HomeMy WebLinkAboutAGMT - Surfside Colony, LTD (Beach Cleaning)AMENDED AND RESTATED SURFSIDE BEACH
CLEANING, MAINTENANCE AND BERM
CONSTRUCTION AGREEMENT
between
City of Seal Beach
211 - 8th Street
Seal Beach, CA 90740
0
Surfside Colony, Ltd
P.O. Box 235
Surfside, CA 90743
(562) 592 -2352
This Amended and Restated Surfside Beach Cleaning and Maintenance Agreement ( "the
Agreement') is made as of February 22, 2016 (the "Effective Date "), by and between Surfside
Colony, Ltd ( "Surfside Colony "), and the City of Seal Beach ( "City "), a California charter city,
(collectively, "the Parties ").
Page 1 of 10
RECITALS
A. City and Surfside Colony previously entered into an agreement for the cleaning of
Surfside Beach, dated September 8, 2008 ( "2008 contract ").
B. City and Surfside Colony desire to amend and update the 2008 contract for the
cleaning and maintenance of Surfside Beach.
C. This Agreement shall amend, supersede and replace in all respects the 2008
contract.
D. Surfside Colony represents that it is qualified and able to provide City with such
services.
NOW THEREFORE, in consideration of the Parties' performance of the promises,
covenants, and conditions stated herein, the Parties hereto agree as follows.
AGREEMENT
1.0 Scope of Services
1.1. For purposes of this Agreement, "Surfside Beach" is that portion of state tidelands
under the City's jurisdiction located below the mean high tide line and that is generally bounded
by the United States Naval Weapons Station to the northwest and the southerly City limits.
1.2. Surfside Colony must keep Surfside Beach clean and free of trash and debris to
the same standard to which the City maintains its other beaches. Cleaning is to be provided 3 -5
times per week or more often if needed as determined by the City.
1.3. Surfside Colony must sanitize Surfside Beach to the same standard to which the
City maintains its other beaches at least twice annually, with a beach sanitizer approved by the
City.
1.4. In order to protect Surfside Beach and nearby properties from storm damage
including flooding, Surfside Colony must annually construct and maintain a winter sand berm on
that certain real property owned by Surfside Colony located adjacent to Surfside Beach and
described as follows: the sand area on the beach between Anderson Street and the Seal Beach
Naval Weapons Station from sundeeks to the mean high tide line. Surfside Colony must
construct and maintain the berm on its property to the same standard to which the City constructs
sand berms for the protection of beaches and properties, and in accordance with the City's
requirements.
1.5. Surfside Colony must perform all services under this Agreement in accordance
with the standard of care generally exercised by professionals who regularly engage in the type
of services to be provided by Surfside Colony under similar circumstances and in a manner
reasonably satisfactory to the City, and in accordance with any and all applicable standards of
care.
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1.6. In performing this Agreement, Surfside Colony must comply with all current
applicable provisions of federal, state, and local law.
2.0 Term
The term of this Agreement shall commence as of the Effective Date and shall continue
for a term of five (5) years, unless terminated earlier as provided by this Agreement.
3.0 Surfside Colony's Compensation.
3.1. City will pay Surfside Colony the following sums for the services rendered
pursuant to this Agreement.
3.1.1. The City will pay Surfside Colony the sum of $2,175.75 (two thousand
one hundred seventy -five dollars and seventy -five cents) per month for the cleaning and
maintenance of Surfside Beach rendered pursuant to this Agreement.
3.1.2. The City will pay Surfside Colony the sum of $785.83 (seven hundred
fifty dollars) per month for the annual construction, maintenance and removal of a winter sand
berm adjacent to Surfside Beach on the property described in Section 1.4. The sand berm shall be
constructed in accordance with the specifications, standards and requirements of the City. No
payment shall be made by the City to reimburse Surfside Colony for the annual construction,
maintenance and removal of the sand berm unless the City has inspected the berm prior to
Surfside Colony's completion of the berm construction. Surfside Colony shall be responsible for
contacting the City to request an inspection of the berm, and shall provide the City with at least
one week's prior written notice of a requested inspection. Surfside Colony and shall make all
areas of the berm accessible to enable the City to perform its inspection.
