HomeMy WebLinkAboutGENERAL MOTORS CORP. - 2003-03-03.i00103 S_1"
PROMOTIONAL AGREEMENT471-0 Aa�o
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THIS AGREEMENT, dated as of the date of the last signature herein, is entered into by and
between Chevrolet DIVISION, GENERAL MOTORS CORPORATION, a Delaware
corporation, having a place of business at 515 Marin Street, Thousand Oaks, CA 91360
("DIVISION") and City of Huntington Beach, a California corporation. having a place of
business at 2000 Main Street, Huntington Beach, CA 92648 ("PROMOTER"). In consideration
of the promises hereinafter made to each other, the parties hereto agree as follows:
PROMOTIONAL CONSIDERATIONS
DIVISION agrees to provide the consideration listed on Exhibit A attached hereto.
PROMOTER, for its part, agrees to provide the promotional services and other consideration to
DIVISION listed on Exhibit B attached hereto. If vehicles are loaned to PROMOTER as part of
the consideration identified on Exhibit A (the "Vehicle(s)"), then PROMOTER further agrees to
the following terms and conditions:
A. PROMOTER agrees to obtain and maintain, at its own expense, comprehensive
automobile liability insurance covering all owned, non -owned and hired vehicles (except for the
Vehicles identified in Paragraph 1.D below) with limits of not less than $5,000,000 per
occurrence combined single limit for personal injury and property damage, including all
statutory coverage for all states of operation. The PROMOTER will also provide comprehensive
(fire and theft) and collision coverage on the Vehicle(s). Prior to deliver of the Vehicle(s) the
PROMOTER will provide DIVISION with a certificate of insurance evidencing General Motors
Corporation as an additional insured, stating that such insurance is primary in coverage to any
other insurance which may be available to General Motors Corporation, and providing at least
thirty (30) days' prior written notice to DIVISION- of cancellation, modification, or material
change to the policy.
B. Upon receipt of the Vehicle(s), PROMOTER will execute and deliver to
DIVISION a copy of the Loan of Vehicle Terms and Conditions and Vehicle Receipt (attached
as Exhibit C). unless otherwise agreed to by DIVISION in writing, the Vehicle(s) will only be
used by PROMOTER or its officers, directors, employees, agents or subcontractors or
individuals who are driving the Vehicle(s) while on business related to the activities
contemplated under this Agreement. PROMOTER agrees to obtain from each individual
permitted to drive a Vehicle a signed copy of General Motors Safe Driver Program Driver
Conduct Requirements (attached as Exhibit D). PROMOTER will retain the executed copy for a
period of three (3) years and will provide them to DIVISION at DIVISION'S request.
C. At the end of the term of the loan, or earlier, if requested by DIVISION,
PROMOTER will return the Vehicle(s) to the nearest DIVISION office or such other location as
designated by DIVISION, in the same condition as delivered, reasonable wear and tear excepted.
If a Vehicle must be recovered by DIVISION or repaired to restore it to such condition, then
PROMOTER will pay DIVISION any costs incurred by DIVISION to recover the Vehicle and to
repair it. If, in DIVISION'S opinion, a Vehicle cannot or should not be repaired based upon
03agreGpromotinnal general motor/2/21/03
General Motors Corporation's policy for repairing/scrapping damaged vehicles, then the Vehicle
must be returned to DIVISION and the PROMOTER will pay DIVISION the 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 Vehicle was damaged based on a
similar make and model year vehicle with similar mileage, as determined by GM NAO Fleet
Operations Auction Results' report, less S4,000.
D. Paragraphs I.A. 1.13 and LC of this Agreement do not apply to vehicles identified
in Exhibit A as loaned to PROMOTER for static display purposes only ('Static Display
Vehicles'). As to Static Display Vehicles, however, PROMOTER acknowledges that the
Vehicles are, and shall remain, the property of DIVISION. PROMOTER agrees that: (a) the
Static Display Vehicles are for static display purposes only, with the exception of minimal
driving to move the Static Display Vehicles a very short distance, and not on any public roads,
and (b) PROMOTER shall not tamper, disconnect, or otherwise interfere with the operation of
the odometer, emission control equipment, or any other equipment. Each party waives all rights
against the other, and against those holding under or through such party, for damages to the
other's premises and property.
2. USE AND PROTECTION OF TRADEMARK AND OTHER INTELLECTUAL
PROPERTY.
PROMOTER and DIVISION acknowledge that each party owns certain names, trademarks,
service marks, copyrights and other intellectual property (`Marks'), and owns or has certain
merchandising rights in and to the Marks, and all goodwill associated with or symbolized by the
Marks. It is understood that in promoting PROMOTER'S activities, PROMOTER and
DIVISION may make various references to the activities and may display the Marks of
PROMOTER and DIVISION, and pictures of the activities. Each party hereto grants to the other
a nonexclusive, nontransferable license to use its Marks during the term of this Agreement and
subject to the terms and conditions hereinafter set forth, solely in connection with advertising
and promoting any event or activity incidental thereto.
PROMOTER and DIVISION must agree in writing as to the form and content of any
promotional or advertising materials and the media in which such materials are to be used prior
to their use, which approval the parties shall not unreasonably withhold; and such use may be
subject to such reasonable conditions as either party may impose, including but not limited to,
conditions affording each party adequate protection of its Marks. Upon termination or expiration
of this Agreement, both parties shall cease all use of the Marks of the other party as soon as
practicable, but in any event within thirty (30) days unless the particular media which has been
approved requires a longer lead time, but in no event longer than ninety ((90) days.
Neither party will impugn, challenge or assist in any challenge to the validity of the other party's
Marks, any registrations thereof, or the ownership thereof. Each party will be solely responsible
for taking such actions as it deems appropriate to obtain trademark, service mark or copyright
registration for its respective Marks. All uses of or references to the Marks shall inure to the
benefit of the respective owner, and all rights with respect to the Marks not specifically granted
in this Agreement shall be and are hereby reserved to the respective owner.
03agree/promotional general motors.Ii21;03 2
Neither party is granted any right or license under this Agreement to sell, or otherwise distribute
for sale, any of the promotional or advertising materials, or items related thereto. If a party
desires to sell, or distribute for sale; any of such materials or other merchandising or novelty
items bearing the names, trademarks, copyrights or other intellectual property of the other party,
then it shall request permission to do so from the other party, and if granted, the parties shall
negotiate in good faith a separate licensing agreement covering such materials or items before
they may be sold or distributed for sale.
3. CONSUMER INFORMATION
If customer lists, databases or any other personally identifiable information (the `Databases') are
given to DIVISION as part of the consideration identified on Exhibit B, then PROMOTER
further represents and warrants that it has obtained all necessary permission and consent, in
compliance with any applicable laws and regulations, to provide DIVISION with the Databases
for any purpose the DIVISION, in its sole discretion, sees fit.
4. EXCLUSIVITY OF PERFORMANCE
During the terms of this Agreement, PROMOTER will not conduct nor participate in
promotional activities with any other motor vehicle or component parts manufacturers or
distributors, which may conflict with DIVISION'S interests, without the prior written approval
of DIVISION. PROMOTER further represents and warrants that no other motor vehicle or
component parts manufacturers or distributors will participate in any way in the activities and
events described herein without the prior written approval of DIVISION.
5. TERM; RIGHT OF FIRST REFUSAL
The term of this Agreement shall commence as of the signing of this Agreement by both parties
and end on the date set forth on Exhibit A, or if no date is indicated, upon completion of the
obligations of both parties. If the term of this Agreement is more than one year, DIVISION may
terminate this Agreement effective as of December 31 of any year by giving PROMOTER
v.Titten notice of the termination prior to Octoberl .
If PROMOTER intends to conduct comparable event(s) or promotional activities beyond the
term of this Agreement, PROMOTER shall provide to DIVISION, at least ninety (90) days prior
to the expiration of this Agreement, a written proposal for DIVISION to continue its
sponsorship. DIVISION shall advise PROMOTER, in writing, at least sixty (60) days prior to
the expiration of this Agreement, whether or not it will participate on the terms contained in
PROMOTER'S proposal. If DIVISION elects not to participate on the terms of the proposal and
the parties are unable to negotiate mutually acceptable terms, then PROMOTER shall be free to
negotiate with others; provided, however, that PROMOTER shall not offer terms to others which
are materially different than those previously offered to DIVISION, without first offering such
different terms to DIVISION.
