} 0 BOARD SURFING PROHIBITED CALL 9-1-1 IN CASE OF EMERGENCY BEACHES OF SOUTHERN CALIFORNIA COALITION AND CHEVROLET MOTOR DIVISION, GENERAL MOTORS CORP. LIFEGUARD VEHICLE SPONSORSHIP AGREEMENT 2003 BEACHES OF SOUTHERN CALIFORNIA COALITION LIFEGUARD VEHICLE SPONSORSHIP AGREEMENT Table of Contents Definitions............................................................................. ..............................3 II. Grant of Rights ...................................................................... ..............................4 III. Grant of License .................................................................... ..............................7 IV. Sponsor's Obligations .......................................................... ..............................9 V. Consideration ........................................................................ ..............................9 VI. Term and Extension of Rights ............................................. .............................11 VII. Rights and Obligations of STATE ........................................ .............................11 VIII. Hold Harmless ...................................................................... .............................12 IX. Insurance .............................................................................. .............................13 X. Force Majeure ....................................................................... .............................14 XI. Default and /or Termination ................... ............................... ............................114 XII. Waiver ................................................................................... .............................15 XIII. Notices .................................................................................. .............................15 XIV. Assignment .......................................................................... .............................17 XV. Compliance with law ............................................................ .............................17 XVI. Severability of Provisions ................................................... .............................17 XVII. No Joint Venture .................................................................. .............................17 XVIII. Disputes ................................................................................ .............................17 XIX. Execution in Counterparts .................................................. .............................17 XX. Entire Agreement ................................................................. .............................17 Exhibit1 ........................................................................................... .............................20 Exhibit2 ........................................................................................... .............................21 Exhibit3 ........................................................................................... .............................22 Exhibit4 ........................................................................................... .............................23 Exhibit5 ........................................................................................... .............................29 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement AGREEMENT NO. 001 BEACHES OF SOUTHERN CALIFORNIA COALITION LIFEGUARD VEHICLE SPONSORSHIP AGREEMENT BY AND BETWEEN CHEVROLET MOTOR DIVISION, GENERAL MOTORS CORPORATION, a Delaware Corporation, hereinafter referred to as "SPONSOR" AND CITIES of Seal Beach, Newport Beach, Laguna Beach, Solana Beach, Oceanside, Imperial Beach, Encinitas, and San Clemente, all municipal corporations or general law cities, hereinafter collectively referred to as "CITIES" AND ORANGE COUNTY, specifically the Public Facility Resource Department, a political subdivision of the State of California, hereinafter referred to as "ORANGE COUNTY ": AND STATE OF CALIFORNIA, specifically through the Department of Parks and Recreation, limited to its Orange Coast District hereinafter referred to as "STATE." RECITALS WHEREAS, CITIES, ORANGE COUNTY and STATE are responsible for the management of coastline within Orange and San Diego Counties; WHEREAS, CITIES ORANGE COUNTY AND STATE desire to obtain income or goods by selling rights on an exclusive basis within distinct categories of goods and services; Final 212 8)03 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement WHEREAS, CITIES, ORANGE COUNTY and STATE are members of the BEACHES OF SOUTHERN CALIFORNIA COALITION ( "Coalition "), a coalition of public entities formed to jointly negotiate marketing agreements utilizing the expertise of STATE acting on behalf of the Coalition; WHEREAS, SPONSOR desires to obtain the exclusive rights to provide and display sponsorship identification on lifeguard vehicles being used in Orange County and San Diego county beaches; WHEREAS, SPONSOR also desires the right to purchase the exclusive rights to advertise, sponsor events, and promote itself, as the "Official Marine Safety Vehicle Sponsor of the Beaches of Southern California Coalition "; WHEREAS, STATE is authorized by the provisions of the Public Resources Code Sections 5009.1, 5009.2, and 5009.3 to enter into donor and sponsorship agreements and license the use of its logo(s) on Orange Coast Beaches that are owned or operated by the State of California; WHEREAS, ORANGE COUNTY is authorized by the provisions of the Codified Ordinance of the County of Orange Division 5, Section 2 -5 -127 to sell the right(s) to advertise on Beaches of Southern Califomia that are owned or operated by the County of Orange; WHEREAS, CITY of IMPERIAL BEACH is authorized by the provisions of Article XI, Section 7 of the California Constitution and Government Code Sections 37350 and 37351 to sell the right(s) to advertise on Beaches of Southern Califomia that are owned or operated by the City of Imperial Beach; WHEREAS, CITY of NEWPORT BEACH is authorized by the provisions of Article XI, Section 7 of the California Constitution and Government Code Sections 37350 and 37351 to sell the right(s) to advertise on Beaches of Southern Califomia that are owned or operated by the City of Newport Beach; WHEREAS, CITY of SAN CLEMENTE is authorized by the provisions of Article XI, Section 7 of the California Constitution and Government Code Sections 37350 and 37351 to sell the right(s) to advertise on Beaches of Southern California that are owned or operated by the City of San Clemente; and WHEREAS, CITY of SEAL BEACH is authorized by the provisions of Section 28 -2002 of the Seal Beach City Municipal Code to sell the right(s) to advertise on Beaches of Southern Califomia that are owned or operated by the City of Seal Beach; WHEREAS, the CITY of SOLANA BEACH is authorized by the provisions of Article XI, Section 7 of the California Constitution and Government Code Sections 37350 and 37351 to sell the right(s) to advertise on Beaches of Southern California that are owned or operated by the City of Solana Beach; Final 2/28/03 2 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement IT IS THEREFORE agreed by and between the parties as follows: I. Definitions As used herein, the terms set forth below shall be defined as follows: A. "Agreement Year" shall mean the 365 -day period beginning on the Commencement Date or any subsequent 365 -day period commencing on the expiration of a prior Agreement Year. B. "Commencement Date" shall mean the date this Agreement is approved and fully executed by SPONSOR and STATE. C. "Lifeguard Vehicle(s)" shall mean the Chevrolet vehicles as to which the rights of possession and use are being granted hereunder to the Beaches of Southern Califomia Coalition and the individual Public Entity Parties thereof. D. "Logo(s)" shall mean any source - identifying symbol or seal in existence belonging to any party hereto or to be developed by parties to this Agreement as mutually agreed upon. E. " Mark(s)" shall mean any word, name, trademark, service mark, copyright, and other intellectual property owned by any of the parties hereto that has merchandising capability or goodwill associated with or symbolized by the Mark(s). F. 