3.1.3. The amounts set forth in Subsections 3. 1.1 and 3.1.2 shall each be adjusted
annually starting in July 2016, based on the lesser of either (a) changes to the Consumer Price
Index for All Urban Consumers (CPI -U): for Los Angeles- Riverside -Orange County, CA (1982-
84 =100) All Items as most recently reported by the Bureau of Labor Statistics for the 12 month
period extending backwards from the most recent June 30'h to the previous July 1st, or (b) three
percent (3 %) per year. No adjustment amount shall be due, owing or paid to Surfside Colony by
City until approved in advance by the City Manager.
3.2. City will not compensate Surfside Colony for any services performed not
specified in Section 1.0 of this Agreement unless the City authorizes such work in advance and
in writing.
4.0 Method of Payment
Surfside Colony must submit to City monthly invoices for all Services rendered pursuant
to this Agreement. Such invoices must be submitted within fifteen (15) days of the end of the
month during which the services were rendered and must describe in detail the services rendered
during the period. City will pay Surfside Colony within thirty (30) days of receiving Surfside
Colony's invoice. City will not withhold any applicable federal or state payroll and other
required taxes, or other authorized deductions from payments made to Surfside Colony.
Page 3 of 10
5.0 Termination
5.1. This Agreement may be terminated by either Party without cause upon giving the
other party written notice thereof not less than thirty (30) days prior to the date of termination.
5.2. This Agreement may be terminated by City upon ten (10) days' notice to Surfside
Colony if Surfside Colony fails to provide satisfactory evidence of renewal or replacement of
comprehensive general liability insurance as required by this Agreement at least twenty (20)
days before the expiration date of the previous policy.
6.0 Party Representatives
6.1. The City Manager is the City's representative for purposes of this Agreement.
6.2. The Colony President is Surfside Colony's sole representative for purposes of this
Agreement.
7.0 Notices
7.1. All notices permitted or required under this Agreement shall be deemed made
when personally delivered or when mailed forty -eight (48) hours after deposit in the U.S. Mail,
first class postage prepaid and addressed to the party at the following addresses:
To City: City of Seal Beach
211 8th Street
Seal Beach, California 90740
Attn: City Manager
With a copy to: Richards, Watson & Gershon
355 South Grand Avenue, 40th Floor
Los Angeles, CA 90071 -3101
Attn: Craig A. Steele
To Surfside Colony: Surfside Colony, Ltd
P.O. Box 235
Surfside, CA 90743
(562) 592 -2352
Attn: Colony President
7.2. Actual notice shall be deemed adequate notice on the date actual notice occurred,
regardless of the method of service.
8.0 Independent contractor
8.1. Surfside Colony and any of its subcontractors are independent contractors and
neither is an employee of the City. All Services provided pursuant to this Agreement shall be
performed by Surfside Colony or under its supervision. Surfside Colony will determine the
means, methods, and details of performing the Services. Any additional personnel performing
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services under this Agreement on behalf of Surfside Colony shall also not be employees of City
and shall at all times be under Surfside Colony's exclusive direction and control. Surfside
Colony shall pay all wages, salaries, and other amounts due such personnel in connection with
their performance of services under this Agreement and as required by law. Surfside Colony
shall be responsible for all reports and obligations respecting such additional personnel,
including, but not limited to: social security taxes, income tax withholding, unemployment
insurance, disability insurance, and workers' compensation insurance.
8.2. Surfside Colony shall indemnify and hold harmless City and its elected officials,
officers and employees, servants, designated volunteers, and agents serving as independent
contractors in the role of City officials, from any and all liability, damages, claims, costs and
expenses of any nature to the extent arising from Surfside Colony's alleged violations of
personnel practices. City shall have the right to offset against the amount of any fees due to
Surfside Colony under this Agreement any amount due to City from Surfside Colony as a result
of Surfside Colony's failure to promptly pay to City any reimbursement or indemnification
arising under this Section 8.
9.0 Subcontractors
No portion of this Agreement shall be subcontracted without the prior written approval of
the City. Surfside Colony is fully responsible to City for the performance of any and all
subcontractors.
10.0 Assignment
Surfside Colony shall not assign or transfer any interest in this Agreement whether by
assignment or novation, without the prior written consent of City. Any purported assignment
without such consent shall be void and without effect.
11.0 Insurance
11.1. Surfside Colony must not commence work under this Agreement until it has
provided evidence satisfactory to the City that Surfside Colony has secured all insurance
required under this Section. Surfside Colony must furnish City with original certificates of
insurance and endorsements effecting coverage required by this Agreement on forms satisfactory
to the City. The certificates and endorsements for each insurance policy must be signed by a
person authorized by that insurer to bind coverage on its behalf, and must be on forms provided
by the City if requested. All certificates and endorsements must be received and approved by the
City before work commences. The City reserves the right to require complete, certified copies of
all required insurance policies, at any time.
