HomeMy WebLinkAbout10 - Temporary, Non-Exclusive and Revocable License Agreement for a Construction Staging Yard at Lower Castaways ParkQ �EwPpRT
CITY OF
s NEWPORT BEACH
`q44:09 City Council Staff Report
September 12, 2023
Agenda Item No. 10
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Seimone Jurjis, Assistant City Manager/Community Development
Director - 949-644-3232, sjurjis@newportbeachca.gov
PREPARED BY: Lauren Wooding Whitlinger, Real Property Administrator,
Iwooding@newportbeachca.gov
PHONE: 949-644-3236
TITLE: Temporary, Non -Exclusive and Revocable License Agreement with
Orange County Sanitation District for a Construction Staging Yard at
Lower Castaways Park Located at 100 Dover Drive
/_1 16"t I:7_T91 6
The Orange County Sanitation District (OC San) has aging infrastructure throughout the
City of Newport Beach (City) and frequently undertakes projects to repair or replace sewer
main lines, pump stations, and other equipment. A project to replace the Bay Bridge Pump
Station and Force Mains (Project) is tentatively scheduled to start in June 2024. OC San
has requested to use a portion of the City owned property located at 100 Dover Drive
(Lower Castaways Park) for its construction staging yard for the duration of the project.
For the City Council's consideration is a Temporary, Non -Exclusive and Revocable
License Agreement (Attachment A) allowing OC San's use of Lower Castaways Park,
and a request to waive City Council Policy F-7 for less than fair market value rent.
RECOMMENDATIONS:
a) Find that the environmental impacts associated with approval of this license
agreement were fully analyzed by Addendum to the EIR for the Bay Bridge Pump
Station and Force Mains Replacement Project which was certified by the Orange
County Sanitation District Board on July 23, 2023. Pursuant to Section 21166 of the
California Public Resources Code and Section 15162 of the CEQA Guidelines, no
additional environmental review is required;
b) Approve a waiver of City Council Policy F-7 — Income Property based on the findings
contained in this staff report and the license agreement, that the licensee's use of the
property provides an essential and unique service to the community and the project
may not otherwise be completed if full fair market value rent for use of the property
was charged; and
c) Authorize the City Manager and City Clerk to execute the Temporary, Non -Exclusive
and Revocable License Agreement between the City of Newport Beach and Orange
County Sanitation District for use of City Property for a temporary construction staging
yard at Lower Castaways Park located at 100 Dover Drive, in a form substantially
similar to the license agreement attached to the staff report.
10-1
Temporary, Non -Exclusive and Revocable License Agreement with
Orange County Sanitation District for a Construction Staging Yard
at Lower Castaways Park Located at 100 Dover Drive
September 12, 2023
Page 2
DISCUSSION:
OC San owns the property located at 250 East Coast Highway and operates the
4,800-square-foot Bay Bridge Pump Station as part of its wastewater collection system.
OC San proposes to upgrade the existing pump station facility and the associated force
mains to a more current design and reliability standards to ensure continuous service for
the area.
The Project includes three components:
1. Construction of a new and expanded 9,500-square-foot pump station facility,
including new buildings for electrical, a generator and odor control;
2. Install new, 30-inch dual force mains by microtunneling beneath Coast Highway
from the pump station 250 feet to the Balboa Marina parking lot, at a depth of
approximately 25-30 feet below grade; and
3. Extend the new force mains by microtunneling from the Balboa Marina parking lot,
west approximately 725 feet across the Newport Bay Channel, to an existing valve
vault located in the public right-of-way at the southeast corner of the intersection
of Coast Highway and Dover Drive, immediately north of the Bayshore Apartments.
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The Project is subject to permitting, review and approval by numerous agencies including
OC San, Caltrans, California Coastal Commission, California State Lands Commission,
California Department of Fish and Wildlife, National Marine Fisheries Service, Army
Corps of Engineers, Santa Ana Regional Water Quality Control Board, private property
owners, and the City. A major site development review and Coastal Development Permit
is being processed with the City, with a Planning Commission hearing expected in the
fourth quarter of 2023. Upon receipt of City approval, OC San will proceed with obtaining
any remaining approvals. Once fully permitted, OC San will bid the Project out, select a
contractor and then commence construction. The Project is expected to be completed in
approximately four and a half years, commencing in mid-2024 and finishing in late 2028
(see Construction Schedule, Attachment B).
10-2
Temporary, Non -Exclusive and Revocable License Agreement with
Orange County Sanitation District for a Construction Staging Yard
at Lower Castaways Park Located at 100 Dover Drive
September 12, 2023
Page 3
Use of Citv Proaert
To facilitate construction of the Project, OC San has requested to use a portion of the
nearby, City -owned Lower Castaways Park for its construction staging yard (License
Area). The License Area will occupy approximately 18,000 square feet of the southwest
corner of Lower Castaways Park and will be fenced and screened. This will allow OC San
to temporarily locate office trailers, stage and store construction equipment and materials,
and provide vehicle parking. The proximity of the License Area to the Project site will allow
for workers to walk between the sites.
City Council Policy F-7 — Income Property
Due to OC San's request to temporarily use a portion of the Lower Castaways Park to
facilitate completion of the Project, staff did not conduct an open bid process to solicit
proposals from other users as typically required by City Council Policy F-7 — Income
Property (F-7). Further, when less than fair market value rent is received and a waiver of
F-7 is requested, staff believes the following finding can be made:
■ Charging less than fair market rent promotes the City's goals to provide essential
or unique service to the community, that cannot otherwise be provided if full market
rates were charged. Specifically, the waiver of rent promotes reliable, continuous,
and environmentally safe wastewater collection for the City.
License Agreement
This request for a License Agreement (Agreement) to use the Property is being processed
separately from the entitlements application to the City to address a legal challenge to the
Environmental Impact Report. The challenge is further described in the Environmental
Review section of this staff report.
The proposed terms of the Agreement are summarized below:
1. The initial term shall commence 30 calendar days after OC San's written notice to
the City that all permits and approvals have been obtained, and a contractor has
been selected for the Project, and will terminate upon completion of the Project or
December 31, 2028, whichever occurs first.
2. No rent is to be charged to OC San for use of the Property.
3. OC San shall be responsible for payment of all utilities furnished to the License
Area or used by OC San.
4. No alterations, additions, or improvements are to be made to the License Area by
OC San without the City's prior consent.
