HomeMy WebLinkAbout3-12-13 REVISED Agenda Packet1
City of Morro Bay
City Council Agenda
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Mission Statement
The City of Morro Bay is dedicated to the preservation and enhancement of the quality of life.
The City shall be committed to this purpose and will provide a level of municipal service and
safety consistent with and responsive to the needs of the public.
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REVISED
REGULAR MEETING
TUESDAY, MARCH 12, 2013
CLOSED SESSION
CITY HALL CONFERENCE ROOM - 5:00 P.M.
595 HARBOR ST., MORRO BAY, CA
ESTABLISH QUORUM AND CALL TO ORDER
CLOSED SESSION PUBLIC COMMENTS - Members of the public may address the City
Council on any matter that is listed on this Closed Session agenda. Unless additional time is
authorized by the City Council, remarks shall be limited to three minutes.
SUMMARY OF CLOSED SESSION ITEMS - The Mayor will read a summary of Closed
Session items.
THE CITY COUNCIL WILL MOVE TO CLOSED SESSION
CS-1 GOVERNMENT CODE SECTION 54957.6; CONFERENCE WITH LABOR
NEGOTIATOR: Conference with City Manager, the City’s Designated Representative,
for the purpose of reviewing the City’s position regarding the terms and compensation
paid to the following employee organizations and giving instructions to the Designated
Representative: Firefighters Association (FFA), Police Officer’s Association (POA), and
Service Employee’s International Union, SEIU Local 620.
CS-2 GOVERNMENT CODE SECTION 54957.6; CONFERENCE WITH LABOR
NEGOTIATOR: Conference with City Council, the City’s Designated Representative,
for the purpose of reviewing the City’s position regarding the terms and compensation
paid to the following unrepresented employees: City Manager and City Attorney.
IT IS NOTED THAT THE CONTENTS OF CLOSED SESSION MEETINGS
ARE CONFIDENTIAL AND EXEMPT FROM DISCLOSURE.
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PUBLIC SESSION
VETERANS MEMORIAL HALL - 6:00 P.M.
209 SURF ST., MORRO BAY, CA
ESTABLISH QUORUM AND CALL TO ORDER
MOMENT OF SILENCE
PLEDGE OF ALLEGIANCE
MAYOR AND COUNCILMEMBERS ANNOUNCEMENTS & PRESENTATIONS
CLOSED SESSION REPORT
PUBLIC COMMENT PERIOD - Members of the audience wishing to address the Council on
City business matters (other than Public Hearing items under Section B) may do so at this time.
To increase the effectiveness of the Public Comment Period, the following rules shall be
followed:
When recognized by the Mayor, please come forward to the podium and state your
name and address for the record. Comments are to be limited to three minutes.
All remarks shall be addressed to Council, as a whole, and not to any individual
member thereof.
The Council respectfully requests that you refrain from making slanderous, profane or
personal remarks against any elected official, commission and/or staff.
Please refrain from public displays or outbursts such as unsolicited applause,
comments or cheering.
Any disruptive activities that substantially interfere with the ability of the City
Council to carry out its meeting will not be permitted and offenders will be requested
to leave the meeting.
Your participation in City Council meetings is welcome and your courtesy will be
appreciated.
In compliance with the Americans with Disabilities Act, if you need special assistance to
participate in this meeting, please contact the City Clerk, (805) 772-6205. Notification 72 hours
prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility
to this meeting.
A. CONSENT CALENDAR
Unless an item is pulled for separate action by the City Council, the following actions are
approved without discussion.
A-1 APPROVAL OF CITY COUNCIL MINUTES FOR THE CITY COUNCIL MEETING
OF FEBRUARY 26, 2013; (ADMINISTRATION)
RECOMMENDATION: Approve as submitted.
A-2 RESOLUTION NO. 19-13 AMENDING COUNCIL POLICIES AND PROCEDURES
MANUAL REGARDING MEETING GUIDELINES & PROCEDURES; (CITY
ATTORNEY)
RECOMMENDATION: Adopt Resolution 19-13.
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A-3 APPROVAL OF LEASE AGREEMENT FOR LEASE SITE 93-95/93W-95W; 901-
915 EMBARCADERO (HARBOR)
RECOMMENDATION: Approve Resolution No. 17-13 for a new Lease Agreement for
Lease Site 93-95/93W-95W.
A-4 AUTHORIZATION FOR ATTENDANCE AT THE C-MANC ANNUAL
WASHINGTON D.C.; (ADMINISTRATION)
RECOMMENDATION: Approve authorization for a two-person delegation to attend
the California Marine Affairs and Navigation Conference (C-MANC) Washington
Week meetings.
A-5 APPROVAL OF THE 2013/14 BUDGET CALENDAR; (ADMINISTRATIVE
SERVICES)
RECOMMENDATION: Approve Calendar.
A-6 STATUS REPORT ON THE UTILIZATION OF BIG BELLY GARBAGE
RECEPTACLES AT THE MORRO ROCK PARKING LOT; (RECREATION &
PARKS)
RECOMMENDATION: Receive status report; no action is required.
A-7 DISCUSSION ON THE STATUS OF THE SALE OF CITY-OWNED PROPERTY AT
THE SOUTHEAST CORNER OF CORAL AVENUE AND SAN JACINTO STREET,
AND AUTHORIZATION FOR STAFF TO SOLICIT A REQUEST FOR PROPOSALS
FOR REAL ESTATE CONTRACT SERVICES TO ASSIST IN THE SALE OF THE
PROPERTY; (CITY ATTORNEY)
RECOMMENDATION: Authorize staff to solicit proposals for real estate contract
services to assist in the sale of City-owned property located at the southeast corner
(SEC) of Coral Avenue and San Jacinto Street.
A-8 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MORRO BAY
SUPPORTING THE DEVELOPMENT OF A PUBLIC BIKE PARK WITHIN THE
CITY LIMITS (RECREATION & PARKS)
RECOMMENDATION: Adopt Resolution 20-13.
A-9 A PROCLAMATION OF THE CITY COUNCIL OF THE CITY OF MORRO BAY
DECLARING APRIL 2013 AS “AUTISM AWARENESS MONTH”;
(ADMINISTRATION)
RECOMMENDATION: Adopt Proclamation.
B. PUBLIC HEARINGS, REPORTS & APPEARANCES - None
C. UNFINISHED BUSINESS
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C-1 RESOLUTION NO. 15-13 ADOPTING THE MID-YEAR BUDGET AMENDMENTS;
(ADMINISTRATIVE SERVICES)
RECOMMENDATION: Adopt Resolution No. 15-13, authorizing the budget
amendments as revised at this meeting.
D. NEW BUSINESS
D-1 INITIATION OF THE PROCESS TO CONSIDER THE ABANDONMENT
(VACATION) OF A PORTION OF THE PUBLIC RIGHT OF WAY WESTERLY OF
THE EXISTING BACK OF CURB OF TORO LANE, BETWEEN YERBA BUENA
AND NORTH POINT SUBDIVISION, USING THE PROCEDURES PROVIDED BY
THE CALIFORNIA STREETS AND HIGHWAYS CODE, SECTION 8300 ET SEQ.
(GREG FRYE, 3420 TORO LANE, APPLICANT); (PUBLIC SERVICES)
RECOMMENDATION: Adopt Resolution Number 18-13, a Resolution of Intention to
abandon a portion of Toro Lane; and finding that the right-of-way abandonment is
consistent with the General Plan no longer needed for its intended purpose and
setting the date for the public hearing ordering the final abandonment.
D-2 APPROVAL OF A REQUEST FOR PROPOSAL (RFP) FOR CONSULTANT
SERVICES TO STUDY OPTIONS FOR MORRO BAY IN THE DEVELOPMENT OF
A WASTEWATER TREATMENT PLANT PROJECT; (PUBLIC SERVICES)
RECOMMENDATION: Approve the RFP for consultant services.
D-3 REVIEW AND DISCUSSION OF WASTEWATER TREATMENT PLANT DRAFT
SCHEDULE OF TASKS NEEDED TO PROCEED WITH THE NEW WASTEWATER
TREATMENT PLANT PROJECT
RECOMMENDATION: Review and provide direction to staff.
E. DECLARATION OF FUTURE AGENDA ITEMS
F. ADJOURNMENT
THIS AGENDA IS SUBJECT TO AMENDMENT UP TO 72 HOURS PRIOR TO THE DATE AND TIME
SET FOR THE MEETING. PLEASE REFER TO THE AGENDA POSTED AT CITY HALL FOR ANY
REVISIONS OR CALL THE CLERK'S OFFICE AT 772-6205 FOR FURTHER INFORMATION.
MATERIALS RELATED TO AN ITEM ON THIS AGENDA SUBMITTED TO THE CITY COUNCIL
AFTER DISTRIBUTION OF THE AGENDA PACKET ARE AVAILABLE FOR PUBLIC INSPECTION
AT CITY HALL LOCATED AT 595 HARBOR STREET; MORRO BAY LIBRARY LOCATED AT 625
HARBOR STREET; AND MILL’S COPY CENTER LOCATED AT 495 MORRO BAY BOULEVARD
DURING NORMAL BUSINESS HOURS.
IN COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT, IF YOU NEED SPECIAL
ASSISTANCE TO PARTICIPATE IN A CITY MEETING, PLEASE CONTACT THE CITY CLERK'S
OFFICE AT LEAST 24 HOURS PRIOR TO THE MEETING TO INSURE THAT REASONABLE
ARRANGEMENTS CAN BE MADE TO PROVIDE ACCESSIBILITY TO THE MEETING.
MINUTES - MORRO BAY CITY COUNCIL
REGULAR MEETING – FEBRUARY 26, 2013
VETERAN’S MEMORIAL HALL – 6:00P.M.
Mayor Irons called the meeting to order at 6:00 p.m.
PRESENT: Jamie Irons Mayor
Christine Johnson Councilmember
Nancy Johnson Councilmember
George Leage Councilmember
Noah Smukler Councilmember
STAFF: Andrea Lueker City Manager
Robert Schultz City Attorney
Jamie Boucher City Clerk
Rob Livick Public Services Director
Steve Knuckles Interim Fire Chief
Eric Endersby Harbor Director
Susan Slayton Administrative Services Director
Joe Woods Recreation & Parks Director
ESTABLISH QUORUM AND CALL TO ORDER
MOMENT OF SILENCE
PLEDGE OF ALLEGIANCE
MAYOR AND COUNCIL MEMBERS REPORTS, ANNOUNCEMENTS &
PRESENTATIONS
CLOSED SESSION REPORT – City Attorney Robert Shultz reported that City Council met in
Closed Session and no reportable action under the Brown Act was taken on the following item:
Conference with City Manager, the City’s Designated Representative, for the purpose of
reviewing the City’s position regarding the terms and compensation paid to the following
employee organizations and giving instructions to the Designated Representative: Firefighters
Association (FFA), Police Officer’s Association (POA), and Service Employee’s International
Union, SEIU Local 620. Regarding Closed Session Item Real Property Negotiations: Right of
Way Adjacent to 3420 Toro Lane, the Council did not discuss or deliberate on this item except to
direct staff to proceed with abandonment proceedings in open session.
City Attorney Schultz reported that City Council met in a Special Closed Session on Monday,
February 25, 2013 to review 23 lease sites. Councilmember George Leage recused himself from
participation on all 23 items. Council directed staff to hold a Study Session on the Tidelands
leases which has been scheduled for Monday, March 25, 2013 at 6pm; the location to be
announced.
MOTION: Councilmember Nancy Johnson moved for approval and presentations of
Proclamation Items A-4 and A-5. The motion was seconded by Councilmember Christine
Johnson and carried unanimously 5-0.
AGENDA NO: A-1 MEETING DATE: 3/12/2013
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MINUTES - MORRO BAY CITY COUNCIL – FEBRUARY 26, 2013
PUBLIC COMMENT
Alexis and Joanne, employees at Thread, a Vintage clothing store located at 400 Morro Bay
Blvd, presented the Morro Bay business report. They also sell furniture, jewelry, shoes, hats,
etc… They are going to be holding a fashion show in April which should be great fun. They are
open 7 days a week from 1030am-530pm and are dog friendly.
Bonnie Johnson asked for the City’s and Council’s support for a Morro Bay Bike Park. She
hoped the concept could parallel the Morro Bay Dog Park. They would raise funds and commit
to volunteer hours. There is no other outdoor bike park in the County, the closest one being over
2+ hours away. They would try to get the local youth involved. They have looked at a few
locations which include Radcliffe and Main; the Teen Center and the Cloisters property. They
have over 250 signatures in support of the project as well as have a Facebook page with over 170
“likes”.
Jonelle Muff announced that its Girl Scout cookie time. She introduced the following girls who
spoke about their involvement in girls scouts and their cookie sales: Madison Neville, Erica
Walker, Mary Grace Stouwie , Hannah Colletti, Maggie May Muff, Gwen Muff, Carly Muff,
Katie Doot and Carris Leicester-Cadaret.
Bill Martony spoke on the Special Closed Session on February 25th. He felt that one business
day noticing didn’t allow enough time for the public to be informed. He was glad to hear there
will be a public workshop. In the future, he feels that closed session should be limited to actual
negotiations of price and terms, everything else should be dealt with in open session.
Alex Kachlakev a professional mountain biker, spoke on the proposed Bike Park. He has seen
first-hand the positive impacts a bike park can give the youth. It offers up a sense of discipline,
keeps kids out of trouble and provides the opportunity for kids to learn the value of responsibility
as they can help with maintenance of the park.
Drew Sidaris spoke representing the Recreation & Parks Commission on the City’s Pocket Park /
Community Garden project. They are in total support of moving forward with the project and
recommend either Park #1 or Park #5 as they are the easiest to maintain and are the most cost
effective.
Emily Gacad spoke in support of the Bike Park. She garnered 100 signatures at the high school
in support of bringing a bike park to Morro Bay.
Betty Winholtz let the City know that Davey Company, a local tree company, was contracted by
PG&E to work around some utility lines by Black Hill. They chose to ignore the City’s
Ordinance prohibiting tree trimming during the bird nesting season, February 1 thru June 1. She
also is in support of a Community Garden over a Pocket Park.
Garry Johnson spoke on the New Times, specifically the Shredder section. He was “shredded”
based on the support he gives his wife. He also advertised the Morro Photo Expo being held
April 18th – April 21st.
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MINUTES - MORRO BAY CITY COUNCIL – FEBRUARY 26, 2013
Lynda Merrill spoke in support of Items A-3, A-4 and A-5. She is concerned about the
differences between newly elected officials and our policies. Maybe the policies need to be
reviewed to possibly reflect new ideas.
Nancy Castle is dedicated to having fun in 2013. She advertised the first Singing and Supper
being held at St. Peters Church on March 15th. Tango and More will be playing and it promises
to be a great time. She also advertised the first ever Sock Hop being held on Saturday, May 4th,
during the Annual Crusin Car Show weekend.
Jordan Smith thinks the Bike Park is a great idea. Santa Cruz is the closest legal bike park. This
would make Morro Bay a great destination place for mountain bikers.
Barbara Doerr lent her support to the Bike Park as it would be great for the kids. She also spoke
on Item D-5, Discussion and Recommendation on Proposed Revisions to the Council Policies
and Procedures. She performed a survey of 25 Channel Cities as to the way they do their public
comment. She is pleased that Mayor Irons has brought the item forward as it provides Council
continuity and understanding of each agenda item. She also requested that we record or video
the public participation of the Closed Session meetings.
Barry Branin spoke on Item D-6, Discussion on the Status of the City of Morro Bay and Cayucos
Sanitary District Waste Water Treatment Plant Project and Review and Approval of Letters to
State and Federal Legislators Regarding Support and Funding for the Project. He attended the
Cayucos Sanitary District’s Board meeting where a proposal was presented by Water Systems
Consulting, offering professional engineering services to help develop preliminary conceptual
alternatives to the treatment and disposal of wastewater collected by the Cayucos Sanitary
District. He also said that Cayucos is holding a workshop on March 5, 2013.
Mayor Irons closed the public comment period.
A. CONSENT CALENDAR
Unless an item is pulled for separate action by the City Council, the following actions are
approved without discussion.
A-1 APPROVAL OF CITY COUNCIL MINUTES FOR THE CITY COUNCIL MEETING
OF FEBRUARY 13, 2013; (ADMINISTRATION)
RECOMMENDATION: Approve as submitted.
A-2 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MORRO BAY,
CALIFORNIA RESCINDING RESOLUTION 45-11 AND RESTORING
COMMERCIAL IMPACT FEES TO THEIR PRE JULY 1, 2011 LEVEL; (PUBLIC
SERVICES)
RECOMMENDATION: Adopt Resolution 16-13.
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MINUTES - MORRO BAY CITY COUNCIL – FEBRUARY 26, 2013
A-3 AWARD OF CONTRACT FOR MB-2012-H2, HARBOR PATROL VESSEL
REPLACEMENT AND BUDGET AMENDMENT TO COMPLETE FUNDING;
(HARBOR)
RECOMMENDATION: Award Contract and authorize necessary budget amendment.
A-4 A PROCLAMATION OF THE CITY COUNCIL OF THE CITY OF MORRO BAY
SUPPORTING THE BUY LOCAL POLICY OF THE COUNTY OF SAN LUIS
OBISPO (ADMINISTRATION)
RECOMMENDATION: Adopt Proclamation
A-5 A PROCLAMATION OF THE CITY COUNCIL OF THE CITY OF MORRO BAY
DECLARING TUESDAY, FEBRUARY 26, 2013 AS “WORLD SPAY DAY”;
(ADMINISTRATION)
RECOMMENDATION: Adopt Proclamation.
A-6 PRESENTATION BY THE MORRO BAY NATURAL HISTORY MUSEUM;
(ADMINISTRATION)
RECOMMENDATION: Receive presentation; no action is required.
Item A-6, Presentation by the Morro Bay Natural History Museum was not made.
Councilmember Nancy Johnson pulled Item A-2 and Mayor Irons pulled Item A-3 from the
Consent Calendar.
MOTION: Councilmember Christine Johnson moved the City Council approve Items
A-1 and A-6 of the Consent Calendar as presented. The motion was seconded by
Councilmember Smukler and carried unanimously 5-0.
A-2 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MORRO BAY,
CALIFORNIA RESCINDING RESOLUTION 45-11 AND RESTORING
COMMERCIAL IMPACT FEES TO THEIR PRE JULY 1, 2011 LEVEL; (PUBLIC
SERVICES)
Councilmember Nancy Johnson pulled this item so that she could vote no.
MOTION: Councilmember Smukler moved for approval of Item A-2, rescinding
Resolution 45-11 and restoring commercial impact fees to their pre July 1, 2011 level.
The motion was seconded by Councilmember Christine Johnson and carried 3-2 with
Councilmembers Nancy Johnson and Leage voting no.
A-3 AWARD OF CONTRACT FOR MB-2012-H2, HARBOR PATROL VESSEL
REPLACEMENT AND BUDGET AMENDMENT TO COMPLETE FUNDING;
(HARBOR)
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MINUTES - MORRO BAY CITY COUNCIL – FEBRUARY 26, 2013
Mayor Irons pulled Item A-3 so that Harbor Director Eric Endersby could give a short report on
the need for the boat replacement.
MOTION: Councilmember Nancy Johnson moved for approval of Item A-3, Award
of Contract for MB-2012-H2, Vessel Replacement and Budget Amendment to Complete
Funding. The motion was seconded by Councilmember Leage and carried unanimously
5-0.
B. PUBLIC HEARINGS, REPORTS & APPEARANCES
B-1 PUBLIC INPUT ON 2013 CITY COUNCIL GOALS; (ADMINISTRATION)
City Manager Andrea Lueker announced the second of two opportunities for the public to
address Council on goals for the upcoming year.
Mayor Irons opened the Public Hearing for public comments.
Lynda Merrill spoke on behalf of friends of hers who were unable to attend the meeting. She
stated there should be more bicycle and pedestrian paths. She also stated that we need a men’s
clothing store and a Rexall Drug. Also, empty storefronts need to get full so that Morro Bay
residents have somewhere to shop.
Barbara Doerr feels we should adopt a Gift Ban Ordinance; she also feels we should adopt a
Sunshine Ordinance which allows government to go above and beyond what the Brown Act
might legally require; she also feels the Power Plant property should be rezoned.
Mayor Irons closed the Public Hearing.
C. UNFINISHED BUSINESS - None
D. NEW BUSINESS
D-1 RESOLUTION NO. 15-13 ADOPTING THE MID-YEAR BUDGET AMENDMENTS,
PLUS THE MEASURE Q COMMITTEE REPORT AND THE DECEMBER 2012
PORTFOLIO PERFORMANCE; (ADMINISTRATIVE SERVICES)
Administrative Services Director Susan Slayton presented the staff report.
Barbara Spagnola, representing the Citizen’s Oversight Committee (Measure Q) presented the
Measure Q report. Highlights of the report include: total revenue for fiscal year was $976,000;
total expenditures were $508,000; ending fund balance was $1,556,000. Funds for the Police
Department were used to service vehicle debt, laserfiche software upgrade and purchase of 3
ballistic vests. Funds for the Fire Department were used towards the construction of the new
Fire Station and funded a fourth Firefighter per shift. Funds for Street Maintenance included
street repairs, cross guttering and tree work. Funding for Storm Drains included minor storm
drain projects with a carryover of $445,000, most of which was reallocated to the Pavement
Management Plan. The Committee was pleased that Measure Q revenues have been spent
consistent with the guidelines of the 2006 ballot measure. They requested that Measure Q funds
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MINUTES - MORRO BAY CITY COUNCIL – FEBRUARY 26, 2013
continue to be spent in a timely manner so as to reduce carryover amounts as well as to
demonstrate to the citizens, visible progress in areas identified in the ballot initiative.
Mayor Irons hoped to continue this item to the next meeting to try and find an additional
$20,000-$30,000. His hopes were to be able to spend that money on funding the Management
Partners Study upgrade.
Councilmember Smukler hoped that Council could see a more detailed transaction report on
accounts – specifically the contracts line.
MOTION: Mayor Irons moved to continue Item D-1, Adoption of the Mid-Year
Budget Amendments with direction to stretch it a little bit to come back with a target
range of $30,000 as well as include detailed transaction reporting. The motion was
seconded by Councilmember Smukler and carried unanimously 5-0.
D-2 DISCUSSION OF THE TEMPORARY IMPROVEMENTS AT THE CORNER OF
SHASTA AND DUNES STREETS; (RECREATION & PARKS)
Recreation & Park Director Joe Woods presented the staff report.
Councilmember Nancy Johnson brought this item forward as an agenda item. She has had
extensive conversations with the Garden Club and the 4H Garden Club and they both fully
understand that this could be a temporary thing. She is in favor of something simple and likes
Park option #1. Both the Garden Club and the 4H will be looking for donations of trees, they
would be doing the planting and they would also like to have a flower garden.
Councilmember Smukler is definitely in support of the project, with the understanding that it
could be temporary. He feels the corner would benefit from having a park there. He also likes
the direction the Garden Club is going in and feels we should defer to them for park concepts as
they will be adopting it. He made a couple of plant location suggestions based on solar
orientation. He has also talked to the Tree Committee who is willing to volunteer to help with
the installation efforts.
Councilmember Christine Johnson thinks it’s great to have collaboration which she feels is what
makes these efforts successful. She wanted to make sure we had a good plan for garbage and
recycling. She is looking forward to the “naming” of the park.
MOTION: Councilmember Nancy Johnson moved to proceed with the Community
Pocket Park project with the Morro Bay Garden Club, the 4H Garden Club and the Public
Arts Foundation to develop a plan with the Recreation & Parks Director and the Adopt a
Park Program with the understanding that this could be a temporary situation. The
motion was seconded by Councilmember Leage and carried unanimously 5-0.
D-3 SELECTION OF TWO (2) PUBLIC WORKS ADVISORY BOARD MEMBERS;
(ADMINISTRATION)
City Manager Andrea Lueker requested that City Council vote to fill the 2 open seats on the
Public Works Advisory Board with the following candidates: Deborah Owen, Stewart Skiff,
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MINUTES - MORRO BAY CITY COUNCIL – FEBRUARY 26, 2013
Eliane Wilson and Janith Goldman. Each of the candidates originally interviewed back on
Monday, January 29th and each candidate is still interested in fulfilling the role of Advisory
Board member.
Each Councilmember voted in the first round; Janith Goldman received 4 votes
(Councilmembers Nancy Johnson, Leage, Christine Johnson and Mayor Irons) and Deborah
Owen received 1 vote (Councilmember Smukler). Each Councilmember voted in the second
round; Deborah Owen received 2 additional votes (Councilmembers Nancy Johnson and Leage),
Stewart Skiff received two votes (Councilmembers Christine Johnson and Smukler) Eliane
Wilson received 1 vote (Mayor Irons). Based on those results, Janith Goldman (4 votes) and
Deborah Owen (3 votes) were selected to the Public Works Advisory Board.
D-4 DISCUSSION AND DIRECTION ON THE PROPOSAL TO UPDATE THE 2008
MANAGEMENT PARTNERS STUDY (ASSESSMENT OF CITY ORGANIZATION
AND FINANCIAL OPTIONS); (ADMINISTRATION)
City Manager Andrea Lueker presented the staff report.
Mayor Irons brought this forward as he feels it’s important to reassess ourselves from time to
time.
Councilmember Nancy Johnson discussed this with the City Manager and feels that staff could
summarize a report on the status of these proposals without spending the money on Management
Partners. With the budget as tight as it is, she finds it difficult to spend this kind of money when
staff could do a majority of it. Feels that the best approach would be to go through each item
individually, get status on each item and then go from there.
Councilmember Smukler agrees with Councilmember Nancy Johnson even though he realizes
that it would also be a good thing to get an unbiased outside firm to do the work. He finds
himself wanting to start with an in-house analysis/review of the 38 recommendations as well as
have staff bring forward any new ideas/options/initiatives; then have a discussion as to what
Council would like to see pursued.
Councilmember Leage agrees that doing this in-house first would be important, bring back a
report and then go from there.
Councilmember Christine Johnson agrees. We have many staff members still here and have
much historical knowledge that could be helpful. She hoped we could do an in-house review
this fiscal year and then potentially go out to RFP in the next fiscal year. There was a lot of
money and time spent on the Management Partner Study and there is still a lot of value we can
get out of it. As far as the structure of how the status report would be prepared – a short update
on each of the 38 items followed by future analysis that would lead to further discussion and
direction.
Mayor Irons realizes that while a majority of the Council is in favor of an update, they are also in
favor of doing it in-house. If we proceed in-house, he feels it’s important to craft exactly the
kind of direction we want out of this, either open ended or bring back to Council for their review
and direction.
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MINUTES - MORRO BAY CITY COUNCIL – FEBRUARY 26, 2013
MOTION: Mayor Irons moved to update the Management Partners Study in-house,
update the 38 recommendations as proposed with Department Head input, explore
additional items and provide a report in April/May. The motion was seconded by
Councilmember Smukler and carried unanimously 5-0.
D-5 DISCUSSION AND RECOMMENDATION ON PROPOSED REVISIONS TO THE
COUNCIL POLICIES AND PROCEDURES; (CITY COUNCIL)
Mayor Irons presented the staff report. He proposed these amendments to Council for their
input, comment and approval.
Council and staff went through the document’s red-lined changes making comments and/or
revisions. City Attorney Rob Schultz will be bringing the document back to the Consent
Calendar along with a Resolution for adoption of changes to the next Council meeting.
D-6 DISCUSSION ON THE STATUS OF THE CITY OF MORRO BAY AND CAYUCOS
SANITARY DISTRICT WASTE WATER TREATMENT PLANT PROJECT AND
REVIEW AND APPROVAL OF LETTERS TO STATE AND FEDERAL
LEGISLATORS REGARDING SUPPORT AND FUNDING FOR THE PROJECT;
(CITY COUNCIL)
Mayor Irons hoped that Council would support forwarding this letter onto Cayucos requesting
their participation as well.
The letter was accepted as is and there was Council majority to forward it onto Cayucos.
MOTION: Mayor Irons moved to approve the letter as written. The motion was
seconded by Councilmember Christine Johnson and carried unanimously 5-0.
City Attorney Rob Schultz has set up a meeting to proceed with the appraisal of the Righetti
property and we should have a document prepared in 45-60 days.
Councilmember Nancy Johnson proposed that the City hire a hydrologist, paid for out of the
water fund, to investigate possible sites for the plant to include formally dismissed sites and
report back to Council with what our options are.
Councilmember Smukler would like to see a refined project timeline brought back to the next
meeting to include short-term, mid-term and long-term. He also feels it’s important to talk about
the timeline at the next Cayucos JPA meeting. He feels we should be clear on how they are
going to compensate us for this work.
Mayor Irons felt that the outline provided by staff was a great start. He asked staff what
direction is needed from Council in order to proceed. Public Services Director Rob Livick gave
an overview of necessary steps that would prove helpful to proceed.
MOTION: Mayor Irons moved to direct staff to bring back an RFP for a Project
Manager, a selection process for the Selection Committee as well as a refined
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MINUTES - MORRO BAY CITY COUNCIL – FEBRUARY 26, 2013
outline/timeline. The motion was seconded by Councilmember Nancy Johnson and
carried unanimously 5-0.
E. DECLARATION OF FUTURE AGENDA ITEMS
Councilmember Christine Johnson requested staff look at creating a Vehicle Maintenance and
Replacement Policy; Mayor Irons and Councilmember Smukler concurred.
Councilmember Smukler requested City support of the Bike Park concept; Mayor Irons and
Councilmember Nancy Johnson concurred.
ADJOURNMENT
The meeting adjourned at 10:50pm.
Recorded by:
Jamie Boucher
City Clerk
Prepared By:
City Manager Review: ______________
City Attorney Review: ______________
Staff Report
TO: Honorable Mayor and City Council DATE: March 6, 2013
FROM: Robert Schultz, City Attorney
SUBJECT: Resolution No. 19-13 Amending Council Policies and Procedures
Manual Regarding Meeting Guidelines & Procedures
RECOMMENDATION
At the February 26, 2013 Council meeting, the City Council requested that various changes be
made to the Council Policies and Procedures Manual regarding Meeting Guidelines &
Procedures. Therefore, staff requests that Council adopt Resolution No. 19-13, amending the
Council Policies and Procedures Manual to incorporate those changes.
DISCUSSION
City Council on February 26, 2013 directed staff to review and revise the Council Policies and
Procedures Manual regarding Meeting Guidelines & Procedures. Staff has reviewed and revised
the Council Policies and Procedures Manual pursuant to your direction, as follows:
1.1.3 STUDY SESSIONS (Open to the public)
1.1.3.1 The purpose of these meetings shall be for informal discussions
between staff, advisory bodies or consultants, the public, and the City
Council regarding specific programs, projects or policies. Council may
provide direction, but no formal action will be taken during a Study
Session. Study Sessions may be conducted in a variety of formats,
including Public Workshops.
