HomeMy WebLinkAboutCalifornia, State Of; 1990-04-10; Parks & RecApril 16, 1990
California Dept. of Parks & Recreation
2680 Carlsbad Blvd.
Carlsbad, CA 92008
Attn: William Fait
Re: Operating and Maintenance Agreement for Ocean St. Sculpture Park
The Carlsbad City Council, at its meeting of April 10, 1990, adopted
Resolution No. 90-99 approving an agreement with the State of
California, Department of Parks and Recreation for the Carlsbad
Streetscape, Phase IV, Ocean Street Sculpture Park.
Enclosed are six copies of the agreement with original signatures.
Also enclosed is a copy of Resolution No. 90-99.
After the agreements have been executed by representatives of the
State of California, please return one fully executed orignal
to this office.
Thank you for your assistance in this matter.
Encs.
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COURT PAPER 1
STATE 0, CILICOlPal~ I STD. 113 ,RL”. a.721
a5 34789
OPERATING AGREEMENT
CARLSBAD STATE BEACH
INDEX
Page
Premises ............................. Use ................. ..- ...........
Term ...............................
Consideration ..........................
Construction ...........................
Ownership of Improvements ....................
Maintenance of Obligations of City ................
Concessions ...........................
Revenues .............................
Records and Accounts .......................
Beach Erosion Control and Protection Work ............
Eminent Domain Proceedings ....................
Utilities
Public Liabilit; iniu;a&l ........................................
Hold Harmless Agreement .....................
Prohibitions Against Ci,ty Assigning, Subletting .........
Defaults and Remedies ......................
Notices Terminatiin' : : : :
.......................
Real Property Acquisiiiin' : : : : : :
............................
Nondiscrimination ........................
Limitation ............................
Paragraph Titles .........................
Agreement in Counterparts ....................
Agreement in Writing ... ; ...................
Inspection ............................
Successors in Interest ......................
Partial Invalidity ........................ Waiver of Rights .........................
Signatures ............................
Exhibits............... ...............
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I 1 OPERATING AGREEMENT !
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3 :' CARLSBAD STATE BEACH
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5' THIS OPERATING AGREEMENT (Agreement), made and entered into this
6 'I 10th day of April 1990, by and between STATE OF CALIFORNIA, acting through j
7' the Department of Parks and Recreation, hereinafter referred to as "STATE", 1
8 and the City of Carlsbad hereinafter referred to as "CITY", without regard to j I
9 /I number and gender.
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WITNESSETH ----------
A. Pursuant to the provisions of Section 5080.30, et seq., of the 1
Public Resources Code of the State of California, STATE may enter into an
operating agreement with subdivisions of the State of California for the
development and operation of lands under the jurisdiction of STATE for the
purpose of the State Park System.
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B. STATE has acquired for park and recreational purposes certain
real property known as "Carlsbad State Beach as identified in Exhibit A
attached. These park properties are located within the City of Carlsbad in
the County of San Diego.
c. STATE and CITY desire to enter into an Agreement to provide for
the development, operation, control, and maintenance of a part of Carlsbad
State Beach by the City of Carlsbad as identified on Exhibit "A".
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COURT PAPER STATS 0. ULI.*““I* STD. 113 ,RL”. a-721
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1 NOW, THEREFORE, in consideration of the mutual covenants herein
2 contained, the parties hereto do hereby covenant and agree as follows:
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4 :/ 1. PREMISES: STATE authorizes CITY to develop, operate, control,
5 and maintain a portion of Carlsbad State Beach, as shown on Exhibit "A"
6 attached, and hereby made a part hereof. STATE shall not be liable for any
7 costs of development, maintenance, control, or operation of the premises.
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2. USE: CITY agrees to develop, operate, control, and maintain
lo the premises as public recreational beach/park facilities to be accessible and
l1 ;I subject to th e use and enjoyment of the general public. Such development and
12 :i operati on of the premises shall be conducted in accordance with the approved
15 : State General Plan for Carlsbad State Beach adopted November 1983 and all
14 ;; applicable federal, state, and local government statutes, laws, and
15 j regulations. Copies of said General Plans are on file at the San Diego Coast
16 ;I District Office, 2680 Carlsbad Boulevard, Carlsbad, CA 92008.
