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HomeMy WebLinkAboutC-5226-1 - License Agreement at the Newport Pier (for the Coastal Observation System)J N U) LICENSE AGREEMENT COASTAL OBSERVATION SYSTEM v AT THE NEWPORT PIER This LICENSE AGREEMENT ("Agreement") is entered into between THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, a California public corporation ("UCSD"), and the CITY OF NEWPORT BEACH a California municipal corporation and charter city ("City") on this the 28th day of January, 2025 ("Effective Date"). UCSD and City are each a "Party" and together the "Parties" to this Agreement. 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 the Newport Pier, which extends into and over the water of the Pacific Ocean, at 1 Newport Pier Newport Beach, California 92661 ("Newport Pier"), as further depicted on Exhibit "A," which is attached hereto and incorporated herein by this reference. C. UCSD is a consortium member of the Southern California Coast Ocean Observations Systems ("SCCOOS"). SCCOOS has an integrated network of SCCOOS automated shore stations ("SASS") that provide critical long-term measurements in support of ocean health and coastal -ocean water quality in real- time for use by coastal managers, agencies, researchers, and the general public. These SASS consist of a suite of sensors that are attached to four piers in the Southern California Bight, measuring temperature, salinity, chlorophyll, and water level at high frequency intervals in the nearshore coastal ocean. Around 2012, UCSD installed a SASS at the Newport Pier to measure pH and oxygen in collaboration with the Orange County Sanitation District, which has been operating since. D. UCSD's SASS is installed in that certain portion of the Newport Pier, as further depicted in Exhibit B attached hereto, and incorporated herein by this reference ("License Area"). E. UCSD desires to install additional SASS equipment and up to two (2) interpretive signs as described and depicted in Exhibit C, attached hereto and incorporated herein by this reference (collectively, the "Facilities") in the License Area. F. The installation of the Facilities by UCSD is to facilitate research efforts for SCCOOS's ongoing ocean observing effort and is indefinite with reference to time. UCSD intends for operation of the Facilities to continue as long as there is adequate funding to support the infrastructure and personnel required to maintain the SASS. G. City and UCSD desire to enter into this Agreement to memorialize UCSD's existing use of the License Area and to include in UCSD's use of the License Area the installation and operation of the Facilities, subject to the covenants and conditions set forth in this Agreement, on a non-exclusive basis, to facilitate additional and ongoing research efforts for SCCOOS. NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. LICENSE 1.1 City grants a non-exclusive license ("License") to UCSD for the Term of this Agreement, to use the License Area for the purpose specified in this Agreement in compliance with the terms of all governmental licenses, permits and approvals required by Federal, State or local governmental agencies. 1.2 All installation, operation, maintenance, and removal activities shall be at UCSD's sole cost and expense, including but not limited to the fees and costs associated with the permits and government approvals described in Section 3, pursuant to plans approved in advance in writing by the City, such approval not being unreasonably withheld, conditioned, or delayed. 1.3 UCSD shall at its sole cost and expense comply with all applicable federal, state and/or local laws and regulations. The License granted herein is subject to the terms, covenants and conditions hereinafter set forth, and UCSD 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. 1.4 Notwithstanding UCSD's construction and installation of the Facilities, it is the Parties' intention that UCSD's interest in the License Area and Newport Pier is restricted to this Agreement, and the City retains all rights, title and interest in the License Area and Newport Pier. 2. PURPOSE OF LICENSE 2.1 UCSD shall use the License Area for the sole purpose of constructing, installing, maintaining, securing and operating the Facilities, as further described in Exhibit C. 2.2 Construction, installation, operation, including maintenance and repair, and removal of the Facilities shall be at UCSD's sole expense. UCSD shall keep the Facilities free from hazards or risk to the public health, safety or welfare. UCSD shall provide twenty-four (24) hour telephone notice to the Public Works Department at (949) 270-8159 prior to performing any maintenance or repair. 2.3 UCSD shall not make or permit to be made any alterations, additions or License Agreement UCSD Newport Pier Page 2 improvements to the License Area or Newport Pier, including but not limited to, painting, installation of lighting or decorations, or posting of any signs, lettering or advertising media of any type or any other visual displays, without the prior written consent of City, such consent not to be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, UCSD may install Interpretive Signs in accordance with Exhibit C and shall place warning signs on or about the Facilities in the manner required by federal, state or local law. 2.4 Use in Film, Television, and/or Advertising. UCSD may use portions of the License Area, Newport Pier, and surrounding areas for film, television production, advertising production, or other media vehicle only upon written approval from the City and in compliance with the Newport Beach Municipal Code. 3. TERM The term of this Agreement shall commence upon the Effective Date and terminate ten (10) years after the Facilities first begin operation or on June 30, 2035, whichever occurs first ("Term"). Notwithstanding anything to the contrary in this Agreement, the License is for a temporary period of time and does not, and shall not, result in the permanent location of the Facilities on, in or about the License Area. 4. LICENSE FEE The License is provided at no charge to UCSD. City is not charging a License Fee comparable to the open market or appraised value of the License Area because City finds that UCSD's use of the License Area provides an essential or unique service to the public. In lieu of a License Fee, UCSD shall provide to City as consideration for the License all information gathered from the Facilities, via a web link to a Newport Beach site specifically designated to the operation of the Facilities. 