'Beaches of Southern California" shall mean those beaches within Orange and San Diego Counties over which the Public Entity Parties have cumulative operational authority. G. "Premium(s)" shall mean any promotional article used for the purpose of increasing the sales of particular products, including those of SPONSOR. H. "Promotional Events" shall mean events conducted on the beach by the SPONSOR. "Public Entity Party(ies)" shall mean that individual member or those members of the Beaches of Southern California Coalition participating in this Lifeguard Vehicle Sponsorship Agreement. J. "Special Events" shall mean events that are sponsored by the Public Entity Parties on the Beaches of Southern California, except for the Public; Entity Parties of the Cities of Laguna Beach and Oceanside and the County of Orange. Notwithstanding anything herein to the contrary, the Final 2128103 3 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement annual Ocean Festival in the City of San Clemente shall not be deemed a "Special Event. K. "Safety Signage" shall mean permanent and semi - permanent signage placed on the Beaches of Southern California for the purpose of educating the public about the safe enjoyment of the beach. L. "Sponsor Identification" shall mean that display on the 12" X 15' space on the Lifeguard Vehicles mutually agreed to between the SPONSOR and the Public Entity Parties. II. Grant of Rights Subject to the conditions set forth herein below and upon execution of the Agreement by all the parties, the Public Entity Parties shall grant to SPONSOR the following rights: A. SPONSOR may advertise itself as the "Official Marine Safety Vehicle Sponsor of the Beaches of Southern California" and to be the SPONSOR of the Beaches of Southern California Coalition within the "Motor Vehicles" category. B. During the term of this Agreement, Public Entity Parties will not conduct nor participate in promotional activities with any other motor vehicle or component parts manufacturers or distributors within the Beaches of Southern California, which may conflict with the rights granted to SPONSOR in this Agreement, without the prior written approval of SPONSOR. Public Entity Parties further represent and warrant that no other motor vehicle or component parts manufacturers or distributors will participate in any way in the Special Events without the prior written approval of SPONSOR. This Agreement does not affect any events or activities at the Beaches of Southern California, where such events or activities are sponsored or organized by a third -party not affiliated with Public Entity Parties ("Third - Party Event'). However, Public Entity Parties shall attempt to notify SPONSOR thirty (30) days in advance of any such Third -Party Event or as soon as is practicable. Public Entity Parties shall use reasonable efforts to arrange initial introductions between SPONSOR and any third -party sponsor or organizer, not affiliated with SPONSOR, of any significant commercial event and /or activity at the Beaches of Southern California, if such third -party is not sponsored by an automotive company or has other conflicting commitments known to Public Entity Parties. C. The SPONSOR is granted the right to place "Official Marine Safety Vehicle Sponsor of the Beaches of Southern California" decals /stickers on the Lifeguard Vehicles provided by SPONSOR. The Public Entity Parties Final 2/28103 4 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement will be allowed to place identification on the vehicles. However, the Public Entity Parties must obtain SPONSOR's prior written approval before placing any additional decals or stickers on the vehicles. D. The SPONSOR is granted the right to produce and display Safety SignagE on those lifeguard towers and tide boards at the Beaches of Southern California described in Exhibit 1. The Public Entity Parties are solely responsible for the creation and the accuracy of all safety messages on any Safety Signage. The number and type of sign placement is described in Exhibit 1. Signage will be primarily safety information and may include a small picture or Logo of SPONSOR's choice. The size of the Signage and Logo are subject to the approval of individual Public Entity Parties. SPONSOR is entitled to approximately % of Safety Signage space or mutually agreed upon size. SPONSOR branding will not interfere with or diminish the effectiveness of the Public Entity Party's safety message. E. The SPONSOR is granted the right to preclude any Public Entity Party's use of SPONSOR's Logo or Mark without prior approval, which approval shall not be unreasonably withheld. F. SPONSOR is granted the right to give to STATE and the Cities of Newport Beach, Seal Beach, Solana Beach, and Imperial Beach a promotional brochure, which each agree to include in a total of two (2) regular Public Entity Parties mailings to their respective employees during the term of this Agreement. G. SPONSOR is granted the right to host an annual meeting each year at an appropriate Beaches of Southern California venue for General Motors Corporation and its Orange County dealers to present to the fleet managers of Public Entities Parties and their staff any new developments related to vehicle models and maintenance. This meeting also may include the test driving of vehicles. The Public Entity Parties will be responsible for obtaining any appropriate permits for the test drive. The time, date, and location of the meeting must be mutually agreeable to SPONSOR and the Public Entity Party responsible for the selected venue; however, the duration of the meeting shall not exceed twelve consecutive hours. Rental permit fees will be waived for such meetings. However, insurance, waivers and other standard permit requirements may be imposed. SPONSOR will be responsible for all reimbursable expenses incurred by the Public Entity Party in conjunction with hosting such meetings, so long as the Public Entity Party obtains written approval from SPONSOR before incurring any such expenses. H. Each Public Entity Party will work with SPONSOR to produce a joint public relations event consisting of a press release and one press conference at Final 2128/03 5 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement the Beaches of Southern California with local media outlets to announce commencement of the Agreement. Special and Promotional Events: 1. To the extent that any of the Public Entity Parties, excluding the Cities of Laguna Beach and Oceanside and the County of Orange, conduct Special Events within the Beaches of Southern California as to which sponsorship opportunities are made available by the Public Entity Parties, the SPONSOR is granted the right to advertise its "Official Marine Safety Vehicle Sponsor of the Beaches of Southern California" status in association with such Special Events. Special Event sponsorship advertising is subject to prior written approval by Public Entity Parties. To the extent that the distribution /sale of Premiums is generally allowed at Special Events, the SPONSOR is granted the right to distribute and /or sell SPONSOR's Premiums in conjunction with Special Events. 