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HomeMy WebLinkAbout15 - License Agreement for Operation of a Coastal Observation System at the Newport PierQ �EwPpRT c 9C/FOR TO: FROM: CITY OF NEWPORT BEACH City Council Staff Report September 9, 2025 Agenda Item No. 15 HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL Seimone Jurjis, Assistant City Manager, 949-644-3001, sjurjis@newportbeachca.gov PREPARED BY: Lauren Wooding Whitlinger, Real Property Administrator - 949-644- 3236, Iwooding@newportbeachca.gov TITLE: License Agreement with University of Southern California for Operation of a Coastal Observation System at the Newport Pier ABSTRACT: Under a license agreement executed in 2012, the City of Newport Beach allowed the University of Southern California (USC) to install equipment related to a regional ocean observation system at the Newport Pier. The agreement has since expired and USC has requested to renew the terms of the agreement with the City. In addition, USC has requested to install additional equipment to modernize the system. For the City Council's consideration is a new License Agreement (License) (Attachment A) with USC 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, to charge 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 University of Southern California for operation of a coastal observation system on City of Newport Beach 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 than 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. 15-1 License Agreement with University of Southern California for Operation of a Coastal Observation System at the Newport Pier September 9, 2025 Page 2 DISCUSSION: The Newport Pier (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. 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 the Pier, which extends several hundred feet beyond the average break point for waves, the location is ideal for monitoring nearshore underwater ocean activity. History In 2005, 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. 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 the SCCOOS website — https://sccoos.org/autoss/. The City Council approved a new license agreement with University of California San Diego in January 2025, to allow for its continued use of the Pier for its monitoring equipment. In 2012, the City approved a separate agreement with USC (Attachment B), also a member of SCCOOS, to allow installation of radio wave transmitters on the Pier, as part of a national network of high frequency radar sites. The radar data collected by USC is gathered together with 62 other sites in California and the western United States, as well as other parts of the country, and made available to the public by the National Oceanic and Atmospheric Administration (NOAA) on its website - https://hfradar.ioos.us/hfrnet/. The Pier site allows USC to monitor a radar coverage area as far north as Long Beach, west to part of Catalina Island, and south to San Clemente. The data from the Pier and larger radar network is used by: the United States Coast Guard for search and rescue modeling and operations; by the California Office of Prevention and Response to determine how to deploy assets following an oil spill (e.g., the oil spill off Long Beach in 2021) or other hazardous materials release; by the NOAA for protection and restoration of coastal resources and to support ecosystem management of marine protected areas; by the Marine Exchange in San Pedro to assist with marina navigation; and, for special projects like working with the United States Olympic Sailing Team in advance of the 2028 Los Angeles Olympics. USC requests to extend the term of its use of the Pier for 10 years and to modify its facility by installing a new coastal ocean dynamics applications radar (CODAR) antenna and equipment. The new antenna would serve to automatically calibrate the two older generation antennas existing at the Pier. City staff and USC have negotiated the terms of the License and submit it for the City Council's consideration. 15-2 License Agreement with University of Southern California for Operation of a Coastal Observation System at the Newport Pier September 9, 2025 Page 3 City Council Policy F-7, Income and Other Property Pursuant to City Council Policy F-7 — Income and Other Property (Policy) (Attachment C), when less than fair market value rent is received and a waiver is requested for recreational, charitable or other nonprofit purpose, the City may approve such request when the non -financial benefits justify not maximizing revenue from such property. In this case, staff believes the following findings can be made: 1. USC 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 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 Several key terms from the proposed License, for use of a portion of the under -Pier deck, are summarized below: 1. The term shall commence on September 9, 2025, and shall terminate the earlier of 10 years after completion of installation of the new equipment or June 30, 2035. 2. In lieu of payment of a license fee, USC shall provide to the City all information gathered by the equipment. 3. USC 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, USC shall ensure its equipment does not cause any direct or indirect interference with the City's communications equipment. 4. The license area will be accepted as -is and USC shall be responsible for the cost of all utility services necessary for the operation of its observation system. 5. USC shall obtain any permits or approvals necessary for the installation and operation of its equipment. 6. USC 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. USC 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. 15-3 License Agreement with University of Southern California for Operation of a Coastal Observation System at the Newport Pier September 9, 2025 Page 4 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 — Previous License Agreement Attachment C — City Council Policy F-7 15-4 Attachment A License Agreement 15-5 LICENSE AGREEMENT COASTAL OBSERVATION SYSTEM AT THE NEWPORT PIER This LICENSE AGREEMENT ("Agreement") is entered into between UNIVERSITY OF SOUTHERN CALIFORNIA, a California nonprofit public benefit corporation on behalf of its Department of Biological Sciences ("USC") and the CITY OF NEWPORT BEACH a California municipal corporation and charter city ("City") on this the 91h day of September, 2025 ("Effective Date"). USC 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. USC is a consortium member of the Southern California Coast Ocean Observations Systems ("SCCOOS"). SCCOOS collects and analyzes ocean current data by transmitting radio waves and reflecting them from the ocean's surface. USC desires to maintain such a radio wave transmitter on the Newport Pier. D. On August 1, 2012, City and USC entered into a License Agreement to use that certain portion of the Newport Pier, as further depicted in Exhibit "B" attached hereto and incorporated herein by this reference ("License Area") to allow USC to install a coastal ocean dynamics applications radar ("CODAR") radio wave transmitter and its related equipment, which have been operating since. E. On July 31, 2013, City and USC entered into an Amendment No. One to License Agreement ("Amendment No. 1") to reflect the City's agreement to provide electrical utility services to power to its facilities. F. USC desires to expand its facilities by installing a new CODAR antenna and related equipment that will serve to automatically calibrate the other two existing, older generation antenna as described and depicted in Exhibit C (collectively, the "Facilities"), attached hereto and incorporated herein by this reference in the License Area. 15-6 G. The installation of the Facilities by USC is to facilitate research efforts for SCCOOS's ongoing ocean observing effort and is indefinite with reference to time. USC intends to operate the Facilities as long as there is adequate funding to support the infrastructure and personnel required to maintain the Facilities. H. City and USC desire to enter into this Agreement to memorialize USC's existing use of the License Area and to include in USC'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 USC 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 USC'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 USC 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 USC 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 USC's construction and installation of the Facilities, it is the Parties' intention that USC'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. 