03agreeipromotional general motors.12.21;03 3
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6. INDEMNIFICATION
A. PROMOTER agrees to indemnify and hold harmless General Motors
Corporation, its officers, directors, agents and employees, from and against any and all claims,
demands, obligations, causes of action and lawsuits and all damages, liabilities, fines, judgments,
costs (including settlement costs), and expenses associated therewith (including the payment of
reasonable attorney fees and disbursements), arising out of: (1) the failure of PROMOTER, its
employees or agents, to comply with the terms and conditions of this Agreement; (2) the
negligent acts or omissions of PROMOTER, its employees, agents, or subcontractors; (3)
DIVISION'S use of PROMOTER'S Marks as authorized by this Agreement; (4) the services
performed or actions taken by PROMOTER, its employees or agents, in connection with this
Agreement, including the operation and management of any event or activity incidental thereto;
or (5) PROMOTER'S use or possession of any Vehicles loaned to it by DIVISION.
B. DIVISION agrees to indemnify and hold harmless PROMOTER, its officers,
directors, agents and employees from and against any and all claims, demands, obligations,
causes of action and lawsuits and all damages, liabilities, fines, judgments, costs (including
settlement costs), and expenses associated therewith (including the payment of reasonable
attorney fees and disbursements), arising out of: (1) the failure of DIVISION, its employees or
agents, to comply with the terms and conditions of this Agreement; (2) the negligent acts or
omissions of DIVISION, its employees, agents, or subcontractors; (3) PROMOTER'S use of
DIVISION'S Marks as authorized by this Agreement; or (4) defects in the design, assembly, or
manufacture of any Vehicle loaned by DIVISION to PROMOTER.
C. The obligations to indemnify contained in this Section 6 will survive the
expiration or termination of this Agreement.
7. INSURANCE
A. PROMOTER shall maintain, during the term of this Agreement, at its own
expense, the following kinds of insurance with minimum limits as set forth below:
Kind of Insurance
(1) Commercial General Liability
(including contractual liability)
Minimum Limits
$1,000,000 per occurrence combined
single limit for personal injury and
property damage
If spectator events are identified on Exhibit B, PROMOTER shall maintain
spectator's liability insurance (either included in the Commercial General
Liability or in a separate policy) in an amount not less than $5,000,000 per
occurrence combined single limit for personal injury and property damage.
(2) Workers' Compensation
Statutory (for all states of operation)
including Employer's Liability with
limits of not less than $500,000
03agree/promotional general mo1ors12/2UO3 4
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B. PROMOTER shall furnish DIVISION with a certificate showing the applicable
coverage, naming General Motors Corporation as an additional insured (except A(2) Workers'
Compensation), stating that such insurance is primary in coverage to any other insurance which
may be available to General Motors Corporation, and providing at least thirty (30) days` prior
written notice to DIVISION of cancellation, modification or material change to the policy. Such
certificate shall be in a form acceptable to DIVISION and must be underwritten by an insurer
satisfactory to DIVISION. PROMOTER'S purchase of appropriate insurance coverage or the
furnishing of the certificate shall not release PROMOTER from its obligations or liabilities under
this Agreement.
S. CANCELLATION FOR BREACH: INSOLVENCY
A. Either party may cancel this Agreement, without liability to the other party, if the
defaulting party: (1) repudiates or breaches any of the terms of this Agreement; or (2) fails to
make progress so as to endanger timely and proper completion of its services; 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.
B. Either party may cancel this Agreement immediately, without liability to the other
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 the other party under any bankruptcy,
reorganization or receivership law; (3) execution of an assignment for the benefit of the other
party's creditors; or (4) appointment of any trustee or receiver of the other 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, each party shall cease using the other
party's Marks, and PROMOTER shall return those funds, if any, paid to it by DIVISIOI\ for
services which have not yet been performed. In addition, if vehicles are loaned to PROMOTER,
PROMOTER shall promptly return the vehicles to DIVISION.
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 either
party be liable to the other for incidental, inconsequential or punitive damages arising out of a
breach of this Agreement.
4. FORCE MAJEC:RE
Any delay or failure of either 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, and the steps being taken
to remedy the failure. Should the event of force majeure continue beyond thirty (30) days, or
03agree/promotional genefal motors12121M 5
such shorter time period as may be reasonable under the circumstances, either party may
terminate this Agreement, and DIVISION shall be entitled to a pro rata refund for services not
yet performed by PROMOTER.
10. GOVERNING LAW; SEVERABIITY
This Agreement is to be governed by and construed according to the laws of the State of
California, excluding any such laws which direct the application of laws or any other
jurisdiction. If any term of this Agreement is valid or unenforceable under any statute,
regulation, ordinance, executive order or other rule of law, such term shall be deemed reformed
or deleted, but only to the extent necessary to comply with such statute, regulation, ordinance,
order or rule, and the remaining provisions of this Agreement shall remain in full force and
effect.
11. COMPLIANCE WITH LAWS
Each party will perform its obligations under this Agreement in compliance with all applicable
laws, orders, or regulations of all appropriate jurisdictions.
12. NO IMPLIED WAIVERS
Failure by either party at any time to require performance by the other party of any provision
hereof shall in no way affect the right to require full performance any time thereafter, no shall the
waiver by either party of a breach of any provision of this Agreement constitute a waiver of any
succeeding breach of same or any other provision, nor constitute a waiver of the provision itself.
13. NO ASSIGNMENT
Neither party may assign its rights, nor delegate its obligations under this Agreement, without the
prior written approval of the other party.
14. RELATIONSHIP OF THE PARTIES
PROMOTER and DIVISION are independent contracting parties, and nothing contained in this
Agreement shall be deemed to create a partnership, joint venture or agency relationship between
them, nor does it grant either party any authority to assume or create any obligation on behalf of
or in the name of the other.
15. NOTICES
Any notice required or permitted to be given by either party under or in connection with this
Agreement shall be in writing and shall be deemed duly given when personally delivered or sent
by registered or certified mail, return receipt requested, postage prepaid, expedited courier
service, or by cable or facsimile, confirmed by letter, as aforesaid to the addresses indicated in
the introductory paragraph of this Agreement, unless otherwise agreed to by the parties.
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lb. 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 to this Agreement must be in
writing and signed by both parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
duly authorized representatives on the dates indicated below.
GENERAL OT S/CORK
By:
print name
ITS: (circle one) Chairman/Presid MIV
AND
By:
lots)��
CITY OF HUNTINGTON BEACH, a
.� municipal corporation of the State of
California
i
resident '-gn
m4a�
Mayor
print name
ITS: (clrcle one) Secretary:`Chief Financial Offcer/Asst
Secretary- Treasurer
REVIEWED AND APPROVED:
Cit Administrator
ATTEST:
Ciiv. Clerk 3
APPROVED AS "CO FORM:
Id$ City ttorney
INITIATED AND APPROVED:
t
Dire t1f Community Servic
Attachments:
Exhibit A — DIVISION'S Consideration
Exhibit B —PROMOTER'S Consideration
Exhibit C -- Loan of Vehicle Terms and Conditions and Vehicle Receipt
Exhibit D — General Motors Safe Driver Program Driver Conduct Requirements
03agreelpromotional general motors/2/211103 7
PROMOTIONAL AGREEMENT
Between
General Motors Corporation
Chevrolet Division
and
City of Huntington Beach
EXHIBIT A
DIVISION agrees to the following:
1. The term of this Agreement shall commence on the date of signing by both parties and end on
December 31, 2003.
DIVISION will sponsor City of Huntington Beach (the `Tromotion"). The Promotion will take place
at the City of Huntington Beach from the date of signing throughout the term of the contract.
2. Loan twenty (20) 2003 model year, factory equipped vehicles (the "Courtesy Vehicles") for use by
the PROMOTER'S beach patrol units. PROMOTER will pick up the Courtesy Vehicles at a time and
location determined by DIVISION. PROMOTER will return the Courtesy Vehicles within two (2) days
of the expiration of the agreement to Delillo Chevrolet in Huntington Beach, CA. Models and option
content will be determined and mutually agreed upon by both parties.
i
i
PROMOTIONAL AGREEMENT
Between
General Motors Corporation
Chevrolet Division
and
City of Huntington Beach
EXHIBIT B
PROMOTER agrees to provide DIVISION with the following:
1. Grant DIVISION automotive exclusivity and recognize the DIVISION as the "Official Automotive
Sponsor of Huntington Beach" and/or "Official Marine Safety Automotive Sponsor of Huntington
Beach."