5. USE OF THE LICENSE AREA 5.1. UCSD shall not do, nor shall it permit anything to be done that may interfere with the accessibility of the License Area. 5.2. UCSD shall take all prudent action to protect the License Area, Newport Pier, and City equipment and facilities from any damage or injury caused by any activities by or on behalf of UCSD under this License or by the failure, deterioration, or collapse of the Facilities. 5.3. UCSD shall, at its sole cost and expense, continually maintain the Facilities in a first-class manner and keep the License Area neat, clean and free from graffiti, dirt and rubbish at all times. UCSD shall use an anti -graffiti coating on the Interpretive Signs. Graffiti shall immediately be called in to the City's Graffiti Hotline at (949) 644-3333 for removal. 5.4. UCSD shall repair any damage to the License Area, to the extent such damage is caused by UCSD or UCSD Permittees. UCSD shall immediately notify City License Agreement UCSD Newport Pier Page 3 and the appropriate public safety agency (e.g., police and fire department) of any damage or injury caused by work under this License. 5.5. If UCSD fails to commence required maintenance or repairs of the License Area within three (3) business days after receipt of notice to do so, City may perform such work or have such work performed by others and UCSD shall reimburse City for all costs and expenses associated with such work within thirty (30) calendar days of receipt of invoice from City. With respect to the Interpretive Signs, if UCSD does not adequately maintain the Interpretive Sign(s) to City's satisfaction, UCSD shall remove the Interpretive Sign(s) upon written notice by City 6. UTILITIES 6.1 UCSD shall be responsible for the cost of all utility services necessary for the operation of the Facilities, and if required by City, shall have such utilities installed and/or connected if already installed, and maintained at UCSD's sole cost and expense (along with all ongoing use charges). If required, UCSD shall obtain an encroachment permit from City's Public Works Department and submit plans for underground construction of any required utility lines to City for its review and approval prior to commencement of construction. 6.2 UCSD shall obtain electricity for the Facilities through a separate electrical meter with Southern California Edison, or UCSD may obtain electricity by tapping into City's power source at the Newport Pier at the License Area. 6.3 If UCSD uses City's power, UCSD shall pay to City a monthly fixed fee ("Utility Use Fee"), which shall initially be One Hundred Dollars ($100.00). City, upon not less than thirty (30) days' notice to UCSD, may increase or decrease the Utility Use Fee commensurate with costs incurred by City for UCSD's use of City provided utilities, which shall be determined in City's sole and absolute discretion. Licensee agrees not to dispute the Utility Use Fee, either during the Term of the Agreement or at any time thereafter, however the increase or decrease in the Utility Use Fee shall not exceed the cost(s) actually incurred by City for Licensee's use of City provided power. 6.4 In the event that City redevelops the Newport Pier pursuant to Section 11, UCSD is aware that such redevelopment may interfere with the service of utilities to the License Area, and City shall not be responsible or liable for any lack of functionality or damages caused to the Facilities or their inability to collect data. 7. INTERFERENCE WITH CITY TELECOMMUNICATIONS 7.1 Operation of the Facilities shall at all times comply with all Federal Communications Commission ("FCC") requirements and shall not cause any direct or indirect interference with (a) the operation of City's own wireless communications facilities, including but not limited to public safety transmissions, police and fire communications, water or sewer internal or external radio signals and communications, as they now exist or may from time -to -time hereafter exist ("City Equipment") or (b) public telecommunications such as cell phone or wireless internet use. License Agreement UCSD Newport Pier Page 4 7.2 In the event of any interference with City's police and fire communications, UCSD shall work with the affected City Department to correct the interference within two (2) hours of City's written or telephone notice to UCSD. In the event of any interference with City Equipment other than police or fire communications, UCSD shall work with City to correct the interference within twenty-four (24) hours of City's written or telephone notice. If it is determined the interference is caused by the Facilities and if UCSD is unable to correct the interference to City's satisfaction, UCSD shall immediately cease operation of the Facilities until the cause of the interference is corrected to City's satisfaction. 7.3 Prior to making any changes to the frequency or operating conditions, UCSD shall submit plans for the proposed changes to City for its review and written approval. UCSD agrees to fund any studies either of the Parties deem necessary to ensure that any contemplated changes will be compatible with City Equipment. No frequency or operating condition changes shall occur prior to the City's written approval. 