2.1 USC shall use the License Area for the sole purpose of constructing, installing, maintaining, securing and operating the Facilities, as further described in Exhibit C. 2.2 Construction, installation, operation, including maintenance and repair, and removal of the Facilities shall be at USC's sole expense. USC shall keep the Facilities free from hazards or risk to the public health, safety or welfare. USC shall provide twenty- four (24) hour telephone notice to the Public Works Department at (949) 270-8159 prior License Agreement USC Newport Pier Page 2 15-7 to performing any maintenance or repair. 2.3 USC shall not make or permit to be made any alterations, additions or 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, USC 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. USC 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 USC. City is not charging a License Fee comparable to the open market or appraised value of the License Area because City finds that USC's use of the License Area provides an essential or unique service to the public. In lieu of a License Fee, USC 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. USC shall not do, nor shall it permit anything to be done that may interfere with the accessibility of the License Area. 5.2. USC 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 USC under this License or by the failure, deterioration, or collapse of the Facilities. 5.3. USC shall, at its sole cost and expense, continually maintain the Facilities in a first-class manner and keep the License Area neat, clean and free from graffiti, dirt and rubbish at all times. USC shall use an anti -graffiti coating on the Interpretive Signs, if any. Graffiti shall immediately be called in to the City's Graffiti Hotline at (949) 644-3333 for removal. License Agreement USC Newport Pier Page 3 15-8 5.4. USC shall repair any damage to the License Area, to the extent such damage is caused by USC or USC Permittees. USC shall immediately notify City 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 USC 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 USC 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 USC does not adequately maintain the Interpretive Sign(s) to City's satisfaction, USC shall remove the Interpretive Sign(s) upon written notice by City. 6. UTILITIES 6.1 If required by City, USC shall be responsible forthe cost of all utility services necessary for the operation of the Facilities, and shall have such utilities installed and/or connected if already installed, and maintained at USC's sole cost and expense (along with all ongoing use charges). If required, USC 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 USC shall obtain electricity for the Facilities through a separate electrical meterwith Southern California Edison, or USC may obtain electricity by tapping into City's power source at the Newport Pier at the License Area. 6.3 If required by City and USC uses City's power, USC 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 USC, may increase or decrease the Utility Use Fee commensurate with costs incurred by City for USC'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, USC 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 License Agreement USC Newport Pier Page 4 15-9 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. 7.2 In the event of any interference with City's police and fire communications, USC shall work with the affected City Department to correct the interference within two (2) hours of City's written or telephone notice to USC. In the event of any interference with City Equipment other than police or fire communications, USC 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 USC is unable to correct the interference to City's satisfaction, USC 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, USC shall submit plans for the proposed changes to City for its review and written approval. USC 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 USC'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 USC equipment located at the License Area forthe duration of the Emergency Situation orfrequency 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 USC shall protect, defend, indemnify and hold City harmless for any such resulting damage, loss, claim or liability. 8.2 USC 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 USC accepts the risk of such power shut off. USC 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 USC 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 License Agreement USC Newport Pier Page 5 15-10 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 USC. All persons entering the License Area under this Agreement do so at their own risk. USC expressly assumes all responsibility for the protection and security of the License Area, USC, USC's employees, volunteers, contractors, subcontractors, invitees, agents, or representatives (collectively, "USC Permittees"), and USC'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 USC 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 USC shall obtain all other licenses, permits and approvals required by federal, state or local governmental agencies necessary for USC to construct, operate, repair and remove the Facilities in the License Area, including but not limited to California Coastal Commission approval, at USC's sole cost and expense. Prior to installation of the Facilities, if required by federal, state or local government agencies, USC must obtain a valid Coastal Development Permit or De Minimis Waiver. USC may not install the Facilities until a valid coastal development permit or other authorization has been issued by the California Coastal Commission, if required by such agency. 11. REDEVELOPMENT OF PROPERTY If City's redevelopment of the Newport Pier or the License Area during the Term will materially interfere with USC's use of the License Area, then the Parties agree to terminate this Agreement. City shall provide USC with written notice of termination of this Agreement at least ninety (90) 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, USC 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 USC 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 USC Newport Pier Page 6 15-11 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 USC'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 USC's use of the License Area as provided herein. 15.2 USC understands, acknowledges and agrees that any and all authorizations granted to USC 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. USC'S RETENTION OF TITLE Title to the Facilities placed at the License Area by USC shall be held by USC or its equipment lessors, successors, or assigns. The Facilities shall not constitute or be considered fixtures. USC has the right to remove any or all of the Facilities at its sole expense at any time. 17. DEFAULT; REMEDIES USC'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 USC, 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 USC shall not be in default or material breach of this Agreement if USC has commenced to cure such prospective default within the thirty (30) day period and diligently proceeds to completion. City may terminate this Agreement and USC's use of the License Area upon USC's failure to cure the default or breach. Such termination shall be effective upon City's providing written notice to USC. 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 USC is personal to USC 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 Agreement or the License granted hereunder, voluntarily or by operation of law, shall License Agreement USC Newport Pier Page 7 15-12 automatically terminate this Agreement, unless USC has obtained the prior written consent of City. 19. TAXES USC 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 USC, 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 USC. 20. SURRENDER Upon expiration or termination of this Agreement, USC 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. USC shall also leave the License Area free of Hazardous Substances, as required by Section 24. Should USC fail to restore the License Area to a condition described above, City may perform such work or have such work performed by others and USC shall reimburse City for all direct costs associated with such work upon receipt of an invoice for such costs. Any property USC fails to remove or abandons shall, at City's election, become City's property at expiration or termination. City shall owe no compensation to USC 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, USC shall comply with the surrender obligations of Section 20 above. 