1.1.3.2 Study Sessions will be held at a time and place within the City limits
and convenient to Council and advantageous for public participation.
1.1.3.3 Participation of the public shall be at the discretion of the Presiding
Officer, upon consensus of the Council.
AGENDA NO: A-2 Meeting Date: March 12, 2013
Staff Report – Resolution 19-13 Amending Council Policies & Procedures Manual March 6, 2013
City Attorney Page 2 of 4
1.2.3 PLACING AN ITEM ON THE AGENDA (ADVISORY BODIES)
Recommendations made by advisory bodies, as part of their normal scope of duties and
responsibilities, shall be timely placed on the City Council agenda by staff., who shall comply
with the City’s approved Council Agenda Preparation Policy. In the event that an advisory body
desires to bring a matter of special consideration to the City Council (new ideas or concerns, for
example), it may request that an item be placed on a future agenda by submitting a written
request to the Council approved by a majority of the advisory body members and signed by the
Chair. During CommunicationsDeclaration of Future Agenda Items, Aany Mmember of the
Council may ask for consideration of the request pursuant to those procedures set out in 1.2.2.
and upon a majority of Council, a staff report will be prepared and approved by the City
Manager or his/her designee.
1.2.6 RECONSIDERATION
Reconsideration of issues previously acted upon is discouraged. However, in extraordinary
situations, a request to reconsider an action taken by the City Council may be considered. The
request must be presented by a Council Member who voted with the majority at the Council
meeting at which the original vote was taken. The vote may be reconsidered during that
meeting, but no later than the next Council meeting. Debate is limited to the question of whether
or not there is a majority of the Council interested in reconsidering the matter. If a majority of
the council votes to reconsider an action, the matter will be placed on the next or future agenda.
an item shall be allowed in accordance with Robert's Rules of Order and established Council
guidelines. Resubmittal of issues previously acted upon is discouraged, but requests will be
considered upon a consensus of a majority of the Council.
1.2.7 ORDER OF BUSINESS shall be as follows:
1.2.7.1 Establish Quorum and Call to Order
1.2.7.2 Moment of Silence
1.2.7.3 Pledge of Allegiance
1.2.7.4 Closed Session Report
1.2.7.5 Mayor and Council Members Reports, Announcements and
Presentations
1.2.7.5 Closed Session Report
1.2.7.6 Public Comment Public Presentations
1.2.7.7 Consent Calendar Public Comment
1.2.7.8 Public Hearings (shall start no sooner than 7:00 p.m.) Consent Agenda
1.2.7.9 Public Hearings (shall start no sooner than 7:00 p.m.)
1.2.7.910 Unfinished Business
1.2.7.101 New Business
1.2.7.12 Council Declaration of Future Agenda Items (Reso. 76-08), (part)
Staff Report – Resolution 19-13 Amending Council Policies & Procedures Manual March 6, 2013
City Attorney Page 3 of 4
1.3.3.2 Questions to Staff:
A Council Member shall, after recognition by the Presiding Officer,
address questions to the designated staff member. Council Members are
encouraged to provide questions to staff prior to meetings.
1.3.3.5 Tabling Procedure:
Immediately stop discussion and vote. The purpose of the Motion to Lay
on the Table also known as a Motion to Table is to enable the City
Council, by majority vote and without debate, to lay a pending question
aside temporarily when something else of immediate urgency has arisen
or when something else needs to be addressed before consideration of
the pending question is resumed. The Motion shall not be used to cut off
debate and shall only be used when it is necessary to suspend
consideration of a main motion in order to deal with another matter that
has come up unexpectedly and which must be dealt with before the
pending motion can be properly addressed.
1.3.6.7 A Rroll Ccall vote may be taken at the discretion of the Chair Mayor or
Mayor Pro Tem. The City Clerk will call the roll for the roll call vote in
the following manner: 1) Maker of the motion; 2) Member who has
seconded the motion; 3) Additional council members in alphabetical
order by last name; and, 4) Mayor last. The City Clerk shall state for the
record the name of any Council member who is recused or has
abstained.
1.3.7 PUBLIC COMMENT
Members of the public may address the City Council in a variety of ways. Written
comments on agenda items are encouraged. As a courtesy to the Council, citizens are
encouraged to present written comments and are most effective if presented at least one
week day prior to the meeting. This provides the Council with a greater opportunity to
review and consider issues and/or concerns expressed in written communications prior to
a meeting, Written material distributed at the meeting will be made a part of the public
record. If the material is too voluminous for Council to review during the meeting or is
new material not previously considered, Council may at its discretion continue the item to
a future meeting. The Mayor will invite comments from the public in support of, or in
opposition to, specific public hearing agenda items following the staff report. Oral
communications on matters that are not on the agenda and are not public hearing items
may be provided during the Public Comment period at the beginning of every meeting.
The following are guidelines for providing public comments:
Staff Report – Resolution 19-13 Amending Council Policies & Procedures Manual March 6, 2013
City Attorney Page 4 of 4
1.3.7.1 During Public Comment period, at the beginning of every
meeting, Members of the public may address the City
Council on items that are consent agenda items, listed
business items, and/or items that are not on the printed
agenda. For Consent Items, Public Hearing Items, and
Business Items, the Mayor will invite comments from the
public in support of, or in opposition to each specific
Agenda Items following the staff report and any questions
from Council to Staff. At the discretion of the Mayor or
Mayor Pro Tem, speaker slips will be required. Speakers’
time will be limited to three minutes or to the interval
specified by the Mayor or Mayor Pro Tem. The Public
Comment period shall be limited to forty-five minutes.
1.3.7.2 Individuals desiring to speak shall:
1.3.7.3.2 Comment on the specific matter before the Council
(other than calendared public hearings) with reasons
for the position taken
1.3.7.2.2 Limit comments to three (3) minutes or to the
interval specified by the Mayor or Mayor Pro Tem
The Mayor or Mayor Pro Tem with the majority of
Council Members, may reopen public comment
after all have spoken, if necessary to qualify
questions, comments or concerns. A speaker may
not yield their time to another speaker.
CONCLUSION
Staff recommends Council review and adopt Resolution 19-13 amending the Council Policies
and Procedures Manual regarding Meeting Guidelines & Procedures.
RESOLUTION NO. 19-13
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF MORRO BAY, CALIFORNIA
AMENDING COUNCIL POLICIES AND PROCEDURES MANUAL
REGARDING MEETING GUIDELINES & PROCEDURES
T H E C I T Y C O U N C I L
City of Morro Bay, California
WHEREAS, the Council Policies and Procedures Manual for the City of Morro Bay is a
combination of City Council actions, policies, references, and information regarding the City
Council; and
WHEREAS, to ensure that all Councilmembers are familiar with and understand the
City of Morro Bay’s philosophies and policies regarding serving on the City Council, the City of
Morro Bay adopted Resolution 46-02 and its Council Policies and Procedures Manual on August
12, 2002; and
WHEREAS, the City desires to amend certain Sections of the Council Policies and
Procedures Manual related to Meeting Guidelines & Procedures, as follows:
1.1.3 STUDY SESSIONS (Open to the public)
1.1.3.1 The purpose of these meetings shall be for informal discussions
between staff, advisory bodies or consultants, the public, and the City
Council regarding specific programs, projects or policies. Council may
provide direction, but no formal action will be taken during a Study
Session. Study Sessions may be conducted in a variety of formats,
including Public Workshops.
1.1.3.2 Study Sessions will be held at a time and place within the City limits
and convenient to Council and advantageous for public participation.
1.1.3.3 Participation of the public shall be at the discretion of the Presiding
Officer, upon consensus of the Council.
1.2.3 PLACING AN ITEM ON THE AGENDA (ADVISORY BODIES)
Recommendations made by advisory bodies, as part of their normal scope of duties and
responsibilities, shall be timely placed on the City Council agenda by staff., who shall comply
with the City’s approved Council Agenda Preparation Policy. In the event that an advisory body
desires to bring a matter of special consideration to the City Council (new ideas or concerns, for
example), it may request that an item be placed on a future agenda by submitting a written
request to the Council approved by a majority of the advisory body members and signed by the
Chair. During Communications Declaration of Future Agenda Items, Aany Mmember of the
Council may ask for consideration of the request pursuant to those procedures set out in 1.2.2.
and upon a majority of Council, a staff report will be prepared and approved by the City
Manager or his/her designee.
1.2.6 RECONSIDERATION
Reconsideration of issues previously acted upon is discouraged. However, in extraordinary
situations, a request to reconsider an action taken by the City Council may be considered. The
request must be presented by a Council Member who voted with the majority at the Council
meeting at which the original vote was taken. The vote may be reconsidered during that
meeting, but no later than the next Council meeting. Debate is limited to the question of whether
or not there is a majority of the Council interested in reconsidering the matter. If a majority of
the council votes to reconsider an action, the matter will be placed on the next or future agenda.
an item shall be allowed in accordance with Robert's Rules of Order and established Council
guidelines. Resubmittal of issues previously acted upon is discouraged, but requests will be
considered upon a consensus of a majority of the Council.
1.2.7 ORDER OF BUSINESS shall be as follows:
1.2.7.1 Establish Quorum and Call to Order
1.2.7.2 Moment of Silence
1.2.7.3 Pledge of Allegiance
1.2.7.4 Closed Session Report
1.2.7.5 Mayor and Council Members Reports, Announcements and
Presentations
1.2.7.5 Closed Session Report
1.2.7.6 Public Comment Public Presentations
1.2.7.7 Consent Calendar Public Comment
1.2.7.8 Public Hearings (shall start no sooner than 7:00 p.m.) Consent Agenda
1.2.7.9 Public Hearings (shall start no sooner than 7:00 p.m.)
1.2.7.910 Unfinished Business
1.2.7.101 New Business
1.2.7.12 Council Declaration of Future Agenda Items (Reso. 76-08), (part)
1.3.3.2 Questions to Staff:
A Council Member shall, after recognition by the Presiding Officer,
address questions to the designated staff member. Council Members are
encouraged to provide questions to staff prior to meetings.
1.3.3.5 Tabling Procedure:
Immediately stop discussion and vote. The purpose of the Motion to Lay
on the Table also known as a Motion to Table is to enable the City
Council, by majority vote and without debate, to lay a pending question
aside temporarily when something else of immediate urgency has arisen or
when something else needs to be addressed before consideration of the
pending question is resumed. The Motion shall not be used to cut off
debate and shall only be used when it is necessary to suspend
consideration of a main motion in order to deal with another matter that
has come up unexpectedly and which must be dealt with before the
pending motion can be properly addressed.
1.3.6.7 A Rroll Ccall vote may be taken at the discretion of the Chair Mayor
or Mayor Pro Tem. The City Clerk will call the roll for the roll call
vote in the following manner: 1) Maker of the motion; 2) Member who
has seconded the motion; 3) Additional council members in
alphabetical order by last name; and, 4) Mayor last. The City Clerk
shall state for the record the name of any Council member who is
recused or has abstained.
1.3.7 PUBLIC COMMENT
Members of the public may address the City Council in a variety of ways. Written
comments on agenda items are encouraged. As a courtesy to the Council, citizens are
encouraged to present written comments and are most effective if presented at least one
week day prior to the meeting. This provides the Council with a greater opportunity to
review and consider issues and/or concerns expressed in written communications prior to
a meeting, Written material distributed at the meeting will be made a part of the public
record. If the material is too voluminous for Council to review during the meeting or is
new material not previously considered, Council may at its discretion continue the item to
a future meeting. The Mayor will invite comments from the public in support of, or in
opposition to, specific public hearing agenda items following the staff report. Oral
communications on matters that are not on the agenda and are not public hearing items
may be provided during the Public Comment period at the beginning of every meeting.
The following are guidelines for providing public comments:
1.3.7.1 During Public Comment period, at the beginning of every
meeting, Members of the public may address the City
Council on items that are consent agenda items, listed
business items, and/or items that are not on the printed
agenda. For Consent Items, Public Hearing Items, and
Business Items, the Mayor will invite comments from the
public in support of, or in opposition to each specific
Agenda Items following the staff report and any questions
from Council to Staff. At the discretion of the Mayor or
Mayor Pro Tem, speaker slips will be required. Speakers’
time will be limited to three minutes or to the interval
specified by the Mayor or Mayor Pro Tem. The Public
Comment period shall be limited to forty-five minutes.
1.3.7.2 Individuals desiring to speak shall:
1.3.7.3.2 Comment on the specific matter before the Council
(other than calendared public hearings) with reasons
for the position taken
1.3.7.2.2 Limit comments to three (3) minutes or to the
interval specified by the Mayor or Mayor Pro Tem.
The Mayor or Mayor Pro Tem with the majority of
Council Members, may reopen public comment
after all have spoken, if necessary to qualify
questions, comments or concerns. A speaker may
not yield their time to another speaker.
NOW, THEREFORE, be it resolved that the City Council of the City of Morro Bay
does hereby amend certain Sections of the Council Policies and Procedures Manual to reflect the
above amendments.
PASSED AND ADOPTED by the City Council, City of Morro Bay at a regular meeting
thereof held on the 12th day of March, 2013 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
_______________________________
JAMIE L. IRONS, Mayor
ATTEST:
___________________________
JAMIE BOUCHER, City Clerk
Staff Report
TO: Honorable Mayor and City Council DATE: March 4, 2013
FROM: Eric Endersby, Harbor Director
SUBJECT: Approval of Lease Agreement for Lease Site 93-95/93W-95W;
901-915 Embarcadero
RECOMMENDATION
Approve Resolution No. 17-13 for a new Lease Agreement for Lease Site 93-95/93W-95W,
located at 901-915 Embarcadero, with the Held Family Trust and the Smith W and Hannah W
Held Family Trust.
FISCAL IMPACT
There will likely be a negative fiscal impact of approximately $15,000 a year as a result of a 2%
reduction in percent gross of sales liability during the three-year construction period, beginning
with the 2014/2015 fiscal year reporting. However, a positive fiscal impact will be realized
when the proposed new boat slips are completed, as this will trigger an additional percent gross
of sales revenue stream which has never been realized at this site. In addition, the tenants are
proposing a new retail unit to the site, which will further increase percent gross of sales once
developed and subleased.
SUMMARY
The current tenants at Lease Site 93-95/93W-95W submitted and obtained Concept Approval for
a major redevelopment of their lease site. Staff has negotiated a new lease incorporating the
redevelopment proposal, and it is being presented for approval.
BACKGROUND
The Helds were assigned this lease in 1998. It is a 30-year lease that expires in June, 2017. In
November 2011 the tenants began submission of a site development proposal that gained
Planning Commission and City Council Concept Approval in late 2012 under CUP #UPO-342.
AGENDA NO: A-3
MEETING DATE: March 12, 2013
Prepared By: ________ Dept Review:_____
City Manager Review: ________ City Attorney Review: ________
2
At that time the Harbor Director began negotiations for a new lease whereby these tenants and
the tenant for Lease Site 96/96W agreed that the tenants at 93-95/93W-95W would take over a
portion of site 96W in order to build additional slips. This will result in a future change to the
lease lines.
DISCUSSION
The attached new Master Lease is a result of staff negotiating with the tenants, incorporates all
input received from Council, and is on the City’s standard lease format. This lease incorporates
a portion of Lease Site 96W as agreed-upon by all parties and outlined in Section 13.02 of the
lease. The tenants are in full agreement with all terms and conditions of this new lease and with
approval of it are expected to continue to pursue in earnest the additional permits and approvals
necessary for their redevelopment proposal, then begin construction.
These tenants are in good standing in all regards with their current lease and lease payments.
CONCLUSION
With the conclusion of negotiations on a new lease predicated by the tenant’s proposed
redevelopment, staff recommends approval of Resolution No. 17-13 to enter into a new forty
seven year lease with the tenants.
RESOLUTION NO. 17-13
RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF MORRO BAY, CALIFORNIA
APPROVAL OF A FORTY SEVEN YEAR LEASE AGREEMENT FOR
LEASE SITE 93-95/93W-95W BETWEEN THE CITY OF MORRO BAY AND
THE HELD FAMILY TRUST AND THE SMITH W AND HANNAH W HELD
FAMILY TRUST, LOCATED AT 901-915 EMBARCADERO
T H E C I T Y C O U N C I L
City of Morro Bay, California
WHEREAS, the City of Morro Bay is the lessor of certain properties on the
Morro Bay Waterfront described as City Tidelands leases and properties; and
WHEREAS, Smith W Held and Hannah W Held have been the lessees of Lease
Site 93-95/93W-95W since 1998 and are tenants in good standing; and
WHEREAS, the Helds are proposing redevelopment of said property; and
WHEREAS, in accordance with the City’s Master Lease Policy, the City and
lessee have agreed to a new forty seven year lease agreement for Lease Site 93-95/93W-
95W, located at 901-915 Embarcadero.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Morro Bay, California, that the attached new Lease Agreement for Lease Site 93-
95/93W-95W is hereby approved.
BE IT FURTHER RESOLVED, that the Mayor is hereby authorized to execute
said Lease Agreement.
PASSED AND ADOPTED by the City Council of the City of Morro Bay at a
regular meeting thereof held on the 12th day of March, 2013 on the following vote:
AYES:
NOES:
ABSENT:
______________________________
Jamie L. Irons, Mayor
ATTEST:
_____________________________
Jamie Boucher, City Clerk
L E A S E
by and between
the CITY OF MORRO BAY
("CITY")
and
THE HELD FAMILY TRUST
AND SMITH W & HANNAH W HELD FAMILY TRUST
("TENANT")
-i-
TABLE OF CONTENTS
Article 1 FIXED TERM .............................................................................................................2
Section 1.01 Term. ................................................................................................2
Section 1.02 No Extensions. .................................................................................2
Section 1.03 Hold Over.........................................................................................2
Section 1.04 Replacement. ....................................................................................3
Article 2 RENT ..........................................................................................................................3
Section 2.01 Annual Minimum Rent. ...................................................................3
Section 2.02 CPI Adjustment to Annual Minimum Rent. ....................................3
Section 2.03 Calculation of New Minimum Rent. ................................................4
Section 2.04 Percentage Rent. ..............................................................................5
Section 2.05 Reimbursements. ..............................................................................8
Section 2.06 Penalty and Interest. .........................................................................8
Article 3 USE OF PREMISES ...................................................................................................8
Section 3.01 Permitted Uses. ................................................................................8
Section 3.02 Unauthorized Use. ............................................................................8
Section 3.03 Operation of Business - Hours of Operation. ...................................9
Section 3.04 Competition......................................................................................9
Section 3.05 Hazardous Materials. .....................................................................10
Section 3.06 Tidelands Trust. .............................................................................11
Section 3.07 Compliance with Law. ...................................................................11
Section 3.08 Waste or Nuisance. ........................................................................11
Section 3.09 Use by CITY. .................................................................................12
Article 4 CONSTRUCTION, ALTERATION AND REPAIRS .............................................12
Section 4.01 Construction Approval. ..................................................................12
Section 4.02 Construction Bond. ........................................................................12
-ii-
Section 4.03 Mechanics' Liens. ...........................................................................13
Section 4.04 Ownership of Improvements..........................................................14
Article 5 LEASEHOLD MORTGAGES .................................................................................14
Article 6 REPAIRS, MAINTENANCE AND RESTORATION ............................................14
Section 6.01 Maintenance by TENANT. ............................................................14
Section 6.02 Seawalls and Revetment. ...............................................................15
Section 6.03 Legal Requirements. ......................................................................15
Section 6.04 Failure to Repair. ...........................................................................15
Section 6.05 Inspection by CITY........................................................................15
Section 6.06 TENANT'S Duty to Restore Premises. ..........................................16
Section 6.07 Termination of Lease for Destruction. ...........................................16
Section 6.08 Destruction Due to Risk Not Covered by Insurance. .....................17
Article 7 INDEMNITY AND INSURANCE ..........................................................................18
Section 7.01 Indemnity Agreement. ...................................................................18
Section 7.02 Liability Insurance. ........................................................................19
Section 7.03 Worker's Compensation. ................................................................19
Section 7.04 Property Insurance. ........................................................................19
Section 7.05 Additional Coverage. .....................................................................20
Section 7.06 General Requirements. ...................................................................20
Section 7.07 No Subrogation. .............................................................................21
Section 7.08 TENANT'S Waiver. .......................................................................22
Section 7.09 Insurance Not a Limit. ...................................................................22
Article 8 TAXES AND FEES ..................................................................................................22
Section 8.01 TENANT to Pay Taxes. .................................................................22
Section 8.02 TENANT to Pay License and Permit Fees. ...................................22
Section 8.03 Utilities. ..........................................................................................22
-iii-
Article 9 CONDEMNATION ..................................................................................................23
Section 9.01 Total Condemnation. ......................................................................23
Section 9.02 Condemnation Award. ...................................................................23
Section 9.03 Termination for Partial Taking. .....................................................24
Section 9.04 Rent Abatement for Partial Taking. ...............................................24
Section 9.05 Conveyance in Lieu of Eminent Domain. ......................................25
Section 9.06 Temporary Taking. ........................................................................25
Article 10 ASSIGNMENT AND SUBLEASING .....................................................................25
Section 10.01 No Assignment Without CITY'S Consent. ..................................25
Section 10.02 Change of Ownership as Assignment. .........................................26
Section 10.03 Application for Assignment. ........................................................26
Section 10.04 Probate Transfer of Assignment. .................................................27
Section 10.05 No Sublease Without CITY'S Consent. .......................................27
Section 10.06 Subtenant Subject to Lease Terms. ..............................................27
Section 10.07 Consent Form Agreement. ...........................................................28
Section 10.08 TENANT and Guarantor Remain Liable. ....................................28
Section 10.09 Nondisturbance. ...........................................................................28
Article 11 DEFAULT AND TERMINATION ..........................................................................29
Section 11.01 Abandonment by TENANT. ........................................................29
Section 11.02 Termination for Breach by TENANT. .........................................29
Section 11.03 Termination for Failure to Pay Rent. ...........................................29
Section 11.04 Lender May Cure Default. ...........................................................29
Section 11.05 Attorneys' Fees. ............................................................................30
Section 11.06 Damages for Breach. ....................................................................30
Section 11.07 Cumulative Remedies. .................................................................31
Section 11.08 Waiver of Breach. ........................................................................31
Section 11.09 Surrender of Premises. .................................................................31
-iv-
Article 12 MISCELLANEOUS .................................................................................................31
Section 12.01 Attorneys' Fees. ............................................................................31
Section 12.02 Notices. ........................................................................................31
Section 12.03 Governing Law and Jurisdiction. .................................................32
Section 12.04 Binding on Successors. ................................................................32
Section 12.05 Partial Invalidity...........................................................................32
Section 12.06 Sole and Only Agreement. ...........................................................33
Section 12.07 Modification. ................................................................................33
Section 12.08 Time of Essence. ..........................................................................33
Section 12.09 Memorandum of Lease for Recording. ........................................33
Article 13 SPECIAL PROVISIONS PECULIAR TO THIS LEASE SITE .................................34
Section 13.01 Recission of Old Lease ................................................................34
Section 13.02 Construction of Landside and Waterside Improvements .............34
Section 13.03 Public Restrooms .......................................................................346
B-2
L E A S E
This LEASE is made and entered into by and between the CITY OF MORRO BAY, a
municipal corporation of the State of California herein called CITY, and The Held Family Trust
and Smith W & Hannah W Held Family Trust, California Trusts, herein called TENANT.
WITNESSETH
WHEREAS, the State of California granted certain tide and submerged lands located
within the CITY limits of CITY to the County of San Luis Obispo and to its successors, being
Chapter 1076, Statutes of 1947, as amended by Chapter 413, Statutes of 1955, Chapter 1874,
Statutes of 1957, and Chapter 70, Statutes of 1960, first extraordinary session; which Statutes
may be amended from time to time by the Legislature of the State of California; all of which
Statutes are expressly recognized and agreed to be in full force and effect by the parties hereto;
and
WHEREAS, the parties hereto recognize and agree that on July 17, 1964, the CITY of
Morro Bay, Lessor herein, succeeded to all of the right, title and interest of the County of
San Luis Obispo in and to all of the tide and submerged lands conveyed to said County by the
State of California pursuant to the above mentioned acts; and
WHEREAS, judgment has been entered on October 14, 1968, in the case of CITY of
Morro Bay, Plaintiff, versus County of San Luis Obispo, and State of California, Defendants, by
the Superior Court of the State of California in and for the County of San Luis Obispo, #30417,
adjudging and decreeing, among other things, that the title to said tide and submerged lands so
conveyed by the State of California to the County of San Luis Obispo in trust, as set forth above,
passed automatically to the CITY of Morro Bay upon the date of its incorporation as a CITY on
the 17th day of July, 1964; and
WHEREAS, TENANT accepts the within Lease with full knowledge that there is no
warranty of title in and to the within described premises by CITY to TENANT; and
WHEREAS, in order to develop and improve Morro Bay Harbor and to assist in carrying
out the provisions of the tideland grant as aforesaid, and in order to provide facilities for the
accommodation of those using Morro Bay Harbor, CITY desires to lease to TENANT the within
described property upon the terms and conditions set forth herein;
Master Lease 11/01 -2-
NOW, THEREFORE, in consideration of the covenants to be performed and the rental to
be paid by TENANT to CITY, CITY leases to TENANT, and TENANT leases from CITY, all of
the following premises (herein collectively referred to as the "Premises") in the CITY of
Morro Bay, County of San Luis Obispo, State of California, described as follows: Lease Site 93-
95/93W-95W, located at 901-915 Embarcadero Road.
This property is delineated on Parcel Map of the CITY of Morro Bay No. 68-30, which
map was recorded on October 10, 1968, in Book 3, Page 10 of Parcel Maps in the Office of the
County Recorder, San Luis Obispo County, California. A copy of said Map is attached hereto as
Exhibit A and made a part hereof by reference.
Article 1 FIXED TERM
Section 1.01 Term.
The term of this Lease shall be a period of 47 years, commencing July 1, 2013 (the
"Commencement Date"). The term of this Lease shall terminate without notice on June 30,
2060, unless sooner terminated as herein provided.
Section 1.02 No Extensions.
The term of this Lease shall not be extended nor shall this Lease be renewed. Requests
for continued use of the Premises shall be treated as an application for a new lease and shall
require appropriate application to the CITY with all required supporting information and
documents, CITY Council approval and the execution of a new CITY lease, containing the then
most current terms, covenants, conditions and rent schedules.
Section 1.03 Hold Over.
Should TENANT hold the demised Premises after the expiration of the term of this Lease
with the consent of the CITY, express or implied, such holding over (in the absence of a
written agreement between CITY and TENANT with respect thereto) shall be deemed to create a
tenancy from month to month, terminable on thirty (30) days written notice from either party to
the other, at a monthly rental equal to two hundred percent (200%) of the average total Rent per
month for the twelve (12) months immediately preceding the expiration of the Lease, and
otherwise subject to each and every term, covenant and condition of this Lease.
Master Lease 11/01 -3-
Section 1.04 Replacement.
As of the Commencement Date of this Lease, this Lease shall extinguish and replace
every prior lease between CITY and TENANT respecting the Premises, if any. Any right or
interest held by the TENANT pursuant to any existing lease with respect to the Premises which
is not granted pursuant to this Lease shall be extinguished as of the Commencement Date of this
Lease.
Article 2 RENT
Section 2.01 Annual Minimum Rent.
TENANT agrees to pay to CITY a minimum guaranteed annual rental for the use and
occupancy of the Premises, in an initial amount of $61,105.00 per year (the "Minimum Rent"),
payable in advance in equal semiannual installments on January 1 and July 1 each year during
the term of the Lease. If the Commencement Date is other than January 1 or July 1, then
TENANT shall pay, on the Commencement Date, the proportionate amount of the Minimum
Rent payable for the period from the Commencement Date until the next payment date of
January 1 or July 1, as the case may be. If the term of the Lease expires on a date other than
December 31 or June 30, TENANT'S final installment of Minimum Rent shall be proportionate
to the time remaining in the term. All Rent, including the Minimum Rent and the Percentage
Rent, shall be paid in lawful money of the United States of America, without offset or deduction
and shall be paid to CITY at City Hall located at 595 Harbor Street, Morro Bay, California, or at
such other place or places CITY may from time to time designate by written notice delivered to
TENANT.
Section 2.02 CPI Adjustment to Annual Minimum Rent.
(1) The parties agree that as of every July 1 following the Commencement Date
(each, a "CPI Adjustment Date"), except as outlined in section 2.03 hereof, the annual Minimum
Rent shall be adjusted in direct proportion to any upward or downward movement in the
Consumer Price Index for January 1, 2012 which is hereby agreed to be 233.44 (Base Index).
The percentage adjustment for any given year shall be based on the monthly average Index for
the calendar year immediately preceding the CPI Adjustment Date as compared with the Base
Index. The Consumer Price Index referred to herein is the Consumer Price Index (all items
indexes, all urban consumers) for Los Angeles – Riverside – Orange County, California,
compiled and published by the United States Department of Labor, Bureau of Labor Statistics,
1982-84 Base Year = 100 (the "Index")
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(2) The Annual Minimum Rent shall be adjusted as of each CPI Adjustment Date,
and will remain in effect as adjusted until the next CPI Adjustment Date. As an illustration only,
if the Base Index (Jan. 1, 1999 CPI) is 166.1 and the monthly average CPI for 2000 is 171.6, then
the percentage increase is equal to 3.31%. Therefore, the Minimum Rent would be increased by
3.31% as of July 1, 2001, and would continue at that rate through June 30, 2002.
(3) If the United States Department of Labor, Bureau of Labor Statistics, shall cease
to compile and make public the Index as now constituted and issued, but shall substitute another
index in its place, then said substituted index shall be used for the purpose of adjusting the
Minimum Rent for the Premises. If the Index is changed so that the base year differs from that in
effect on the Lease Commencement Date, the Index shall be converted in accordance with the
conversion factor published by the United States Department of Labor, Bureau of Labor
Statistics.
Section 2.03 Calculation of New Minimum Rent.