11.2. Surfside Colony must, at its expense, procure and maintain for the duration of the
Agreement, insurance against claims for injuries to persons or damages to property that may
arise from or in connection with the performance of this Agreement. Insurance is to be placed
with insurers with a current A.M. Best's rating no less than A:VI1L licensed to do business in
California, and satisfactory to the City. Coverage must be at least as broad as the latest version
of the following: (1) General Liability: Insurance Services Office Commercial General Liability
coverage (occurrence form CG 0001); (2) Automobile Liability: Insurance Services Office
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Business Auto Coverage form number CA 0001, code 1 (any auto); (3) Professional Liability:
coverage for errors and /or omissions of Surfside Colony in the performance of this Agreement;
and (4) Worker's compensation/Employer's liability: as required by law.
11.3. Surfside Colony must maintain limits no less than: (1) General Liability:
$5,000,000 per occurrence for bodily injury, personal injury and property damage and if
Commercial General Liability Insurance or other form with a general aggregate limit is used,
either the general aggregate limit shall apply separately to this Agreement/location or the general
aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability:
$1,000,000 per accident for bodily injury and property damage; (3) Professional Liability: with
limits no less than $1,000,000 per claim/aggregate; and (4) Workers' Compensation/Employer's
Liability: as required by law.
11.4. The insurance policies must contain the following provisions, or Surfside Colony
must provide endorsements on forms supplied or approved by the City to state: (1) coverage
shall not be suspended, voided, reduced or canceled except after ten (10) days prior written
notice by certified mail, return receipt requested, has been given to the City; (2) any failure to
comply with reporting or other provisions of the policies, including breaches of warranties, shall
not affect coverage provided to the City, its directors, officials, officers, employees, agents and
volunteers; (3) coverage must be primary insurance as respects the City, its directors, officials,
officers, employees, agents and volunteers, or if excess, must stand in an unbroken chain of
coverage excess of the Surfside Colony's scheduled underlying coverage and that any insurance
or self - insurance maintained by the City, its directors, officials, officers, employees, agents and
volunteers shall be excess of the Surfside Colony's insurance and must not be called upon to
contribute with it; (4) for general liability insurance, that the City, its directors, officials, elected
and appointed officers, employees, agents and volunteers shall be covered as additional insureds
with respect to the services or operations performed by or on behalf of the Surfside Colony,
including materials, parts or equipment furnished in connection with such work; and (5) for
automobile liability, that the City, its directors, officials, elected and appointed officers,
employees, agents and volunteers shall be covered as additional insureds with respect to the
ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or
borrowed by the Surfside Colony or for which the Surfside Colony is responsible.
11.5. All insurance required by this Section must contain standard separation of
insureds provisions and must not contain any special limitations on the scope of protection
afforded to the City, its directors, officials, elected and appointed officers, employees, agents,
and volunteers.
11.6. Any deductibles or self - insured retentions must be declared to and approved by
the City. Surfside Colony guarantees that, at the option of the City, either: (1) the insurer shall
reduce or eliminate such deductibles or self - insured retentions as respects the City, its directors,
officials, officers, employees, agents, and volunteers; or (2) Surfside Colony shall procure a bond
guaranteeing payment of losses and related investigation costs, claims and administrative and
defense expenses.
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12.0 Indemnification
12.1. Indemnification. Surfside Colony and City agree that City, its officials, officers,
employees, agents, and representatives, shall, to the fullest extent permitted by law, be fully
protected from any loss, injury, damage, claim, liability, lawsuit, cost, expense, attorneys fees,
litigation costs, defense costs, court costs and/or any other cost arising out of or in any way
related to the performance of this Agreement. Accordingly, the provisions of this indemnity
provision are intended by the Parties to be interpreted and construed to provide the fullest
protection possible under the law to City and the Indemnitees as defined herein. Surfside Colony
acknowledges that City would not have entered into this Agreement in the absence of the
commitment of Surfside Colony to indemnify and protect City and the Indemnitees, as set forth
in this Agreement.