22. INDEMNIFICATION 22.1 Irrespective of any insurance carried by USC for the benefit of City, and to the fullest extent permitted by law, USC shall indemnify, defend, and hold harmless City, its elected or appointed officers, agents, officials, employees, and volunteers (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, California Coastal Commission enforcement actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a "Claim" and, collectively, "Claims"), but only in proportion to and to the extent such Claims are caused by or arises from USC's operations conducted under this Agreement or the implementation hereof and for any damages to property or injuries to persons, including accidental death, which may be License Agreement USC Newport Pier Page S 15-13 caused by any of USC's activities under this Agreement, whether such activities or performance thereof be (i) by USC, or (li) USC'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 USC and USC's officers, employees, invitees, guests, and/or agents. 22.2 Notwithstanding the foregoing, nothing herein shall be construed to require USC 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 USC. This indemnity Section shall survive the termination or expiration of this Agreement. 23. INSURANCE Without limiting USC's indemnification of City, and prior to undertaking any activity pursuant to the License, USC 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, USC 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 (1) 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. USC 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. ("CERI_CA"); the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; the Resource Conversation and Recovery Act, 42 U.S.C. Section 6901 et seq. ("RCRA"); the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et seq.; the California Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq.; the California Hazardous Substance Account Act, Health and Safety Code Sections 25330 et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety Code Sections 25249.5 et seq.; California License Agreement USC Newport Pier Page 9 15-14 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; (il) 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 USC set forth in this Agreement, USC 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 USC, caused by or arising from the storage or deposit of Hazardous Substances on or under the License Area by USC. 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 USC 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, USC 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 USC. License Agreement USC Newport Pier Page 10 15-15 25. COMPLIANCE WITH LAWS USC, 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 a[I Americans with Disability Act requirements, applicable zoning ordinances, building codes and environmental laws. USC 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 USC shall authorize USC or any of its employees, agents or contractors to act as agent, contractor, joint venture or employee of City for any purpose. 27. NO THIRD PARTY BENEFICIARIES City and USC do not intend, by a provision of this Agreement, to create in any third party, any benefit or right owed by one Party, under the terms and conditions of this Agreement, to the other Party. 28. NOTICES All notices and other communications required or permitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: (a) To City: City of Newport Beach Attn: Real Property Administrator 100 Civic Center Drive P.O. Box: 1768 Newport Beach, CA 92660 (b) To USC: Attn: Matthew Ragan University of Southern California 3616 Trousdale Pkwy AHF 107 Los Angeles, CA 90089-0371 License Agreement USC Newport Pier Page 11 15-16 Phone: (213) 740-5153 (c) USC's emergency contacts: Name: Matthew Ragan Title: Project Manager 24 hour phone number: (949) 232-7202 Email: mragan@usc.edu 29. CITY BUSINESS LICENSE USC 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 USC 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, USC 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 USC 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 USC'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 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. License Agreement USC Newport Pier Page 12 15-17 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 USC 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. USC 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 USC Newport Pier Page 13 15-18 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: %�11.51 xt3 By: Aaro �C. Harp City Attorney ATTEST: Date: By: Molly Perry Interim City Clerk CITY OF NEWPORT BEACH, A California municipal corporation Date: By: Grace K. Leung City Manager USC: UNIVERSITY OF SOUTHERN CALIFORNIA, a California nonprofit public benefit corporation Date: By: Dr. Mark K. Todd Vice Provost for Academic Operations [END OF SIGNATURES] Attachments: Exhibit A — Newport Pier Depiction Exhibit B License Area and Facilities Description and Depiction Exhibit C — New Facilities Description and Depiction Exhibit D — Insurance Requirements 15-19 EXHIBIT A NEWPORT PIER DEPICTION License Agreement USC Newport Pier Page A-1 15-20 EXHIBIT B LICENSE AREA AND FACILITIES DESCRIPTION AND DEPICTION LICENSE AREA: Drawing depicting the License Area from above the Newport Pier, showing the location of the antennae and conduit that run from the antennae to the enclosure under the pier: RE (WEST) 70 RESTAURANT STAIRWAY ELECTRONICS ENCLOSURES SEE DWG.NO. "Enclosures" o.xtlrau.rr rm tcnu.rcm MKr011 •_ 4:. • .1 GI aaxr; •_ DOI aarnv rfprcfl.rr aap Coukfc�; H II IAWUC•i4•fJHUIII+L 310 SS. e461 A: rraer.c--, r, na •t• % n nnrn nr i r.•.rvn o cxrmav u�ra£.p r!ll nlf�, ff! ]� •1 I+rN1 C4 M1'� I I Irl. vr.,,1 ar xf a 1 nrl¢.1•..aea.: CY U_Ulnc?1.11 U. ANTENNA SYSTEM MOUNTED TO LIGHT POLE SEE DWG.NO. `Antenna Mount" 3" PVC CONDUIT, RUN BY THE CITY OF NEWPORT BEACH (EXISTING) cfawlf v+ae ,tilism s'�+frr.f IRE: NEWPORT PIER USC CODAR MOUNT 1an:L'F]717 I CQrnal Car O€11EvfFCR1 E Ao- PURIC v+pcYS CE-t. MATH -Fee PAGAN 213 Jt0.5I53 SCE`'FS: iisk NafAAD wa:2—W-3 SIZE A DWG. NO. RfV Pier Layout SCAU: WIIGM.- SHEET I Of 9 License Agreement USC Newport Pier Page B-1 15-21 Drawing depicting the License Area from below the Newport Pier: NEV+'PORT PIER CABINETS License Agreement USC Newport Pier Page B-2 15-22 FACILITIES: The following drawings and photographs depict USC's current Facilities at the License Area: 1. Drawing detailing the Facilities under the Newport Pier. (Please note that the item labeled "Previously Existing Shore Station" is not a part of USC's Facilities, but belong to University of California, San Diego/Scripps under a similar license agreement for a coastal observation system): [ENCLOSURE: t` £IC SOLUTIONS I11C 1-25 STOU: OR 13Ai:4II1�I£i!, PA 189` i 2I5-•143-5190 F.IC /S:;L7cI a>7x2•i3iP3:-Ut1I'vC'SAMLIEC,G Oudl-Access, Ficor-cou nt Enclovure, 35' %Lqh Y 21' wldd X 32' NT_:a.A Ix III door ns-, cor.cl;urstlon, r'ctd@d typt. 304 Stainlees Stoal C6 :f.t ruCC lOn AIR CONDITIONER: 7001trcnlc, Inc. Htmllton n e nu-? P. 0. Box ,300 Aope.••_11, III 05525 0300 US 1:It4-IC3P21P InL•39rlty Se11Qe 21 ttes_4 414X Air-Cnnl�_d rmwcnu r uacoucvrx •I 11111wn:4 rl'ar.". r/br. •tYa+1 �fH'+A IK4 1111 s, Nlr •fYirt 1 cui".t.Y,lt4 H 11 • t. ,rust:B. 5 DETAIL D SCALE l : 60 TAIRS TO BOTTOM LEVEL OF PIER PREVIOUSLY EXISTING SHORE STATION, ENTIRELY STAINLESS STEEL CONSTRUCTION ALL MOUNTING WILL BE DONE WITH STAINLESS STEEL STRUT CHANNEL AND HARDWARE (BOTH VERTICALLY AND HORIZONTALLY). FOR REFERENCE SEE ATTACHED MCMASTER-CARR PART NO.33085T26 Ilf.¢!x� f{at5 rP+wra 'Ii1.l IFE/ISM ernrt�a I Sf1lE: f f crc- er.0 C7g 6u,1.•:.grJ I NEWPORT PIER USC MOUNT 316 SS. fZ61 AL ccuT.tn " t;E'N•pp,T: SCCCHEA CHHOI r tSC: f.IAQC•�°1•! PAGAN SUE IDY/G. NO. P,FV q antenna mount 1. 2 2 a 740$153 Scr�t'i: usAHAlAIrT3 E-56 ar—W3 SCALE: Y1C.GHr: SHEET 3 Of 9 License Agreement USC Newport Pier Page B-3 15-23 2. Drawing detailing the location of the electrical panel and conduit which runs under the Newport Pier (above the boat ramp) to the License Area: ELECTRICAL CONDUIT DETAIL PANEL EXISTING PVC ELECTRICAL CONDUIT WIRE CONDUCTOR SIZE # 12 SYSTEM TOTAL DRAW 16A BREAKER POSITION 7. LABEL-UCI T PANEL fD W A/C 2, SEE'PANEL DETAIL DETAIL E SCALE 1 : 100 Conduit runs from the corner of the Newport Pier where the antennae are located to the stainless -steel enclosure which contain the cables to the antennae. Conduit runs from the utility closet to the stainless -steel enclosure above the boat ramp under the pier, which contains the power to the system. Cables run from the location of the small antennae behind the utility closet to the stainless -steel enclosure, which are for GPS and cell phone communication for data transmission. USC will add one (1) additional antenna that will be used for auto calibrating the antennae. License Agreement USC Newport Pier 15-24 I Photograph depicting current Facilities under the Newport Pier: 4. Photograph from the side of the Newport Pier behind the utility closet, showing two (2) currently installed small antennae where USC plans to add a third (3,d) additional antenna: License Agreement USC Newport Pier Page B-5 15-25 5. Facility specifications for CODAR antennae: radio antenna gx6fiications tr•••y [ M%WW .i tnum Viecavc smtcmns • Ore r • c mmI 6*ud a I • 1CW4'a"[Lew nuI[cracda1r • trio W4IhCi-PWd C WAuWft • TRAW baprOL 0'6624*M'I )rJ • Xsgmwu - IOW wr[u AC uk-Al lli7;AWion oou&tk= • �. iCaS W 0.