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HomeMy WebLinkAboutCC AG PKT 2011-07-25 #DAGENDA STAFF REPORT DATE: July 25, 2011 TO: Honorable Mayor and City Council THRU: Jill R. Ingram, City Manager FROM: Sean P. Crumby, Assistant City Manager /Public Works SUBJECT: AMEND AND EXTEND THE TERM OF AGREEMENT WITH DCOR, LLC REGARDING THE USE OF THE SEAL BEACH PIER SUMMARY OF REQUEST: It is requested that the City Council adopt Resolution No. 6166 amending and extending the existing agreement with DCOR for use of the Seal Beach Pier until July 31, 2016 and authorize the City Manager to execute the agreement. BACKGROUND AND ANALYSIS: On July 1, 2006 the City and DCOR entered into an agreement granting DCOR landing rights on the Seal Bach Pier and other privileges subject to terms and conditions of the agreement. The initial term of this agreement was (5) years, commencing on August 1, 2006 and continuing until July 31, 2011. The proposed agreement reflects the same terms and conditions of the existing agreement and shall be extended for a period of five (5) years, commencing on August 1, 2011 and continuing until July 31, 2016. The current monthly fee is $8,253 (increased on 8/1/10). The agreement extension will begin with a 3% increase to $8,500 and then increased 3% annually. ENVIRONMENTAL IMPACT: This project has complied with all requirements of the California Environmental Quality Act (CEQA). FINANCIAL IMPACT: The monthly fee for the first year of the extended term commencing on August 1, 2011 shall be $8,500 and in subsequent years shall be increased by 3% on August 1 st of each subsequent year of this Agreement. Agenda Item Q Page 2 RECOMMENDATION: It is recommended that the City Council and extending the existing contract with Manager to execute the agreement. adopt Resolution No. 6166 amending DCOR, LLC and authorize the City SUBMITTED BY: Sean P. Crumby, Assistant City Manager /Pu is Works Attachments: NOTED AND APPROVED: 4 4JR L Ingram, C Manager A. Resolution No. 6166 B. Agreement C. Previous Agreement with amendment (executed 8/1/06) RESOLUTION NUMBER 6166 A RESOLUTION OF THE SEAL BEACH CITY COUNCIL APPROVING AMENDMENT NO. TWO WITH DCOR, LLC AMENDING AND EXTENDING THE TERM OF THE AGREEMENT FOR USE OF THE SEAL BEACH PIER WHEREAS, this Amendment ( "Amendment No, 2 ") is entered into by and between the City of Seal Beach, a California charter city ( "City"), and DCOR, LLC, a Texas limited liability company ( "Company') this 25th day of July 2011. WHEREAS, on July 1, 2006, City and Company entered into a five (5) agreement ("Agreement") granting to Company certain landing rights on the Seal Beach Pier ( "Pier ") and other privileges subject to the terms and conditions of the Agreement: WHEREAS, the parties wish to amend and extend the Agreement, as amended. NOW, THEREFORE, THE SEAL BEACH CITY COUNCIL DOES HEREBY RESOLVE: Section 1. The City Council hereby approves the same terms and conditions of the existing agreement and extend for a period of five (5) years, commencing on August 1, 2011 and continuing until July 31, 2016. The monthly fee payments to the City for the first year to be $8,500 and be adjusted 3% annually. Section 2. The City Council hereby authorizes the City Manager to execute the Agreement. PASSED, APPROVED and ADOPTED by the Seal Beach City Council at a regular meeting held on the 25th day of July , 2011 by the following vote: AYES: Council Members NOES: Council Members ABSENT: Council Members ABSTAIN: Council Members Mayor ATTEST: City Clerk STATE OF CALIFORNIA } COUNTY OF ORANGE } SS CITY OF SEAL BEACH } I, Linda Devine, City Clerk of the City of Seal Beach, do hereby certify that the foregoing resolution is the original copy of Resolution Number 6166 on file in the office of the City Clerk, passed, approved, and adopted by the Seal Beach City Council at a regular meeting held on the 25th day of July , 2011. City Clerk DCOR, LLC AGREEMENT - AMENDMENT NO. 2 AMENDING AND EXTENDING THE TERM OF THE AGREEMENT FOR USE OF THE SEAL BEACH PIER Between City of Seal Beach 211 - 8th Street Seal Beach, CA 90740 IN DCOR, LLC 290 Maple Court Suite 290 Ventura, CA 93003 (805) 535 -2000 THIS AMENDMENT ( "Amendment No. 2 ") is entered into by and between the City of Seal Beach, a California charter city ( "City "), and DCOR, LLC, a Texas limited liability company ( "Company ") this 25 day of July 2011 WHEREAS, on July 1, 2006, City and Company entered into an agreement ( "Agreement ") granting to Company certain landing rights on the Seal Beach Pier ( "Pier ") and other privileges subject to the terms and conditions of the Agreement; WHEREAS, on April 21, 2008, the parties amended the Agreement by executing Amendment Number One to the Agreement; and WHEREAS, the parties wish to amend and extend the Agreement, as amended. NOW THEREFORE, City and Company agree as follows: 1. Section 3 of the Agreement is hereby amended to read as follows: "Section 3. Term 3.1 The initial term of this Agreement shall be five (5) years, commencing on August 1, 2006 and continuing until July 31, 2011, unless sooner terminated as hereinafter provided. 