2. AN public identification and recognition of the DIVISION during the PROMOTION will be made as
follows: "Chevrolet Trucks, Official Marine Safety Vehicle of Huntington Beach," "Chevrolet Trucks,
Official Beach Patrol Vehicles," or "Chevrolet Trucks, Official Vehicles of Huntington Beach."
3. Grant DIVISION the right to be the exclusive automobile sponsor for all PROMOTER events.
PROMOTER will notify DIVISION of any such events in advance. DIVISION has the right to not
sponsor events. If DIVISION chooses not to sponsor an event PROMOTER may allow other vehicle
sponsorships. Best efforts will be made to obtain other corporate partners other than automotive. If
PROMOTER does not approach DIVISION first, there may be no other automotive partner. If there is
an event with another automotive partner, such sponsorships shall be for a specific event only and not
contain any identification or recognition that such vehicle is an official vehicle of Huntington Beach.
4. Two (2) proof of performance summary binders to include, but not limited to, samples of printed
materials, photographs of the vehicle showing the DIVISION signage, vehicle usage and any other
materials that will show proof of this activity and value to DIVISION.
5. Space for Y x 10' signs (the "Signs") which prominently feature DIVISION'S Marks and advertising
material during the Promotion. Quantity of signs to be determined by both parties. These signs will be
located at mutually agreed upon locations by both parties. PROMOTER warrants to DIVISION that the
Signs can be on display throughout the duration of the Promotion and that they can contain whatever
DIVISION Marks and advertising DIVISION elects to produce. DIVISION will be responsible for all
expenses for the initial design, layout, fabrication, production, installment and maintenance of its Signs
and the removal of them at the expiration or termination of this Agreement.
6. A minimum of twelve (12) tickets and six (6) VIP parking spots to each beach event sponsored by
PROMOTER that require tickets for admission.
7. Prominent display of DIVISION's Marks as the "Official Vehicle" of Huntington Beach on the twenty
(20) Courtesy Vehicle Decals that DIVISION is providing to PROMOTER. DIVISION will create the
decals identifying DIVISION as "The Official Vehicle of Huntington Beach." PROMOTER will apply
decals to all Courtesy Vehicles immediately after pick-up by the PROMOTER. PROMOTER and
DIVISION will have the opportunity to approve decal design prior to production.
8. Prominent space, measuring 10' x 10' at the City of Huntington Beach Pier for DIVISION to use for
whatever purpose DIVISION chooses, including, but not limited to, the display of its products and
services. If DIVISION elects to display vehicles: 1) any vehicles displayed by DIVISION (the "Static
Display Vehicles") will be for static display purposes only and the provisions of Section 1, Paragraph D.
of this Agreement will apply to the Static Display Vehicles; 2) DIVISION will arrange for appropriate
transportation of the Static Display Vehicles to and from the display location(s); 3) Specific models and
option content will be determined by DIVISION; 4) PROMOTER shall ensure that the vehicles are
maintained in a clean condition while on display; 5) PROMOTER will be solely responsible for
obtaining any necessary license or permit for the display(s); 6) PROMOTER will make sure vehicle is in
safe location and that people are not at risk around vehicle, and 7) DIVISION will remove the Static
Display Vehicles on a date and at a time to be mutually agreed upon by the parties, but not later than
midnight on the day this Agreement expires.
9. The right to display DIVISION Marks and advertising material on one (1) static sign on the City of
Huntington Beach Pier Lifeguard tower. The dimensions of the sign is approximately 3' x 8'. These
signs will be located at mutually agreed upon locations by both parties. PROMOTER warrants to
DIVISION that the Signs can be on display throughout the duration of the Promotion and that they can
contain whatever DIVISION Marks and advertising DIVISION elects to produce. DIVISION will be
responsible for all expenses for the initial design, layout, fabrication, production, installment and
maintenance of its Signs and the removal of them at the expiration or termination of this Agreement.
10. Grant the right to erect tents, temporary signage (banners, pennants, etc) and other display properties
at mutually agreed upon beach locations, in conjunction with PROMOTER sponsored events.
PROMOTER and DIVISION will agree upon the size and location of tents, signage and display
properties.
11. PROMOTER shall provide space at the Huntington Central Park Sports Complex for 3' x 10' signs
(the "Signs"), which prominently feature DIVISION'S Marks and advertising material during the
sponsorship. These signs will be located at locations to be mutually agreed upon by PROMOTER and
DIVISION. PROMOTER warrants to DIVISION that the Signs can be on display throughout the
duration of the sponsorship and that they can contain whatever DIVISION Marks and advertising
DIVISION elects to produce. DIVISION will be responsible for all expenses for the initial design,
layout, fabrication, production, installment and maintenance of its Signs and the removal of them at the
expiration or termination of this Agreement.
W 012
•
PROMOTIONAL. AGREEMENT
Between
General Motors Corporation
and
City of Huntington Beach
EXHIBIT C
PROMOTER Loan of Vehicle Terms and Conditions and Vehicle Receipt
Division
following Vehicle(s) to
of General Motors Corporation (" DIVISIOM) agrees to loan the
(' PROMOTER') from approximately
to _ _ , upon the terms set forth below:
MAKE:
MODEL:
VIN:
PROMOTER'S ADDRESS:
(Street) (City) (State) (Zip Code)
PHOr1E:0 -
Terms:
I. The Vehicle(s) is/are, and shall remain, the property of DMSION.
2. PROMOTER agrees that: (a) the Vchicle(s) will not be utilized 'illegally, improperly, for hire, as
a public conveyance or in any manner for any political purpose whatsoever; (b) the Vehicle(s)
shall be driven in a safe and prudent nwwi er by insured, licensed,drivers, twenty-one (21) years
of age or older who meet the OM Safe Driver Program Driver Conduct Requirements (attached
as Exhibit D) and who are officers, directors, employees, agents or subcontractors of
PROMOTER or who are driving the Vehicle(s) while on business related to the activities
contemplated under this Agreement; (c) PROMOTER shall ensure that no-one modifies,
disconnects, or otherwise interferes with the operation of the odometer, emission control
equipment, or any other equipment; (d) PROMOTER acknowledges receipt of and will obtain
from each driver of a Vehicle a signed Driver Conduct Requirements form and shall retain
each executed form for three (3) years and provide them to DMSION at DIVISiON's request;
(e) PROMOTER will report ALL incidents/crashes involving a Vehicle to ESIS (General
Motors' insurance claims administrator) at 1-800.889.0154 and to DMSION and will follow
instructions provided in the glove compartment of the Vehicle; (f) without limiting or altering
any insurance or indemnification obligations contained in this Agreement, PROMOTER will
cooperate with DIVISION in the defense of any claims or lawsuits related to PROMOTER's use
or possession of any Vehicle; (g) PROMOTER will not make any repairs to a Vehicle
without the explicit prior consent of ESIS; (h) PROMOTER shall be responsible for all fides,
GM PROMOTIONAL AGREEMENT I I PRINTED 01116/2003
REVISED 11/06/2001
Im 013
• 0
forfeitures and penalties incurred by reason of the use of the Vehicle(s).
GM PROMOTIONAL AGREEMENT 12 PPJNTED 01l16/2003
REVISED 11/0612001
•
EXHIBIT C - CONTINUED
3. DIVISION MAKES NO WARRANTY OTHER THAN THAT EXPRESSED IN ITS NEW
VEHICLE LIIvATED WARRANTY, A PAINTED COPY OF WHICH IS FURNISHED WITH
THE VEHICLE. DIVISION authorizes PROMOTER to obtain, on DIVISION's behalf as owner
of the Vehicle's), such warranty service as is necessary and provided for under the new vehicle
hrmted wwmty. Ordinary operating expenses such as gas, oil, grease, tiro repair and other
incidentals are the responsibility of PROMOTER.
4. PROMOTER agrces to defend, indemnify and hold DIVISION harmless from all claims, liability
and expenses arising out of PROMOTER's use or possession of any Vehicle. In addition
PROMOTER sweet to obtain and maintain, at its own expense, comprehensive automobile
liability insurance (covering all owned, non -owned and hired v chicles) with limits of not less
than $5,000,000 per occurrence combined single limit for personal h4ury and property damage,
including all statutory coverage for all states of operation. PROMOTER will also provide
comprehensive (Am and theft) and collision coverage on the Vehicle(s). Prior to receipt of the
Vehicle(s), PROMOTER will provide DIVISION with a certificate of insurance evidencing
General Motors Corporation as.en additional 'ensured, stating that such insurance is primary is
coverage 10 any other insurance w hitb may b e available t o Q meral Motors C orporation, and
providing at least thirty (30) days' prior written notice to DIVISION of cancellation,
modification, or material change to the policy.