�� �L iiw �l�J� rail• • MAdc 6dd wf WWW Eiaw R to MCI • Arm Marwrfr rinsdeWricbmi AC pmew awn" signal spe6fications • OMPUI Tr&-&v K Row" h-W pMk +,W MVMW • Op —no hag-wcr 24's7 MNt • LbdWs f� PeW Smp F""v r cult • IMW6 Iq-ft- beg-7 4 4111# • S-,V W1dk r S -g- kit OWK4 • TrriSINJ Wwrdtk rs3v-s�o kifx fa .30de iq •AAMMaim UP64 • c--r A-#x *' License Agreement USC Newport Pier Page B-6 15-26 EXHIBIT C NEW FACILITIES DESCRIPTION AND DEPICTION NEW FACILITIES: USC's New Facilities at the Newport Pier will consist of a new generation "CODAR" antenna that will serve to automatically calibrate the two (2) currently existing older generation CODAR antenna that is structurally supported by an existing wooder light pole post as was previously permitted and approved by City. The new CODAR antenna's profile and loading conditions, electrical and structural, to the existing structurally retrofitted light pole post will be similar and lighter in weight. L NEW ANTENNA LOCATION :ISTING NEWPORT PIER License Agreement USC Newport Pier Page C-1 15-27 Drawings of New Facilities at License Area: • t— Dia .46- CLOUDED AREAS IS WHAT PERTAINS TO NEW SCOPE OF WORK fiber i glass whip ry A 3 N � 3 Dia 1_02" At - - t4" 4 36 cmL j ro N G � a � ■ 3 G' w Not to scale u Weight : 76 pounds /Mass: 36 kg Foot anchor: 4 x 5/8" bolts with 6" v4 spacing. V Ci +s m tG: Dwv XnWra Syeaecanonc go it d .t ,1 it RSv SMS: NattO s aM 43mr" l O- l s Mt TR 9 �tr Rx 42 r� — 8- w6uco WNA PART NO. DNG O. WA 1 zTp 18 1i I+�W4z TR 13IYHz Rl( . 3 20C Dwwrq qr ZQ,SW DATE trt; ,5Y ZS 1641-tr License Agreement USC Newport Pier Page C-2 15-28 SPECIFICATIONS OF NEW FACILITIES: The SeaSondet AS400 AnUnFA SWdl-,Atb(%4 tf f•N.}TYf1 f1.f ••�fTf rM�1«7/iiI f.edf W\ •'e Vey •v:fy.K Yd.. �•.. • - WRNtM n �f • t��'3Nfi•f ifr0 IMe+R7p her hue• a.a^. • ... •1111M AMU Gteam t40 ;a M ao.f• a.Af'A4 0" • t�� •Oetuu'•%ft-.O Now S MPWIt fmq..W • MCWbl�vn sr .rr 'Ma• Wlpf �fWr'K1 Cyf • O44ft h -It 0%, FrWO . i A 0* • 04 •y 1 fttOr. SOIL • *NO-* 00t% :Sd Sate tY,T�ir4l • tWd %@Sd lfevlS.ti rw-Fd f1v • MOW e0OW vW"';j License Agreement USC Newport Pier Page C-3 15-29 Utilities The utilities required for operation of the high -frequency radar is an outlet inside the stainless -steel waterproof enclosure. There is also an emergency cutoff switch located next to the enclosure. No new outlets or other utilities are required for the New Facilities or continued operation of the Facilities. Maintenance Maintenance of the high frequency radar equipment is performed by USC on quarterly basis or as needed. The high frequency radar infrastructure is fairly robust and most maintenance is to verify site integrity. Management and Access to Facilities Matthew Ragan is the Principal Investigator for the Facilities and New Facilities on the Newport Pier. He, along with colleagues in the lab, perform the routine maintenance and any repairs if needed. License Agreement USC Newport Pier Page C-4 15-30 EXHIBIT D INSURANCE REQUIREMENTS 1. Provision of Insurance. Without limiting USC's indemnification of City, and prior to commencement of work, USC 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�ln a form reasonably satisfactory to City. USC agrees to provide insurance in accordance with requirements set forth here. If USC uses existing coverage to comply and that coverage does not meet these requirements, USC agrees to amend, supplement or endorse the existing coverage. 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. USC 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, USC 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. USC 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. USC 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. USC shall maintain automobile insurance or self-insurance at least as broad as Insurance Services Office form CA 00 01 covering owned, hired, and non -owned autos bodily injury and property damage for all activities of USC 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. License Agreement USC Newport Pier Page D-1 15-31 D. Pollution Le al Liability and/or Professional Liabilit . USC 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 USC, 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. 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 call upon to contribute to a loss until USC's primary and all excess liability policies are exhausted. 4. Other_ Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverages maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its City Council, boards and commissions, officers, agents, volunteers, employees, and any person or entity owning or otherwise in legal control of the property upon which USC performs the Project and/or Services contemplated by this Agreement or shall specifically allow USC or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. USC hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subcontractors. B. Additional Insured Status. All liability policies including general liability, excess/umbrella liability, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City, its City Council, boards and commissions, officers, agents, volunteers, employees, and any person or entity owning or otherwise in legal control of the property upon which USC performs the Project and/or Services contemplated by this Agreement, shall be included as additional insureds under such policies. License Agreement USC Newport Pier Page D-2 15-32 C. Primary and Non Contributory,. All liability policies including commercial general liability, excess/umbrella liability, pollution liability, and automobile liability shall provide or be endorsed to be primary and noncontributory with respect to City, its City Council, boards and commissions, officers, agents, volunteers, and any person or entity owning or otherwise in legal control of the property upon which USC performs the Project and/or Services contemplated by this Agreement. Any insurance or self-insurance maintained by City shall be excess of USC's insurance and shall not contribute with it. D. Notice of Cancellation. USC shall provide City with thirty (30) calendar days' notice of cancellation or nonrenewal of coverage (except for nonpayment for which ten (10) calendar days' notice is required) for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. USC 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 reserves the right to require complete, certified copies of all required insurance policies, at any time. B. Cit 's Ri ht 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 USC ninety (90) calendar days' advance written notice of such change. C. Right to Review Subcontracts. USC agrees that upon request, all agreements with subcontractors or others with whom USC 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. USC shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and USC 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. License Agreement USC Newport Pier Page D-3 15-33 D. Enforcement of Agreement Provisions. USC acknowledges and agrees that any actual or alleged failure on the part of City to inform USC of non- compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. E. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Exhibit are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If USC maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by USC. Any available proceeds in excess of specified minimum limits of insurance and coverage shall be available to the City. F. Self -insured Retentions. If USC's existing coverage includes a self - insured retention, the self -insured retention must be declared to City. City may review options with USC, which may include reduction or elimination of the self -insured retention, substitution of other coverage, or other solutions. USC agrees to be responsible for payment of any deductibles on their policies. G. City Remedies for Non -Compliance. If USC 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 USC'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 USC or reimbursed by USC upon demand. H. Timely Notice of Claims. USC shall give City prompt and timely notice of claims made or suits instituted that are caused by or arise out of USC's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. I. Coverage not Limited. All insurance coverage and limits provided by USC and available or applicable to this Agreement are intended to apply to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to City or its operations limits the application of such insurance coverage. License Agreement USC Newport Pier Page D-4 15-34 J. Coverage Renewal. USC will maintain the coverage required here as long as USC continues to provide any work under this Agreement. USC 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 USC Newport Pier Page D-5 15-35 Attachment B Previous License Agreement 15-36 J AMENDMENT NO. ONE TO LICENSE AGREEMENT COASTAL OBSERVATION SYSTEM AT THE NEWPORT PIER This AMENDMENT NO. ONE TO LICENSE AGREEMENT ("Agreement") is entered into between The University of Southern California, a nonprofit public benefit corporation on behalf of its Department of Biological Sciences ("Company"), at 3616 Trousdale Parkway, AHF B30, Los Angeles, California, 90089-0371, and the City of Newport Beach, a California municipal corporation and charter city ("City") on this the 31s� day of July, 2013 ("Commencement Date"). Company and City are each a "Party" and together the "Parties" to this Agreement. RECITALS A. City is the owner of the Newport Pier, a public ocean pier, located at the end of McFadden Place in the City of Newport Beach, California, which is more fully depicted by the Pier Depiction attached to the Agreement as Exhibit A (the "Pier"). B. Company is a consortium member of the Southern California Coast Ocean Observations Systems ("SCCOOS"). SCCOOS collects and analyzes ocean current data by transmitting radio waves and reflecting them from the ocean's surface. C. On August 1, 2012, City and Consultant entered into a License Agreement ("Agreement") to place a radio wave transmitter on the Pier ("Facilities"). D. City desires to enter into this Amendment No. One to reflect the City's agreement to provide electrical services for the Facilities. E. City and Company mutually desire to amend the Agreement, as provided Below. NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. UTILITIES Section 11 of the Agreement is hereby amended in its entirety and replaced with the following: "Company shall not do, nor shall it permit anything to be done that may interfere with the accessibility of the License Area. The electrical services to the Facilities shall be provided for by the City." 2. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] 15-37 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in duplicate on the dates indicated below. APPROVED AS TO FORM: OFFICE OF THE C�TY ATTORNEY Date: zF-111 !7 By:_� Aaron C. Harp City Attorney ATTEST: Date:(1'• 1 c By: 1 Leilani I. Brown City Clerk p'IO SV-* CITY OF NEWPORT BEACH, A California municipal corporation Date: 1:�)') I% I'Z r By: David City Manager COMPANY: The University of Southern California a nonprofit public benefit corporation on behalf of its Department of Biological Sciences Date: By: .077,%V Michael Quick Executive Vice President [END OF SIGNATURES] 15-38 LICENSE AGREEMENT SL COASTAL OBSERVATION SYSTEM (� AT THE NEWPORT PIER E� i" This LICENSE AGREEMENT ("Agreement") is entered into between The University of Southern California, a nonprofit public benefit corporation on behalf of its Department of Biological Sciences ("Company"), at 3616 Trousdale Parkway, AHF B30, Los Angeles, California, 90089-0371, and the City of Newport Beach, a municipal corporation and charter city ("City") on this the 1 5f _ day of - v Udt 2012 ("Commencement Date"). Company and City are each a "Party" and together the "Parties" to this Agreement. RECITALS A. City is the owner of the Newport Pier, a public ocean pier, located at the end of McFadden Place in the City of Newport Beach, California, which is more fully depicted by the Pier Depiction attached hereto as Exhibit A, which and incorporated herein by this reference (the "Pier"). B. Company is a consortium member of the Southern California Coast Ocean Observations Systems ("SCCOOS"). SCCOOS collects and analyzes ocean current data by transmitting radio waves and reflecting them from the ocean's surface. SCCOOS desires to place such a radio wave transmitter on the Pier. C. Company desires to license from City, on a non-exclusive basis, the right to use. that certain portion of the Pier, as further depicted in Exhibit B attached hereto, and incorporated herein by this reference (the "License Area"). D. Company desires to install, upon the License Area, the radio wave transmitter and its related equipment, as described and depicted in Exhibit C, attached hereto and incorporated herein by this reference (collectively, the "Facilities"). E. City is willing to make the License Area available to Company, subject to the covenants and conditions set forth in this Agreement, on a non-exclusive basis, to facilitate research efforts for SCCOOS. NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. License (a) City grants a non-exclusive license ("License") to Company for the Term of this Agreement, to use the License Area for the uses specified in this Agreement in compliance with the terms of all governmental licenses, permits and approvals required by Federal, State or local governmental agencies, for construction, installation and maintenance of the facilities and utility wires, cables., conduits as necessary to operate the Facilities. All installation and maintenance activities shall be at Company'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 1 15-39 advance in writing by the City. The License is subject to the terms, covenants and conditions hereinafter set forth, and Company covenants, as a material part of the consideration for the License, to keep and perform each and every term, covenant and condition of this Agreement. (b) Company shall be responsible for all maintenance associated with the Facilities, including all associated costs and expenses. Company shall provide twenty- four (24) hour telephone notice to the Harbor Resources Division Manager at (949) 644- 3043 prior to performing any Facilities maintenance or repair. 2. Uses (a) Company shall use the License Area for the sole purpose of constructing, maintaining, securing and operating the Facilities, described in Exhibit C, to transmit and receive radio communication signals on various frequencies (between 24 and 27 MHZ, 150 KHz bandwidth; 900 MHz; WiFi 2.4 GHz or Wireless 3G broadband) to map the ocean surface currents and provide data communications, respectively. The Facilities and its operating frequencies may not be expanded or modified except upon written approval of the Community Development Director, not to be unreasonably withheld, and as may be required by this Agreement. Construction and operation of the Facilities shall be at Company's sole expense. Company shall keep the Facilities free from hazards or risk to the public health, safety or welfare. (b) Company shall install, at the License Area, a stainless steel cabinet containing an uninterruptable power supply, transmitter, receiver, computer, network switch, Freewave radio and WIFI radio. The cabinet. will be located on the lower platform of the Pier. Adjacent to the light pole located at the northwest corner of the Pier, Company will place a twenty foot (20') stainless steel pole with a six foot (6') (for a total of twenty-six feet (26')) aluminum pole attached at the top. A CODAR combiner box with four radial antennae and one whip antenna will be placed on top of the pole sections. There will also be a sixty-five inch (65") Freewave antenna attached to the stainless steel pole and a GPS antenna mounted on the bracket holding the Freewave antenna. A directional Wi-Fi antenna will be located under the Pier. Cables connecting the radios to the antennae will be placed in conduit. running under the Pier. Collectively, the above -described shall be referred to as "Facilities", which are described and depicted more particularly in Exhibit C, attached hereto and incorporated herein by this reference. (c) Company represents to City that the Facilities are safe, as reported in the following studies provided by the Company and on file with the City: 1) Department of the Navy Electromagnetic Environmental Effects (E3) Review of the Request for Site Approval for the Installation of a Coastal Ocean Dynamics Application Radar (CODAR) at Naval Base Point Loma, San Diego, CA, Final Report issued November 2002; 2) University of California, Santa Barbara, Marine Science Institute Report regarding SCCOOS SeaSonde emissions issued to the Los Angeles County Fire Department April 24, 2007; and 3) Federal Communications Commission OET Belletin 56, 4th Edition, issued August 1999. (d) Except as provided under this Agreement, Company shall not paint, install lighting, decorations, signs, lettering or advertising media of any type or any other visual 2 15-40 displays, on or about the License Area without the prior written consent of City. Notwithstanding the foregoing, Company shall place warning signs on or about the Facilities in compliance with any applicable Federal, State or local law. 3. Government Approvals Company shall obtain all governmental licenses, permits and approvals required by Federal, State or local governmental agencies, enabling Company to construct, operate, repair and remove the Facilities in the License Area, including but not limited to California Coastal Commission approval. 