3.2 The term of this Agreement shall be extended for a period of five (5) years, commencing on August 1, 2011 and continuing until July 31, 2016, unless sooner terminated as hereinafter provided." 2. Subsections 4.1 and 4.2 of Section 4 (Fees and Charges) of the Agreement are hereby amended to read as follows: "4.1. Monthly Fee (a) Company shall pay to City a monthly fee ( "Monthly Fee "), without deduction, setoff, prior notice, or demand, subject to adjustment as provided in Section 4.2, for the rights granted under this Agreement. The Monthly Fee shall be paid in advance on the first day of each month, commencing on the date the term commences and continuing during the term. All Monthly Fees shall be paid to City at the address to which notices to City are given. (b) The Monthly Fee for the first year of the extended term commencing on August 1, 2011 shall be $8,500, and in subsequent years shall be adjusted as provided in Section 4.2. 4.2. Annual Increase to Monthly Fee Commencing on August 1, 2012, the Monthly Fee described in Section 4.1 shall be increased by three (3 %) percent on August 1 of each subsequent year of this Agreement ( "Adjustment Date ")." 2of3 57296- 0001 \]374418v1.doc 3. Except as expressly modified, altered or amended by this Amendment No. 2, all other terms, conditions, and covenants of the Agreement, as previously amended by Amendment No. 1, shall remain in full force and effect. IN WITNESS WHEREOF, the Parties hereto, through their respective authorized representatives have executed this Agreement as of the date and year first above written. CITY OF SEAL BEACH In Attest: Jill R. Ingram, City Manager Linda Devine, City Clerk Approved as to Form: By g Quin / nBarroW, City Attorney DCOR, LLC, a Texas limited liability company lL✓ e PXsident' Date: July 13, 2011 3 of 3 S7296- 0001 \1374418v1.doc DCOR. LLC. Previous Agreement and Amendment One AGREEMENT This AGREEMENT is made and entered as of July 1, 2006, by and between the City of Seal Beach, a charter city and municipal corporation ( "City"), and DCOR, LLC, a Texas limited liability company. DCOR is hereinafter referred to as "Company ". RECITALS A. City is the owner of the Seal Beach Fishing Pier (the "Pier"), subject to the terms of a Tidelands Lease ( "the Tidelands Lease "), dated June 22, 1967, recorded August 17, 1967 at Book 8345, Page 376, of Official Records of Orange County, California, and a Lease and Operating Agreement (the "Operating Agreement "), dated December 12, 1983, recorded February 14, 1984, as Document No. 84- 063426 of said Official Records. B. Company, as successor in interest to Nuevo Energy Company ( "Nuevo "), has heretofore been granted landing rights on the Pier and vehicle parking privileges in the adjacent City parking facilities pursuant to an Agreement dated September 1, 2001, by and between City and Nuevo, as subsequently amended. C. On record is a preceding agreement dated August 11, 1986, by and between the City and Union Oil Company of California ( "Union ") that was subsequently succeeded in interest by Nuevo. D. The parties now desire to enter into this new Agreement granting to Company landing rights on the Pier and vehicle parking privileges in the adjacent City parking facilities on the terms and conditions of this Agreement, superseding and replacing all prior agreements and understanding between the parties regarding landing rights on the Pier and vehicle parking privileges in the adjacent City parking facilities. NOW, THEREFORE, in consideration of the mutual covenants herein contained, City and Company hereby agree as follows: Section 1. Definitions 1.01. General Descriptions As used in this Agreement, the following words and phrases shall have the following meanings: (a) Authorized Representative — any officer, agent, employee, or independent contractor retained or employed by either Party, acting within authority given by that Party. (b) Hold Harmless — to defend and indemnify from all liabilities, losses, penalties, damages, costs, expenses (including, without limitation, attorneys' fees), causes of action, claims, or judgments arising out of or related to any damage to any person or property. (c) Maintenance — repairs, replacement, repainting, cleaning and preventative maintenance. 