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Home My WebLink AboutA61-04AGREEMENT FOR USE OF REAL PROPERT Y FOR BIOLOGICAL MITIGATION ACTIVITIE S This Agreement between the City of San Luis Obispo ("City") and Dioptics Medica l Products, Inc . ("Dioptics") is entered into this 7 th day of September, 2004, with regard to th e following RECITAL S WHEREAS, City is the fee owner of certain lands near the City of San Luis Obispo an d within the County of San Luis Obispo, referred to as San Luis Obispo County Assessor's parce l b7--ii""fr- and commonly known as the Filipponi Ecological Area ; andI-7c WHEREAS, the Filipponi Ecological Area was acquired, in part, for use in habita t mitigation and habitat enhancement projects ; an d WHEREAS, the City of San Luis Obispo has been interested in creating habitat for th e rare Congdon tarplant, possibly using City or grant funds ; and WHEREAS, Dioptics is required by the County of San Luis Obispo to provid e replacement habitat for a rare plant species known as Congdon tarplant, whose habitat will b e destroyed by construction of a new building for Dioptics ; an d WHEREAS, the Filipponi Ecological Area contains lands well suited to the creation o f such replacement habitat ; and WHEREAS, Dioptics has requested the City of San Luis Obispo's permission to utilize a portion of the Filipponi Ecological Area for use as a replacement habitat . NOW, THEREFORE, the Parties agree as follows : 1. The City Council of the City of San Luis Obispo hereby grants permission t o Dioptics to utilize a portion of the Filipponi Ecological Area for the creation of a replacemen t habitat for the destroyed habitat on the Dioptics site . 2. Dioptics agrees that, in lieu of a cash payment to the City of San Luis Obispo fo r this privilege, it will create three times the amount of habitat required by the County of San Lui s Obispo . The parties agree that three times the required amount of habitat is one acre, or 43,56 0 square feet, and that Dioptics will create one acre of such habitat on the Filipponi Ecologica l Area, in a suitable location identified by the City . 3. Dioptics further agrees that it shall be responsible for all costs associated with th e mitigation project, including but not limited to, planning, contracting, and monitoring of th e project . 4. Dioptics further agrees that it shall be responsible for the maintenance for th e mitigation for a period of not less than three years, or longer, if required by the Californi a Department of Fish and Game, and that the City of San Luis Obispo shall have no maintenanc e obligations associated with the site during this time . The parties further agree that no specia l maintenance of the site will be required of the City of San Luis Obispo once the site is accepte d as complete and the mitigation is deemed successful . 5. Dioptics agrees to defend, indemnify, protect and hold the City and its agents , officers and employees harmless from and against any and all claims asserted or liabilit y established for damages or injuries to any person or property, including injury to Dioptics ' employees, agents or officers which arise from or are connected with or are caused or claimed to be caused by the acts or omissions of Dioptics, and its agents, officers or employees, i n performing the project work, and all expenses of investigating and defending against same ; provided, however, that Dioptics' duty to indemnify and hold harmless shall not include an y claims or liability arising from the established sole negligence or willful misconduct of the City , its agents, officers or employees . 6. Dioptics shall procure and maintain for the year insurance against claims fo r injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by Dioptics, its agents, representatives, employees, o r subconsultants . a .Minimum Scope of Insurance .Coverage shall be at least as broad as : 1. Insurance Services Office Commercial General Liability coverage (occurrenc e form CG 0001). 2.Insurance Services Office form number CA 0001 (Ed . 1/87) covering Automobile Liability, code 1 (any auto). 3.Workers' Compensation insurance as required by the State of California an d Employer's Liability Insurance . 4. Errors and Omissions Liability insurance as appropriate to Dioptics profession . b .Minimum Limits of Insurance .Dioptics shall maintain limits no less than : 1. General Liability : $1,000,000 per occurrence for bodily injury, personal injur y and property damage . If Commercial General Liability or other form with a general aggregate limit is used, either the general aggregate limit shall appl y separately to this project/location or the general aggregate limit shall be twic e the required occurrence limit . 2. Automobile Liability: $1,000,000 per accident for bodily injury and propert y damage . 3. Employer's Liability : $1,000,000 per accident for bodily injury or disease . 4. Errors and Omissions Liability : $1,000,000 per occurrence . If Commercia l Errors and Omissions Liability or other form with a general aggregate limit i s used, either the general aggregate limit shall apply separately to thi s project/location or the general aggregate limit shall be twice the require d occurrence limit . c .Deductibles and Self-Insured Retentions .Any deductibles or self-insured retentions must be declared to and approved by the City . At the option of the City , either : the insurer shall reduce or eliminate such deductibles or self-insure d retentions as respects the City, its officers, officials, employees and volunteers ; or Dioptics shall procure a bond guaranteeing payment of losses and relate d investigations, claim administration and defense expenses . d.Other Insurance Provisions .The general liability and automobile liability policie s are to contain, or be endorsed to contain, the following provisions : 1. The City, its officers, officials, employees, agents and volunteers are to b e covered as insureds as respects : liability arising out of activities performed b y or on behalf of Dioptics ; products and completed operations of Dioptics ; premises owned, occupied or used by Dioptics ; or automobiles owned, leased , hired or borrowed by Dioptics . The coverage shall contain no specia l limitations on the scope of protection afforded to the City, its officers, official , employees, agents or volunteers . 2. For any claims related to this project, Dioptics' insurance coverage shall b e primary insurance as respects the City, its officers, officials, employees, agent s and volunteers . Any insurance or self-insurance maintained by the City, it s officers, officials, employees, agents or volunteers shall be excess of Dioptics ' insurance and shall not contribute with it . 3. Any failure to comply with reporting or other provisions of the policie s including breaches of warranties shall not affect coverage provided to the City, its officers, officials, employees, agents or volunteers . 4. Dioptics' insurance shall apply separately to each insured against whom claim i s made or suit is brought, except with respect to the limits of the insurer's liability . 5. Each insurance policy required by this clause shall be endorsed to state tha t coverage shall not be suspended, voided, canceled by either party, reduced i n coverage or in limits except after thirty (30) days' prior written notice b y certified mail, return receipt requested, has been given to the City . 6.Coverage shall not extend to any indemnity coverage for the active negligenc e of the additional insured where an agreement to indemnify the additiona l insured would be invalid under Subdivision (b) of Section 2782 of the Civi l Code . e .Acceptability of Insurers .Insurance is to be placed with insurers with a curren t A .M . Best's rating of no less than A : VII . f.Verification of Coverage .Dioptics shall furnish the City with a certificate o f insurance showing maintenance of the required insurance coverage . Original endorsements effecting general liability and automobile liability coverage required b y this clause must also be provided . The endorsements are to be signed by a perso n authorized by that insurer to bind coverage on its behalf All endorsements are to b e received and approved by the City before work commences . Insurance is to b e submitted by Dioptics at the time of notification from the City to that effect . The insurance shall remain on file with the City for the duration of the two-year term t o eliminate the need to collect insurance documents at the start of every individual project . 7 . This permission can be cancelled by the City of San Luis Obispo for cause , including but not limited to, failure of Dioptics to perform any required activities under thi s agreement, and subsequent failure to cure such failure after reasonable notice by City . IN WITNESS WHEREOF, the parties hereto have caused this instrument to be execute d the day and year first above written . CITY OF SAN LUIS OBISPO, DIOPTICS MEDICAL PRODUCTS, INC . A Municipal Corporatio n David F . Romer o Mayor B y APPROVED AS TO FORM :