HomeMy WebLinkAbout13 - License Agreement for Operation of a Coastal Observation System at the Newport PierQ �EwPpRT
CITY OF
s NEWPORT BEACH
`q44:09 City Council Staff Report
January 28, 2025
Agenda Item No. 13
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 - 949-644-
3236, Iwooding@newportbeachca.gov
TITLE: License Agreement with The Regents of the University of California
for Operation of a Coastal Observation System at the Newport Pier
ABSTRACT -
Under an agreement with the City of Newport Beach, the Regents of the University of
California (UCSD) installed an ocean observation system at the Newport Pier around
2005, to measure and monitor ocean water. In addition to renewing the term of the
agreement with the City, UCSD has requested to install additional monitoring equipment
and signage about the system at the Newport Pier. For the City Council's consideration
is a new License Agreement (License) (Attachment A) with UCSD, for use of area under
the deck of the Newport Pier for a term for 10 years, including a request to waive City
Council Policy F-7 for less than fair market value rent.
RECOMMENDATIONS:
a) Find this project is exempt from the California Environmental Quality Act (CEQA)
pursuant to Section 15301 (Existing facilities) and Section 15302 (Replacement or
Reconstruction) of the CEQA Guidelines, California Code of Regulations, Title 14,
Chapter 3, because this project has no potential to have a significant effect on the
environment;
b) Authorize the City Manager and City Clerk to execute the License Agreement between
the City of Newport Beach and The Regents of the University of California for
operation of a coastal observation system on City property, on the Newport Pier
located at 1 Newport Pier, in a form substantially similar to the amendment attached
to the staff report; and
c) Approve a waiver of City Council Policy F-7 — Income and Other Property based on
the findings contained in this staff report and the Agreement, that charging less that
fair market rent promotes the City's goals to provide essential or unique services to
the public, that cannot otherwise be provided if full market rates were charged.
DISCUSSION:
The Newport Pier is located on the Balboa Peninsula at 21 St Street and West Ocean Front.
The City -owned pier projects over 1,000 linear feet into the Pacific Ocean from the historic
McFadden Square.
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License Agreement with The Regents of the University of California for
Operation of a Coastal Observation System at the Newport Pier
January 28, 2025
Page 2
The end of the pier, which was previously developed with a restaurant, includes an
under -pier deck that provided utility access to the restaurant and an emergency access
ramp for Newport Beach Lifeguard operations. With the significant length of Newport Pier,
which extends several hundred feet beyond the average break point for waves, the
location is ideal for monitoring nearshore underwater ocean activity.
History
Approximately in 2005, UCSD or the University of California San Diego, a consortium
member of the Southern California Coast Ocean Observations Systems (SCCOOS),
partnered with the City to obtain access to install sensors underwater at the end of the
pier to collect data and measure ocean water temperature, salinity, pH, Oxygen,
conductivity, chlorophyll, and water density and pressure. The equipment is operated by
the Scripps Institution of Oceanography in collaboration with the Orange County
Sanitation District. Three other ocean piers in Southern California gather the same
information which is used to support ocean health and coastal -ocean water quality by
coastal managers, agencies, researchers, and the general public. The data is available
to the public via SCCOOS website — https://sccoos.org/autoss/.
SCCOOS Automated Shore Stations
The SCCOOS Aulomated Shore Station (SASS) Program is an Integrated network providing critical long-term measurements since 2005 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 automated shore stations consist of a suite of sensors that are attached
In four piers in the Southern California Bight measuring temperature, salinity, chlorophyll, and water level at frequent intervals in the nearshore coastal ocean.
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License Agreement with The Regents of the University of California for
Operation of a Coastal Observation System at the Newport Pier
January 28, 2025
Page 3
The information is also used by the City to prepare the Newport Beach Lifeguard Surf
Report, a recording of the current beach conditions which is updated twice daily at
7:30 a.m. and 2 p.m. and can be accessed by calling 949-644-3171.