1.02 Other Definitions The following additional terms are defined in the following sections of this Agreement: (a) Adjustment Date Section 4.02 (b) Beginning Index Section 4.02 (c) Boat Landing Section 2.01 (d) Extension Index Section 4.02 (e) Index Section 4.02 (f) Monthly Fee Section 4.01 (g) Operating Agreement Recital A (h) Pier Recital A (i) Tidelands Lease Recital A (j) Nuevo Recital B (k) Union Recital C Section 2. Rights Granted 2.01 Use of Landing Platforms. Company and its Authorized Representatives shall have the right to use the boat landing located on the Pier, on a non - exclusive basis, for the purpose of docking boats including, without limitation, embarking and disembarking Authorized Representatives of Company and loading and unloading supplies and small items of equipment. 2.02 Parking Licenses Company shall be entitled to the non - exclusive use of twenty -two (22) undesignated parking spaces in City's parking facility at the base of the Pier. City shall have the right to control parking by Company's Authorized Representatives by any reasonable means, and Company shall cause its Authorized Representatives to comply with the procedures and regulations established by City from time to time to control such parking. If the Company desires to use more than twenty - two (22) parking spaces at any one time, and additional spaces are available, Company and its Authorized Representatives may use additional spaces on the same terms and conditions (including without limitation payment of the same fees) that such spaces are made available to the general public. Section 3. Term The term of this Agreement shall be five (5) years, commencing as of August 1, 2006 and continuing until July 31, 2011, unless sooner terminated as hereinafter provided. Section 4. Fees and Charges 4.01. Monthly Fee Company shall pay to city as the monthly fee ( "Monthly Fee ") for the rights granted under this Agreement, without deduction, setoff, prior notice, or demand, the sum of $7600.00 per month, subject to adjustment as provided in Section 4.02. The Monthly Fee shall be paid in advance on the first day of each month, commencing on the date the term commences and continuing during the term. All Monthly Fees shall be paid to City at the address to which notices to City are given. 4.02. Annual Adjustment to Monthly Fee. The Monthly Fee described in Section 4.01 shall be adjusted on August 1 of each year of this Agreement (Adjustment Date ") as follows: 2 The base for computing the adjustment on each Adjustment Date is the Consumer Price Index for All Urban Consumers for the Los Angeles- Anaheim - Riverside Metropolitan Area published by the United States Department of Labor, Bureau of Labor Statistics ( "Index ") that is published for the fifteenth month preceding that Adjustment Date ( "Extension Index "). If the Index published for the third month preceding that Adjustment Date ( "Extension Index ") is less than or equal to the beginning Index, the Monthly Fee shall not be adjusted and shall continue at the rate in effect immediately prior to that Adjustment Date. If the Extension Index is more than the Beginning Index, the Monthly Fee shall be adjusted to an amount determined by multiplying the Monthly Fee in effect immediately prior to that Adjustment Date by a fraction, the numerator of which is the Extension Index and the denominator of which is the Beginning Index. If the Index is changed so that the base year differs from that used for the Beginning Index, the Index shall be converted in accordance with the conversion factor published by the United States Department of Labor, Bureau of Labor Statistics. If the Index is discontinued or revised during the term, such other government index or computation with which it is replaced shall be used in order to obtain substantially the same result as would be obtained if the Index had not been discontinued or revised. 4.03. Taxes and Assessments Company shall pay or cause to be paid, before delinquency, any and all taxes and assessments levied and assessed against its interest under this Agreement. Company recognizes and understands that this Agreement may create a possessory interest subject to taxes levied upon such interest. 