HomeMy WebLinkAboutC-7361-1 - Revocable License Agreement for Temporary Use of City Property for Restoration Work in Big CanyonS
rREVOCABLE LICENSE AGREEMENT
i BETWEEN THE CITY OF NEWPORT BEACH
V AND NEWPORT BAY NATURALISTS AND FRIENDS DBA NEWPORT BAY
CONSERVANCY FOR TEMPORARY USE OF CITY PROPERTY
FOR RESTORATION WORK IN BIG CANYON
THIS REVOCABLE LICENSE AGREEMENT FOR TEMPORARY USE OF CITY
PROPERTY FOR RESTORATION WORK IN BIG CANYON ("Agreement") is made and
entered into as of this 12th day of February, 2018 ("Effective Date"), by and between the
CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"),
and NEWPORT BAY NATURALISTS AND FRIENDS, a California non-profit public
benefit corporation doing business as ("DBA") NEWPORT BAY CONSERVANCY
("Licensee"), and is made with reference to the following:
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.
City is the owner of real property commonly known as the Big Canyon Nature Park,
located in Sections 24 and 25 of Township 6 South, Range 10 West of the Newport
Beach 7.5 minute U.S. Geological Survey (USGS) topographic quadrangle within
the lowest subwatershed of the Big Canyon Watershed situated west of Jamboree
Road and east of the California Department of Fish and Wildlife's freshwater lake,
and depicted on Exhibit A attached hereto ("License Area"). The California
Department of Fish and Wildlife is the owner of real property commonly known as
Big Canyon Freshwater Lake, located just upstream of Back Bay Drive within Big
Canyon, depicted on Exhibit A attached hereto ("CDFW Area") (collectively the
"Property").
B. Licensee is the recipient of a State Coastal Conservancy grant (Grant No. 17-018-
01) ("Grant"). The Grant provides Licensee with funds to conduct various land
surveys and studies regarding the design to restore Big Canyon Nature Park
("Services").
C. Licensee will enter into a separate Professional Services Agreement with
Environmental Science Associates, a California corporation ("ESA"), for the
provision of such Services for the Property.
D. Licensee has requested of City that it and its agent ESA be allowed onto the
License Area for the purposes of conducting the Services as to the License Area.
E. In consideration of the mutual promises and obligations contained in this
Agreement, the receipt and sufficiency of which is hereby acknowledged, City
hereby grants to Licensee the revocable right to enter and temporarily occupy and
use the License Area, and Licensee accepts the same on it and ESA's behalf on
the following terms and conditions.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
LICENSE
1.1 City grants a non-exclusive license ("License") to Licensee on behalf of itself
and its agent ESA for the term of this Agreement to enter and temporarily occupy and use
the License Area located in the City of Newport Beach, as further depicted on Exhibit A,
which is attached hereto and incorporated herein by reference, in order to facilitate the
Services.
1.2 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 term, covenant and condition of
this Agreement.
2. USE OF THE LICENSE AREA
Licensee's use of the License Area shall be limited to the terms of this Agreement.
3. PERMITS AND LICENSES
Licensee, at its sole expense, shall
Agreement, all appropriate permits, licenses
governmental agency, including City.
4. TERM
obtain and maintain during the term of this
and certificates that may be required by any
4.1 The term of this License shall commence on the Effective Date and shall
continue until July 31, 2020, unless terminated earlier as set forth herein.
4.2 The City Manager or designee may renew this Agreement for additional
ninety (90) day term if it is determined that (i) that the terms of the Agreement have been
met; and (ii) the use by Licensee is not causing any negative impact on surrounding
properties and uses. Any renewals approved pursuant to this Section 4 must be in writing
and approved as to form by the City Attorney for the City.
5. RESERVED
6. PURPOSE OF THIS LICENSE
The purpose of this Agreement is to provide for the entry and temporary use and
occupation of the License Area within the Property. Use of area outside the License Area
will not be allowed unless prior permission is given in writing by the City. Licensee agrees
to use the License Area only for the activities described herein, and not to use or permit
Newport Bay Conservancy Page 2
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. Acceptable
activities include:
1) Biological and water quality monitoring;
2) Visual inspections for cultural, archeological and paleontological resources;
3) Surveying;
4) Planning and design field trips; and
5) Any other work necessary to perform the Services consistent with the Grant.