At the end of the-tetm of the loan, or earlier if requested by DIVISION, PROMOTER will return
the Vehicles) to the nearest DIVISION office or such other tocario>n as designated by
DIVISION. if a Vehicle must be recovered by DIVISION or repaired to restore it to the
condition i n which i t was d elivered (reasonable wear and tear, a s defined b y General M otors
Corporation guidelines, excepted), then PROMOTER will. pay DIVISION any costs incurred by
DIVISION to recover the Vehicle and to repair it. If, in DIVISION's opinion, a Vehicle cannot
or should not be repaired based upon General Motors Corporation's policy for
repairing/scrapping damaged vehicles, then the Vehicle must be returned to DIVISION and the
PROMOTER will pay DIVISION the Vehicle's value, based upon the following formula: The
amount General Motors Corporation would have received if the Vehicle had been Sold at auction
the month the Vehicle was damaged based on a similar make and model year vehicle with similar
mileage, as determined by OM NAO Fleet and Commercial Operations Auction Result$' report,
less $4,000.
PROMOTER Signature:
Print Name:
Title-.
Date:
GM PROMOTIONAL AGREEMENT 13 PRINTED 01116/2003
RSVISBD 11/r W001
CJ
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EXHIBIT C - CONTINUED
PROMOTER Loan of Vehicle Terms and Conditions and Veldcle Receipt
List of vehicles to be attached closer to event.
GM PROMOTIONAL AGREEMENT 16 PRINTED 01/16/2003
REVISED IIAW2001
i
PROMOTIONAL AGREEMENT
Between
General Motors Corporation
&ad
City of Huntington Beach
EXHIBIT D
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
twenty-one (21) years of age or older, posses a valid operator's license, and will...
1. ...display such license to the vehicle key issuer at each Vehicle exchange, and wili
comply with all license rostfictions.
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 whcre 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/crmhes involving the. Vthlcle to ESIS (Gentrai Motors'
Insurance claims administrator) -at 1-SOMM0154 (direction is provided in the
glove compartment 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.
OM PROMOTIONAL AGREEMENT 14 PRINTED 01/16/2003
REVISED L I M612001
Vd v1V
EXHIBIT D - CONTINUED
Q. Failure to stop or identify under a crash (includes leaving the scene of a crash; hit and
run; giving false information to an officer).
5. Eluding or attempting to etude a law enforcement officer.
6. Traffic violation resulting in death or serious injury.
7. Any other significant violation warranting suspension of license.
DRIVER'S Signature:
Print Name:
Driver's License Number and State:
(Number) Mate)
Title:
Date:
GM PROMOTIONAL AGREEMENT IS PRINTED 01/16/2003
REVISED 11/0612001
War-13-03 04:03anr Frolm-ORfVER& ANT INS, C
9497562713 I& 7-476 P.02103 P-179
c 03/13/03
PRODUCER
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND
DRIVER AWANT INSURANCE S7`RVICES, INC.
CONFERS NO RIGHTS UPON THE CERTIFICATE HOLQ9P- THIS
P.O. Box 6450
CERTIFICATE DOES NOr AMEND, EXTEND Olt ALTER THE! COVERAGE
Newport Beach, CA 9265E-8450
AFFORDED 6Y TH9 POLICIES BELOW.
Ph (940) 756-0271 1 Fax (949) 756-2713
License No. 0C36B61
COMPANIES AFFORDING COVERAGE
nr�u�o A" A AMERICAN SAFETY INDEMNITY COMPANY
LdYM
BIG INDEPENDENT CITIES EXCESS POOL B
CITY OF HUNTINGTON BEACH ��
ATTN: KAREN FOSTER, RISK MANAGER C
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2000 MAIN! STREET
COMPANY
HUNTINGTON BEACH. CA 9264E ,r,p D
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'50% OF 61,000 000 ($500,000) EXCESS OF $1.000,000 SELF -INSURED RETENTION. CERTIFICATE HOLDER IS INCLUDED AS ADDITIONAL
INSURED BUT MLY WITH RESPECT TO LIA131UTY ARISING OUT OF OPERATIONS AS DESCM8E0 BY OR ON BEHALF OF THE NAMED
INSURED AS RESPECTS THE LOAN OF FIVE GM TRUCKS TO BE USED IN THE HUNTINGTON BEACH CONCERT SERIES FOR 20D3.
SUBJECT TO POLICY TERMS, CONDITIONS AND EXCLUSIONS.
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THIS
EXPIRATION OATS THEREOR THE; ISSUING COMPANY WILL NNOFAVOR TO "L JR
DAYS WRI77EN NOTICE TO THE C PTIFICATE HOLDER NAMED HOREIN BUT FAAJJ$tE TO
AWL SUCH NOTICE SMALL IMPOST: NO DOUGAT'OK OR LIABILITY OF ANY KIND UPON
CHEVROLET MOTORS DIVISION THE COMPANY. ITS AGENTS OR REPRESENTAT VES. SUSA'ICT TO 50 GAYS NOTICE OF
GENERAL MOTORS CORP., A OE CORP. CANCELLATION FOR NON-PAYMENT OF PREL�L.
315 MAIN STREET
THOUSAND OAKS, CA 91360
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star-13-03 04:03Pm From -DRIVER ivMT INS. C 949TSOMS .
T-4T6 P.03/03 F-179
BIG INDEPENDENT CITIES EXCESS POOL (BICEP)
NAMED INSURED AS OF
MARCH 139 2003
MEMBER: City of Huntington Bth
2000 Main Street
Huntington Reach, CA 92649
NAMW INSMO.-
City of Huntington Beach including;
Huntington Beach Redevelopment Agency;
Huntington Beach Public Facilities Corporation;
Huntington Beach Parking Authority;
Huntington Beach Civic hwrovement Corporation;
Hunting= Beach'Public Financing Authority
Page l of I
c:+JI11aa�gipy.aW p Cwu�¢feap N:wdln�bhlJae
Council/Agency Meeting Held:
Deferred/Continued to:�
!Approved ❑ Conditionally Approved ❑ Denied
City Clerk's Signature
Council Meeting Date: March 3, 2003
Department ID Number: CS03-002
CITY OF HUNTINGTON BEACH
REQUEST FOR COUNCIL ACTION
SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
SUBMITTED BY: RAY SILVER, City AdministratorWo&O
PREPARED BY: JIM B. ENGLE, Director, Community Service
SUBJECT: APPROVE PROMOTIONAL AGREEMENT -WITH CHEVROLET DIVISION,'
GENERAL MOTORS CORPORATION FOR PROVISION OF VEHICLES
FOR MARINE SAFETY OPERATION
Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s)
Statement of Issue: Should the city enter into a one-year promotional agreement with
Chevrolet Division, General Motors Corporation, which names Chevrolet as the "Official
Automotive Sponsor of Huntington Beach"?
Funding Source: Not applicable; agreement saves the General Fund approximately
$500,000 each year in vehicle acquisition costs.
Recommended Action: Motions to:
1. Approve Promotional Agreement with Chevrolet Division, General Motors Corporation,
and authorize the Mayor and City Clerk to execute same; and
2. Approve Section 6 of the agreement, which includes city's indemnification obligations to
GMC.
Alternative Action(s): Do not approve the Chevrolet promotional agreement, which would
necessitate the city appropriating funds for the acquisition of vehicles.
Analysis: For the past twelve years, the city has had a promotional agreement with
Chevrolet Division, General Motors Corporation that names Chevrolet the "Official
Automotive Sponsor of Huntington Beach" and/or "Official Marine Safety Automotive Sponsor
of Huntington Beach" in exchange for Chevrolet providing the city with free Chevrolet
vehicles each year. The past agreement called for Chevrolet to provide the city with twenty
vehicles. These vehicles are utilized for marine safety, beach maintenance, enforcement,
and the parking operation.
REQUEST FOR COUNCIL ACTION'
MEETING DATE: March 3, 2003
DEPARTMENT ID NUMBER: CS03-002
Section 6 of the agreement includes the city's obligations to indemnify General Motors
Corporation against the city's actions while using these Chevrolet vehicles. This is the same
standard language that has been approved by the City Attorney and City Council in past
promotion vehicle agreements.
The exclusivity language in Exhibit B of the agreement has been modified from the previous
agreement to give the city more flexibility relative to vehicle sponsorships for beach events.