UCSD, under the proposed Agreement, requests to continue its use of approximately
9 square feet of the under -pier deck at the pier for its monitoring equipment. Additionally,
the Agreement would allow UCSD to install two new interpretive signs to provide the
public access to the current ocean temperature data via QR code, and two new equipment
cabinets increasing the total license area footprint to approximately 16 square feet. City
staff and UCSD have negotiated the terms of the Agreement and submit it for the City
Council's consideration.
City Council Policy F-7, Income and Other Property
Pursuant to City Council Policy F-7 — Income and Other Property (Policy) (Attachment B),
when less than fair market value rent is received and a waiver is requested, staff believes
that there is a public benefit to the data that is being collected. Therefore, the following
findings can be made:
1. UCSD provides an essential or unique service to the community that cannot
otherwise be provided if full market rates were charged; and
2. With the proposed consideration for the License Agreement at less than fair market
value, the use promotes the City's goals to provide a public benefit to the
community, is a marine -related service, and is of statewide benefit and may not
otherwise be provided if full fair market value of the property was required.
License Agreement
The proposed terms of the License Agreement, for use of approximately 16 square feet
at the pier, are summarized below:
1. The term shall commence on January 28, 2025, and shall terminate the earlier part
of the 101" year after completion of installation of the new observation system
equipment, or June 30, 2035.
2. In lieu of payment of a license fee, UCSD shall provide to the City all information
gathered by the observation system.
3. UCSD shall not interfere with the City's access to the under -pier deck and shall
ensure it is maintained in a neat and clean manner. Additionally, UCSD shall
ensure its observation system does not cause any direct or indirect interference
with the City's communications equipment.
4. The license area will be accepted as -is and UCSD shall be responsible for the cost
of all utility services necessary for the operation of its observation system.
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License Agreement with The Regents of the University of California for
Operation of a Coastal Observation System at the Newport Pier
January 28, 2025
Page 4
5. UCSD shall obtain any permits or approvals necessary for the installation and
operation of its observation system equipment.
6. UCSD shall provide certificates of insurance to the satisfaction of the City's risk
manager, naming the City as additional insured.
The License has been reviewed by the City Attorney's Office and has been approved as
to form. UCSD has reviewed and approved the terms of the License.
FISCAL IMPACT:
There is no fiscal impact related to this item. Any utility reimbursements will be a
pass -through of costs and will not result in a net revenue or expenditure to the City.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this project is exempt from the California
Environmental Quality Act (CEQA) pursuant to Section 15301 (Existing facilities) and
Section 15302 (Replacement or Reconstruction) of the CEQA Guidelines, California Code
of Regulations, Title 14, Chapter 3, because this project has no potential to have a
significant effect on the environment.
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 — License Agreement
Attachment B — City Council Policy F-7, Income and Other Property
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Attachment A
License Agreement
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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, 2026 ("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
_ her_ein_b_y_this r_ef_e.r_enc_e_(coll_ecti_v_ely_, the"facilities--inth-e_Li r se 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
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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 Constr_uction,_installation oper_ation,_including_maintenance-and_r_epair,_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
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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,cl_ean_and fr_ee_fr-om-graffiti,drt
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
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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
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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
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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
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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
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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.
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
-� maz�e�o—propefty)Zlemands,--obligatians 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
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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.
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");
th�Haza-rdo-as—Mat-e-r�al&--Transpzyrtation—Act 49—U-SC—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
13-14
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
13-15
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.
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.