7. CONDITIONS OF LICENSE
Licensee shall comply with the following conditions prior to the commencement of
use of the License Area:
7.1 Licensee shall procure and maintain any and all required licenses, permits
and certifications in accordance with Section 3 above.
7.2 Licensee shall work with adjacent property owners to reach agreement over
the use of land outside of the License Area.
7.3 No improvements to the License Area are permitted, other than those set
forth in Section 6 above.
7.4 Licensee shall be responsible for maintenance of the License Area
including, but not limited to, the routine removal of any foreign material, waste, and debris.
7.5 City shall be entitled, with a Licensee representative, to inspect the License
Area for compliance with the terms of this Agreement, and with all applicable Federal,
State and local (including those of the City) government regulations.
8. TERMINATION OF LICENSE
8.1 Notwithstanding the term of this License, this License may be terminated
during the term or any extended term in the following manner:
1) By Licensee: At any time, without cause upon the giving of thirty (30)
days written notice of termination to City;
2) By City: At any time, without cause upon the giving of thirty (30) days
written notice of termination to Licensee; or
3) If, after written notice of default to Licensee of any of the terms or
conditions of this License, Licensee fails to cure or correct the default within ten (10) business
days of receipt of written notice, City may immediately terminate the License.
Newport Bay Conservancy Page 3
9. ADMINISTRATION
This Agreement will be administered by the Public Works Department. City's
Public Works Director, or designee, shall have the authority to act for City under this
Agreement. The License Administrator or their authorized representative shall represent
City in all matters pertaining to this Agreement.
10. INDEMNITY AND LIABILITY FOR DAMAGES
10.1 Licensee, on behalf of itself and any of its agents, shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers, and employees (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; collectively, "Claims"), which may arise from or in any manner relate
(directly or indirectly) to any breach of the terms and conditions of this License by
Licensee or its agents, any work performed or services provided under this License by
Licensee or it agents, including, without limitation, defects in workmanship or materials or
Licensee's or its agents' presence or activities conducted that relate in any way to this
License (including the negligent and/or willful acts, errors and/or omissions of Licensee,
employees, vendors, agents, suppliers, and anyone employed directly or indirectly by any
of them or for whose acts they may be liable or any or all of them). 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. 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 License. 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 the Licensee.
10.2 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 under this License, for such time as this License is in effect. Licensee shall
use care to protect the License Area and restore it to its original condition or to the
conditions in Section 6 above, to the satisfaction of the City when the License Area is not
in use by Licensee.
11. 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 B, and incorporated herein by reference.
Newport Bay Conservancy Page 4
12. PROHIBITION AGAINST ASSIGNMENT AND TRANSFER
This License shall not be assigned or transferred without the prior written approval
of City which approval may be withheld in the City's sole discretion.
13. 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. Notwithstanding Section 9.1.3,
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.
14. NOTICE
14.1 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:
Public Works Department
City of Newport Beach
Attn: Assistant City Engineer
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
14.2 All notices, demands, requests or approvals from City to Licensee shall be
addressed to Licensee at:
Newport Bay Conservancy
Attn: Peter Bryant
2301 University Drive
Newport Beach, CA 92660
15. STANDARD PROVISIONS
15.1 Recitals. City and Licensee acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
Newport Bay Conservancy Page 5
15.2 Compliance with all Laws. Licensee shall at its own cost and expense
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all work prepared by Licensee shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be subject
to approval of the Project Administrator.
15.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed a waiver of any subsequent breach of the
same or any other term, covenant or condition contained herein, whether of the same or
a different character.
15.4 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.
15.5 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 License or any other rule of
construction which might otherwise apply.
15.6 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.
15.7 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.
15.8 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.
