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HomeMy WebLinkAboutNISSAN NORTH AMERICA - 2004-05-17C�M•���C_ Council/Agency Meeting Held: Deferred/Continued to: - A/t Approved ❑ Conditionally Approved ❑ Denied N4&'A_A City s Sign re Council Meeting Date: May 17, 2004 Department ID ber: CSO -010 CITY OF HUNTINGTON BEACH REQUEST FOR COUNCIL ACTION a o . L 1 SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMB RS SUBMITTED BY: WILLIAM P. WORKMAN, Acting City Administr o PREPARED BY: JIM B. ENGLE, Director, Community Services L SUBJECT: APPROVE PROMOTIONAL AGREEMENT WITH NISSAN NORTH AMERICA, INC. FOR PROVISION OF VEHICLES FOR BEACH OPERATION Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s) Statement of Issue: The city has approached Nissan North America, Inc. with a proposal to provide vehicles for the Beach Operation including Marine Safety, Beach Maintenance, and Parking/Camping. Funding Source: N/A Recommended Action: Motion to: Approve Promotional Agreement with Nissan North America, Inc. for the provision of seventeen vehicles at no cost to the city for two years, with two, two-year options for use in the Marine Safety, Beach Maintenance, and Parking/Camping Operations of Community, Services, and authorize the Mayor and City Clerk tolexecute same. Alternative Action(s): Do not approve the Promotional Agreement with Nissan North America, Inc., and use General Fund unappropriated fund balance to purchase seventeen vehicles, with a total value of over $450,000, for Community Services Beach Operations. Analysis: In 1991, Chevrolet.Motor Division of General Motors Corporation approached the city with an offer to enter into a- public/private partnership with the city to provide vehicles for the Beach Operation. At that time, Chevrolet provided twelve vehicles at no cost to Community Services. This partnership has continued since that time. Last November, Chevrolet contacted the city to advise that it would no longer provide vehicles to the city. At that time, Chevrolet was providing the city with twenty vehicles. The Chevrolet agreement had a termination date of December 30, 2003 for returning the vehicles; however, staff requested an extension and was given until February 29, 2004 to return the Chevrolet vehicles. Since that time, staff has been leasing vehicles. C3 REQUEST FOR COUNCIL ACTIN MEETING DATE: May 17, 2004 DEPARTMENT ID NUMBER: CSO4-010 Staff contacted vehicle manufacturers, and distributed proposals to several vehicle manufacturers for the donation of vehicles. Proposals were sent to Daimler/Chrysler/Jeep, Ford, Mitsubishi, and Nissan. Only Nissan was willing to enter into negotiations for a public/private partnership to donate vehicles to the city. They have agreed to provide the city with seventeen vehicles. The city's obligations are similar to the original Chevrolet agreement: • Exclusive signage rights in the category of "Motor Vehicles" on city beach; • Use of city logo in connection with the advertising and promotion of Nissan vehicles; • Use of city trademark as the Official Car/Truck Sponsor of the City of Huntington Beach Lifeguards; • Exclusive right to be known as the Official Marine Safety Vehicles of the City of Huntington Beach; • Right to display Nissan trademark on signage at city beach special events; • Right to use up to fifteen event dates in each agreement.year for Nissan promotional events without having to pay city permit fees. Note: Applies to events such as vehicle promotions,. e.g., film commercials, not specific events sponsored by Nissan, e.g., Association of Volleyball Professionals tournament. • Right to display Nissan signage, vehicles, and logos at all city -sponsored beach activities; • Right to display Nissan vehicles at various locations on city beach. New terms that were negotiated and not previously included in the Chevrolet contract are;the ability of Nissan to put a logo similar in size to the vehicle logo or approved artwork on lifeguard towers and Tower Zero. This package also gives Nissan the opportunity to provide artwork for a half -page ad in the SANDS Bulletin at: no charge. The agreement is for two years, with two, two-year extensions, if agreed to by both parties. The agreement has been reviewed and approved by the City Attorney. Nissan has required the city to execute the ° agreement first. Therefore, this agreement is being brought to City Council without first being signed by Nissan as is usual procedure.. As noted above, the value of this agreement to the city is over $450,000. With the budget issues facing the city, there is no other funding source to replace all of the beach vehicles. Staff recommends approval of the public/private partnership and agreement with Nissan North America, Inc. . Environmental Status: NA Attachment(s): G:\RCA\2004\04-010 Agreement with Nissan for Provision of Vehicles.doc -2- 4/27/2004 3:38 PM ATTACHMENT #1 CITY OF HUNTINGTON BEACH PROMOTIONAL AGREEMENT WITH NISSAN NORTH AMERICA, INC. THIS AGREEMENT, made and entered into this �day of A--2004, BY AND BETWEEN the CITY OF HUNTINGTON BEACH, a municipal corporation, hereinafter referred to as "City", AND NISSAN NORTH