HomeMy WebLinkAboutA62-04AGREEMENT FOR USE OF REAL PROPERT Y
FOR BIOLOGICAL MITIGATION ACTIVITIE S
This Agreement between the City of San Luis Obispo ("City") and Costco Wholesale ,
Corporation, a Washington corporation ("Costco"), is entered into this 20 th day of Septembe r
2004, with regard to the following :
RECITALS
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
076-061-075, and commonly known as the Filipponi Ecological Area ; and
WHEREAS, the Filipponi Ecological Area was acquired, in part, for use in habita t
mitigation and habitat enhancement projects ; and
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, as a condition of its proposed project at Froom Ranch Way in the City o f
san Luis Obispo (the "Costco Project"), Costco is required by the California Department of Fis h
and Game to provide replacement habitat for a rare plant species known as Congdon tarplant ,
whose habitat would be destroyed by construction of a new building for Costco ; and
WHEREAS, the Filipponi Ecological Area contains lands well suited to the creation o f
such replacement habitat ; an d
WHEREAS, Costco 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
Costco to utilize a portion of the Filipponi Ecological Area for the creation of a replacemen t
habitat for the destroyed habitat on the Costco site .
2.
Costco agrees that, in lieu of a cash payment to the City of San Luis Obispo fo r
this privilege, if Costco goes forward with the Costco Project, it will create three times th e
amount of habitat required by the California Department of Fish and Game, or 105,000 squar e
feet, in the Filipponi Ecological Area in a location within that area as identified by the City .
3.
Costco 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 in accordance with its obligations under the Congdon's Tarplant Mitigation Plan, date d
September 7, 2004, by Morro Group, Inc .
/1-d7-oi/
4.Costco further agrees that it shall be responsible for the maintenance and for th e
mitigation for a period of not less than three years, as required by the California Department o f
Fish and Game, and that the City of San Luis Obispo shall have no maintenance obligation s
associated with the site during this time . The parties further agree that maintenance would not b e
required by either party once the site has been accepted as complete and the mitigation is deeme d
successful, since it should be a self sustaining habitat .
5.Costco 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 Costco's
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 Costco, and its agents, officers or employees, i n
performing the project work, and all expenses of investigating and defending against same ;
provided, however, that Costco's 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.Costco maintains and shall continue to maintain through the period of Costco's
mitigation obligation, insurance meeting the minimum standards set forth in Costco's curren t
Memorandum of Insurance as posted at www.marsh .com/moi?client=0847 .Said memorandu m
and any substitutes or replacements thereof also shall cover City as an additional assured .
Alternatively, Costco may cause its contractor for implementation of the Mitigation Plan to procur e
and maintain for the year insurance against claims for injuries to persons or damages to property ,
which may arise from or in connection with the performance of the work hereunder by Costco, it s
agents, representatives, employees, or sub-consultants, in which case the following shall apply :
a.Minimum Scope of Insurance .Coverage shall be at least as broad as :
1.Insurance Services Office Commercial General Liability coverage (occurrence
form CG 0001).
2.Insurance Services Office form number CA 0001 (Ed . 1/87) covering
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 the consultant's
profession .
b .
Minimum Limits of Insurance . Costco's contractor shall maintain limits no les s
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 Commercial
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 ; o r
Costco shall procure a bond guaranteeing payment of losses and related
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 Costco pursuant to the mitigation plan ; products and complete d
operations of Costco or its contractor ; premises owned, occupied or used b y
Costco or its contractor; or automobiles owned, leased, hired or borrowed by
Costco or its contractor . The coverage shall contain no special limitations o n
the scope of protection afforded to the City, its officers, official, employees ,
agents or volunteers .
2.
For any claims related to this project, Costco's contractor's insurance coverag e
shall be primary insurance as respects the City, its officers, officials, employees ,
agents and volunteers . Any insurance or self-insurance maintained by the City ,
its officers, officials, employees, agents or volunteers shall be excess o f
insurance provided by Costco or its contractor 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.Costco's contractor's insurance shall apply separately to each insured agains t
whom claim is made or suit is brought, except with respect to the limits of th e
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 .Costco shall cause its contractor to furnish the City with a
certificate of insurance showing maintenance of the required insurance coverage .
Original endorsements effecting general liability and automobile liability coverage
required by this clause must also be provided . The endorsements are to be signed b y
a person authorized by that insurer to bind coverage on its behalf. All endorsements
are to be received and approved by the City before work commences . Insurance is to
be submitted by Costco at the time of notification from the City to that effect . Th e
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 individua l
project .
7 . This permission can be cancelled by the City of San Luis Obispo for cause ,
including but not limited to, failure of Costco to perform or cause to be performed any activitie s
required of Costco under this agreement, and subsequent failure to cure such failure afte r
reasonable notice by City . This permission shall expire automatically if Costco has no t
commenced construction of the Costco Project by December 31, 2006 .
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,
A Municipal Corporation
COSTCO WHOLESALE CORPORATIO N
David F. Romero
Mayor
B
APPROVED AS TO FORM :
J nath
. Lowell
Attorney