At the end of the initial five (5) years and of each five-year period thereafter, a new
Minimum Rent shall be calculated for the following five (5) year period (each, a "Subsequent
Rental Period") as follows:
A. The Minimum Rent shall be subject to adjustment by appraisal as of the fifth
anniversary of the Commencement Date and every five years thereafter (each, an "Appraisal
Adjustment Date"). CITY, at its own cost and expense, shall retain an independent qualified
appraiser for determination of the fair market value of said premises. Not more than nine (9)
months prior to each Appraisal Adjustment Date, CITY shall provide written notice to TENANT
of the pending appraisal and the appraiser selected by the CITY to determine the fair market
value of the Premises, excluding fixtures and improvements unless such are expressly included
in the description of the leasehold hereinabove. If TENANT does not reject CITY's appraiser in
writing and within thirty (30) days of CITY's notice of its determination, then the Minimum Rent
for the Subsequent Rental Period shall be in the amount determined by CITY as outlined in this
Section 2.03. If TENANT rejects CITY's appraiser within thirty (30) days following CITY's
notice to TENANT, then within fifteen (15) days after such 30-day period, each party, at its own
cost, shall select an independent professionally designated appraiser who is a member of the
American Institute of Real Estate Appraisers, or the Society of Real Estate Appraisers with a
designation of MAI (Member of American Institute), SRPA (Senior Real Estate Analysis), to
appraise the fair market value of the Premises. CITY may rely on its original appraisal, or select
a new appraiser, at its cost. If a party does not appoint an appraiser within fifteen (15) days after
the other party has given notice of the name of its appraiser, the single appraiser appointed shall
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be the sole appraiser. Each appraiser shall conduct an independent appraisal within thirty (30)
days after appointment. If the parties are unable to agree on the Minimum Rent for the
Subsequent Rental Period within thirty (30) days after receiving the appraisal(s), then each party
shall select one member of a three-member committee. The two so selected members shall select
the third member, and this committee shall by majority vote select one or the other of the
appraisals. The Minimum Rent determined on the basis of the selected appraisal shall be final
and binding and all costs associated with the three-member committee shall be paid equally by
CITY and TENANT.
B. In the event that the appraisal process is not concluded on or before the Appraisal
Adjustment Date, the Minimum Rent shall be adjusted retroactively to such Appraisal
Adjustment Date as set out herein below when said appraisal process is completed.
C. The total Rent payable, including both the Minimum Rent and the Percentage
Rent for each year within the applicable previous five-year period, shall be averaged to produce
the average annual total Rent payable for such previous period.
D. The new Minimum Rent for the five-year period commencing on each Appraisal
Adjustment Date shall be the greater amount of seventy-five percent (75%) of the average of the
total yearly Rent payable during the previous five-year period (as set out in paragraph C. above)
or eight percent (8%) of the fair market value of the Premises (as established in paragraph A.
above.) The new Minimum Rent shall be divided by two to determine the semiannual payments
and shall be paid by TENANT to CITY on the first of each January and July thereafter. This
new Minimum Rent shall be adjusted each following year in proportion to any increase in the
Consumer Price Index as set out in Section 2.02 of this Lease. The base index shall be adjusted
upon each Calculation of new Minimum Rent as set out in this section so that the Base index for
CPI adjustment shall be the Consumer Price Index for January 1 of the year of the calculation of
new Minimum Rent.
Section 2.04 Percentage Rent.
A. In addition to the Minimum Rent, TENANT agrees to pay to CITY at the time
and in the manner hereinafter specified, as additional Rent for the use and occupancy of the
Premises, a percentage of TENANT'S Gross Sales, hereinafter defined, as shown on Exhibit C,
attached hereto and incorporated herein by reference, less the amount of the Minimum Rent paid
pursuant to this Lease (the "Percentage Rent").
B. The term "Gross Sales," as used herein, shall mean (subject to the exceptions and
authorized deductions as hereinafter set forth), the total selling price and the total gross amount
received by TENANT from all rentals, merchandise sold and services rendered in, on or from the
Premises by TENANT, its sublessees, licensees, or concessionaires, both for cash and on credit
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including, but not limited to, rentals of dockage space, leasing and servicing operations and
ticket sales, and if on credit whether or not payment be actually made therefore, all charges for
services, alterations or repairs made in or upon the Premises; the gross amount received by
TENANT for merchandise sold pursuant to orders received in the Premises, though filled
elsewhere; and the gross amount received by TENANT from any and all other sources of income
derived from the business conducted upon the Premises.
C. Notwithstanding the other provisions of Section 2.04, the term "Gross Sales" shall
not include the following items, and such items may be deducted from Gross Sales to the extent
they have been included therein or have been included in a prior computation of Gross Sales or
for which a Percentage Rent has been paid under this Lease to CITY:
(1) Credits and refunds made to customers for merchandise returned or exchanged;
(2) Any sales or excise taxes otherwise includable in Gross Sales as defined in this
Section because such taxes are part of the total selling price of merchandise or services rendered
in, from, or on the Premises, where TENANT must account for and remit the taxes to the
government entity or entities by which they are imposed; and
(3) With respect to credit card sales, fees retained or withheld by the issuer and/or
merchant bank pursuant to TENANT'S credit card acceptance agreement, and
(4) Rental payments to TENANT from sublessees whose total gross sales are
included in gross sales computations.
D. TENANT shall keep or cause to be kept full, complete, and accurate records, and
books of account in accordance with accepted accounting practices showing the total amount of
Gross Sales, as defined herein, made each calendar month in, on or from the Premises.
TENANT shall keep said records and books of account within San Luis Obispo County and shall
notify CITY in advance of their location at all times. Furthermore, TENANT shall at the time of
sale and in the presence of the customer cause the full selling price of each piece of merchandise,
each rental received and each service rendered in, on or from the Premises to be recorded in a
cash register or cash registers that have cumulative totals and are sealed in accordance with
standard commercial practices. Said records, books of account and cash register tapes, including
any sales tax reports that TENANT may be required to furnish any government or governmental
agency shall at all reasonable times be open to the inspection of CITY, CITY'S auditor, or other
authorized representative or agent of CITY. TENANT consents to the release of sales tax
information to CITY and on demand will furnish to CITY a copy of the sales tax reports,
quarterly reports and any audit reports of sales for confidential internal use of the CITY in
determining Gross Sales for TENANT. TENANT consents and authorizes CITY to request such
information directly from the State Board of Equalization or other state agency with which sales
tax information is filed.
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E. By July 31 of each year, TENANT shall furnish CITY with a statement, to be
certified by TENANT as current, true and accurate, which shall set forth the Gross Sales of each
department, sublessee, licensee and concession operating in, on or from the Premises for the
previous twelve (12) calendar months, ending June 30, just concluded, and the authorized
deductions, if any, therefrom; and with it TENANT shall pay to CITY the amount of the
Percentage Rent which is due to CITY as shown thereby. If TENANT shall at any time cause an
audit of sales of TENANT'S business to be made by a public accountant, TENANT shall furnish
CITY with a copy of said audit without cost or expense to CITY. CITY may, once in any
twelve-month period, cause an audit of the business of TENANT to be made by a public
accountant of CITY'S own selection. TENANT shall, upon receiving written notice of CITY'S
desire for such an audit deliver and make available all such books, records and cash register
tapes to the public or certified public accountant selected by CITY. Furthermore, TENANT shall
promptly on demand reimburse CITY for the full cost and expense of said audit, should the audit
disclose that the questioned statement or statements understated Gross Sales by five percent (5%)
or more but less than ten percent (10%). In the event that an audit performed at CITY'S request
discloses that TENANT understated Gross Sales by less than 5%, the cost of such audit shall be
paid by CITY. In the event that any audit or other review of records discloses that the amounts
reported as Gross Sales was understated by TENANT by ten percent (10%) or more, CITY shall
not only be entitled to recover from TENANT all costs of audit and review but shall also be
entitled to recover from TENANT a penalty equal to two times the Percentage Rent due pursuant
to this Lease on such unreported amounts. Whenever any audit discloses that Gross Sales were
understated by any amount, TENANT shall immediately pay the additional Percentage Rent
therein shown to be payable by TENANT to CITY, together with interest at the Default Rate
thereon, from the date the Percentage Rent was payable until the date paid.
F. CITY shall be entitled at any time within five (5) years after the receipt of any
such Percentage Rent payment, to question the sufficiency of the amount thereof and/or the
accuracy of the statement or statements furnished by TENANT to justify the same. For the
purpose of enabling CITY to check the accuracy of any such statement or statements, TENANT
shall for said period of five (5) years after submission to CITY of any such statement keep all of
TENANT'S records, including sales tax returns, all cash register tapes and other data which in
any way bear upon or are required to establish in detail TENANT'S Gross Sales and any
authorized deductions therefrom as shown by any such statements and shall upon request make
the same available to CITY for examination.
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Section 2.05 Reimbursements.
If TENANT fails to perform any term or covenant of this Lease, CITY may, but is not
obligated to, perform such term or covenant, and TENANT shall reimburse CITY therefore as
additional Rent hereunder. As an illustration and not as a limitation, if TENANT fails to procure
the insurance required by this Lease, CITY may, but is not obligated to, obtain such insurance,
with the cost of the premiums being due to CITY upon demand as additional Rent.
Section 2.06 Penalty and Interest.
(1) If any Rent is not received within ten (10) days following the date on which the
Rent first became due, TENANT shall pay a late penalty of ten percent (10%) of the amount of
the Rent in addition to the Rent.
(2) In addition to the penalty, TENANT shall pay interest at the rate of one percent
(1%) per month or fraction thereof or the maximum amount permitted by law as of the date this
Lease is signed, whichever is greater (the "Default Rate"), on the amount of the Rent, exclusive
of the penalty, from the date on which Rent first became delinquent until paid. The term "Rent"
includes any sums advanced by the CITY and any unpaid amounts due from TENANT to the
CITY.
Article 3 USE OF PREMISES
Section 3.01 Permitted Uses.
The Premises shall, during the term of this Lease, be used for the purpose of operating
and conducting thereon and therein the uses permitted by, and in compliance with, Conditional
Use Permit Number UPO-342, as it may be amended from time to time, and for no other
purpose. At the commencement date of the lease, such uses include Restaurant/Dining Room,
Snack Bar/Delicatessen, Fast Food/Convenience Food, Bar/Lounge, Beer and Wine Sales, Retail
and Rental Sales and Service, Boat Slips/Side Ties, Passenger For Hire Operations, Public Rest
Room Facilities.
Section 3.02 Unauthorized Use.
TENANT agrees to allow only those uses authorized in Section 3.01 hereinabove and that
any unauthorized use thereof shall constitute a breach of this Lease and shall, at the option of
CITY, terminate this Lease.
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Section 3.03 Operation of Business - Hours of Operation.
Failure to actively and diligently conduct the business authorized herein constitutes a
breach of the agreement and shall, at the option of CITY, terminate this lease.
(1) TENANT shall during the term of this Lease conduct business of the nature
specified in Section 3.01 of this Lease on the Premises in an efficient and diligent manner and
keep the Premises open for the conduct of business continuously and without interruption for at
least six hours each day of the year except one day each week and legal holidays. This provision
shall not apply if the Premises shall be closed and the business of TENANT is temporarily shut
down for a period not to exceed fourteen (14) calendar days in any calendar year to make
necessary repairs, maintenance or other construction deemed necessary by TENANT. This
provision shall not apply if the Premises shall be closed and the business of TENANT is
temporarily shut down as authorized or required by the CITY Manager or on account of strikes,
walkouts, or causes beyond the control of TENANT or for not more than three (3) days out of
respect to the memory of an officer, employee, or close relative of any officer or employee of
TENANT.
(2) TENANT shall operate TENANT'S business on the Premises with due diligence
and efficiency and in like manner as comparable businesses operated in the CITY or the coastal
area of San Luis Obispo County, so as to produce the maximum amount of Gross Sales and gross
receipts from services which may be produced from TENANT'S business; and TENANT at all
times shall carry on Premises, a stock or merchandise of such size, character, and quality as is
reasonable, designed to produce the maximum return to TENANT, when the sale of merchandise
is a permitted use under this Lease.
Section 3.04 Competition.
During the term of this Lease, TENANT shall not directly nor indirectly acquire or
establish any similar or competing business within a radius of five (5) miles from the location of
the Premises, provided, however, that TENANT may, with prior written approval from CITY,
own or operate more than one business, whether or not competing and similar along the
Embarcadero upon CITY lease sites. The purpose of this section is to prevent and prohibit
TENANT from reducing revenue to CITY by diverting business from the operation at the
Premises to another similar business owned by TENANT within the CITY but not upon a CITY
lease site from which CITY is paid rent based on Gross Sales.
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Section 3.05 Hazardous Materials.
(1) TENANT shall not transport, use, store, maintain, generate, dispose, release, treat
or discharge any "Hazardous Material" (as defined below) upon or about the Premises (such
activities being hereafter referred to as "Hazardous Materials Activities"), nor permit TENANT'S
employees, agents, or contractors to engage in Hazardous Materials Activities upon or about the
Premises, except as allowed by applicable law. The term "Hazardous Material" for purposes
hereof shall mean any chemical, substance, material or waste or component thereof which is now
or hereafter listed, defined or regulated as a hazardous or toxic chemical, substance, material or
waste or component thereof by any federal, state or local governing or regulatory body having
jurisdiction, or which would trigger any employee or community "right-to-know" requirements
adopted by any such body. All Hazardous Materials Activities at the Premises shall be
conducted strictly in accordance with all applicable laws and regulations. If TENANT shall
transport any hazardous waste from the Premises, such transportation shall be done only by a
contractor duly licensed to haul hazardous waste and shall use only a duly licensed disposal site
approved by TENANT'S liability insurer.
(2) TENANT shall promptly notify CITY of: (i) any enforcement, cleanup or other
regulatory action taken or threatened by any governmental or regulatory authority with respect to
the presence of any Hazardous Material on the Premises or the migration thereof from or to other
property, (ii) any demands or claims made or threatened by any party against TENANT or the
Premises relating to any loss or injury resulting from any Hazardous Material on or from the
Premises, and (iii) any matters where TENANT is required by applicable law to give a notice to
any governmental or regulatory authority respecting any Hazardous Material on the Premises.
CITY shall have the right (but not the obligation) to inspect the Premises, to take such remedial
action on the Premises, as CITY may deem appropriate, and to join and participate, as a party, in
any legal proceedings or actions affecting the Premises initiated in connection with any
environmental, health or safety law.
(3) If any Hazardous Material is released, discharged or disposed of by TENANT or
its employees, agents or contractors, on or about the Premises in violation of the foregoing
provisions, TENANT shall immediately notify CITY. CITY may elect either to take such
remedial action as CITY deems appropriate, in which event TENANT shall reimburse CITY for
all costs thereof within ten (10) days after demand, or direct TENANT to perform such
remediation. If CITY directs TENANT to perform the remediation, TENANT shall immediately
take such remedial action, as CITY shall direct. TENANT shall, properly and in compliance
with applicable laws clean up and remove the Hazardous Material from the Premises and any
other affected property at TENANT'S expense. If CITY directs TENANT to perform
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remediation hereunder and if TENANT shall fail to comply with the provisions of this
Section within five (5) days after written notice by CITY, or such shorter time as may be
required by applicable law or in order to minimize any hazard to persons or property, CITY may
(but shall not be obligated to) arrange for such compliance directly or as TENANT'S agent
through contractors or other parties selected by CITY at TENANT'S expense (without limiting
CITY'S other remedies under this Lease or applicable law).
Section 3.06 Tidelands Trust.
TENANT shall use and occupy the Premises in strict compliance with the Tidelands
Trust purposes under which the Premises or any portion thereof are held by CITY pursuant to the
grants from the State of California as set forth in this Lease.
Section 3.07 Compliance with Law.
TENANT shall, at no cost to CITY, comply with all of the requirements of all local,
municipal, county, state and federal authorities now in force, or which may hereafter be in force,
pertaining to the Premises, and shall faithfully observe in the use of the Premises all local,
municipal and county ordinances and state and federal statutes, rules, regulations and orders now
in force or which may hereafter be in force (collectively, "Legal Requirements") provided that
TENANT shall not be required to comply with any Legal Requirement imposed by the CITY
that would substantially deprive TENANT of a material benefit under this lease unless such
Legal Requirement has been imposed or required by a county, state or federal authority. The
judgment of any court of competent jurisdiction, or the admission of TENANT in any action or
proceeding against TENANT, whether CITY be a party thereto or not, that TENANT has
violated any such Legal Requirement in the use of the Premises shall be conclusive of that fact as
between CITY and TENANT.
Section 3.08 Waste or Nuisance.
TENANT shall not commit or permit the commission by others of any waste on the
Premises; TENANT shall not maintain, commit, or permit the maintenance or commission of
any nuisance as defined by law on the Premises; and TENANT shall not use or permit the use of
the Premises for any unlawful purpose.
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Section 3.09 Use by CITY.
(1) Subject to TENANT's rights hereunder to possession of the Premises, CITY may
grant licenses to, or otherwise authorize, other persons and entities permitting uses of the Morro
Bay Harbor.
(2) CITY also retains and reserves for itself, its successors and assigns, all oil, gas,
petroleum and other mineral or hydrocarbon substances in and under the lands leased hereby
together with right to prospect and extract all such substances.
Article 4 CONSTRUCTION, ALTERATION AND REPAIRS
Section 4.01 Construction Approval.
(1) TENANT shall not make or permit any other person to make any alterations or
structural additions or structural modifications to the Premises or to any structure thereon or
facility appurtenant thereto if the cost thereof shall exceed ten thousand dollars ($10,000),
without the prior written consent of CITY. The consent to be obtained pursuant to this
Section 4.01(1) shall be requested from the Harbor Director, or the City’s designee, for CITY. If
the Harbor Director or any future successor to the duties of the City’s Harbor Director, or the
City’s designee, gives such consent to proceed, it is understood that such consent is given by
CITY only in its capacity as the landlord under this Lease and not as the permit-issuing
authority. TENANT remains obligated to obtain any needed building permits and comply with
all applicable planning processes.
(2) Where required by the Morro Bay Municipal Code, California Coastal Act, Corps
of Engineers or any other state or federal agency having authority over the proposed project, then
all Conditional Use Permits, Concept Plans, Precise Plans, Coastal Development Plans, and any
other required plans or permits shall be applied for and approved prior to any construction,
alteration or repairs.
Section 4.02 Construction Bond.
(1) Prior to the commencement of any construction the cost of which is greater than
the amount of one hundred thousand dollars ($100,000), TENANT shall file with the Morro Bay
CITY Clerk a final detailed Civil Engineer's, Registered Architect's or Licensed and Bonded
General Contractor's estimate of the cost of construction and installation of improvements on the
Premises. Said estimate must be submitted to the CITY Engineer for approval. TENANT shall
file with the Morro Bay CITY Clerk a faithful performance bond, in a form and issued by a
corporate surety company satisfactory to CITY, in an amount satisfactory to CITY but not in
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excess of one hundred percent (100%) of the final detailed cost estimate, securing the faithful
performance of TENANT or its contractor in the completion of said construction.
(2) TENANT shall also file with the Morro Bay CITY Clerk a labor and materials
bond, in a form and issued by a corporate surety company satisfactory to CITY, in an amount
satisfactory to CITY but not in excess of one hundred percent (100%) of the final detailed cost
estimate, securing the payment of all claims for the performance of labor or services on, or the
furnishing of materials for, the performance of said construction.
(3) In lieu of the above referenced bonds, TENANT may post cash deposits or may
make other mutually satisfactory arrangements to guarantee the completion of construction
projects. In the event the contractor bonds the project, CITY may be named as additional
indemnitee to comply with these requirements.
Section 4.03 Mechanics' Liens.
At all times during the term of this Lease, TENANT shall keep the Premises and all
buildings, installations and other improvements now or hereafter located on the Premises free
and clear of all liens and claims of liens for labor, services, materials, supplies, or equipment
performed on or furnished to the Premises. TENANT further agrees to at all times, save CITY
free and harmless and indemnify CITY against all claims for labor or materials in connection
with any improvement, repairs, or alterations on the Premises, and the cost of defending against
such claims, including reasonable attorneys' fees. Should TENANT fail to pay and discharge or
cause the Premises to be released from such liens or claim of liens within ten (10) days after the
filing of such lien or levy, TENANT shall upon written notification be required to immediately
deposit with CITY a bond conditioned for payment in full of all claims on which said lien or levy
has been filed. Such bond shall be acknowledged by TENANT as principal and by a company or
corporation, licensed by the Insurance Commissioner of the State of California to transact the
business of a fidelity and surety insurance company as surety. The beneficiary of any security
instrument which instrument is on record with CITY, shall have the right to file such a bond on
behalf of TENANT. CITY shall have right to post and keep posted on the Premises notices of
non-responsibility and any other notices that may be provided by law or which CITY may deem
proper for the protection of CITY and Premises from such liens. TENANT shall give CITY
notice at least twenty (20) days prior to commencement of any work on the Premises to afford
CITY the opportunity to post such notices.
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Section 4.04 Ownership of Improvements.
The parties agree that CITY has the option and right to require TENANT to remove all
buildings, structures, installations, improvements of any kind or other property belonging to or
placed upon the Premises by TENANT at the termination of this Lease, however occurring,
providing CITY gives notice, in writing, no later than thirty (30) days prior to the termination of
the Lease, of its decision to require that such improvements be removed. The parties agree that
if the CITY exercises its option, then at the termination of this Lease, however occurring,
TENANT shall have sixty (60) days thereafter to remove all buildings, structures, facilities,
installations, improvements and other property belonging to TENANT from the Premises. If
CITY exercises such option and TENANT fails to remove all such improvements and other
property within sixty (60) days after the termination of this Lease, CITY shall have the right to
have any or all such improvements and other property removed at the expense of TENANT. If
CITY does not exercise its option to remove (or require the removal of) the improvements and
other property, then title to such improvements and other property shall vest in CITY and
TENANT shall not remove same.
Article 5 LEASEHOLD MORTGAGES
Tenant shall not mortgage, securitize or hypothecate the leasehold interest in
whole or any part without the prior written approval of City as evidenced by a resolution of the
City Council of the City of Morro Bay.
Article 6 REPAIRS, MAINTENANCE AND RESTORATION
Section 6.01 Maintenance by TENANT.
At all times during the term of this Lease, TENANT shall, at TENANT'S own cost and
expense, keep and maintain all improvements now or hereafter on the Premises in good order
and repair and in a safe and clean condition. Furthermore, TENANT shall, at TENANT'S own
cost and expense, maintain at all times during the term of this Lease the whole of the Premises in
a clean, sanitary, neat and orderly condition. CITY may, at the sole option of CITY, clean and
clear the Premises, at TENANT'S cost and expense, in the event TENANT fails to clean and
clear the Premises in accordance with this Section to the satisfaction of CITY after fifteen (15)
days' written notice to TENANT from CITY of CITY'S intent to exercise this option.
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Section 6.02 Seawalls and Revetment.
At all times during the term of this Lease, TENANT shall at TENANT'S own cost and
expense repair, maintain, replace and rebuild as necessary, the improvements, pilings, bulkheads,
seawalls, revetment, piers, posts and any structures or other improvements located in the water
portion of the Premises. Further, TENANT shall at TENANT'S own cost and expense conduct
maintenance surveys at reasonable intervals to locate and determine needed repairs.
Section 6.03 Legal Requirements.
At all times during the term of this Lease, TENANT, at no cost to CITY, shall:
(1) Make all alterations, additions, or repairs to the Premises or the
improvements or facilities on the Premises required by any Legal Requirements (as defined in
Section 3.07 above) now or hereafter made or issued;
(2) Observe and comply with all Legal Requirements now or hereafter made
or issued respecting the Premises or the improvements or facilities located thereon;
(3) Obtain all required permits pursuant to the Morro Bay Municipal Code or
State law prior to the initiation of any repair or maintenance activity; and
(4) Indemnify and hold CITY and the property of CITY, including the
Premises, free and harmless from any and all liability, loss, damages, fines, penalties, claims and
actions resulting from TENANT'S failure to comply with and perform the requirements of this
section.
Section 6.04 Failure to Repair.
In the event failure to repair results in a hazardous or unsafe condition, CITY shall have
the right and option but not the obligation to close and prohibit access to the unsafe portion of the
Premises until such repairs are completed and accomplished and the Premises rendered safe for
public use. In addition, if TENANT fails to repair any hazardous or unsafe condition within ten
(10) days of written notice thereof from CITY, CITY shall have the right, but not the obligation,
to perform such repair at TENANT'S expense. TENANT shall reimburse CITY for any such
repair undertaken by CITY, promptly upon CITY'S demand, as additional Rent. Failure by
CITY to enforce any of the provisions of this Article shall not constitute a waiver of these
provisions and CITY may at any time enforce all of the provisions of this Article, requiring all
necessary repairs, rebuilding or replacement.
Section 6.05 Inspection by CITY.
CITY or CITY'S agents, representatives, or employees may enter the Premises at all
reasonable times for the purpose of inspecting the Premises to determine whether TENANT is
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complying with the terms of this Lease and for the purpose of doing other lawful acts that may
be necessary to protect CITY'S interest in the Premises under this Lease or to perform CITY'S
duties under this Lease.
Section 6.06 TENANT'S Duty to Restore Premises.
(1) Except as provided in Section 6.07 below, if at any time during this Lease, any
improvements now or hereafter on the Premises are destroyed in whole or in part by the
elements, or any other cause not the fault of TENANT or CITY, this Lease shall continue in full
force and effect and TENANT, at TENANT'S own cost and expense, shall repair and restore the
damaged or destroyed improvement(s) according to the original plan thereof or according to such
modified plans therefore as shall be approved in writing by CITY. The work of permitting,
repair and restoration shall be commenced by TENANT within one hundred eighty (180) days
after the damage or destruction occurs shall be pursued with due diligence, and shall be
completed not later than one year after the work is commenced, unless the parties hereto
mutually agree, in writing, to an extension. In all other respects, the work of repair and
restoration shall be done in accordance with the requirements for construction work on the
Premises set forth in Article 4 of this Lease. Any failure by TENANT either to commence or to
complete repair and restoration as required by this Section 6.06 shall be a material default under
this Lease.
(2) Any and all insurance proceeds that become payable at any time during the term
of this Lease because of damage to or destruction of any improvements on the Premises shall be
paid to TENANT and applied by TENANT toward the cost of repairing and restoring the
damaged or destroyed improvements in the manner required by this Section 6.06, or, if this
Lease is terminated, then applied as provided in Section 6.07. Except as set forth in Section 6.08
below, TENANT'S obligation to restore pursuant to this Section shall exist whether or not funds
are available from insurance proceeds.
Section 6.07 Termination of Lease for Destruction.
(1) Notwithstanding the provisions of Section 6.06 of this Lease, TENANT shall
have the option of terminating this Lease as provided in this Section 6.07 if:
(a) During the last fifteen (15) years of the term of this Lease, any
improvements now or hereafter on the Premises are so damaged or destroyed by the elements or
any cause not the fault of TENANT or CITY, that they cannot be repaired and restored as
required by Section 6.06 of this Lease at a cost not exceeding thirty-five percent (35%) of the
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cost of replacing all improvements if they had been totally destroyed at the time of such damage;
or
(b) During the last ten (10) years of the term of this Lease, any improvements
now or hereafter on the Premises are so damaged or destroyed by the elements or any cause not
the fault of TENANT or CITY, that they cannot be repaired and restored as required by
Section 6.06 of this Lease at a cost not exceeding fifteen percent (15%) of the cost of replacing
all improvements if they had been totally destroyed at the time of such damage.
(2) TENANT may exercise its right to terminate pursuant to this Section 6.07 by
providing written notice to CITY within one hundred eighty (180) days following damage or
destruction as described herein. Such termination shall be effective on the last day of the
calendar month following the month in which TENANT provides its notice.
(3) If TENANT fails to commence or complete repair and restoration as required by
Section 6.06, CITY shall have all rights and remedies with respect to TENANT's default,
including but not limited to termination of this Lease pursuant to Article 11.
(4) If this Lease is terminated as a result of damage or destruction, then any insurance
proceeds received with respect to the improvements shall be applied or distributed in the
following order:
(a) first, to the demolition of the improvements and removal of all demolition
debris; then
(b) to any accrued and unpaid Rent as of the effective date of the termination;
then
(c) to each Lender under a Leasehold Encumbrance, in order of lien priority,
an amount not to exceed the amount due under such Leasehold Encumbrance; then
(d) to CITY, an amount equal to the present value, as of the date of
termination, of the total Minimum Rent for the remainder of the Term; then
(e) the remaining proceeds, if any, to TENANT.
Section 6.08 Destruction Due to Risk Not Covered by Insurance.
Notwithstanding anything to the contrary in Section 6.06 of this Lease, TENANT shall
have the right to terminate this Lease at any time if the improvements on the Premises are
damaged or destroyed by a casualty for which TENANT is not required under this Lease to carry
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insurance and the cost to repair or restore such improvements exceeds fifty percent (50%) of the
fair market value of all the improvements on the Premises immediately prior to the damage or
destruction.
Article 7 INDEMNITY AND INSURANCE
Section 7.01 Indemnity Agreement.
(1) TENANT shall indemnify and hold CITY, and the property of CITY (including
the Premises and any improvements now or hereafter on the Premises), and the CITY'S officers,
officials, employees and volunteers harmless from any and all liability, claims, loss, damages,
and expenses, including attorney fees and litigation expenses, resulting from TENANT'S
occupation and use of the Premises or any negligent act or omission of the TENANT or any of
its subtenants, employees, contractors or anyone for whom TENANT may be liable, specifically
including, without limitation, any liability, claim, loss, damage, or expense arising by reason of:
(a) The death or injury of any person, including TENANT or any person who
is an employee or agent of TENANT, or by reason of the damage to or destruction of any
property, including property owned by TENANT or by any person who is an employee or agent
of TENANT, from any cause whatever while such person or property is in or on the Premises or
in any way connected with the Premises or with any of the improvements or personal property on
the Premises;
(b) The death or injury of any person, including TENANT or any person who
is an employee or agent of TENANT, or by reason of the damage to or destruction of any
property, including property owned by TENANT or any person who is an employee or agent of
TENANT, caused or allegedly caused by either (i) the condition of the Premises or any
improvement placed on the Premises by TENANT, or (ii) any act or omission on the Premises
by TENANT or any person in, on, or about the Premises with or without the permission and
consent of TENANT;
(c) Any work performed on the Premises or materials furnished to the
Premises at the instance or request of TENANT or any person or entity acting for or on behalf of
TENANT;
(d) TENANT'S failure to perform any provision of this Lease or to comply
with any Legal Requirement imposed on TENANT or the Premises.
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(2) TENANT'S obligations pursuant to this Section to indemnify and hold harmless
do not extend to any liability, claim, loss, damage or expense arising from CITY'S active
negligence or willful misconduct.
Section 7.02 Liability Insurance.
During the term of this Lease, TENANT shall maintain at its cost Commercial General
Liability insurance with coverages at least as broad as ISO Forms labeled “City of Morro Bay
Insurance requirements for Lessees”, Certificate of Insurance – City of Morro Bay”, and
“Additional Insureds – Managers or Lessors of Premises” attached hereto as Exhibit B and made
a part hereof as may be updated or changed from time to time at the sole discretion of the CITY,
insuring against claims for bodily injury (including death), property damage, contractual liability,
personal injury and advertising injury occurring on the Premises or from operations located in
any part of the Premises. Such insurance shall afford protection in amounts no less than One
Million Dollars ($1,000,000) per occurrence for bodily injury, personal injury and property
damage, provided that if insurance with a general aggregate limit is used, either the general
aggregate limit shall apply separately to the Premises or the general aggregate limit shall be
twice the occurrence limit stated in this Section. All liability insurance carried by TENANT
hereunder shall name CITY, its officers, officials, employees and volunteers as additional
insureds, and shall be primary insurance with respect to such additional insureds. TENANT
shall include all its subtenants as insureds under TENANT's liability policies or shall furnish
separate certificates and endorsements for each subtenant. All coverages for subtenants shall
comply with all requirements of this Article Seven.
Section 7.03 Worker's Compensation.
TENANT shall maintain at TENANT'S own expense and keep in full force and effect
during the term of this Lease, Worker's Compensation Insurance as provided by law. Said
insurance shall contain a waiver of subrogation rights against CITY. TENANT shall also
maintain employer's liability insurance with minimum coverage of $1,000,000 per accident for
bodily injury or disease.
Section 7.04 Property Insurance.
TENANT shall, at its cost, at all times during the term of this Lease keep all
improvements and other structures on the Premises, as well as any and all additions,
improvements and betterments thereto, insured for one hundred percent (100%) of their full
replacement cost with no co-insurance provision against loss or destruction by the perils covered
by "all risk" (excluding earthquake) property damage insurance policies. Any loss payable under
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such insurance shall be payable to TENANT, CITY, and any Lender under a Leasehold
Encumbrance pursuant to Article 5 of this Lease, as their interests may appear, and such proceeds
shall be used and applied in the manner required by Article 6 of this Lease.
Section 7.05 Additional Coverage.
TENANT shall also maintain, at its expense, the insurance described in this Section 7.05.
(1) If TENANT has (or is required by any Legal Requirement to have) a liquor
license and is selling or distributing alcoholic beverages on the Premises, then TENANT shall
maintain liquor liability coverage in appropriate amounts. TENANT shall require any subtenant
who has (or is required by any Legal Requirement to have) a liquor license and who is selling or
distributing alcoholic beverages on the Premises, to maintain such coverage.
(2) TENANT shall maintain "all risk" (excluding earthquake) property damage
insurance covering TENANT's personal property located at the Premises, in amounts not less
than the full replacement value of such personal property. CITY shall have no interest in the
proceeds of such insurance.
(3) TENANT shall, at TENANT's own expense, obtain and maintain any additional
insurance coverages that CITY may reasonably require. As illustration only and not as a
limitation, in appropriate circumstances such additional insurance may include increased general
liability limits, business interruption coverage, business automobile liability, boiler and
machinery insurance and/or builder's risk insurance. However, TENANT shall not be required to
maintain additional coverages that are in excess of those typically maintained by similarly
situated tenants in the Morro Bay area.
Section 7.06 General Requirements.
Except as specifically provided to the contrary, all the insurance required pursuant to this
Article Seven shall be subject to the requirements of this Section 7.06.
(1) Maintenance of proper insurance coverage is a material element of this Lease and
failure to maintain or renew coverage or to provide evidence of coverage and/or renewal may be
treated by the CITY as a material breach of contract. TENANT shall forward the CITY
specifications and forms to TENANT’S insurance agent for compliance.
(2) CITY may at any time require TENANT to increase the minimum coverage limits
for insurance required by this Lease, but every such increase shall be reasonable under the
circumstances.
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(3) All policies shall be issued by insurance companies authorized to issue such
insurance in California, with an A.M. Best's rating of no less than A:VII.
(4) Any deductibles or self-insured retentions must be declared to and approved by
CITY. At the option of CITY, either: the insurer shall reduce or eliminate such deductibles or
self-insured retentions as respects CITY, its officers, officials, employees and volunteers; or the
TENANT shall provide a financial guarantee satisfactory to CITY guaranteeing payment of
losses and related investigations, claim administration and defense expenses.
(5) Each insurance policy required by this Lease shall be endorsed to state that
coverage shall not be cancelled or reduced, except after thirty (30) days' prior written notice by
certified mail, return receipt requested, has been given to CITY.
(6) TENANT shall furnish CITY with certificates and amendatory endorsements
effecting the coverage required by this Lease. The endorsements shall be on forms provided by
CITY or on other than CITY's forms, provided those endorsements or policies conform to the
requirements. All certificates and endorsements are to be received and approved by CITY before
use of the Premises, and promptly following any renewal or replacement. CITY reserves the
right at any time to require complete, certified copies of all required insurance policies, including
endorsements effecting the coverage required by these specifications.
(7) TENANT's insurance coverage shall be primary insurance as respects CITY, its
officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by
CITY, its officers, officials, employees, or volunteers shall be excess of TENANT's insurance
and shall not contribute with it.
Section 7.07 No Subrogation.
TENANT agrees that in the event of loss due to any of the perils for which it has agreed
to provide insurance, TENANT shall look solely to its insurance for recovery. TENANT hereby
grants to the CITY, on behalf of any insurer providing insurance to either TENANT or CITY
with respect to TENANT'S occupancy of the Premises, a waiver of any rights to subrogation
which any such insurer of said TENANT may acquire against the CITY by virtue of the payment
of any loss under such insurance. Each insurance policy required under this Lease including
those insuring TENANT against claims, expense, or liability for injury to persons or property
shall provide that the insurer shall not acquire by subrogation any right to recovery which
TENANT has expressly waived in writing prior to the occurrence of the loss.
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Section 7.08 TENANT'S Waiver.
TENANT hereby waives any right of recovery against CITY for each claim, expense,
liability, or business interruption, or other loss, except where caused by CITY'S active
negligence or willful misconduct. TENANT agrees that to the extent that TENANT fails to
acquire insurance, TENANT shall not have any claim against CITY for any loss that results from
a risk or peril that would have been included in such insurance.
Section 7.09 Insurance Not a Limit.
The insurance requirements of this Article Seven are independent of, and do not limit or
modify, TENANT'S indemnification and other obligations pursuant to this Lease.
Article 8 TAXES AND FEES
Section 8.01 TENANT to Pay Taxes.
TENANT shall pay, before delinquency, all taxes and assessments levied upon or
assessed to TENANT on the Premises by reason of this Lease or of any equipment, appliances,
improvement, or other development of any nature whatsoever, erected, installed, or maintained
by TENANT or by reason of the business or other activity of TENANT upon or in connection
with the Premises. TENANT shall pay all possessory interest taxes applicable to the Premises.
Section 8.02 TENANT to Pay License and Permit Fees.
TENANT shall pay any fees imposed by law for licenses or permits for any business or
activities including construction by TENANT upon the Premises.
Section 8.03 Utilities.
TENANT shall pay, or cause to be paid, and hold CITY and the property of CITY,
including the Premises, free and harmless from all charges for the furnishing of gas, water,
electricity, telephone service, and for other public utilities to the Premises during the term of this
Lease and for the removal of garbage and rubbish from the Premises during the term of this
Lease.
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Article 9 CONDEMNATION
Section 9.01 Total Condemnation.
If title and possession to all of the Premises is permanently taken for any public or quasi-
public use under any statute, or by the right of eminent domain, then this Lease shall terminate
on the date that possession of the Premises is taken, and both CITY and TENANT shall
thereafter be released from all obligations, including Rent, all of which shall be prorated to the
date of termination, except those specified in Section 9.02 of this Lease.
Section 9.02 Condemnation Award.
Any compensation or damages awarded or payable because of the permanent taking of all
or any portion of the Premises by eminent domain shall be allocated between CITY and
TENANT as follows:
(1) All compensation or damages awarded or payable for the taking by eminent
domain of any land that is part of the Premises shall be paid to and be the sole property of CITY
free and clear of any claim of TENANT or any person claiming rights to the Premises through or
under TENANT.
(2) All compensation or damages awarded or payable which is specifically attributed
by the taking party to the "good will" of TENANT'S business shall be paid to and be the sole
property of TENANT.
(3) All compensation or damages awarded or payable because of any improvements
constructed or located on the portion of the Premises taken by eminent domain where only a
portion of the Premises is taken by eminent domain, and TENANT is not entitled to or does not
terminate this Lease, shall be applied in the manner specified in Section 9.04 toward the
replacement of such improvements with equivalent new improvements on the remaining portions
of the Premises.
(4) All compensation or damages awarded or payable because of any improvements
constructed or located on the portion of the Premises taken by eminent domain where this Lease
is terminated because of the taking by eminent domain, whether all or only a portion of the
Premises is taken by eminent domain, shall be allocated between CITY and TENANT as
follows:
(a) That percentage of the compensation or damages awarded or payable
because of the improvements that equals the percentage of the full term of this Lease that has, at
the time of the taking, not expired shall belong to and be the sole property of TENANT.
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(b) That percentage of the compensation or damages awarded or payable
because of the improvements that equals the percentage of the full term of this Lease that has, at
the time of the taking, expired shall belong to and be the sole property of CITY.
(c) The term "time of taking" as used in this Section shall mean 12:01 a.m. of
the date that the agency or entity exercising the eminent domain power, takes, title, or the date
that it takes physical possession of the portion of the Premises, whichever shall first occur.
(5) Any severance damages awarded or payable because only a portion of the
Premises is taken by eminent domain shall be the sole and separate property of CITY.
Section 9.03 Termination for Partial Taking.
Should, during the term of this Lease, title and possession of only a portion of the
Premises be taken for any public or quasi-public use under any statute, or by right of eminent
domain, TENANT may, at TENANT'S option, terminate this Lease by serving written notice of
termination on CITY within ninety (90) days after TENANT has been deprived of actual
physical possession of the portion of the Premises taken for such public use. This Lease shall
terminate on the first day of the calendar month following the calendar month in which the notice
of termination described in this section is served on CITY. On termination of this Lease
pursuant to this Article, all subleases and subtenancies in or on the Premises or any portion of the
Premises created by TENANT under this Lease shall also terminate and the Premises shall be
delivered to CITY free and clear of all such subleases and subtenancies, provided, however, that
CITY may, at CITY'S option, by mailing written notice to a subtenant allow any subtenant to
attorn to CITY and continue such subtenant's occupancy on the Premises as a TENANT of
CITY. On termination of this Lease pursuant to this section, however, both CITY and TENANT
shall be released from all obligations under this Lease, except those specified in Section 9.02 of
this Lease.
Section 9.04 Rent Abatement for Partial Taking.
Should, during the term of this Lease, title and possession of only a portion of the
Premises be taken under the power of eminent domain by any public or quasi-public agency or
entity and TENANT does not terminate this Lease, then this Lease shall terminate as to the
portion of the Premises taken under eminent domain on the date actual physical possession of the
portion taken by eminent domain is taken by the agency or entity exercising the eminent domain
power. Furthermore, the Rent payable under this Lease shall, as of that time be reduced in the
same proportion of the Premises taken by eminent domain bears to the full value of the Premises
at that time; provided however, that TENANT shall make a good faith effort to replace any
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improvements or facilities with equivalent new facilities on the remaining portion of the
Premises and do all other acts at TENANT'S own cost and expense required by the eminent
domain taking to make the remaining portion of the Premises fit for the use specified in this
Lease.
Section 9.05 Conveyance in Lieu of Eminent Domain.
A voluntary conveyance by CITY, with the consent of TENANT, of title to all or a
portion of the Premises to a public or quasi-public agency or entity in lieu of and under threat by
such agency or entity to take the same by eminent domain proceedings shall be considered a
taking of title to all or such portion of the Premises under the power of eminent domain subject
to the provisions of this Article.
Section 9.06 Temporary Taking.
If the possession of the Premises or any portion thereof should be taken under the power
of eminent domain by any public or quasi-public agency or entity for a limited period not
extending beyond the term of this Lease, then this Lease shall not terminate (except as provided
in this Section 9.06) and TENANT shall continue to perform all its obligations hereunder, except
only to the extent that TENANT is prevented from performing such obligations by reason of
such taking. TENANT shall be entitled to receive the entire amount of compensation or
damages awarded because of such temporary taking. If a temporary taking extends for more
than thirty-six (36) months, then TENANT shall have the right to terminate this Lease, and
TENANT shall be entitled to receive, out of the compensation or damages awarded because of
such temporary taking, the amount that is attributable to the period of time up until the effective
date of TENANT'S termination of this Lease.
Article 10 ASSIGNMENT AND SUBLEASING
Section 10.01 No Assignment Without CITY'S Consent.
Except as provided in this Article 10, TENANT shall not assign or otherwise transfer this
Lease, any right or interest in this Lease, or any right or interest in the Premises or any of the
improvements that may now or hereafter be constructed or installed on the Premises without the
express written consent of CITY evidenced by resolution first had and obtained. Any
assignment or transfer by TENANT without the prior written consent of CITY, whether it be
voluntary or involuntary, by operation of law or otherwise, is void and shall, at the option of
CITY, terminate this Lease. A consent by CITY to one assignment shall not be deemed to be a
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consent to any subsequent assignment of this Lease by TENANT. CITY shall not unreasonably
nor arbitrarily withhold its approval to the assignment or transfer of this Lease to an assignee
who is financially reliable and qualified to conduct the business for which this Lease was
granted. It is mutually agreed that the TENANT'S qualifications are a part of the consideration
for granting of this Lease and said party does hereby agree to maintain active control and
supervision of the operation conducted on the Premises.
Section 10.02 Change of Ownership as Assignment.
For purposes of this Article 10, the following transactions will be deemed to be
assignments or transfers:
(1) If TENANT is a partnership or limited liability company:
(a) A change in ownership effected voluntarily, involuntarily, or by operation
of law, within a twelve-month (12-month) period, of twenty-five percent (25%) or more of the
partners or members or twenty-five percent (25%) or more of the partnership or membership
interests; or
(b) The dissolution of the partnership or limited liability company without its
immediate reconstitution.
(2) If TENANT is a closely held corporation (i.e., one whose stock is not publicly
held and not traded through an exchange or over the counter):
(a) The sale or other transfer, within a twelve-month (12-month) period, of
more than an aggregate of twenty-five percent (25%) of the voting shares of TENANT (other
than to immediate family members by reason of gift or death); or
(b) The dissolution, merger, consolidation, or other reorganization of
TENANT.
Section 10.03 Application for Assignment.
A condition of an assignment shall be that TENANT shall file with the CITY an
application to assign the leasehold prepared by the prospective assignee. Concurrently with
filing the application, TENANT shall pay a reasonable fee associated with the cost pf processing
said application, in cash or certified or cashier's check to enable CITY adequately to investigate
the proposed assignee's qualifications as a permitted assignee. CITY shall not be required to
account for the use of the sum paid. If the proposed assignee's net worth on the date of
assignment is not sufficient to reasonably guarantee successful operation of the Premises in
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compliance with all applicable CITY, County, State and federal requirements, CITY may
withhold approval of the assignment or condition it upon TENANT'S guarantee of such
assignee's obligations hereunder for such period as CITY deems advisable. Net worth shall
mean the amount by which the total of all assets shall exceed the total of all liabilities as
determined in accordance with general accepted accounting principles as approved by CITY'S
auditor, or other authorized representative or agent.
Section 10.04 Probate Transfer of Assignment.
If TENANT is an individual, nothing herein contained will prevent the transfer of this
Lease by will, or by operation of law under the intestacy provisions of the California Probate
Code as it may be amended from time to time. Probate sale of the leasehold interest will not be
permitted without the consent of the CITY, evidenced by resolution, first had and obtained.
Section 10.05 No Sublease Without CITY'S Consent.
TENANT shall not sublease the whole nor any part of the Premises, or license, permit, or
otherwise allow any other person (the employees of TENANT excepted) to occupy or use the
Premises, or any portion thereof, without the prior written consent of CITY’s Harbor Director, or
any future successor to the duties of the City’s Harbor Director. A consent to one subletting,
occupation, licensing or use shall not be deemed to be a consent to any subsequent subletting,
occupation, licensing or use by another person. Any sublease or license without CITY'S
written consent shall be void, and shall at CITY'S option, terminate this Lease. CITY shall not
unreasonably nor arbitrarily withhold its consent to sublet to one who is qualified and financially
reliable. CITY'S consent to any occupation, use, or licensing shall be in CITY'S sole and
absolute discretion. Notwithstanding any provisions herein to the contrary, the terms
"assignment," "subletting," "occupation," or "use," shall not be construed or interpreted to mean
or include the temporary, short term renting or leasing of boat slips, motel, hotel, or apartment
accommodations on the premises.
Section 10.06 Subtenant Subject to Lease Terms.
Any and all subleases shall be expressly made subject to all the terms, covenants, and
conditions of this Lease. In no event shall the term of any sublease extend beyond the term of
this Lease. Subject to Section 10.09, termination of this Lease prior to the expiration of this
Lease term shall also terminate any and all subleases. A breach of the terms of this Lease by a
subtenant shall constitute a breach on the part of TENANT and shall subject both the subtenant
and TENANT to all the remedies provided to CITY herein and by law. Failure by any subtenant
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to report Gross Sales or to pay Percentage Rent due from subtenant shall constitute a breach of
this lease. TENANT hereby agrees to and does guarantee payment of such Percentage Rent due
by a subtenant under the terms of this lease.
Section 10.07 Consent Form Agreement.
Prior to any consent by CITY to any sublease hereof, TENANT shall cause to be
executed between TENANT and any subtenant an agreement making the CITY a third party
beneficiary, in a form acceptable to CITY, whereby the subtenant agrees to be bound by all of
the terms, covenants and conditions of this Lease. Further, it is agreed by TENANT that any
default by the subtenant of any of the terms, covenants and conditions of this Lease shall be
deemed to be violations by TENANT of this Lease and that all remedies of CITY for such
violation, including termination of this Lease, shall immediately be enforceable by CITY against
TENANT. TENANT shall apply any and all monies received from any subtenant first to the
payment of obligations of the subtenant to CITY.
Section 10.08 TENANT and Guarantor Remain Liable.
Prior to approval by CITY to any sublease hereof, TENANT shall agree to be primarily
and jointly and severally liable to CITY for all obligations due CITY by any subtenant, including
the payment of rents, and TENANT shall agree that CITY may proceed directly against
TENANT for any obligation owing CITY by the subtenant. If this Lease is guaranteed, neither
the sublease nor CITY'S approval thereof shall release the guarantor from its obligations
pursuant to the guaranty.
Section 10.09 Nondisturbance.
On the terms set forth below, CITY may enter into agreements with subtenants providing
that in the event of any termination of this Lease prior to the expiration date, CITY will not
terminate or otherwise disturb the rights of the subtenant under such sublease, but will instead
honor such sublease as if such agreement had been entered into directly between Landlord and
such subtenant, conditioned upon such subtenant's agreement to attorn to Landlord and full
performance of all obligations under the sublease in question ("Non-Disturbance Agreement").
CITY agrees to execute a Non-Disturbance Agreement in connection with a particular sublease
provided that Tenant provides CITY with a copy of the sublease, and the Non-Disturbance
Agreement is customary in form and substance and otherwise reasonably acceptable to CITY.
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Article 11 DEFAULT AND TERMINATION
Section 11.01 Abandonment by TENANT.
Should TENANT breach this Lease and abandon all or any part of the Premises prior to
the scheduled expiration of the term of this Lease, CITY may continue this Lease in effect by not
terminating TENANT'S right to possession of the Premises, in which event CITY shall be
entitled to enforce all CITY'S rights and remedies under this Lease including the right to recover
the Rent specified in this Lease as it becomes due under this Lease.
Section 11.02 Termination for Breach by TENANT.
All covenants and agreements contained in this Lease are declared to be conditions to this
Lease and to the term hereby demised to TENANT. Should TENANT fail to perform any
covenant, condition, or agreement contained in this Lease, except for payment of any Rent or
other monetary amount due, and such failure is not cured within thirty (30) days after written
notice thereof is served on TENANT, then CITY may terminate this Lease immediately, and in
the event of such termination, TENANT shall have no further rights hereunder and TENANT
shall thereupon forthwith remove from the Premises and shall have no further right or claim
thereto and CITY shall immediately thereupon have the right to re-enter and take possession of
the Premises, subject only to appropriate legal process.
Section 11.03 Termination for Failure to Pay Rent.
If any payment of Rent is not made as herein provided and such failure to pay is not
cured within three (3) days after written notice thereof is served on the TENANT, CITY shall
have the option to immediately terminate this Lease; and in the event of such termination,
TENANT shall have no further right or claim thereto and CITY shall immediately thereupon
have the right to re-enter and take possession of the Premises, subject only to appropriate legal
process.
Section 11.04 Lender May Cure Default.
CITY shall afford the Lender under any Leasehold Encumbrance of record with CITY the
right to cure any default by TENANT of the covenants, conditions, or agreements hereof, as
provided in Article 5 of this Lease.
Master Lease 11/01 -30-
Section 11.05 Attorneys' Fees.
In the event the CITY finds it necessary to retain an attorney in connection with the
default by the TENANT or enforcement of any of the terms, conditions, and covenants of this
Lease, even though litigation is not instituted, TENANT shall pay to CITY its reasonable
attorneys' fees. Non-payment of attorneys' fees by TENANT within three (3) days after
written notice is served on TENANT shall give rise to an independent legal action by CITY to
collect same. If CITY is successful in such legal action, CITY shall also be entitled to attorney
fees and costs for the collection action. To the extent that CITY is represented by the City
Attorney, a reasonable sum for such attorneys' services will be included as attorneys' fees.
Section 11.06 Damages for Breach.
Should TENANT default in the performance of any covenant, condition or agreement
contained in this Lease and the default be incurable or not be cured within the time period set
forth hereinabove, then CITY may terminate this Lease and:
(1) Bring an action to recover from TENANT:
(a) The worth at the time of award of the unpaid rent which had been earned
at the time of termination of the Lease;
(b) The worth at the time of award of the amount by which the unpaid rent
which would have been earned after termination of the Lease until the time of award exceeds the
amount of rental loss that TENANT proves could have been reasonably avoided;
(c) The worth at the time of award of the amount by which the unpaid rent for
the balance of the term after the time of award exceeds the amount of rental loss that TENANT
proves could be reasonably avoided; and
(d) Any other amount necessary to compensate CITY for all detriment
proximately caused by TENANT'S failure to perform its obligations under this Lease; and
(2) Bring an action, in addition to or in lieu of the action described in
subparagraph (1) of this Section, to re-enter and regain possession of the Premises in the manner
provided by the laws of unlawful detainer of the State of California then in effect.
Master Lease 11/01 -31-
Section 11.07 Cumulative Remedies.
The remedies available to CITY in this Article shall not be exclusive but shall be
cumulative with and in addition to all remedies now or hereafter allowed by law or elsewhere
provided in this Lease.
Section 11.08 Waiver of Breach.
The waiver by CITY of any breach by TENANT of any of the provisions of this Lease
shall not constitute a continuing waiver or a waiver of any subsequent breach by TENANT either
of the same or a different provision of this Lease.
Section 11.09 Surrender of Premises.
On expiration or sooner termination of this Lease, TENANT shall surrender the Premises,
and, subject to Section 4.04, all improvements in or on the Premises, and all facilities in any way
appertaining to the Premises, to CITY in good, safe, and clean condition, reasonable wear and
tear excepted.
Article 12 MISCELLANEOUS
Section 12.01 Attorneys' Fees.
Should any litigation be commenced between the parties to this Lease concerning the
Premises, this Lease, or the rights and duties of either in relation thereto, the party, CITY or
TENANT, prevailing in such litigation shall be entitled, in addition to such other relief as may be
granted in the litigation, to a reasonable sum as and for its attorneys' fees in such litigation,
which shall be determined by the court in such litigation or in a separate action brought for that
purpose. The "prevailing" party shall mean the party who obtains substantially the relief sought
by that party. To the extent that CITY is represented by the CITY Attorney, a reasonable sum
for such attorneys' services will be included as attorneys' fees.
Section 12.02 Notices.
Any and all notice or demands by or from CITY to TENANT, or TENANT to CITY,
shall be in writing. They shall be served either personally, or by registered or certified mail.
Any notice or demand to CITY may be given to:
Master Lease 11/01 -32-
Harbor Director
1275 Embarcadero
Morro Bay, California 93442
with a copy to:
City Manager of the City of Morro Bay
City Hall
595 Harbor Street
Morro Bay, CA 93442
Any notice or demand to TENANT may be given at:
Smith Held, Trustee
Smith W and Hannah W Held Family Trust
PO Box 225
Cayucos, CA 93430-0225
Such addresses may be changed by written notice by either party to the other party.
Section 12.03 Governing Law and Jurisdiction.
This Lease, and all matters relating to this Lease, shall be governed by the laws of the
State of California in force at the time any need for interpretation of this Lease or any decision
concerning this Lease arises. CITY and TENANT consent to exclusive personal and subject
matter jurisdiction in the Superior Court of the State of California in and for the county where
the Premises are located, and each party waives any claim that such court is not a convenient
forum. Each party hereby specifically waives the provisions of California Code of Civil
Procedure Section 394, and any successor statute thereto.
Section 12.04 Binding on Successors.
Subject to the provisions herein relating to assignment and subletting each and all of the
terms, conditions, and agreements herein contained shall be binding upon and inure to the benefit
of the successors and assigns of any and all of the parties hereto; and all of the parties hereto
shall be jointly and severally liable hereunder.
Section 12.05 Partial Invalidity.
Should any provision of this Lease be held by a court of competent jurisdiction to be
either invalid, void, or unenforceable, the remaining provisions of this Lease shall remain in full
force and effect unimpaired by the holding.
Master Lease 11/01 -33-
Section 12.06 Sole and Only Agreement.
This Lease, including all exhibits incorporated by reference, constitutes the sole and only
agreement between CITY and TENANT respecting the Premises and the leasing of the Premises
to TENANT. Any other agreements or representations respecting the Premises and their leasing
to TENANT by CITY, which are not expressly set forth in this Lease, are null and void. The
lease terms herein specified correctly set forth the obligations of CITY and TENANT as of the
date of this Lease. No modification, amendment, or alteration of this Lease shall be valid unless
it is in writing and signed by both parties.
Section 12.07 Modification.
This agreement shall not be modified except pursuant to a written agreement executed by
the MAYOR and CITY CLERK pursuant to prior CITY Council approval. Notwithstanding
CITY Council approval, no agreement shall become effective until such agreement is in fact
executed by the MAYOR and CITY CLERK. TENANT understands that this agreement may
not be modified by oral statements by any person representing the CITY including the MAYOR
and CITY CLERK. TENANT specifically agrees not to rely on oral statements, purported oral
waivers, or purported oral modifications and agrees not to rely upon purported
written modifications unless they meet the requirements of this paragraph and are approved in
writing pursuant to formal City Council action and a subsequent written modification signed by
the MAYOR and CITY CLERK. If the title of any person authorized to act for CITY under this
Lease shall be changed during the term of this Lease, then the person who succeeds to
substantially the same responsibilities with respect to the CITY shall have the authority to act for
CITY under this Lease.
Section 12.08 Time of Essence.
Time is expressly declared to be the essence of this Lease.
Section 12.09 Memorandum of Lease for Recording.
CITY and TENANT shall, at the request of either at any time during the term of this
Lease, execute a memorandum or "short form" of this Lease, which shall describe the parties, set
forth a description of the leased premises, specify the term of this Lease, and incorporate this
Lease by reference.
Master Lease 11/01 -34-
Article 13 SPECIAL PROVISIONS PECULIAR TO THIS LEASE SITE
The following provisions apply to this Lease site only:
Section 13.01 Rescission of Old Lease.
CITY and TENANT understand and agree that this lease rescinds and revokes the
previous lease between CITY and TENANT more particularly described as that certain lease
originally made to Mildred Graham Dennis and dated July 1, 1987 for said Premises, including
all amendments made thereto.
Section 13.02 Construction of Landside and Waterside Improvements.
CITY and TENANT agree that TENANT will construct all land and water improvements
to the premises as outlined in CUP #UPO-342 and valued at a minimum of $981,000. Failure to
complete said improvements and to comply with all conditions of said CUP as evidenced by a
final building permit inspection as required by the City of Morro Bay, in addition to providing
proof of expenses as evidenced by copies of invoices by the proscribed timeline shall be a
material default of the Lease Agreement and subject to any remedies outlined in Article 11
herein, including termination of the Lease.
CITY and TENANT further agree that TENANT shall construct additional floating
docks in the western extremity of Lease Site 96W. Upon TENANT obtaining City Council
Concept approval to construct the additional docks, the CITY shall adjust the Lease Site lines so
that Lease Site 95W incorporates the western extremity of Lease Site 96W at a line beginning
immediately westward of the current deck area in Lease Site 96W. Said floating docks will
attach to and share the gangway access with the floating docks proposed in Lease Site 95W, and
valued at a minimum of $100,000. Refer to Exhibit A, Copy of Parcel Map. If feasible, said
floating docks will be incorporated into CUP #UPO-342, otherwise a new permit process may be
pursued. Failure to complete said additional floating docks as evidenced by a final building
permit inspection as required by the City of Morro Bay, in addition to providing proof of
expenses as evidenced by copies of invoices by the proscribed timeline shall be a material
default of the Lease Agreement and subject to any remedies outlined in Article 11 herein,
including termination of the Lease.
TENANT acknowledges that construction of TENANT’S proposed improvements of the
Premises under said CUP requires, but may not be limited to, obtaining a permit from the
California Coastal Commission, a City Precise Plan, and a City Building Permit. It is the
Master Lease 11/01 -35-
TENANT’S obligation to fully investigate the issues and costs in obtaining these permits.
Failure to obtain any and all required permits and approvals for said construction shall not be a
reason for failure to comply with this Section. TENANT further acknowledges that said CUP
and construction of TENANT’S improvements may require repair or replacement of all or
portions of the docks, existing buildings, revetments, access ways, sidewalks, drainage systems
and other current improvements on the Premises to the standards of the City Engineer and
TENANT agrees to meet these standards through review and revision of final Building Plans
prior to issuance of a Building Permit for the construction of improvements on the Premises.
TENANT further agrees to:
A. Obtain Precise Plan approval of CUP #UPO-342 no later than July 1, 2014;
B. Commence construction of the sidewalk, light standard on Harbor Street, parking space
re-striping, awning and two new posts as per UPO-342 no later than November 1, 2014;
C. Commence construction of the new retail unit, Harbor Walk, view deck, restrooms and
glass court area as per UPO-342 no later than November 1, 2015;
D. Commence construction of the floating docks as per UPO-342 and additional floating
docks to the westward of Lease Site 96W no later than November 1, 2016.
E. Completion of all phases of construction shall be completed no later than May 31, 2017
as evidenced by Final Inspection/Occupancy approval by CITY.
During construction of improvements, TENANT shall take all measures to:
A. Avoid any pollution of the atmosphere or littering of land or water by or originating in or
about the Premises or caused by TENANT’S construction activities;
B. Keep the noise level on the Premises to a minimum so that persons in the neighborhood
will be able to comfortably enjoy business and facilities in the area;
C. Prevent any pollutants, including but not limited to petroleum products, from entering
Morro Bay waters;
D. Avoid negative impacts on surrounding businesses;
E. Prohibit storage of materials or equipment on public property and avoid parking or traffic
delays or impairment without prior consent of CITY.
Master Lease 11/01 -36-
F. Keep the construction site in a slightly, orderly, and safe manner at all times.
Section 13.03 Public Restrooms.
Restrooms to be completed in CUP #UPO-342 shall be made available to the public
during business hours and TENANT shall maintain signage in prominent locations, which
clearly identifies that the restrooms are available to the general public. In the case of a dispute
over location and design of signage, the Harbor Director may designate two locations for “public
restroom” signs of a type and size to be determined by the CITY. Furthermore, said restrooms
shall be made available after business hours to slipholders on TENANT’S Lease Site.
EXECUTED on _____________, 20___, at _________________________________________,
________________________________ County, California.
CITY OF MORRO BAY TENANT
Smith W Held and Hannah W Held
doing business as The Held Family Trust and
Smith W Held and Hannah W Held Family
Trust
_________________________________
Jamie L. Irons, MAYOR
By: ________________________________
Smith W Held
By: ________________________________
Hannah W Held
APPROVED AS TO FORM:
_________________________________
Robert Shultz, CITY ATTORNEY
ATTEST:
_________________________________
Jamie Boucher, CITY CLERK
EXHIBIT A COPY OF PARCEL MAP
A-1
EXHIBIT B
CITY OF MORRO BAY
595 Harbor St.
Morro Bay, CA 93442
(805) 772-6200
FAX (805) 772-7329
INSURANCE REQUIREMENTS FOR LESSEES
(NO AUTO RISKS)
Lessee shall procure and maintain for the duration of the contract insurance against claims for
injuries to persons or damages to property which may arise from or in connection with the
Lessee’s operation and use of the leased premises. The cost of such insurance shall be borne by
the Lessee.
Minimum Scope of Insurance
Coverage shall be at least as broad as:
1. Insurance Services Office Commercial General Liability coverage (occurrence
form CG 0001).
2. Workers’ Compensation insurance as required by the State of California and
Employer’s Liability Insurance (for lessees with employees).
3. Property insurance against all risks of loss to any tenant improvements or
betterments.
Minimum Limits of Insurance
Lessee shall maintain limits no less than:
1. General Liability: $1,000,000 per occurrence for bodily injury,
personal injury and property damage. 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 project/location or the general aggregate limit
shall be twice the required occurrence limit.
2. Employer’s Liability: $1,000,000 per accident for bodily injury or disease.
3. Property Insurance: Full replacement cost with no coinsurance penalty
provision.
B-1
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. At the
option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured
retentions as respects the City, its officers, officials, employees and volunteers; or the Lessee
shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and
related investigations, claim administration and defense expenses.
Other Insurance Provisions
The general liability policy is to contain, or be endorsed to contain, the following provisions:
1. The City, its officers, officials, employees, and volunteers are to be covered as
insureds with respect to liability arising out of ownership, maintenance or use of
that part of the premises leased to the Lessee.
2. The Lessee’s insurance coverage shall be primary insurance as respects the City,
its officers, officials, employees, and volunteers. Any insurance or self-insurance
maintained by the City, its officers, officials, employees, or volunteers shall be
excess of the Lessee’s insurance and shall not contribute with it.
3. Each insurance policy required by this clause shall be endorsed to state that
coverage shall not be canceled, except after thirty (30) days’ prior written notice
by certified mail, return receipt requested, has been given to the City.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII.
Verification of Coverage
Lessee shall furnish the City with original certificates and amendatory endorsements effecting
coverage required by this clause. The endorsements should be on forms provided by the City or
on other than the City’s forms, provided those endorsements or policies conform to the
requirements. All certificates and endorsements are to be received and approved by the City
before use of City premises. The City reserves the right to require complete, certified copies of
all required insurance policies, including endorsements effecting the coverage required by these
specifications at any time.
Sub-lessee Lessee shall include all sub-lessees as insureds under its policies or shall furnish
separate certificates and endorsements for each sub-lessee. All coverages for sub-lessees shall be
subject to all of the requirements stated herein.
B-2
Reproduction of Insurance Services Office, Inc. Form
INSURER: ISO Form CG 20 11 11 85 (Modified)
POLICY NUMBER: Commercial General Liability
ENDORSEMENT NUMBER:
THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED -- MANAGERS OR LESSORS OF PREMISES
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART.
SCHEDULE
1. Designation of Premises (Part Leased to You):
2. Name of Person or Organization (Additional Insured): City of Morro Bay
3. Additional Premium:
(If no entry appears above, the information required to complete this endorsement
will be shown in the Declarations as applicable to this endorsement.)
WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in
the Schedule, but only with respect to liability arising out of the ownership, maintenance or use of that part of the
premises leased to you and shown in the Schedule and subject to the following additional exclusions:
This insurance does not apply to:
1. Any “occurrence” which takes place after you cease to be a tenant in that premises.
2. Structural alterations, new construction or demolition operations performed by or on behalf of the person
or organization shown in the schedule.
Modifications to ISO form CG 20 11 11 85:
1. The Insured scheduled above includes the Insured’s elected or appointed officers, officials, employees
and volunteers.
2. This insurance shall be primary as respects the Insured shown in the schedule above, or if excess, shall
stand in an unbroken chain of coverage excess of the Named Insured’s scheduled underlying primary
coverage. In either event, any other insurance maintained by the Insured scheduled above shall be in
excess of this insurance and shall not be called upon to contribute with it.
3. The insurance afforded by this policy shall not be canceled except after thirty days prior written notice
by certified mail return receipt requested has been given to the City.
Signature-Authorized Representative
____________________________________
Address
B-3
EXHIBIT C PERCENTAGE RENTAL
% GROSS SALES
FOOD SERVICE: Restaurant, Dining Room 3
Snack Bar, Delicatessen 5
Fast Food, Convenience Food 5
Bar/Lounge, Beer & Wine Sales 5
RETAIL & RENTAL SALES & SERVICE: 5
MOORINGS, TIES & SLIPS: Pier/Fixed Piles 10
Pier/Floating 10
ALL OTHER USES: 5
NOTE 1 Percentage rental in all categories will be reduced by 2% during Fiscal Years
2014/2015, 2015/2016, and 2016/2017, or until Final Inspection/Occupancy is
attained for all three phases of construction under CUP #UPO-342, whichever comes
first, to account for negative impacts during construction.
NOTE 2 Percentage rental for slips/docks to be 0% until July 1, 2021, at which time it will
commence to the stated amount.
Percentage Rental is to be based on the gross amounts received from any and all sources of income
derived from the lease site
C-1
AGENDA NO:
MEETING DATE:
AGENDA NO: A-4
MEETING DATE: March 12, 2013
Prepared By: ________ Dept Review:_____
City Manager Review: ________
City Attorney Review: ________
Staff Report
TO: Honorable Mayor & City Council DATE: March 4, 2013
FROM: Andrea Lueker, City Manager
SUBJECT: Authorization for Attendance at the C-MANC Annual Washington D.C.
Meetings
RECOMMENDATION
Staff recommends that the City Council approve authorization for a two-person delegation, the
Mayor and Harbor Director, to attend the California Marine Affairs and Navigation Conference
(C-MANC) Washington Week meetings In Washington D.C. This year’s meetings are
scheduled for March 19 - March 21, 2013.
FISCAL IMPACT
Total costs for airfare, hotel, and monetary contribution to the Golden State Reception for the
Washington Week meeting is estimated at $7,000. We estimate $1,000 in staff time for
preparation of documents and associated administrative tasks. Funding will be through the
Harbor Fund. The City applied for and was awarded a grant of $6,000 from the Central Coast
Joint Cable Fisheries Liaison Committee for reimbursement of the actual travel, attendance and
associated costs.
BACKGROUND
Every year C-MANC hosts Washington Week meetings where representatives of California
Ports and Harbors have the opportunity to remind Congress of the importance of dredging
projects and other coastal related legislation in California. The City of Morro Bay is a long
standing member of C-MANC and for the past 19 years has sent representatives to the
Washington Week meetings. At the annual event, C-MANC members host the Golden State
Reception attended by over 500 elected and appointed Washington officials. Additional
meetings are scheduled including office visits to federal agencies such as OMB, EPA, U.S. Fish
and Wildlife, Army Corps of Engineers, U.S. Coast Guard, NOAA and to congressional offices
regarding the proposed FY14 budget appropriations.
As the federal budget has become more constricted, the opportunity for face-to-face meetings
with our representatives to stress the critical need to fund navigational and entrance dredging is a
high priority.
Staff Report
AGENDA NO: A-5 MEETING DATE: 03/12/13
TO: Honorable Mayor and City Council DATE: March 4, 2013
FROM: Susan Slayton, Administrative Services Director
SUBJECT: Approval of the 2013/14 Budget Calendar
RECOMMENDATION:
Staff recommends that the City Council review the budget calendar, and make any necessary changes.
SUMMARY:
The budget calendar is presented for City Council approval. Please review the calendar and make any
necessary changes.
Worksheets due to Departments March 11
Revenue and expenditure estimates due to Finance March 29
Preliminary budget to City Manager April 12
Preliminary budget to City Council April 26
Budget Workshop May 22
Budget Workshop June 12
Adopt 2013/14 Budget June 25
Prepared By: Dept Review:_____ City Manager Review: ________
City Attorney Review: ________
Staff Report
TO: Honorable Mayor and City Council DATE: March 5, 2013
FROM: Joseph M. Woods, Recreation and Parks Director
SUBJECT: Status Report on the Utilization of Big Belly Garbage Receptacles at the Morro Rock Parking Lot
RECOMMENDATION
Review the installation status of Big Belly Solar Powered Trash Compactors at the Morro Rock parking lot.
FISCAL IMPACT
This report is a progress report and offers no financial impact.
SUMMARY
The previous solid waste receptacles at the Rock parking lot were inadequate to meet the
demands of high volume visitors during summer and holiday seasons. The old receptacles
were replaced in September 2012 with solar powered trash compactors. These more efficient
and effective receptacles have assisted the City in providing trash service to the community,
reduced fixed expenses related to solid waste collection service, and greatly hinders wildlife
infiltration. While the current number of new receptacles at the Rock parking lot and restroom
appear to be adequate at this time, the previous units were replaced during the winter months
and as such, are not reflective of high volume summer usage. Staff will continue to monitor
the situation during the upcoming summer season.
BACKGROUND
The Morro Rock parking lot experiences heavy visitor traffic during the summer months as
well as on holiday weekends. During these times, the City’s solid waste management
program is challenged due to the volume of generated trash. Previously available resources
consisted of single user trash receptacles which have proven to be less efficient due to age and
access by scavenging birds and squirrels. Increasing the current waste pick up schedule to
include Sunday service has been part of the solution with the remaining part being the
replacement of the standard receptacle design with a more efficient design to facilitate user
needs, reduce service and prevent wildlife infiltration.
AGENDA NO: A-6 MEETING DATE: March 12, 2013
Prepared By: JMW Dept Review:_JMW____ City Manager Review: ________ City Attorney Review: ________
2
DISCUSSION
On July 10, 2012, City Council directed staff to purchase five solar powered trash receptacles
and replace sixteen standard receptacles at the Morro Rock parking lot and restroom. One of
the new units was placed outside of the restroom, with the remaining four units placed on
concrete pads which are evenly distributed along the riprap. The new units appear to be well
received by the public, and thankfully, not so well received by the seagulls.
Additionally, staff has contacted our local Morro Bay Garbage representative to inquire about
any concerns or issues with the new receptacles. They reported having no significant concerns
at this time. As stated in our agreement, the City has service to fifteen trash receptacles at no
charge. The elimination of eleven receptacles has allowed staff to rededicate the” no charge
units” to other locations. The cost savings by eliminating units will be applied to the capital
investment of the new units with a payback based on the current agreement conditions and
rates.
Sponsorship programs could still be developed to provide capital reimbursements for the initial
purchase costs of the compacting units and/or annual revenue to offset the City’s solid waste
service costs. Sponsorship possibilities include third party entities advertising their company’s
services and/or products either on the side ad panel, or directly on the unit via silk screen,
decal or wrap. Any trash receptacle used for the purpose of advertising may be subject to the
City’s sign ordinance which would require further review.
CONCLUSION
The previous solid waste receptacles at the Rock parking lot were inadequate to meet the
demands of high volume visitors during summer and holiday seasons. The more efficient and
effective, solar powered trash compactors, have assisted the City in providing trash service to
the community, reduced fixed expenses related to solid waste collection service, and greatly
hindered wildlife infiltration. The current number of new receptacles at the Rock parking lot
and restroom appears to be adequate. However, the replacement with the new units occurred
during the winter months and is not reflective of high volume summer usage. Staff will
continue to monitor the situation during the upcoming summer season.
Staff Report
TO: Honorable Mayor and City Council DATE: March 4, 2013
AGENDA NO: A-7
MEETING DATE: March 12, 2013
Prepared By: _______________________ Dept Review: __________
City Manager Review: ________________ City Attorney Review: ________________ Page 1 of 1
FROM: Robert Schultz, City Attorney
SUBJECT: Discussion on the Status of the Sale of City-Owned Property at the Southeast
Corner of Coral Avenue and San Jacinto Street, and Authorization for Staff to
Solicit a Request for Proposals for Real Estate Contract Services to Assist in the
Sale of the Property.
RECOMMENDATION:
Authorize staff to solicit proposals for real estate contract services to assist in the sale of City-owned
property located at the southeast corner (SEC) of Coral Avenue and San Jacinto Street. The Request
for Proposals is attached hereto.
FISCAL IMPACT:
None at this time.
DISCUSSION:
The City obtained ownership of the property at SEC Coral Avenue and San Jacinto Street in
September 1996. At the time of the dedication, the property was a possible site for an additional fire
station. In 2005, the City Council determined that alternative sites were better suited for a fire
station. Therefore, pursuant to Resolution 30-05, the City Council authorized the sale of the City-
owned property at SEC Coral Avenue and San Jacinto Street. The City tried to market the property
for sale on its own but received no acceptable offers. In 2008, the City contracted with Morro Bay
Realty to represent the City in marketing and negotiating the property. Unfortunately, the City again
received no acceptable offers.
CONCLUSION:
It is Staff’s recommendation that the City Council again direct Staff to issue the attached Request for
Proposals for real estate contract services for the sale of City-owned property located at the SEC of
Coral Avenue and San Jacinto Street. Hopefully, the real estate market has improved and with the
help of a real estate company, the City will be able to find a buyer for the property at an acceptable
price.
City of Morro Bay
Morro Bay, CA 93442 805-772-6200
ADMINISTRATION CITY ATTORNEY FINANCE DEPARTMENT FIRE DEPARTMENT
595 Harbor Street 595 Harbor Street 595 Harbor Street 715 Harbor Street
HARBOR DEPARTMENT POLICE DEPARTMENT PUBLIC SERVICES RECREATION & PARKS
1275 Embarcadero Road 870 Morro Bay Boulevard 955 Shasta Avenue 1001 Kennedy Way
CITY OF MORRO BAY
REQUEST FOR PROPOSALS
REAL ESTATE BROKER SERVICE
I. PURPOSE OF REQUEST.
The City of Morro Bay, California (“City”) is requesting proposals for the purpose of selecting a
Real Estate Broker to represent City in marketing and negotiating assigned real estate properties,
and potentially provide other real estate related services as requested. The City’s needs are
outlined in the following Request for Proposals (“RFP”).
II. TIME SCHEDULE.
The City intends to comply with the following general timetable, which should result in the
selection of a firm by May 8, 2013.
Issue RFP .................................................................................. March 15, 2013
Deadline for Submittal of Proposals .............................................. April 5, 2013
Interview Finalists ....................................................................... April 24, 2013
Award Contract ............................................................................... May 8, 2013
III. INSTRUCTIONS TO PROPOSERS.
1. All proposals should be sent to:
Robert Schultz
City of Morro Bay
595 Harbor Street
Morro Bay, CA 93442
(805) 772-6568
2. All proposals must be in a sealed envelope and clearly marked in the lower left-hand
corner: “RFP – RE Broker.”
Request for Proposals Page 2 of 4
Real Estate Broker Service
3. All proposals must be received by 5:00 p.m. on April 5, 2013. Three (3) copies of the RFP
must be presented. No fax, verbal or e-mail proposals will be accepted.
4. Proposals should be prepared simply and economically, providing a straightforward,
concise description of provider capabilities to satisfy the requirements of the request. Special
bindings, colored displays, promotional materials, etc. are not desired. Emphasis should be on
completeness and clarity of content. Use of recycled paper for requests and any printed or
photocopied material is desirable whenever practicable. Use of both sides of paper sheets for any
submittals to the City is desirable whenever practicable.
5. Subject Property. The City obtained ownership of the property at SEC Coral/San Jacinto
Street in September 1996. At the time of the dedication, the property was a possible site for an
additional fire station. In 2005, the City Council determined that alternative sites were better
suited for a fire station. Therefore, pursuant to Resolution 30-05, the City Council authorized the
sale of the City-owned property at SEC Coral/San Jacinto Street. The City received a few
unacceptable bids for the property. In 2006, the City Council decided to subdivide the property
to maximize its value. The property is approximately one acre that has received subdivision
approval for 6 one-story SFR Home sites from the City and the Coastal Commission. The
planned lots are all over 6000 sq. ft. After the subdivision map was approved in 2007, the City
relisted the property for $2.4 million dollars. To date, the City has received no offers for the
property. The City plans to use the proceeds from the sale of the Subject Property to reduce the
debt service for construction costs associated with the second phase of the fire station.
6. Proposal Contents. At a minimum, the proposal shall provide the following information:
A. The name, structure, and specific local market experience of the company.
B. The names, qualifications, and specific local market experience of each principal
individual (the “Principal”) who will be working on the City’s account and his/her
area of responsibility in servicing the account, including administering and fulfilling
the Morro Bay contract, listing and marketing City properties, and maintaining
primary contact with the City.
C. A marketing plan outline, target price, and proposed launch schedule for the Subject
Property. Explain the rationale behind the proposed plan.
D. Comparative results of past sales. Provide at least 4 past sales examples for which the
Principal is the Listing agent/broker. The examples should be one each from listings
sold in the years of 2009, 2010, 2011, and 2012. For each example, provide a
description of the property, relevant sales information, and how long the property had
been listed with the Principal(s) prior to being sold. Sales information should include
at a minimum: price, date, property address, land area, any payment terms if
applicable, and any revenue streams from the property at the time sold.
E. Proposed compensation structure and method, using the Subject Property as example.
Please specify any services you propose to offer that are not included in the proposed
commission structure and the rates and basis for such additional services.
Request for Proposals Page 3 of 4
Real Estate Broker Service
F. Terms/conditions for the City to terminate an active listing.
G. General market research information that will be available to the City.
H. Information on other optional real estate consultant services available from the Firm,
including appraisal, property management, and/or special market research assistances.
Identify proposed compensation method/fee structure for each service where
applicable.
I. Three references.
IV. SELECTION CRITERIA.
Criteria Weight
1. Cost: Commission structure for purchase and/or ...................................... 50%
sale of properties. While Proposers are requested
to provide fee structure for other optional real estate
consultation services, it will not be the included in the cost.
2. Experience: Demonstrated real estate experience ...................................... 40%
and history of achieving highest and best sales results
among its peers.
3. Marketing resource: Demonstrated resources and .................................... 10%
ability to effectively market City properties to the
widest and largest potential buyers.
Total Criteria Weight ................................................................................ 100%
V. TERMS AND CONDITIONS.
1. The City reserves the right to reject any and all proposals, and to waive minor irregularities
in any proposal.
2. The City reserves the right to request clarification of information submitted, and to request
additional information from any proposer.
3. The City reserves the right to award any contract to the next most qualified proposer if it
cannot reach an agreement with the successful proposer within thirty (30) days after selection.
4. Any proposal may be withdrawn up until the date and time set above for opening of the
proposals. Any proposal not so timely withdrawn shall constitute an irrevocable offer for a
period of ninety (90) days to provide the services described to the City, or until one or more of
the proposals have been approved by the City, whichever occurs first.
5. The contract resulting from acceptance of a proposal by the City shall be in a form supplied
or approved by the City and shall reflect the specifications in this RFP. The City reserves the
Request for Proposals Page 4 of 4
Real Estate Broker Service
right to reject any proposed agreement or contract that does not substantially conform to the
specifications contained in this RFP, and which is not approved by the City Attorney’s office.
6. The City shall not be responsible for any costs incurred by the firm in preparing,
submitting, or presenting its response to the RFP.
VI. SERVICES REQUESTED.
This is a request for non-exclusive broker service. The City may, at its sole discretion, assign any
properties/transactions to any other Firms or Brokers without prior notice.
1. Represent the City’s interests in purchase and sale of assigned properties when requested.
2. Develop and implement marketing strategies for assigned properties to yield the highest
financial benefits for the City.
3. Provide a monthly report to the assigned staff contact about current/new marketing efforts,
contacts/leads, and other developments when there are active property listings.
4. Maintain timely telephone and/or e-mail contact with the assigned staff when there are
active transactions and/or interest.
5. Provide general market information when requested while representing the City in active
acquisitions or sales.
6. Attend staff and/or council meetings to provide progress updates when requested.
VII. COMPENSATION.
Compensation will be determined by the final negotiated agreement. Payment by the City for
consultant services will be made only after the services have been performed and an itemized
billing statement has been submitted in the form specified by the City and approved by the
appropriate City representative, which statement shall specifically set forth the services
performed, the name(s) of the person(s) performing such services, and the hourly labor charge
rate for such person(s). Payment shall be made on a monthly basis, thirty (30) days after receipt
of such billing statement.
AGENDA NO: A-8
Meeting Date: March 12, 2013
RESOLUTION NO. 20-13
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF MORRO BAY
SUPPORTING THE DEVELOPMENT OF A PUBLIC BIKE PARK
WITHIN THE CITY LIMITS
THE CITY COUNCIL
City of Morro Bay, California
WHEREAS, the Recreation and Parks Department operated a BMX bike track at 220
Atascadero Road from 2000 to 2005; and
WHEREAS, the real property at 220 Atascadero Road was sold to a private party by
voluntary sale on April 15, 2005; and
WHEREAS, the bike track was subsequently removed by the new owner and replaced with
an RV Park; and
WHEREAS, the citizens of Morro Bay expressed interest during public comment at the
February 26, 2013 City Council meeting to establish a bike park on public land within the city limits
of Morro Bay; and
WHEREAS, said interested citizens presented available resources to establish and operate a
bike park within City limits.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Morro Bay
to support the establishment, development, and operation of a bike park on City property for public
use.
PASSED AND ADOPTED by the City Council of the City of Morro Bay at a regular
meeting thereof held this 12th day of March, 2013 by the following roll call vote:
AYES:
NOES:
ABSENT:
______________________________
JAMIE IRONS, MAYOR
ATTEST:
_________________________________
JAMIE BOUCHER, CITY CLERK
A PROCLAMATION OF THE CITY COUNCIL
OF THE CITY OF MORRO BAY
DECLARING APRIL 2013 AS
“AUTISM AWARENESS MONTH”
CITY COUNCIL
City of Morro Bay, California
WHEREAS, autism is a complex neurobiological disorder that typically lasts
throughout a person’s lifetime. It is part of a group of disorders known as autism
spectrum disorders (ASDs); and
WHEREAS, autism affects all persons regardless of race, religion, socio-
economic status or geography; and
WHEREAS, the incidence of autism in San Luis Obispo County reflects the
national rate of 1 in 110, with rates appearing to have increased similarly around the
globe; and
WHEREAS, a child is diagnosed with autism every 20 minutes; and
WHEREAS, ASDs are the fastest growing serious developmental disability,
making these disorders more common than pediatric cancer, diabetes, and AIDS
combined; and
WHEREAS, many are not adequately informed about ASDs and the value and
importance of early identification, assessment, and treatment of these disorders; and
WHEREAS, individuals with ASDs and their families face tremendous and
overwhelming challenges in accessing and navigating the complex programs and services
for these disorders; and
WHEREAS, parents and family members have made invaluable contributions
through their commitment, caring, and advocacy to important advances in research,
education, and treatment for individuals with ASDs; and
WHEREAS, individuals with ASDs are valuable and talented citizens; and
WHEREAS, the Central Coast Autism Spectrum Center will celebrate Autism
Awareness Month in April 2013; and
WHEREAS, the Central Coast Autism Spectrum Center will celebrate Autism
Awareness Month at the WALK for Autism and Autism Awareness Fair on April 28,
2013 in Mission Plaza; and
AGENDA NO.: A-9
Meeting Date: 3/12/2013
WHEREAS, Autism Awareness Month and The WALK for Autism and Autism
Awareness Fair help to increase and develop knowledge of autism, and are of paramount
importance in creating an empathetic and compassionate citizenry.
NOW, THEREFORE, BE IT RESOLVED, that the Central Coast Autism
Spectrum Center in cooperation with the City of Morro Bay, affirms its commitment to
the important issues described in this resolution by declaring April 2013 as Autism
Awareness Month and emphasizes that every individual with an ASD is a valued and
important member of our society; and
BE IT FURTHER RESOLVED, that the City of Morro Bay recognizes and
commends the talents, abilities and contributions of the individuals in our community
diagnosed with ASDs; and
BE IT FURTHER RESOLVED, that the City of Morro Bay recognizes and
commends the parents and relatives of individuals with ASDs, the professionals that
provide valued services, and the Central Coast Autism Spectrum Center, for their
sacrifice and dedication in providing for the special needs of individuals with ASDs.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Morro Bay does hereby declare April 2013 as “Autism Awareness Month”.
IN WITNESS WHEREOF I have
hereunto set my hand and caused the
seal of the City of Morro Bay to be
affixed this 12th day of March, 2013
_________________________________
Jamie L. Irons, Mayor
City of Morro Bay, California
Staff Report
AGENDA NO: C-1 MEETING DATE: 03/12/13
TO: Honorable Mayor and City Council DATE: March 4, 2013
FROM: Susan Slayton, Administrative Services Director
SUBJECT: Resolution No. 15-13 Adopting the Mid-Year Budget Amendments
RECOMMENDATION:
Staff recommends that Council adopt Resolution No. 15-13, authorizing the budget amendments, as
revised at this meeting, and accept the Measure Q Committee’s recommendations, less $11,800 for
the Police Communications project.
FISCAL IMPACT:
Revenue amendments:
General Fund $ 191,341
Measure Q Fund 36,000
Sewer Equipment Replacement Fund 20,000
Harbor Operating Fund 8,400
Harbor Capital Projects Fund 5,000
Total Revenue amendments $ 260,741
Expenditure amendments:
General Fund $ 170,450
District Transaction “Meas Q” Fund 49,500
Sewer Accumulation Fund 20,000
Harbor Equipment Replacement Fund 12,000
Harbor Capital Projects Fund 5,000
Harbor Accumulation Fund 5,000
Total Expenditure amendments 261,950
Prepared by: ______________ Dept Review: ___________
City Manager Review: ______
City Attorney Review: ______
2
SUMMARY:
The 2012/13 mid-year budget amendment requests, as summarized above, are being brought back to
you along with the budget performance reports for December 31, 2012. The changes made to this
report are as follows: 1) reduction of the Property Tax Administration Fee ($24,000); 2) addition of
a City Council Contingency ($30,000); and 3) reduction to the Visitors Center budget based on the
contract with the Tourism Bureau ($25,000). Staff recommends that Council review the requested
amendments, and adopt Resolution No. 15-13, with any revisions made at this meeting.
Additionally, Council needs to accept the Measure Q Committee’s recommendation to reallocate
Storm Drain carryover funds in the amount of $445,000 to Street Paving, and allocate the
unbudgeted excess funds of $166,000, less the $11,800 for the Communications project, to Street
Paving.
DISCUSSION:
The requested budget amendments are presented herewith including a description justifying each
request. Separately provided are December 31, 2012 budget performance reports for all budgeted
funds.
The overall economy continues to improve, although that improvement is slight and gradual. Morro
Bay’s economy is slowly improving, but doing well when compared to other areas in the county,
state and nation.
The General Fund’s performance is as anticipated. Some one time money has not shown up, which
explains the low revenue percentage (44% - see Page 5). An example of this is the franchise money
that arrives in March and April. Transient Occupancy Tax (TOT) is always a full month behind, so
the December report actually has only TOT for July through November. Another big issue with
revenues is timing. State agencies are keeping their money to earn as much interest as possible
before releasing it. The COPS grant in the SLESF Fund 282 is now being released quarterly,
instead of one lump sum in October.
Expenditures are also subject to timing, although the volatility is not as great as with revenues.
Some expenditures are made at the beginning of the year, so an expenditure account may have 80%
spent, but will not incur further expenditures at the same rate. Or like Recreation and Parks
expenditures, purchases are made based on activities planned. As of December 31, 2012, the
General Fund had expended 64% of its budget (see Page 23). This excess is due to spending for
items that were not anticipated, primarily retirements.
REQUESTED AMENDMENTS - REVENUE:
Adjustments being made to the General Fund are in the property tax administrative fee and in lieu
budgets, based on actual information provide by the County of San Luis Obispo Tax Collector’s
office. Newly added to this report is the Property Tax Administrative Fee reduction, as the County
was charging it incorrectly based not only on property taxes, but the property tax in-lieu as well.
The In-Lieu VLF budget is being reduced by $5,079 and the In-Lieu Sales budget is being increased
by $8,820, based on actual amounts provided by the County. Also, the Transient Occupancy Tax
budget is being increased by $95,000, while the Cable TV Franchise fee is being reduced by
$11,000, both adjusting to actual performance. Finally, a cash transfer into the General Fund from
Risk Management is being requested to pay for the retirement costs that were not anticipated in the
budget for vacation payouts and service retirement incentives. These costs amounted to $79,600.
3
Please see Attachment “A,” Page 1, for the full report on these revenue amendments.
On Attachment “B,” the District Transaction Tax “Measure Q” is being increased by $36,000, based
the recommendation of our consultant, Hinderliter, de Llamas and Associates (HdL). The upswing
in the economy, primarily in car sales, is causing this estimate to be revised up.
On Attachment “C,” there is a request to increase the Transfer In to the Sewer Equipment
Replacement Fund by $20,000 to cover the cost of the utility truck purchase that was approved with
the 2012/13 annual budget. Preliminary estimates indicate that the original, approved $50,000
budget will not be enough. Any funds remaining after the purchase will be set aside in that fund for
the eventual replacement of the Hydrovac.
Also, the Harbor Operating Fund is requesting an adjustment to increase miscellaneous revenues by
$8,400 for a lease agreement with the Coast Guard for use of our storage shed next to the
Fisherman’s Gear Storage area. Finally, the Harbor Capital Projects Fund is requesting an
additional transfer in from the Accumulation Fund in the amount of $5,000 to cover extra repairs to
the storage shed on Coleman Drive. The current door on that storage shed is too low to move boats
in and out, and staff will be using this money to replace the existing door with a roll up one.
REQUESTED AMENDMENTS – EXPENDITURES:
Expenditure amendments in the amount of $170,450 are requested by various departments as
detailed on Attachment “A,” Page 2. The majority of these ($79,600) are costs related to
retirements, such as accrued leave payouts and service incentives. The remaining amounts are
related to items that were not budgeted, and will cause the General Fund to exceed its budget at year
end if not adjusted. Two notable line items have been added since this item came to Council on
February 26th: the addition of a Council contingency for $30,000; and the reduction in the Visitors
Center budget based on the contract.
On Attachment “B,” the Police Department is requesting to release the $60,000 encumbrance of
Measure Q earmarked for the communications tower, as has been determined that it does not have
to be replaced. Police Chief Christey is requesting that those funds be programmed for upgrading
the tower equipment, such as the antennas, mounting hardware and coaxial cables. Additionally,
Chief Christey is requesting that $37,700 of carryover plus an additional $11,800 of new funds be
programmed for the purchase of mobile repeaters and portable radios. Chief Christey’s formal
request is included with Attachment “B.”
On Attachment “C,” expenditure requests have mostly been discussed above in the Revenue
Amendments section (the Sewer utility truck and the Harbor storage shed). The remaining request
is from the Harbor Department for the purchase of a 4-wheel drive pick up truck to replace an
existing truck that is at the end of its useful life. There are sufficient funds in the Harbor Equipment
Replacement Fund to cover this purchase.
Per Council request, the contract services line items have been detailed, and that spreadsheet is
included.
4
CONCLUSION
Resolution No. 15-13, adopting the mid-year budge amendments, is presented for approval. The
Resolution’s supporting spreadsheet will reflect any amendments made at this meeting.
City Council will additionally need to accept the Measure Q recommendations from the February
26th meeting, less the $11,800 in new money that Chief Christey is requesting for the
communications project, if Council wishes to grant that use. If Council agrees to fund the
communications project, the Measure Q recommendation will be decreased to $154,200 of
unbudgeted funds to be dedicated to street paving in addition to the $445,000 Storm Drain
carryover.
RESOLUTION NO. 15-13
RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF MORRO BAY, CALIFORNIA,
AUTHORIZING THE 2012/13 MID-YEAR AMENDMENTS TO THE CITY’S
OPERATING AND CAPITAL IMPROVEMENT BUDGETS
T H E C I T Y C O U N C I L
City of Morro Bay, California
WHEREAS, the City of Morro Bay is required to appropriate and expend public funds
to conduct its day-to-day business activities; and
WHEREAS, the City Council adopted the original Operating and Capital Improvement
Budgets on June 26, 2012 by Resolution No. 29-12 and on July 10, 2012 by Resolution 38-12;
and
WHEREAS, the City Council deems it necessary to amend said budgets.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Morro
Bay, California, that the operating budgets of the City of Morro Bay are amended by the
additional revenues and expenditures as shown on the attached schedule.
PASSED AND ADOPTED by the City Council of the City of Morro Bay at a regular
meeting thereof held on the 12th day of March 2013, by the following vote:
AYES:
NOES:
ABSENT:
______________________________
JAMIE L. IRONS, Mayor
ATTEST:
_____________________________
JAMIE BOUCHER, City Clerk
Prepared by: __RL__ Dept. Review: CJ/KW__
City Manager Review:______
City Attorney’s Review:_____
Staff Report
TO: Honorable Mayor and City Council DATE: March 5, 2013
FROM: Rob Livick, PE/PLS - Public Services Director/City Engineer
SUBJECT: Initiation of the Process to Consider the Abandonment (vacation) of a
Portion of the Public Right of Way Westerly of the Existing Back of Curb
of Toro Lane, Between Yerba Buena and North Point Subdivision, using
the Procedures Provided by the California Streets and Highways Code,
Section 8300 et seq. (Greg Frye, 3420 Toro Lane, Applicant)
RECOMMENDATION
Adopt Resolution Number 18-13, a Resolution of Intention to abandon a portion of Toro
Lane; finding that the right-of-way abandonment is consistent with the General Plan no longer
needed for its intended purpose, setting the date for the public hearing ordering the final
abandonment; and approving the Coastal Development Permit and Environmental
Determination.
FISCAL IMPACT
Toro Lane is one of the only pieces of City Right of Way that is owned by the City in fee.
Being that it is owned in fee, the City can choose to sell the property, once abandoned. Prior to
the sale, the City would need to determine the fair market value for the property and negotiate
a sales price with the potential buyer. Additionally, once abandonment is complete and sold,
this portion of Toro Lane no longer requires City resources for maintenance activities, i.e.
weed abatement. Furthermore, once the right of way is abandoned and sold the benefiting
properties may be subject to increased property taxes, thus increasing the amount of revenue
to the City.
BACKGROUND
At the January 16, 2013 Planning Commission meeting staff brought forward this request to
abandon a portion of Toro Lane, however it did not include a request for a Coastal
Development Permit. Staff was informed by the California Coastal Commission that the
project would require a Coastal Permit; therefore staff brought back the abandonment request
to the Planning Commission along with a new request for a Coastal Development Permit. That
action was recommended for approval to the City Council with the adoption of Planning
Commission Resolution 02-13.
Staff has included for your information the previous Planning Commission staff reports along
AGENDA NO: D-1
MEETING DATE: March 12, 2013
2
with the minutes from the January 16 and February 6, 2013 meetings. Please note that the
address of project had been incorrectly advertised as 3450 Toro; the address is actually 3420
Toro Lane.
DISCUSSION
The State of California Streets and Highways Code §8300 et seq, Public Streets, Highways,
and Service Easements Vacation Law contains procedures under which a local agency can
vacate or abandon its Rights-of-Ways. The Code requires that if the proposed abandonment
of a street, highway, or public service easement is within an area for which a General Plan is
adopted by a local agency, the legislative body of the public entity shall consider the General
Plan prior to vacating the street, highway, or public service easement. The City Council
should be aware that the California Streets and Highways Code requires that a street vacation
(abandonment) be done in the interest of the public and not an individual property owner.
The applicant has proposed to abandon the excess right of way westerly of the existing curb
line from Yerba Buena Street to the prolongation of the northerly property line of the
applicant’s parcel, approximately 234-feet using §8300 et seq of the California Streets and
Highways Code. If this abandonment is approved and moves forward, staff recommends to
extend the limit of abandonment approximately 145-feet to the North, to the beginning of the
private section of Toro Lane that was previously abandoned with Tract 2110 (North Point).
Additionally, staff recommends the reservation of a public pedestrian and utility easement 15-
feet in width along and adjacent to the existing street improvements.
The portion of the street for proposed abandonment has never been developed for street
purposes and would be challenging to do so due to the topography and existing natural
drainage features. Once the abandonment is complete the adjoining lots can be reconfigured
for more orderly development and potentially eliminating a non-standard “Flag Lot” through
future lot line adjustment.
Discussion at the Planning Commission meeting included public comment that the area
proposed for abandonment is preserved for the development of a parking lot. It is the
professional opinion of staff that the development of a parking lot is not feasible within the
excess right of way due to the parcel configuration and topography. The portion of the
proposed abandonment area that is relatively flat is the narrowest portion of the area, being
less than 20-feet in width, less than the required parking space length. The wider portion of
the proposed abandonment contains slopes ranging from 10 to 25-percent which could result
in significant fill in this area or difficulty in meeting accessibility requirements.
The Planning Commission has reviewed the proposed street abandonment for consistency with
the City's General Plan and Local Coastal Plan and recommends the abandonment, the
approval the Coastal Development Permit and Environmental Determination through the
adoption of Planning Commission Resolution 02-13.
3
Notice of this item is published in the agenda and posted at the required locations. Prior to
proceeding to Public Hearing the site will be noticed pursuant to the California Streets and
Highways Code. Additionally, all property owners and residents of record within 300 feet of
the subject site will be notified of the public hearing and invited to voice any concerns.
CONCLUSION
The proposal can be found consistent with the California Streets and Highways Code, the
City’s General Plan/Local Coastal Plan and the California Coastal Act. In addition, the
proposal is exempt pursuant to State CEQA guidelines. Based on these facts, staff finds that
all required findings can be made to continue the abandonment process and therefor
recommends approving City Council Resolution 18-13.
ATTACHMENTS
1. Vicinity Map
2. Information from the project representative received February 22, 2013.
3. Planning Commission Resolution, Minutes, and Staff Report
RESOLUTION NO. 18-13
A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF MORRO BAY, CALIFORNIA,
ADOPTING A RESOLUTION OF INTENTION TO ABANDON
A PORTION OF TORO LANE
E00-103 (Frye)
WHEREAS, the Morro Bay City Council held a public meeting in the Veterans
Memorial Building located at 209 Surf Street, Morro Bay, California, on March 12, 2013 for the
purpose of considering application E00-103, a request to abandon a portion of Toro Lane; and
WHEREAS, the Planning Commission of the City of Morro Bay also conducted a public
hearing in the Veterans Memorial Building located at 209 Surf Street, Morro Bay, California, on
January16, 2013 and February 6, 2013 for the purpose of considering application E00-103, a
request to abandon a portion of Toro Lane; and
WHEREAS, said public hearing was for the purpose of formulating and forwarding
recommendations to the City Council of the City of Morro Bay regarding the abandonment; and
WHEREAS, notices of said public hearing were made at the time and in the manner
required by law; and
WHEREAS, the Planning Commission and City Council has duly considered all
evidence, including the testimony of the applicant, interested parties, and the evaluation and
recommendations by staff, presented at said hearing.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Morro
Bay as follows:
Section 1. Findings. Based upon all the evidence, the City Council makes the following
findings, as recommended by the Planning Commission, in support of the intention to abandon a
portion of Toro Lane:
1. The proposed right-of-way abandonment is consistent with the General plan because the
portion proposed for abandonment is no longer needed for present or future public
purposes as fee title right of way.
2. Widening of the public street further to the west would serve no public purpose and could
create significant environmental impacts since property to the southeast abuts lands with
significant slope.
3. The right-of-way abandonment will benefit the general public by a more orderly
development of the adjoining parcels and adds property to the tax rolls.
4. The proposed right-of-way abandonment is categorically exempt from environmental
review under Section 15305 of the California Environmental Quality Act.
Section 2. Conditions. The City Council does hereby intend to abandon a portion of
Toro Lane, subject to the following conditions and code requirements:
1. The new monuments set to describe the Toro Lane Right of Way and the adjoining
property comers for all affected parcels shall be documented by a Record of Survey or
other appropriate instrument.
2. The exhibit showing future property lines providing dimensions of the areas to be
abandoned to the adjacent parcels and new parcel areas be prepared by the applicant for
Council action.
3. Private utility companies shall receive additional notice of intention to abandon (vacate)
prior to the City Council hearing.
4. The abandonment shall include the following reservations:
a. The reservation of an easement to the various public utilities and right at any time,
or from time to time, to construct, operate, maintain, replace, remove and renew
public utility facilities including sanitary sewers, storm drains, water lines,
recycled water lines, street lights, fire hydrants, utility boxes, valves, wires, cables
and appurtenances in, upon, and over the area 15-feet in width and parallel with
the existing end of improvements (curb or edge of pavement) for the length of the
proposed abandonment, including access to protect these works from all hazards.
b. The reservation of an easement for public pedestrian purposes being 15-feet in
width and parallel with the existing end of improvements (curb or edge of
pavement) for the length of the proposed abandonment.
Section 3. Public Hearing. The City Council does hereby set the date for the public
hearing, to consider the final abandonment order, consider the Coastal Development Permit and
approve the environmental determination for the portion of Toro Lane requested for
abandonment, for April 23, 2013 at the Veterans Memorial Building located at 209 Surf Street,
Morro Bay, California.
PASSED AND ADOPTED by the City Council of the City of Morro Bay at a regular
meeting thereof held on the 12th day of March, 2013 on the following vote:
AYES:
NOES:
ABSENT:
______________________________
JAMIE L. IRONS, Mayor
ATTEST:
_____________________________
JAMIE BOUCHER, City Clerk
ProposedToroLane
PartialAbandonment
E00-103(Frye)
60ft
CityGIS
ATTACHMENT 1
Sale of the abandoned property at 3420 Tore ane
City council members, thank you for allowing me to meet with most of you
over the past few weeks. Please take a moment to review my thoughts on
the matter of the abandonment of the surplus city land.
Below are what I feel are the pro's for the abandonment:
1. Divestment of land that has been unused and unmaintained for well over
50 years, from the time Hwy 1 was improved.
2. Maintenance and liability of this land is transferred to the new owner(s)
from the city. Beautification via landscaping will add value to the
community.
3. Generate immediate revenue by the sale
4. Generate future revenue from additional property taxes, enhanced by
development of the property.
5. Future uses remain available by the easements set by the city. ( parking,
bike staging area, etc)
6. Four property owner's benefit form the sale ( Frye, Nakata, St. Clair and
Coomer) while the city keeps options open via the easement. ( We plan to
sell the property adjacent to our 2 southerly neighbors and have a
preliminary agreement regarding this.)
City council members, please reflect on the following questions as you
make a decision on the sale of the surplus land.( abandonment area )
1. What are the actual and feasible future uses for this surplus property?
Do these uses fit within the ambiance of the neighborhood? RECEIVED
City of Monro Bay
FEB 2 2 2013
Administration
ATTACHMENT 2
2. What portions of the surplus land are usable? Evaluate slope and ESH
setbacks. ( see the topographical maps attached )
3. What will be the cost to the city to build out the proposals ?( specifically
parking )
4. Is the easement adequate for the proposed future uses ? ( parking )
5. Can you sell the land with it's easement and still allow for proposed
future uses?
I have considered all of these items and feel that the sale offers a mutually
beneficial agreement.
One more item to consider, once we build our residence, we will have no
interest in this property. We would have no interest in additional costs,
maintenance, liability or additional property taxes. Our interest is simply to
build further back on parcel land once we build there is no reason to
purchase the adjacent land.
Furthermore, if the city chooses to hold this land, it is our expectation that
the city council and those concerned citizens would push forward with the
plans to use this land for parking or another use. It would be a shame to let
it remain in it's current condition for the foreseeable future.
Thank you ,
Greg Frye
ATTACHMENT 2
ATTACHMENT 2
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. ATTACHMENT 2
ATTACHMENT 2
Prepared by: RL Dept. Review: KW/CJ
90
Staff Report
TO: Planning Commissioners DATE: January 31, 2013
FROM: Rob Livick, PE/PLS – Public Services Director/City Engineer
SUBJECT: Request for a Coastal Development Permit (CP0-391) to allow the abandonment
of a portion of the public right of way westerly of the existing back of curb of
Toro Lane, between Yerba Buena and North Point Subdivision, using the
procedures provided by the California Streets and Highways Code, Section 8300
et seq. (Greg Frye, 3420 Toro Lane, Applicant)
RECOMMENDATION
CONDITIONALLY APPROVE THE PROJECT by making the following motion:
A. Adopt the Findings included as Exhibit “A”;
B. Conditionally Approve Coastal Development Permit (#CP0-391) subject to the
Conditions included in Resolution Number 02-13;
C. Adopt Planning Commission Resolution Number 02-13, modifying Resolution
Number 01-13, finding that the right-of-way abandonment is consistent with the
General Plan and recommend that the City Council adopt a resolution of intention
of the abandonment with findings and conditions.
BACKGROUND
At the January 16, 2013 Planning Commission meeting staff brought forward this request to
abandon a portion of Toro Lane, however it did not include a request for a Coastal Development
Permit. Staff was informed by the California Coastal Commission that the project would require
a Coastal Permit; therefore staff has brought back the abandonment request along with a new
request for a Coastal Development Permit.
Staff has included for your information the previous Planning Commission staff report from the
January 16 meeting. In addition, staff has included the findings for the approval of the Coastal
Development Permit. Please note that the address of project was incorrectly advertised as 3450
Toro when the address is actually 3420 Toro, this has been corrected with the current noticing
and this staff report.
AGENDA NO: B-2
Meeting Date: February 6, 2013
ATTACHMENT 3
Page 2
February 6, 2013
Planning Commission Staff Report
2
Analysis:
In order to approve a Coastal Development Permit for land located between the first road and the
sea, the City must be able to make the finding that the project as proposed is consistent with
Chapter 3 of the California Coastal Act regarding public access and recreation. In particular, a
focus of this chapter is access to the sea via a public roadway to the shoreline; the project under
consideration (abandonment of a portion of Toro Lane) will not restrict or change the public’s
access to the sea in this area. The abandonment will eliminate unused public right of way width
but will not affect access in the vicinity including the access to the shoreline via Beachcomber.
Exhibit 1 of the January 16 Planning Commission staff report shows that there is both a trail over
land to the sea as well as access via Beachcomber Street.
Conclusion:
The proposal can be found consistent with the California Streets and Highways Code, the City’s
General Plan/Local Coastal Plan and the California Coastal Act. In addition, the proposal is
exempt pursuant to State CEQA guidelines. Based on these facts, staff finds that all required
findings can be made to recommend both the Abandonment and the Coastal Development Permit
to the City Council for approval.
ATTACHMENT 3
Page 3
February 6, 2013
Planning Commission Staff Report
3
EXHIBIT A
FINDINGS
SITE: 3420 TORO LANE
Request for a Coastal Development Permit (CP0-391) to allow the abandonment of a portion of
the public right of way westerly of the existing back of curb of Toro Lane, between Yerba Buena
and North Point Subdivision, using the procedures provided by the California Streets and
Highways Code, Section 8300 et seq. (Greg Frye, 3420 Toro Lane, Applicant)
California Environmental Quality Act (CEQA)
A. Pursuant to the California Environmental Quality Act the project as proposed is
Categorically Exempt Section 15305. Class 5 consists of minor alterations in land use limitations
in areas with an average slope less than 20% which do not result in any changes in land use or
density.
The project as proposed is the abandonment of approximately 15,260 square foot area (see
Exhibit 1 of the January 16 Planning Commission staff report). The area abandoned will be
offered to adjacent parcels to be combined with each existing parcel, the area abandoned will not
be a parcel that can be developed independently. The project area is bounded by developed and
undeveloped residential properties, a drainage channel (ESH) and part of a developed City
roadway. The road serves as the main entry to North Point development and the North Point
natural area (Park).
Coastal Development Permit Findings
B. In order to approve any coastal development permit the findings of the Planning
Commission shall be that the approved or conditionally approved project is consistent with the
applicable provisions of the certified Local Coastal Program. For every development between the
nearest public road and the sea or the shoreline or any body of water, the Planning Commission
shall make a specific finding that such development is in conformity with the public access and
public recreation policies of Chapter 3 of the California Coastal Act.
The proposed project is consistent with all provision of Title 17 and the Local Coastal Plan. The
project is located between the nearest public road and the sea and therefore the project has been
reviewed for consistency with the public access and public recreation policies of Chapter 3 of the
California Coastal Act and was found to be in compliance.
ATTACHMENT 3
RESOLUTION NO. 02-13
A RESOLUTION OF THE MORRO BAY PLANNING
COMMISSION RECOMMENDING APPROVAL TO THE CITY
COUNCIL TO ADOPT A RESOLUTION OF INTENTION TO ABANDON
A PORTION OF TORO LANE
E00-103 (Frye)
WHEREAS, the Planning Commission of the City of Morro Bay conducted a public
hearing in the Veterans Memorial Building located at 209 Surf Street, Morro Bay, California, on
January 16, 2013 for the purpose of considering application E00-103, a request to abandon a
portion of Toro Lane; and
WHEREAS, the Planning Commission of the City of Morro Bay did adopt Resolution
01-13 at said January 16, 2013 meeting; and
WHEREAS, it was determined that a Coastal Development Permit was required to
process a Street Vacation (Abandonment); and
WHEREAS, the Planning Commission of the City of Morro Bay conducted a public
hearing in the Veterans Memorial Building located at 209 Surf Street, Morro Bay, California, on
February 6, 2013 for the purpose of considering the Abandonment Application (#E00-103) and
Coastal Development Permit (#CP0-391), a request to abandon a portion of Toro Lane; and
WHEREAS, said public hearing was for the purpose of formulating and forwarding
recommendations to the City Council of the City of Morro Bay regarding the abandonment;
and
WHEREAS, notices of said public hearing were made at the time and in the manner
required by law; and
WHEREAS, the Planning Commission has duly considered all evidence, including the
testimony of the applicant, interested parties, and the evaluation and recommendations by staff,
presented at said hearing.
NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City of
Morro Bay as follows:
Section 1. Findings. Based upon all the evidence, the Commission makes the following
findings in support of the intention to abandon of a portion of Toro Lane as a recommendation to
City Council:
ATTACHMENT 3
1. The proposed right-of-way abandonment is consistent with the General plan because the
portion proposed for abandonment is no longer needed for present or future public
purposes as fee title right of way.
2. Widening of the public street further to the west would serve no public purpose and could
create significant environmental impacts since property to the southeast abuts lands with
significant slope.
3. The right-of-way abandonment will benefit the general public by a more orderly
development of the adjoining parcels and add property to the tax rolls.
4. The proposed right-of-way abandonment is categorically exempt from environmental
review under Section 15305 of the California Environmental Quality Act.
Section 2. Recommendation. The Planning Commission does hereby approve and
Coastal Development Permit (#CP0-391) and adopt Resolution 02-13 modifying Resolution 01-
13 and recommend that the City Council adopt a resolution of intention to abandon (vacate) the
westerly portion of Toro Lane, subject to the following conditions and code requirements:
1. The new monuments set to describe the Toro Lane Right of Way and the adjoining
property comers for all affected parcels shall be documented by a Record of Survey or
other appropriate instrument.
2. The recordable exhibit, showing future property lines shall indicate dimensions of the
areas to be abandoned to the adjacent parcels and new parcel areas, be prepared by a
Licensed Land Surveyor at the applicant’s cost for Council action.
3. Private utility companies shall receive additional notice of intention to vacate prior to the
City Council hearing.
4. The abandonment resolution of the City Council shall include the following reservations:
a. The reservation of an easement and right at any time, or from time to time, to
construct, operate, maintain, replace, remove and renew public utility facilities
including sanitary sewers, storm drains, water lines, recycled water lines, street
lights, fire hydrants, utility boxes, valves, wires, cables and appurtenances in over
and across the area to be vacated, including access to protect these works from all
hazards in, upon, and over the area 15-feet in width and parallel with the existing
end of improvements (curb or edge of pavement) for the length of the proposed
abandonment.
b. The reservation of an easement for public pedestrian purposes being 15-feet in
width and parallel with the existing end of improvements (curb or edge of
pavement) for the length of the proposed abandonment.
ATTACHMENT 3
c. Informational note: although the abandonment may result in additional property to
be deeded back to adjacent contiguous properties, the abandonment does not
constitute creation of a separate lot or a potential future subdivision.
On motion by Commissioner________________, seconded by Commissioner
______________ and on the following roll call vote to wit:
AYES:
NOES:
REFRAIN: None
ABSENT: None
The foregoing resolution was passed and adopted this 6th day of February, 2013.
_______________________________________
Rob Livick, PE/PLS - Secretary
Planning Commission
ATTACHMENT 3
Prepared by: RL Dept. Review: KW/CJ
90
Staff Report
TO: Planning Commissioners DATE: January 9, 2013
FROM: Rob Livick, PE/PLS – Public Services Director/City Engineer
SUBJECT: Request for abandonment of a portion of the public right of way westerly of the
existing back of curb of Toro Lane, between Yerba Buena and North Point
Subdivision, using the procedures provided by the California Streets and
Highways Code, Section 8300 et seq. (Greg Frye, 3450 Toro Lane, Applicant)
RECOMMENDATION
Adopt Planning Commission Resolution Number 01-13, finding that the right-of-way
abandonment is consistent with the General Plan and recommend that the City Council adopt a
resolution of intention of the abandonment with findings and conditions.
SUMMARY
The State of California Streets and Highways Code §8300 et seq, Public Streets, Highways, and
Service Easements Vacation Law contains procedures under which a local agency can vacate or
abandon its Rights-of-Ways. The Code requires that if the proposed abandonment of a street,
highway, or public service easement is within an area for which a General Plan is adopted by a
local agency, the legislative body of the public entity shall consider the General Plan prior to
vacating the street, highway, or public service easement.
The applicant has proposed to abandon the excess right of way westerly of the existing curb line
from Yerba Buena Street to the prolongation of the northerly property line of the applicant’s
parcel, approximately 234-feet using §8300 et seq of the California Streets and Highways Code.
If this abandonment is approved, staff recommends to extend the limit of abandonment
approximately 145-feet to the North, to the beginning of the private section of Toro Lane that
was previously abandoned with Tract 2110 (North Point). The portion of the street for proposed
abandonment has never been developed for street purposes and would be challenging to do so
due to the topography and existing natural drainage features. Once the abandonment is complete
the adjoining lots can be reconfigured for more orderly development and potentially eliminating
a non-standard “Flag Lot” through future lot line adjustment.
The Planning Commission's role is to review the proposed street abandonment for consistency
with the City's General Plan and to make a recommendation to the City Council. The Planning
Commission should be aware that the California Streets and Highways Code requires a street
vacation (abandonment) be done in the interest of the public and not an individual property
owner. The Council will consider whether to adopt a "Resolution of Intention," which would set
AGENDA NO:
Meeting Date: January 16, 2013
ATTACHMENT 3
Page 2
January 16, 2013
Planning Commission Staff Report
Initiation of the process to consider the abandonment of a portion of Toro Lane
2
a public hearing to consider the matter of final abandonment. If passed, a final "Resolution of
Abandonment" will be adopted and recorded with the County Recorder.
Data Summary:
Applicant/Representative: Greg Frye
Property Owner: City of Morro Bay
Zoning: R-1/S2a
General Plan Designation: Moderate Density Residential and Environmentally Sensitive
Habitat
Coastal Designation: Coastal Appeals Area (Abandonments not Subject to a Coastal Permit)
Environmental Status: Categorically exempt under Class 5, Minor Alterations in Land Use
Limitations (Section 15305 of the CEQA Guidelines)
Site Description
The total area of proposed abandonment is approximately 15,260 square foot area (see Attachments 1
and 2). The project area is bounded by developed and undeveloped residential properties, a drainage
channel (ESH) and part of a developed City roadway. The road serves as the main entry to North
Point development and the North Point natural area (Park).
Project Description
The proposed project is a General Plan consistency determination on a requested abandonment of a
portion of public right-of-way known at the Toro Lane (Exhibit 1).
DISCUSSION
In order to abandon the right-of-way, the California Streets and Highways Code requires that the
Planning Commission determine whether the abandonment is consistent with the City's General
Plan. This means that a determination needs to be made on whether the right-of-way will be
needed for present or future public circulation purposes. In addition, continued access to any City
or public utility services and improvements needs to be properly preserved.
Toro Lane is designated as residential local street in the Circulation Element of the General Plan.
Toro Lane was acquired by the County of San Luis Obispo from the State of California on
October 28, 1963 as a relinquishment of property not required for the construction of the
Highway 1 Freeway construction. Upon incorporation this “fee title” right of way transferred to
the City of Morro Bay. Toro Lane served as a “frontage” road to the freeway providing access to
those parcels that previously accessed Highway 1 directly.
ATTACHMENT 3
Page 3
January 16, 2013
Planning Commission Staff Report
Initiation of the process to consider the abandonment of a portion of Toro Lane
3
Unless the rights-of-way are owned in fee by the City, the underlying property reverts back to
the adjacent property owners when abandoned. According to the documents submitted by the
applicant, and verified by staff, the rights-of-way are owned in fee by the City, and after or
concurrent with abandonment, the property will need to be declared as surplus and potentially
sold at its market rate.
If the Council determines that the right-of-way should be abandoned, easements must be reserved
for public and private utilities to the satisfaction of the City and the respective utility companies.
These easements will insure that the affected local utilities retain rights to repair and service their
facilities within the area proposed for abandonment. Staff supports the proposed abandonment,
subject to reservation of necessary easements. The right-of-way abandonment proposal was sent
to the local utility companies for their review and comment. Other interested parties will be
given another opportunity to comment during the abandonment process prior to final City
Council approval. Staff finds that the proposed right-of-way abandonment will not adversely
impact existing or future public utilities in the immediate area or in the City as a whole provided
the required easements are dedicated. Therefore, staff recommends a condition be included as
follows: “Reservation of an 15-foot wide public pedestrian and utility easement be reserved” to
protect the rights of the City for future but unlikely need for a sidewalk along the westerly side of
Toro Lane and if there is a need to place future utilities within the abandoned area.
Notice of this item is published in the agenda and posted at the required locations. Prior to
preceding to Public Hearing the site will be noticed pursuant to the California Streets and
Highways Code, additionally, while not required by law, all property owners of record within
300 feet of the subject site will be notified of the public hearings and invited to voice any
concerns. As of December 9, 2012 the City has received one objection to the proposed
abandonment, attached as Exhibit 3.
CONCLUSION
The proposal can be found consistent with the California Streets and Highways Code and the
City’s General Plan. The proposal is exempt pursuant to State CEQA guidelines, and it appears
that all of the required findings can be made to recommend abandonment to the City Council for
approval.
ALTERNATIVES
1. Recommend denial of the abandonment, based on findings of inconsistency with the
General Plan or other policies.
2. Continue the abandonment if additional information is needed, with specific direction
given to staff.
Exhibits:
1. Proposed Toro Abandonment Exhibit
2. Draft Planning Commission Resolution Recommending Abandonment
3. Correspondence
ATTACHMENT 3
ProposedToroLane
PartialAbandonment
E00-103(Frye)
60ft
CityGIS
ATTACHMENT 3
RESOLUTION NO. 01-13
A RESOLUTION OF THE MORRO BAY PLANNING
COMMISSION RECOMMENDING APPROVAL TO THE CITY
COUNCIL TO ADOPT A RESOLUTION OF INTENTION TO ABANDON
A PORTION OF TORO LANE
E00-103 (Frye)
WHEREAS, the Planning Commission of the City of Morro Bay conducted a public
hearing in the Veterans Memorial Building located at 209 Surf Street, Morro Bay, California, on
February 6, 2013 for the purpose of considering application E00-103, a request to abandon a
portion of Toro Lane; and
WHEREAS, said public hearing was for the purpose of formulating and forwarding
recommendations to the City Council of the City of Morro Bay regarding the abandonment;
and
WHEREAS, notices of said public hearing were made at the time and in the manner
required by law; and
WHEREAS, the Planning Commission has duly considered all evidence, including the
testimony of the applicant, interested parties, and the evaluation and recommendations by staff,
presented at said hearing.
NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City of
Morro Bay as follows:
Section 1. Findings. Based upon all the evidence, the Commission makes the following
findings in support of the intention to abandon of a portion of Toro Lane as a recommendation to
City Council:
1. The proposed right-of-way abandonment is consistent with the General plan because the
portion proposed for abandonment is no longer needed for present or future public
purposes as fee title right of way.
2. Widening of the public street further to the west would serve no public purpose and could
create significant environmental impacts since property to the southeast abuts lands with
significant slope.
3. The right-of-way abandonment will benefit the general public by a more orderly
development of the adjoining parcels and add property to the tax rolls.
4. The proposed right-of-way abandonment is categorically exempt from environmental
review under Section 15305 of the California Environmental Quality Act.
Section 2. Recommendation. The Planning Commission does hereby recommend the
City Council adopt a resolution of intention to abandon of a portion of Toro Lane, subject to the
following conditions and code requirements:
ATTACHMENT 3
1. The new monuments set to describe the Toro Lane Right of Way and the adjoining
property comers for all affected parcels shall be documented by a Record of Survey or
other appropriate instrument.
2. The exhibit showing future property lines shall provide dimensions of the areas to be
abandoned to the adjacent parcels and new parcel areas be prepared by the applicant for
Council action.
3. Private utility companies shall receive additional notice of intention to vacate prior to the
City Council hearing.
4. The abandonment resolution of the City Council shall include the following reservations:
a. The reservation of an easement and right at any time, or from time to time, to
construct, operate, maintain, replace, remove and renew public utility facilities
including sanitary sewers, storm drains, water lines, recycled water lines, street
lights, fire hydrants, utility boxes, valves, wires, cables and appurtenances in over
and across the area to be vacated, including access to protect these works from all
hazards in, upon, and over the area 15-feet in width and parallel with the existing
end of improvements (curb or edge of pavement) for the length of the proposed
abandonment.
b. The reservation of an easement for public pedestrian purposes being 15-feet in
width and parallel with the existing end of improvements (curb or edge of
pavement) for the length of the proposed abandonment.
c. Informational note: although the abandonment may result in additional property to
be deeded back to adjacent contiguous properties, the abandonment does not
constitute creation of a separate lot or a potential future subdivision.
On motion by Commissioner________________, seconded by Commissioner ______________
and on the following roll call vote to wit:
AYES:
NOES:
REFRAIN: None
ABSENT: None
The foregoing resolution was passed and adopted this 6th day of February, 2013.
_______________________________________
Rob Livick, PE/PLS - Secretary
Planning Commission
ATTACHMENT 3
ATTACHMENT 3
ATTACHMENT 3
ATTACHMENT 3
ATTACHMENT 3
ATTACHMENT 3
ATTACHMENT 3
SYNOPSIS MINUTES – MORRO BAY PLANNING COMMISSION
REGULAR MEETING – FEBRUARY 6, 2013
5
Livick stated the City will work to better screen the yard equipment so as to reduce the visual
impacts of the facility.
B-2 Case No.: Abandonment #E00-103 and Coastal Development Permit #CP0-391
Site Location: 3420 Toro Lane
Proposal: A Coastal Development Permit for the abandonment of approximately 15,600
square foot portion of fee owned Toro Lane right of way, North of Yerba Buena and
Westerly of the existing West curb line of Toro Lane. The abandonment will be
processed using the procedures identified in the California Streets and Highways Code
Section 8300 et seq. These procedures require that the abandonment (vacation) be in
conformance with the City’s General Plan.
CEQA Determination: Categorically exempt, Class 5
Staff Recommendation: Conditionally recommend approval to City Council.
Staff Contact: Rob Livick, Public Services Director (805) 772-6261
Livick presented the staff report.
Commissioner Lucas discussed with staff the height requirements and development potential in
this zone. Lucas asked whether the applicant could add a second floor to a house on the property,
and Livick confirmed that would be a possibility. Lucas asked staff if the easements on the
abandonment would prohibit development there. Livick stated he was unsure what the actual
development potential is for the site.
Livick reviewed the procedural steps for how the abandonment would continue if approved.
Chairperson Grantham opened Public Comment period.
Bill Martony, resident of Morro Bay, spoke against the project, stating there is a need for more
parking in the area and this property should be used for overflow parking; the property is public
property and should stay in the public domain; and the northern part of the property is already
developed.
Roger Ewing, resident of Morro Bay, spoke against the project and seconded Martony’s notions
regarding parking. He also spoke against the proposed installation of the solar-powered data
collector units for the Advanced Meter project.
Russ Nikata, resident of Morro Bay, spoke against the project, stating he would like a better
indication of how the applicant intends develop the property in the future.
Mark Starbel, resident of Morro Bay, spoke against the project, stating the project area should be
used as a parking lot. He asked the Commission to identify the access point on the property.
Grantham stated the driveway would be indicated on the precise plan, which would be developed
at a later phase of the project.
Chairperson Grantham closed Public Comment period.
ATTACHMENT 3
SYNOPSIS MINUTES – MORRO BAY PLANNING COMMISSION
REGULAR MEETING – FEBRUARY 6, 2013
6
Commissioner Fennacy expressed support for the project, stating there is substantial evidence to
show this project is in conformity with public access and public recreation.
Commissioner Solu asked Livick to address some of the concerns mentioned during Public
Comment.
Livick stated the following:
- Regarding the improvements in the blue shaded area of the site plan, they were
authorized under a Coastal Development Permit and a Special Encroachment Permit
which allow private improvements to exist on publicly owned property.
- Regarding access points on the property, there are several, including a 10-foot wide
access way onto Yerba Buena, an exit onto Toro Lane, and a small section of the property
which exits onto Beachcomber. Livick noted the request for abandonment was not for
access purposes but for a more orderly development of the property.
Commissioner Solu asked Livick if the property would be sold to the highest bidder. Livick
stated he was unsure about the City’s practices regarding the selling of property but noted that
any member of the public could potentially buy it. He stated the strip of land would not be
developable.
Commissioner Tefft asked Livick to clarify the riparian setback on the property. Livick stated,
due to the ESHA on the property, there is a minimum 50 foot setback. He noted an ESHA buffer
reduction is allowed under Code, with Planning Commission approval.
Commissioner Tefft stated he appreciates the need for parking in the area but noted the City has
no plans of developing parking there. Livick confirmed the General Plan does not anticipate
developing parking there.
Commissioner Tefft expressed concern that the proposal is unfinished and stated he would not
vote for the project.
Commissioner Lucas expressed concern that future development on the site would negatively
impact the surrounding residences.
Chairperson Grantham expressed support for the project.
MOTION: Commissioner Solu moved the Commission forward a favorable recommendation
on Abandonment #E00-103 and Coastal Development Permit #CP0-391 with the removal of
Condition C from the Resolution.
The motion was seconded by Commissioner Fennacy and the motion passed. (3-2), with
Commissioners Lucas and Tefft dissenting.
B-3 Case No.: Coastal Development Permit #CP0-382
Site Location: nearest address 2990 Alder
Proposal: Request to install a 29 foot wood pole in public right-of-way for purpose of
ATTACHMENT 3
Prepared by: __RL__ Dept. Review: RL__
City Manager Review:______
City Attorney’s Review:_____
Staff Report
TO: Honorable Mayor and City Council DATE: March 5, 2013
FROM: Rob Livick, PE/PLS - Public Services Director/City Engineer
SUBJECT: Approval of a Request for Proposal (RFP) for Consultant Services to
Study options for Morro Bay in the Development of a Wastewater
Treatment Plant Project
RECOMMENDATION
Approve the RFP for consultant services.
FISCAL IMPACT
The selection of professional services is based upon qualifications and is not a bid process. It
is estimated that the process of facilitating the decisions that need to be made prior to
proceeding with the wastewater treatment plant design and final site selection, could take
approximately two months and cost up to $45,000.
DISCUSSION
At their February 26, 2013 meeting, City Council directed staff to prepare an RFP for
Consultant Services to study options for the WWTP project.
These options include:
Treatment technology
Type of disposal
Ownership/operation
Level of reclamation
Biosolids Options
The process for reviewing the options should include the ability to receive public input at the
appropriate times.
CONCLUSION
Staff has prepared the draft RFP for City Council consideration and request direction on any
desired changes and/or approval of the RFP.
ATTACHMENTS
1. Draft RFP
AGENDA NO: D-2
MEETING DATE: March 12, 2013
CITY OF MORRO BAY
REQUEST FOR PROPOSALS
PROJECT PLANNING SERVICES
NEW WATER RECLAMATION FACILITY
Issued: March 13, 2013
Due: April 12, 2013
Approved:
Rob Livick, PE/PLS –Director/City Engineer
Department of Public Services
955 Shasta Avenue
Morro Bay, California 93442
CITY OF MORRO BAY
PROJECT MANAGEMENT SERVICES
TABLE OF CONTENTS
SCOPE OF PROJECT PLANNING SERVICES 3
PROPOSAL REQUIREMENTS 4
PROPOSAL CONTENT 4
CONTRACT AWARD AND EXECUTION 5
EVALUATION AND SELECTION PROCESS 8
QUESTIONS 12
AGREEMENT FOR CONSULTANT SERVICES (STANDARD) 18
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REQUEST FOR PROPOSAL
CITY OF MORRO BAY
WATER RECLAMATION FACILITY
The City of Morro Bay and the Cayucos Sanitary District (MBCSD), operate a wastewater treatment plant
under a Joint Powers Agreement. The City of Morro Bay is inviting the submittal of proposals for Project
Planning for the re-siting and facilitating a dialog on community values for the NEW Water Reclamation
Facility.
BACKGROUND
At the January 10, 2013 California Coastal Commission (CCC) meeting, the CCC voted to deny the Coastal
Development Permit (CDP) for construction of an upgraded wastewater treatment plant at its existing
location. In summary, the basis for denial included: Local Coastal Plan - Zoning inconsistency, failure to
avoid coastal hazards, failure to include a sizable reclaimed water component and the project is located
within an LCP-designated sensitive view area.
Denial of the CDP means the City and the Cayucos Sanitary District will be looking at alternative
locations for siting of a new wastewater treatment plant.
Information on the status of the WRF project can also be found on the City of Morro Bays website
(http://ca-morrobay.civicplus.com/index.aspx?nid=352 or http://morro-bay.ca.us/wwtpupgrade).
GOALS
Guide the community through a series of decisions regarding the features and siting of the NEW Water
Reclamation Facility (WRF). Among the decisions that the community through the City Council needs to
make include:
Treatment technology
Addressing energy use, water quality and siting requirements.
Type of disposal
Addressing ocean outfall, land application, subsurface disposal and streem discharge
Ownership/operation
Addressing Private and Public options
Level of reclamation
Addressing urban uses, rural agricultural uses and groundwater recharge
Biosolids Options
Composting onsite and hauling options
Siting Criteria
Given the other factors, what criteria is important to the community in siting the NEW WRF?
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CONTENT OF PROPOSAL SUBMITTAL
The following items are requested to be included in the submittal. The submittal need not be lengthy.
1. Scope of Services:
a. Describe in sufficient detail to identify the major elements of the services that are to be
provided by the consultant.
b. Please include two public workshop presentations and two presentations to the City
Council.
c. Developing the list of community desired and feasible options are part of the
consultant's work scope.
d. Provide a first and second draft of the Options report, based on the community input
and your analysis, to staff and after approval of the reports by the staff, two drafts will
be presented to the City Council for their consideration.
2. Project Team: Identify the project team and specify the responsible project manager and key
individuals.
3. Qualifications: Provide the qualifications of the key individuals on the project team.
4. Schedule: Describe major work task items assuming that the City Council approves the
consultant selection at the April meeting. Allowing for contract signing, the start date should be
assumed as June 1. There is no specific deadline. However, the MBCSD expects that the
schedule will reflect an aggressive commitment.
5. Fee: Please submit a rough cost estimate. The consultant selection will not be based upon the
fee. However, it is necessary to request the fee for budget estimating and decision making
purposes. The MBCSD does not have budget approval for this study. The contract fee will be
based upon a "time and materials" basis with a not-to-exceed limit.
PROPOSAL REQUIREMENTS
GENERAL TERMS AND CONDITIONS
1. Requirement to Meet All Provisions. Each individual or firm submitting a proposal shall meet
all of the terms and conditions of the Request for Proposals (RFP) specifications package. By virtue
of its proposal submittal, proposing consultant acknowledges agreement with and acceptance of all
provisions of the RFP specifications.
2. Proposal Submittal. Each proposal must be submitted on the form(s) provided in the
specifications and accompanied by any other required submittals or supplemental materials.
Enclose proposal documents in a sealed envelope addressed to the City of Morro Bay Department of
Public Services, 955 Shasta Avenue, Morro Bay, California, 93442. In order to guard against
premature opening, clearly label the proposal with the proposal title, name of consultant, and date
and time of proposal deadline. The City will not accept FAX submittals.
3. Insurance Certificate. Each proposal must include a current certificate of insurance showing:
a. The insurance carrier and its A.M. Best rating.
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b. Scope of coverage and limits.
c. Deductibles and self-insured retention.
The purpose of this submittal is to generally assess the adequacy of the proposing consultant’s
insurance coverage during proposal evaluation; as discussed under paragraph 10 below,
endorsements are not required until contract award.
4. Proposal Withdrawal and Opening. A proposing consultant may withdraw its proposal, without
prejudice, prior to the time specified for the proposal opening, by submitting a written request to
the Director of Public Services for its withdrawal, in which event the proposal will be returned to the
consultant unopened. The City will not consider proposals received after the time specified or at
any place other than that stated in the "Notice Requesting Proposals.” The City will open and
declare all proposals in public. Proposing consultants or their representatives are invited to be
present at the opening of the proposals.
5. Submittal of One Proposal Only. No individual or business entity of any kind shall be allowed to
make or file, or to be interested in more than one proposal.
6. Communications. All timely requests for information submitted in writing to Rob Livick,
rlivick@morro-bay.ca.us, will receive a written response from the City. The City does not
encourage telephone communications with City staff but will allow them. However, any such oral
communication shall not be binding on the City.
CONTRACT AWARD AND EXECUTION
7. Proposal Retention and Award. The City reserves the right to retain all proposals for a period of
90 days for examination and comparison. The City also reserve the right to waive non-substantial
irregularities in any proposal, to reject any or all proposals, to reject or delete one part of a proposal
and accept the other, except to the extent that proposals are qualified by specific limitations. The
special terms and conditions of these specifications include proposal evaluation and contract award
criteria.
8. Competency and Responsibility of Proposing Consultant. The City reserve full discretion to
determine the competence and responsibility, professionally and/or financially, of proposing
consultants. Proposing consultants will provide, in a timely manner, all information that the City
deems necessary to make such a decision.
9. Contract Requirement. The proposing consultant to whom award is made (Consultant) shall
negotiate and execute a written contract with the City within thirty (30) calendar days after notice
of the award has been sent by mail to it at the address given in its proposal. The contract shall be
made in substantially the form adopted by the City and incorporated in these specifications.
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10. Insurance Requirements. The Consultant shall provide insurance policies and endorsements of
insurance policies in the form, coverages, and amounts specified in the Consultant Services
Agreement within 10 (ten) calendar days after notice of contract award as a precondition to
contract execution.
11. Business License. The Consultant must have a valid City of Morro Bay business license prior to
execution of the contract. Additional information regarding the City's business license program is
available at the City of Morro Bay City Hall at 595 Harbor Street, Morro Bay, CA, 93442, (805) 772-
6200.
CONTRACT PERFORMANCE
12. Ability to Perform. The Consultant warrants that it possesses, or has arranged through
subcontracts, all capital and other equipment, labor, materials, and licenses necessary to carry out
and complete the work hereunder in compliance with any and all federal, state, county, city, and
special district laws, ordinances, and regulations.
13. Laws to be observed. The Consultant shall keep itself fully informed of and shall observe and
comply with all applicable state and federal laws and county and City of Morro Bay ordinances,
regulations and adopted codes during its performance of the work.
14. Payment of Taxes. The contract prices shall include full compensation for all taxes that the
Consultant is required to pay.
15. Safety Provisions. The Consultant shall conform to the rules and regulations pertaining to
safety established by OSHA and the California Division of Industrial Safety.
16. Public and Employee Safety. Whenever the Consultant's operations create a condition
hazardous to the public or City employees, it shall immediately correct such conditions at its
expense and without cost to the City.
17. Consultant Non-Discrimination. In the performance of this work, the Consultant agrees that it
will not engage in, nor permit such subconsultants as it may employ, to engage in discrimination in
employment of persons because of age, race, color, sex, national origin or ancestry, sexual
orientation, or religion of such persons.
18. Terms and Conditions of Contract: The City’s standard general consultant contract form is
attached to this Request for Proposals. The successful consultant will be required to enter into a
contract substantially in the form attached and abide by all of its terms and conditions. .
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SPECIAL TERMS AND CONDITIONS - REQUEST FOR PROPOSALS
Submission of Proposal
To be considered by the selection committee, the Proposal for Project Planning Services for the City of
Morro Bay NEW Water Reclamation Facility project must be submitted by no later than 3:00 p.m. on
Wednesday, June 9, 2009.
The City-District will not consider proposals received after said time. Submit proposals to the City of
Morro Bay Public Services Department in a sealed envelope plainly marked with the proposal title,
consultant name and address, and time and date of the proposal submittal deadline.
Ten (10) copies of the proposal should be submitted in a sealed envelope or box. Proposals shall be
mailed to: City of Morro Bay, Department of Public Services, 595 Harbor St., Morro Bay, 93442; or hand
delivered to the Department at 955 Shasta Avenue, Morro Bay, 93442.
PROPOSAL CONTENT: Your proposal must include the following information:
Proposal Length and Copies
The consultant is encouraged to prepare a straightforward, concise proposal that specifically relates to
the project. The following is a list of the maximum number of pages for various components of the
proposal.
Letter of Transmittal 1 page
Scope of Services Discussion 8 pages maximum
Figures and Illustrations 4 pages maximum
Appendices (no page limit)
a. Resumes of Key Personnel, limited to two pages each (as needed)
b. The Consultant shall provide a statement that confirms review of the Agreement of
Services.
c. Proposers must identify any provisions they disagree with, and changes which they wish
to have considered by the City.
d. Consultant’s Detailed Scope of Services (as needed)
e. Provide hourly rate schedule
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EVALUATION CRITERIA AND SELECTION PROCESS
Selection of the consultant or contracting entity will be based on an overall assessment of qualifications,
capability, adaptability, and plan to accomplish the project on schedule. Selection of the consultant shall
be based on all submitted documents and subsequent interview.
Written proposals will be ranked by the City based on established ranking criteria. The request for
proposals for Project Management Services will be evaluated utilizing the following qualifications-based
criteria:
Criteria
Points
Approach to Work 30
Relevant Project Experience 30
Project Team 30
Responsiveness to the RFP 5
Ability to Conform to City Contract 5
Oral Presentation 50
Total
150
The Proposal shall include the following items.
Transmittal Letter
The proposer may use this section to introduce the Proposal and/or to summarize the key provisions of
the proposal. The letter of transmittal shall contain the names of the Project Manager(s) that will
perform the project. The office location(s) where the work will be performed shall be stated.
Section 1 – Approach to Work (Score 30)
Outline your team’s approach to complete the scope of work outlined in the RFP.
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This section relates to the project understanding and approach of the requested services. This should
include a clear and concise understanding of the requested services based on existing information and
the chief issues to be addressed. The consultant should be knowledgeable of standard solutions
applicable to project issues as well as being able to offer innovative ideas. It is also important that the
consultant demonstrate an ability to synthesize technical information and communicate this information
in verbal, written and graphic form.
This section should also outline the approach to the project and how key issues identified in the
requested services will be addressed. It should include major tasks to be completed as well as the
resources proposed to complete each task, identifying the consultant’s ability to ensure expeditious
completion of the work.
Section 1 may include:
Describe the overall approach to the project.
Provide a general work plan that describes how the consultant will organize and conduct the
project by task, as defined in the Scope of Services. Identify any critical milestones for the
project.
Provide a description of the consultant’s approach and methodology of managing work tasks and
coordination used to accomplish the work in a timely manner. Describe how you would propose
to use City staff, if at all, to assist you during the project and indicate the approximate time
requirement.
Provide a description of how the consultant will ensure project progress and quality control.
Describe how your work plan addresses contingencies that may arise during the project.
Describe your process/concept for managing scope, schedule, and budget.
Describe your process and experience interacting with City Councils and District Boards, City
Staffs, and the public.
Describe the proposed management approach, which will cover: communications and
coordination approach, methods and techniques among project team members, with the City
and outside parties, and quality control and management program.
Section 2 – Relevant Project Experience (Score 30)
Briefly highlight the Project Manager(s) professional work history of relevant projects as it relates to the
capabilities to provide the requested services listed in the Scope of Services. Identify any unique
approaches or strengths that your firm may have related to this project.
Identify recent experience with planning/engineering services on WRF projects, specifically highlighting
experience within the Coastal Zone.
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Identify experience with public relations and outreach with a controversial public works project, identify
ideas or approaches to communication with Councils, Boards, and the public.
Section 3 – Project Team (Score 30)
With respect to the tasks listed in the Scope of Services, indicate staff organization and describe the
specific role of key staff members, including sub-consultants, and how the City will be involved. Indicate
the portion of the time key staff will be available to work on the project, and discuss the availability of
the project team to complete the project on schedule. Describe major projects where key team
members have worked together previously. Emphasize the experience of the specific individuals
proposed to do the work. Include resumes for the key team members in the appendix of your proposal.
Substitutions of key personnel will only be allowed with written approval of the City.
Section 4 – Responsiveness to the RFP (Score 5)
Completeness of responses in accordance with the RFP instructions; exceptions to or deviations from
the RFP requirements.
Section 5 - Ability to Conform to City Contract (Score 5)
Ability to enter a design contract quickly; a copy of the City’s standard agreement for consultant services
is attached. Proposers are asked to identify in their proposals any language therein which would not be
accepted, and suggest in their proposal any changes in that language that would be required prior to
entering an agreement with the City.
Section 6 - Submittal Forms
a. Certificate of insurance.
b. At least three references from agencies you have provided similar services for (use form
in proposal package).
c. Statement and explanation of any instances regarding past governmental agency
bidding or contract disqualifications or removal from a project.
d.
Selection Procedure
The selection procedure is designed to provide each competing consultant a fair and objective
assessment of their qualifications. It is intended to allow each consultant the opportunity to have
access to the same information on the project and to submit information on its qualifications and
approach that will be judged on its merit in terms of how well it meets the City’s objectives. No
consultant has an acknowledged advantage in this procurement, nor does the City intend during the
selection process to confer any advantage to any consultant.
The following procedures will be followed in selecting the PM.
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A. Proposals received by the City will be reviewed by a selection committee. The selection committee
is made up of members from City Staff and up to two representatives from the City Council,
Planning Commission or Public (as appointed by City Council). The top three consultants may be
invited for interviews. The City reserves the right to request clarification of information submitted,
and to request additional information of one or more applicants prior to the selection for interviews.
Based on the results of the initial review and ranking process, utilizing the stated evaluation criteria,
the top consultants may be invited to the City of Morro Bay (at no cost to the City) for interviews.
B. Presentations and interviews will be before the selection committee who will evaluate and score
the presentations and proposals. Each interview will last approximately 1 hour. The presentation
will be an informal question and answer meeting; no power point presentations are expected or
desired. The City will schedule the times and locations for this meeting.
C. Upon completion of all interviews, the selection committee will evaluate and develop an overall
ranking of the competing consultants after giving full and fair consideration to each consultant’s
proposal and presentation, and designate the most qualified consultant for award of contract. The
most qualified consultant will have the highest combined score based on the evaluation criteria
used to evaluate the proposals for PM services as well as the interview process.
D. The City will notify the first-ranked consultant of its selection shortly after the committee has made
its decision. The other consultants will be notified, and if negotiations are not successful with the
top-ranked consultant, or if that consultant does not execute a contract agreeable to the City within
30 days of the notification, the City will cease discussions, and begin negotiations with the second
highest ranked consultant, etc., until a satisfactory contract is agreed upon; or the City may decide
to reject all proposals and re-advertise the RFP.
After an acceptable agreement is negotiated with the City, the agreement will be presented to the
Morro Bay City Council for approval and execution by the City. Upon receipt of a properly executed
agreement, notification to start services will be issued. It is expected that the consultant will commence
services within one week after the agreement is executed.
1. Contract Award. Subject to these Request for Proposal requirements, the City will award the
contract to the most qualified, responsible, responsive proposing consultant, using the proposal
evaluation and selection criteria.
After an acceptable agreement is negotiated with the City, the agreement will be presented to the
Morro Bay City Council and Cayucos Sanitary District Board of Directors for award of contract and
execution by the City. The Consultant shall monitor costs throughout the project. Any increase in
fees for additional consulting services must be confirmed in writing by the City prior to undertaking
extra work.
2. Failure to Accept Contract. The following will occur if the Consultant whose proposal is accepted
fails or refuses to enter into the contract: the City may negotiate with the next most qualified
proposing consultant.
3. Proposal Review and Award Schedule. The following is an outline of the anticipated schedule for
proposal review and contract award:
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a. Issue RFP Wednesday, March 13, 2013
b. Receive proposals Friday April 12, 2013
c. Evaluate proposals Friday, April 19, 2009
d. Interviews April 22-26, 2013
e. Award Contract Tuesday, May 14, 2013
f. Start work Monday, May 20, 2013
4. Questions. Direct questions or information requests concerning this project to Bruce Keogh
(mbWRF@yahoo.com), Wastewater Division Manager; or Rob Livick (rlivick@morro-bay.ca.us),
Public Services Director, City of Morro Bay Public Services Department, 955 Shasta, Morro Bay, CA,
93442, no later than 4 p.m. on Tuesday, April 10, 2013 and the City will forward all questions and
responses to all proposal holders to assure no one consultant gains a competitive advantage or
suffers a competitive disadvantage. The Wastewater Division Manager will attempt to respond to
questions within three working days of their receipt.
5. Ownership of Materials. All original drawings, plan documents, and other materials prepared by or
in possession of the Consultant as part of the work or services under these specifications shall
become the permanent property of the City. The Consultant shall deliver any or all of these
materials and documents to the City upon demand.
6. Release of Reports and Information. Any reports, information, data, or other material given to,
prepared by or assembled by the Consultant as part of the work or services under these
specifications shall be the property of City and shall not be made available to any individual or
organization by the Consultant without the prior written approval of the City.
7. Copies of Reports and Information. If the City request additional copies of reports, drawings,
specifications, or any other material in addition to what the Consultant is required to furnish in
limited quantities as part of the work or services under these specifications, the Consultant shall
provide such additional copies as are requested, and City shall compensate the Consultant for the
costs of duplicating of such copies at the Consultant's direct expense.
8. Accuracy of Scope of Consultant Services. The City find the Scope of Consultant Services for this
project to be accurate and to contain no affirmative misrepresentation or any concealment of fact.
Although the effect of ambiguities or defects in the Scope will be as determined by law, any patent
ambiguity or defect shall give rise to a duty of proposing consultant to inquire prior to proposal
submittal.
To the extent that the Scope of Consultant Services constitute performance parameters, the City
shall not be liable for costs incurred by the successful proposing consultant to achieve the project’s
objectives or standards beyond the amounts provided therefore in the proposal.
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PROPOSAL SUBMITTAL FORM – SUBCONSULTANT LISTING
Describe briefly the work scope of each sub-consultant. Attach additional pages if required.
Sub-consultant
Company Name
Contact Individual
Telephone & FAX number
Street Address
City, State, Zip Code
Description of services to be
provided.
Sub-consultant
Company Name
Contact Individual
Telephone & FAX number
Street Address
City, State, Zip Code
Description of services to be
provided
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REFERENCES
Number of years engaged in providing the services included within the scope of the consultant services
under the present business name: .
Describe fully the last three contracts performed by your firm that demonstrate your ability to provide
the services included with the scope of the consultant services. Attach additional pages if required. The
City reserve the right to contact each of the references listed for additional information regarding your
firm's qualifications.
Reference No. 1
Client’s Name
Contact Individual
Telephone & FAX number
Street Address
City, State, Zip Code
Description of services provided
including contract amount, when
provided and project outcome
Reference No. 2
Client’s Name
Contact Individual
Telephone & FAX number
Street Address
City, State, Zip Code
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Description of services provided
including contract amount, when
provided and project outcome
Reference No. 3
Client’s Name
Contact Individual
Telephone & FAX number
Street Address
City, State, Zip Code
Description of services provided
including contract amount, when
provided and project outcome
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STATEMENT OF PAST CONTRACT DISQUALIFICATIONS
The consultant shall state whether it or any of its officers or employees who have a proprietary interest
in it, has ever been disqualified, removed, or otherwise prevented from proposing on, or completing a
federal, state, or local government project because of the violation of law, a safety regulation, or for any
other reason, including but not limited to financial difficulties, project delays, or disputes regarding work
or product quality, and if so to explain the circumstances.
Do you have any disqualification as described in the above paragraph to declare?
Yes No
If Yes, explain the circumstances.
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Executed on at _______________________________________ under penalty of
perjury of the laws of the State of California, that the foregoing is true and correct.
______________________________________
Signature of Authorized Consultant Representative
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CONSULTANT SERVICES AGREEMENT
This Consultant Services Agreement (“Agreement”) is made upon the date of execution, as set
forth below, by and between Consultants Name Here a California Corporation, (hereinafter
referred to as CONSULTANT), and the CITY OF MORRO BAY, a California Municipal Corporation
(hereinafter referred to as "CITY”).
A. City jointly owns and operate a wastewater treatment plant located within the City of
Morro Bay; and
B. City desires to engage CONSULTANT to perform the services described herein below;
and
C. CONSULTANT represents that it possesses the skill, education and licenses necessary to
satisfactorily perform, and desires to perform said services.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties
hereto agree as follows:
1.00 GENERAL PROVISIONS
1.01 TERMS. This Agreement will become effective on the date of execution set forth
below, and will continue in effect until terminated as provided herein.
1.02 CONTRACT COORDINATION.
a. CITY. CITY’s Public Services Director shall be the representative of CITY
for all purposes under this Agreement. CITY’s Public Services Director, or his designated
representative, hereby is designated as the Contract Manager for the CITY. He shall supervise
the progress and execution of this Agreement.
b. CONSULTANT. CONSULTANT shall assign a single Contract Manager to
have overall responsibility for the progress and execution of this Agreement for CONSULTANT.
Contract/Project Manager Name here is hereby designated as the Contract Manager for
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CONSULTANT. Should circumstances or conditions subsequent to the execution of this Agree-
ment require a substitute Contract Manager for any reason, the Contract Manager designee
shall be subject to the prior written acceptance and approval of the CITY's Contract Manager.
1.03 SERVICES TO BE PERFORMED BY CONSULTANT. CONSULTANT agrees to
perform or provide the services specified in "Scope of Work" attached hereto as Exhibit "A" and
incorporated herein by this reference.
CONSULTANT shall determine the method, details and means of performing the
above-referenced services.
CONSULTANT may, at CONSULTANT's own expense, employ such assistants as
CONSULTANT deems necessary to perform the services required of CONSULTANT by this
Agreement. CITY may not control, direct or supervise CONSULTANT's assistants or employees
in the performance of those services.
1.04 COMPENSATION. In consideration for the services to be performed by
CONSULTANT, CITY agrees to pay CONSULTANT the consideration set forth in the amounts and
under the terms provided in Exhibit "B" attached hereto and incorporated herein by this
reference.
2.00 OBLIGATIONS OF CONSULTANT
2.01 MINIMUM AMOUNT OF SERVICE BY CONSULTANT. CONSULTANT agrees to
devote the hours necessary to perform the services set forth in this Agreement in an efficient
and effective manner. CONSULTANT may represent, perform services for and be employed by
additional individuals or entities, in CONSULTANT's sole discretion, as long as the performance
of these extra-contractual services does not interfere with or present a conflict with CITY's
business.
2.02 TOOLS AND INSTRUMENTALITIES. CONSULTANT shall provide all tools and
instrumentalities necessary to perform the services under this Agreement.
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2.03 LAWS TO BE OBSERVED. CONSULTANT shall:
a. Procure all permits and licenses, pay all charges and fees, and give all
notices which may be necessary and incidental to the due and lawful prosecution of the
services to be performed by CONSULTANT under this Agreement;
b. Keep itself fully informed of all existing federal, state and local laws, ordi-
nances, regulations, orders, and decrees which may affect those engaged or employed under
this Agreement, any materials used in CONSULTANT's performance under this Agreement, or
the conduct of the services under this Agreement;
c. At all times observe and comply with, and cause all of its employees to
observe and comply with all of said laws, ordinances, regulations, orders, and decrees
mentioned above;
d. Immediately report to the CITY's Contract Manager in writing any
discrepancy or inconsistency it discovers in said laws, ordinances, regulations, orders, and
decrees mentioned above in relation to any plans, drawings, specifications, or provisions of this
Agreement.
2.04 RELEASE OF REPORTS AND INFORMATION. Any video tape, reports,
information, data, or other material given to, or prepared or assembled by, CONSULTANT
under this Agreement shall be the property of CITY and shall not be made available to any
individual or organization by CONSULTANT without the prior written approval of City. This
provision shall not apply to information in whatever form that comes into the public domain,
nor shall it restrict CONSULTANT from giving notices required by law or complying with an
order to provide information or data when such order is issued by a court, administrative
agency or other authority with proper jurisdiction.
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2.05 COPIES OF VIDEO TAPES, REPORTS AND INFORMATION. If CITY requests
additional copies of videotapes, reports, drawings, specifications, or any other material in
addition to what the CONSULTANT is required to furnish in limited quantities as part of the
services under this Agreement, CONSULTANT shall provide such additional copies as are
requested, and CITY shall compensate CONSULTANT for the costs of duplicating of such copies
at CONSULTANT's direct expense.
2.06 QUALIFICATIONS OF CONSULTANT. CONSULTANT represents that it is qualified
to furnish the services described under this Agreement.
2.07 WORKERS COMPENSATION AND OTHER EMPLOYEE BENEFITS. CITY and
CONSULTANT intend and agree that CONSULTANT is an independent contractor of CITY and
agrees that CONSULTANT and CONSULTANT's employees and agents have no right to Workers
Compensation and other employee benefits. If any worker insurance protection is desired,
CONSULTANT agrees to provide Workers Compensation and other employee benefits, where
required by law, for CONSULTANT's employees and agents. CONSULTANT agrees to hold
harmless, defend and indemnify City, from any and all claims for injury, disability, or death of
CONSULTANT and CONSULTANT's employees or agents.
2.08 INDEMNIFICATION
(a) Indemnification for Professional Liability. When the law establishes a professional
standard of care for CONSULTANT’s Services, to the fullest extent permitted by law,
CONSULTANT shall indemnify, protect, defend and hold harmless District and any and all of its
Directors, officials, employees and agents (“Indemnified Parties”) from and against any and all
losses, liabilities, damages, costs and expenses, including attorney’s fees and costs to the extent
same are caused in whole or in part by any negligent or wrongful act, error or omission of
CONSULTANT, its officers, agents, employees or subcontractors (or any entity or individual that
CONSULTANT shall bear the legal liability thereof) in the performance of professional services
under this agreement.
(b) Indemnification for Other Than Professional Liability. Other than in the
performance of professional services and to the full extent permitted by law, CONSULTANT
shall indemnify, defend and hold harmless District, and any and all of its employees, officials
and agents from and against any liability (including liability for claims, suits, actions, arbitration
proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of
Page 22 of 39
any kind, whether actual, alleged or threatened, including attorneys fees and costs, court costs,
interest, defense costs, and expert witness fees), where the same arise out of, are a
consequence of, or are in any way attributable to, in whole or in part, the performance of this
Agreement by CONSULTANT or by any individual or entity for which CONSULTANT is legally
liable, including but not limited to officers, agents, employees or subcontractors of
CONSULTANT.
(c) General Indemnification Provisions. CONSULTANT agrees to obtain executed
indemnity agreements with provisions identical to those set forth here in this section from each
and every subcontractor or any other person or entity involved by, for, with or on behalf of
CONSULTANT in the performance of this agreement. In the event CONSULTANT fails to obtain
such indemnity obligations from others as required here, CONSULTANT agrees to be fully
responsible according to the terms of this section. Failure of District to monitor compliance
with these requirements imposes no additional obligations on District and will in no way act as
a waiver of any rights hereunder. This obligation to indemnify and defend District as set forth
here is binding on the successors, assigns or heirs of CONSULTANT and shall survive the
termination of this agreement or this section.
(d) Indemnity Provisions for Contracts Related to Construction. Without
affecting the rights of District under any provision of this Agreement, CONSULTANT shall not be
required to indemnify and hold harmless District for liability attributable to the active
negligence of District, provided such active negligence is determined by agreement between
the parties or by the findings of a court of competent jurisdiction. In instances where District is
shown to have been actively negligent and where District’s active negligence accounts for only
a percentage of the liability involved, the obligation of CONSULTANT will be for that entire
portion or percentage of liability not attributable to the active negligence of District.
2.09 INSURANCE. Consultant shall maintain prior to the beginning of and for the
duration of this Agreement insurance coverage as specified in Exhibit “C” attached hereto
and incorporated herein as though set forth in full.
Page 23 of 39
3.00 TIME FOR COMPLETION OF THE WORK
Program scheduling shall be as described in Exhibit "A" unless revisions to the exhibit
are approved by CONSULTANT's Contract Manager and the CITY’s City Manager.
Time extensions may be allowed for delays caused by CITY, other governmental
agencies, or factors not directly brought about by the negligence or lack of due care on the part
of the CONSULTANT.
4.00 TEMPORARY SUSPENSION
The CITY's Contract Manager shall have the authority to suspend this Agreement wholly
or in part, for such period as he deems necessary due to unfavorable conditions or to the failure
on the part of the CONSULTANT to perform any provision of this Agreement. CONSULTANT will
be paid the compensation due and payable to the date of temporary suspension.
5.00 INSPECTION
CONSULTANT shall furnish CITY with every reasonable opportunity for CITY to ascertain
that the services of CONSULTANT are being performed in accordance with the requirements
and intentions of this Agreement. All work done and all materials furnished, if any, shall be
subject to the CITY's Contract Manager's inspection and approval. The inspection of such work
shall not relieve CONSULTANT of any of its obligations to fulfill its Agreement as prescribed.
6.00 OWNERSHIP OF MATERIALS
All original drawings, videotapes and other materials prepared by or in possession of
CONSULTANT pursuant to this Agreement shall become the permanent property of the CITY,
and shall be delivered to the CITY upon demand. All such documents, plans and specifications
prepared under this Agreement shall become the property of the CITY upon completion of the
work and payment of monies earned and due to the CONSULTANT. Any unauthorized use of
the materials shall be at the CITY’s sole risk and without liability to the Consultant.
Page 24 of 39
7.00 OBLIGATIONS OF CITY
7.01 COOPERATION. CITY agrees to comply with all reasonable requests of
CONSULTANT necessary to the performance of CONSULTANT’s duties under this Agreement.
7.02 CITY shall also be responsible for providing such staff production assistance as is
specified in Exhibit “A”.
8.00 TERMINATION OF AGREEMENT
8.01 TERMINATION OF NOTICE. Notwithstanding any other provisions of this
Agreement, any party hereto may terminate this Agreement, at any time, without cause by
giving at least ten (10) days prior written notice to the other parties to this Agreement.
8.02 TERMINATION ON OCCURRENCE OF STATED EVENTS. This Agreement shall
terminate automatically on the occurrence of any of the following events:
a. Bankruptcy or insolvency of any party;
b. Sale of the business of any party without the prior approval of the other
party;
c. End of the Agreement to which CONSULTANT's services were necessary:
or
d. Assignment of this Agreement by CONSULTANT without the prior written
consent of CITY.
8.03 TERMINATION BY ANY PARTY FOR DEFAULT OF CONSULTANT. Should any
party default in the performance of this Agreement or materially breach any of its provisions, a
non-breaching party, at its option, may terminate this Agreement, immediately, by giving
written notice of termination to the breaching party.
Page 25 of 39
8.04 RETURN OF MATERIALS.
Upon such termination, CONSULTANT shall turn over to the CITY immediately
any and all copies of videotapes, studies, sketches, drawings, computations, and other data,
whether or not completed, prepared by CONSULTANT, and for which CONSULTANT has
received reasonable compensation, or given to CONSULTANT in connection with this Agree-
ment. Such materials shall become the permanent property of CITY. CONSULTANT, however,
shall not be liable for CITY's use of incomplete materials.
9.00 SPECIAL PROVISIONS
9.01 INTEREST OF CONSULTANT.
CONSULTANT covenants that it presently has no interest, and shall not acquire
any interest, direct or indirect, financial or otherwise, which would conflict in any manner or
degree with the performance of the services hereunder. CONSULTANT further covenants that,
in the performance of this Agreement, no subcontractor or person having such an interest shall
be employed. CONSULTANT certifies that no one who has or will have any financial interest
under this Agreement is an officer or employee of CITY or DISTRICT, respectively. It is expressly
agreed that, in the performance of the services hereunder, CONSULTANT shall at all times be
deemed an independent contractor and not an agent or employee of CITY or DISTRICT,
respectively.
9.02 DISCRIMINATION.
No discrimination shall be made in the employment of persons under this
Agreement because of the race, color, national origin, ancestry, religion or sex of such person.
If CONSULTANT is found in violation of the nondiscrimination provisions of the
State of California Fair Employment Practices Act or similar provisions of federal law or execu-
tive order in the performance of this Agreement, it shall thereby be found in material breach of
this Agreement. Thereupon, CITY shall have the power to cancel or suspend this Agreement, in
whole or in part, or to deduct from the amount payable to CONSULTANT the sum of Fifty
Dollars ($50) for each person for each calendar day during which such person was discriminated
against, as damages for said breach of contract, or both. Only a finding of the State of
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California Fair Employment Practices Commission or the equivalent federal agency or officer
shall constitute evidence of a violation of contract under this paragraph.
If CONSULTANT is found in violation of the nondiscrimination provisions of this
Agreement or the applicable affirmative action guidelines pertaining to this Agreement,
CONSULTANT shall be found in material breach of the Agreement. Thereupon, CITY shall have
the power to cancel or suspend this Agreement, in whole or in part, or to deduct from the
amount payable to CONSULTANT the sum of Five Hundred Dollars ($500) for each calendar day
during which CONSULTANT is found to have been in such noncompliance as damages for said
breach of contract, or both.
10.00 MISCELLANEOUS
10.01 REMEDIES. The remedies set forth in this Agreement shall not be exclusive but
shall be cumulative with, and in addition to, all remedies now or hereafter allowed by law or
equity.
10.02 NO WAIVER. The waiver of any breach by any party of any provision of this
Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of
this Agreement.
10.03 ASSIGNMENT. This Agreement is specifically not assignable by CONSULTANT to
any person or entity. Any assignment or attempt to assign by CONSULTANT, whether it be
voluntary or involuntary, by operation of law or otherwise, is void and is a material breach of
this Agreement giving rise to a right to terminate as set forth in Section 8.03.
10.04 ATTORNEY FEES. In the event of any controversy, claim or dispute between the
parties hereto, arising out of or relating to this Agreement, or the breach thereof, the prevailing
party shall be entitled, in addition to other such relief as may be granted, to a reasonable sum
as and for attorney fees.
10.05 TIME FOR PERFORMANCE. Except as otherwise expressly provided for in this
Agreement, should the performance of any act required by this Agreement to be performed by
either party be prevented or delayed by reason by any act of God, strike, lockout, labor trouble,
inability to secure materials, or any other cause except financial inability not the fault of the
Page 27 of 39
party required to perform the act, the time for performance of the act will be extended for a
period of time equivalent to the period of delay and performance of the act during the period
of delay will be excused; provided, however, that nothing contained in this section shall exclude
the prompt payment by either party as required by this Agreement or the performance of any
act rendered difficult or impossible solely because of the financial condition of the party
required to perform the act.
10.06 NOTICES. Except as otherwise expressly provided by law, any and all notices or
other communications required or permitted by this Agreement or by law to be served on or
given to any party to this Agreement shall be in writing and shall be deemed duly served and
given when personally delivered or in lieu of such personal service when deposited in the
United States mail, first-class postage prepaid to the following address for each respective
party:
CITY: City of Morro Bay
595 Harbor Street
Morro Bay, CA 93442
CONSULTANT: ________________________
________________________
________________________
10.07 GOVERNING LAW. This Agreement and all matters relating to this Agreement
shall be governed by the laws of the State of California in force at the time any need for the
interpretation of this Agreement or any decision or holding concerning this Agreement arises.
Any litigation concerning or arising from this Agreement shall take place in the Superior Court
for San Luis Obispo County.
Page 28 of 39
10.08 BINDING EFFECT. This Agreement shall be binding on and shall inure to the
benefit of the heirs, executors, administrators, successors and assigns of the parties hereto, but
nothing in this section shall be construed as a consent by CITY to any assignment of this
Agreement or any interest in this Agreement.
10.09 SEVERABILITY. Should any provision of this Agreement be held by a court of
competent jurisdiction or by a legislative or rule making act to be either invalid, void or
unenforceable, the remaining provisions of this Agreement shall remain in full force and effect,
unimpaired by the holding, legislation or rule.
10.10 SOLE AND ENTIRE AGREEMENT. This Agreement constitutes the sole and entire
agreement between the parties with respect to the subject matter hereof. This Agreement
correctly sets forth the obligations of the parties hereto to each other as of the date of this
Agreement. All agreements or representations respecting the subject matter of this Agreement
not expressly set forth or referred to in this Agreement are null and void.
10.11 TIME. CITY and Consultant agree that time is of the essence in this Agreement.
CITY and Consultant further agree that Consultant’s failure to perform on or at the times set
forth in this Agreement will damage and injure CITY, but the extent of such damage and injury
is difficult or speculative to ascertain. Consequently, CITY and Consultant agree that any failure
to perform by Consultant at or within the times set forth herein shall result in liquidated
damages of one thousand dollars ($1,000.00) per day for each and every day such performance
is late. CITY and Consultant agree that such sum is reasonable and fair. Furthermore, CITY and
Consultant agree that this Agreement is subject to Government Code Section 53069.85 and that
each party hereto is familiar with and understands the obligations of said Section of the
Government Code.
10.12 DUE AUTHORITY. The parties hereby represent that the individuals executing
this Agreement are expressly authorized to do so on and in behalf of the parties.
10.13 CONSTRUCTION. The parties agree that each has had an opportunity to have
their counsel review this Agreement and that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not apply in the interpretation of
this Agreement or any amendments or exhibits thereto. The captions of the sections are for
convenience and reference only, and are not intended to be construed to define or limit the
provisions to which they relate.
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10.14 AMENDMENTS. Amendments to this Agreement shall be in writing and shall be
made only with the mutual written consent of all of the parties to this Agreement.
Executed on _____________________, 2010, at __________________, California.
By_________________________ By:____________________________
Janice Peters, Mayor Consultant
Attest:
____________________________
Bridgett Bauer, City Clerk
Attest:
APPROVED AS TO CONTENT:
By:__________________________________
Rob Livick, PE/PLS –Public Services Director
Page 30 of 39
APPROVED AS TO FORM:
By:____________________________________
Robert Schultz
City Attorney
Page 31 of 39
EXHIBIT A
SCOPE OF WORK
Page 32 of 39
EXHIBIT B
PAYMENT SCHEDULE
Page 33 of 39
EXHIBIT C
INSURANCE REQUIREMENTS
Prior to the beginning of and throughout the duration of the Work, Consultant will maintain
insurance in conformance with the requirements set forth below. Consultant will use existing
coverage to comply with these requirements. If that existing coverage does not meet the
requirements set forth here, Consultant agrees to amend, supplement or endorse the existing
coverage to do so. Consultant acknowledges that the insurance coverage and policy limits set
forth in this section constitute the minimum amount of coverage required. Any insurance
proceeds available to CITY in excess of the limits and coverage required in this agreement and
which is applicable to a given loss, will be available to CITY.
Consultant shall provide the following types and amounts of insurance:
Commercial General Liability Insurance using Insurance Services Office “Commercial General
Liability” policy from CG 00 01 or the exact equivalent. Defense costs must be paid in addition
to limits. There shall be no cross liability exclusion for claims or suits by one insured against
another. Limits are subject to review but in no event less than $2,000,000 per occurrence.
Business Auto Coverage on ISO Business Auto Coverage from CA 00 01 including symbol 1 (Any
Auto) or the exact equivalent. Limits are subject to review, but in no event to be less than
$2,000,000 per accident. If Consultant owns no vehicles, this requirement may be satisfied by a
non-owned auto endorsement to the general liability policy described above. If Consultant or
Consultant’s employees will use personal autos in any way on this project, Consultant shall
provide evidence of personal auto liability coverage for each such person.
Property Damage Insurance in an amount of not less than $1,000,000 for damage to the
property of each person on account of any one occurrence.
Workers Compensation on a state-approved policy form providing statutory benefits as
required by law with employer’s liability limits no less than $2,000,000 per accident or disease.
Page 34 of 39
Excess or Umbrella Liability Insurance (Over Primary) if used to meet limit requirements, shall
provide coverage at least as broad as specified for the underlying coverages. Any such coverage
provided under an umbrella liability policy shall include a drop down provision providing
primary coverage above a maximum $25,000 self-insured retention for liability not covered by
primary but covered by the umbrella. Coverage shall be provided on a “pay on behalf” basis,
with defense costs payable in addition to policy limits. Policy shall contain a provision obligating
insurer at the time insured’s liability is determined, not requiring actual payment by the insured
first. There shall be no cross liability exclusion precluding coverage for claims or suits by one
insured against another. Coverage shall be applicable to CITY for injury to employees of
Consultant, subContractors or others involved in the Work. The scope of coverage provided is
subject to approval of CITY following receipt of proof of insurance as required herein. Limits are
subject to review but in no event less than $1,000,000 per occurrence.
Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a
policy form coverage specifically designated to protect against acts, errors or omissions of the
Consultant and “Covered Professional Services” as designated in the policy must specifically
include work performed under this agreement. The policy limit shall be no less than $2,000,000
per claim and in the aggregate. The policy must “pay on behalf of” the insured and must include
a provision establishing the insurer’s duty to defend. The policy retroactive date shall be on or
before the effective date of this agreement.
Insurance procured pursuant to these requirements shall be written by insurer that are admitted
carriers in the state California and with an A.M. Bests rating of A- or better and a minimum
financial size VII.
General conditions pertaining to provision of insurance coverage by Consultant. Consultant and
CITY agree to the following with respect to insurance provided by Consultant:
1. Consultant agrees to have its insurer endorse the third party general liability coverage
required herein to include as additional insureds the City of Morro Bay and the Cayucos
Sanitary District, and their officials employees and agents, using standard ISO
endorsement No. CG 2010 with an edition prior to 1992. Consultant also agrees to
require all Consultants, and subContractors to do likewise.
2. No liability insurance coverage provided to comply with this Agreement shall prohibit
Consultant, or Consultant’s employees, or agents, from waiving the right of subrogation
prior to a loss. Consultant agrees to waive subrogation rights against CITY regardless of
the applicability of any insurance proceeds, and to require all Consultants and
subContractors to do likewise.
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3. All insurance coverage and limits provided by Consultant and available or applicable to
this agreement are intended to apply to the full extent of the policies. Nothing
contained in this Agreement or any other agreement relating to the CITY or its
operations limits the application of such insurance coverage.
4. None of the coverages required herein will be in compliance with these requirements if
they include any limiting endorsement of any kind that has not been first submitted to
CITY and approved of in writing.
5. No liability policy shall contain any provision or definition that would serve to eliminate
so-called “third party action over” claims, including any exclusion for bodily injury to an
employee of the insured or of any Consultant or subcontractor.
6. All coverage types and limits required are subject to approval, modification and
additional requirements by the CITY, as the need arises. Consultant shall not make any
reductions in scope of coverage (e.g. elimination of contractual liability or reduction of
discovery period) that may affect CITY’s protection without CITY’s prior written consent.
7. Proof of compliance with these insurance requirements, consisting of certificates of
insurance evidencing all of the coverages required and an additional insured
endorsement to Consultant’s general liability policy, shall be delivered to CITY at or prior
to the execution of this Agreement. In the event such proof of any insurance is not
delivered as required, or in the event such insurance is canceled at any time and no
replacement coverage is provided, CITY has the right, but not the duty, to obtain any
insurance it deems necessary to protect its interests under this or any other agreement
and to pay the premium. Any premium so paid by CITY shall be charged to and promptly
paid by Consultant or deducted from sums due Consultant, at CITY’s option.
8. Certificate(s) are to reflect that the insurer will provide 30 days notice to CITY of any
cancellation of coverage. Consultant agrees to require its insurer to modify such
certificates to delete any exculpatory wording stating that failure of the insurer to mail
written notice of cancellation imposes no obligation, or that any party will “endeavor”
(as opposed to being required) to comply with the requirements of the certificate.
9. It is acknowledged by the parties of this agreement that all insurance coverage required
to be provided by Consultant or any subContractor, is intended to apply first and on a
primary, noncontributing basis in relation to any other insurance or self insurance
available to CITY.
10. Consultant agrees to ensure that subContractors, and any other party involved with the
project who is brought onto or involved in the project by Consultant, provide the same
Page 36 of 39
minimum insurance coverage required of Consultant. Consultant agrees to monitor and
review all such coverage and assumes all responsibility for ensuring that such coverage
is provided in conformity with the requirements of this section. Consultant agrees that
upon request, all agreements with subContractors and others engaged in the project
will be submitted to CITY for review.
11. Consultant agrees not to self-insure or to use any self-insured retentions or deductibles
on any portion of the insurance required herein and further agrees that it will not allow
any Consultant, subContractor, Architect, Engineer or other entity or person in any way
involved in the performance of work on the project contemplated by this agreement to
self-insure its obligations to CITY. If Consultant’s existing coverage includes a deductible
or self-insured retention, the deductible or self-insured retention must be declared to
the CITY. At the time the CITY shall review options with the Consultant, which may
include reduction or elimination of the deductible or self-insured retention, substitution
of other coverage, or other solutions.
12. The CITY reserves the right at any time during the term of the contract to change the
amounts and types of insurance required by giving the Consultant ninety (90) days
advance written notice of such change. If such change results in substantial additional
cost to the Consultant, the City will negotiate additional compensation proportional to
the increase benefit to CITY.
13. For purposes of applying insurance coverage only, this Agreement will be deemed to
have been executed immediately upon any party hereto taking any steps that can be
deemed to be in furtherance of or towards performance of this Agreement.
14. Consultant acknowledges and agrees that any actual or alleged failure on the part of
CITY to inform Consultant of non-compliance with any insurance requirements in no
way imposes any additional obligations on CITY nor does it waive any rights hereunder
in this or any other regard.
15. Consultant will renew the required coverage annually as long as CITY, or its employees
or agents face an exposure from operations of any type pursuant to this agreement. This
obligation applies whether or not the agreement is canceled or terminated for any
reason. Termination of this obligation is not effective until CITY executes a written
statement to that effect.
16. Consultant shall provide proof that policies of insurance required herein expiring during
the term of this Agreement have been renewed or replaced with other policies
providing at least the same coverage. Proof that such coverage has been ordered shall
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be submitted prior to expiration. A coverage binder or letter from Consultant’s
insurance agent to this effect is acceptable. A certificate of insurance and/or additional
insured endorsement as required in these specifications applicable to the renewing or
new coverage must be provided to CITY within five days of the expiration of the
coverages.
17. The provisions of any workers’ compensation or similar act will not limit the obligations
of Consultant under this agreement. Consultant expressly agrees not to use any
statutory immunity defenses under such laws with respect to CITY, its employees,
officials and agents.
18. Requirements of specific coverage features or limits contained in this section are not
intended as limitations on coverage, limits or other requirements nor as a waiver of any
coverage normally provided by any given policy. Specific reference to a given coverage
feature is for purposes of clarification only as it pertains to a given issue, and is not
intended by any party or insured to be limiting or all-inclusive.
19. These insurance requirements are intended to be separate and distinct from any other
provision in this agreement and are intended by the parties here to be interpreted as
such.
20. The requirements in this Section supersede all other sections and provisions of this
Agreement to the extent that any other section or provision conflicts with or impairs the
provisions of this Section.
21. Consultant agrees to be responsible for ensuring that no contract used by any party
involved in any way with the project reserves the right to charge CITY or Consultant for
the cost of additional insurance coverage required by this agreement. Any such
provisions are to be deleted with reference to CITY. It is not the intent of CITY to
reimburse any third party for the cost of complying with these requirements. There shall
be no recourse against CITY for payment of premiums or other amounts with respect
thereto.
22. Consultant agrees to provide immediate notice to CITY of any claim or loss against
Consultant arising out of the work performed under this agreement. CITY assumes no
obligation or liability by such notice, but has the right (but not the duty) to monitor the
handling of any such claim or claims if they are likely to involve CITY.
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EXHIBIT D
CITY’S REQUEST FOR PROPOSAL
Page 39 of 39
EXHIBIT E
CONSULTANT’S PROPOSAL
Prepared by: __RL__ Dept. Review: RL__
City Manager Review:______
City Attorney’s Review:_____
Staff Report
TO: Honorable Mayor and City Council DATE: March 5, 2013
FROM: Rob Livick, PE/PLS - Public Services Director/City Engineer
SUBJECT: Review and Discussion of Wastewater Treatment Plant Draft Schedule
of Tasks Needed to Proceed with the New Wastewater Treatment Plant
Project
RECOMMENDATION
Review and provide direction to staff.
FISCAL IMPACT
Attached is a revised “Schedule of Tasks” for the WWTP project. This revision indicates the
level of effort that may be required for each of the tasks.
DISCUSSION
At their February 26, 2013 meeting, City Council directed staff to revise the “Schedule of
Tasks” to include the relative level of effort/timing.
CONCLUSION
Staff has revised the “Schedule of Tasks” and is attached for Council discussion.
ATTACHMENTS
1. Draft “Schedule of Tasks”
AGENDA NO: D-3
MEETING DATE: March 12, 2013
DR
A
F
T
SCHEDULEOFTASKS
MorroBayWWTPProject
Item#TASKQ1Q2Q3Q4Q1Q2Q3Q4Q1Q2Q3Q4Q1Q2Q3Q4Q1Q2Q3Q4Q1Q2Q3Q4Q1Q2Q3Q4Q1Q2Q3Q4
A PreliminaryActivities
A1IssuanceofaRFPforProjectManagerand/orFacilitator
A2InterviewandHirePMand/orfacilitatortodetermine(CityofMorroBay)
A3goals/objectivesoftheWWTPproject(belowlistnotinclusive)
A4Treatmenttechnology
A5Typeofdisposal
A6Ownership/operation
A7Levelofreclamation
A8BiosolidsOptions
B SiteScreening
B1Publicprocessongoalsandobjectivesoftheproject
B2Reviewroughscreeningandfinescreeningdocumentsonsites
B3Determineifadditionalsitesneedtobeincluded
B4Publicworkshopstonarrowsitesdown
B5Indepthstudyoftop23sites
B6IssuanceofRFPforFacilitiesMasterPlan(FMP)consultingengineer
B7InterviewandhireFMPconsultingEngineer
C SiteSelection/FacilitiesPlanning
C1 Determinefinalsite,acquirefinalsite
C2CompletedraftofFMP
C3Publicworkshop(s)onDraftFMP
C4CompletefinalFMP
C5Complete218forRateincreases
D EnvironmentalReviewandPermitting
D1CompleteandcirculatedraftCEQA
D2IssueFinalCEQADocument
D3ObtainPermitsincludingCoastalDevelopmentPermit
E Financing
E1InvestandPursueGrantOptions
E2Completedraftplanfordesignandconstructionfinancing
E3 Completefinalplanforprojectfinancing
E4Submitproofthatallnecessaryfinancingissecured
F DesignandConstruction(dependantondeliverymethod)
F1Initiatedesign
F230%designreview
F3SelectDeliveryMethod
DesignBidBuildProcess
Fa1Completedesign
Fa2Issuenoticetoproceedwithconstruction
Fa3Competedconstructionanddebuggingandstartup
Fa4 Achievefullcompliancewithsecondary/tertiarypermitrequirement
DesignBuildProcess
Fb1IssueDesignBuildContract
Fb2Competedconstructionanddebuggingandstartup
Fb3Achievefullcompliancewithsecondary/tertiarypermitrequirement
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