5. OC San shall be responsible for securing and protecting the License Area at all
times, and shall limit its use to the hours between 7 a.m. and 6 p.m. Monday
through Friday, and 8 a.m. and 6 p.m. on Saturday, with construction vehicles
further limited to non -peak hours on Monday through Friday from 9 a.m. to 3 p.m.
10-3
Temporary, Non -Exclusive and Revocable License Agreement with
Orange County Sanitation District for a Construction Staging Yard
at Lower Castaways Park Located at 100 Dover Drive
September 12, 2023
Page 4
6. Soil or dredged materials are prohibited from being stored in the License Area or
the Property, and any stockpiled materials stored on the site shall be placed on
protective barriers to prevent from spilling or spreading. Further, OC San shall
prevent any oil, cement or other material spills on the public right-of-way adjacent
to the Property, at the driveway, on the vehicular path of travel on the Property,
and in any other area of the Property accessed during the Project.
7. OC San is further required to operate the License Area with the smallest footprint
necessary for the various phases of the Project, to use best efforts to reduce its
vehicular impacts to the Property, and to give consideration to other tenants,
licensees, and the general public so as not to impede the various other uses of the
Property.
8. OC San shall provide certificates of insurance to the satisfaction of the City's Risk
Manager, naming the City as additional insured.
The Agreement has been reviewed by the City Attorney's Office and has been approved
as to form. OC San staff has reviewed the terms of the Agreement and will present it to
the OC San Board of Directors for consideration at its next meeting on September 27,
2023.
FISCAL IMPACT:
Should City Council approve this item and waive City Council Policy F-7 — Income
Property, no rent will be collected from OC San.
ENVIRONMENTAL REVIEW:
Pursuant to Section 21166 of the California Public Resources Code and Section 15162
of the CEQA Guidelines, when an EIR has been certified for a project, no subsequent
EIR is required unless the lead agency determines, on the basis of substantial evidence
in the light of the whole record, one or more of the following:
a. Substantial changes are proposed in the project which will require major revisions
of the previous EIR due to the involvement of new significant environmental effects
or a substantial increase in the severity of previously identified significant effects;
b. Substantial changes occurred with respect to the circumstances under which the
project is undertaken which will require major revisions of the previous EIR due to
the involvement of new significant environmental effects or a substantial increase
in the severity of previously identified significant effects; or
c. New information of substantial importance, which was not known and could not
have been known with the exercise of reasonable due diligence at the time the
previous EIR was certified as complete, shows any of the following:
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Temporary, Non -Exclusive and Revocable License Agreement with
Orange County Sanitation District for a Construction Staging Yard
at Lower Castaways Park Located at 100 Dover Drive
September 12, 2023
Page 5
The project will have one or more significant effects not discussed in the
previous EIR;
Significant effects previously examined will be substantially more severe
than shown in the previous EIR;
iii. Mitigation measures or alternatives previously found not to be feasible
would, in fact, be feasible and would substantially reduce one or more
significant effects of the project, but the project proponents decline to adopt
the mitigation measure or alternative; or
iv. Mitigation measures or alternatives which are considerable different from
those analyzed in the previous EIR would substantially reduce one or more
significant effects on the environment, but the project proponents decline to
adopt the mitigation measure or alternative.
In February of 2021, OC San approved the Bay Bridge Pump Station and Force Mains
Replacement Project, Project No. 5-67 and certified an environmental impact report (EIR)
for Project No. 5-67. On April 1, 2021, Bayside Village Marina filed a Verified Petition for
Writ of Mandate against OC San in Orange County Superior Court alleging that the EIR
failed to comply with CEQA on numerous grounds. (Orange County Superior Court Case
No. 30-2021-01194238.) On December 16, 2022, the Court issued a ruling that upheld
the EIR in all respects except one (Ruling). Thereafter, the Court issued a limited writ
directing OC San to sufficiently identify project construction staging areas.
In response to the Ruling, OC San has prepared an Addendum to the EIR for the Bay
Bridge Pump Station and Force Mains Replacement Project (Addendum) which was
certified by OC Sanitation District Board on July 23, 2023. Specifically, the Addendum
clarifies the use of the Lower Castaways Park in the City as a construction staging area
and adds a new construction staging area at OC San's Plant No. 2, located in the City of
Huntington Beach, for soil storage/drying activities and determines that Project No. 5-67,
as modified by the Addendum, would not result in any new significant impacts or a
substantial increase in the severity of previously identified significant impacts in
accordance with Section 21166 of the California Public Resources Code and Section
15162 of the CEQA Guidelines.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A — Temporary Revocable License Agreement
Attachment B — Construction Schedule
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Attachment A
Temporary, Non -Exclusive and Revocable License Agreement Between the City of
Newport Beach and the Orange County Sanitation District for Use of City Property
10-6
TEMPORARY, NONEXCLUSIVE AND REVOCABLE LICENSE AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH AND
THE ORANGE COUNTY SANITATION DISTRICT FOR
USE OF CITY PROPERTY
THIS TEMPORARY, NON-EXCLUSIVE AND REVOCABLE LICENSE
AGREEMENT FOR USE OF CITY PROPERTY ("Agreement") is made and entered into
as of this 1st day of October, 2023 ("Effective Date"), by and between the CITY OF
NEWPORT BEACH, a California municipal corporation and charter city ("City"), and
ORANGE COUNTY SANITATION DISTRICT, a California public body ("Licensee").
Licensee and City are individually referred to as "Party" and collectively as "Parties"
herein.
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of the City.
B. City is the owner of real property located at 100 Dover Drive, Newport Beach,
California, Assessor's Parcel Number 117-801-10, commonly known as Lower
Castaways Park ("Property") as depicted on Exhibit "A" attached hereto and
incorporated herein by reference.
C. Licensee intends to replace the nearby Bay Bridge Pump Station located at 250
East Coast Highway ("Project").
D. Licensee requests to use a portion of the Property, approximately eighteen
thousand (18,000) square feet ("License Area"), as depicted on Exhibit "B" attached
hereto and incorporated herein by reference, for the siting of office trailers,
temporary staging and storage of construction equipment and materials, and the
parking of vehicles to support the Project.
E. Pursuant to City Council Policy F-7, whenever less than the open market or
appraised value is received for the use of City property, the City shall make specific
findings setting forth the reasons thereof.