4. Term The initial Term of the License granted hereunder ("Term") shall commence on the Commencement Date and continue for a period of five (5) years. After the Commencement Date, this License shall not be revoked or terminated except as expressly provided in this Agreement. 5. Fees and Costs In lieu of a License Fee, as defined below, Company shall provide to City, all information gathered from Company's Facilities, via a web link to a Newport Beach site specific. 6. Interference with Telecommunications (a) Company agrees that its 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 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's Facilities"). Company also agrees that its operation of the Facilities shall not cause any interference with public telecommunications such as cell phone or wireless internet use. (b) In the event of any interference with City's Facilities or public telecommunications, Company shall work with the City to correct the interference within two (2) hours of City's written or telephone notice to Company. If it is determined the interference is caused by the Facilities and if Company is unable to correct interference to City's satisfaction, Company shall immediately cease its operation of the Facilities until the cause of the interference is corrected to City's satisfaction. If Company fails to correct any interference, City may, without notice, in addition to and without compromising any other available remedy cut off power to the Facilities in the manner set forth in Section 7 below. (c) Prior to making any changes to the frequency or operating conditions, Company shall submit plans for the proposed changes to City for its review and written approval. Company agrees to fund any studies both parties deem necessary to ensure that any contemplated changes will be compatible with the City's Facilities. No frequency or operating condition changes shall occur prior to the City's written approval. 3 15-41 7. Emergency (a) Company understands that the Facilities are located on a public structure or within public property and emergency situations may develop from time -to -time that require power to the Facilities to be immediately shut off and thereby interfere or temporarily terminate Company's use of the Facilities. Company agrees that if such a situation occurs, and/or there are frequency interferences of any nature between City's Police and Fire Department public safety communications equipment or City's facilities affecting operation of sewer or water service and that of Company 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 equipment of Company's located at the License Area for the duration of the emergency. Company agrees not to hold City responsible or liable for and shall protect, defend, indemnify and hold City harmless for any damage, loss, claim or liability of any nature suffered as a result of the loss of the use of the Facilities by the shut off of power. (b) Company agrees to install a clearly marked and accessible master power "cut-off' switch on their Facilities for the purpose of assisting City in such an emergency. (c) Unless otherwise specifically provided in a notice of termination of this Agreement, City's exercise of the right to shut off any power to the Facilities pursuant to Section 7(a) is not intended to constitute a termination of this Agreement by either parry and such event is a risk accepted by the Company. Company 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. (d) City shall have the right to determine what constitutes an "emergency situation" pursuant to this Section. 8. Acceptance of Condition of License Area Company shall accept use of the License Area in "as is" condition, with no warranty, express or implied from the City as to any latent, patent, foreseeable and unforeseeable condition of the License Area, including its suitability for the use intended by Company. 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 Section 24. Company has conducted its own appropriate due diligence investigation of the License Area prior to its execution of this Agreement. 9. No Interest in Property Nothing herein shall be deemed to create a lease, or easement of any property right, or to grant any, possessory or other interest in the License Area, or any public right-of- way, other than a real property license to use and access the License Area, revocable and for a term as set forth in this Agreement. 10. Reservation of Rights Company understands, acknowledges and agrees that any and all authorizations granted to Company 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, 4 15-42 govern and use City property, as well as any existing encumbrances, deeds, covenants, restrictions, easements, dedications and other claims of title that may affect City property. 11. Utilities Company shall not do, nor shall it permit anything to be done that may interfere with the accessibility of the License Area. The Facilities shall be separately metered. Company 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 Company's sole cost and expense (along with all ongoing use charges). If required, Company 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. 12. Inspection City shall be entitled, at any time, without prior notice, to inspect the Facilities for compliance with the terms of this Agreement, and with all applicable Federal, State, City and local government regulations. 13. City Retention Rights Company's right to use the License Area during the term of this Agreement shall be subordinate and junior to the rights of City to use and occupy the License Area for any purpose that does not interfere with Company's use of the License Area as provided herein. 14. Company's Retention of Title Title to the Facilities placed at the License Area by Company shall be held by Company or its equipment lessors, successors, or assigns. The Facilities shall not be considered fixtures. Company has the right to remove any or all of the Facilities at its sole expense from time -to -time and in all events by the expiration of this License or within thirty (30) days after an early termination of this License. 15. Surrender Upon expiration or termination of this Agreement, Company at its sole cost and expense, shall within thirty (30) days of written notice from City, remove the Facilities, restore the License Area to its original condition less regular wear and tear or to a condition satisfactory to and approved by City, and vacate the License Area. Should Company fail to restore the License Area to a condition described above, City may perform such work or have such work performed by others and Company shall reimburse City for all direct and indirect costs associated with such work upon receipt of an invoice for such costs. 16. Assignment 5 15-43 This Agreement and the rights and obligations of Company shall not be assigned, transferred, or hypothecated (collectively referred to as "transferred"), in whole or in part without City's prior written approval. Any attempted transfer in violation of this Section shall be null and void. 17. Taxes Company shall pay all personal interest property taxes, real property taxes, possessory interest tax, fees and assessments which may at any time be imposed or levied by any public entity and attributable to the Facilities. City hereby gives notice to Company, pursuant to Revenue and Tax Code Section 107.6, that this Agreement may create a possessory interest which is the subject of property taxes levied on such interest, the payment of which taxes shall be the sole obligation of Company. 