8. EMERGENCY SHUT OFF OF POWER 8.1 Emergency situations may require power to the Facilities to be immediately shut off, which may interfere with or temporarily terminate UCSD's use of the Facilities ("Emergency Situation"). City shall have the sole right to determine what constitutes an Emergency Situation. In case of an Emergency Situation and/or a case of frequency interference of any nature between City Equipment and the Facilities in a manner that threatens public health or safety, City shall have the right, without notice, to immediately shut off power to the Facilities and any other UCSD equipment located at the License Area for the duration of the Emergency Situation or frequency interference that threatens public health or safety. City shall not be responsible or liable for any damage, loss, claim or liability of any nature suffered as a result of any loss in use of the Facilities because of the power shut off due to an Emergency Situation and UCSD shall protect, defend, indemnify and hold City harmless for any such resulting damage, loss, claim or liability. 8.2 UCSD shall install a clearly marked and accessible master power "cut-off' switch on the Facilities. 8.3 Any power shut off by City pursuant to this Section is not intended to and shall not constitute a termination of this Agreement by either party, unless otherwise specifically stated in a notice of termination and UCSD accepts the risk of such power shut off. UCSD and City shall meet after the City determines that an emergency situation has ended to establish the time and manner in which power shall be restored. 9. ACCEPTANCE OF CONDITION OF LICENSE AREA UCSD has conducted its own appropriate due diligence investigation of the License Area prior to its execution of this Agreement and accepts use of the License Area in an "AS IS" condition, with no warranty or representation, express or implied from the City as to the physical condition of the License Area and/or any latent, patent, foreseeable and unforeseeable condition of the License Area, including its suitability for the use intended by UCSD. All persons entering the License Area under this Agreement do so License Agreement UCSD Newport Pier Page 5 at their own risk. UCSD expressly assumes all responsibility for the protection and security of the License Area, UCSD, UCSD's employees, volunteers, contractors, subcontractors, invitees, agents, or representatives (collectively, "UCSD Permittees"), and UCSD's property and equipment from any and all acts of any third party. To the best of City's knowledge, the License Area has not been used for generation, storage, treatment or disposal of "Hazardous Substances", as defined in this Agreement. 10. GOVERNMENT APPROVALS 10.1 UCSD shall, at its sole cost and expense, obtain a Building Permit from the City's Community Development Department, Building Division, and an Encroachment Permit from the City's Public Works Department. 10.2 UCSD shall obtain all other licenses, permits and approvals required by federal, state or local governmental agencies necessary for UCSD to construct, operate, repair and remove the Facilities in the License Area, including but not limited to California Coastal Commission approval, at UCSD's sole cost and expense. Prior to installation of the Facilities, UCSD must obtain a valid Coastal Development Permit or De Minimis Waiver. UCSD may not install the Facilities until a valid coastal development permit or other authorization has been issued by the California Coastal Commission. 11. REDEVELOPMENT OF PROPERTY If City's redevelopment of the Newport Pier or the License Area during the Term will materially interfere with UCSD's use of the License Area, then the Parties agree to terminate this Agreement. City shall provide UCSD with written notice of termination of this Agreement at least two hundred seventy (270) calendar days prior to the start of construction activity. City will make all best efforts to include space for Licensee to continue to operate the Facilities at the Newport Pier but cannot guarantee that space will be available. 12. RELOCATION When requested by City, UCSD shall relocate the Facilities at its expense and shall have no right or claim for reimbursement or damages. Except in the event of an emergency or other situation requiring immediate relocation of the Facilities, City shall provide UCSD with not less than ninety (90) calendar days written notice of relocation specifying a date by which the relocation is to take place. 13. INSPECTION City shall have the right to inspect the Facilities for compliance with the terms of this Agreement and with all applicable federal, state, City and local government regulations, at any time and without prior notice. License Agreement UCSD Newport Pier Page 6 14. NO INTEREST IN PROPERTY Nothing herein shall be deemed to create or to grant any lease, easement, or any possessory or other interest in the License Area, or any public right-of-way, other than a real property license to use and access the License Area, revocable and for the Term. 15. CITY RETENTION RIGHTS; RESERVATION OF RIGHTS 15.1 UCSD's right to use the License Area during the Term shall be subordinate and junior to the rights of City to use and occupy the License Area for any purpose that does not interfere with UCSD's use of the License Area as provided herein. 15.2 UCSD understands, acknowledges and agrees that any and all authorizations granted to UCSD 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 City property, as well as any existing encumbrances, deeds, covenants, restrictions, easements, dedications and other claims of title that may affect the License Area and City property. 