AMERICA, INC., hereinafter referred to as "Sponsor" WITNESSETH: WHEREAS, City is a municipal corporation and charter city duly organized and existing under and by virtue of the Constitution and the laws of the State of California; and WHEREAS, City desires to recognize Sponsor's product as the "Official Marine Safety Vehicle of Huntington Beach"; and WHEREAS, Sponsor desires to purchase the exclusive rights to advertise, sponsor events and promote its product as the Official Marine Safety Vehicle of City of Huntington Beach. IT IS THEREFORE agreed by and between City and Sponsor as follows: Definitions: As used herein, the terms set forth below shall be defined as follows: A. "Agreement Year" shall mean the 12-month period commencing on the date that this Agreement is executed by the City Council of the City of Huntington Beach, which date shall become the effective date of this Agreement, and each following 12-month period thereafter throughout the term of this Agreement. B. "Business Day" shall mean a day of the week falling on Monday, Tuesday, Wednesday or Thursday; Friday and City holidays are specifically excluded. C. "Marine Safety Chief' shall mean the Marine Safety Chief of the City of Huntington Beach Marine Safety Operation of the Community Services Department. D. "Department" shall mean the Community Services Department of the City of Huntington Beach. E. "Director" shall mean the Director of the Community Services Department of the City of Huntington Beach. F. "Lifeguards" shall mean the City of Huntington Beach Marine Safety Operation. G. "Lifeguard Tower(s)" shall mean the towers on the City of Huntington Beach Beaches, which serve as shelter and observation stations for the Lifeguards. H.. "Logo" shall mean a to be determined co -branded logo to be developed by the parties to this Agreement and mutually agreed upon in writing by parties to this Agreement, but shall not include the official insignia of the City of Huntington Beach. H:\My Documents\Agreements\Promotional Agreement with Nissan.doc 1 I. "City of Huntington Beach Beaches" shall mean those beaches over which the Department has jurisdictional or operational authority. "Motor Vehicles" shall mean the marketing category to which this Agreement shall apply. K. "Name Identification Space" shall mean that space on designated City -owned or operated real and personal property, specifically on the seventeen (17) Nissan vehicles hereinafter described to be acquired by City, and may, if Sponsor exercises the option provided for in Section 7 of this Agreement, include space on Lifeguard Towers. L. "Premium(s)" shall mean any promotional article(s) used for the purpose of increasing the sales of particular products, including those of Sponsor. M. "Product(s)" shall mean any motor vehicle model(s) that are produced by Sponsor. N. "Sponsor's Special Event(s)" shall mean event(s) exclusively conducted by Sponsor that promote its Product for which Sponsor receives no sponsorship funding from other commercial sponsors. O. "Sponsor's Special Event Permit(s)" shall mean permit(s) exclusively issued to Sponsor by the Department pursuant to the Huntington Beach Municipal Code for events that are conducted by Sponsor that promote its Product for which Sponsor receives no sponsorship funding from other commercial sponsors. P. "Trademark(s)" shall mean any word(s), name(s), symbol(s) or any combination thereof which, when used by a party to this Agreement, would distinguish the Product made or sold by it or services rendered by it from those goods made or sold or services rendered by others. Q. "Vehicles" shall mean the seventeen (17) Nissan vehicles described in Section 4 below as to which the rights of possession and use are being granted hereunder by Sponsor to City. 2. City Obligations Subject to the other terms of this Agreement and upon execution of this Agreement, City shall grant to Sponsor the exclusive right within the category of "Motor Vehicles" to advertise on that property defined herein as the Vehicles and Lifeguard Towers, as well as the ancillary rights listed below which are adjunctive but necessary incidents to the right to purchase advertising space on City real and personal property. A. City grants Sponsor exclusive signage rights in the category of "Motor Vehicles" (car/trucks) on beaches owned or operated by the City of Huntington Beach. However, City does not have the authority to grant this right on beaches that are owned or operated by the State of California. B. City grants Sponsor the right to use during the period of this Agreement, the Logos in connection with the advertising and promotion of its products. Sponsor understands that the rights granted herein with respect to those Logos are limited to use in connection with promotion of its Products and do not extend to any other products, goods or services. 