4.04. Interest on Unpaid Amounts Any amounts not paid when due shall bear interest at the rate of 12% per annum from the date due until paid. Section 5. Limitations on Use Notwithstanding anything in this Agreement to the contrary, Company shall comply with all of the following in the exercise of the rights granted under this Agreement: 5.01. The Company shall not dock boats that exceed ninety -five (95) feet in length, measured from bow to stern at the water line. 5.02. The Company shall not operate any vehicle on the Pier unless the Company has obtained from the City a pier pass permitting that vehicle on the Pier. 5.03. The Company shall not bring onto the Pier any vehicle or equipment with a gross weight more than one ton, unless the Company has the specific prior written consent of the City Engineer, which consent may be withheld or denied in the sole and absolute discretion of the City Engineer. 5.04. The Company shall not use Boat Landing for the purpose of operating sports fishing boats or barges or for any commercial purposes other than in connection with the Company's oil and gas business. 5.05. The Company and its Authorized Representatives shall strictly comply with all rules, regulations and instructions of the City and its Authorized Representatives regarding the safe and orderly use of the Pier, the landing facilities and the parking facilities. 3 Section 6. Maintenance The Company at its sole cost and expense shall maintain in good condition and repair of Boat Landing and all equipment and facilities thereon, except for damage arising from or in connection with the use thereof by the City or by any person or entity (other than the Company and its Authorized Representatives) authorized by the City to use Boat Landing. The Company shall give the City Engineer as much prior notice as possible before commencing any repair work, but in no event less than 48 hours' notice without the City's consent to shorter notice in the specific case. All maintenance shall be completed promptly and to the satisfaction of the City Engineer. The Company shall document all maintenance activities to Boat Landing, and shall submit copies of all documentation to the City upon demand, and, in the absence of a demand, not less frequently than annually. If the Company fails to perform any necessary maintenance within ten (10) days after demand by the City (or, in an emergency, such shorter period as may be determined by the City Engineer), the City may (but is not required to) perform such maintenance at the Company's expense. The Company shall reimburse the City for its costs incurred within ten (10) days after presentation of an invoice. Section 7. No Warranty by City City makes absolutely no warranty as to the fitness of the Pier for the purposes intended by Company or for any purpose whatsoever. Section 8. Exculpation of City City shall not be liable to Company for any damage to Company or Company's property from any cause other than the gross negligence or intentionally wrongful acts of City or its Authorized Representatives. Company waives all claims against City for damage to Person or property arising for any reason other than the gross negligence or intentionally wrongful acts of City or its Authorized Representatives. Section 9. Indemnity. Company agrees to indemnify, defend and hold harmless City from any and all claims, actions, causes of action, liability, damages, losses and costs which may be made against or suffered by City arising out of Company's operations and activities under this Agreement, except where such claims, actions, causes of action, liability, damages, losses and costs are caused by the sole negligence or willful misconduct of City or its Authorized Representatives. Section 10. Insurance Requirements 10.1. Types of Required Coverages Asa condition precedent to the effectiveness of this Agreement, the Company shall, without limiting the indemnity provisions of this Agreement, procure and maintain in full force and effect during the term of this Agreement, the following policies of insurance: (a) Commercial General Liability Commercial General Liability Insurance with minimum limits or $1,000,000 per occurrence, and if written with an annual aggregate, an aggregate limit of not less than $2,000,000. Such insurance shall include coverage for Contractual Liability as well as sudden and accidental pollution, both onshore and offshore. 