General Motors is evaluating its policy regarding involvement in this type of promotional
contract; therefore, the city will be distributing a Request for Proposal to vehicle
manufacturers, including Chevrolet, during the next year. The Chevrolet partnership has
been extremely successful for both parties, and staff is recommending that City Council
approve this one-year agreement.
Environmental Status: Not applicable
Attachment(s):
RCA Author: JBE:cr
03-002 Chevrolet Agreement for Free Vehicles -2- 2/2412003 9:55 AM
0
Brockway, Connie
To: McGrath, Jennifer; Engle, Jim
Cc: Ehring, Liz
Subject: Promotional Agreement
Jennifer, Another agreement -from 313103.
I have a faxed signature page, which I intend to use for this agreement. 1 would like to do this in the future and then Jim
and I will not be held up on agreements. Please advise by return email if this is acceptable to your office. Eventually, I will
have a procedure folder answering questions as to how you wish the Clerk's Office to proceed in several matters as I
cannot take it for granted to follow the same procedures as requested by the retired city attorney.
Also on this agreement there are several signature pages I don't think need signing however you or Jim could assist this
office.
The effective date is suppose to be as of the date the last person signs which I had intended to stamp the Mayor and
Clerk's signature stamps as of 3131. Is this acceptable to both of you.
Please reply at your convenience.
Connie - Clerk
0
L-1
-OFFICE OF THE CITY CLERK
CITY OF HUNTINGTON BEACH
P. O. Box 190/2000 Main Street
Huntington Beach, CA 92648
(714) 536-5227
(714) 374-1557 FAX
LETTER OF TRAI SMITTAL OF ITEM APPROVED BY THE CITY COUNCIL/
REDEVELOPINlIENT AGENCY OF THE CITY OF HUNTfNGTON BEACH
DATE: D3 — 15. — 02)
TO: 9 Y-S ATTENTION:
Name
E 15 ovY ; cry DEPARTMENT:
Street I �+
o S t_S I f 36v -REGARDING:
City, State. Zip
See Attached Action Agenda Item Date of Approval 03 — c) 3 — 03
Enclosed For Your Records Is An Executed Copy Of The Above Referenced Agenda Item.
Remarks:
Connie Brockway
City Clerk
Attachments:
Action Agenda Page
Agreement Bonds
Insurance
RCA Deed
Other
CC:
---
Namc
Department ' (Y� Agreement
Insurance
Bonds
Name
Department RCA Agreement
Insurance
Bonds
Name
Department RCA Agreement
Insurance
Bonds
Name
Department RCA Agreenxnt
Insurance
Other
Name
Depam=t RCA Agreement
Insurance
Other
g 1fol IowupiletterslcoverltrRevA.doc
•
L1
ATTACHMENT 1
PROMOTIONAL AGREEMENT
THIS AGREEMENT, dated as of the date of the last signature herein, is entered into by and
between Chevrolet DIVISION, GENERAL MOTORS CORPORATION, a Delaware
corporation, having a place of business at 515 Marin Street, Thousand Oaks, CA 91360
("DIVISION") and City of Huntington Beach, a California corporation, having a place of
business at 2000 Main Street, Huntington Beach, CA 92648 ("PROMOTER"). In consideration
of the promises hereinafter made to each other, the parties hereto agree as follows:
PROMOTIONAL CONSIDERATIONS
DIVISION agrees to provide the consideration listed on Exhibit A attached hereto.
PROMOTER, for its part, agrees to provide the promotional services and other consideration to
DIVISION listed on Exhibit B attached hereto. If vehicles are loaned to PROMOTER as part of
the consideration identified on Exhibit A (the "Vehicle(s)"), then PROMOTER further agrees to
the following terms and conditions:
A. PROMOTER agrees to obtain and maintain, at its own expense, comprehensive
automobile liability insurance covering all o-wned, non -owned and hired vehicles (except for the
Vehicles identified in Paragraph LD below) with limits of not less than $5,000,000 per
occurrence combined single limit for personal injury and property damage, including all
statutory coverage for all states of operation. The PROMOTER will also provide comprehensive
(fire and theft) and collision coverage on the Vehicle(s). Prior to deliver of the Vehicle(s) the
PROMOTER will provide DIVISION with a certificate of insurance evidencing General Motors
Corporation as an additional insured, stating that such insurance is primary in coverage to any
other insurance which may be available to General Motors Corporation, and providing at least
thirty (30) days' prior written notice to DIVISION of cancellation, modification, or material
change to the policy.
B. Upon receipt of the Vehicle(s), PROMOTER will execute and deliver to
DIVISION a copy of the Loan of Vehicle Terms and Conditions and Vehicle Receipt (attached
as Exhibit Q. Unless otherwise agreed to by DIVISION in writing, the Vehicle(s) will only be
used by PROMOTER or its officers, directors, employees, agents or subcontractors or
individuals who are driving the Vehicle(s) while on business related to the activities
contemplated under this Agreement. PROMOTER agrees to obtain from each individual
permitted to drive a Vehicle a signed copy of General Motors Safe Driver Program Driver
Conduct Requirements (attached as Exhibit D). PROMOTER will retain the executed copy for a
period of three (3) years and will provide them to DIVISION at DIVISION'S request.
C. At the end of the term of the loan, or earlier, if requested by DIVISION,
PROMOTER will return the Vehicle(s) to the nearest DIVISION office or such other location as
designated by DIVISION, in the same condition as delivered, reasonable wear and tear excepted.
If a Vehicle must be recovered by DIVISION or repaired to restore it to such condition, then
PROMOTER will pay DIVISION any costs incurred by DIVISION to recover the Vehicle and to
repair it. If, in DIVISION'S opinion, a Vehicle cannot or should not be repaired based upon
Dagree/promotional general motors/2/21/03
General Motors Corporation's policy for repairing/scrapping damaged vehicles, then the Vehicle
must be returned to DIVISION and the PROMOTER will pay DIVISION the 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 Vehicle was damaged based on a
similar make and model year vehicle with similar mileage, as determined by GM NAO Fleet
Operations Auction Results' report, less $4,000.
D. Paragraphs LA, 1.13 and LC of this Agreement do not apply to vehicles identified
in Exhibit A as loaned to PROMOTER for static display purposes only ('Static Display
Vehicles'). As to Static Display Vehicles, however, PROMOTER acknowledges that the
Vehicles are, and shall remain, the property of DIVISION. PROMOTER agrees that: (a) the
Static Display Vehicles are for static display purposes only, with the exception of minimal
driving to move the Static Display Vehicles a very short distance, and not on any public roads,
and (b) PROMOTER shall not tamper, disconnect, or otherwise interfere with the operation of
the odometer, emission control equipment, or any other equipment. Each party waives all rights
against the other, and against those holding under or through such party, for damages to the
other's premises and property.
2. USE AND PROTECTION OF TRADEMARK AND OTHER INTELLECTUAL
PROPERTY.
PROMOTER and DIVISION acknowledge that each party owns certain names, trademarks,
service marks, copyrights and other intellectual property (`Marks'), and owns or has certain
merchandising rights in and to the Marks, and all goodwill associated with or symbolized by the
Marks. It is understood that in promoting PROMOTER'S activities, PROMOTER and
DIVISION may make various references to the activities and may display the Marks of
PROMOTER and DIVISION, and pictures of the activities. Each party hereto grants to the other
a nonexclusive, nontransferable license to use its Marks during the term of this Agreement and
subject to the terms and conditions hereinafter set forth, solely in connection with advertising
and promoting any event or activity incidental thereto.
PROMOTER and DIVISION must agree in writing as to the form and content of any
promotional or advertising materials and the media in which such materials are to be used prior
to their use, which approval the parties shall not unreasonably withhold; and such use may be
subject to such reasonable conditions as either party may impose, including but not limited to,
conditions affording each'party adequate protection of its Marks. Upon termination or expiration
of this Agreement, both parties shall cease all use of the Marks of the other party as soon as
practicable, but in any event within thirty (30) days unless the particular media which has been
approved requires a longer lead time, but in no event longer than ninety ((90) days.
Neither party will impugn, challenge or assist in any challenge to the validity of the other party's
Marks, any registrations thereof, or the ownership thereof. Each party will be solely responsible
for taking such actions as it deems appropriate to obtain trademark, service mark or copyright
registration for its respective Marks. All uses of or references to the Marks shall inure to the
benefit of the respective owner, and all rights with respect to the Marks not specifically granted
in this Agreement shall be and are hereby reserved to the respective owner.