2 C. City grants Sponsor the exclusive right, within the category of "Motor Vehicles" (car/trucks), to use the following Trademarks, which have been used and adopted by the City: Official Car/Truck Sponsor of Huntington Beach City Beaches Official Car/Truck Sponsor of Huntington Beach City Lifeguards Official Car/Truck Sponsor of the Department of Community Services Official Car/Truck Sponsor of City of Huntington Beach Lifeguards Official Car/Truck Sponsor of City of Huntington Beach Rescue Lifeguards Official Car/Truck Sponsor of City of Huntington Beach Lifeguards D. City grants Sponsor the exclusive right to be known as the "Official Marine Safety Vehicle of the City of Huntington Beach, and to be known as the official Sponsor of the City of Huntington Beach within the "Motor Vehicles" category. The right to be so designated with regard to non -city sponsored events is contingent on City having legal right to grant such an exclusive right. If City can legally grant such exclusive right to Sponsor, it shall do so without any further consideration being paid by Sponsor. All product exclusivity for promotional activity is granted pursuant to normal policies, procedures and government regulations. City shall use its best efforts to obtain necessary Trademarks and permission to . facilitate above usage. If City does not obtain necessary Trademarks to facilitate above usage for any reason including its status as a government entity, Sponsor has the right to register/use the Trademarks listed above and enjoy all rights pursuant to this Agreement pertaining thereto throughout the period of this Agreement and any extension thereof. Upon termination, and in the absence of the extension of this Agreement, Sponsor shall transfer all rights, entitlements and ownership of said Trademarks to the City. E. City grants Sponsor the right to display its Trademark on signage at the Sponsor's Special Events, which display will be subject to all environmental and local regulations, and written approval by the Director, which will not be unreasonably withheld. For all signage, the Sponsor must indicate the time, place, quantity, color, size, nature of material to be used, proximity to other structures, and length of time such signage is to be displayed for every beach event. F. City grants Sponsor the right to fifteen (15) Department -approved event dates in each Agreement year, under the City's Special Event permit process without having to pay the permit fee. Any other costs or fees associated with these events are the responsibility of Sponsor. A Special Event Permit will be issued to Sponsor so long as Sponsor applies for the permit thirty (30) days in advance of each such scheduled event and so long as all requirements of the permit have been met and the proposed Sponsor Special Event does not conflict with a previously scheduled event. This right does not apply to beaches owned or operated by the State of California. To the extent that the distribution/sale of Premiums is generally allowed at Sponsor's Special Events, Sponsor is granted the right to distribute and/or sell Sponsor's Premiums in conjunction with Special Events upon payment of all applicable fees. G. Subject to the approval of the Director, which approval shall not be unreasonably withheld, City grants Sponsor the right to display Sponsor's signage, vehicles and/or Sponsor's logos at all City -sponsored beach activities unless otherwise provided for by this Agreement. 3 H. Subject to the approval of the Director, which approval shall not be unreasonably withheld, City grants Sponsor the right to display Sponsor's vehicles at various locations on City beaches during the term of this Agreement. Applications for beach permits in connection with events sponsored by a motor vehicle manufacturer that is a competitor of Sponsor will not be approved by City to the extent the City can legally deny such approval, from the date this Agreement is signed and throughout the term of this Agreement. However, such beach permit applications may be approved if City receives the prior written approval of Sponsor. The terms of this agreement have no application to the annual U.S. Open of Surfing event. 3. Sponsor Obligations A. Sponsor agrees that it will not cause or permit the Logo or Trademarks developed pursuant to this Agreement to be used or exploited in any manner contrary to public morals, or which violates prevailing standards of good taste, or reflects unfavorably upon the good name, good will, reputation and image, in whole or in part, of City and/or Department. B. Sponsor agrees to submit to Director and Marine Safety Chief for their prior written approval, all advertising, promotional T.V. and radio commercials or any other display materials to be used by Sponsor in connection with the Logos or Trademarks of City. Such material shall be submitted not less than twenty (20) Business Days prior to its proposed release to the public. If the material is not disapproved in writing within ten (10) Business Days after receipt, it is deemed approved. C. Sponsor agrees to submit for prior approval to Director and Marine Safety Chief the signage design, size, nature of material and desired location on the Vehicles for Sponsor's Name Identification Space, which approval shall not be unreasonably withheld. D. Sponsor agrees not to use any Premium in connection with the rights herein granted unless prior written approval