F. The City Council has made findings that Licensee's use of the License Area provides
an essential or unique service to the community, as it is for purpose of facilitating the
completion of the Project, which might not otherwise be provided were full market
value of the License Area be required.
G. City and Licensee desire to enter into this Agreement for Licensee to utilize the
License Area for purpose of the Project, subject to the covenants and conditions set
forth in this Agreement.
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NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1.1 City hereby grants a temporary, non-exclusive and revocable license
("License") to Licensee for use of the License Area as a temporary construction staging
site for a term starting on the Commencement Date and ending on the expiration or
sooner termination of this Agreement. The "Commencement Date" shall be thirty (30)
calendar days after the City receives written notice from Licensee that Licensee has
received all necessary permits and approvals for the Project and has selected a
contractor for the Project.
1.2 When directed pursuant to written notice in accordance with Section 14,
Licensee shall relocate its office trailers, equipment and materials to a different part of the
Property.
1.3 The License granted herein is subject to the terms, covenants and
conditions hereinafter set forth, and Licensee covenants, as a material part of the
consideration for this License, to keep and perform each and every term, covenant and
condition of this Agreement.
2. PURPOSE OF THIS AGREEMENT
The purpose of this License is to provide Licensee with temporary, non-exclusive
use of the License Area as a temporary construction staging and storage site for
equipment and materials (but specifically excluding storage of soils or dredged materials,
which materials shall be stored by the Licensee at a separate location), for the siting of
office trailers, and for parking, to facilitate the work necessary for the Project. Licensee
shall use the License Area only for the activities described herein and shall not use or
permit the use of the License Area for any other purpose without first obtaining the prior
written consent of City, which consent may be withheld in City's sole discretion.
3. PERMITS, LICENSES AND BEST PRACTICES
3.1 Licensee, at its sole expense, shall obtain and maintain during the term of
this Agreement, all appropriate permits, licenses and certificates that may be required by
any governmental agency, including the City, in order to use the License Area as a
temporary construction staging and storage site for equipment and materials, for the siting
of office trailers, and for parking.
3.2 Licensee shall have in effect a Stormwater Pollution Prevention Plan
("SWPPP") and Best Management Practices plan ("BMPs") accepted by Licensee, its
employees, contractors and subcontractors ("Licensee's Representatives") to ensure all
activities on the License Area are in compliance with industry standards best practices,
including, but not limited to description of activities that could cause pollution, control
measures for preventing spills and minimizing hazards, a spill response plan, procedures
Orange County Sanitation District Page 2
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for conducting inspections and monitoring, and provisions for sufficient training of
Licensee's representatives.
3.3 Licensee shall establish, maintain and uphold business practices to the
highest degree as generally recognized in Licensee's industry, and exercise the utmost
caution for the protection and safety of Licensee and the general public at all times during
the term of this Agreement.
4. TERM
This Agreement shall commence upon the Effective Date and terminate upon the
completion of the Project or December 31, 2028, whichever occurs first ("Term"). Both
Parties understand and agree this Agreement is for a temporary period of time and does
not, and will not, result in permanent use of or access to the License Area or the Property.
5. LICENSE FEE
The License is provided to Licensee at no charge. The City is not charging
Licensee a fee comparable to the open market or appraised value of the License Area
because the City finds that Licensee's use of the License Area, which is for the purpose
of completion of the Project, is an essential or unique service to the community.
6. UTILITIES
6.1 Licensee shall be responsible for payment of all utilities furnished to or used
on the License Area by Licensee, including, without limitation, electricity and water.
6.2 Licensee may use City's trash enclosures or public trash cans, provided
however, that City may, at City's sole and absolute discretion, require Licensee to arrange
for its own refuse collection.
6.3 Licensee shall be responsible for the maintenance, repair and/or
replacement of utility lines within and exclusively serving the License Area, to the point of
the utility's tie-in, or Licensee's pro rata share of utility lines serving Licensee on the
License Area.
7. USE AND CONDITIONS OF THE LICENSE AREA AND PROPERTY
7.1 General Use and Conditions.
7.1.1 Licensee shall not enter upon and use the License Area before the
Commencement Date.
7.1.2 Licensee understands the safety of the public is paramount to the
uses and conditions set forth herein under this Section 7 for the License Area.
Licensee shall maintain the License Area free from waste, debris, hazards or risks
to public health, safety or welfare at all times.
Orange County Sanitation District
Page 3
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7.1.3 Licensee shall not use or permit the use of the License Area for any
unlawful purpose.
7.1.4 Licensee shall not commit or permit the commission of any noise or
nuisance on the License Area and shall comply with any and all noise and nuisance
requirements as defined by any applicable federal, state and local laws and
regulations.
7.1.5 Use of any area on the Property outside the License Area other than
for purposes of accessing the License Area is strictly prohibited without prior
written approval from the City.
7.1.6 Except as provided under this Agreement, Licensee shall not make
or permit to be made any alterations, additions or improvements to the License
Area, or install lighting or equipment, or install any signs, lettering or advertising
media of any type or any other visual displays, on or about the License Area
without the prior written consent of City. Notwithstanding the foregoing, Licensee
shall place all required construction notices and warning signs on or about the
Property in the manner required by the City, Federal, State or local law.
7.1.7 Licensee shall protect the integrity of the License Area and any part
of the Property used for purpose of accessing the License Area. Licensee shall
prevent any oil, cement or other material spills on the public right-of-way adjacent
to the Property, at the driveway, vehicular paths of travel on the Property, and sand
at the License Area, any other area on or around the Property, and any other
contiguous area used to access the License Area. Licensee shall return the
License Area to City in the condition that existed as of the Commencement Date
of this Agreement, ordinary wear and tear excepted. Licensee shall, at its sole cost
and expense, document (including photos and/or video) the condition of the
Property existing as of the Commencement Date and submit such documentation
to the City.
7.1.8 Licensee shall exercise all necessary precautions for opening,
closing, and securing the License Area and its equipment and materials stored in
the License Area at all times. Licensee expressly assumes all responsibility for the
protection and security of the License Area, including personal property and
equipment of Licensee.
7.1.9 Licensee shall install legible signs on the License Area, visible from
the public right-of-way and interior of the Property, that includes Licensee's contact
information, including a 24-hour emergency phone number.