12.2. Indemnity for Professional Services. To the fullest extent permitted by law,
Surfside Colony shall, at its sole cost and expense, protect, defend, hold harmless and indemnify
City, its elected and appointed officials, officers, employees, attorneys, agents, servants,
designated volunteers, successors, assigns and those City agents serving as independent
contractors in the role of City officials (collectively "Indemnitees" in this Section 12), from and
against any and all damages, costs, expenses, liabilities, claims, demands, causes of action,
proceedings, judgments, penalties, liens, and losses of any nature whatsoever, including fees of
accountants, attorneys and other professionals, and all costs associated therewith (collectively
"Claims "), whether actual, alleged or threatened, which arise out of, pertain to, or relate to, in
whole or in part, the negligence, recklessness or willful misconduct of Surfside Colony, and/or
its directors, officers, employees, agents, servants, subcontractors, contractors or their directors,
officers, employees, agents, or servants (or any entity or individual that Surfside Colony shall
bear the legal liability thereof) in the performance of professional services under this Agreement.
Surfside Colony shall defend the Indemnitees in any action or actions filed in connection with
any Claims with counsel of the Indemnitees' choice, and shall pay all reasonable costs and
expenses, including all attorneys' fees and experts' costs actually incurred in connection with
such defense. Surfside Colony shall reimburse the Indemnitees for any and all legal expenses
and costs incurred by the Indemnitees in connection therewith.
12.3. Other Indemnities. Other than in the performance of professional services, and to
the fullest extent permitted by law, Surfside Colony shall, at its sole cost and expense, to protect,
defend, hold harmless and indemnify the Indemnitees from and against any and all damages,
costs, expenses, liabilities, claims, demands, causes of action, proceedings, judgments, penalties,
liens and losses of any nature whatsoever, including fees of accountants, attorneys and other
professionals, and all costs associated therewith, and the payment of all consequential damages
(collectively "Damages "), in law or equity, whether actual, alleged or threatened, which arise out
of, pertain to, or relate to the acts or omissions of Surfside Colony, its directors, officers,
employees, agents, representatives, servants, subcontractors, materialmen, suppliers, or
contractors, or their directors, officers, employees, agents, servants or representatives (or any
entity or individual that Surfside Colony shall bear the legal liability thereof) in the performance
of this Agreement, including the Indemnitees' active or passive negligence, except for Damages
arising from the sole negligence or willful misconduct of the Indemnitees, as determined by final
arbitration or court decision or by the agreement of the Parties. Surfside Colony shall defend the
Indemnitees in any action or actions filed in connection with any Damages with counsel of the
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Indemnitees' choice, and shall pay all reasonable costs and expenses, including all attorneys'
fees and experts' costs actually incurred in connection with such defense. Surfside Colony shall
reimburse the Indemnitees for any and all legal expenses and costs incurred by the Indemnitees
in connection therewith.
12.4. The obligations of Surfside Colony under this Section 12 or any other provision
of this Agreement shall not be limited by the provisions of any workers' compensation act or
similar act. Surfside Colony expressly waives any statutory immunity under such statutes or
laws as to the Indemnitees. Surfside Colony's indemnity obligation set forth in this Section 12
shall also not be limited by the limits of any other policies of insurance required or provided by
Surfside Colony pursuant to this Agreement.
12.5. Surfside Colony's covenants, duties and obligations under this Section 12 shall
survive the expiration or termination of this Agreement.
13.0 Labor Certification
By its signature hereunder, Surfside Colony certifies that it is aware of the provisions of
Section 3700 of the California Labor Code that require every employer to be insured against
liability for Worker's Compensation or to undertake self - insurance in accordance with the
provisions of that Code, and agrees to comply with such provisions before commencing the
performance of the Services.
14.0 Nuisance
Surfside Colony shall not maintain, commit or permit the maintenance or commission of
any nuisance in connection with the performance of Services under this Agreement.
15.0 Permits and Licenses
Surfside Colony, at its sole expense, shall obtain and maintain during the term of this
Agreement, all appropriate permits, licenses, and certificates that may be required in connection
with the performance of Services under this Agreement.
16.0 Time of the Essence
Time is of the essence in respect to all provisions of this Agreement that specify a time
for performance.
17.0 Compliance with Laws
In the performance of this Agreement, Surfside Colony shall abide by and conform to any
and all applicable laws, statutes, safety rules, and practices of the United States, the State of
California, Charter of the City of Seal Beach, and any other local laws ( "Law and Practices ").
