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HomeMy WebLinkAboutTina J. Viray and Nelson Wescott dba The Surf City Store - 2008-06-02 Council/Agency Meeting Held: Deferred/Continued to: Approved ® Conditionally Approved ❑ Denied 'SA�City Ie Sign Lure Council Meeting Date: 6/2/2008 Department ID Number: AD 08-10 CITY OF HUNTINGTON BEACH REQUEST FOR CITY COUNCIL, ACTION SUBMITTED TO: Honorable Mayor and Members of the City Council SUBMITTED BY: Communications Committee Members (Mayor Cook, Mayor Pro-tem Bohr, Councilmember Coerper) PREPARED BY: Paul Emery, Interim City Administrator SUBJECT: Merchandise and License Agreement with Surf ity Store for Centennial Celebration Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachment(s) Statement of Issue: Approval of a contract with the Surf City Store giving them license to use the Centennial Celebration logo in providing merchandise to be sold as a fundraiser for the Centennial Celebration Committee. Funding Source: Funding to cover the upfront cost for purchasing this merchandise is available in the Centennial Celebration Account#10030103. Recommended Action: Motion to: Approve the proposed Merchandise and License Agreement with Tina J. Viray and Nelson Wescott dba The Surf City Store, for the Centennial Celebration trademark and the handling of the Centennial Celebration merchandise based on the terms and conditions presented herein, and authorize the Mayor and City Clerk to execute all documents related to this transaction. Alternative Action(s): Do not approve the Merchandise and License agreement with the Surf City Store. REQUEST FOR CITY COUNCIL ACTION MEETING DATE: 6/2/2008 DEPARTMENT ID NUMBER: AD 08-10 Analysis: The City's Centennial Committee has been meeting regularly in preparation for the 2009 Celebration. The Centennial Celebration logo has been designed, approved and is already being used to promote the upcoming year. The Committee would like to develop a range of merchandise bearing the logo and artwork to sell to the public, thereby generating revenue to support the events, including the float in the Rose Parade. The selling of merchandise will be a fundraiser for the committee as well as provide mementos of the event. In order to better facilitate the ordering and sales of the merchandise, the Committee would like to have Tina Viray from the Surf City Store coordinate the merchandise orders and the distribution to retail outlets. Because the Surf City Store has an existing partnership with the City, it was felt that they would be best to handle the ordering of the merchandise and coordination with retailers throughout the City. The Committee supports the Surf City Store being the dealer for the Centennial logo and merchandise. Strategic Place Goal: This agreement will support the goal of Engaging the Community as it pertains to the Centennial Celebration and the opportunities for the public to participate in the event. Environmental Status: N/A Attachment(s): 14 Q espra 1. License agreement between the City of Huntington Beach and Viray and Wescott, DBA the Surf City Store for the use of the Centennial Celebration Trademark 2. 1 Copy of Certificate of Liability Insurance for Surf City Store -2- 5/19/2008 3:19 PM - � AT LICENSE AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH AND VIRAY AND WESCOTT, DBA THE SURF CITY STORE FOR THE USE OF THE CENTENNIAL CELEBRATION TRADEMARK THIS AGREEMENT is made and entered into this tab day of SLt �t1� 2008, by and between the CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California, hereinafter referred to as "City" and VIRAY AND WESCOTT, dba SURF CITY STORE, a California general partnership, hereinafter referred to as "Licensee." WHEREAS, City has created a Centennial Celebration Trademark ("Trademark") and Licensee desires to use the Trademark on clothing, hats, and miscellaneous novelty items as specified in this agreement, NOW, THEREFORE, it is agreed by City and Licensee as follows: 1. USE OF THE TRADEMARK The use of the Trademark by Licensee under this Agreement is limited to the following goods, products or merchandise ("merchandise"): Clothing Headgear License Plate Frames Key Chains Beverage Containers Sports Bottles Tote/Beach Bags Artwork Posters, Flags, Banners, Plaques Commerative Coins Miscellaneous Wearables Pins Miscellaneous Novelty Items Decals The Licensee may request from the City use of the Trademark on other merchandise not listed above and shall submit a description or depiction of such merchandise for evaluation and approval by City prior to application of the Trademark. At is sole and absolute discretion, City may reject use of the Trademark on merchandise not listed above. City will notify Licensee of its approval or disapproval within 72 hours, not including Saturdays, Sundays, or holidays. Silence by City, or failure to approve or disapprove shall not be considered as approval or concurrence. Licensee shall not use the Trademark on any merchandise which has been disapproved by City. If Licensee so requests, City shall meet with Licensee and make a good faith attempt to resolve any disagreement as to Trademark use. This Agreement is not an exclusive agreement for the use of City's Centennial Trademark and City reserves all rights to use, or to allow other persons and/or companies to use, the Trademark on any merchandise not listed in this Agreement. 