18. Relocation Company agrees that whenever any City improvements may be required (for example, the replacement or repair of the Pier), the City may require the relocation of the Facilities at the Company's expense, without making any claim against the City for reimbursement or damage therefore. Except in the event of an emergency or other situation requiring immediate relocation of the Facilities, City shall provide Company with not less than sixty (60) days written notice of relocation specifying a date by which the relocation is to take place. 19. Termination This Agreement may be terminated by either Party with or without cause with thirty (30) days written notice to either Party. Any termination requires Company to comply with the surrender obligations of Section 15 above. 20. Construction (a) Company agrees to take all prudent action to protect City Facilities from any damage or injury caused by any work performed by or on behalf of Company regarding the construction, installation, operation, inspection, maintenance, repair, reconstruction, replacement, relocation, or removal of its Facilities or the failure, deterioration or collapse of such Facilities. (b) Company shall, at its sole cost and expense, repair any damage to the License Area, to the extent such damage is caused by Company or any of its agents, representatives, employees, contractors, subcontractors, or invitees. Company shall immediately notify the City Manager or his/her designee, and the appropriate public safety agency (e.g. Police and Fire Department) of any damage or injury caused by work authorized pursuant to this Agreement. (c) Without limitation of any other remedy available hereunder or at law or in equity, if Company fails to repair or refinish any such damage, City may, at its sole discretion, but not be required to, repair or refinish such damage and Company shall reimburse City of all costs and expenses incurred in such repair or refinishing within thirty (30) days of receipt of invoice from City. 6 15-44 (d) Company, prior to the execution of this Agreement, shall submit to the City and, throughout the Term and each Renewal Term, maintain in effect, a bond, letter of credit or other security, in the principal amount of Five Thousand and 001100 Dollars ($5,000.00) ("Security") to ensure and secure faithful compliance with the conditions of this Agreement. The Security shall be in a form acceptable to the City, and shall remain in effect throughout the Term of this Agreement. The purpose of the Security is to provide payment to the City for any and all expenditures incurred by the City under this Agreement, including but not limited to costs of repairs and cost of removal of the Facilities upon expiration or termination of this Agreement should Company fail to do so as required by this Agreement. The Security shall in no way limit the liability or obligations of Company or its insurers under this Agreement. If the funds represented. by the Security become exhausted, Company shall immediately provide the City with a new security in the amount necessary to provide full required Security. 21. Maintenance At its sole cost and expense, Company shall take good care of the Facilities and keep the Facilities neat, clean and free from graffiti, dirt and rubbish at all times. 22. Indemnification Company shall indemnify, release, defend and hold harmless City, its City Council, boards and commissions, officers, agents, and employees against any and all claim, demand, suit, judgment, loss, liability or expense of any kind, including attorneys' fees and administrative costs, arising out of or resulting from the latent or patent defects in design and construction of the Facilities or any acts or omissions, intentional or negligent, of Company or Company's officers, agents or employees in the performance of their duties and obligations under this Agreement, except to the extent such claims are caused by the negligence, or willful misconduct of City, its officers, agents and employees. 23. Insurance (a) Provision of Insurance. Without limiting Company's indemnification of City, and prior to commencement of work, Company 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. Company agrees to provide insurance in accordance with requirements set forth here. If Company uses existing coverage to comply and that coverage does not meet these requirements, Company agrees to amend, supplement or endorse the existing coverage. (b) 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 VI (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. (c) Coverage Requirements. (i) Workers' Compensation Insurance. Company shall maintain 7 15-45 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. (1) Company 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. (ii) General Liability Insurance. Company shall maintain commercial general liability insurance, and it 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, products -completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. (iii) Automobile Liability Insurance. Company 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 the Company 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. (d) Other insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: (i) 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 Company or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Company hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subcontractors. (ii) Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, 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. (iii) 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. (iv) Notice of Cancellation. All policies shall provide City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. (e) Additional Agreements Between the Parties. The parties hereby agree to 15-46 the following (i) Evidence of Insurance. Company 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. (ii) 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 the Company sixty (60) days advance written notice of such change. If such change results in substantial additional cost to the Company, the City and Company may renegotiate Company's compensation. (iii) Enforcement of Agreement Provisions. Company acknowledges and agrees that any actual or alleged failure on the part of the City to inform Company of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. (iv) 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. (v) 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. (vi) City Remedies for Non Compliance If Company or any subcontractors 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 Company'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 Company or reimbursed by Company upon demand. (vii) Timely Notice of Claims. Company shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Company's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. (viii) Company's_ insurance. Company 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. 24. Hazardous Substances 9 15-47 (a) From the date of execution of this Agreement and throughout the Term, Company shall not use, store, manufacture or maintain at the License Area any Hazardous Substances except (i) in such quantities and types found customary in construction, repair, maintenance and operations of the Facilities approved by this Agreement, (ii) petroleum and petroleum products contained within regularly operated motor vehicles. Company shall handle, store and dispose of all Hazardous Substances it brings onto the Pier and License Area in accordance with applicable laws. (b) For purposes of this Agreement, the term "Hazardous Substance" means: (i) any substance, product, waste or other material of any nature whatsoever which is or becomes listed, regulated, or addressed pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S..C. Section 9601 et seq. ("CERLCA"); the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; the Resource Conversation and Recovery Act, 42 U.S.C. Section 6901 et seq. ("RCRA"); the Toxic. Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et seq.; the California Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq.; the California Hazardous Substance Account Act, Health and Safety Code Sections 25330 et seq.; the California Safe Drinking Water and 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 of 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. (c) Notwithstanding any contrary provision of this Agreement, and in addition to the indemnification duties of Company set forth in Section 22, Company agrees to indemnify, defend with counsel acceptable to City, protect, and hold harmless the City, its officials, officers, employees, agents, 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 officials, officers, employees, agents, 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, arising from or attributable to the storage or deposit of Hazardous Substances on or under the License Area. This Section 24{c) 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. This Section shall survive the termination or expiration of this Agreement. 