Further, Consultant warrants that all work done under this Agreement shall be in strict
compliance with such Laws and Practices, including, but not limited to, Cal /OSHA regulations.
Consultant shall dispose of all materials used in conjunction with the performance of this
Page 8 of 10
Agreement in strict compliance with all local, state, and federal environmental and/or waste
management rules, regulations, laws, statutes and practices.
18.0 2008 Contract Superseded
Upon the Effective Date, the 2008 contract and all terms, provisions, conditions and
Exhibits included therein, shall be replaced and superseded by this Agreement, and the 2008
contract shall be void and have no further force and effect.
19.0 Entire Agreement
This Agreement contains the entire Agreement of the parties with respect to the subject
matter hereof, and supersedes all prior negotiations, understandings, or agreements. This
Agreement may only be modified by a writing signed by both parties.
20.0 Severability
The invalidity in whole or in part of any provisions of this Agreement shall not void or
affect the validity of the other provisions of this Agreement.
21.0 Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the
State of California.
22.0 No Third Party Rights
No third party shall be deemed to have any rights hereunder against either Party as a
result of this Agreement.
23.0 Waiver
No waiver of any default shall constitute a waiver of any other default or breach, whether
of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily
given or performed by a Party shall give the other Party any contractual rights by custom,
estoppel, or otherwise.
24.0 Prohibited Interests
Surfside Colony maintains and warrants that it has not employed nor retained any
company or person, other than a bona fide employee working solely for Surfside Colony, to
solicit or secure this Agreement. Further, Surfside Colony warrants that it has not paid nor has it
agreed to pay any company or person, other than a bona fide employee working solely for
Surfside Colony, any fee, commission, percentage, brokerage fee, gift or other consideration
contingent upon or resulting from the award or making of this Agreement. For breach or
violation of this warranty, City has the right to rescind this Agreement without liability. For the
term of this Agreement, no member, officer or employee of City, during the term of his or her
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service with City, shall have any direct interest in this Agreement, or obtain any present or
anticipated material benefit arising therefrom.
25.0 Attorneys' Fees
If either Party commences an action against the other Party, either legal, administrative or
otherwise, arising out of or in connection with this Agreement, the prevailing Party in such
litigation shall be entitled to have and recover from the losing Party all of its attorney's fees and
other costs incurred in connection with such action.
26.0 Exhibits
All exhibits referenced in this Agreement are hereby incorporated into the Agreement as
if set forth in full herein. In the event of any material discrepancy between the terms of any
exhibit so incorporated and the terms of this Agreement, the terms of this Agreement shall
control.
27.0 Corporate Authority
Each person executing this Agreement on behalf of Surfside Colony warrants that he or
she is duly authorized to execute this Agreement on behalf of said Party and that by his or her
execution, Surfside Colony is formally bound to the provisions of this Agreement.
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
By:
1 Ingram, CitylM�
A Cl �N n'
Attest:
#C�, ec ?`
By:
Robin Roberts. CAMP
Approved as o Fo "��
By:
Craig A. Steele, City Attorney
SURFSIDE COLONY, LTD.
By: N�
Name: DAu I d €ovtao5
Its: V
Un
Name:
Its:
Page 10 of 10
'
i
April 6, 2016
Surfside Colony, Ltd
Attn: Colony President
P.O. Box 235
Surfside, CA 90743
CITY HALL
211 EIGHTH STREET
SEAL BEACH, CA 90740
(562) 431 -2527
www.sealbeachca.gov
RE: Amended and Restated Surfside Beach Cleaning
and Maintenance Agreement
To Whom It May Concern:
Enclosed are three copies of the above referenced agreement. Please return one fully
executed copy to City Clerk Robin Roberts, 211 Eighth Street, Seal Beach, CA 90740.
If you have any questions regarding same, please contact the City Clerk's office at 562-
431 -2527, Ext. 1305.
Sincerely,
Winnie Bell
Part -Time Executive Assistant
City Clerk's Office
City of Seal Beach
wbell(cilsealbeachca.gov
562 - 431 -2527 Ext.1304
Enclosure
9
0
SURFSIDE BEACH CLEANING AGREEMENT
between
City of Seal Beach
211 - 8th Street
Seal Beach, CA 90740
Surfside Colony, Ltd
P.O. Box 235
Surfside, CA 90743
(562) 592 -2352
This Professional Service Agreement ( "the Agreement ") is made as of December 8, 2008 (the
"Effective Date "), by and between Surfside Colony, Ltd ( "Surfside Colony "), and the City of
Seal Beach ( "City "), a California charter city, (collectively, "the Parties ").