3. To the extent the following activities are allowed at Beaches of Southern California through the existing permitting process of the Public Entity Party(ies), and subject to standard special event permitting conditions except otherwise applicable event fees: a) The SPONSOR is granted the right to display vehicles, merchandise, banners, cold air - filled balloons, and signage at Special Events. b) The SPONSOR is granted the right to erect tents at Special Events. c) The placement, size, and locations of above - mentioned items will be mutually agreed upon by the SPONSOR and the affected Public Entity Parties. d) Insofar as within the Public Entity Parties' control, the SPONSOR will be provided 12 tickets and 6 VIP parking spots to all Special Events that require tickets. 4. The SPONSOR is granted the right to conduct up to two (2) Promotional Events per year on each of the Beaches of Southern California properties, excluding the City of Laguna Beach, subject to the permitting procedures of the respective Public Entity Party(ies). Normally applicable Special Event permit conditions and requirements shall be applicable except all fees will be waived for such Promotional Events. SPONSOR will be responsible for all reimbursable expenses incurred by Public Entity Party(ies) in Final 2/28/03 6 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement conjunction with hosting such Promotional Events, so long as the applicable Public Entity Party obtains written approval from SPONSOR before incurring any such expenses. The SPONSOR is granted the right to two (2) temporary product display spaces (30'x 30') located in high traffic areas on each of the Beaches of Southern California, or other mutually agreed -upon locations, in conjunction with Promotional Events, subject to the permitting procedures of the respective Public Entity Party(ies). All fees will be waived for any such display. The displays may be erected 48 hours prior to the commencement of the Promotional Event and must be removed within 48 hours of the end of the Promotional Event. III. Grant of License A. SPONSOR is granted a non - exclusive, non - assignable license to use Public Entity Parties' Logos as specifically identified in Exhibit 2 hereto (here and after "Logos "), created and owned by the respective Public Entity Party, and that may be registered with the U.S. Patent and Trademark Office on the principal register, in connection with the advertising and promotion of the SPONSOR'S "Official Marine Safety Vehicle Sponsor of the Beaches of Southern California" status as authorized herein per the terms of this Agreement. B. In connection with each use of any Logo, the SPONSOR shall identify the respective Public Entity Party as the owner and, where applicable, will indicate said ownership by designating the letter R in a circle after each and every use. C. Except as required by law or specifically authorized by this Agreement, no other name, trademark, inscription, or designation whatsoever shall be affixed to any goods or Premiums produced subject to this Agreement, nor shall same appear in any advertising or promotional material placed or produced by SPONSOR in connection with such goods or Premiums. Furthermore, other than the approved Logos, SPONSOR shall at no time adopt or use, without prior written consent of Public Entity Parties, any variation of Logos or any work or mark likely to be similar to or confused with Logos. D. The SPONSOR acknowledges the exclusive right, titles, and interest in and to Logos by the respective Public Entity Parties. SPONSOR further covenants that it shall not at any time challenge or contest the validity, ownership, title, and registration of the Public Entity Parties in and to the intellectual property or the validity of this Agreement. SPONSOR'S use of Logos shall inure to the benefit of the Public Entity Parties. Final 2128103 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement E. If SPONSOR acquires any trade rights, trademarks, equities, titles, or other rights in and to the Logos, by operation of law, usage, or otherwise, SPONSOR shall assign and transfer upon the expiration of this Agreement the same to Public Entity Parties without any consideration. F. All rights not specifically conferred by this Agreement with regard to Logos are reserved to the Public Entity Parties. G. Each Public Entity Party, at its sole discretion, shall take whatever action i deems advisable in connection with any unauthorized use of its Logo by a third party. Each Public Entity Party shall bear the entire cost and expense associated with any such action, and any recovery or compensation that may be awarded or otherwise obtained as a result of any such action shall belong to said Public Entity Party. H. Public Entity Parties shall have the right to approve the quality of the reproduction of Logos on any materials, including Premiums, as well as the associational use or co- joining of such Logos with any event, cause, or third party. SPONSOR ACKNOWLEDGES AND AGREES THAT THERE ARE NO WARRANTIES, GUARANTIES, CONDITIONS, COVENANTS, OR REPRESENTATIONS BY PUBLIC ENTITY PARTIES AS TO MARKETABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHER ATTRIBUTES, WHETHER EXPRESS OR IMPLIED (IN LAW OR IN FACT), ORAL OR WRITTEN WITH RESPECT TO LOGOS. The SPONSOR understands that the rights granted herein with respect to Logos specifically identified in Exhibit 2 hereto are limited to use in connection with SPONSOR'S products and promotions as permitted by this Agreement and do not extend to any other products, goods, or services. Each and every such usage must first have written approval of affected Public Entity Parties, which approval shall not be unreasonably withheld. K. In the event of termination or expiration of this Agreement, any and /or all parties shall cease all use of the Logo(s) and Mark(s) of the other parties as soon as practicable, but in any event within thirty (30) days, unless the Logo(s) or Mark(s) have been placed in media requiring a longer lead time, and, in such instance, no longer than ninety (90) days. Any and all Premiums will be destroyed or provided at no cost to Public Entity Parties where a Logo or Mark belonging to a Public Entity Party is featured on the Premium. Final 2128/03 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement IV. Sponsor's Obligations A. The SPONSOR agrees to submit to the respective affected Public Entity Parties for their prior review and approval all Sponsor Identification, advertising, promotional T.V. and radio commercials, or other display material to be used by SPONSOR in connection with the Coalition and the Public Entity Parties or in connection with SPONSOR's