16. UCSD'S RETENTION OF TITLE Title to the Facilities placed at the License Area by UCSD shall be held by UCSD or its equipment lessors, successors, or assigns. The Facilities shall not constitute or be considered fixtures. UCSD has the right to remove any or all of the Facilities at its sole expense at any time. 17. DEFAULT; REMEDIES UCSD's failure to observe or perform any of the covenants, conditions, or terms of this Agreement, where such failure continues for a period of thirty (30) calendar days after City has provided written notice to UCSD, shall constitute a default and material breach of this Agreement. If more than thirty (30) days are required to perform any of the covenants, conditions, or terms of this Agreement, then UCSD shall not be in default or material breach of this Agreement if UCSD has commenced to cure such prospective default within the thirty (30) day period and diligently proceeds to completion. City may terminate this Agreement and UCSD's use of the License Area upon UCSD's failure to cure the default or breach. Such termination shall be effective upon City's providing written notice to UCSD. 18. 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 UCSD is personal to UCSD 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 transfer of this License Agreement UCSD Newport Pier Page 7 Agreement or the License granted hereunder, voluntarily or by operation of law, shall automatically terminate this Agreement, unless UCSD has obtained the prior written consent of City. 19. TAXES UCSD 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 License authorized herein. City hereby gives notice to UCSD, 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 UCSD. 20. SURRENDER Upon expiration or termination of this Agreement, UCSD at its sole cost and expense shall within thirty (30) calendar days of written notice from City remove the Facilities, restore the License Area to the condition it was received in, less regular wear and tear, or to a condition satisfactory to and approved by City, and vacate the License Area. UCSD shall also leave the License Area free of Hazardous Substances, as required by Section 24. Should UCSD fail to restore the License Area to a condition described above, City may perform such work or have such work performed by others and UCSD shall reimburse City for all direct costs associated with such work upon receipt of an invoice for such costs. Any property UCSD fails to remove or abandons shall, at City's election, become City's property at expiration or termination. City shall owe no compensation to UCSD for any property it abandons, leaves behind, or fails to remove. 21. TERMINATION This Agreement may be terminated by either Party, at any time, for any reason, with or without cause, by giving thirty (30) calendar days written notice to the other Party. Upon termination, UCSD shall comply with the surrender obligations of Section 20 above. 22. INDEMNIFICATION 22.1 Irrespective of any insurance carried by UCSD for the benefit of City, and to the fullest extent permitted by law, including UC's Standing Orders, UCSD shall indemnify, defend, 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, California Coastal Commission enforcement 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"), but only in proportion to and to the extent such Claims are caused by or arises from UCSD's operations conducted under this Agreement or the License Agreement UCSD Newport Pier Page 8 implementation hereof and for any damages to property or injuries to persons, including accidental death, which may be caused by any of UCSD's activities under this Agreement, whether such activities or performance thereof be (i) by UCSD, or (ii) UCSD's Permittees or agents and whether such damage shall accrue or be discovered before or after termination of this Agreement. This indemnification obligation exists on in proportion and to the extent that the Claims result from the negligent or intentional acts or omissions of UCSD and UCSD's officers, employees, invitees, guests, and/or agents. 22.2 Notwithstanding the foregoing, nothing herein shall be construed to require UCSD to indemnify the Indemnified Parties from any Claim arising from the 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 UCSD. This indemnity Section shall survive the termination or expiration of this Agreement. 23. INSURANCE Without limiting UCSD's indemnification of City, and prior to undertaking any activity pursuant to the License, UCSD shall obtain, provide and maintain at its own expense during the Term policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit "D" and incorporated herein by reference. 24. HAZARDOUS SUBSTANCES 24.1 From the date of execution of this Agreement throughout the Term, UCSD shall not use, store, manufacture or maintain in, on, under, about or within the License Area or anywhere on the Newport Pier any Hazardous Substances except (i) in such quantities and types found customary in construction, repair, maintenance and operations of the Facilities, and (ii) petroleum and petroleum products contained within regularly operated motor vehicles. UCSD shall handle, store and dispose of all Hazardous Substances it brings onto the License Area or Newport Pier in accordance with applicable laws. 24.2 For purposes of this Agreement, 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 License Agreement UCSD Newport Pier Page 9 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 Management Act, Health and Safety Code Sections 25170.1 et seq.; California Health and Safety Code Sections 25501 et seq. (Hazardous Materials 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 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. 