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E
RECITALS
0
A. City desires to contract for the cleaning of Surfside Beach.
B. Surfside Colony represents that it is qualified and able to provide City with such
services.
NOW THEREFORE, in consideration of the Parties' performance of the promises,
covenants, and conditions stated herein, the Parties hereto agree as follows.
AGREEMENT
1.0 Scope of Services
1.1. For purposes of this Agreement, " Surfside Beach" is that portion of state tidelands
under the City's jurisdiction located below the mean high tide line and that is generally bounded
by the United States Naval Weapons Station to the northwest and the southerly City limits, as
depicted on Exhibit A, which is hereby incorporated by this reference.
1.2. Surfside Colony must keep Surfside Beach clean and free of trash and debris to
the same standard to which the City maintains its other beaches. Cleaning is to be provided 3 -5
times per week or more often if needed as determined by the City.
1.3. Surfside Colony must sanitize Surfside Beach to the same standard to which the
City maintains its other beaches at least twice annually, with a beach sanitizer approved by the
City.
1.4. Surfside Colony must perform all Services under this Agreement in accordance
with the standard of care generally exercised by professionals who regularly engage in the type
of services to be provided by Surfside Colony under similar circumstances and in a manner
reasonably satisfactory to the City.
1.5. In performing this Agreement, Surfside Colony must comply with all current
applicable provisions of federal, state, and local law.
2.0 Term
This term of this Agreement shall commence as of the Effective Date and shall continue
until terminated as provided by this Agreement.
3.0 Surfside Colony's Compensation.
3.1. City will pay Surfside Colony $2000 per month for services rendered pursuant to
this Agreement. This amount to be adjusted annually starting in July 2010 based on changes to
the Consumer Price Index for All Urban Consumers (CPI -U): for Los Angeles- Riverside - Orange
County, CA (1982 -84 =100) All Items. Increases in any one year will be limited to ± three
percent (3 %) per year
3.2. City will not compensate Surfside Colony for any work performed not specified
in Section 1 of this Agreement unless the City authorizes such work in advance and in writing.
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4.0 Method of Payment
•
4.1. Surfside Colony must submit to City monthly invoices for all services rendered
pursuant to this Agreement. Such invoices must be submitted within 15 days of the end of the
month during which the services were rendered and must describe in detail the services rendered
during the period. City will pay Surfside Colony within 30 days of receiving Surfside Colony's
invoice. City will not withhold any applicable federal or state payroll and other required taxes,
or other authorized deductions from payments made to Surfside Colony.
5.0 Termination
5.1. This Agreement may be terminated by either Party without cause upon giving the
other party written notice thereof not less than thirty 30 days prior to the date of termination.
5.2. This Agreement may be terminated by City upon 10 days' notice to Surfside
Colony if Surfside Colony fails to provide satisfactory evidence of renewal or replacement of
comprehensive general liability insurance as required by this Agreement at least 20 days before
the expiration date of the previous policy.
6.0 Party Representatives
6.1. The City Manager is the City's representative for purposes of this Agreement.
6.2. Colony President is Surfside Colony's sole representative for purposes of this
Agreement.
7.0 Notices
7.1. All notices permitted or required under this Agreement shall be deemed made
when personally delivered or when mailed 48 hours after deposit in the U.S. Mail, first class
postage prepaid and addressed to the party at the following addresses:
To City: City of Seal Beach
211 8th Street
Seal Beach, California 90740
Attn: City Manager
With a copy to: Richards, Watson & Gershon
355 South Grand Avenue, 40th Floor
Los Angeles, CA 90071 -3101
Attn: Quinn M. Barrow
To Surfside Colony: Surfside Colony, Ltd
P.O. Box 235
Surfside, CA 90743
(562) 592 -2352
Attn: Colony President
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7.2. Actual notice shall be deemed adequate notice on the date actual notice occurred,
regardless of the method of service.
8.0 Independent contractor
8.1. Surfside Colony and any of its subcontractors are independent contractors and
neither is an employee of the City. All services provided pursuant to this Agreement shall be
performed by Surfside Colony or under its supervision. Surfside Colony will determine the
means, methods, and details of performing the services. Any additional personnel performing
services under this Agreement on behalf of Surfside Colony shall also not be employees of City
and shall at all times be under Surfside Colony's exclusive direction and control. Surfside
Colony shall pay all wages, salaries, and other amounts due such personnel in connection with
their performance of services under this Agreement and as required by law. Surfside Colony
shall be responsible for all reports and obligations respecting such additional personnel,
including, but not limited to: social security taxes, income tax withholding, unemployment
insurance, disability insurance, and workers' compensation insurance.
8.2. Surfside Colony shall indemnify and hold harmless City and its elected officials,
officers and employees, servants, designated volunteers, and agents serving as independent
contractors in the role of city or agency officials, from any and all liability, damages, claims,
costs and expenses of any nature to the extent arising from Surfside Colony's alleged violations
of personnel practices. City shall have the right to offset against the amount of any fees due to
Surfside Colony under this Agreement any amount due to City from Surfside Colony as a result
of Surfside Colony's failure to promptly pay to City any reimbursement or indemnification
arising under this Section 8.
9.0 Subcontractors
No portion of this Agreement shall be subcontracted without the prior written approval of
the City. Surfside Colony is fully responsible to City for the performance of any and all
subcontractors.
10.0 Assignment
Surfside Colony must not assign or transfer any interest in this Agreement whether by
assignment or novation, without the prior written consent of City. Any purported assignment
without such consent shall be void and without effect.
11.0 Insurance
11.1. Surfside Colony must not commence work under this Agreement until it has
provided evidence satisfactory to the City that Surfside Colony has secured all insurance
required under this Section. Surfside Colony must furnish City with original certificates of
insurance and endorsements effecting coverage required by this Agreement on forms satisfactory
to the City. The certificates and endorsements for each insurance policy must be signed by a
person authorized by that insurer to bind coverage on its behalf, and must be on forms provided
by the City if requested. All certificates and endorsements must be received and approved by the
City before work commences. The City reserves the right to require complete, certified copies of
all required insurance policies, at any time.
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11.2. Surfside Colony must, at its expense, procure and maintain for the duration of the
Agreement, insurance against claims for injuries to persons or damages to property that may
arise from or in connection with the performance of this Agreement. Insurance is to be placed
with insurers with a current A.M. Best's rating no less than ANIII, licensed to do business in
California, and satisfactory to the City. Coverage must be at least as broad as the latest version
of the following: (1) General Liability: Insurance Services Office Commercial General Liability
coverage (occurrence form CG 0001); and (2) Automobile Liability: Insurance Services Office
Business Auto Coverage form number CA 0001, code 1 (any auto). Surfside Colony must
maintain limits no less than: (1) General Liability: $5,000,000 per occurrence for bodily injury,
personal injury and property damage and if Commercial General Liability Insurance or other
form with a general aggregate limit is used, either the general aggregate limit shall apply
separately to this Agreement/location or the general aggregate limit shall be twice the required
occurrence limit; and (2) Automobile Liability: $1,000,000 per accident for bodily injury and
property damage.
11.3. The insurance policies must contain the following provisions, or Surfside Colony
must provide endorsements on forms supplied or approved by the City to state: (1) coverage
shall not be suspended, voided, reduced or canceled except after 30 days prior written notice by
certified mail, return receipt requested, has been given to the City; (2) any failure to comply with
reporting or other provisions of the policies, including breaches of warranties, shall not affect
coverage provided to the City, its directors, officials, officers, (3) coverage must be primary
insurance as respects the City, its directors, officials, officers, employees, agents and volunteers,
or if excess, must stand in an unbroken chain of coverage excess of the Surfside Colony's
scheduled underlying coverage and that any insurance or self - insurance maintained by the City,
its directors, officials, officers, employees, agents and volunteers shall be excess of the Surfside
Colony's insurance and must not be called upon to contribute with it; (4) for general liability
insurance, that the City, its directors, officials, officers, employees, agents and volunteers shall
be covered as additional insureds with respect to the services or operations performed by or on
behalf of the Surfside Colony, including materials, parts or equipment furnished in connection
with such work; and (5) for automobile liability, that the City, its directors, officials, officers,
employees, agents and volunteers shall be covered as additional insureds with respect to the
ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or
borrowed by the Surfside Colony or for which the Surfside Colony is responsible.
11.4. All insurance required by this Section must contain standard separation of
insureds provisions and must not contain any special limitations on the scope of protection
afforded to the City, its directors, officials, officers, employees, agents, and volunteers.