designation as the "Official Marine Safety Vehicle Sponsor of the Beaches of Southern California ". Such material shall be submitted not less than ten (10) business days prior to its proposed release to the public. If the material is not disapproved in writing within five (5) business days after receipt, it is deemed approved. B. The SPONSOR agrees that it will not cause or permit the Logo(s) and Mark(s) licensed by and /or developed pursuant to this Agreement to be used or exploited in any manner contrary to public morals, that violates prevailing standards of good taste, or that reflects unfavorably upon the good names, good will, reputation, and image, in whole or in part, of the Coalition or any or all of the Public Entity Parties. C. The SPONSOR agrees not to use any Premium in connection wNh the rights herein granted unless prior written approval of such Premium has been obtained from the Public Entity Parties, which approval shall not be unreasonably withheld. D. The manufacture of any Premium product using the Logo(s) or Mark(s) must be first approved by the respective affected Public Entity Parties, which approval shall not be unreasonably withheld. E. If the SPONSOR desires to sell or distribute for sale any Premium bearing the Logo(s) and /or Mark(s) of any Public Entity Party(ies), the pertinent parties shall negotiate a separate licensing agreement. F. No later than two (2) weeks prior to the date of any Special or Promotional Event, the SPONSOR shall request, through the appropriate Public Entity Party permit process, permission for the display of signage, banners, cold air - filled balloons, and installation of tents, indicating when, where, number, size, nature of material, proximity to other structures, and length of time, for each and every Special and Promotional Event. In addition, SPONSOR shall comply with standard permit conditions, including the provision of insurance and waivers, applicable to the activity proposed. V. Consideration A. For the rights and benefits granted to SPONSOR herein, SPONSOR agrees to deliver to the Public Entity Parties sixty -seven (67) new Chevrolet vehicles as described in Exhibit 3 for use by the Public Entity Final 2128103 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement Parties' Lifeguard Divisions. The terms and conditions for the loan of these Lifeguard Vehicles is as follows: 1. The Lifeguard Vehicles are and shall remain the property of SPONSOR; 2. The Lifeguard Vehicles will be delivered for distribution within 60 days from the Commencement Date of the Agreement; 3. During the term of this Agreement, SPONSOR may replace a portion of the Lifeguard Vehicles each year; provided, however, that each Lifeguard Vehicle may be replaced no more than once every three years. The timing of such vehicle replacement and the determination of the vehicle to be replaced shall be mutually agreed upon between the SPONSOR and the applicable Public Entity Party, in an effort to enable the Public Entity Party to appropriate the necessary resources for outfitting the replacement vehicle; 4. Delivery of Lifeguard Vehicles shall be taken by the Public Entity Parties at an authorized Chevrolet dealer within ten (10) miles of the respective Public Entity Parties to be identified by the Public Entity Party and approved by SPONSOR. The SPONSOR is not liable for any reasonable and unavoidable delay beyond its control in making the Lifeguard Vehicles available to the Public Entity Parties; 5. Upon receipt of the Vehicle(s), Public Entity Parties will execute and deliver to SPONSOR a copy of the Loan of Vehicle Terms and Conditions and Vehicle Receipt, attached hereto and incorporate as Exhibit 4. B. If any of the Public Entity Parties fail to enact this agreement through signature of the authorized representative, then all rights granted herein to SPONSOR and all consideration granted herein by SPONSOR are nullified in respect to that particular non - executing Public Entity Party. C. If SPONSOR chooses to extend this Agreement according to the provisions set forth in Section VI, Term and Extension of Rights, below, replacement Lifeguard Vehicles shall be delivered within 60 days after the commencement of the fourth Agreement Year. In exchange, Public Entity Parties shall deliver to SPONSOR, at the designated Chevrolet dealer locations after removal of safety equipment, all Lifeguard Vehicles then currently in use and not purchased by Public Entity Parties. Final 2128/03 10 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement VI. Term and Extension of Rights A. This Agreement shall be deemed to begin on the Commencement Date and shall continue for three (3) Agreement Years. SPONSOR shall have the right to one (1) optional extension of three (3) additional Agreement Years on the same terms set forth herein subject to the provisions concerning termination set forth in Sections VI.0 and VII, below. SPONSOR shall provide to the Public Entity Parties through STATE, at least One Hundred Eighty (180) days prior to the expiration of this Agreement, written notice as to whether SPONSOR will or will not exercise its one (1) optional extension. B. If the Coalition continues to desire Lifeguard Vehicle sponsorship subsequent to termination of this Agreement, the Coalition shall give SPONSOR the opportunity to negotiate a new Agreement. The Coalition, through STATE, shall provide to SPONSOR, at least One Hundred Eighty (180) days prior to the expiration of this Agreement, a written status report as to the intentions and needs of the Coalition vis -a -vis Lifeguard Vehicle sponsorship. SPONSOR shall advise the Coalition through STATE, at least One Hundred Twenty (120) days prior to the expiration of this Agreement, as to whether or not SPONSOR desires to negotiate a new sponsorship agreement. If SPONSOR elects not to participate on the terms of the proposal and the parties are unable to negotiate mutually acceptable terms, then the Coalition shall be free to negotiate with others; however, provided that within the first six months following the expiration of this Agreement the Coalition shall not offer terms to others that are materially different than those previously offered to SPONSOR without first offering such different terms to SPONSOR. C. Any party may terminate this Agreement effective as of December 31 of any year by giving written notice to the others through STATE of the termination prior to the immediately preceding July 1. Termination by one Public Entity Party shall not impact other Public Entity Parties. VII. Rights and Obligations of STATE The parties hereto recognize that STATE has and continues to solicit and negotiate proposals and agreements on behalf of the Coalition pursuant to the Beaches of Southern California Coalition Agreement. As a result thereof, the parties hereto recognize that STATE has the following rights and obligations. A. STATE will assist Public Entity Parties in identifying the number and model of the donated Lifeguard Vehicles for each Public Entity Party and, thereafter, will assist in resolving distribution and promotion problems. B. The Public Entity Parties shall pay a commission to STATE upon receipt of Lifeguard Vehicles and on the anniversary of the Commencement Date each year the Agreement is in force. The commission shall be equal to Final 2/28/03 11 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement eight percent (8 %) of the annual lease value of the Lifeguard Vehicles delivered to the respective Public Entity Parties as specified in Exhibit 5. VIII. Hold Harmless A. SPONSOR SPONSOR hereby waives all claims and recourse against the Coalition and the individual Public Entity Parties, as well as their respective Supervisors, councils, council members, departments, officials, agents, employees, successors and assigns, including the right to contribution for loss or damage to persons or property arising from, growing out of, or in anyway connected with or incident to SPONSOR's products, Premiums, and /or activities under this Agreement, except claims arising from and to the extent of the negligence of one or more of the Public Entity Parties, including the Public Entity Party(ies)'s negligent use or possession of any Lifeguard Vehicle, or other wrongful acts for which the Public Entity Party(ies) is /are responsible under law. 2. SPONSOR shall protect, indemnify, hold harmless, and defend the Public Entity Parties against any and all claims, demands, obligations, causes of action, and lawsuits, and all damages, fines, judgments, costs (including settlement costs), and expenses associated therewith including the payment of reasonable attorneys fees, court costs, litigation costs, consultant or expert fees, and other expenses associated there with, arising out of, related to, or resulting from the products, Premiums, and /or activities of SPONSOR in connection with this Agreement, except for liability arising out of and to the extent of the negligence of one or more of the Public Entity Parties, their officers, agents, or employees, including the negligent use or possession of any Lifeguard Vehicle, or other wrongful acts for which the Public Entity Party(ies) is /are responsible under law. SPONSOR's indemnification shall extend to any claim of false or deceptive advertising and to the failure of SPONSOR to comply with the terms and conditions of this Agreement. All new vehicle warranties shall remain in effect and SPONSOR shall indemnify Public Entity Parties for all damages arising from manufacturing defect in the Lifeguard Vehicles. 4. In the event one or more of the Public Entity Parties are named as a defendant in any claim or legal action as to which the Public Entity Parties are entitled to indemnification under the terms hereof, upon tender of the claim or action by one or more of the Public Entity Parties to SPONSOR, SPONSOR shall assume the Public Entity Party(ies)'s defense and represent the Public Entity Final 2128103 12 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement Party(ies) in such legal action at SPONSOR's expense with attorneys of the choosing of SPONSOR. B. Public Entity Parties 1. The Public Entity Parties covenant to and agree for the benefit of SPONSOR and its directors, officers, employees, and agents that the Public Entity Parties are each solely responsible for their individual activities under this Agreement and that each will bear all responsibility for and hold SPONSOR and its directors, officers, employees, and agents harmless with respect to all such activities including, without limitation, all expenses that could not be reasonably mitigated or avoided by SPONSOR, damages payable to third parties, excluding consequential losses and lost profits, fines, reasonable legal expenses (including, without limitation, attorneys fees, court costs, litigation costs, consultant or expert fees, and other expenses associated therewith), incurred by SPONSOR as a result of (i) the sole or concurrent negligence of the particular Public Entity Party or (ii) the use or possession by the Public Entity Party of any Lifeguard Vehicle, or (iii) other wrongful acts for which the Public Entity Party is solely or concurrently responsible, except for any portion attributable to the liability of SPONSOR. The Public Entity Parties shall be obligated to reimburse SPONSOR for such expense upon written submission of a detailed statement with supporting documentation of the payment of such losses. Each Public Entity Party shall be responsible for its own actions and the parties agree there shall be no joint and several liability imposed under this Agreement. 2. Should SPONSOR be named as a defendant in any action for which SPONSOR is held harmless by a Public Entity Party(ies), SPONSOR may tender such action to the responsible Public Entity Party(ies) for defense of such action and the responsible Public Entity Party(ies) if in accordance with law in effect at the time of such tender will accept the tender and assume the defense of SPONSOR with attorneys of the choosing of the Public Entity Party(ies). 1X. Insurance A. The Public Entity Parties will provide SPONSOR with proof of full coverage during the term of this Agreement in the amount listed below: Automobile Liability: $5,000,000 for the Lifeguard Vehicles per occurrence combined single limit for personal injury and property damage; comprehensive fire; and theft collision. Final 2128103 13 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement 2. Commercial General Liability (including contractual and spectators liability): $1,000,000 per occurrence combined single limit for personal injury and property damage; 3. Workers Compensation: Statutory for California including Employer's Liability with limits of not less than $500,000. B. Each Public Entity Party shall furnish SPONSOR with a certificate showing the applicable coverage, naming General Motors Corporation as an additional insured (except A(3) Workers Compensation), stating that such insurance is primary in coverage to any other insurance that may be available to General Motors Corporation, and at least thirty (30) days' prior written notice to SPONSOR of cancellation, modification, or material change to the policy. Such certificate shall be in a form acceptable to SPONSOR and must be underwritten by and an insurer satisfactory to SPONSOR. The purchase of appropriate insurance coverage or the furnishing of the certificate by each Public Entity Party shall not release each Public Entity Party from its obligations or liabilities under this Agreement. C. The foregoing notwithstanding, the provision to SPONSOR by any or all of the Public Entity Parties of proof of self insurance shall fully satisfy the requirements of Paragraphs X.A and X.B above for the relevant Public Entity Parties. X. Force Majeure Any delay or failure of any party to perform its obligations hereunder shall be excused to the extent that it is caused by an event or occurrence beyond its reasonable control such as, by way of example and not by way of limitation, acts of God, actions by governmental authority (whether valid or invalid), fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, or labor problems; provided the party claiming force majeure promptly notifies the other party of the event of force majeure, the anticipated duration of the event of force majeure, and the steps being taken to remedy the failure. Should the event of force majeure continue beyond thirty (30) days, or such shorter time period as may be reasonable under the circumstances, any party may terminate this Agreement, and any affected party shall be entitled to a pro rata refund for services not yet performed by another party. XI. Default and /or Termination A. Any non - defaulting party may cancel this