07-1100.001.001/22234 1 2. CITY STAFF ASSISTANCE City shall assign a staff coordinator to work directly with Licensee in the performance of this Agreement. 3. TERM OF AGREEMENT The term of this Agreement shall be for a two and one-half year period commencing on June 1, 2008 and ending on December 31, 2010, provided, however, that either City or Licensee may terminate the Agreement at any time without cause with ninety (90) days prior written notice to the other party. With the mutual desire of both City and Licensee, this Agreement may be extended beyond the initial term for an additional separate term of five (5) years under the terms and conditions herein stated, beginning January 1, 2011. The five (5) year renewal shall be separate and contingent on the prior written approval and acceptance by City, with the extension of the Agreement to be confirmed in writing one hundred twenty (120) days prior to the termination of then operative contract period. Either City or Licensee may at such time decline to accept a renewal of the Agreement for any reason whatsoever and such declination shall render the renewal option null and void. The City Administrator, or his designee, is authorized to approve such extensions or renewals of the contract as contemplated in this section. 4. COMPENSATION In order to provide flexibility to the City, products may be obtained in either of two manners: A. A purchase order shall be issued to Licensee by the City, whereupon products will be produced and an invoice submitted by the Licensee to the City for payment. Payment for the sale of said products to the public will be made directly to the City from the retail source. B. Licensee shall purchase products directly for sale through the Surf City Store with a twenty-five percent (25%) fee payable to the City as compensation for the use of the Trademark. Said payment shall be based on monthly gross revenues collected by Licensee on all merchandise bearing the Trademark sold by Licensee including wholesale and retail items. "Gross revenues" shall not include sales taxes, but shall include all sources of retail and wholesale sales. C. If the payment required in Section 4.13 is not received by the City within twenty (20) calendar days after the end of the month for which the payment is due, or the end of the next business day if the twentieth day falls on a weekend or holiday, Licensee shall pay the following late charge and penalty: (1) a late charge of ten percent(10%) shall be applied to any outstanding balance after any payment hereunder is due but unpaid; and(2) one and one half percent (1-1/2%) penalty per month shall be added for each month the payment is due but unpaid. With respect to any other payments required by Licensee, a one and one 07-1100.001.001/email docs2 2 half percent (1-1/2%) penalty per month shall be added for each month such payment hereunder is due but unpaid. 5. BOOKS AND RECORDS A. Commencing in July, 2008 and each month thereafter during the term of this Agreement (including any extension thereof), Licensee shall prepare, maintain and transmit to City a monthly statement of all wholesale and retail merchandise sold by it during the previous month. Each such monthly statement shall be submitted to City no later than twenty (20) days after the end of the previous calendar month. For example, Licensee's first monthly statement shall be submitted to City no later than July 31, 2008 and shall cover Licensee's sales during the month of June, 2008. B. City shall have the right to inspect Licensee's books and records stated and described in this section and to conduct a financial audit of such books and records at any reasonable time during normal business hours. C. Licensee shall at all times keep or cause to be kept, complete and accurate records and books of account showing the total amount of gross sales of any retail or wholesale merchandise covered by this Agreement. D. Licensee agrees to maintain for a period of one (1) year following the close of each calendar month all records and books of account and all cash register tapes showing or in any way pertaining to the sale of retail or wholesale merchandise covered by this Agreement. 6. USE OF CITY SEALS AND LOGOS City reserves the sole right to approve the use of protected City Centennial graphic and all other protected City-provided or City-created logos or marks as it may deem appropriate, excluding license agreements previously entered into. 7. SALES TAX COLLECTION AND REPORTING Licensee shall be responsible for the collection of all sales taxes on the retail sales generated under this Agreement. Licensee shall be responsible for preparing, reporting and remitting all required sales tax returns and sales taxes to the State of California. Licensee shall provide City with a copy of all sales tax returns as they are submitted to the State by Licensee. 