HomeMy WebLinkAboutAGMT - DCOR, LLC (Pier)�r♦
DCO R
010'
May 17, 2013
Mr. Sean Crumby
.Assistant City Manager
City -of Seal Beach
21.1 Eighth Street
Seal Beach, CA 90740
Re: Joint Use of City's Landing Pier
Sean:
Earlier this year, the City of Seal Beach granted Oxy USA Inc. the right-to use the City's boat landing
adjoining the Seal Beach Pier.
Under the terms of Amendment Number Two to the Agreement Between The City of Seal Beach and
DCOR, LLC dated April 21, 2008, DOOR has retained the right to consent to the use of the boat landing
by any third party authorized by the City to use the landing, except any use of the.landing by`the City or
any other government agency.
This letter evidences DCOR's consent to the joint use of the boat landing by Oxy USA Inc. Enclosed for
your files is a copy of Agreement dated May 14, 2013 that contains the terms and-conditions:und_er which
DCOR has conveyed its consent, t
Please contact me should you have any questions concerning this matter.
Respect ully,
e. /re. Warren
Vice President
Enclosure
cc w1 encl: Mr. Mark S. Kapelke, Oxy USA Inc.
290 MAPLE COURT • SUITE 290 • VENTURA, CA 93003
PHONE: (805) 535 -2000 • FAX: (805) 535 -2100
AGREEMENT
This Agreement ("Agreement") is made on this 14th day of K0aK 2013 by and between D[DR LL[
("DCOR" with p)ace'ofbusiness located at 290 Maple Court, Suite 290, Ventura, CA 93003 and Oxy
USA Inc. — L.A. Basin ("Oxy") with a place of business located at 301 E. Ocean Boulevard, Suite 300, Long
Beach, CA 90802.
Recitals
Whereas, DCOR and the City of Sea[ Beath entered into an agreement on July 1, 2006 which allowed for
the continued use ofthe Seal Beach pier ("Pier")bvDCOR. Subsequent amendments to that agreement
required DCOR's consent for the use Vf the Pier bv other persons or entities, excluding the City of Seal
Beach, its officials, employees, or volunteers, and any other government agency.
Whereas, Oxy and the City of Seal Beach entered into an agreement on. February11, 2013 which
allowed for the use of the Pier by Oxy"
Whereas, DCOR will provide its consent for Oxy to use the Pier subject to the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and for
good and valuable consideration, the parties agree asfollows:
1. DCOR shall have first priority ofuseofthePier.OxywU|provideDOORxvithitsschedu|eofuse
of the Pier ona monthly basis. DOOR will notify Oxy within twenty-four (24)hours of receipt pf
the schedule if Oxy's schedule needs to be modified to accommodate DOOR's use. Oxvs
schedule of use of the Pier may be changed for emergency purposes and in the event of '
conflicting emerge ncies,D[ORshaUhavefirstpdohtyofuseofthePiec
2. D[OR and Oxy shall share the maintenance costs for the Pier equally. QrOR has an existing'
monthly and annual inspection schedule of the boat landing,. winch, cables, and related
equipment. These inspections are performed byD[DR employees and/or DO]R-itontractors.
Oxy agrees to reimburse DCOR for its share of the cost of such inopectionu upon receipt of an
invoice for the same from D[QR accompanied by time sheets and other verification reasonably
available. DCORwU( pedbrm any and all work reasonably. required to maintain the Pier and
DCOR shall provide Oxy an invoice and other documentation for payment of Oxy's share of such,
costs.
3t D[AR's 2013 Operating Budget includes replacing the boat landing winch on the Pier at an
estimated cost of$3I,0X}D. Oxy agrees to share equally in the final, ccstof this project, subject
to receipt ofanirwo|ce and related documentation from OC]R. '
4. Each party shall be responsible for repairing any and all damage that itor its contractor. causes '
to the Pier 8t its sole cost. .
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5� In the event the Pier is damaged by one of the parties hereto, that party shall reimburse the
other party for additional personnel and transportation costs that it incurs as a result of the loss
of use Uf the Pier. The paying party,shall be entitled to review time sheets and other verification
reasonably available for items for which reimbursement issought.
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6. Oxy shall defend indemnify and hold DCOR and its owners, officers, and employees harmless
from and against all losses, claims, UaLU1hjes, demands, expenses (including reasonable
attorneys' fees) and causes of action of any kind that may arise out of a breach of its obligations
under this Agreement. D[OK shall defend, indemnify and hold Oxy and its officers, directors
and employees harmless from and against all losses, claims, liabilities, demands, expenses
(including reasonable attorneys' fees) and causes of action of any kind that may arise out bya
breach of its obligations under this Agreement.