11 (b) Excess Liability Excess Liability Insurance with a minimum limit of $3,000,000 per occurrence, over and above the primary limits indicated in (a) above. Such insurance shall provide for Contractual Liability and pollution liability for both onshore and offshore occurrences. (c) Automobile Liability Insurance Automobile Liability Insurance covering "Any Auto" (Symbol 1) with limits of $2,000,000 each accident. (d) Ocean Marine Liability Ocean Marine Liability, including Protection and Indemnity and Pollution Liability with minimum limits of $3,000,000 per occurrence; provided, however, that if Company does not own or operate vessels that use the landing rights granted under this Agreement, and all of Company's Subcontractors who own or operate such vessels do maintain such coverage (including without limitation the endorsements required by Section 10.2(a)), Company shall be excused from its obligations under this paragraph (d) upon providing proof of the Subcontractors' insurance. (e) Workers' Compensation Workers' Compensation Insurance, as required by the State of California and Employer's Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease, and any required coverage under the U.S. Longshoremen's and Harbor Workers' Act (U.S.L &H), and /or Jones Act for employees performing services covered by said Act(s). 10.2. Endorsements (a) The policies of insurance required by subsections 10.1(a), (b), (c) and (d) shall be endorsed as follows: (1) Additional Insured The City of Seal Beach and its officers, agents and employees shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement. (2) Primary Insurance This insurance shall be primary and any other insurance, deductible, self- insurance or self- insured retention maintained by the City shall not contribute with this primary insurance. (3) Severability In the event of one insured, whether named or additional, incurs liability to any other of the insureds, whether named or additional, the policy shall cover the insured against whom claim is or may be made in the same manner as if separate policies had been issued to each insured, except that the limits of insurance shall not be increased thereby. (4) Cancellation The policy shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City (except that the thirty day period may be reduced to ten days for nonpayment of premium.) (5) Duties Any failure by the named insured to comply with reporting provisions of the policy or breaches or violations of warranties shall affect coverage provided by the City. 5 (b) The policy of insurance required by subjection 10.1(e) shall be endorsed as follows: (1) Waiver of Subrogation A waiver of subrogation will state that the insurer waives all rights of subrogation against City. (2) Cancellation The policy or policies shall not be canceled or the overage reduced until a thirty (30) day written notice of cancellation has been served upon the City (except that the thirty day period may be reduced to ten days for nonpayment of premium.) 10.3. Evidence of Insurance The Company shall deliver either certified copies of the required policies or Certificates of Insurance, as approved by the City, evidencing the required coverage and endorsements. At least fifteen (15) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Company shall, within then (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. 10.4. Failure to Maintain Coverage Company shall suspend and cease all operations hereunder during any period of time as the required insurance coverage is not in effect or evidence of insurance has not been furnished to the City. 10.5. Acceptability of Insurers Each policy required by this Agreement shall be issued by a company or companies with a current A.M. Best's rating of no less than A:VII and authorized to do business in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law. 10.6. Insurance for Authorized Representatives Company's Authorized Representatives shall be included as additional insureds under the Company's policies, or the Company shall be responsible for causing Subcontractors to purchase the appropriate insurance in compliance with the terms of this Agreement. Section 11. Damage to Pier If the Pier, or any part thereof that the Company is not responsible for maintaining, is destroyed by fire or otherwise damaged so as to be unusable, and the damage cannot be repaired within sixty (60) days after the date of the casualty, this Agreement may, at the option of either the City or Company, be immediately terminated on written notice. If the Pier is closed due to such damage or the repair of such damage, the portion of the Monthly Fee allocable to the landing rights shall be abated for the days that the Pier is closed, and the portion of the Monthly Fee allocable to the parking facilities shall be abated for the days that the Pier is closed to the extent that the Company does not use the parking spaces. Section 12. Termination by City This Agreement may be terminated by City in the event of any default by Company in the payment of compensation to City, as specified hereunder, when such default continues for a period of ten (10) days after written notice thereof, or in the event of any other default by Company in