8. INDEMNIFICATION, DEFENSE, AND HOLD HARMLESS Licensee hereby agrees to protect, defend, indemnify and hold harmless City, its officers, elected or appointed officials, employees, agents and volunteers from and against any and all claims, damages, losses, expenses, judgments, demands and defense costs (including, without limitation, costs and fees of litigation of every nature or liability of any kind or 07-1100.001.001/22234 3 nature) arising out of or in connection with Licensee's (or Licensee's subcontractors, if any) negligent (or alleged negligent) performance of this Agreement or its failure to comply with any of its obligations contained in this Agreement by Licensee, its officers, agents or employees except such loss or damage which was caused by the sole negligence or willful misconduct of City. City shall be reimbursed by Licensee for all costs and attorney's fees incurred by City in enforcing this obligation. Licensee will conduct all defense at its sole cost and expense and the City shall approve selection of Licensee'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 the Licensee. 9. WORKERS' COMPENSATION Licensee acknowledges awareness of Section 3700 et seq. of the California Labor Code, which requires every employer to be insured against liability for workers' compensation. Licensee covenants that it shall comply with such provisions prior to the commencement of this Lease. Licensee shall obtain and furnish to Lessor workers' compensation and employers' liability insurance in amounts not less than the State statutory limits. Licensee shall require all subcontractors and contractors to provide such workers' compensation and employers' liability insurance for all of the subcontractors' and contractors' employees. Licensee shall furnish to Lessor a certificate of waiver of subrogation under the terms of the workers' compensation and employers' liability insurance and Licensee shall similarly require all subcontractors and contractors to waive subrogation. 10. GENERAL PUBLIC LIABILITY INSURANCE In addition to the workers' compensation and employers' liability insurance and Licensee's covenant to defend, hold harmless and indemnify Lessor, Licensee shall obtain and furnish to Lessor, a policy of general public liability insurance, including motor vehicle coverage against any and all claims arising out of or in connection with the operation of this Agreement. This policy shall indemnify Licensee, its officers, employees and agents, while acting within the scope of their duties, against any and all claims arising out of or in connection with the operation of this Agreement, and shall provide coverage in not less than the following amount: combined single limit bodily injury and property damage, including products/completed operations liability and blanket contractual liability, of One Million Dollars ($1,000,000.00) per occurrence. If coverage is provided under a form which includes a designated general aggregate limit, the aggregate limit must be no less than One Million Dollars ($1,000,000.00). This policy shall name Lessor, its officers, elected or appointed officials, employees, agents, and volunteers as Additional Insureds, and shall specifically provide that any other insurance coverage which may be applicable shall be deemed excess coverage and that Licensee's insurance shall be primary. Under no circumstances shall said above-mentioned insurance contain a self-insured retention, or a "deductible"or any other similar form of limitation on the required coverage. 07-1 100.001.001/22234 4 11. CERTIFICATES OF INSURANCE; ADDITIONAL INSURED ENDORSEMENTS Prior to commencement, Licensee shall furnish to City certificates of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverages as required by this Lease; these certificates shall: (1) provide the name and policy number of each carrier and policy; (2) shall state that the policy is currently in force; and (3) shall promise to provide that such policies shall not be canceled or modified without thirty (30) days' prior written notice to City; however ten (10) days' prior written notice in the event of cancellation for nonpayment of premium, which 10-day notice provision shall not apply to property insurance set forth above. Licensee shall maintain the foregoing insurance coverages in force during the entire term of this Agreement or any renewals or extensions thereof or during any holdover period. The requirement for carrying the foregoing insurance coverages shall not derogate from Licensee's defense, hold harmless and indemnification obligations as set forth in this this Agreement. City or its representatives shall at all times have the right to demand the original or a copy of any or all the policies of insurance. Licensee shall pay, in a prompt and timely manner, the premiums on all insurance hereinabove required. 