of such use has been obtained from Director and Marine Safety Chief, which approval shall not be unreasonably withheld. E. Sponsor agrees not to manufacture any Premium using City Logos until such written permission is granted by City, which approval shall not be unreasonably withheld. F. If Sponsor desires to sell or distribute for sale any Premium bearing the Logo(s) and/or Trademark(s) of City, a separate licensing agreement shall be negotiated between Sponsor and City. 4. Consideration A. For the rights and benefits granted to Sponsor herein, Sponsor agrees to deliver to City the following seventeen (17) new Nissan vehicles within 120 days from the commencement of this Agreement for use in City's Lifeguard and Beach Operations: Four (4) Nissan Titan One (1) PT Nissan Titan unit for Pier Tower Response Seven (7) Nissan Frontier One (1) Nissan Armada Four (4) Nissan Xterra 0 Delivery of Vehicles shall be taken by City at an authorized Nissan dealer to be designated by Sponsor. Sponsor is not liable for any reasonable and unavoidable delay in making the Vehicles available to City. If Sponsor exercises its options to extend this Agreement as outlined in Section 6 below, Sponsor will replace said Vehicles every two (2) years for the term of the Agreement. Both the Vehicles' models and the numbers of each particular model may be changed at any time upon the mutual written consent of both Sponsor and Director. The Vehicles will remain the property of Sponsor. Sponsor will provide City with sufficient paperwork to enable City to register these Vehicles with the California State Department of Motor Vehicles and obtain E-plates. B. The replacement Vehicles shall be delivered within sixty (60) days after the commencement of the third and fifth Agreement Years, if Sponsor chooses to extend this Agreement according to the provisions set forth in Section 6 below. In exchange, City shall deliver to Sponsor, forty-five (45) days after receipt of the replacement Vehicles, to the designated Nissan dealer locations all Vehicles then currently in use during the previous two (2) years and not purchased by City. C. All of the Vehicles delivered to City shall be subject to Sponsor's new vehicle limited warranty, a printed copy of which is furnished with each of the Vehicles. Sponsor authorizes City to obtain, on Sponsor's behalf as owner of the Vehicles, 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 City. Sponsor acknowledges that City will need to outfit vehicles with safety equipment, including but not limited to radios and light bars. All repairs determined to be the result of abuse or failure to properly maintain the Vehicles are the responsibility of City. Sponsor will have the option, but not the obligation, to provide a loan vehicle. D. For all Vehicles purchased by City, Sponsor will offer to City the right to purchase "Extended Service Contracts" routinely available for such vehicles. E. At the end of the term of this Agreement, City will return the Vehicles in the same condition as delivered, reasonable wear and tear excepted, to the designated Nissan dealer locations within forty-five (45) days after the termination of the Agreement. 5. Buy Out Option At the termination of this Agreement, and at the termination of this Agreement's optional extension periods (if exercised), City shall have the option to purchase any or all of the Vehicles due to be returned to Sponsor as outlined in Section 4 above at prices to be provided by Sponsor at least one hundred and eighty (180) days prior to the termination of this Agreement and any optional extension periods. If City elects to exercise such buy out options, it must notify Sponsor in writing at least sixty (60) days prior to the termination of this Agreement, and sixty (60) days prior to the termination of this Agreement's optional extension periods, if exercised. 5 6. Term and Extension of Rights This Agreement shall be deemed to commence on the date of the Huntington Beach City Council's execution and shall continue for two (2) Agreement Years, subject to the possible extensions of the Agreement and to the provisions concerning termination set forth in Sections 8 and I I below. Subject to mutual consent in writing between Director and Sponsor, this Agreement may be extended for two (2) additional two-year periods on the same terms and conditions specified in this Agreement. Sponsor must inform Director in writing at least one hundred and eighty (I80) days prior to the termination of both this Agreement and, if exercised, the optional extension periods, if Sponsor will not request an extension. If an extension is requested, Director shall respond to Sponsor in writing to advise whether he consents to such extension within thirty (30) days of receiving the request. 