HomeMy WebLinkAboutReso 43-23 Cal Poly North T-Pier DockageRESOLUTION NO. 43-23
RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF MORRO BAY, CALIFORNIA
APPROVING A LICENSE AGREEMENT WITH
THE CAL POLY CORPORATION FOR DEDICATED DOCKAGE SPACE ON THE
NORTH T-PIER FOR A FLOATING RESEARCH AND EDUCATIONAL DOCK
THE CITY COUNCIL
City of Morro Bay, California
WHEREAS, in 2019 the City of Morro Bay entered into a two-year License
Agreement, with one two-year option for renewal 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 four 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:
Approval of a License Agreement with the Cal Poly Corporation for a two-year
license agreement (with two, two-year options for extensions) for a dedicated
location and the placement of a floating dock at the North T-Pier for research
and education is hereby approved and the Mayor is hereby authorized to
execute the lease document.
PASSED AND ADOPTED by the City Council of the City of Morro Bay at a regular
meeting thereof held on the 27th day of June 2023 on the following vote:
AYES: Wixom, Barton, Edwards, Ford, Landrum
NOES: None
ABSENT: None
ABSTAIN: None
RECUSED: None
l
Ca Wixom, Mayor
ATT ST:
If )��y
Dana Swanson, City Clerk
TEMPORARY LICENSE AGREEMENT
FOR USE OF PUBLIC PROPERTY
The City of Morro Bay, a municipal corporation, ("Licensor") hereby grants to Cal Poly
Corporation, a California non-profit corporation
("Lilicense ("this License") for use
1. 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 fiotn 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 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 18,
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,
2023, 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, 2025, (the "Term") or termination pursuant to Paragraph 16, below.
5. RENEWAL: Upon expiration of this License Licensoe's Harbor Director may
administratively execute two two-year renewals 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 a first Extended Term becomes
effective, then the Extended Term shall expire on June 30, 2027 or termination pursuant
01181.0024/874149.3 -1-
to Paragraph 16, below. If a second extended Term becomes effective, then the Extended
Term shall expire on June 30, 2029 or termination pursuant to Paragraph 16, below.
6. FEES: Licensee shall pay to Licensor a minimum guaranteed annual license fee for the
use of the Premises, in an initial amount of $6,570.00 per year payable in advance in
equal semiannual installments on January 1 and July 1 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, 2023 which is
hereby agreed to be 318.591 (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 fixture date Licensee desires to install
additional services specific to Licensee's vessels, then 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 Licensor'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.
01181.0024/874149.3 License Agreement
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10. IMPROVEMENTS: Licensee shall not make any improvements to the Premises without
prior approval from Licensoe's Harbor Director. Upon termination of this License for
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 and 17.
12. TAXABLE INTEREST: This License is not intended to create any interest in real
property. If it is determined, by a governmental agency duly 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 of 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
01181.0024/874149.3 License Agreement
-3-
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
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.
17. 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. 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 Licensee'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.
19. TRANSFERABILITY AND ASSIGNABILITY: The License is neither transferable nor
assignable by Licensee without the written consent of Licensor.
20. 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 & Wynder5 LLP
18881 Von Karman Avenue, Suite 1700
Irvine, CA 92612
Julia Pierce
Contracts and Grants Analyst
Cal Poly Corporation
1 Grand Avenue 38-102
San Luis Obispo, CA 93407-0707
(805) 756-5347
olisl.00aais�41a9.3 License Agreement
-4-
jpierc 15@calpoly.edu
21. ENTIRE AGREEMENT: This License (i) constitutes the entire agreement o.L 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: 07/02/2023
Dated:
Dated: Jul 17, 2023
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
LOhGi LLt�I�'YIOh, f�If�L�. C! ��1 fI�tDYJ?2��DY
By: Lona Laymon, Vssst. City Attomey for (Jul 13, 2 3 20:20 PDT)
Chris Neumeyer, City Attorney
LICENSEE
Darya Veach (JUI2, 2023 23:27 PDT)
Darya Veach
Its Director, Sponsored Programs
Its
LICENSOR
Greg Carpenter, Interim City Manager
0118L0024/874149.3 License Agreement
-5-
EXHIBIT A
AERIAL OF PREMISES
(Immediately behind this page)
Ol 181.0024/874149.3 Page 1 of 1
Exhibit A
Of I -Pier Aerial of Premise
01181.0024/874149.3
City of Morro Bay
Exhibit B
CITY OF MORRO BAY
EXHIBIT B
INSURANCE REQUIREMENTS
Prior• to the beginning of crud throughout the duration of the Ag�•eement, Licensee Neill maintain
insurance in conformance with the requirements set forth below. Licensee will use existing
coverage to comply with these r•equir•ements. 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 minimznn amount of coverage required Any insurance proceeds
7vailable 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 folloilving 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
0118 L0024/874149.3
City of Morro Bay
Exhibit B
Licensee, subcontractors or others involved in the Work. The scope of coverage provided is
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.
Insurance procured pursuant to these requirements shall be written by insurer that are admitted
carriers in the state California and ivith an A.M. Bests rating of A- or better and a minimum
financial size VIZ
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 limng 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. 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 Licensoe's prior written consent.
0118 L0024/874149.3
City of Morro Bay
Exhibit B
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 Licensee'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 90-days' advance written
notice of such change. If such change results in substantial additional cost to the Licensee,
then the City Council will consider a reduction in the license fee proportional to the
increase benefit to Licensor, if any.
12. Forpurposes 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 ofnon-compliance with any insurance requirements in no way
01181.0024/874149.3
City of Morro Bay
Exhibit B
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, which shall not be unreasonably delayed or denied.
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 any workers' compensation or similar act will not limit the obligations
of Licensee under this agreement. Licensee expressly agrees not to use any statutory
I
mmunity 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.
01181.0024/874149.3
City of Morro Bay
Exhibit B
2I 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.
01181.0024/874149.3