7. Any claim or controversy arising out of' or relating tothis Agreement, or the breach thereof, shall
be settled by negotiation of the parties and if that fails, the parties shall submit the claim to
arbitration in Orange County, [A in accordance with the rules of the California Arb)tnation4zt
(California Code of Civil Procedure Sections I280 — 1294.2) or any successor statute then in
effect, and judgment upon any award rendered may be entered in any court having jurisdiction
thereof, The laws of the State of California shall govern any matter arising out of or relating to
this Agreement Ur the breach thereof.
3. This Agreement shall constitute the entire agreement between the parties. Nn amendment o!
modification of this Agreement shall be binding onthe parties unless it is|na writing signed by
the parties.
9. The term of this Agreement shall be coterminous with the agreiement,that D[OR has with the
City of Seal Beach for use of the Pier. |fOxyorD[ORno longer needs to/ use the Pier, such party
shall have the right bA�reementupohde)�ehn�ten(�O)dav�wr�tennot��to '
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the other party. If Oxy, or DCOR materially breaches this Agreement, the other party shall'give
the party in breach fifteen (15) days to cure the breach or longer as agreed to by the parties in
writing, If the breach cannot be timely cured, ms agreed tobvthe parties, then this Agreement, . '
can be terminated by the non-breaching party upon delivering ten (10) days' �written notice to`
the party in breach. In the event Oxy materially breaches this Agreement and fails to timely
cure the same, then in addition to the termination of this Agreement, DCOR shall notify the City
of Seal Beach of the withdrawal of its consent to joint use of the Pier and Oxy shall thereafter be
prohibited from using the Pier.
IQ. All notices and other communications provided for herein shall be given ormadebyfax'emaU
courier, or U. S. Mail in vvhdng and faxed, emaUed delivered, or niaUedtothe recipient at the '
addresses specified below. All such communications shall be deemed to have been duly given
(J) when transmitted, if -transmitted by fax or email before 1i0PN1 local time ona business day '
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(otherwise the. next business day[(ii) when delivered, if personally delivered, or (iii) in the case
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of a mailed notice, three (3). business days after thedate deposited in the U.S. Mail, postage . '
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prepaid, and in each case given oraddressed as provided, herein. Other party may change its
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mailing address, fax number, or email shown by giving vvrittennotice thereof to the ' .
other-party.
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To DCOR:
To Oxy:
Attention: Jeffrey H. Warren
Attention: Mark S. Kapelke
290 Maple Court, Suite 290
301 E. Ocean Blvd., Suite 300
Ventura, CA 93003
Long Beach, CA 90802
Telephone (805) 535 -2000
Telephone (552) 495 -9348
Fax (805) 535 -2100
Fax (562) 495 -1950
Email: ,warren @dcorllc.com
Email: mark_kapelke @.oxy.com
11. Upon execution of this Agreement by
both parties, DOOR will promptly notify the City of Seal
Beach in writing that it consents to the
joint use of the Pier by Oxy and DCOR will provide the
City of Seal Beach .a copy of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day
and year first written above.
DCOR, LLC
OXY USA Inc.
By:
By
Jeff Warr en
Name: Mark S. Kapelke
Title: Vice President
Title:: Vice President .
.0 W
AMENDMENT NUMBER TWO AMENDING AND
EXTENDING THE TERM OF THE AGREEMENT
DCOR'S USE OF THE SEAL BEACH PIER
Between
City of Seal Beach
211 - 8th Street
Seal Beach, CA 90740
0
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 `h 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. Subsection 4.1 of Section 4 (Fees and Charges) of the Agreement
is hereby amended to read as follows:
"41. 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.
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S7296- 0001 \I378966v2.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
DCOR, LLC,
a Texas limited liability company
By: B/rmne:
Jill R. Ingram, C ty anager
N effr ey H. Warren
Attest:
By: 1 /
in a Devine, City Clerk
Approved as to Form:
By:
Quinn Barro , City
Attorney
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57296- 0001 \1378966v2.doc
Its: Vice President
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
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mails, including, but not limited to, and electronic transmission dated March 18, 2008,
subject to certain terns.
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:
City Manager J ey . Warren
ice President
,�7_ _p $ Date: May 2, 2008
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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
M &N's inspection and report
Contractor's repair of boat landing
Contractor's installation of H.D.P.E. rub strips
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$12,000.00
$11,233.26
$74,560.00
$7,500.00
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, orjudgments 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
Q)
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:
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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.
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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.
El
(b) Excess Liabilitv. 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.
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(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
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performance of its obligations hereunder, when such default continues for a period of
thirty (30) days after written notice thereof.
Section 13. Nonassignability. 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.