7. Snonsor's Option Sponsor has the option, but is not obligated by this Agreement, to display Sponsor's "Official Marine Safety Vehicle of the City of Huntington Beach" name identification signage or decals similar in size to those placed on City's vehicles pursuant to this agreement on twenty-two City lifeguard towers and the Main -Pier Lifeguard Tower Building. Sponsor must present to Director and Marine Safety Chief the signage design, size, nature of material and desired location on the Lifeguard Towers. All signage must have the prior written approval of Director and Marine Safety Chief, which approval shall not be unreasonably withheld. Even if Sponsor does not exercise the option represented by this Section, City shall not allow signage on any Lifeguard Towers from any competitor of Sponsor in the "Motor Vehicles" category. Sponsor has the additional option of placing a half -page advertisement, on the inside front cover of City's Sands Bulletin, which is distributed quarterly to the residents of the City of Huntington Beach. Sponsor must timely notify City in writing of.its intent to exercise this option and provide City with a copy of the proposed advertisement. City shall then cause the advertisement to be included in the City's Sands Bulletin at no additional cost to Sponsor. 8. _Operation Expansion or Reduction Sponsor and City agree that in the event that City's jurisdictional or operational authority of City of Huntington Beach Beaches is expanded or reduced, thereby affecting the extent of Sponsor's ability to advertise its Product, both parties will in good faith promptly renegotiate this Agreement to take into account the increase or decrease in the size of operation. In renegotiation of the Agreement, the parties shall attempt to reasonably adjust the number of Vehicles to reflect the increase or decrease in the square mileage of beach areas remaining under City's jurisdiction or operational authority and portion of the Agreement Year affected. If the reduction of City's control exceeds fifty (50%) percent of the area of City of Huntington Beach Beaches under its control as of the effective date of this Agreement, Sponsor may terminate this Agreement upon ninety (90) day written notice to City and without incurring any further liability to City beyond the liability incurred up to and including the ninetieth (901h) day of said ninety (90) day notice period. 9. Indemnification A. Sponsor agrees to indemnify and hold harmless City, its respective City Council, the Department, and the Community Services Department, and its officials, agents, employees, successors, and assigns from and against any and all claims, demands, obligations, causes of action and lawsuits and all damages, liabilities, fines, judgments, costs (including, without limitation, settlement costs), and expenses associated therewith (including, without limitation, the payment of reasonable attorney fees and disbursements), arising out of, 0 related to or resulting from Sponsor's marketing and promotion of its designation and/or status as the "Official Marine Safety Vehicle of the City of Huntington Beach" (or other such designation as allowed in Section 2), including but not limited to Sponsor's activities in connection with Sponsor's Special Event Permits, Premium distributions, wrongful use of Logo and Trademark(s), and all advertisement, promotional and display material, as well as Sponsor's rights granted in Sections 2 and 3 above. Sponsor's indemnification shall extend to any claim of false or deceptive advertising and to the failure of Sponsor or those acting under it, to comply with the terms and conditions of this Agreement. City shall be reimbursed by Sponsor for all costs and attorneys' fees incurred by City in_enforcing this obligation. Sponsor will conduct all defense at its sole cost and expense and the City shall approve selection Sponsor's counsel. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as limitation upon the amount of indemnification to be provided by Sponsor. All new vehicle warranties shall remain in effect and Sponsor shall indemnify City for all damages arising from defect in the Vehicles as manufactured. Sponsor shall hold harmless the City, as well as its respective City Council, the Department, and Fire Department, and its officials, agents, employees, successors, and assigns against all liability for illegal competition or trade practices, common-law and/or statutory, which are based on the rights granted by City pursuant to the terms of this Agreement. B. City agrees to indemnify and hold harmless the Sponsor, its divisions and subsidiaries and their respective officers, directors, agents and employees, successors, and assigns from and against any and all claims, demands, obligations, causes of action and lawsuits and all damages, liabilities, fines, judgments, costs (including, without limitation, settlement costs), and expenses associated therewith (including, without limitation, the payment of reasonable attorney fees and disbursements), arising out of City's own use or possession of the Vehicles; the services performed or actions taken by City, or those acting under it, in connection with this Agreement, including City's use of the Vehicles in connection with the operation and management of any event or activity; City's wrongful use of Logo and Trademark(s) and, the failure of City, or those acting under it, to comply with the terms and conditions of this Agreement. Sponsor shall be reimbursed by City for all costs and attorneys' fees incurred by Sponsor in enforcing this obligation. City will conduct all defense at its sole cost and expense and the Sponsor shall approve selection of City's counsel. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as limitation upon the amount of indemnification to be provided by City. 10. Insurance City is self -insured and will provide Sponsor with a letter agreeing to provide full insurance coverage for all Vehicles described in Section 4 or their replacement during the term of this Agreement in the amounts listed as follows: Bodily Injury Liability Property Damage Liability Medical Payments Uninsured Motorists Comprehensive Collision $1,000,000 per occurrence $ 500,000 per occurrence $ 2,000 per occurrence $ .15,000 per occurrence $ 30,000 per occurrence Value of Vehicles 7 The above will be satisfied by issuance of a Certificate of Self -Insurance for one million dollars ($1,000,000) combined single limit coverage. Sponsor may terminate this Agreement effective immediately upon written notice to City, in the event City fails to provide or maintain the insurance stated immediately above. 11. Default; Remedies . A. The following events shall constitute an Event of Default ("Event of Default") under this Agreement regardless of whether any such event shall be voluntary or involuntary or shall result from the operation of applicable laws, rules or regulations or shall be pursuant to or in compliance with any judgment, decree or order of any court of competent jurisdiction: (1) City shall fail to cause to be carried and maintained the insurance required under Section 10 hereof, (2) Either party shall make any material misrepresentation or shall breach any warranty made herein; (3) Either party shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief under any bankruptcy, insolvency or similar law, or shall make a general assignment for the benefit of creditors, or shall have an involuntary case or other proceeding instituted against it seeking similar relief, (4) Either party shall otherwise fail to perform or observe any other covenant or condition set forth herein and such failure shall continue unremedied for a period of thirty (30) days after the receipt of written notice thereof from the nondefaulting party; or (5) Either party should commit an act, which brings its name into disrepute, or otherwise substantially diminishes the value of the sponsorship association for the other party. B. Upon the occurrence of an Event of Default, and at any time thereafter so long as the same shall be continuing, the nondefaulting party may declare, at its option, this Agreement to be in default and: (1) may immediately terminate this Agreement without any liability whatsoever; (2) may seek enforcement by appropriate court action of the terms hereof and recover damages for the breach hereof, (3) may exercise any other right or remedy available to it under law or in equity; or (4) may seek any permitted combination of such remedies. No remedy is intended to be exclusive, but each shall be cumulative and the exercise of any such remedy shall not preclude the simultaneous or later exercise of any other remedy. 12. Waiver Failure or inability of either party to enforce any right hereunder shall not waive or modify any - right to enforce said right in the future. 13. Notices All notices and statements to be given hereunder shall be given at the respective addresses of the parties as set forth below, unless notification of a change of address is given in writing. Any notice shall be sent by registered or certified mail or by a nationally recognized courier service and shall be effective upon receipt. Sponsor shall maintain an address within California as the address to which such notice shall be given. Sponsor shall designate an agent with a California address to accept service of process. The addresses for notice and agents for service of process are: E City Community Services Department 2000 Main Street Huntington Beach CA 92648 Attn: Jim B. Engle, Director, Community Services Sponsor Nissan North America, Inc. 18501 South Figueroa Street Gardena, CA 92648 Attn: Patricia Gardner, Al S With copies to: Norman Miede, Esq., M8A Mike Grollman, G2L 14. Assignment Sponsor shall not have the right to assign or delegate any of its rights or obligations hereunder to an unrelated third party without the prior written consent of the Director, which will not be unreasonably withheld. 15. Compliance with Law, Rules and Regulations Both parties shall comply with all applicable federal and state laws and regulations, as well as all municipal and City ordinances, rules and regulations, including but not limited to those relating to the Department and the City Fire Department. 16. Severability of Provisions 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. 