the 0 performance of its obligations hereunder, when such default continues for a period of thirty (30) days after written notice thereof. Section 13. Nonassi nabilitX Company may not assign this Agreement without first obtaining the written consent of City, which consent may not be unreasonably withheld; provided, however, that Company may assign this Agreement to any subsidiary, affiliate or party or entity acquiring fifty percent (50 %) or more of Company's assets within the State of California. Section 14. Subject to Tidelands Lease and Operating Agreement This Agreement is subject and subordinate to the provisions of the Tidelands Lease and the Operating Agreement. Company shall not take any action which would cause City to be in violation of any Provisions of the Tidelands Lease or the Operating Agreement. If either the Tidelands Lease or the Operating Agreement terminates and this Agreement terminates as a result of such termination, the parties shall be released from all liabilities and obligations under this Agreement. Section 15. Notices Any notice, demand, request, consent, approval or communication that either party desires or is required to give to the other party shall be in writing and shall be deemed given as of the time of hand delivery to the addresses set forth below, or three (3) days after deposit into the United States mail, postage prepaid, by registered or certified mail, return receipt requested. Unless notice of a different address has been given in accordance with this section, all such notices shall be addressed as follows: If to City, to: City of Seal Beach 211 Eighth Street Seal Beach, California 90740 If to Company, to: DCOR, LLC 290 Maple Court, Suite 290 Ventura, California 93003 Section 16. Miscellaneous 16.01. Governing Law This Agreement shall be construed and interpreted in accordance with the laws of the State of California. 16.02. Waiver The waiver by City or Company of any breach by the other party of any term, covenant, or condition herein contained shall not be deemed to be a waiver of such term, covenant, or condition herein contained. The subsequent acceptance of fees hereunder by City shall not be deemed to be a waiver of any preceding breach by Company of any term, covenant, or condition of this Agreement, other than the failure to pay the particular fees so accepted, regardless of City's knowledge of such preceding breach at the time of acceptance of such fees. 16.03. Time of Essence Time is of the essence with respect to the performance of every provision of this Agreement in which time of performance is a factor. 7 16.04. Gender: Number The neuter gender includes the feminine and masculine, the masculine includes the feminine and neuter, and the feminine includes the neuter, and each includes corporation, partnership, or other legal entity whenever the context so requires. The singular number includes the plural whenever the context so requires. 16.05. Entire Agreement; Modification This Agreement contains the entire agreement between the parties regarding the subject matter hereof. No verbal agreement or implied covenant shall be held to vary the provisions hereof, any statements, law or custom to the contrary notwithstanding. No promise, representation, warranty or covenant not included in this Agreement has been or is relied on by either party. Each party has relied on its own inspection of the Pier and examination of this Agreement, the counsel of its own advisors, and the warranties, representations, and covenants in this Agreement itself. The failure or refusal of either party to inspect the Pier, to read this Agreement or other documents, or to obtain legal or other advice relevant to this transaction constitutes a waiver of any objection, contention, or claim that might have been based on such reading, inspection or advice. 16.06. Joint and Several Obligations "Party" shall mean City or Company; and if more than one person is City or Company, the obligations imposed on that party shall be joint and several. 16.07. Severability The invalidity or illegality of any provisions shall not affect the remainder of this Agreement and all remaining provisions shall, notwithstanding any such invalidity or illegality, continue in full force or effect. 