Agreement as to itself , without liability to another party, if another party defaults or repudiates or breaches any of the terms of this Agreement; and does not correct such failure or breach within ten (10) days, or such shorter period if commercially reasonable, after receipt of written notice from the non - defaulting party specifying such failure or breach. Final 2/28103 14 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement B. Any party may cancel this Agreement as to itself immediately, without liability to another party, upon the happening of any of the following or any other comparable event: (1) insolvency of the other party; (2) filing of any petition by or against another party under any bankruptcy, reorganization, or receivership law; (3) execution of an assignment for the benefit of another party's creditors; or (4) appointment of any trustee or receiver of another party's business or assets or any part thereof; unless such petition, assignment, or appointment be withdrawn or nullified within fifteen (15) days of such event. C. In the event this Agreement is canceled by one or more parties, each party shall cease using the terminating party(ies)'s Marks, and the terminating party(ies) shall return those funds, if any, paid to it by SPONSOR for services that have not yet been performed. In addition, if vehicles are loaned to the terminating party(ies), said party(ies) shall promptly return the vehicles to SPONSOR. Further, all SPONSOR's rights in regards to the terminating party(ies) under the Agreement shall terminate. Q. The foregoing remedies are in addition to, and not in lieu of, any other rights or remedies that a party may have at law or in equity; provided however, that in no event will any party be liable to the other for incidental, consequential, or punitive damages arising out of a breach of this Agreement. E. The parties agree that for the purposes of determining breach, termination, and /or default, each Public Entity Party shall be treated as a separate and individual party for its own acts and omissions. Therefore, Public Entity Party can be terminated from this Agreement and such termination will not cause this Agreement to terminate. In addition, such breach, termination, and /or default will not change the rights and obligations of any other Public Entity Party. XII. Waiver Failure by any party at any time to require performance by another party of any provision hereof shall in no way affect the right to require full performance any time thereafter, nor shall the waiver by any 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. XIII. Notices A. Any notice required or permitted to be given by any party under or in connection with this Agreement shall be in writing and shall be deemed duly given when personally delivered, sent by cable or facsimile and confirmed by letter, or three business days after being sent by registered Final 2128103 15 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement or certified mail return receipt requested, postage prepaid, or expedited courier service. The addresses for notice are: Coalition General Correspondence: Department of Parks and Recreation Marketing Division 1416 Ninth Street Sacramento, CA 95814 Mr. John McMahon, Deputy Director, Chief of Marketing Sponsor: Chevrolet Motor Division General Motors Corporation 515 Marin St., Suite 101 Thousand Oaks, CA 91360 Attn: Bill Beasley, Regional Division Marketing Manager (During the term of this Agreement, SPONSOR may designate a different address for notification purposes; provided that any such address shall located in the State of California.) Public Entity Parties: Department of Parks and Recreation Orange Coast District Mike Tope, District Superintendent 3030 Avenida del Presidente San Clemente, CA 92672 County of Orange Attention: Patti Schooley #1 Irvine Park Road Orange, CA 92862 City of Laguna Beach Marine Safety Department 505 Forest Ave. Laguna Beach, CA 92651 City of Newport Beach City Clerk 3300 Newport Blvd. Newport Beach, CA 92663 City of San Clemente Beaches, Parks and Recreation Director Bruce Wegner 100 North Seville San Clemente, CA 92672 City of Seal Beach Attn: City Clerk Joanne Yeo be 211 8th Street Seal Beach, CA 90740 City of Solana Beach 111 S. Sierra Ave. Solana Beach, CA 92075 City of Encinitas 505 S. Vulcan Ave. Encinitas, CA 92024 -3633 City of Oceanside 301 N. The Strand Oceanside, CA 92054 City of Imperial Beach Public Safety Director 865 Imperial Beach Boulevard Imperial Beach, CA 91932 B. SPONSOR will notice Public Entity Parties individually and directly when coordinating Special or Promotional Events or other cases where the notice pertains to only one Public Entity Party. Public Entity Parties will be noticed at the addresses listed above. Final 2/28/03 16 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement C. STATE and SPONSOR will be copied on all notices given by any party under or in connection with this Agreement. XIV. Assignment No party shall transfer or assign its rights, nor delegate its obligations under this Agreement to a third party, without the prior written approval of the other parties XV. Compliance with law Each party will perform its obligations under this Agreement in compliance with all applicable laws, orders, or regulations of all appropriate jurisdiction. XVI. 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. XVII. No Joint Venture Nothing herein contained shall be deemed to constitute this a joint venture, partnership or agency relationship between the parties and none of them shall be responsible for any obligations of the other, except as herein specifically provided. XVIII. Disputes Any and all disputes arising out of or in connection with the negotiation, execution, interpretation, performance, or nonperformance of this Agreement (including the validity, scope, and enforceability of this arbitration provision) shall be settled by mutual agreement of the parties, and, in the absence of such agreement, through submission to binding arbitration. The location for the arbitratidn shall be at a mutually agreeable location. XIX. Execution in Counterparts This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument XX. 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. Final M8103 17 Beaches of Southern California Coalition AGREEMENT No. 001, entered into this Chevy Lifeguard Vehicle Sponsorship Agreement day of 200 IN WITNESS WHEREOF, SPONSOR hereto has executed this Beaches of Southern California Coalition Lifeguard Vehicle Sponsorship Agreement on the date set forth above. CHEVROLET MOTOR DIVISION, GENERAL MOTORS CORPORATION M STATE OF CALIFORNIA} COUNTY OF VENTURA} On , 2003, before me the undersigned notary public, personally appeared , the person(s) whose name is subscribed to this instrument, and acknowledged that he executed it. Final 2/28103 18 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement BEACHES OF SOUTHERN CALIFORNIA COALITION MEMBER AGREEMENT NO. 001, entered into this day of 200 IN WITNESS WHEREOF, each party hereto has executed this Beaches of Southern California Coalition Lifeguard Vehicle Sponsorship Agreement on the date set forth above. By: Signature of Authorized Person Print the Name of Authorized Person Title of Authorized Person Name of Agency ress City Zip Code Signature of Legal Counsel Printed Name of Legal Counsel Final 2128103 19 