7.2 Special Use and Conditions.
7.2.1 Licensee shall maintain the smallest footprint on the Property as
absolutely required by the scope of the Project at any given time during the phases
of construction, and Licensee shall use it best efforts to reduce its impact to the
Property by using the fewest truck and vehicle trips, and by storing on the License
Orange County Sanitation District
Page 4
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Area the least amount of equipment and materials as necessary for the immediate
needs of the Project. Licensee shall use its best efforts to complete the Project on
time or ahead of schedule and discontinue its use of the Property as soon as
possible.
7.2.2 Licensee may use the License Area for the temporary storage of
construction vehicles, equipment and materials, with the exception of any soil or
dredged materials which are prohibited from being stored on the Property. Any
temporary stockpiling of materials is prohibited unless such materials are stored
on raised mobile platforms, pallets or other protective barriers to prevent spills or
spread of materials.
7.2.3 Licensee may place two (2) commercial office trailers in the License
Area.
7.2.4 Licensee's Representatives (defined in Section 3) have the right to
park personal vehicles within the License Area, and shall ensure that the gates to
the License Area are can close around the vehicles, with the understanding that
Licensee's Representatives shall walk from the License Area to the Project site.
Licensee shall not park any vehicles outside the License Area.
7.2.5 Licensee shall operate the License Area with the least amount of
construction -related vehicles stored within the License Area during each given
phase of the Project, as may be required for demolition, grading, building
construction, installation of force mains, and gravity sewer improvement scopes of
work. Operation of construction vehicles in the License Area is limited to the hours
set forth in Section 7.2.7.1 below.
7.2.5.1 Licensee shall follow any City imposed requirements on
vehicle traffic, path of travel, and weight limits that may be a precondition to
approval of the Project.
7.2.6 Licensee is strictly prohibited from bringing any soil or dredged
materials from the Project on to the Property. Such soil or dredged material shall
not be stored, nor brought on site even temporarily, nor in transport to a secondary
site.
7.2.7 Licensee's access to and use of the License Area shall be limited to
the hours between 7:00 a.m. to 6:00 p.m. Monday through Friday, and the hours
between 8:00 a.m. and 6:00 p.m. on Saturday.
7.2.7.1 Operation of construction vehicles shall be limited to the
non -pear hours of 9:00 a.m. and 3:00 p.m. Monday through Friday,
consistent with the Impact Analysis of the Project's Environmental Impact
Report ("EIR") of August 2020.
7.2.8 Licensee, at Licensee's cost and expense, shall cause the License
Area to be fenced and screened on all sides commencing no later than thirty (30)
Orange County Sanitation District Page 5
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calendar days after the Commencement Date of this Agreement and continuing
until the expiration or earlier termination of this Agreement. Licensee shall not
bring any equipment or personnel or use the License Area until and unless the
License Area is fully fenced and screened. The height of fence shall be at least six
(6) feet, and fence material shall be chain link metal fence overlaid on the exterior
with an opaque vinyl screen, or other equivalent fencing and screening material as
approved by the City. The fencing shall include the installation of a locking gate
which swings to the interior of the License Area to provide access to the License
Area. Licensee shall place warning signs on or about the License Area in any
manner required by federal, state or local law.
7.2.9 Licensee shall comply with all permits, regulations, and requirements
applicable to the Project, including but not limited to the Coastal Development
Permit No. PA2023-0076 issued by the City.
7.3 Other Users of Property. The License Area is a portion of the Property
specifically designated for use by Licensee for the operations permitted herein. Certain
other portions of the Property are not only open to the public, but shared with other tenants
or licensees of the City, and consideration shall be given by Licensee to these other
tenants and licensees so as not to impede the operation of their respectively designated
uses of the Property.
8. CITY INSPECTION
8.1 City shall be entitled, at anytime, to inspect the License Area for compliance
with the terms of this Agreement, and with all applicable federal, state and local laws and
regulations.
8.2 City and its authorized City representative(s) may, without prior notice to
Licensee, enter upon and inspect the License Area for any lawful purpose, provided that
City shall use commercially reasonable efforts to not interfere with Licensee's operation
and/or use of the License Area in performing any such entry, inspection, and/or shared
use of the License Area. In case of emergency, City or its authorized City
representative(s) may enter the License Area by whatever force reasonably necessary if
Licensee is not present to open and permit entry. Any entry to the License Area by City
under this License shall not be construed as a forcible or unlawful entry into, or a detainer
of, the License Area, or an eviction of Licensee from the License Area or any portion
thereof.
9. EMERGENCY
9.1 Licensee understands the License Area is located on public property
primarily dedicated to the use and enjoyment of the public and emergency situations may
develop from time -to -time that require access to the Property to be immediately stopped
and thereby interfere or temporarily terminate Licensee's use of the License Area.
Licensee agrees that, if such a situation occurs, City shall have the right to immediately
restrict access to the License Area and any equipment or materials located on the License
Orange County Sanitation District Page 6
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Area for the duration of the emergency. Licensee agrees not to hold City responsible or
liable for and shall protect, defend, indemnify and hold City harmless for any damage,
loss, claim or liability of any nature suffered as a result of the loss of the use of the License
Area.
9.2 Unless otherwise specifically provided in a notice of termination of this
Agreement, City's exercise of the right to restrict access to the License Area is not
intended to constitute a termination of this Agreement by either Party and such event is
a risk accepted by Licensee. Licensee and City shall meet after the City determines that
an emergency has ended to establish the time and manner in which access shall be
restored. City shall have the right to reasonably determine what constitutes an
"emergency situation" pursuant to this Section.
10. MAINTENANCE
At its sole cost and expense, Licensee shall take good care of and keep the
License Area neat and clean at all times. Should Licensee fail to commence required
maintenance or repairs, or cleaning of the License Area to a condition satisfactory to City,
within twenty-four (24) hours after receipt of notice to do so, City may perform such work
or have such work performed by others and Licensee shall immediately reimburse City
for all direct and indirect costs associated with such work upon receipt of an invoice for
such costs. Graffiti shall immediately be called in to the City's Graffiti Hotline at (949) 644-
3333 for removal.
11. NO INTEREST IN PROPERTY
Nothing herein shall be deemed to create a lease, or easement of any property
right, or to grant any possessory or other interest in the License Area, Property, or any
public right-of-way, other than a license to use and access the License Area, revocable
and for a temporary term as set forth in this Agreement.