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18 ‘~ Should the CITY propose developments or operations not authorized
19. under the current Carlsbad State Beach general plan, CITY may prepare an
20 amendment to said plan, pursuant to Public Resources Code Section 5080.31
21 j which amendment shall be submitted to and approved by the California State
I 22 :) Park and Recreation Commission.
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24 ’ CITY may adopt rules and regulations for the use and enjoyment of
25 11 the premises. Any such rules and regulations adopted by CITY shall conform to
z6 '1 and be consistent with the rules and regulations adopted by STATE and
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COURT PAPER I *TAT2 0. cALl?o”ll,* STD. I 13 ,RL”. 8.121
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1 ', generally applicable to the State Park System, including said property, Said
2 I premises shall not be used for any other purpose than those herein described.
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3. TERM: The term of this Agreement shall be twenty (20) years
5 i! and shall commence on April 1, 1990 and end on June 30, 2009.
CITY shall have the option to extend the term of this Agreement for j !
8 : an additional twenty (20) year period subject to approval of STATE. I
9 1 Notification of said exercise of option shall be submitted to STATE in writing 'I
10 :j at least 18 months prior to the termination date of this Agreement.
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iI 12 :; 4. CONSIDERATION: In consideration of the services to be
13 !! performed by CITY pursuant to this Agreement, i.e., development, care,
14 ': maintenance, operation, and control of subject premises, STATE hereby :'
ji 15 authorizes the use of the said premises by CITY on a rent-free basis on the
16 '1 condition that CITY exert a good faith effort in performing the services iI
17 ii identified in this paragraph. In the event that CITY fails to perform in good
18 '1 faith, s UC services for the benefit, use, and enjoyment for the general h
' 19 '1 public, this beach park unit identified in Exhibit "A" shall revert back to
20 i the STATE.
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I/ 22 /I 5. CONSTRUCTION: CITY, at no cost or expense to STATE, may
/ 23 I/ undertake new development, construction, or improvements to enhance public
, 24 ;I jl recreational facilities at this park unit. Such development, construction, or
25 I improvements shall be in accordance with the State General Plan for Carlsbad
'1 26 ,I State Beach. All plans and specifications for improvement and development
I/ 27 ,I/ shall be approved by STATE to ensure that such plans comply with STATE'S
COURT PAPER SITITE 0, CALICOIINIA STD. 113 ,RC”. 8.72) /
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1 / requirements. No such improvement or development including beach erosion
2' control and protection, shall be commenced by CITY'S own forces or by its
5 :: contractors without prior written STATE approval of such plans and
4 :i specifications. STATE agrees to communicate its approval or disapproval of
5 '1 such plans and specifications, in writing, within forty five (45) days of
6 '1 receipt of same (disapprovals shall be accompanied with written explanation of /
7 / reasons for such disapproval). STATE, however, agrees not to unreasonably /
8 withhold said approval, and if STATE fails to so approve or specify changes, I
g 'I then approval is deemed to be given at the end of the forty five (45) day
10 (/ period.
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12 iI 6. OWNERSHIP OF IMPROVEMENTS: Upon termination of this Agreement
13 '~ pursuant to any provisions under Paragraph 19 (TERMINATION), all improvements
14 ;I constructed shall become part of the realty and title to said improvements
15 Ii shall vest in STATE. For all improvements erected on the premises by CITY, a
16 '1 Notice of Completion shall be filed with the STATE. :I
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/ 18 )i Notwithstanding the above, art park elements consisting of art
19 I' sculpture shall remain the property of the CITY and at the time of expirat
20 : or termination of the operating agreement may be removed or relocated off
ion
21 l/ State propety.
23 i 7. MAINTENANCE OBLIGATIONS OF CITY: During the term of this
24 ;' Agreement, CITY at no cost or expense to STATE shall provide for upkeep and
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maintenance of the premises in a safe, good condition, and in substantial
26 !I repair, and all improvements of any kind which may be erected, installed, or
8; 27 '1 placed thereon. During the term of this agreement it shall be CITY’S
COURT PAPER srlT8 0, uLI,o”NI* STD. 113 ,lL”. 8.721 !
a5 34789 Ii
1 responsibility to ensure that the premises are maintained in such a level and ;
2 standard of condition and repair as other city park and beach facilities.