03agreelpromotional general motors/MI/03 2
0 , •
Neither party is granted any right or license under this Agreement to sell, or otherwise distribute
for sale, any of the promotional or advertising materials, or items related thereto. If a party
desires to sell, or distribute for sale, any of such materials or other merchandising or novelty
items bearing the names, trademarks, copyrights or other intellectual property of the other party,
then it shall request permission to do so from the other party, and if granted, the parties shall
negotiate in good faith a separate licensing agreement covering such materials or items before
they may be sold or distributed for sale.
3. CONSUMER INFORMATION
If customer lists, databases or any other personally identifiable information (the `Databases') are
given to DIVISION as part of the consideration identified on Exhibit B, then PROMOTER
further represents and warrants that it has obtained all necessary permission and consent, in
compliance with any applicable laws and regulations, to provide DIVISION with the Databases
for any purpose the DIVISION, in its sole discretion, sees fit.
4. EXCLUSIVITY OF PERFORMANCE
During the terms of this Agreement, PROMOTER will not conduct nor participate in
promotional activities with any other motor vehicle or component parts manufacturers or
distributors, which may conflict with DIVISION'S interests, without the prior written approval
of DIVISION. PROMOTER further represents and warrants that no other motor vehicle or
component parts manufacturers or distributors will participate in any way in the activities and
events described herein without the prior written approval of DIVISION.
5. TERM, RIGHT OF FIRST REFUSAL
The term of this Agreement shall commence as of the signing of this Agreement by both parties
and end on the date set forth on Exhibit A, or if no date is indicated, upon completion of the
obligations of both parties. If the term of this Agreement is more than one year, DIVISION may
terminate this Agreement effective as of December 31 of any year by giving PROMOTER
written notice of the termination prior to Octoberl .
If PROMOTER intends to conduct comparable event(s) or promotional activities beyond the
term of this Agreement, PROMOTER shall provide to DIVISION, at least ninety (90) days prior
to the expiration of this Agreement, a written proposal for DIVISION to continue its
sponsorship. DIVISION shall advise PROMOTER, in writing, at least sixty (60) days prior to
the expiration of this Agreement, whether or not it will participate on the terms contained in
PROMOTER'S proposal. If DIVISION elects not to participate on the terms of the proposal and
the parties are unable to negotiate mutually acceptable terms, then PROMOTER shall be free to
negotiate with others; provided, however, that PROMOTER shall not offer terms to others which
are materially different than those previously offered to DIVISION, without first offering such
different terms to DIVISION.
03agree/promotional general motorsn 21/03 3
{. INDEMNIFICATION
A. PROMOTER agrees to indemnify and hold harmless General Motors
Corporation, its officers, directors, agents and employees, from and against any and all claims,
demands, obligations, causes of action and lawsuits and all damages, liabilities, fines, judgments,
costs (including settlement costs), and expenses associated therewith (including the payment of
reasonable attorney fees and disbursements), arising out of: (1) the failure of PROMOTER, its
employees or agents. to comply with the terms and conditions of this Agreement; (2) the
negligent acts or omissions of PROMOTER, its employees, agents, or subcontractors; (3)
DIVISION'S use of PROMOTER'S Marks as authorized by this Agreement; (4) the services
performed or actions taken by PROMOTER, its employees or agents, in connection with this
Agreement, including the operation and management of any event or activity incidental thereto;
or (5) PROMOTER'S use or possession of any Vehicles loaned to it by DIVISION.
B. DIVISION agrees to indemnify and hold harmless PROMOTER, its officers,
directors, agents and employees from and against any and all claims, demands, obligations,
causes of action and lawsuits and all damages, liabilities, fines, judgments, costs (including
settlement costs), and expenses associated therewith (including the payment of reasonable
attorney fees and disbursements), arising out of: (1) the failure of DIVISION, its employees or
agents, to comply with the terms and conditions of this Agreement; (2) the negligent acts or
omissions of DIVISION, its employees, agents, or subcontractors; (3) PROMOTER'S use of
DIVISION'S Marks as authorized by this Agreement; or (4) defects in the design, assembly, or
manufacture of any Vehicle loaned by DIVISION to PROMOTER.
C. The obligations to indemnify contained in this Section 5 will survive the
expiration or termination of this Agreement.
7. INSURANCE
A. PROMOTER shall maintain, during the term of this Agreement, at its own
expense, the following kinds of insurance with minimum limits as set forth below:
Kind of Insurance
(1) Commercial General Liability
(including contractual liability)
Minimum Limits
$1,000,000 per occurrence combined
single limit for personal injury and
property damage
If spectator events are identified on Exhibit B, PROMOTER shall maintain
spectator's liability insurance (either included in the Commercial General
Liability or in a separate policy) in an amount not less than $5,000,000 per
occurrence combined single limit for personal injury and property damage.
(2) Workers' Compensation
Statutory (for all states of operation)
including Employer's Liability with
limits of not less than $500,000
03agree/promotional general motors/2/21M 4
B. PROMOTER shall furnish DIVISION with a certificate showing the applicable
coverage, naming General Motors Corporation as an additional insured (except A(2) Workers'
Compensation), stating that such insurance is primary in coverage to any other insurance which
may be available to General Motors Corporation, and providing at least thirty (30) days' prior
written notice to DIVISION of cancellation, modification or material change to the policy. Such
certificate shall be in a form acceptable to DIVISION and must be underwritten by an insurer
satisfactory to DIVISION. PROMOTER'S purchase of appropriate insurance coverage or the
furnishing of the certificate shall not release PROMOTER from its obligations or liabilities under
this Agreement.
8. CANCELLATION FOR BREACH; INSOLVENCY
A. Either party may cancel this Agreement, without liability to the other party, if the
defaulting party: (1) repudiates or breaches any of the terms of this Agreement; or (2) fails to
make progress so as to endanger timely and proper completion of its services; 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.
B. Either party may cancel this Agreement immediately, without liability to the other
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 the other party under any bankruptcy,
reorganization or receivership law; (3) execution of an assignment for the benefit of the other
parry's creditors; or (d) appointment of any trustee or receiver of the other 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, each party shall cease using the other
party's Marks, and PROMOTER shall return those funds, if any, paid to it by DIVISION for
services which have not yet been performed. In addition, if vehicles are loaned to PROMOTER,
PROMOTER shall promptly return the vehicles to DIVISION.
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 either
party be liable to the other for incidental, inconsequential or punitive damages arising out of a
breach of this Agreement.
9. FORCE MA3EURE
Any delay or failure of either 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, and the steps being taken
to remedy the failure. Should the event of force majeure continue beyond thirty (30) days, or
03agree/promotional general motors/2/2L/03
such shorter time period as may be reasonable under the circumstances, either party may
terminate this Agreement, and DIVISION shall be entitled to a pro rata refund for services not
yet performed by PROMOTER.
10. GOVERNING LAW, SEVERABIITY
This Agreement is to be governed by and construed according to the laws of the State of
California, excluding any such laws which direct the application of laws or any other
jurisdiction. If any term of this Agreement is valid or unenforceable under any statute,
regulation, ordinance, executive order or other rule of law, such term shall be deemed reformed
or deleted, but only to the extent necessary to comply with such statute, regulation, ordinance,
order or rule, and the remaining provisions of this Agreement shall remain in full force and
effect.
11. COMPLIANCE WITH LAWS
Each party will perform its obligations under this Agreement in compliance with all applicable
laws, orders, or regulations of all appropriate jurisdictions.
12. NO IMPLIED WAIVERS
Failure by either party at any time to require performance by the other party of any provision
hereof shall in no way affect the right to require full performance any time thereafter, no shall the
waiver by either party of a breach of any provision of this Agreement constitute a waiver of any
succeeding breach of same or any other provision, nor constitute a waiver of the provision itself.
13. NO ASSIGNMENT
Neither party may assign its rights, nor delegate its obligations under this Agreement, without the
prior written approval of the other party.
14. RELATIONSHIP OF THE PARTIES
PROMOTER and DIVISION are independent contracting parties, and nothing contained in this
Agreement shall be deemed to create a partnership, joint venture or agency relationship between
them, nor does it grant either party any authority to assume or create any obligation on behalf of
or in the name of the other.
15. NOTICES
Any notice required or permitted to be given by either party under or in connection with this
Agreement shall be in writing and shall be deemed duly given when personally delivered or sent
by registered or certified mail, return receipt requested, postage prepaid, expedited courier
service, or by cable or facsimile, confirmed by letter, as aforesaid to the addresses indicated in
the introductory paragraph of this Agreement, unless otherwise agreed to by the parties.