12. RESERVATION OF RIGHTS
Licensee understands, acknowledges and agrees that any and all authorizations
granted to Licensee under this Agreement are non-exclusive and shall remain subject to
all prior and continuing regulatory and propriety rights and powers of City to regulate,
govern and use the License Area and Property, as well as any existing encumbrances,
deeds, covenants, restrictions, easements, dedications and other claims of title that may
affect the License Area and Property.
13. CITY RETENTION RIGHTS
Licensee's right to use the License Area during the term of this Agreement shall
be subordinate and junior to the rights of City to use and occupy the License Area and
the Property for any purpose.
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14. RELOCATION
14.1 City shall not at any time during the term of this Agreement require the
Licensee to move the office trailers to another particular location within the License Area.
14.2 However, City reserves the right to change the boundaries of the License
Area or its location within the Property, in which case Licensee shall relocate its office
trailers, equipment and materials to the new boundaries or location of the License Area
at Licensee's expense and without making any claim against the City for reimbursement
or damage therefor. City's right to change the boundaries of the License Area or its
location within the Property shall be in its sole and absolute discretion.
14.3 Except in the event of an emergency or other situation requiring immediate
relocation from the License Area, City shall provide Licensee with not less than thirty (30)
calendar days written notice of relocation specifying the location of the new License Area
and a date by which the relocation shall take place.
15. TERMINATION
15.1 Except as otherwise provided in this Agreement or in accordance with this
Section, City shall not terminate this Agreement or the License prior to the end of the
Term set forth in this Agreement.
15.2 City may terminate this Agreement, at its discretion with no reason of
default, upon providing no less than one hundred eighty (180) business days prior written
notice to Licensee.
15.3 City may terminate this Agreement upon Licensee's failure to cure or correct
a default of any term or condition of this License within ten (10) business days of
Licensee's receipt of written notice of such default. The written notice shall describe the
subject default in reasonable detail.
16. SURRENDER
Upon expiration or termination of this Agreement, Licensee, at its sole cost and
expense, shall, within fifteen (15) calendar days, remove all of its equipment and stored
materials, restore the License Area to its original condition or to a condition satisfactory
to and approved by City, and vacate the License Area. Restoration may include, but is
not limited to, coordinating with City to restore landscaping, and removing any and all
debris, waste or other material. Should Licensee fail to restore the License Area to a
condition satisfactory to City, City may perform such work or have such work performed
by others and Licensee shall immediately reimburse City for all direct and indirect costs
associated with such work upon receipt of an invoice for such costs.
17. ADMINISTRATION
This License will be administered by the Community Development Department.
The Community Development Director or its designee shall be the License Administrator
Orange County Sanitation District Page 8
10-14
and shall have the authority to act for City under this License. The License Administrator
or their authorized representative shall represent City in all matters pertaining to this
License.
18. INDEMNIFICATION AND LIABILITY FOR DAMAGES
18.1 Irrespective of any insurance carried by Licensee for the benefit of City, and
to the fullest extent permitted by law, Licensee shall indemnify, defend, assume all
responsibility for, and hold harmless City, its elected or appointed officers, agents,
officials, employees, and volunteers (collectively, the "Indemnified Parties") from and
against any and all claims (including, without limitation, claims for bodily injury, death or
damage to property), demands, obligations, damages, actions, causes of action, suits,
losses, judgments, fines, penalties, liabilities, costs and expenses (including, without
limitation, attorney's fees, disbursements and court costs) of every kind and nature
whatsoever (individually, a "Claim" and, collectively, "Claims"), which may arise from or
in any manner relate (directly or indirectly) to Licensee's operations conducted under this
Agreement or the implementation hereof and for any damages to property or injuries to
persons, including accidental death, which may be caused by any of Licensee's activities
under this Agreement, whether such activities or performance thereof be (i) by Licensee,
or (ii) Licensee's permittees or agents and whether such damage shall accrue or be
discovered before or after termination of this Agreement.
18.2 Notwithstanding the foregoing, nothing herein shall be construed to require
Licensee to indemnify the Indemnified Parties from any Claim arising from the sole
negligence or willful misconduct of the Indemnified Parties or by City's failure to comply
with the terms and conditions of this Agreement. Nothing in this indemnity shall be
construed as authorizing any award of attorney's fees in any action on or to enforce the
terms of this Agreement. This indemnity shall apply to all claims and liability regardless
of whether any insurance policies are applicable. The policy limits do not act as a limitation
upon the amount of indemnification to be provided by Licensee.
18.3 Licensee shall be liable and responsible for the security, repair and
maintenance of the License Area to the extent necessitated by Licensee's use of the
License Area, for such time as this License is in effect. Licensee shall use care to protect
the License Area when not in use by Licensee.
18.4 City shall indemnify, defend, assume all responsibility for, and hold
harmless Licensee, its elected or appointed officers, agents, officials, employees, and
volunteers from and against any and all Claims which may arise from or in any manner
relate (directly or indirectly) to the operations or activities conducted in, on, or over the
License Area by the City or its elected or appointed officers, agents, officials, employees,
and volunteers, and for any damages to property or injuries to persons, including
accidental death, which may be caused by the operations or activities conducted in, on,
or over the License Area by the City or its elected or appointed officers, agents, officials,
employees, and volunteers, whether such damage shall accrue or be discovered before
or after termination of this Agreement. Notwithstanding the foregoing, nothing herein shall
be construed to require City to indemnify Licensee, its elected or appointed officers,
Orange County Sanitation District Page 9
10-15
agents, officials, employees, or volunteers from any Claim arising from the negligence or
willful misconduct of Licensee, its elected or appointed officers, agents, officials,
employees, or volunteers, respectively, or by Licensee's failure to comply with the terms
and conditions of this Agreement.
19. INSURANCE
Without limiting Licensee's indemnification of City, and prior to commencement of
work, Licensee shall obtain, provide and maintain at its own expense during the term of
this Agreement or for other periods as specified in this Agreement, policies of insurance
of the type, amounts, terms and conditions described in the Insurance Requirements
attached hereto as Exhibit °C," and incorporated herein by reference.
20. HAZARDOUS SUBSTANCES
20.1 From the Commencement Date of this License throughout the Term,
Licensee shall not use, store, manufacture or maintain in, on, under, about or within the
License Area any Hazardous Substances except (i) in such quantities and types found
customary in construction, repair, maintenance and operations of the construction staging
yard approved by this Agreement, and (ii) petroleum and petroleum products contained
within regularly operated motor vehicles. Licensee shall handle, store and dispose of all
Hazardous Substances it brings onto the License Area in accordance with applicable
laws.