12. INDEPENDENT CONTRACTOR Licensee is, and shall be, acting at all times in the performance of this Agreement as an independent contractor. Licensee shall secure at its expense, and be responsible for any and all payments of all taxes, social security, state disability insurance compensation, unemployment compensation and other payroll deductions for Licensee and its officers, agents and employees and all business licenses, if any, in connection with the services to be performed hereunder. 13. CITY EMPLOYEES AND OFFICIALS Licensee shall employ neither any City official nor any regular City employee in the work performed pursuant to this Agreement. No officer or employee of City shall have any financial interest in this Agreement in violation of the applicable provisions of the California Government Code Section 1090, et seq. 07-1100.001.001/22234 5 14. NON-ASSIGNABILITY Licensee shall not sell, assign, transfer, convey or encumber this Agreement. Any such sale, assignment, transfer, conveyance or encumbrance shall be deemed null and void as to City and shall be of no force and effect. 15. NOTICES Any notices or special instructions required to be given in writing under this Agreement shall be given either by personal delivery to Licensee's agent or to City as the situation shall warrant, or by enclosing the same in a sealed envelope, postage prepaid, and depositing the same in the United States Postal Services, addressed as follows: To City: To Licensee: City of Huntington Beach Tina J. Viray Attn: Community Relations Officer 19502 Ranch Lane, No. 103 2000 Main Street Huntington Beach, CA 92648 Huntington Beach, CA 92648 16. IMMIGRATION Licensee shall be responsible for full compliance with the immigration and naturalization laws of the United States and shall, in particular, comply with the provisions of the United States Code regarding employment verification. 17. LEGAL SERVICES SUBCONTRACTING PROHIBITED Licensee and City agree that City is not liable for payment of any subcontractor work involving legal services, and that such legal services are expressly outside the scope of services contemplated hereunder. Licensee understands that pursuant to Huntington Beach City Charter 309, the City Attorney is the exclusive legal counsel for City; and City shall not be liable for payment of any legal service expenses incurred by Licensee for whatever reason. 18. JOINT AND SEVERAL LIABILITY OF GENERAL PARTNERS The parties acknowledge that Licensee is a California general partnership whose two general partners are Tina J. Viray and Nelson E. Wescott. Under California law, specifically Corporations Code §16306(a), general partners are liable jointly and severally for all obligations of the partnership unless otherwise agreed to by the claimant or provided by law. By executing this agreement as general partners, both Tina J. Viray and Nelson E. Wescott acknowledge that they are jointly and severally liable to City for all of Licensee's obligations under this Agreement. 07-1 100.001.001/22234 6 19. ENTIRETY The foregoing sets forth the entire Agreement between the parties, and supersedes any prior agreements for use of the Centennial Celebration Trademark. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized officers the day, month and year first above written. VIRAY AND WESCOTT, dba SURF CITY CITY OF HUNTINGTON BEACH, a municipal STORE, a general partnership corporation of the State of California By: • 6 sV print name Mayor ITS: General Partner AND City Clerk �1�106 By. REYUE-W�41N TIAT D AND APPROVED: print name ITS: General Partner City Administ or APP 4OVED TO FORM: City Attorney S• (2 •a� 07-1100.001.001/22234 7 A" ' tTAC HMENT #2 CSR SM DATE(MMtDD1YYYY) AGGRO, CERTIFICATE OF LIABILITY INSURANCE sURFCII o7 3D ©7 PRODOCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ISU Insurance Serv.. of Irvine ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE DBA of Norton Ins. Srvc. , Inc. HOLDER.THIS CERTIFICATE DOES NOT AMEND,EXTEND OR 5 Corporate Park, Suite #170 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Irvine CA 92606-5164 Phone: 949-419-2100 Fax:949-419-0491 INSURERS AFFORDING COVERAGE NAIC0 INSURED INSURER A: Hartford Casually Ina Conpany INSURER B: Surf City Store INSURERC: 19502 Ranch bane #103 INSURERD: Huntington Beach CA 92648 INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.NOTWtTHSTANOING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. IONI LTR NSR TYPE OF INSURANCE POLICY NUMBER ATE tM f1D�p� P ppryY LIMITS GENERAL LIABILITY EACH OCCURRENCE 5 2000000 A X X COMMERCIAL GENERAL LIABILITY 72SBAIZ1883 09/01/07 09/01/Q8 PREMISE&OIEaocwrenc�— $300000 CLAIMS MADE D OCCUR MED EXP(Any one person) $10 000 PERSONAL&ADV INJURY $2000000 GENERAL AGGREGATE S 4000000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMPIOP AGG S 4000000 X POLICY M PRO LOC JECT AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT 5 2004QQQ }1 ANY AUTO 72SBALZ1883 09/01/07 09/01/09 (Ea accident) ALL OWNED AUTOS BODILY INJURY $ SCHEDULED AUTOS (Per person) X HIRED AUTOS BODILY IN S X NON-OWNED AUTOS {Per accident) PROPERTY DAMAGE 5 (Per accident) GARAGE LIABILITY AUTO ONLY-EA ACCIDENT $ ANY AUTO OTHER THAN EA ACC $ AUTO ONLY: AGG 5 EXCESSIUMBRELLA LIABILITY EACH OCCURRENCE S_ OCCUR CLAIMS MADE !