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement BEACHES OF SOUTHERN CALIFORNIA COALITION LIFEGUARD VEHICLE SPONSORSHIP AGREEMENT Exhibit 1 Lifeguard and Tide Board Safety Signage SPONSOR is granted the right to produce and display beach Safety Signage on the following properties: Beaches Number & TVpe of Signs Bolsa Chica, Huntington State, Doheny, San Clemente State, San Onofre 45 lifeguard towers Newport 35 lifeguard towers Seal 8 lifeguard towers Sunset, Aliso, Salt Creek, Capo, Poche, Dana Pt., Harbor, Strands, Table Rock, Thousand Steps, West Street, 25 lifeguard towers Solana 4 lifeguard towers Oceanside 14 lifeguard towers & 3 tide boards Imperial 8 lifeguard towers Final 2/28103 20 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement BEACHES OF SOUTHERN CALIFORNIA COALITION LIFEGUARD VEHICLE SPONSORSHIP AGREEMENT California State Parks County of Orange City Of Seal Beach Exhibit 2 Public Entity Party Logos City Of Newport Beach f I k L_ _ City Of San Clemente gO�iN1 fi City Of Solana Beach Ri 12/28103 21 City Of Oceanside City of Imperial Beach City of Encinitas Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement BECHES OF SOUTHERN CALIFORNIA COALITION LIFEGUARD VEHICLE SPONSORSHIP AGREEMENT Exhibit 3 SPONSOR agrees to provide sixty -seven (67) courtesy vehicles to the Coalition as follows: Public Entity Party Silverado S10 Suburban or Tahoe Trailblazer Total State of California 15 15 City of San Clemente 2 1 3 City of Laguna Beach 1 3 4 City of Newport Beach 8 5 13 City of Solana Beach 3 1 4 City of Seal Beach 1 4 1 6 City of Oceanside 1 5 1 7 County of Orange 5 2 7 City of Imperial Beach 3 1 4 City of Encinitas 1 1 2 4 Final MB103 22 Beaches of Southern California Coalition Chevy Lifeguard VehicJe Sponsorship Agreement BEACHES OF SOUTHERN CALIFORNIA COALITION LIFEGUARD VEHICLE SPONSORSHIP AGREEMENT Exhibit 4 Loan of Lifeguard Vehicle Terms and Conditions and Lifeguard Vehicle Receipt Chevrolet Motor Division of General Motors Corporation ( "SPONSOR ") agrees to loan the Lifeguard Vehicle(s) outlined in Exhibit 3 of the Lifeguard Vehicle Sponsorship Agreement to the Public Entity Party members of the Beaches of Southern California Coalition ( "COALITION ") from approximately March 2003 to February 2006 upon the terms set forth below: COALITION'S ADDRESS: California Department of Parks and Recreation Attn: John McMahon, Deputy Director, Marketing Division P.O. Box 942896, Sacramento, CA 94296 -0001 916 -651 -6700 Terms: 1. The Lifeguard Vehicles are, and shall remain, the property of SPONSOR. 2. The Public Entity Parties agree that: (a) the Lifeguard Vehicle(s) will not be utilized illegally, improperly, for hire, as a public conveyance or in any manner for any political purpose whatsoever; (b) the Lifeguard Vehicle(s) shall be driven in a safe and prudent manner by insured, licensed drivers, eighteen (18) years of age or older who meet the GM Safe Driver Program Driver Conduct Requirements (attached hereto) and who are officers, directors, employees, agents or subcontractors of the Public Entity Parties, or who are driving the Lifeguard Vehicle(s) while on business related to the activities contemplated under this Agreement; (c) The Public Entity Parties shall ensure that no one modifies, disconnects, or otherwise interferes with the operation of the odometer, emission control equipment, or any other equipment, except in connection with repairs as required by the terms of this Agreement; (d) The Public Entity Parties acknowledge receipt of a nd w ill o btain from a ach d river of a Vehicle a s igned Driver Conduct Requirements form and shall retain each executed form for three (3) years and provide them to SPONSOR at SPONSOR'S request; (e) The Public Entity Parties will report all incidents /crashes involving damage to a Lifeguard Vehicle, including reporting incident/crash to ESIS (a subsidiary of CIGNA Insurance) at 1- 800 - 888 -0154 and to SPONSOR, and will follow instructions provided in the glove compartment of the Lifeguard Vehicle; (f) without limiting or altering any insurance or indemnification obligations contained in this Agreement, Public Entity Parties will cooperate with SPONSOR at no cost to the Public Entity Parities in the defense of any claims or lawsuits related to Public Entity Parties' use or possession of any Lifeguard Vehicle; (g) The Public Entity Parties will not make any repairs to a Lifeguard Vehicle without the explicit Final 2128/03 23 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement prior consent of ESIS with the exception of the addition of standard required safety equipment; and (h) The Public Entity Parties shall be responsible for all fines, forfeitures and penalties incurred by reason of the use of the Lifeguard Vehicle(s). 3. SPONSOR MAKES NO WARRANTY OTHER THAN THAT EXPRESSED IN ITS NEW VEHICLE LIMITED WARRANTY, A PRINTED COPY OF WHICH IS FURNISHED WITH THE LIFEGUARD VEHICLE. SPONSOR authorizes Public Entity Parties to obtain, on SPONSOR'S behalf as owner of the Lifeguard Vehicle(s), such warranty service as is necessary and provided for under the new vehicle limited warranty. Ordinary operating expenses such as gas, oil, grease, tire repair and other incidentals are the responsibility of the Public Entity Parties. 4. Prior to the receipt of the Lifeguard Vehicles, the Public Entity Parties will provide SPONSOR with proof of full coverage during the term of this Agreement in the following amounts: Automobile Liability: $5,000,000 for the Lifeguard Vehicles per occurrence combined single limit for personal injury and property damage; comprehensive fire; and theft collision; Commercial General Liability (including contractual and spectator's liability): $1,000,000 per occurrence combined single limit for personal injury and property damage; Workers Compensation: Statutory for California including Employer's Liability with limits of not less than $500,000. Each Public Entity Party shall furnish SPONSOR with a certificate showing the applicable coverage, naming General Motors Corporation as an additional insured (except A(3) Workers Compensation), stating that such insurance is primary in coverage to any other insurance that may be available to General Motors Corporation, and at least thirty (30) days' prior written notice to SPONSOR of cancellation, modification, or material change to the policy. However, the foregoing notwithstanding, the provision to SPONSOR by any or all of the Public Entity Parties of proof of self insurance shall fully satisfy the requirements of Paragraphs X.A and X.B above for the relevant Public Entity Parties. 