20.2 For purposes of this License the term "Hazardous Substance" means: (i)
any substance, product, waste or other material of any nature whatsoever which is or
becomes listed, regulated, or addressed pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. ("CERLCA");
the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; the
Resource Conversation and Recovery Act, 42 U.S.C. Section 6901 et seq. ("RCRA"); the
Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Water Act, 33
U.S.C. Section 1251 et seq.; the California Hazardous Waste Control Act, Health and
Safety Code Section 25100 et seq.; the California Hazardous Substance Account Act,
Health and Safety Code Sections 25330 et seq.; the California Safe Drinking Water and
Toxic Enforcement Act, Health and Safety Code Sections 25249.5 et seq.; California
Health and Safety Code Sections 25280 et seq. (Underground Storage of Hazardous
Substances); the California Hazardous Waste of Concern and Public Safety Act, Health
and Safety Code Sections 25169.5 et seq.; California Health and Safety Code Sections
25501 et seq. (Hazardous Materials Release Response Plans and Inventory); or the
Porter -Cologne Water Quality Control Act, Water Code Sections 13000 et seq., all as
they, from time -to -time may be amended, (the above -cited statutes are here collectively
referred to as "the Hazardous Substances Laws") or any other Federal, State or local
statute, law, ordinance, resolution, code, rule, regulation, order or decree regulating,
relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic
or dangerous waste, substance or material, as now or at any time hereafter in effect; (ii)
any substance, product, waste or other material of any nature whatsoever which may give
rise to liability under any of the above statutes or under any statutory or common law
Orange County Sanitation District Page 10
10-16
theory, including but not limited to negligence, trespass, intentional tort, nuisance, waste
or strict liability or under any reported decisions of a state or federal court; (iii) petroleum
or crude oil; and (iv) asbestos.
20.3 Notwithstanding any contrary provision of this License, and in addition to
the indemnification duties of Licensee set forth in this Agreement, Licensee agrees to
indemnify, defend with counsel reasonably acceptable to City, protect, and hold harmless
the City, its elected or appointed officers, agents, officials, employees, volunteers and
assigns from and against any and all losses, fines, penalties, claims, damages,
judgments, or liabilities, including, but not limited to, any repair, cleanup, detoxification, or
preparation and implementation of any remedial, response, closure or other plan of any
kind or nature which the City, its elected or appointed officers, agents, officials,
employees, volunteers, or assigns may sustain or incur or which may be imposed upon
them in connection with the use of the License Area provided under this Agreement by
Licensee, arising from or attributable to the storage or deposit of Hazardous Substances
on or under the License Area by Licensee. This Section is intended to operate as an
agreement pursuant to Section 107(e) of CERCLA, 42 USC Section 9607(e), and
California Health and Safety Code Section 25364, to insure, protect, hold harmless, and
indemnify City for any claim pursuant to the Hazardous Substance Laws or the common
law.
20.4 City agrees to indemnify, defend with counsel reasonably acceptable to
Licensee, protect, and hold harmless Licensee, its elected or appointed officers, agents,
officials, employees, volunteers and assigns from and against any and all losses, fines,
penalties, claims, damages, judgments, or liabilities, including, but not limited to, any
repair, cleanup, detoxification, or preparation and implementation of any remedial,
response, closure or other plan of any kind or nature which Licensee, its elected or
appointed officers, agents, officials, employees, volunteers, or assigns may sustain or
incur or which may be imposed upon them arising from the use of the License Area by
City, its elected or appointed officers, agents, officials, employees, volunteers and
assigns.
20.5 City agrees that City will not, and will not authorize any third party to use,
generate, store, or dispose of any Hazardous Substances on, under, about or within the
License Area in violation of any law or regulation. City and Licensee each agree to
defend, indemnify and hold harmless the other and the other's partners, affiliates, agents
and employees against any and all losses, liabilities, claims and/or costs arising from any
breach of any representation, warranty or agreement contained in this Section. This
Section shall survive the termination of this Agreement. Upon expiration or earlier
termination of this Agreement, Licensee shall surrender and vacate the License Area and
deliver possession thereof to City on or before the termination date free of any Hazardous
Substances released into the environment at, on or under the License Area that are
directly attributable to Licensee.
Orange County Sanitation District Page 11
10-17
21. ASSIGNMENT
All of the terms and provisions of this Agreement shall inure to the benefit of and
shall be binding upon the Parties and their respective successors and assigns. This
Agreement and the rights and obligations of Licensee is personal to Licensee and shall
not be assigned, transferred, or hypothecated (collectively referred to as "transferred"), in
whole or in part, without the prior written consent of the City, which consent may be
withheld in City's sole and absolute discretion for any reason or no reason at all. Any
assignment of this Agreement or the License granted hereunder, voluntarily or by
operation of law, shall automatically terminate this Agreement, unless Licensee has
obtained the prior written consent of City.
22. CONFLICT OF INTEREST
The Licensee or its employees may be subject to the provisions of the California
Political Reform Act of 1974 ("Act"), which (a) requires such persons to disclose any
financial interest that may foreseeably be materially affected by the work performed under
this License, and (b) prohibits such persons from making, or participating in making,
decisions that will foreseeably financially affect such interest. if subject to the Act,
Licensee shall conform to all requirements of the Act. Failure to conform to the
requirements of the Act constitutes a material breach and is grounds for immediate
termination of this License by City. Licensee shall indemnify and hold harmless City for
any and all claims for damages resulting from Licensee's violation of this Section.
23. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
License shall be given in writing, and conclusively shall be deemed served when delivered
personally, or on the third business day after the deposit thereof in the United States mail,
postage prepaid, first-class mail, addressed as hereinafter provided. All notices,
demands, requests or approvals from Licensee to City shall be addressed to City at:
Community Development Department
City of Newport Beach
Attn: Real Property Administrator
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
All notices, demands, requests or approvals from City to Licensee shall be
addressed to Licensee at:
Orange County Sanitation District
Attn: Cindy Murra
10844 Ellis Avenue
Fountain Valley, CA 92708
Telephone: (714) 593-7327
Orange County Sanitation District Page 12
10-18
24. STANDARD PROVISIONS
24.1 Recitals. City and Licensee acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
24.2 Compliance with Laws. Licensee, at its sole cost and expense, shall
observe, perform, and comply with all laws, statutes, ordinances, rules, and regulations
promulgated by any governmental agency and applicable to the License Area, or the use
thereof, including all Americans with Disability Act requirements, applicable zoning
ordinances, building codes and environmental laws. Licensee shall not occupy or use
the License Area or permit any portion thereof to be occupied or used for any use or
purpose that is unlawful in part or in whole, or deemed by City to be disreputable in any
manner or extra hazardous on account of fire.