10 15-48 (d) 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 and Pier in violation of any law or regulation. City and Company each agree to defend, indemnify and hold harmless the. other and the others 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 24. This Section 24 shall survive the termination of this Agreement. Upon expiration or earlier termination of this Agreement, Company 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 Company. 25. Compliance with Laws Company, at its sole cost, shall observe, perform, and comply with all laws, statutes, ordinances, rules, and regulations promulgated by any governmental agency and applicable to the License Area, or the use thereof, including all RF safety standards, Americans with Disability Act requirements, applicable zoning ordinances, building codes and environmental laws. Company shall not occupy or use the License Area or permit any portion of the 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 Company shall authorize Company or any of its employees, agents or contractors to act as agent, contractor, joint venturer or employee of City for any purpose. 27. No Third Party -Beneficiaries City and Company do not intend, by a provision of this Agreement, to create in any third party, any benefit or right owed by one Party, under the terms and conditions of this Agreement, to the other Party. 28. Notices All notices and other communications required or permitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: (a) To City: City Manager City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658 11 15-49 (b) To Company: Attn: Dr. Burton H. Jones Department of Biological Sciences University of Southern California 3616 Trousdale Parkway Los Angeles, CA 90089-0371 Phone: 213-740-57651 FAX: 213-740-8123 (c) Company's emergency contact: Name: Mr. Matthew Ragan Department: Department of Biological Sciences, USC 24 hour phone number: 949-232-7202 29. Entire Agreement Amendments (a) The terms and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the parties with respect to the subject matter of this Agreement. (b) This written Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between the Company and the City. (c) No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement, approved as to form by the City Attorney. (d) The terms and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by the Company and City. (e) If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. (f) Any obligation of the Parties relating to monies owed, as well as those provisions relating to limitations on liability and actions, shall survive termination or expiration of this Agreement. 30. Waivers The waiver by either Party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either Party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other Party of any term, condition, covenant of this Agreement or any applicable 12 15-50 law, ordinance or regulation. 31. No Attorneys' Fees The prevailing Party in any action brought to enforce the terms and conditions of this Agreement, or arising out of the performance of this Agreement, shall not be entitled to recover its attorneys' fees. 32. City Business License Company shall obtain and maintain during the duration of this Agreement, a City business license as required by the Newport Beach Municipal Code. 33. Applicable Law This Agreement shall be construed in accordance with the laws of the State of California. Any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 34. Time is of the Essence Time is of the essence for this Agreement. 35. 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] 13 15-51 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in duplicate on the dates indicated below. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY Date: / i_�// Z' By: Aaron C. H i City Attorney ATTEST: Date: �Z By: dmNW 4 . Leilani I. Brown _� City Clerk u 61 CITY OF NEWPORT BEACH, A California municipal corporation Date:- tr David A. iff City Manager COMPANY: The University of Southern California a nonprofit public benefit corporation on behalf of its Department of Biological Sciences Date: Aug".t 1, 201 By: /;7 Michael Quick Executive Vice Provost Date: pc Ntx- ZO rZ M [END OF SIGNATURES] Attachments: Exhibit A - Pier Depiction Exhibit B - License Area Depiction Exhibit C - Facilities Description and Depiction A08-00073I License Agreement 7.16.12 Final 14 15-52 EXHIBIT "A" Pier Depiction 1 Newport Pier Newport Beach, CA 92663-4340 NEWPORT BEACH PIER LOT —LYING ON C.L OF MC FADDEN PL EXTENDED SW LY BEYOND THE HIGH TIDE LINE 15-53 EXHIBIT "B" License Area Depiction 15-54 © o p O a Has � 'lit ............. � I r H r'd lT! b f IQum i I gill o 15-55 EXHIBIT "C " Facilities Description and Depiction 15-56 io Q) N.Cfcr EocAilom o AD 1 sl.Rv u,11FNNA 10CATM VICINITY MAP NIS LOCATION PLAN Scala: I.0 10'-0' LIM RESrAUXW 3NWGNEWP0Ri RER A1L FojW �O O O ��N OD.Sr:RVINOS� USC/SCRIPPS INSTITUTION OF OCEANOGRAPHY NEWPORT PIER CODAR ANTENNA MOUNT EwPORT BEACH, CA PROPERTY OWNER City of Newpan BCP6 Public Works Deparanes9 33M N.,.ppn 06d N-pm 11-1, G 92663 Ph—: PA9}6"3311 Fm; 1949)6443310 APPLICANTS Scripps Im liturm of Oceenogmphy University of Southern CaVomlo Coastal Cb5erinq R&O Center Wrigley Imlilde for Environmenhol Studies 95 Gtrrn Dr., WC 0213 3616 Tm'.Wa Pktiy toj,lo, CA 92a930713 L.ftd. 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I'b M pg w 7 d w r£ V -1 w U I... � U D f� 1— N 15-58 NOTE: VERIFY Ali DMENSIONS INFLELD PRIOR TO FABRICMK)N OF BRACKET. n SEC -TON ® BRACKET ss sedn:s-I'a �ljw .SS PI 1411/7 T11A Top d 9d � ' �,--4 �- 3} so•I 40 ry ss n ss wpn s6�n �. ss eel nw/ d {'Ihoh lyJo in Cm,•ei e BOTTOM CLAMP (I EA) 51 Sm6:7-I"or Y m.kh F;I twn sn Pqn r1 3¢Ak Pip: p SECTION 1 SECTION SECTION swan: 3• - NY Sm6: 3• - 1'0• Scdo: ]• • IV od RI 1/r P A LE3 (x lkrdn�31YW t46X IiSS OT6.d w,-M a FW IMsti3tii/a 55Agb WI55TA 4' ® 5$ �� ,. uald, IES na'os Ss Ftspgcn b Pve I 7} I t�Y9's�' S5 M Tak Weld �11f. 55 Ss� SECTION H SECTION SwL: ]' • 1'9' Soak: 7 - NP LI'4s511 �7I11,K� Al P4. SS Asll&R mdwd 1 E f ANnNNA MOUNT ss +.nw a lw E %V 51 sod,: T - 1'47 0 55 P;pe Straw nV%. 55 PI I�'°tl'rJ'SSR )'55 Pk sp w 1$11 +•. Igck Way bPl o i513 sss ® ss c7 �• vua o Pi P CLAMP (3 EA) ri SECTION Erdn: 3• - IT' SECTION 5rdn: r - 1•0 W StUIUN 5cd.:3• - ru• 9 rd SL . 15-59 vlaq roc/ r Iw ra ¢eala nc nlesvx rose lrrc iPwIL101 'Ja llt ]]]¢M Rf4 LW M 1NAnf b'Jtl'al 1, udy roL Y nl¢ o e ac a � nra aromlc a nm T•.I ELECTRICAL CONDUIT DETAIL } SU1lG C BOeSr ILII w In IFRIt 'C.PX i1- (q. W) �.�. aaniml awJn slm ooalmara�] NJ ]olnia •u a oa[ wil su slwre^ st¢ svur PI'Mii in MNGr/AC (W'k IWwM1T A'V NYRnRVtYI. !/i 1 1->R• W Y/Srl nl Sf6t1 sla] ewem m rew. efww u w Inn tomon ,vo aoami rossa] Uo+ � wlrtsl a ruu ENCLOSURE DETAIL Iupa Wlil ica ivu .en .+u ]ncaul. n -xxe � ava law ilmx ttv.a W luL wromi 1' W .n u• calms n] I.ul.um ]lai .gat 1' w SIa ]Icic 11 R afu(1 A la RaI l]C 1 C1E {CS'1111 ROO na ]l S ff 11iF 'wN f,Ci r]I frI MRa�t OOrI VeTm IfiC ICI eurtl 1 111 iIIJL•f IIF¢ fR 1➢• W GI Tr.M 4Nh. 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FA X A MO r" FMM� "M M' m Q FA'AW4rJ5 F4Cf M wM MS �I, ELECTRICAL SHEET IMDEX �[.p n[[+pr L wx Ao mAs o-[.i cane mILS Am rr++n saw A tl�d gR�lAq p©pgqDAAA �f�7��Q[?� RR �R �r rod, CgAgA©ra �A�4q�tt� � e� NMI% �vnrraa �� l�Ow IfMgkgqalJn mmom mrun MHUMPIZZ"m s:!l L�=Ii�QDDE Qeen�nAaQQaa oli lR rr •R �- " RR aLlQDOSI7 Ei m QQI1F]f��G.. R�O�•. �D��QQQCYfr'7d ETaQQQQSLs�'�i. lid♦ 0�.<I�0000�7n p �i� 4000I"in judI3 >LTnrd�oA�R�= vino .r OQ R�RRi' a �k7ca-m!aFn ggDft"SUM�..�uR,'�pDQ utlanasrrurs oq ��a Ae ae • *: R�a1 �R91 �pM—Wi v�M a >DA1:�►�ai7 �FW�Rfe loR *Rnai ono pdciwrn Ln#��R��AAgD©©L F�x*AARDOs�"•i�Qd gDFAZ� d� .jo�Cr..Ra gavn 15-61 �e r Y..f !•r � . radio orllCHrrl flic[ISirai�lu. 1. !1!YE- i!a �'':y LR�d.I1J• [I11 raw-.r..1P.�W•�. F L FMAPPIN -� 4nll ugII1r G.r...ilaw.n _ .141Y WY1w-fin �^7 driA y.cif"rnGw+. • ♦.L I CODAR ANTENNA D) 1•IALS ull his „asig 3'a Ei�i.:.EMa€MLE7H"a;Es EaPAaiiF.P;?.aC .. x zx t s xx illEE mn E iu g.�• ii CC "xw as. L Tz n ff @ .. By I� �'.10 tl� ESA .�. .,.� �m. �C �x m e STAINLESS STRUT DETAILS REFER TO DEi 1L 2/E-1.0 Z O ac w O � n a d Z O w 7-9 Z LLJ LL) 15-62 Attachment C City Council Policy F-7 15-63 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. 1 15-64 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. 15-65 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 15-66