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. Severabilitv. 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: AxW&A11aV'1t-
//Xho,p(zed Representative
CITY OF SEAL BEACH
BY: 1)14 ) La mw
Mayor
ATTEST:
BY: U
City Clerk
AGREEMENT
THIS AGREEMENT is made and entered into as of September 1, 2001, by and
between the City of Seal Beach, a charter city and municipal corporation ( "City "), and
Nuevo Energy Company, a Delaware corporation ( "Nuevo "). Nuevo 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 Union Oil Company of California
( "Union "), has heretofore been granted landing rights on the Pier and vehicle parking
privileges in the adjacent City parking facilities pursuant to an Agreement dated August
11, 1986, by and between City and Union, as subsequently amended.
C. 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 understandings 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 Definitions. 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.
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(b) Hold harmless - to defend and indemnify from all liability,
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 preventive maintenance.
1.02. Other Definitions. The following additional terms are defined in
the following sections of this Agreement:
(a) Adjustment Date §4.02
(b)
Beginning Index
§4.02
(c)
Boat Landing Number One
§2.01
(d)
Boat Landing Number Two
§2.01
(e)
Extension Index
§4.02
(f)
Index
§4.02
(g)
Monthly Fee
§4.01
(h)
Operating Agreement
Recital A
(i)
Pier
Recital A
Q)
Tidelands Lease
Recital A
(k)
Union
Recital B
Section 2. Rights Granted.
2.01. Use of Landing Platforms. Company and its Authorized
Representatives shall have the right to use boat landing number two ( "Boat Landing
Number Two "), 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.
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In the event and only so long as Boat Landing Number Two is unavailable for
Company's use due to causes other than Company's Maintenance of (or failure to
maintain) Boat Landing Number Two, after obtaining City's consent in the specific
instance Company may use boat landing number one ( "Boat Landing Number One ") on
a non - exclusive basis, for the purpose of landing and departure; in addition, if the prior
consent in the specific instance has been obtained, Company may use Boat Landing
Number One on a non - exclusive basis, for the purpose of landing and departure, during
reasonable periods that Boat Landing Number Two is unavailable due to Company's
Maintenance of Boat Landing Number Two. Company shall expeditiously repair any
damage to Boat Landing Number One arising out of or in connection with the use of
Boat Landing Number One by Company and its Authorized Representatives.
2.02. Parking Licenses. Company shall be entitled to the nonexclusive
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 January 1, 2001, and continuing until December 31, 2005, 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 $6,120.00 per month (consisting of $4,800.00 per
month with respect to the landing rights and $1,320.00 per month with respect to the
parking license), 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.
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4.02 Annual Adjustment to Monthly Fee. The Monthly Fee described in
Section 4.01 shall be adjusted on September 1, 2001, and September 1 of each year
thereafter (each, an "Adjustment Date ") as follows:
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 "), which is published for the fifteenth month preceding that Adjustment
Date ( "Beginning 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 which exceed ninety -five (95)
feet in length, measured from bow to stern at the water line.
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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 Number Two or Boat
Landing Number One 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.
Section 6. Maintenance. The Company at its sole cost and expense
shall Maintain in good condition and repair Boat Landing Number Two 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 Number Two.
In addition, the Company shall promptly repair any damage to Boat Landing Number
One arising from or in connection with the Company's use of Boat Landing Number
One. 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 Number Two and shall separately
document all repairs to Boat Landing Number One, 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 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 days after presentation of an invoice.
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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,
activities, 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. As a 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 of $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.
(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.
648360 -5
(c) Automobile Liability Insurance. Automobile Liability
Insurance covering "Any Auto" (Symbol 1) with minimum 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 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
648360 -5
-
upon the City (except that the thirty day period may be reduced to ten days for non-
payment 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 not
affect coverage provided to the City.
(b) The policy of insurance required by subsection 10.1(e) shall
be endorsed as follows:
(1) Waiver of Subrogation. A waiver of subrogation
stating that the insurer waives all rights of subrogation against the City.
(2) Cancellation. The policy or policies 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 non - payment 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 ten (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
648360 -5
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 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
performance of its obligations hereunder, when such default continues for a period of
thirty (30) days after written notice thereof.
Section 13. Nonassignability. 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. Subiect 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 the
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
648360 -5
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
Attention: City Manager
With A Copy To: Richards, Watson & Gershon
333 South Hope Street - 38th Floor
Los Angeles, California 90071
Attention: Quinn M. Barrow
If to Company, to: Nuevo Energy Company
4541 Heil Street
Huntington Beach, California 92649
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 or any subsequent breach of the same
or any other 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.
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.
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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.
No provision of this Agreement may be amended or varied except
by an agreement in writing signed by the parties hereto or their respective successors.
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 provision shall not
affect the remainder of this Agreement and all remaining provisions shall,
notwithstanding any such invalidity or illegality, continue in full force and 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.
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,i
IN WITNESS WHEREOF, the undersigned have executed this Agreement
at Seal Beach, California, as of the date first written above.
NUEVO ENERGY COMPANY
By:
(Name)
(Title)
0
(Name)
(Title)
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CITY OF SEAL BEACH ( "City ")
Mayor 9