17. Independence The parties shall at all times act independently. Nothing contained in this Agreement shall be construed to make one party the partner, joint venturer, principal, agent or employee of the other party hereto. Specifically, City shall have no express or implied authority to act for or on behalf of Sponsor. Further, no officer, director, employee, agent, affiliate or contractor retained by City. to perform work on Sponsor's behalf hereunder shall be deemed to be an employee, agent or contractor of Sponsor. City is solely responsible for payment of (1) all income, disability, withholding, and other employment taxes as well as (2) all medical benefit premiums, vacation pay, sick pay or other fringe benefits resulting from City's retention of any such officers, directors, employees, agents, affiliates or contractors. City shall indemnify, defend, and hold harmless Sponsor from any claim for any such tax or benefit payment. 18. Governing Law This Agreement will be governed by and construed and interpreted in accordance with the law of the State of California. 19. Termination for Improper Consideration City may, by written notice to Sponsor, immediately terminate the right of Sponsor to proceed under this Agreement if it is found that consideration, in any form, was offered or given by Sponsor, either directly or through. an intermediary, to any City officer, employee or agent with the intent of securing the Agreement or securing favorable treatment with respect to the award, amendment for extension of the Agreement or the making of any determinations with respect to the Sponsor's performance pursuant to the Agreement. In the event of such termination, City shall be entitled to pursue the same remedies against Sponsor as it could pursue in the event of default by Sponsor. E Sponsor shall immediately report any attempt by a City officer or employee to solicit such improper consideration. The report shall be made either to the Department Head charged with the supervision of the employee. Among other items, such improper consideration may take the form of cash, discounts, service, the provision of travel or entertainment, or tangible gifts. 20. Termination with or without Cause Sponsor shall have the right to terminate this Agreement in whole or in part, with cause, upon thirty (30) days prior written notice to City of Huntington Beach or without cause, upon one hundred eighty (180) days prior written notice to City of Huntington Beach. Upon receipt of any termination notice, City of Huntington Beach shall discontinue services on the date stated and to the extent specified in the notice. Sponsor may also terminate this Agreement or the Services immediately if, in the sole opinion of Sponsor, City of Huntington Beach is not adequately providing services hereunder. Upon termination of this Agreement, or upon request of Sponsor, City of Huntington Beach will surrender to Sponsor all vehicles, which are then in City of Huntington Beach possession, and all. memoranda, notes, records, drawings, manuals, software, and all other materials which are the property of Sponsor or which contain information which is proprietary to Sponsor. City of Huntington Beach will not retain any copies of any Confidential Information of Sponsor. 21. Obligations Survive Agreement Term The -indemnities and assumptions of risks, liabilities and obligations by the parties arising under this Agreement during its term shall continue in effect after the termination of the Agreement, regardless of the reason for termination. 22. Amendment of Agreement No waiver or modification of any language in this Agreement shall be valid unless in writing and duly executed by both parties. Only nonmaterial Amendments to the Agreement which do not materially change the scope of the Agreement increase the City's financial responsibility or impose additional liability on the City, may be executed without approval of the City Council and all must be in writing and shall not be effective unless and until executed by Sponsor and, in the case of the City, until executed by the Director. 23. Entire Agreement This Agreement contains the entire understanding between the parties relating to the subject matter herein contained. IN WITNESS WHEREOF Sponsor has executed this Agreement, or caused it to be duly executed, and City, by order of its City Council, has caused this Agreement to be executed on its behalf by the Mayor and attested by the City Clerk, on the day and year first above written. 10 CJ NISSAN NORTH AMERICA, INC. INITIATED AND APPROVED: Community CITY OF HUNTINGTON BEACH, a municipal corporation of the State of C " or f ATTEST: — >sis4 CityTlerk, *PPVED AS TO FORM: City Attorne II WqIvy I 11 RCA ROUTING SHEET INITIATING DEPARTMENT: COMMUNITY SERVICES SUBJECT: APPROVE PROMOTIONAL AGREEMENT WITH NISSAN NORTH AMERICA, INC. COUNCIL MEETING DATE: May 17, 2004 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 (w/exhibits if applicable) Signed in full by the City Attome Attached Subleases, Third Party Agreements, etc. (Approved as to form by City Attome Not Applicable Certificates of Insurance (Approved by the City Attorney) Attached Financial Impact Statement (Unbudget, over $5,000) Not Applicable Bonds If applicable) Not Applicable Staff Report If applicable Not Applicable Commission, Board or Committee Report (If applicable) Not Applicable Findings/Conditions for Approval and/or Denial Not Applicable RCA Author: