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HomeMy WebLinkAboutReso 43-19 Approving a Licence Agreement with Cal Poly for Dedicated Doc Space on North T-Pier for a Floating Research & Educational DockRESOLUTION NO. 43-19 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MORRO BAY, CALIFORNIA APPROVING A LICENSE AGREEMENT WITH THE CAL POLY CORPORATION FOR DEDICATED DOCK SPACE ON THE NORTH T-PIER FOR A FLOATING RESEARCH AND EDUCATIONAL DOCK THE CITY COUNCIL City of Morro Bay, California WHEREAS, in 2015 the City of Morro Bay entered into atwo-year, three-month License Agreement with the Cal Poly Corporation for a dedicated location and the placement of a floating dock at the North T-Pier, and, WHEREAS, the Cal Poly Corporation wishes to continue the use and enter into a new two-year License Agreement, with an option to renew for an additional two years; and, WHEREAS, the Cal Poly Corporation and City have agreed to terms and conditions of a new two-year License Agreement. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Morro Bay, California as follows: 1. The License Agreement with with authority for one two-year placement of a floating dock at t hereby approved; and the Cal Poly Corporation for atwo-year term extension) for a dedicated location and the ie North T-Pier for research and education is 2. The Mayor is hereby authorized to execute the License Agreement. PASSED AND ADOPTED by the City Council of the City of Morro Bay at a regular meeting thereof held on the 11th day of June 2019 on the following vote: AYES: HeaAA; ng, Addis, Davis, Heller, McPherson NOES: None ABSENT: None ATTEST: SWANSON, City Clerk TEMPORARY LICENSE AGREEMENT FOR USE OF PUBLIC PROPERTY The City of Mono Bay, a municipal corporation, (censor") hereby grants to Cal Poly Corporation a California non-profit corporation ("Licensee") a license ("this License") for use of the real property located on the City North T-Pier at 1275 Embarcadero, Mono Bay, CA, illustrated on the attached Exhibit A (the "Premises"), subject to all the following terms and conditions: I . USE: Subject to all the provisions of this License and only in recognition of the purpose set forth in this Paragraph, Licensee shall have permission to use of the Premises solely for dockage of a 24' x 12' floating dock (the "Floating Dock") and associated equipment. Licensee will be allowed to exclude transient vessels from tying off to the Floating Dock. Licensee may tie Licensee owned vessels to floating dock for an additional charge at the rate set forth in the City's Master Fee Schedule for T-Pier dockage. No storage of hazardous materials of any sort will be allowed, including, but not limited to, such materials as fuels, chemicals, paints and oils, except for Licensor or emergency vessels. The foregoing shall be defined as the "Permitted Uses." The parties agree Licensee's use of the Premises for the Permitted Uses shall be exclusive of any other use or user, except that of Licensor, subject to Paragraph 19, below. 2. LICENSOR REQUIREMENTS: In connection with the Permitted Uses, Licensee shall comply with all applicable Federal, State and local laws rules and regulations, including payment of local business taxes, if applicable. 3. EFFECTIVE DATE OF LICENSE: This License shall be effective on the later of July 1, 2019, or upon the date it is signed on behalf of Licensor, as long as it has also been signed on behalf of Licensee (the "Effective Date"), 4. TERM: The term of this License shall be for the period from the Effective Date, through June 30, 2021, (the "Term") or termination pursuant to Paragraph 16, below. 5. RENEWAL: Upon expiration of this License Licensor's Harbor Director may administratively execute one two-year renewal of this License (the "Extended Term"). The Extended Term shall be effective only if an amendment to this License is signed by Licensor's Harbor Director, or designee and Licensee. If the Extended Term becomes O l 181.0024/5561 O5. I -1 - effective, then the Extended Term shall expire on June 30, 2023 or termination pursuant to Paragraph 16, below. 6. FEES: Licensee shall pay to Licensor a minimum guaranteed annual rental for Lite use of the Premises, in an initial amount of $4,320.00 per year payable in advance in equal semiannual installments on January 1 and July I each year during the term of the License (the "License Fee"). The Parties agree, commencing July 1, 2020, as of every July 1 following the Effective 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 movement in the Consumer Price Index for January 1, 2019 which is hereby agreed to be 269.468 (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 — Long Beach - Anaheim, California, compiled and published by the United States Department of Labor, Bureau of Labor Statistics, 1982-84 Base Year = 100 (the "Index") 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 Annual Minimum Rent would be increased by 3.31% as of July 1, 2001, and would continue at that rate through June 30, 2002. 7. OPERATION COSTS: Licensee may use the existing water and electrical services on the pier at no additional charge. If at some future date Licensee desires to install additional services specific to Licensee's vessels, Licensee is responsible for all costs of installation and maintenance of any and all utilities or services required by Licensee on the pier. Licensor shall not be liable for the failure of utilities or services to the pier. 8. MAINTENANCE: Licensee shall be responsible to maintain the Premises in a clean and presentable manner and keep the area abutting the Premises free from waste, debris, trash and other rubbish. Upon termination this License for any reason, Licensee shall leave the Premises free from waste, debris, trash, pollution/spills and other rubbish and in a good condition, subject to normal wear and tear. 9. SIGNS: Any and all signs installed or used by Licensee that are visible to the public from outside the Premises shall not be installed or used without the prior written approval of Licensoe's Harbor Director, and subject to all applicable Licensor zoning laws, rules and regulations and all required land use Licensor approvals and permits shall be obtained. 10. IMPROVEMENTS: Licensee shall not make any improvements to the Premises without prior approval from Licensor's Harbor Director. Upon termination of this License for ons�.o024i556105.1 License Agreement -2- any reason, any improvements of any kind installed by or on behalf of Licensee and left on Premises shall become the property of Licensor at no cost whatsoever, including any damages for condemnation, inverse condemnation or relocation benefits or loss of goodwill, however, Licensee and Licensor further agree that Licensor has the option and right to require Licensee to remove any improvements of any kind installed by or on behalf of Licensee upon the Premises at the termination of this License, however occurring, providing Licensor gives Licensee notice, in writing, no later than thirty days prior to termination of License. If Licensor exercises such option and Licensee fails to remove such improvements within sixty days after termination of License, Licensor shall have the right to have such improvements removed at expense of Licensee. 11. LICENSEE OBLIGATIONS: Termination of this Licensee shall not terminate Licensee's obligations pursuant to Paragraphs 12, 13, 14, 15, 16, 17 and 18. 12. TAXABLE INTEREST: This License is not intended to create any interest in real property. If it is determined, by a governmental agency dually authorized to make such decision, this License creates any taxable interest, including, but not limited to, a possessory interest, then Licensee shall be solely responsible to pay such taxes to the extent such taxes are required by law to be paid. 13. HOLD HARMLESS: Licensee agrees to and hereby does hold harmless, indemnify and defend Licensor and its officers, agents and employees ("Indemnitees") from any claim, judgment, liability, award, damages, loss or expense, including reasonable attorney's fees and court costs, arising out of or related to the use of the Premises by Licensee, including, but not limited to, any hazardous materials releases; provided, that Licensee's obligation to indemnify and hold harmless shall apply only to the extent Licensee, its officers, employees or agents caused the claim, loss or expense. For purposes of this License, hazardous materials shall mean any materials as defined by State or Federal laws. 14. INSURANCE: Without limiting the obligation set forth in the immediately preceding sentence, during the term of this License Licensee shall provide evidence %J insurance as provided in Exhibit B. 15. NO LIENS ON PREMISES: Licensee shall not permit or suffer any mechanic's or materialman's or other lien of any kind or nature to be recorded or enforced against the Premises for any work done or materials furnished thereon at the instance of requirement of or on behalf of Licensee; and Licensee agrees to indemnify and hold harmless Licensor and the Premises against and from any and all liens, claims, demands, costs and expenses of whatsoever nature in any way connected with such work done, labor performed or material furnished in connection with Licensee's use of the Premises. 16. RIGHT TO TERMINATE/NO DISPLACEMENT LIABILITY: Either party shall have the right to terminate this License, with or without cause, upon thirty -days' (30-days') written notice to the non -terminating party. Licensor shall not be liable (i) for any displacement or relocation benefits or expenses experienced by Licensee, (ii) for reimbursement for any improvements installed by Licensee or (iii) for any damages in condemnation, inverse condemnation, loss of goodwill or other legal or equitable bases 01181.0024/�56105.1 License Agreement -3- resulting, directly or indirectly, from any action or inaction of or on behalf of Licensor that may be in any way connected with any termination of this License for any reason or any relocation of Licensee from the Premises for any reason. Upon termination of this License, Licensee shall no longer be responsible for any fees under this License, as specified in Paragraph 5 of this License. l7. GOVERNING LAW: The terms of this License shall be interpreted according to the laws of the State of California. If arises out of this License, then venue shall be in the Superior Court of San Luis Obispo County. 18, LITIGATION FEES: If either party commences action against the other party arising out of or in connection with this License, then the prevailing party shall be entitled to have and recover from the other party reasonable attorneys' fees and costs of suit. 19. LICENSOR USE OF PREMISES: Licensor may use the Premises for dockage; provided, that such use shall not unreasonably interference with or prevent in any substantial way Licensee's ability to utilize the Premises for the purposed set forth herein; and provided, further, that Licensor shall be responsible for all operation costs and maintenance for the portion of the Premises it or Licensor uses or occupies. In addition, without any implied or expressed limitation on Licensor's authority and right to access and inspect the Premises in its governmental capacity, Licensor shall have the right to access at any time to the Premises for inspections. 20. TRANSFERABILITY AND ASSIGNABILITY: The License is neither transferable nor assignable by Licensee without the written consent of Licensor. 21. NOTICES: All notices given or required to be given pursuant to this License shall be in writing and may be given by personal delivery or by mail. Notice sent by mail shall be addressed as follows: To Licensor: With Copy to: To Licensee: City of Morro Bay Attn: Harbor Director 1275 Embarcadero Morro Bay, CA 93442 Chris Neumeyer Aleshire & Wynder, LLP 18881 Von Karman Avenue, Suite 1700 Irvine, CA 92612 Amy Velasco Sponsored Programs Department Cal Poly Corporation San Luis Obispo, CA 93407 01181.0024/556105.1 License Agreement -4- 22. ENTIRE AGREEMENT: This License (i) constitutes the entire agreement of the parties hereto relating to the use, operation and maintenance of the Premises and (ii) shall supersede prospectively from the date it is entered into any and all prior written or oral negotiations or agreements of the parties relating to the Premises. This License shall not be modified in any particular except by a written amendment duly executed by the parties. Dated: Zq 0�IC1 Dated: Dated: APPROVED AS TO FORM: ALESHIRE ER, LLP By: Chris Neumeyer, City A LICENSEE Nock, Its Contracts &Grants Operations Manager Its LICENSOR By: Collins, City Manager 01181.0024/556105.1 License Agreement -5- EXHIBIT A AERIAL OF PREMISES (linmediately behind this page) oiia�.00z4iss6�os.� Page I of 1 Exhibit A North I -Pier Aerial of Premise CITY OF MORRO BAY EXHIBIT B INSURANCE REQUIREMENTS Pl"iol^ to the beginning of and thi°oughout the duration of the A(5reement, Licensee will maintain insurance in conformance with the requirements set forth below. Licensee will use existing coverage to comply with these requirements. If that existing coverage does not meet the requirements set forth here, Licensee agrees to amend, supplement or endorse the existing coverage to do so. Licensee 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 Licensor in excess of the limits and coverage required in this agreement and which is applicable to a given loss, will be available to Licensor. Licensee 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 $1,000,000 per occurrence. Business Auto Coverage on ISO Business Auto Coverage from CA 00 O1 including symbol 1 Any Auto) or the exact equivalent. Limits are subject to review, but in no event to be less than $1.000,000 per accident. If Licensee owns no vehicles, then this requirement may be satisfied by a non -owned auto endorsement to the general liability policy described above. If Licensee or Licensee's employees will use personal autos in any way on this project, then Licensee 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 astate-approved policy form providing statutory benefits as required by law with employer's liability limits, if required. 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 Licensor for injury to employees of Licensee, subcontractors or others involved in the Work. The scope of coverage provided is oi�s�.00zaiss6ios.i Page 1 of 5 City of Morro Bay Exhibit B Page 2 of 5 subject to approval of Licensor 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. L�surance 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 Licensee. Licensee and Licensor agree to the following with respect to insurance provided by Licensee: 1. Licensee agrees to have its insurer endorse the third party general liability coverage required herein to include as additional insureds Licensor, and its officials, employees and agents, using standard ISO endorsement No. CG 2010 with an edition prior to 1992. Licensee also agrees to require all Licensees, and subcontractors to do likewise. 2. No liability insurance coverage provided to comply with this Agreement shall prohibit Licensee, or Licensee's employees, or agents, from waiving the right of subrogation prior to a loss. Licensee agrees to waive subrogation rights against Licensor regardless of the applicability of any insurance proceeds, and to require all Licensees and subcontractors to do likewise. 3. All insurance coverage and limits provided by Licensee 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 Licensor 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 Licensor 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 Licensee or subcontractor. 6. All coverage types and limits required are subject to approval, modification and additional requirements by Licensor, as the need arises. Licensee shall not make any reductions in scope of coverage (e.g., elimination of contractual liability or reduction of discovery period) that may affect Licensor's protection without Licensor's prior written consent. 01181.0024/5561 O5. I City of Morro Bay Exhibit B Page 3 of 5 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 Licensee's general liability policy, shall be delivered to Licensor 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, Licensor 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 Licensor shall be charged to and promptly paid by Licensee or deducted from sums due Licensee, at Licensoe's option. 8. It is acknowledged by the parties of this agreement that all insurance coverage required to be provided by Licensee 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 Licensor. 9. Licensee agrees to ensure that subcontractors, and any other party involved with the project who is brought onto or involved in the project by Licensee, provide the same minimum insurance coverage required of Licensee. Licensee 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. Licensee agrees that upon request, all agreements with subcontractors and others engaged in the project will be submitted to Licensor for review. 10. Licensee 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 Licensee, 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 Licensor. If Licensee's existing coverage includes a deductible or self - insured retention, the deductible or self -insured retention must be declared to Licensor. At the time Licensor shall review options with the Licensee, which may include reduction or elimination of the deductible or self -insured retention, substitution of other coverage, or other solutions. 11. Licensor reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Licensee ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Licensee, Licensor will negotiate additional compensation proportional to the increase benefit to Licensor. 12. 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. 13. Licensee acknowledges and agrees that any actual or alleged failure on the part of Licensor to inform Licensee of non-compliance with any insurance requirements in no way Ol 181.0024/556105.1 City of Morro Bay Exhibit B Page 4 of 5 imposes any additional obligations on Licensor nor does it waive any rights hereunder in this or any other regard. 14. Licensee will renew the required coverage annually as long as Licensor, 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 Licensor executes a written statement to that effect. 15. Licensee 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 be submitted prior to expiration. A coverage binder or letter from Licensee'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 Licensor within five days of the expiration of the coverages. 16. The provisions of anyworkers' compensation or similar act will not limit the obligations of Licensee under this agreement. Licensee expressly agrees not to use any statutory immunity defenses under such laws with respect to Licensor, its employees, officials and agents. 17. 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. 18. 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. 19. 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. 20. Licensee 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 Licensor or Licensee for the cost of additional insurance coverage required by this agreement. Any such provisions are to be deleted with reference to Licensor. It is not the intent of Licensor to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against Licensor for payment of premiums or other amounts with respect thereto. 01181.0024/5�6105.1 City of Morro Bay Exhibit B Page 5 of 5 21. Licensee agrees to provide immediate notice to Licensor of any claim or loss against Licensee arising out of the work performed under this agreement. Licensor 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 Licensor. 01181.0024/556105.1 Exhibit A North T-Pier Aerial of Premise