15.9 Taxes. Licensee acknowledges that the License granted herein may be
subject to possessory interest taxes. Licensee shall have the sole obligation to pay any
taxes, fees and assessments, plus applicable penalties and interest, which may be
imposed by law and arise out of Licensee's License hereunder. Licensee shall indemnify,
defend and hold harmless City against any and all such taxes, fees, penalties or interest
assessed, or imposed against City hereunder.
15.10 No Third Party Rights. The Parties do not intend to create rights in or grant
remedies to, any third party as a beneficiary of this Agreement, or of any duty, covenant,
obligation or undertaking established herein.
15.11 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.
Newport Bay Conservancy Page 6
15.12 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.
[SIGNATURES ON NEXT PAGE]
Newport Bay Conservancy Page 7
IN WITNESS WHEREOF, the parties have caused this License to be executed on
the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'4 OFFICE
Date: '� a
• -
Rarp
City Attorney
ATTEST:
Date: c3 7iZ
By. Q/t
Leilani I. Brown
City Clerk
Attachments:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:_ 2l'72 I k` _
By: e.\C
Da ff
City Manager
LICENSEE: NEWPORT BAY
NATURALISTS AND FRIENDS, a
California non-profit public benefit
corporation doing business as ("DBA")
NEWPORT BA CONSERVANCY
Date: 2, 21 )t
1 I
By.
Peter Bryant
President
Date:
By�!,`X
Pamela Winkler
Secretary
[END OF SIGNATURES]
Exhibit A: Depiction of CDFW Area and License Area
Exhibit B: Insurance Requirements
Newport Bay Conservancy Page 8
EXHIBIT A
DEPICTION OF PROPERTY AND LICENSE AREA
Newport Bay Conservancy Page A-1
EXHIBIT B
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, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident 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.
Licensee shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its officers, agents,
employees and volunteers.
C. General Liability Insurance. Licensee 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. The policy
shall cover liability arising from premises, operations, personal and
advertising injury, and liability assumed under an insured contract (including
the tort liability of another assumed in a business contract) with no
endorsement or modification limiting the scope of coverage for liability
assumed under a contract. The commercial general liability insurance must
include coverage for sexual abuse/molestation and corporal punishment.
D. 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
Newport Bay Conservancy Page B-1
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 each accident.
4. Worker's Compensation Insurance Requirements. The policies are to contain, or
be endorsed to contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its elected or appointed officers, agents, officials, employees and
volunteers 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 from each of
its subcontractors.
B. Additional Insured Status. All liability policies including general liability,
excess liability and automobile liability, if required, but not including
professional liability, shall provide or be endorsed to provide that City and
its officers, officials, employees, and agents shall be included as insureds
under such policies.
C. Primary and Non -Contributory. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days notice of cancellation (except for nonpayment for which ten
(10) calendar days notice is required) or nonrenewal of coverage 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. Insurance certificates
and endorsement must be approved by City's Risk Manager prior to
commencement of performance. 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. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
Newport Bay Conservancy Page B-2
insurance required by giving Licensee sixty (60) calendar days advance
written notice of such change.
C. 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.
D. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Section 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.
E. Self-insured Retentions. Any self-insured retentions must be declared to
and approved by City. City reserves the right to require that self-insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
F. 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.
G. Timely Notice of Claims. Contractor shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Contractor's
performance under this Contract, 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.
H. Licensee's Insurance. Licensee shall also procure and maintain, at its own
cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of the
work.
Newport Bay Conservancy Page B-3
CERTIFICATE OF INSURANCE
CHECKLIST
City of Newport Beach
This checklist is comprised of requirements as outlined by the City of Newport Beach. *
Date Received: 3/19/18 Dept./Contact Received From: Raymund
Date Completed: 3/19/18 Sent to: Raymund By: Jan
Newport Bay Naturalists & Friends dba: Newport Bay
Company/Person required to have certificate: Conservancy
Type of contract:
L GENERAL LIABILITY
EFFECTIVE/EXPIRATION DATE: 8/15/17 — 8/15/18
A.
INSURANCE COMPANY: Nonprofits Insurance Alliance of CA
B.