24.3 Notwithstanding any contrary provision of this Agreement, and in addition to the indemnification duties of UCSD set forth in this Agreement, UCSD 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 UCSD, caused by or arising from the storage or deposit of Hazardous Substances on or under the License Area by UCSD. 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. 24.4 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 UCSD 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, UCSD 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 UCSD. License Agreement UCSD Newport Pier Page 10 25. COMPLIANCE WITH LAWS UCSD, 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 Facilities and the License Area, or the use thereof, including all Americans with Disability Act requirements, applicable zoning ordinances, building codes and environmental laws. UCSD shall not occupy or use the Facilities and License Area or permit any portion of the Facilities and License Area 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. 26. NOT AGENT OF CITY Neither anything in this Agreement nor any acts of UCSD shall authorize UCSD or any of its employees, agents or contractors to act as agent, contractor, joint venture or employee of City for any purpose. 27. NO THIRD PARTY BENEFICIARIES City and UCSD do not intend, by a provision of this Agreement, to create in any third party, any benefit or right owed by one Party, under the terms and conditions of this Agreement, to the other Party. 28. NOTICES All notices and other communications required or permitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: (a) To City: City of Newport Beach Attn: Real Property Administrator 100 Civic Center Drive P.O. Box: 1768 Newport Beach, CA 92660 (b) To UCSD: Attn: Melissa Carter Shore Stations Program University of California, San Diego 9500 Gilman Drive, Department 0218, Sverdrup Hall, 2255 La Jolla, California 92037-0218 License Agreement UCSD Newport Pier Page 11 Phone: (858) 534-6304 or (619) 241-9310 (c) UCSD's emergency contacts: Name: Title: 24 hour phone number: Email: Name: Title: 24-Hour Phone Number: Email: 29. CITY BUSINESS LICENSE Melissa Carter Principal Investigator for Automated Shore Stations and Manager of Shore Stations Program (858) 534-6304 or (619) 241-9310 mlcarter(a)-ucsd.edu Clarissa Anderson Director of SCCOOS and PI for Shore Stations Program (858) 246-2226 clrand er ucsd.edu UCSD shall obtain and maintain during the duration of this Agreement, a City business license as required by the Newport Beach Municipal Code. 30. NO DAMAGES UCSD 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, including, without limitation, any and all plans, permits, licenses or regulatory approvals, and CEQA documents. Accordingly, UCSD 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 (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 UCSD arising out of or connected with this Agreement or any of the matters referred to in this Agreement, including, without limitation, any and all plans, permits, licenses or regulatory approvals, CEQA documents, or any future amendments or enactments thereto, the Parties agreeing that declaratory relief, injunctive relief, mandate and specific performance shall be UCSD's sole and exclusive judicial remedies. 31. STANDARD PROVISIONS 31.1 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 License Agreement UCSD Newport Pier Page 12 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. 31.2 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 oral agreement or implied covenant shall be held to vary the provisions herein. 31.3 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. 31.4 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. 31.5 Amendments. This Agreement may be modified or amended only by a written document executed by both UCSD and City and approved as to form by the City Attorney. 31.6 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. 31.7 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. 31.8 Equal Opportunity Employment. UCSD 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. 31.9 No Attorney's Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing Party shall not be entitled to attorney's fees. 31.10 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 (1) and the same instrument. 31.11 Time is of the essence for this Agreement. [SIGNATURES ON NEXT PAGE] License Agreement UCSD Newport Pier Page 13 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in duplicate on the dates indicated below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: !�T10 /zo q By: , boo Aaron C Harp 'X\16Ab City Attorney ATTEST: Date: A. oA). 9051, By: Leilani I. Brow� City Clerk /.. a CITY OF NEWPORT BEACH, A California m nicipal corporation 3 Date: 2� %?� ZS By: Gr e . Leung Ci anager UCSD: Regents of the University of California, a California public corporation Date: Signed in Counterpart Bv: Jeff W. Graham Executive Director — Real Estate c `P [END OF SIGNATURES] '10FORt Attachments: x ibit A — Newport Pier Depiction Exhibit B — License Area Depiction Exhibit C — Facilities Description and Depiction Exhibit D — Insurance Requirements License Agreement UCSD Newport Pier Page 14 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in duplicate on the dates indicated below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date:_p,T(0 1Z ozq CITY OF NEWPORT BEACH, A California municipal corporation Date: By: poi By: Aaron C Harp ►XM 4b Grace K. Leung City Attorney City Manager ATTEST: UCSD: Regents of the University of Date: California,,a Cafifornia lic corporation Date: fly /�o /- � I By: B Y: Leilani 1. Brown Jeff W�Gra City Clerk Executive Director — Real Estate [END OF SIGNATURES] Attachments: Exhibit A — Newport Pier Depiction Exhibit B — License Area Depiction Exhibit C — Facilities Description and Depiction Exhibit D — Insurance Requirements License Agreement UCSD Newport Pier Page 14 EXHIBIT A NEWPORT PIER DEPICTION License Agreement UCSD Newport Pier Page A-1 EXHIBIT B LICENSE AREA DEPICTION (HF radar and cabinet are not part of this License and are shown for reference only) Current location of SASS and Hf Radar cabinets Newport Beach Pier, lower level 4/12/2023 inches: "D "D License Agreement UCSD Newport Pier Page B-1 #3 Proposed Location of new IFCB cabinet Dimensions of each cabinet in inches: IFCB 60-72"H x 24"L x 18-24"D stairs SASS 36"H x 36"L x 13 -26"D HF radar 38"H x 34"L x 24"D TN 60" 5311 QNo change to current v7 location of cabinets. U Only adding new IFCB ~� � cabinet between SASS and HF radar � cabinet. N I Proposing new SASS cabinet with 26" lower level depth instead of FTT current 13". 