/01 AGGREGATE S 9,11ATkcGRATH,C' A 0Me / s DEDUCTIBLE $ RETENTION 5 5 WORKERS COMPENSATION AND TORY LIMITS ER EMPLOYERS'LIABILITY EL EACH ACCIDENT ANY PROPRIETORIPARTNERIEXECUTIVE 5 OFFICERIMEMBER EXCLUDED? E.L.DISEASE-EA EMPLOYEE 5 It yes,describe under SPECIAL PROVISIONS balow E.L.DISEASE-POLICY LIMIT S OTHER DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES 1 EXCLUSIONS ADDED BY ENDORSEMENT I SPECIAL PROVISIONS *Except 10 Day Notice of Cancellation for non payment of premium. The City of Huntington Beach, its agents, officers and employees are added as an additional insured. CERTIFICATE HOLDER CANCELLATION CITYOFH SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF,THE ISSUING INSURER WILL ENDEAVOR TO MAIL 3 0* DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,BUT FAILURE TO DO 50 SHALL City of Huntington Beach IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER,ITS AGENTS OR ATTN: Risk Management Division 2000 Main St. REPRESENTATIVES. Huntington Beach CA 92648 AUTHORI REPRE vE ACORD 25(2001108) QACORD CORPORATION 198B BUSINESS LIABILITY COVERAGE FORM F. OPTIONAL ADDITIONAL INSURED 3. Additional Insured-Grantor Of Franchise COVERAGES WHO IS AN INSURED under Section C. is If listed or shown as applicable in the Declarations, amended to include as an additional insured one or more of the following Optional Additional the person(s) or organization(s) shown in the Insured Coverages also apply. When any of these Declarations as an Additional Insured - Optional Additional Insured Coverages apply, Grantor Of Franchise, but only with respect to Paragraph 6. (Additional Insureds When Required their liability as grantor of franchise to you. by Written Contract, Written Agreement or Permit) 4. Additional Insured - Lessor Of Leased of Section C., Who Is An Insured, does not apply Equipment to -the person or organization shown in the a. WHO IS AN INSURED under Section C. is Declarations. These coverages are subject to the amended to include as an additional terms and conditions applicable to Business insured the person(s) or organization(s) Liability Coverage in this policy, except as shown in the Declarations as an Additional provided below: Insured — Lessor of Leased Equipment, 1. Additional Insured - Designated Person Or but only with respect to liability for"bodily Organization injury", "property damage" or "personal WHO IS AN INSURED under Section C. is and advertising injury" caused, in whole or amended to include as an additional insured in part, by your maintenance, operation or the person(s) or organization(s) shown in the use of equipment leased to you by such Declarations, but only with respect to liability person(s) or organization(s). for "bodily injury", "property damage" or b. With respect to the insurance afforded to "personal and advertising injury" caused, in these additional insureds, this insurance whole or in part, by your acts or omissions or does not apply to any 'occurrence" which the acts or omissions of those acting on your takes place after you cease to lease that behalf: equipment. a. In the performance of your ongoing 5. Additional Insured - Owners Or Other operations;or Interests From Whom Land Has Been b. in connection with your premises owned Leased by or rented to you. a. WHO IS AN INSURED under Section C.is 2. Additional Insured - Managers Or Lessors amended to include as an additional Of Premises insured the person(s) or organization(s) shown in the Declarations as an Additional a. WHO IS AN INSURED under Section C. is Insured—Owners Or Other Interests From amended to include as an additional insured Whom Land Has Been Leased, but only the person(s)or organization(s)shown in the with respect to liability arising out of the Declarations as an Additional insured - ownership, maintenance or use of that part Designated Person Or Organization;but only of the land leased to you and shown in the with respect to liability arising out of the Declarations. ownership,maintenance or use of that part of b. With respect to the insurance afforded to the premises teased to you and shown in the these additional insureds, the following Declarations. additional exclusions apply: b. With respect to the insurance afforded to these additional insureds, the following This insurance does not apply to: additional exclusions apply: (1) Any "occurrence" that takes place This insurance does not apply to: after you cease to tease that land;or (1) Any "occurrence" which takes place (2) Structural alterations, new after you cease to be a tenant in that construction or demolition operations premises; or performed by or on behalf of such person or organization. (2) Structural alterations, new construction or demolition operations 6. Additional Insured - State Or Political performed by or on behalf of such Subdivision—Permits person or organization. a. WHO IS AN INSURED under Section C.is amended to include as an additional insured the state or political subdivision shown in the Declarations as an Additional Page 18 of 24 �` Form SS 00 08 04 05 B' `NESS LIABILITY COVERAGE FORK{ Insured — State Or Political Subdivision - (e) Any failure to make such Permits, but only with respect to inspections, adjustments, tests or operations performed by you or on your servicing as the vendor has agreed behalf for which the state or political to make or normally undertakes to subdivision has issued a permit. make in the usual course of b. With respect to the insurance afforded to business, in connection with the these additional insureds, the following distribution or sale of the products; additional exclusions apply: (f) Demonstration, installation, This insurance does not apply to: servicing or repair operations, (1) "Bodily injury", "property damage" or except such operations performed at the vendor's premises in "personal and advertising injury' connection with the sate of the r� arising out of operations performed for n the state or municipality;or product; tn (g) Products which, after distribution (2) "Bodily injury" or "property damage" or sale by you, have been labeled included in the "product-completed or relabeled or used as a CD operations"hazard.14 container, part or ingredient of arty Q 7. Additional Insured—Vendors other thing or substance by or for m C4 a. WHO IS AN INSURED under Section C.is the vendor; or amended to include as an additional (h) "Bodily injury" or "property N insured the person(s) or organization(s) damage" arising out of the sole N (referred to below as vendor) shown in the negligence of the vendor for its Declarations as an Additional Insured - own acts or omissions or those of cv Vendor, but only with respect to "bodily its employees or anyone else * injury" or"property damage" arising out of acting on its behalf. However, this "your products" which are distributed or exclusion does not apply to: sold in the regular course of the vendor's business and only if this Coverage Part (i) The exceptions contained in provides coverage for "bodily injury" or Subparagraphs (d)or(f);or "property damage" included within the (ii) Such inspections, —� "products-completed operations hazard". adjustments,tests or servicing b. The insurance afforded to the vendor is as the vendor has agreed tomake or normally undertakes subject to the following additional exclusions: to make in the usual course of (1) This insurance does not apply to: business, in connection with (a) "Bodily injury" or "property the distribution or sale of the damage" for which the vendor is products. _ obligated to pay damages by (2) This insurance does not apply to any .�. reason of the assumption of insured person or organization from liability in a contract or agreement. whom you have acquired such This exclusion does not apply to products, or any ingredient, part or liability for damages that the container, entering into, vendor would have in the absence accompanying or containing such of the contract or agreement; products. (b) Any express warranty 8. Additional Insured--Controlling Interest unauthorized by you; WHO IS AN INSURED under Section C. is -�_ (c) Any physical or chemical change amended to include as an additional insured _ in the product made intentionally the person(s) or organization(s) shown in the by the vendor; Declarations as an Additional Insured — (d) Repackaging, unless unpacked Controlling Interest, but only with respect to solely for the purpose of inspection, their liability arising out of: demonstration, testing, or the a. Their financial control of you; or substitution of parts under b. Premises they own, maintain or control instructions from the manufacturer, while you lease or occupy these premises. and then repackaged in the original container, Form SS 00 Oa 04 05 Page 19 of 24 BUSINESS LIABILITY COVERAGE FORM This insurance does not apply to structural The limits of insurance that apply to additional alterations, new construction and demolition insureds are described in Section D. — Limits Of operations performed by or for that person or Insurance. organization. How this insurance applies when other insurance 9. Additional Insured — Owners, Lessees Or is available to an additional insured is described in Contractors — Scheduled Person Or the Other Insurance Condifion in Section E. — Organization Liability And Medical Expenses General a. WHO IS AN INSURED under Section C.is Conditions. amended to include as an additional G. LIABILITY AND MEDICAL EXPENSES insured the person(s) or organization(s) DEFINITIONS shown in the Declarations as an Additional Insured—Owner, Lessees Or Contractors, 1• "Advertisement" means the widespread public but only with respect to liability for "bodily dissemination of information or images that injury", "property damage" or "personal has the purpose of inducing the sale of goods, and advertising injury" caused, in whole or products or services through: in part, by your acts or omissions or the a. (1) Radio; acts or omissions of those acting on your (2) Television; behalf. (3) Billboard; (1) In the performance of your ongoing ( operations for the additional Magazine; insured(s); or (5) Newspaper, (2) in connection with "your work" b• The Internet, but only that part