16.08. Successors Subject to the provisions of this Agreement on assignment, each and all of the covenants and conditions of this Agreement shall be binding on and shall inure to the benefit of the successors and assigns of the respective parties. IN WITNESS WHEROF, the undersigned have executed this Agreement as of the date first written above. DCOR, LLC BY: ho zed Representative CITY OF SEAL BEACH BY: Uh ) LA YZnw Mayor ATTEST: BY: .z�� �, C�� City Clerk 0 AMENDMENT NUMBER ONE TO AGREEMENT BETWEEN THE CITY OF SEAL BEACH AND DCOR, LLC REGARDING RIGHTS AND RESPONSIBILITIES ASSOCIATED WITH DCOR'S USE OF THE SEAL BEACH PIER THIS AMENDMENT ( "Amendment No. 1 ") is entered into by and between the City of Seal Beach, a California charter city ( "City"), and DCOR, LLC, a Texas limited liability company ( "Company") this 21 st day of April 2008. WHEREAS, on July 1, 2006, City and Company entered into an agreement ( "Agreement ") granting to Company certain landing rights on the Seal Beach Pier ( "Pier ") and other privileges subject to the terms and conditions of the Agreement; WHEREAS, the Agreement requires Company to maintain insurance for and indemnify City against damages, losses and costs arising out of Company's operations and activities under the Agreement; WHEREAS, on February 24, 2008, the Pier was damaged during a storm (the "Incident "); WHEREAS, City has suffered damages and losses and incurred costs due to the Incident; WHEREAS, On February 26, 2008, professional engineering firm Moffatt & Nichol ( "M &N ") inspected the Pier and issued two reports dated February 27, 2008 and March 6, 2008, recommending repair of the Pier; WHEREAS, City has paid M &N $11,233.26 for the cost of its inspection and reports; WHEREAS, City has incurred the cost of $12,000.00 for removal of wedged and floating debris ( "Clean-up Costs "); WHEREAS, by separate agreement dated April - -, 2008 (the "Emergency Repair Agreement "), City has engaged the services of John S. Meek Company, Inc. ( "Contractor ") to repair the Pier; WHEREAS, a disagreement exists between Company and City with respect to whether Company is contractually responsible for repairing the Pier for the damage sustained on February 24, 2008. Company claims the Pier was damaged by an event beyond Company's control and that it has no contractual responsibility for such events. City claims that Company has contractual responsibility for the damage; and WHEREAS, Company desires to amicably settle this matter and has agreed to pay the costs associated with the Incident, as previously evidenced by various electronic -lof3- mails, including, but not limited to, and electronic transmission dated March 18, 2008, subject to certain terms. NOW THEREFORE, City and Company agree as follows: 1. Section 4 of the Agreement is hereby amended by adding thereto a new Subsection 4.5 to read as follows: "4.05 Costs Associated with February 24 2008 Incident Company shall reimburse City for all costs incurred by City in connection with the Incident; including: Clean-up Costs; the cost of M &N's inspection and reports; and all repair work performed by Contractor pursuant to the separate Emergency Repair Agreement. Attached hereto as Exhibit 1 to this Amendment and hereby incorporated by this reference is an itemized list of the estimated costs. Company shall pay City within 30 days of receipt of an invoice submitted by City to the address listed in Section 15 of the Agreement." 2. Subsection 2.01 of the Agreement is hereby amended to read as follows: "2.01 Use of Landing Platforms Company and its Authorized Representatives shall have the right to use the boat landing ( "Landing ") located on the Pier, on a non - exclusive basis, for the purpose of docking boats including, without limitation, embarking and disembarking Authorized Representatives of Company and loading and unloading supplies and small items of equipment. Company shall retain the right to consent to the use of the Landing by any third party authorized by the City to use the Landing. Such consent shall not be required for use of the Landing by City, its officials, employees, or volunteers, including but not limited to City lifeguards and their trainees, or by any other government agency. Company may impose reasonable conditions upon its consent including, but not limited to, imposition of a reasonable fee for use of the Landing." 3. Except as expressly modified, altered or amended by this Amendment No. 1, all other terms, conditions, and covenants of the Agreement shall remain in full force and effect. City of Seal Beach DCOR, LLC, a Texas limited liability company BY: BY: GI� City Manager /�tcePresident ey . Warren Date: --6 .!!�' "'D ­L:� Date: May 2, 2008 -2of3- Exhibit 1 The following is an itemized estimate of costs that the City of Seal Beach will occur in connection with the February 24, 2008 Incident. Clean-up Costs $12,000.00 M &N's inspection and report $11,233.26 Contractor's repair of boat landing $74,560.00 Contractor's installation of H.D.P.E. rub strips $7,500.00 -3of3-