16' ramp License Agreement UCSD Newport Pier Page B-2 License Areas for Interpretive Signs License Agreement UCSD Newport Pier Page B-3 EXHIBIT C FACILITIES DESCRIPTION AND DEPICTION Facilities UCSD's Facilities at the Newport Pier, which are described in more detail below: 1. SASS unit 2. IFCB unit 3. SASS/IFCB cabinet 4. Interpretive signs 1. One of four integrated and networked Southern California Coastal Ocean Observing System ("SCCOOS") automated shore stations ("SASS"). The SASS provide critical long-term measurements in support of ocean health and coastal -ocean water quality in real-time for use by coastal managers, agencies, researchers, and the general public. The SASS consist of a suite of sensors that are attached to four piers in the Southern California Bight measuring temperature, salinity, chlorophyll, and water level at high frequency intervals in the nearshore coastal ocean. The station at Newport Pier also has sensors to measures pH and oxygen in collaboration with the Orange County Sanitation District. 2. The Imaging FlowCytobot ("IFCB") which is an automated submersible flow cytometer that generates images of particles taken from the aquatic environment. The IFCB uses a combination of flow cytometric and video technology to capture high resolution images of suspended particles. The optical and image data are then transmitted to shore in real time, and the images are processed to determine the volume and the species of the particle. These data provide a new resource for real-time evaluation of harmful algal blooms along the coast and can create estimates of biovolume and carbon content per particle. The SASS and IFBC portion of the Facilities are currently deployed underwater and consist of the following sensors (Figure 1): SeaBird SeaFET pH sensor — left yellow cylinder SeaBird 16plus V2 CTD — center yellow cylinder SeaBird SBE63 Oxygen sensor — center yellow circle Wetlabs WetStar fluorometer — center top cylinder McLane IFCB — right cylinder The sensors are housed in a copper -nickel metal frame (SASS cage) with overall dimensions of 49" L x 27.5" W x 7.8" D (Figure 2), which is attached to a pier piling using a galvanized steel clamp (48" H x 26" W) (Figure 3). The pier clamp is secured to the piling using 1 /2" marine galvanized steel chain and galvanized steel clevis end turnbuckles (McMaster -Carr part#3001 T522) to tighten to the pier piling. The cage and clamp are both welded and made by the Scripps Institution of Oceanography Marine Facility Shop. See Appendix A for AutoCAD drawings of SASS cage. License Agreement UCSD Newport Pier Page C-1 Figure 1. Image of SASS and IFCB sensor installed underwater at the Newport Pier. Figure 2. Nickel copper alloy cage to hold SASS sensors. AutoCAD drawing of cage (right). License Agreement UCSD Newport Pier Page C-2 Figure 3. Galvanized steel pier clamp shown out of water (left) and attached to pier piling with chain and turnbuckles (right). 3. A topside waterproof stainless -steel cabinet (dimensions of 36" W x 36" H x 13" D) (Figure 4) which houses the power and communication to the SASS and IFCB using SubConn underwater cables and connectors. A double GFCI outlet in the cabinet provides power to the sensors and cellular modem. An outdoor cellular antenna is mounted above the cabinet just a few feet to the north (see black 4" circular antenna in photo). License Agreement UCSD Newport Pier Page C-3 Figure 4. The topside stainless -steel cabinet that holds power and data infrastructure for the SASS and IFCB. This is located on the lower deck of the Newport Pier. The existing cabinet will be replaced with a cabinet with maximum dimensions that are no larger than 6" in any direction (L, W, H) and that occupies the same footprint. A new topside IFCB cabinet will be installed if the IFCB is changed from its current configuration as an underwater system to a topside installation. (Figure 5.; Dimensions of the proposed cabinet are 60-72" H x 24" L x 19-24" D. Exhibit B shows the current, permissible, and proposed locations for the cabinets. Figure 5. Examples of cabinet options for the new IFCB cabinet are shown above in plastic (left) and stainless steel (middle). The image on right is an example set-up of IFCB at San Francisco Pier with pumped configuration. 4. Interpretive Signs. Up to two (2) interpretive signs installed and maintained on the topside of the Newport Pier by UCSD, to provide the public with access to current and historical ocean temperature data (via a QR code to a UCSD website) and highlight the work the City has done to facilitate the collection of data for almost 100 years ("Interpretive Signs"). The Interpretive Signs will contribute to UCSD's outreach efforts to share the SASS data with the public to promote public outreach and engagement. The Interpretive Signs shall be at least 9" x 11" or up to 2' x 3', and UCSD shall install it on the ADA railing in front of City's Lifeguard Headquarters and upon the Newport Pier railing at the sampling location where the daily measurements are collected, as shown in Exhibit B (License Area). The number of signs installed shall be determined by the amount of funding UCSD