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
13-16
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
clrander 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
13-17
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
13-18
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: 1:2 01y1
By: �OAmL 1' 1
Aaron (I.Harp ��I►o ��
City Attorney
ATTEST:
Date:
Bv:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
A California municipal corporation
Date:
Bv:
Grace K. Leung
City Manager
UCSD: Regents of the University of
California, a California public corporation
Date:
Bv:
Jeff W. Graham
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
13-19
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
Dater
By: �oo
Aaron C Harp W16 Wtb
City Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
Attachments: Exhibit A
Exhibit B
Exhibit C
Exhibit D
CITY OF NEWPORT BEACH,
A California municipal corporation
Date:
Bv:
Grace K. Leung
City Manager
UCSD: Rege is of the University of
Californi , a alifor is blic corporation
Date:
� I
Je. .�G m
E utivb erector — Real Estate
[END OF SIGNATURES]
Newport Pier Depiction
License Area Depiction
Facilities Description and Depiction
Insurance Requirements
License Agreement UCSD Newport Pier
Page 14
13-20
EXHIBIT A
NEWPORT PIER DEPICTION
License Agreement UCSD Newport Pier
Page A-1
13-21
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
13-22
lower level
#3 Proposed Location of new IFCB cabinet
Dimensions of each cabinet in inches:
IFCB 60-72"H x 24"Lx 18-24"D
SASS 36"H x 36"L x 13 -26"D
HF radar 38"H x 34"L x 24"D
TN
60"
53"
QNo
change to current
N
location of cabinets.
U
Only adding new IFCB
u-
cabinet between
SASS and HF radar
L
-0
cabinet. N
M
Proposing new SASS
cabinet with 26"
depth instead of
current 13".
16'
ramp
License Agreement UCSD Newport Pier
Page B-2
13-23
License Areas for Interpretive Signs
License Agreement UCSD Newport Pier Page B-3
13-24
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#3001T522) 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
13-25
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
13-26
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
13-27
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
13-28
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
13-29
Appendix A to Exhibit A
AutoCAD drawings and dimension of SASS cage
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License Agreement UCSD Newport Pier Page C-6
13-30
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
13-31
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
13-32
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
13-33
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
13-34
Attachment B
City Council Policy F-7
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F- 7
INCOME AND OTHER PROPERTY
The City owns and manages an extensive and valuable assortment of property including streets, parks,
beaches, public buildings and service facilities. The City also owns or ground leases and/or operates a yacht
basin, resort hotel and apartment property, a luxury residential development and various other income -
producing properties. Much of the income property is tidelands, filled tidelands or waterfront.
Unencumbered fee value of income property is substantial.
As owner/manager of property, the City is the steward of a public trust, and state law requires the City to
maximize its returns on state -managed property or be subject to a charge of making a gift of public funds.
Nevertheless, the City Council recognizes the importance of this property not only as a revenue generator,
but also as a means to provide otherwise financially less feasible uses and facilities that benefit the
community.
In managing its property, the City will continually evaluate the potential of all City owned property to
produce revenue. This may include leasing or licensing unused land, renting vacant space, and establishing
concessions in recreation areas or other similar techniques. The City Council will evaluate the
appropriateness of establishing new income generating opportunities on City controlled areas using sound
business principles and after receiving input from neighbors, users and the public.
The policy of the City Council is that income and other property be held and managed in accordance with
the following:
A. Whenever a lease, license, management contract, concession or similar action regarding income
property is considered by the City, an analysis shall be conducted to determine the maximum or
open market value of the property. This analysis shall be conducted using appraisals or other
techniques to determine the highest and best use of the property and the highest income generating
use of the property.
B. All negotiations regarding the lease, license, management contract, concession, or similar action
regarding income property shall include review of an appraisal or analysis of the use being
considered for the property conducted by a reputable and independent professional appraiser, real
estate consultant, or business consultant.
C. The City shall seek, whenever practical and financially advantageous, both in the short and long
term, to operate or manage all property and facilities directly with City staff or contractors, provided
staff have the expertise needed to competently do so, or to oversee the work of contractors.
D. In most negotiations regarding the lease, license, management contract, concession, or similar action
regarding an income or other property, the City shall seek revenue equivalent to the open market
value of the highest and best use; and, whenever practicable the City shall conduct an open bid or
proposal process to ensure the highest financial return.
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F- 7
E. However, in some circumstances the City may determine that use of a property by the public for
recreational, charitable or other nonprofit purpose is preferred and has considerable public support,
in which case the City may determine that non -financial benefits justify not maximizing revenue
from such property. In such circumstances, the City has a vested interest in ensuring that the lessee
of such property operates the activities conducted on or from the property in the manner that has
been represented to the City throughout the duration of any lease or contract with the City.