of a web performed for that additional insured site that is about goods, products or and included within the "products- services for the purposes of inducing the completed operations hazard", but sale of goods, products or services;or only if this Coverage Part provides c. Any other publication that is given coverage for "bodily injury" or widespread public distribution. "property damage" included within the However,"advertisement"does not include: "products-completed operations hazard". a. The design, printed material, information or images contained in, on or upon the b. With respect to the insurance afforded to packaging or labeling of any goods or these additional insureds, this insurance products;or does not apply to "bodily injury", "property b. An interactive conversation between or damage" or "personal an advertising injury" arising out of the rendering of, or among persons through a computer network. the failure to render, any professional 2. "Advertising idea" means any idea for an architectural, engineering or surveying "advertisement"_ services, including: 3. "Asbestos hazard" means an exposure or (1) The preparing, approving, or failure to threat of exposure to the actual or alleged prepare or approve, maps, shop properties of asbestos and includes the mere drawings, opinions, reports, surveys, Presence of asbestos in any form. field orders,change orders, designs or 4. "Auto" means a land motor vehicle, trailer or drawings and specifications;or semi-trailer designed for travel on public (2) Supervisory, inspection, architectural roads, including any attached machinery or or engineering activities. equipment. But "auto" does not include 10. Additional Insured — Co-Owner Of Insured "mobile equipment". Premises 5- "Bodily injury"means physical: WHO IS AN INSURED under Section C_ is a_ Injury: amended to include as an additional insured b. Sickness; or the person(s) or Organization(s) shown in the c. Disease Declarations as an Additional insured — Go- Owner Of Insured Premises, but only with sustained by a person and, if arising out of the respect to their liability as co-owner of the above, mental anguish or death at any time. premises shown in the Declarations. 6. "Coverage territory"means: Page 20 of 24 Form SS 00 08 04 05 It UY POLICY NUMBER: 72 SBA LZ1883 lia, THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - PERSON-ORGANIZATION THE CITY OF HUNTINGTON BEACH, ITS AGENTS, OFFICERS AND EMPLOYEES RISK MANAGEMENT 2000 MAIN STREET HUNTINGTON BEACH CA 92646 CALIFORNIA STATE LANDS COMMISSION 100 HOWE AVE STE 100-SOUTH SACRAMENTO CA 95825-8202 REF: PRC6616 KITCHEL CONTRACTORS 1707 EAST HIGHLAND STE 200 PHOENIX AZ 85016-4659 PROJECT. 4484-HOKULI'S WORKING ITEMS Form IH 12 00 11 85 T SEQ.NO. 001 Printed in U.S.A. Page 001 Process Date: 07/26/07 Expiration Date: 09/01/07 UW COPY POLICY NUMBER: 72 SBA LZ1883 All, THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - PERSON-ORGANIZATION THE CITY OF HUNTINGTON BEACH, ITS AGENTS, OFFICERS AND EMPLOYEES RISK MANAGEMENT 2000 MAIN STREET HUNTINGTON BEACH CA 92648 CALIFORNIA STATE LANDS COMMISSION 100 HOWE AVE STE 100-SOUTH SACRAMENTO CA 95825-8202 REF: PRC6616 KITCHEL CONTRACTORS 1707 EAST HIGHLAND STE 200 PHOENIX AZ B5016-4659 PROJECT. 4484-HOKULI'S WORKING ITEMS Form Ill 12 00 1185 T SEQ.NO. 001 Printed in U.S.A. Page 001 Process Date: 07/26/07 Expiration Date: 09/01/08 UW COPY r CERTHOLDER COPY SG STATE P.O. BOX 420807, SAN FRANCISCO,CA 94142-0807 COMPENSATION INSURANCE CERTIFICATE OF WORKERS' COMPENSATION INSURANCE ISSUE DATE: 04-01-2008 GROUP: POLICY NUMBER: 3001038-2008 CERTIFICATE ID: 2 CERTIFICATE EXPIRES: 04-01-2009 04-01-2008/04-01-2009 CITY OF HUNTINGTON BEACH SG RISK MANAGER P.O. BOX 711 HUNTINGTON BEACH, CA 92648 This is to certify that we have issued a valid Workers' Compensation insurance policy in a form approved by the California Insurance Commissioner to the employer named below for the policy period indicated. This policy is not subject to cancellation by the Fund except upon 10 days advance written notice to the employer. We will also give you 10 days advance notice should this policy be cancelled prior to its normal expiration. This certificate of insurance is not an insurance policy and does not amend, extend or alter the coverage afforded by the policy listed herein. Notwithstanding any requirement, term or condition of any contract or other document with respect to which this certificate of insurance may be issued or to which it may pertain, the insurance afforded by the policy described herein is subject to all the terms, exclusions, and conditions, of such policy. tTH ORIZED REPRESENTATI PRESIDENT EMPLOYER'S LIABILITY LIMIT INCLUDING DEFENSE COSTS: $1,000,000 PER OCCURRENCE. AE VED A To FORM r- E- IFE McGRATH,Ci . orney 131OF EMPLOYER SURF CITY STORE SG PO BOX 899 HUNTINGTON BEACH CA 92648 M0408 (REV.2-05) PRINTED 03-18-2008 RCA ROUTING SHEET INITIATING DEPARTMENT: Administration SUBJECT: Merchandise and License agreement with Surf City Store for Centennial Celebration COUNCIL MEETING DATE: June 2, 2008 RCA ATTACHMENTS STATUS Ordinance (w/exhibits & legislative draft if applicable) Attached Not Applicable Resolution (w/exhibits & legislative draft if applicable) Attached Not Applicable Tract Map, Location Map and/or other Exhibits Attached Not Applicable Contract/Agreement (w/exhibits if applicable) Attached (Signed in full by the City Attorney Not Applicable ❑ Subleases, Third Party Agreements, etc, Attached El (Approved as to form by City Attome Not Applicable Certificates of Insurance (Approved by the City Attorney) Attached Not Applicable Fiscal Impact Statement (Unbudgeted, over$5,000) Attached El Not Applicable Bonds (If applicable) Attached Not Applicable Staff Report (If applicable) Attached Not Applicable Commission, Board or Committee Report (If applicable) Attached Not Applicable Findings/Conditions for Approval and/or Denial Attached Not Applicable ENpl AMAT10H FOR U033WO ATTACHMENTS REVIEWED RETURNED FOR ARDED Administrative Staff Deputy City Administrator(initial) ( ( ) City Administrator (Initial) City Clerk EXPLANATION FOR RETURN OF ITEM: • • . • RCA Author: Community Relations Officer Laurie Payne City ®f Huntington Beach 4 2000 Main Street • Huntington Beach, CA 92648 OFFICE OF THE CITY CLERK JOAN L. FLYNN CITY CLERK June 4, 2008 Tina J. Viray 19502 Ranch Lane, No. 103 Huntington Beach, CA 92648 Dear Ms. Viray: Enclosed for your records is a copy of the License Agreement between Viray and Wescott, dba The Surf City Store, and the City of Huntington Beach for use of the Centennial Celebration Trademark. Sincerely, 1?d�4j Joan L. Flynn, CIVIC City Clerk JF:pe Enclosure: Agreement G:followup:agrmtitr Sister Cities: Anjo, Japan • Waitakere, New Zealand (Telephone: 714-536-5227) Ne Administration ,o To: Honorable Mayor and City Council Members Via: Paul Emery. Interim City Administrator From: Laurie Payne, Community Relations Office"" Date: June 2, 2008 Subject: Agenda Item E7 The "Merchandise and License Agreement with Surf City Store for Centennial Celebration" has a term of agreement listed as June 1, 2008 to December 31, 2010, which is two and one-half years. Section 3 of the agreement indicates it is a five-year term for the agreement which is incorrect. If approved at the June 2, 2008 City Council meeting, the agreement will be changed to reflect the two and one-half term of agreement and will be signed by all parties. Cc Joan Flynn, City Clerk Jennifer McGrath, City Attorney 2. CITY STAFF ASSISTANCE City shall assign a staff coordinator to work directly with Licensee in the perfo. ante of this Agreement. 3. TERM OF AGREEMENT The term of this Agreement shall be for a five-year period com ending on June 1, 2008 and ending on December 31, 1010, provided, however, that either ty or Licensee may terminate the Agreement at any time without cause with ninety (90))fays prior written notice to the other party. With the mutual desire of both City and Licensee, this Agreement may be extended beyond the initial term for an additional separate to of five (5) years under the terms and conditions herein stated, beginning January 1, 201 . The five (5) year renewal shall be separate and contingent on the prior writte/appro 1 and acceptance by City, with the extension of the Agreement to be confirmed inne hundred twenty (120) days prior to the termination of then operative contract peer City or Licensee may at such time decline to accept a renewal of the Agreemey reason whatsoever and such declination shall render the renewal option null aThe City Administrator, or his designee, is authorized to approve such extensions or renewals of the contract as contemplated in this section. 4. COMPENSATION In order to provide flexibility to he City, products may be obtained in either of two manners: A. A purchase order shall be issued to Licensee by the City, whereupon products will be produced and invoice submitted by the Licensee to the City for payment. Payment for the sale of said p oducts to the public will be made directly to the City from the retail source. B. Li ensee shall purchase products directly for sale through the Surf City Store with a twenty-fiv7percent (25%) fee payable to the City as compensation for the use of the Trademark. S 'd payment shall be based on monthly gross revenues collected by Licensee on all me handise bearing the Trademark sold by Licensee including wholesale and retail items. "G ss revenues" shall not include sales taxes, but shall include all sources of retail and whol sale sales. C. If the payment required in Section 4.13 is not received by the City within twnty (20) calendar days after the end of the month for which the payment is due, or the end the next business day if the twentieth day falls on a weekend or holiday, Licensee shall yay the following late charge and penalty: (1) a late charge of ten percent (10%) shall be app�'ed to any outstanding balance after any payment hereunder is due but unpaid; and (2) one and one half percent (1-1/2%) penalty per month shall be added for each month the payment s due but unpaid. With respect to any other payments required by Licensee, a one and one 07-1 100.001.001/22234 2