5. At the end of the term of the loan, The Public Entity Parties will return the Lifeguard Vehicle(s) to the nearest dealer location or such other location as designated by SPONSOR. If a Lifeguard Vehicle must be recovered by SPONSOR or repaired to restore it to the condition in which it was delivered (reasonable wear and tear, as defined by General Motors Corporation guideline, attached hereto, excepted), then Public Entity Parties will pay SPONSOR any costs incurred by SPONSOR to recover the Lifeguard Vehicle and to repair it. If, in S PONSOR'S o pinion, a Lifeguard V ehicle c annot or s hould n of b e repaired based upon General Motors Corporation's policy for repairing /scrapping damaged vehicles, then the Lifeguard Vehicle must be returned to SPONSOR and the responsible Public Entity Party will pay SPONSOR the Lifeguard Vehicle's value, based upon the following formula: The amount General Motors Corporation would have received if the Vehicle had been sold at auction the month the Lifeguard Vehicle would have been returned to SPONSOR on the Final 2/28103 24 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement three year schedule based on a similar make and model year vehicle with similar mileage, as determined by GM -NA Fleet and Commercial Operations Auction Results' report, less $4,000. Authorized Public Entity Party Signature: Title: Date: Final 2/28103 25 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement Exhibit 4 • Continued General Motors Safe Driver Program Driver Conduct Requirements I understand that the loan of this Vehicle is subject to the following terms, and verify that I am eighteen (18) years of age or older, possess a valid operator's license and will ... ...display such license to the vehicle key issuer at each Vehicle exchange, and will comply with a license restrictions. 2. ...never drive while impaired by alcohol, drugs, medication, illness, fatigue, or injury. 3. ...ensure the proper use of safety belts and child safety restraints for all occupants. 4. ...obey all applicable motor vehicle laws, codes, and regulations. 5. ...drive in a defensive manner, anticipating situations where incidents are likely to occur. ...refrain, at all times, from using radar /laser detection devices. 7. ...plan trips by selecting the safest route, depart early enough to observe posted speed and traffic regulations, and will be mindful of current and forecasted weather conditions. 8. ...report all incidents /crashes involving the vehicle to ESIS (General Motors' insurance claims administrator) at 1- 800 - 888 -0154 (direction is provided in the glove department of the vehicle) and to DIVISION. 9. ...not permit any other person to operate the Vehicle. Furthermore, by signing this receipt and acknowledgment, I verify that I have not been convicted within the past 36 months of any of the following motor vehicle violations: Driving while operator's license is suspended, revoked, or denied. 2. Vehicular manslaughter, negligent homicide, felonious driving or felony with a vehicle. 3. Operating a vehicle while impaired, under the influence of alcohol or illegal drugs, or refusing a sobriety test. Final 2128/03 26 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement 4. Failure to stop or identify after a crash (includes leaving the scene of a crash; hit and run; giving false information to an officer). 5. Eluding or attempting to elude a law enforcement officer. 6. Traffic violation resulting in death or serious injury. 7. Any other significant violation warranting suspension of license. Driver's Name: Driver's License Number and State: Driver's Signature: Final 2!28/03 27 (Number) (State) Date: Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement Exhibit 4 - Continued General Motors Corporate Guidelines Normal Vehicle Wear and Tear • Windshield stone chips not in driver's field of vision. • Leading edge stone chips on painted surfaces. • One door ding, any door, less than the size of a nickel. • Scratches, regardless of length, in which exterior paint is not broken and sheet metal is OK (i.e. that can be buffed out). • Cleanable dirt, grime, and stains on exterior and interior surfaces. • Scuffed tires, wheels, moldings, sills, undercarriage components, and cargo areas. • Correctable misalignment or balance of wheels and tires. • Scratches, scuffs, scrapes, and minor dings in truck beds. • Any warrantable repairs. Final 2/28/03 28 Beaches of Southern California Coalition Chevy Lifeguard Vehicle Sponsorship Agreement BEACHES OF SOUTHERN CALIFORNIA COALITION LIFEGUARD VEHICLE SPONSORSHIP AGREEMENT Exhibit 5 The Public Party Entities agree to the following lease values and corresponding commission due STATE. Commissions are due no later than thirty (30) days from the start of each contract year. "Contract year' shall mean each twelve (12) month period that commences the first day of the calendar month immediately following the date of contract execution and extends twelve (12) months therefrom throughout the term of the contract. Public Entity Annual Lease Values Annual Parties Silverado S10 Suburban Trailblazer Total Commission ($5,604/yr) ($4,464/yr) or Tahoe ($5,700 /yr) ($) $5,6561 r State of $66,960 $66,960 NA California City of San $8,928 $5,700 $14,628 $1,170 Clemente City of Laguna $5,604 $17,568 $23,172 $1,854 Beach �f City of Newport $35,712 $29,280 $64,992 $5,199 Beach City of Solana $13,392 $5,856 $19,248 _ $1,540 Beach City of Seal $5,604 $17,856 $5,856 $29,316 $2,345 Beach City of $5,604 $22,320 $5,700 $33,624 $2,690 Oceanside County of $22,320 $11,400 $33,720 $2,698 Orange City of Imperial $13,392 $5,856 $19,248 $1,540 Beach City of $5,604 $4,464 $11,712 $21,780 $1,742 Encinitas Final 2/28/03 29 ILLUSTRATION A Option A -- 25"Wxl6"H (job) proof file name: 661739GMprfR3.eps O 1 , Q8. U3 notation. GM R "Works -- SoCaf Beach Decals, Proof Rey 3 dimensions: noted above (proof 114th scale) 2201 Ftfteenth Avow! West Seattle. Washington 98119 Phone: 206.284.7201 Fee: 206.284.8510 2095 OTo9te Aw San Jose, Calff=la 95131 SuperGrap a divialon of GM Nameplate ILLUSTRATION B DIVING in OCEAN SURF, OR BAY IS DANGEROUS: SHALLOW WATER SUBMERGED ROCKS SANDBARS INSHORE HOLDS ... CAN BADLY INJURE YOU SWIMMING in OCEAN OR SURF CAN BE HAZARDOUS: STRONG CURRENTS RIPTIDES SURFBOARDS... ENDANGER ANY SWIMMER WAVESAREPOWE'RFUL. HAZARDOUSAND CHANGING CONDITIONS MAY EXIST Lifeguard Flag System LIGHT CONDITIONS MODERATE CONDITIONS (Caution) E] HEAVYCONDITIONS (Danger) 4D BOARD SURFING PROHIBITED CALL 9-1-1 IN CASE OF EMERGENCY Ahways Swim dear Lifeguard F DIVING in OCEAN SURF, OR BAY IS DANGEROUS: SHALLOW WATER SUBMERGED ROCKS SANDBARS INSHORE HOLDS ... CAN BADLY INJURE YOU SWIMMING in OCEAN OR SURF CAN BE HAZARDOUS: STRONG CURRENTS RIPTIDES SURFBOARDS... ENDANGER ANY SWIMMER WAVESAREPOWE'RFUL. HAZARDOUSAND CHANGING CONDITIONS MAY EXIST Lifeguard Flag System LIGHT CONDITIONS MODERATE CONDITIONS (Caution) E] HEAVYCONDITIONS (Danger) 4D BOARD SURFING PROHIBITED CALL 9-1-1 IN CASE OF EMERGENCY City of Newport Beach BUDGET AMENDMENT 2002 -03 EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates x Increase Expenditure Appropriations AND x Transfer Budget Appropriations SOURCE: from existing budget appropriations from additional estimated revenues NX from unappropriated fund balance EXPLANATION: NO. BA- 049 AMOUNT: $s,45o.00 Increase in Budgetary Fund Balance Decrease in Budgetary Fund Balance No effect on Budgetary Fund Balance This budget amendment is requested to provide for the following: To appropriate funds for the cost to transfer and install emergency equipment onto lifeguard vehicles. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Account Description 610 3605 REVENUE ESTIMATES (3601) Fund /Division Account EXPENDITURE APPROPRIATIONS (3603) Division Number Account Number Division Number Account Number Division Number Account Number Division Number Account Number Division Number Account Number Signed: Signed: Signed: Administrative Description Description 6120 Equipment Maint - Purchase 9102 Contracted Set -up Amount Debit Credit $8,450.00 $8,450.00 nistrative ervices Director Date City Manager Date City Council Approval: City Clerk Date