03agree/promotional general motors/2/2UO3 6
02t2Tl03 THL' 14:34 FAX 805 3735412 GH R WORKS
0 is
W008
lb. LN11RE aM£M N
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 to this Agreement must be in
writing and signed by both parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
duly authori2ed representatives on the dates indicated below.
GENERAL OT CORPO TION PROMOTER
CITY OF 14UNTINGTON BEACH, a
ay: _ municipal corporation of the State of
California
print n me
ITS: (eiecfo ant) Chairnimm esidlOhMqesident r
3.4a�
AND Mayor
By: - - -
print name
ITS: fc►.de one) Sccretary/ChiatFinanciul Officer/Assi.
SLcrewy - ire"um
REVIEWED AND APPROVED.
Cit dministrator
ATTEST:
i
APPROVED AS TO FORM:
t City Attorney
INITIATED AND APPROVED:
�..IRz
Attach�enta:
Exhibit A-- DIVISION'S Consideration
Exhibit B -- PROMOTER'S Consideration
Exhibit C — Loan of Vehicle Terms and Conditions and Vehicle Receipt
Exhibit D — General Motors Safe Driver Program Driver Conduct requirements
03aXreslXmrx-*ns1 g vial morO WV21103 7
0 0
PROMOTIONAL AGREEMENT
Between ,
General Motors Corporation
Chevrolet Division
and
City of Huntington Beach
EXHIBIT A
DIVISION agrees to the following:
1. The term of this Agreement shall commence on the date of signing by both parties and end on
December 31, 2003.
DIVISION will sponsor City of Huntington Beach (the "Promotion"). The Promotion will take place
at the City of Huntington Beach from the date of signing throughout the term of the contract.
2. Loan twenty (20) 2003 model year, factory equipped vehicles (the "Courtesy Vehicles") for use by
the PROMOTER'S beach patrol units. PROMOTER will pick up the Courtesy Vehicles at a time and
location determined by DIVISION. PROMOTER will return the Courtesy Vehicles within two (2) days
of the expiration of the agreement to Delillo Chevrolet in Huntington Beach, CA. Models and option
content will be determined and mutually agreed upon by both parties.
PROMOTIONAL AGREEMENT
Between
General Motors Corporation
Chevrolet Division
and
City of Huntington Beach
EXHIBIT B
PROMOTER agrees to provide DIVISION with the following:
1. Grant DIVISION automotive exclusivity and recognize the DIVISION as the "Official Automotive
Sponsor of Huntington Beach" and/or "Official Marine Safety Automotive Sponsor of Huntington
Beach."
2. All public identification and recognition of the DIVISION during the PROMOTION will be made as
follows: "Chevrolet Trucks, Official Marine Safety Vehicle of Huntington Beach," "Chevrolet Trucks,
Official Beach Patrol Vehicles," or "Chevrolet Trucks, Official Vehicles of Huntington Beach."
3. Grant DIVISION the right to be the exclusive automobile sponsor for all PROMOTER events.
PROMOTER will notify DIVISION of any such events in advance. DIVISION has the right to not
sponsor events. If DIVISION chooses not to sponsor an event PROMOTER may allow other vehicle
sponsorships. Best efforts will be made to obtain other corporate partners other than automotive. If
PROMOTER does not approach DIVISION first, there may be no other automotive partner. If there is
an event with another automotive partner, such sponsorships shall be for a specific event only and not
contain any identification or recognition that such vehicle is an official vehicle of Huntington Beach.
4. Two (2) proof of performance summary binders to include, but not limited to, samples of printed
materials, photographs of the vehicle showing the DIVISION signage, vehicle usage and any other
materials that will show proof of this activity and value to DIVISION.
5. Space for 3' x 10' signs (the "Signs") which prominently feature DIVISION'S Marks and advertising
material during the Promotion. Quantity of signs to be determined by both parties. These signs will be
located at mutually agreed upon locations by both parties. PROMOTER warrants to DIVISION that the
Signs can be on display throughout the duration of the Promotion and that they can contain whatever
DIVISION Marks and advertising DIVISION elects to produce. DIVISION will be responsible for all
expenses for the initial design, layout, fabrication, production, installment and maintenance of its Signs
and the removal of them at the expiration or termination of this Agreement.
6. A minimum of twelve (12) tickets and six (6) VIP parking spots to each beach event sponsored by
PROMOTER that require tickets for admission
7. Prominent display of DIVISION's Marks as the "Official Vehicle" of Huntington Beach on the twenty
(20) Courtesy Vehicle Decals that DIVISION is providing to PROMOTER. DIVISION will create the
decals identifying DIVISION as "The Official Vehicle of Huntington Beach." PROMOTER will apply
decals to all Courtesy Vehicles immediately after pick-up by the PROMOTER PROMOTER and
DIVISION will have the opportunity to approve decal design prior to production.
8. Prominent space, measuring 10' x 10' at the City of Huntington Beach Pier for DIVISION to use for
whatever purpose DIVISION chooses, including, but not limited to, the display of its products and
services. If DIVISION elects to display vehicles; 1) any vehicles displayed by DIVISION (the "Static
Display Vehicles") will be for static display purposes only and the provisions of Section 1, Paragraph D.
of this Agreement will apply to the Static Display Vehicles; 2) DIVISION will airange for appropriate
transportation of the Static Display Vehicles to and from the display location(s); 3) Specific models and
option content will be determined by DIVISION; 4) PROMOTER shall ensure that the vehicles are
maintained in a clean condition while on display; 5) PROMOTER will be solely responsible for
obtaining any necessary license or permit for the display(s); 6) PROMOTER will make sure vehicle is in
safe location and that people are not at risk around vehicle, and 7) DIVISION will remove the Static
Display Vehicles on a date and at a time to be mutually agreed upon by the parties, but not later than
midnight on the day this Agreement expires.
9. The right to display DIVISION Marks and advertising material on one (1) static sign on the City of
Huntington Beach Pier Lifeguard tower. The dimensions of the sign is approximately 3' x 8. These
signs will be Iocated at mutually agreed upon locations by both parties. PROMOTER warrants to
DIVISION that the Signs can be on display throughout the duration of the Promotion and that they can
contain whatever DIVISION Marks and advertising DIVISION elects to produce. DIVISION will be
responsible for all expenses for the initial design, layout, fabrication, production, installment and
maintenance of its Signs and the removal of them at the expiration or termination of this Agreement.
10. Grant the right to erect tents, temporary signage (banners, pennants, etc) and other display properties
at mutually agreed upon beach locations, in conjunction with PROMOTER sponsored events.
PROMOTER and DIVISION will agree upon the size and location of tents, signage and display
properties.
11. PROMOTER shall provide space at the Huntington Central Park Sports Complex for 3' x 10' signs
(the "Signs"), which prominently feature DIVISION'S Marks and advertising material during the
sponsorship. These signs will be located at locations to be mutually agreed upon by PROMOTER and
DIVISION. PROMOTER warrants to DIVISION that the Signs can be on display throughout the
duration of the sponsorship and that they can contain whatever DIVISION Marks and advertising
DIVISION elects to produce. DIVISION will be responsible for all expenses for the initial design,
layout, fabrication, production, installment and maintenance of its Signs and the removal of them at the
expiration or termination of this Agreement.
10012
•
PROMOTIONAL AGREEMENT
Between
General Motors Corporation
and
City of Huntington Beach
EXHIBIT C
PROMOTER Loan of Vehicle Terms and Conditions and Vehicle Recelpt
Division
following Vehicle(s) to
.of General Motors Corporation C DMSION") agrees to Ioan the
C PROMaMR') from approximately
to _ _ . upon. the terms sett forth below:
MAKE:
MODEL:
VIN.