AM BEST RATING (A-: VII or greater): A / VIII
C.
ADMITTED Company (Must be California Admitted):
Is Company admitted in California?
® Yes ❑ No
D.
LIMITS (Must be $1 M or greater): What is limit provided?
$INV$2M
E.
ADDITIONAL INSURED ENDORSEMENT—please attach
® Yes ❑ No
F.
PRODUCTS AND COMPLETED OPERATIONS (Must
include): Is it included? (completed Operations status does
not apply to Waste Haulers or Recreation)
® Yes ❑ No
G.
ADDITIONAL INSURED FOR PRODUCTS AND
COMPLETED OPERATIONS ENDORSEMENT (completed
Operations status does not apply to Waste Haulers)
❑ Yes ❑ No
H.
ADDITIONAL INSURED WORDING TO INCLUDE (The City
its officers, officials, employees and volunteers): Is it
included?
® Yes ❑ No
I.
PRIMARY & NON-CONTRIBUTORY WORDING (Must be
included): Is it included?
® Yes ❑ No
J.
CAUTION! (Confirm that loss or liability of the named insured
is not limited solely by their negligence) Does endorsement
include "solely by negligence' wording?
❑ Yes ® No
K.
ELECTED SCMAF COVERAGE (RECREATION ONLY):
® N/A ❑ Yes ❑ No
L.
NOTICE OF CANCELLATION:
❑ N/A ® Yes ❑ No
IL AUTOMOBILE
LIABILITY
EFFECTIVE/EXPIRATION DATE: 8/17/17-8/17/18
A.
INSURANCE COMPANY: Nonprofits Insurance Alliance of CA
B.
AM BEST RATING (A-: VII or greater) A / VIII
C.
ADMITTED COMPANY (Must be California Admitted):
Is Company admitted in California?
® Yes ❑ No
D.
LIMITS - If Employees (Must be $1M min. BI & PD and $500,000
UM, $2M min for Waste Haulers): What is limits provided?
$1,000,000
E
LIMITS Waiver of Auto Insurance / Proof of coverage (if individual)
(What is limits provided?)
N/A
F.
ADDITIONAL INSURED WORDING:
❑ N/A ❑ Yes ❑ No
G.
PRIMARY & NON-CONTRIBUTORY WORDING:
❑ N/A ❑ Yes ❑ No
H.
HIRED AND NON -OWNED AUTO ONLY:
❑ N/A ® Yes ❑ No
I.
NOTICE OF CANCELLATION:
❑ N/A 0 Yes ❑ No
III. WORKERS' COMPENSATION
EFFECTIVE/EXPIRATION DATE: 8/21/17 — 8/21/18
A.
INSURANCE COMPANY. State Compensation Insurance Fund
B.
AM BEST RATING (A-: VII or greater): Not Rated
C.
ADMITTED Company (Must be California Admitted):
®Yes
❑ No
D.
WORKERS' COMPENSATION LIMIT: Statutory
® Yes
❑ No
E.
EMPLOYERS' LIABILITY LIMIT (Must be $1 M or greater)
$1,000,000
F.
WAIVER OF SUBROGATION (To include): Is it included?
® Yes
❑ No
G.
SIGNED WORKERS' COMPENSATION EXEMPTION FORM:
® N/A ❑ Yes
❑ No
H.
NOTICE OF CANCELLATION:
❑ N/A ® Yes
❑ No
ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED
IV. PROFESSIONAL LIABILITY
V POLLUTION LIABILITY
�E1�11��Lq:�9:169.1
HAVE ALL ABOVE REQUIREMENTS BEEN MET?
IF NO, WHICH ITEMS NEED TO BE COMPLETED?
® N/A ❑ Yes ❑ No
® N/A ❑ Yes ❑ No
® N/A ❑ Yes ❑ No
® Yes ❑ No
Agent of Alliant Insurance Services Date
Broker of record for the City of Newport Beach
RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than _
Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑ Yes ❑ No
Reason for Risk Management approval/exception/waiver:
Approved:
Risk Management
* Subject to the terms of the contract.
Date