F. Whenever less than the open market or appraised value is received or when an open bid process is
not conducted, the City shall make specific findings setting forth the reasons thereof. Such findings
may include but need not be limited to the following:
The City is prevented by tideland grants, Coastal Commission guidelines or other restrictions
from converting the property to another use.
2. Redevelopment of the property would require excessive time, resources, expertise and costs,
which would outweigh other financial benefits.
3. Converting the property to another use or changing the operator, manager, concessionaire,
licensee, or lessee of the property would result in excessive vacancy, relocation or severance
costs, real estate commissions, tenant improvement allowances, expenses or rent
concessions which would outweigh other financial benefits.
4. Converting residential property to another use or opening residential leases to competitive
bid would create recompensable liabilities and other inequities for long-term residents.
5. The property provides an essential or unique service to the community or a clearly preferred
use that enjoys substantial support in the community that might not otherwise be provided
were full market value of the property be required.
6. The property serves to promote other goals of the City such as affordable housing,
preservation of open space, uses available to the public or marine related services.
G. Generally, lengths of licenses, leases, management contracts, concessions, or similar agreements
will be limited to the minimum necessary to meet market standards or encourage high quality
improvements and will contain appropriate reappraisal and inflation protection provisions. Also, all
agreements shall contain provisions to assure complete audits periodically through their terms.
H. All negotiations regarding the license, lease, management contract, concession or similar action
regarding income property shall be conducted by the City Manager or his/her designee under the
direction of any appropriate City committees.
I. To provide an accurate accounting of actual net revenues generated by the City's income property,
all costs directly attributable or allocable to the management of a specific income property shall be
charged against the gross revenues collected on that property in the fiscal year the costs are incurred.
Costs so chargeable include, but are not limited to, property repairs and maintenance, property
appraisals, and consultant fees, as authorized by the City Council, City Manager, or by this Income
Property Policy.
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F- 7
J. The City Manager or his/her designee is authorized to sign a license, lease, management contract,
concession, or similar agreement or any amendment thereto, on behalf of the City. Notwithstanding
the foregoing, the City Manager or his/her designee, or a City Council member, may refer any
license, lease, management contract, concession or similar agreement or any amendment thereto, to
the City Council for its consideration and/or action.
K. The City's portfolio of quality income producing properties adds an element of diversification to a
portfolio otherwise invested primarily in financial assets. Certain of those income properties are
restricted from sale by their terms of grant, state agency regulations or rules, other federal and state
guidelines, private covenant or agreement or otherwise. For those properties not so restricted from
sale, an analysis shall be prepared to determine the following prior to such income producing
property being offered for sale:
1. The maximum open market value of the City's interest in the property in its as is condition.
2. If the property is in an important location, a determination of the possible future
consequences of the City no longer controlling that property.
3. If the current rent is contractually low and significant rent increases are likely within a finite
period.
4. The likelihood of significant increases in the ability of the property to generate income after
the expiration of any current lease of the property.
5. The likelihood of a lease extension being requested by the tenant and the ability to
substantially increase rents or require significant improvements to enhance the utility and
the value of the property as consideration for granting such an extension.
6. The value of the revenue stream from (i) lease income over the life of an existing lease and/or
(ii) likely lease revenue if an existing lease were to be renewed or the property re -let to a
different tenant; and/or (iii) lease income from the property if it were to be converted to its
highest and best use, compared with the financial benefits of the use of the proceeds of a sale
and if, considering the totality of the circumstances, such use of the proceeds of a sale is
preferable to retaining the property in question.
History
Adopted F-24 —
7-27-1992
Amended F-24
— 1-24-1994
Amended F-7 —
2-27-1995
Amended F-7 —
2-24-1997
Amended F-7 —
5-26-1998
Amended F-7 —
8-11-2009
Amended F-7 —
5-14-2013
Amended F-7 —
2-12-2019
Amended F-7 —
11-14-2023
3 13-38