11.5. Any deductibles or self- insured retentions must be declared to and approved by
the City. Surfside Colony guarantees that, at the option of the City, either: (1) the insurer shall
reduce or eliminate such deductibles or self- insured retentions as respects the City, its directors,
officials, officers, employees, agents, and volunteers; or (2) the Surfside Colony shall procure a
bond guaranteeing payment of losses and related investigation costs, claims and administrative
and defense expenses.
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12.0 Indemnification, Hold Harmless, and Duty to Defend
Surfside Colony must indemnify, and hold the City, its officials, officers, employees,
volunteers and agents (collectively "Indemnities ") free and harmless from any and all claims,
demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to
property or persons, including wrongful death, in any manner arising out of or incident to any
acts or omissions of Surfside Colony, its employees, or its agents in connection with the
performance of this Agreement, including without limitation the payment of all consequential
damages and attorneys fees and other related costs and expenses. With respect to any and all
such aforesaid suits, actions, or other legal proceedings of every kind that may be brought or
instituted against Indemnitees, Surfside Colony must defend Indemnitees, at Surfside Colony's
own cost, expense, and risk, and must pay and satisfy any judgment, award, or decree that may
be rendered against Indemnitees. Surfside Colony must reimburse City and its directors,
officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs
incurred by each of them in connection therewith or in enforcing the indemnity herein provided.
Surfside Colony's obligation to indemnify shall not be restricted to insurance proceeds, if any,
received by the City, its directors, officials, officers, employees, agents or volunteers. All duties
of Surfside Colony under this Section shall survive termination of this Agreement.
13.0 Labor Certification
By its signature hereunder, Surfside Colony certifies that it is aware of the provisions of
Section 3700 of the California Labor Code that require every employer to be insured against
liability for Worker's Compensation or to undertake self- insurance in accordance with the
provisions of that Code, and agrees to comply with such provisions before commencing the
performance of the Services.
14.0 Entire Agreement
This Agreement contains the entire Agreement of the parties with respect to the subject
matter hereof, and supersedes all prior negotiations, understandings, or agreements. This
Agreement may only be modified by a writing signed by both parties.
15.0 Severability
The invalidity in whole or in part of any provisions of this Agreement shall not void or
affect the validity of the other provisions of this Agreement.
16.0 Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the
State of California.
17.0 No Third Party Rights
No third party shall be deemed to have any rights hereunder against either Party as a
result of this Agreement.
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18.0 Waiver
•
No waiver of any default shall constitute a waiver of any other default or breach, whether
of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily
given or performed by a Party shall give the other Party any contractual rights by custom,
estoppel, or otherwise.
19.0 Prohibited Interests
Surfside Colony maintains and warrants that it has not employed nor retained any
company or person, other than a bona fide employee working solely for Surfside Colony, to
solicit or secure this Agreement. Further, Surfside Colony warrants that it has not paid nor has it
agreed to pay any company or person, other than a bona fide employee working solely for
Surfside Colony, any fee, commission, percentage, brokerage fee, gift or other consideration
contingent upon or resulting from the award or making of this Agreement. For breach or
violation of this warranty, City has the right to rescind this Agreement without liability. For the
term of this Agreement, no member, officer or employee of City, during the term of his or her
service with City, shall have any direct interest in this Agreement, or obtain any present or
anticipated material benefit arising therefrom.
20.0 Attorneys' Fees
If either Party commences an action against the other Party, either legal, administrative or
otherwise, arising out of or in connection with this Agreement, the prevailing Party in such
litigation shall be entitled to have and recover from the losing Party all of its attorney's fees and
other costs incurred in connection with such action.
21.0 Exhibits
All exhibits referenced in this Agreement are hereby incorporated into the Agreement as
if set forth in full herein. In the event of any material discrepancy between the terms of any
exhibit so incorporated and the terms of this Agreement, the terms of this Agreement shall
control.
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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
By: 49-, m
David Carmany, City Manager
Attest:
By:
Linda Devine, City Clerk
SURFSIDE COLONY, LTD.
By: , W4) G
Name: bAo E FOAw+s
Its: fi^C-s i d e,.fr
Approved as to Form: By:
Name:
By: Its:
Quinn Barrow, City Attorney
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yl ac- t amabE
EXHIBIT A
DESCRIPTION OF SURFSIDE BEACH
The sand area on the beach between Anderson Street and the Seal Beach Naval Weapons Station
from sundecks to the mean high tide line.
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