PROMOTER'$ ADDRESS:
(Street) (City) (State) (Zip e)
PHONE: 0 -
Terms:
1. The Vehicle(s) istare, and shall remain, the property of DYVISION.
2. PROMOTER agrees that: ($) the Vehicle(s) will not be utilized illeptly, inVr+operly, for hire, as
a public conveyance or in any manner. for any political purpose whatsoever, (b) the Vebicle(s)
shall be drivers in a gaffe and prudent mantrer by instix4 licensed. drivers, twenty-one (21) years
Of age or older Wbo meet the GM Safe Driver Program Driver Conduct ReOreemerm (attached
as Exhibit D) and who are officers, directors, erMloyaes, ageltts or subcontractors of
PROMOTER or who are driving the Vehicle(s) while on business related to -the activities
contemplated under this Agreeramt; (c) PROMOTER shall ensure that no-one .modifies,
disconnects, or otherwise interferes with the operation of the odometer, emission control
equipment, or any other equipment; (d) PROMOTER acknowledges tewipt of and will obtain
from each driver of a Vehicle a signed Driver Conduct Requirements form and shall retain
each executed form for three (3) years. and provide them to DWMION at DIVISION'& request;
(e) PROMOTER will report ALL incidents/crashes involving a Vehicle to ESIS (General
Motors' insurance c ]aims administrator) at 1-800.988.0154 a nd to DIVISION and will follow
instruotions provided in the glove: compartment of the Vehicle; (t) without limiting or altering
any insurance or irldan nilication obligations contained in this Agreement, PROMOTER will
.cooperate with I3MSION in the defense of any clairns'or lawsuits related to PROMOTEWs use
or possession of any Vehicle; (g) PRf}NOTER w111 not make any repairs to a Vehicle
without the explicit prior conseert of UTS; (h) PROMOTER shall be responsible for all fines,
GM PROMOTIONAL ACKIREMEW I I PFUN1'ED01/16W43
REVISED 1IM612001
I&OU
forfeitures and penalties incurred by reason of the use of the Vehicle(Q.
GM PROMIOMONAL AGREEMENT 12 PRINTED 01/16/2003
REVISED 11/46/2001
WULO
EXHIBIT C - CONTINUED
3. DIVISION MAKES NO WARRANTY OTHIRR THAN THAT EXPRESSED IN ITS NEW
MUCLE I.Da'TED WARRANTY, A FRRTM COPY OF WHICH IS FURNISHED WITH
THE VEHICLE. DIVISION audwrizea PROMOTER to obtain, on DIVISION's behalf as owner
of *w Vehicle(s), such wazmty service as is necessary and provided for under the new vehicle
littuted warranty. Ordinary operating expenses such as gas, oil, grease, tiro repair and other
incidentals are the responsibility of PROMOTER,
4. PROMOTER agrees to defend, indemnify and hold DIVISION harmless from all claims, liability
and expenses arising out of PROMbM's use or possession of any Vehicle. In addition
PROMOTER agrees to obtain and maintain, at its own expense, comprehensive auternobik .
liability insurance (covering all owned, non -owned and hired v chides) with litnits of not less
than S5,000.000,per ore mace combined single lirdt for pamnel iWury v4 property dump,
including all statutory coverage for all states at operation. PROMOTER will also provide
coMrehensive (fire and theft) and collision coverage on the VeWcle(s). Prior to reeaig of the
Vehide(s), PROMOTER will provide DIMION with it certificate of iaswwve evidencing
General Motors Corporation as.an additional insured, sating that such inmrunce is prirtuo in
Coverage to any o ther insurance which may b e available t o 0 eneral' Motors C oq*ration, and
providing at least thirty .(30) days' prior written notice to DIVISION of cancellation,
modification, or Material change to the policy.
S. At the end of the term of the loan, or earlier if requested by DIVNION, PROMOTER will return
the Vehicles) to the nearest IIVISION office or such other Iocation as designated by
DMSION. 'If a Vehicle triust be m overed by DIVISION or repaired to restore it to the
condition in .which ft was delivered (reasonable w ear a nd tear, as defined by Goveral Motors
Corporation guidelines, excepted), then PROMOTER will pay DMSION any costs incurred by
DIVISION to recover rite Vehicle mW to repair it. If, in DIVISION's opinion. a Vehicle ca mot
or should not be repaired based upon General Motors Corporation's policy for
repairingtocrapping dam mod vehicles, then the: Vehicle trust be returned to DMSION and the
PROMOTER. will pay DIVISION the Vehicle's value, based upon the following formula- The
amount General Motors Corpomtion would have received if the Vehicle had been sold at auction
the it, the Vehicle was damaged based on a similar make and model year veebiclo with similar
nuleage, as determined by QM NAO Fleet and C,omnercial Operations Auction Results' report,
less $4,000.
PROMOTIER SIpatm:
PrWt Name:
Title:
Hate:
QM PROMIOMONAi. AGREEMENT 13 PRMTED OW1612003
RraVISOD 1110IMt
WVaU
0
PROMOTIONAL AGREEMENT
Between
General Notor: Corporation
and
City of Huntington Beach
EXHIBIT D
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
twenty-one (21) years of age or older, posses a valid operator's license, and will —
I. ...display such license to the vehicle key issuer at each Vehicle exchange, and wilt
comply with all license restrictions.
2. ...never drive while impaired by alcohol, drugs, medicatitfn, illness, faliguc; or injury,
3. ...ens►are 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-
b. . I Jeflain, at all times, from using raft/loser 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. WWI* to ESIS (General Motors'
insurance claims adminlstrator) -at 1-800-SM0164 (direction Is provided in the
glove compartment of the vehicle) and to DIMION,
9. ...not permit any other person to operate the Vehicle.
Furthermore, by signing this receipt and acknowledgrAent, i verity that i have not been convicted
withiu the past 35 mouths of any of the following motor vebiele violations;
I . 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
refining a sobriety test,
OM PROMOTIONAL AGREEMENT 14 PRINTED 41/16003
RAISED i M12401
-w1 viV
EXHIBI • D - CONTINUED
4. Failure to stop or identify under 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 Signature:
PrW Name:
Driver's License Number and Siste:
(Number) (Slow)
Title:
Date:
GM PROM07IONAL AGREEMENT 15 PRINTED 01/16/2003
REVISED 1110fi12001
EX MIT C - CONTDWED
PROMOTER Loan of Yebide Term# and Coladidous and Vehicle Receipt
List of vehicles to be attached closer to event.
43M PROMOTIONAL AGREEMENT 16 PRINTED 01/16/2003
RSVISED I IA W2001
REQUEST FOR LATE SUBMITTAL
(to accompany RCA's submitted after Deadline
Vehicles for Marine Safety Use
Council Meeting Date: 31313 Date of This Request: 3124/03
REASON(Why is this RCA being submitted late?):
THE CITY RECEIVED NOTICE THAT GMC WAS GOING TO PULL VEHICLES BY
2128. THE CITY RECEIVED AN EXTENSION TO THE MARCH 3 COUNCIL MEETING,
THEREFORE, LATE ITEM REQUIRED.
EXPLANATION(Why is this RCA necessary to this agenda?):
WE NEED TO MAKE THIS COUNCIL MEETING OR CHEVROLET WILL PULL THE VEHICLES.
RCA adversely impact the City?):
CONSEQUENCES How shall delay of this
CITY WILL HAVE TO APPROPRIATE FUNDS FOR THE ACQUISITION OF VEHICLES.
Signature:
�_a
P Approved C1 Denied
✓G'., lc 2=r 4
Ray Silver
City Administrator
DocumanQ 07114194
RCA ROUTING SHEET
INITIATING DEPARTMENT: COMMUNITY SERVICES
SUBJECT: APPROVE CHEVROLET DIVISION,GMC PROMOTIONAL
CONTRACT FOR FREE LIFEGUARD VEHICLES
COUNCIL MEETING DATE: March 3, 2003
RCA ATTACHMENTS .: "
STATUS.
Ordinance (w/exhibits & legislative draft if applicable)
Not Applicable
Resolution (w/exhibits & legislative draft if applicable)
Not Applicable
Tract Map, Location Map and/or other Exhibits
Not Applicable
Contract/Agreement (wlexhibits if applicable)
(Signed in AuLl by the Ci!z Attorne
Attached
Subleases, Third Party Agreements, etc.
LApproved as to form by Dty Attorney)
Not Applicable
Certificates of Insurance (Approved by the City Attome)
Not Applicable
Financial Impact Statement Unbudget, over $5,000
Not Applicable
Bonds If applicable)
Not Applicable
Staff Re ort If applicable)
Not Applicable
Commission, Board or Committee Report If applicable)
Not Applicable
Findings/Conditions for Approval and/or Denial
Not Applicable
EXPLANATION FOR MISSING ATTACHMENTS
ti OL. vLtIL L- L, S� U-v 4- EL22
REVIEWED
:RETURNED .:°
FORWARDED
Administrative Staff
�—
Assistant City Administrator Initial
City Administrator Initial
City Clerk
EXPLANATION FOR RETURN OF ITEM:
r � �
L
RCA Author: JBE:cr
I,/