24.3 Not Agent of City. Neither anything in this Agreement nor any acts of
Licensee shall authorize Licensee to act as agent, contractor, joint venture or employee
of City for any purpose.
24.4 Waiver. The waiver by either Party of any breach or violation of any term,
covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not
be deemed to be a waiver of any other term, covenant, condition, ordinance, law or
regulation, or of any subsequent breach or violation of the same or other term, covenant,
condition, ordinance, law or regulation. The subsequent acceptance by either Party of
any fee, performance, or other consideration which may become due or owing under this
Agreement, shall not be deemed to be a waiver of any preceding breach or violation by
the other Party of any term, condition, covenant of this Agreement or any applicable law,
ordinance or regulation.
24.5 Integrated Agreement. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
24.6 Conflicts or inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement, or any other attachments attached hereto, the
terms of this Agreement shall govern.
24.7 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
24.8 Amendments. This Agreement may be modified or amended only by a
written document executed by both Licensee and City and approved as to form by the
City Attorney.
Orange County Sanitation District Page 13
10-19
24.9 Severability. if any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
24.10 Controlling Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange.
24.11 Equal Opportunity Employment. Licensee represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because of race, religion, color, national origin, handicap,
ancestry, sex or age.
24.12 Taxes. Licensee shall pay any and all personal interest property taxes, real
property taxes, possessory interest taxes, fees and assessments, or similar charges
which may at any time be imposed or levied by any public entity and attributable to the
Agreement authorized herein. City hereby gives notice to Licensee, pursuant to Section
107.6 of the California Revenue and Taxation Code that this Agreement may create a
possessory interest in and to the property of City, a tax-exempt public entity, the payment
of which taxes shall be the sole obligation of Licensee. Licensee shall indemnify, defend
and hold harmless City against any and all such taxes, fees, penalties or interest
assessed, or imposed against City hereunder.
24.13 No Third -Party Beneficiaries. Neither anything in this Agreement nor any
acts of Licensee shall authorize Licensee to act as agent, contractor, joint venture or
employee of City for any purpose.
24.14 No Attorneys' Fees. In the event of any dispute under the terms of this
Agreement the prevailing party shall not be entitled to attorneys' fees.
24.15 [reserved]
24.16 Time is of the Essence. Time is of the essence for this Agreement.
24.17 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
25. NO DAMAGES
Licensee acknowledges that City would not enter into this Agreement if it were to
be liable for damages (including, but not limited to, actual damages, economic damages,
consequential damages, lost profits, loss of rents or other revenues, loss of business
opportunity, loss of goodwill or loss of use) under, or relating to, this Agreement or any of
the matters referred to in this Agreement. Accordingly, Licensee covenants and agrees
on behalf of itself and its successors and assigns, not to sue City (either in its capacity as
licensor in this Agreement or in its capacity as the City of Newport Beach) for damages
Orange County Sanitation District Page 14
10-20
(including, but not limited to, actual damages, economic damages, consequential
damages, lost profits, loss of rents or other revenues, loss of business opportunity, loss
of goodwill or loss of use) or monetary relief for any breach of this Agreement by City or
for any dispute, controversy, or issue between City and Licensee arising out of or
connected with this Agreement or any of the matters referred to in this Agreement, the
parties agreeing that declaratory relief, injunctive relief, mandate and specific
performance shall be Licensee's sole and exclusive judicial remedies. Notwithstanding
the foregoing, nothing in this Section 25 shall limit Licensee's remedies as expressly set
forth in this Agreement.
26. GOVERNMENT CLAIMS ACT
Licensee and City agree that in addition to any claims filing or notice requirements
in this Agreement, Licensee shall file any claim that Licensee may have against City in
strict conformance with the Government Claims Act (Government Code sections 900 et
seq.), or any successor statute.
[SIGNATURES ON NEXT PAGE]
Orange County Sanitation District Page 15
10-21
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
CITY OF NEWPORT BEACH,
A California municipal corporation
Date:
Grace K. Leung
City Manager
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By:
a n C. rp
AttorWe
ATTEST:
Date:
0
LICENSEE: ORANGE COUNTY
SANITATION DISTRICT, a California public
body
Date:
Chad P. Wanke
Board Chairman
APPROVED AS TO FORM:
Date:
Adriene Plescia Lynch
Alston & Bird LLP
ATTEST:
Date:
By:
Leilani I. Brown Kelly A. Lore
City Clerk Clerk of the Board
[END OF SIGNATURES]
Attachments: Exhibit A:
Exhibit B:
Exhibit C:
Depiction of Property
Depiction of License Area
Insurance Requirements
Orange County Sanitation District
Page 16
10-22
EXHIBIT "A"
Depiction of Property
Orange County Sanitation District
Page A-1
10-23
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■ Disclaimer:
NEWP ORT BEACH0 Every reasonable effort has been made to assure the
accuracy of the data provided, however, The City of
�EwPpRT Newport Beach and its employees and agents
disclaim any and all responsibility from or relating to
0 100 200
any results obtained in its use.
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10-24
EXHIBIT "B"
Depiction of the License Area
Orange County Sanitation District Page B-1
10-25
10-26
10-27
EXHIBIT "C"
Insurance Requirements
1. Provision of Insurance. Without limiting Licensee's indemnification of City, and
prior to commencement of Work, Licensee shall obtain, provide and maintain at its
own expense during the term of this Agreement, policies of insurance of the type and
amounts described below and, in a form, satisfactory to City. Licensee agrees to
provide insurance in accordance with requirements set forth here. If Licensee uses
existing coverage to comply and that coverage does not meet these requirements,
Licensee agrees to amend, supplement or endorse the existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact business of
insurance in the State of California, with an assigned policyholders' Rating of A- (or
higher) and Financial Size Category Class VII (or larger) in accordance with the latest
edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
3. Coverage Requirements.
A. Workers'_ Compensation insurance. Licensee shall maintain Workers'
Compensation insurance providing statutory benefits and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each employee
for bodily injury by accident and each employee for bodily injury by disease in
accordance with the laws of the State of California, Section 3700 of the Labor
Code. In addition, Licensee shall require each subcontractor to similarly
maintain Workers' Compensation Insurance and Employer's Liability Insurance
in accordance with California law for all of the subcontractor's employees. The
insurer issuing the Workers' Compensation insurance shall amend its policy by
endorsement to waive all rights of subrogation against City, its elected or
appointed officers, agents, officials, employees, volunteers, and any person or
entity owning or otherwise in legal control of the property upon which Licensee
performs the Project and/or Services contemplated by this Agreement.