receives. License Agreement UCSD Newport Pier Page C-4 Utilities The only utilities needed for the SASS and IFCB station are two GFCI outlets inside the waterproof cabinets to provide power to sensors and the cellular modem. When the IFCB cabinet is installed additional GFCI outlets will be required in the IFCB cabinet to power the IFCB sensor and peristaltic pump. Maintenance All construction has been done to install the infrastructure for the SASS network at Newport Beach Pier, however replacement of the pier clamp is required every approximately every 10 years to ensure the strength and integrity of the materials underwater. Management and Access to Facilities The principal investigators for the Facilities at the Newport Pier are Melissa Carter and Clarissa Anderson at UCSD. Melissa Carter's lab and personnel are responsible for the monthly maintenance of the SASS underwater sensors and top side equipment. Monthly dives are needed to maintain data quality of sensors since biofouling and sediment can degrade sensor output. All divers are certified and operate under the auspices of the UCSD. Additional topside, collaborative effort is conducted by David Caron's Lab (dcaron@usc.edu) at the University of Southern California and the field team managed by Jayme Smith (jaymes@sccwrp.org) at the Southern California Coastal Water Research Project to provide local contacts in case immediate attention is needed on site. License Agreement UCSD Newport Pier Page C-5 Appendix A to Exhibit A AutoCAD drawings and dimension of SASS cage F�c�g oni�pa�a cn gam_$"=a ao�go�� "¢ x A - W cn au O O A O O W (n o v 90 �O z O CO -_l -1 O Cr O O O A W W N O 0 A � -D. a b z 0 0 0 r D D o z rn g N N N � D >m m fD m � N � N m C/) 3 C) m A. D _N 0 rn Q M N m G C o e - �O • o • � • . e � . N W v w 0 o ° o m� �n Dri D> O D M -° Z O � rn� 0 1.9 2.0 2.5 4.0 5.0 6.0 • 13.7 17.0 18.0 19.0 25.0 • 25.4 25.6 27.5 License Agreement UCSD Newport Pier Page C-6 EXHIBIT D INSURANCE REQUIREMENTS 1. Provision of Insurance. Without limiting UCSD's indemnification of City, and prior to commencement of work, UCSD shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance or self-insurance of the type and amounts described below and in a form reasonably satisfactory to City. UCSD agrees to provide insurance in accordance with requirements set forth here. If UCSD uses existing coverage to comply and that coverage does not meet these requirements, UCSD agrees to amend, supplement or endorse the existing coverage. UCSD's certificate of self-insurance is available at http://www.ucop.edu/risk-services/risk-financing-claims/certificates-of- insurance.html. 2. Acceptable Insurers. Absent self-insurance, all insurance policies shall be issued by an insurance company currently authorized by the State of California, or otherwise be allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law. All insurance policies shall have 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. UCSD shall maintain Workers' Compensation Insurance or self-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. In addition, UCSD 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. B. Commercial General Liability Insurance. UCSD shall maintain commercial general liability insurance or self-insurance including products completed operations, in an amount not less than three million dollars ($3,000,000) per occurrence, and five million dollars ($5,000,000) general aggregate. UCSD shall procure and submit to City evidence of completed operations coverage for five (5) years from the time all work under this Agreement is completed. C. Automobile Liability Insurance. UCSD shall maintain automobile insurance or self-insurance at least as broad as Insurance Services Office License Agreement UCSD Newport Pier Page D-1 form CA 00 01 covering owned, hired, and non -owned autos bodily injury and property damage for all activities of UCSD arising from work to be performed under this Agreement, in an amount not less than one million dollars ($1,000,000) combined single limit for each accident. D. Pollution Legal Liability and/or Professional Liability. UCSD shall maintain insurance for all operations to include onsite and offsite coverage for bodily injury (including death and mental anguish), property damage, non -owned disposal site liability, defense costs, cleanup costs, and pollution conditions that arise from or in connection with the transportation (including loading and unloading) by or on behalf UCSD, and any waste or waste materials off or away from the project site. Coverage shall be provided for both sudden and accidental and gradual and continuous pollution events with limits no less than two million dollars ($2,000,000) each loss and four million dollars ($4,000,000) in the aggregate. The policy shall not exclude any hazardous materials for which there is an exposure. E. Maritime Employers Liability (MEL). UCSD stipulates that divers employed for this project shall be commercially certified. A recreational certificate is not sufficient. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. UCSD hereby waives its right to subrogation against City, its City Council, boards and commissions, officers, agents, volunteers and employees, and any person or entity owning or otherwise in legal control of the property upon which UCSD performs the Project and/or Services contemplated by this Agreement or shall specifically allow UCSD or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. UCSD 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 Covered Party Status. UCSD agrees that City, its City Council, boards and commissions, officers, agents, volunteers and employees, and any person or entity owning or otherwise in legal control of the property upon which UCSD performs the Project and/or Services contemplated by this Agreement shall be included as additional covered parties as to UCSD's General Liability and Automobile Liability. C. Primary and Non Contributory. All liability policies including commercial general liability, excess/umbrella liability, pollution liability, automobile liability, protection and indemnity liability, and vessel liability shall be primary and noncontributory 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 UCSD performs the Project and/or Services contemplated by this Agreement, except to the License Agreement UCSD Newport Pier Page D-2 extent a loss is caused, in whole or in part, by City's sole negligence or willful misconduct. Any insurance or self-insurance maintained by City shall be excess of UCSD's insurance and shall not contribute with it, except to the extent a loss is caused, in whole or in part, by City's sole negligence or willful misconduct. D. Excess/Umbrella Liability. If any Excess or Umbrella Liability policies are used to meet the limits of liability required by this Agreement, then said policies shall be "following form" of the underlying policy coverage, terms, conditions, and provisions and shall meet all of the insurance requirements stated in this Agreement, including, but not limited to, the additional insured and primary and noncontributory insurance requirements stated herein. No insurance policies maintained by the City, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until UCSD's primary and all excess liability policies are exhausted, except where a loss is caused in part or in full by City's sole negligence. E. Notice of Cancellation. UCSD shall provide City with reasonable notice prior to the cancellation or nonrenewal of coverage for each required coverage under this Agreement. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. UCSD shall provide certificates of self- insurance to City as evidence of the insurance coverage required herein. 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 may view UCSD's certificate of self-insurance at any time at http://www.ucop.edu/risk-services/risk-financing-claims/certificates-of- insurance.html . 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 UCSD ninety (90) calendar days' advance written notice of such change. C. Right to Review Subcontracts. UCSD agrees that upon request, all agreements with subcontractors or others with whom UCSD enters into agreements with on behalf of City for research work occurring in the License Area 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. License Agreement UCSD Newport Pier Page D-3 UCSD shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and UCSD 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. UCSD acknowledges and agrees that any actual or alleged failure on the part of City to inform UCSD 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. F. Self -Insured Retentions. City may review UCSD's publicly available annual financial reports at the following link: https://www.ucop.edu/uc- controller/financial-reports/annual-financial-reports. html. G. City Remedies for Non -Compliance. If UCSD or any subcontractor fails to provide and maintain insurance or self-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 UCSD'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 UCSD or reimbursed by UCSD upon demand. H. Timely Notice of Claims. UCSD shall give City prompt and timely notice of claims made or suits instituted that are caused by or arise out of UCSD'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. Coverage Renewal. UCSD will maintain the coverage required here as long as UCSD continues to provide any work under this Agreement. UCSD 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.. License Agreement UCSD Newport Pier Page D-4 q 2 255 D. 72 ® C qSearch Insured Name Regents of the University of California (UC U Regents of the University of California Active Records Only Advance Search Insured Tasks Admin Tools View s:z Insured Notes 41L) History �= Deficiencies Coverages Requirements Add Edit Help Video Tutorials 7= Deficiencies Name: Account Number: Address: Status: Regents of the University of California (UCSD) FV00001309 9500 Gilman Drive, Dept 0218, Sverdrup Hall 2255, La Jolla, CA, USA, 92037 Referral Compliant with Waived Deficiencies. The following deficiencies are according to last validation on :02/21 /2025 Deficiencies Information Date Policy Coverage Deficiency Waived Waiver Cre� Reason By General Liability_ Additional Insured Endorsement is non compliant for following 06/15/2024 SIR General reason(s): * Yes Business Seth Liability Decision We have not received a required CG 2010 or Equivalent Additional Insured Endorsement. GenPral riuiiaiyirvuiI Contributory. Endorsement is non compliant for General following Business 06/15/2024 SIR Yes SE Liability reason(s): * Decision We are not properly named on the Primary & Non- Contributry Endorsement. General Liability_ Self -Insured Retention General Business 06/15/2024 Limit has Yes S1 Liability Decision exceeded the required minimum allowed: SIR General Liability_ Waiver of Subrogation Endorsement is non compliant for following reason(s)_* *We have General received your Business 06/15/2024 SIR Yes S Liability Waiver of Decision Subrogation Endorsement for only one of the referenced policy numbers. We need it for all policy numbers. General Liability - We are not General Business 06/15/2024 SIR pro perly Yes S Liability Decision named as an Additional Insured. Professional Liability_ Missing Professional Business 02/10/2025 Required Yes S 1 ;'h;14 n—;,;— Coverage. Professional Liability_ Missing 06/15/2024 Professional Required Yes Liability Professional Liability Coverage. Major deficiencies are displayed in red. Minor deficiencies are displayed in black. Waived deficiencies are displayed in blue. Future waived deficiencies are displayed in orange.