Licensee shall submit to City, along with the certificate of insurance, a Waiver
of Subrogation endorsement in favor of City, its elected or appointed officers,
agents, officials, employees, volunteers, and any person or entity owning or
otherwise in legal control of the property upon which Licensee performs the
Project and/or Services contemplated by this Agreement.
B. General Liability Insurance. Contractor shall maintain commercial
general liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by insurance Services Office form CG
00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate and two million
dollars ($2,000,000) completed operations aggregate. The policy shall cover
Orange County Sanitation District
Page C-1
10-28
liability arising from premises, operations, products -completed operations,
personal and advertising injury, and liability assumed under an insured contract
(including the tort liability of another assumed in a business contract).
C. Automobile Liability Insurance. Licensee shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00
01 covering bodily injury and property damage for all activities of Licensee
arising out of or in connection with Work to be performed under this Agreement,
including coverage for any owned, hired, non -owned or rented vehicles, in an
amount not less than one million dollars ($1,000,000) combined single limit for
each accident.
4. Other Insurance Requirements, The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverages maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its elected or appointed officers, agents, officials, employees, volunteers,
and any person or entity owning or otherwise in legal control of the property
upon which Licensee performs the Project and/or Services contemplated by
this Agreement or shall specifically allow Licensee or others providing
insurance evidence in compliance with these requirements to waive their right
of recovery prior to a loss. Licensee hereby waives its own right of recovery
against City, and shall require similar written express waivers and insurance
clauses from each of its subcontractors.
B. Additional Insured Status. All liability policies including general liability,
products and completed operations, excess liability, and pollution liability,
automobile liability, protection and indemnity liability, and vessel pollution
liability if required, but not including professional liability, shall provide or be
endorsed to provide that City, its elected or appointed officers, agents, officials,
employees, volunteers, agents, the State of California Department of Parks and
Recreation, and any person or entity owning or otherwise in legal control of the
property upon which Licensee performs the Project and/or Services
contemplated by this Agreement shall be included as additional insureds under
such policies.
C. Primary and Non -Contributory. Licensee's insurance coverages shall be
primary insurance and/or the primary source of recovery with respect to City,
its elected or appointed officers, agents, officials, employees, volunteers, and
any person or entity owning or otherwise in legal control of the property upon
which Licensee performs the Project and/or Services contemplated by this
Agreement. Any insurance or self-insurance maintained by City shall be excess
of Licensee's insurance and shall not contribute with it.
Orange County Sanitation District Page C-2
10-29
D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar
days' notice of cancellation or nonrenewal of coverage (except for nonpayment
for which ten (10) calendar days' notice is required) for each required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Licensee shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a waiver
of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. All of the executed
documents referenced in this Agreement must be returned to City within ten
(10) regular City business days after the Agreement is fully executed. Insurance
certificates and endorsements must be approved by City's Risk Manager prior
to commencement of work. Current certification of insurance shall be kept on
file with City at all times during the term of this Agreement. City reserves the
right to require complete, certified copies of all required insurance policies, at
any time.
B. City's Right to Revise Requirements. The City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Licensee ninety (90) calendar days' advance
written notice of such change.
C. Right to Review Subcontracts. Licensee agrees that upon request, all
agreements with subcontractors or others with whom Licensee enters into
agreements with on behalf of City will be submitted to City for review. Failure
of City to request copies of such agreements will not impose any liability on
City, or its employees. Licensee shall require and verify that all subcontractors
maintain insurance meeting all the requirements stated herein, and Licensee
shall ensure that City is an additional insured on insurance required from
subcontractors. For CGL coverage, subcontractors shall provide coverage with
a format at least as broad as CG 20 38 04 13,
D. Enforcement of Agreement Provisions. Licensee acknowledges and agrees
that any actual or alleged failure on the part of City to inform Licensee of non-
compliance with any requirement imposes no additional obligations on City nor
does it waive any rights hereunder.
E. Requirements not Limiting.. Requirements of specific coverage features or
limits contained in this Exhibit are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided by
any insurance. 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 all inclusive, or to the exclusion of other coverage, or a
waiver of any type. If the Licensee maintains higher limits than the minimums
shown above, the City requires and shall be entitled to coverage for higher
Orange County Sanitation District
Page C-3
10-30
limits maintained by the Licensee. Any available proceeds in excess of
specified minimum limits of insurance and coverage shall be available to the
City.
F. Self -insured Retentions. Licensee agrees not to self -insure or to use any
self -insured retentions on any portion of the insurance required herein and
further agrees that it will not allow any indemnifying party to self -insure its
obligations to City. if Licensee's existing coverage includes a self -insured
retention, the self -insured retention must be declared to City. City may review
options with Licensee, which may include reduction or elimination of the self -
insured retention, substitution of other coverage, or other solutions. Licensee
agrees to be responsible for payment of any deductibles on their policies.
G. City Remedies for Non -Compliance. If Licensee or any subcontractor fails
to provide and maintain insurance as required herein, then City shall have the
right but not the obligation, to purchase such insurance, to terminate this
Agreement, or to suspend Licensee's right to proceed until proper evidence of
insurance is provided. Any amounts paid by City shall, at City's sole option, be
deducted from amounts payable to Licensee or reimbursed by Licensee upon
demand.
H. Timely Notice of Claims. Licensee shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Licensee's
performance under this Agreement, and that involve or may involve coverage
under any of the required liability policies. 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.
I. Coverage not _Limited. 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 City or its operations limits the application of such
insurance coverage.
J. Coverage Renewal. Licensee will renew the coverage required here
annually as long as Licensee continues to provide any Work under this
Agreement or any other agreement with City. 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 City within five (5) calendar days of the
expiration of the coverages.
Orange County Sanitation District
Page C-4
10-31
Attachment B
Construction Schedule
10-32
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