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4 ij 8. CONCESSIONS: -Subject to prior approval in writing by STATE,
5 ii CITY may grant concessions in or upon the premises consistent with the
6 I) requirements of the STATE under Section 5080.33 and 5080.34 of the Public
' of the Public Resources Code Sect 8 ,
9 i/ by CITY which will exploit public :i
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7 i; Resources Code. All concession contracts shall be subject to the requirements
ion 5080.20. No concession shall be granted
lands for commercial purposes..
11 " 9. REVENUES: Any incane to CITY derived from its control and
12 ; operation of premises for services, benefits, or accommodation to the general
13 public shall strictly be used for operation and maintenance expenses of the
14 8 premises. Any such portion of income as may exceed costs and expenses shall
1: 15 ,/ be utilized for the benefit of the premises.
17 /I 10. RECORDS AND ACCOUNTS: CITY shall, at all times during the term
'/ 12 ,/ of this Agreement, keep separate, true and complete books, records, and
19 i accounts of all income and fees received and all expenditures made by CITY in
20 I relation to -concessions, special services, and all other matters incident to
21 ,I the development, control, and operation of the premises. CITY shall report
22 ;I said income and expenditures to STATE on an annual basis, which annual report
23 ji shall be submitted for the period cMnencing July 1st and ending June 30th of
24 '1 each reporting year, and shall be filed with STATE not later than the
25 ', following September 30th. Said report shall include a reasonable weekly
26 'i estimate of the number of vfsitors to the area, as Wel? as the number of
I 27 ,m vehicles.
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COURT PAPER , ITA,= 0, cALIco”III* ; STD. 113 IRE”. B.72) s
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The books, records, and accounts kept by CITY applying to the
le times be open for audit or 2 operation of the premises, shall at all reasonab
3 #' inspection by STATE.
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5 ;: The annual report required by this clause shall be delivered to
G pi STATE at the address set forth in Paragraph 18 (NOTICES).
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7 I I , 8 11. BEACH EROSION CONTROL AND PROTECTION GIORK: Any development,
9 1; beach erosion control, or protection work which may be undertaken by STATE or
10 :j the United States of America, along or on the premises, in the manner provided
' by law or under the rules of STATE, shall not, in any way be construed as 11 ;
I2 j! constituting a termination of this Agreement or in any way affecting same.
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14 ;: i STATE shall have the right to enter into agreements for such work
15 !/ during the term hereof and to go upon the premises or to authorize any person,
16 :I firm, or COrpOratiOn to go upon the premises for the purposes of such
17 1; construction, beach erosion control, or protection work, or the doing of other
18 ; public work for the improvement or development of the premises, provided that
19 STATE except for emergency repair, shall give CITY three (3) months prior
20 written notice of its intention to do any of the work herein mentioned. CITY
21 i shall be given the opportunity to review and comment on plans and
22 ') specifications before such work is undertaken. STATE agrees to repair, at its
23 ;i sole cost and expense, any damage to CITY'S improvements caused by such
24 ;j hereinabove described work.
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26 :; 12. EMINENT DDMAIN PROCEEDINGS: If the premises or any portion
/ 27 j thereof is taken by proceedings in eminent domain, STATE shall receive the
COURT PAPER STAT= 0, cAl.lco”wlA STD. 113 (REV. 8.721 /
85 24769
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1 entire award for such taking except that CITY shall receive out of said award
2 the fair market value of any improvements then existing and constructed by
3 :, CITY, except for: (a) improvements erected with funds realized through income '1
4 1: from the premises, and (b) improvements the costs of which CITY has been paid
5 i! or reimbursed by STATE through grants or other sources. Fair market value
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6 i shall be determined by said proceedings taking into consideration the terms of I
7 ;i this Agreement.
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iI 9 ; j 13. UTILITIES: CITY shall be responsible for all utility charges
10 I! supplied to the premises. I
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12 ;; 14. PUBLIC LIABILITY INSURANCE: CITY agrees, at its sole expense,
13 to maintain in force during the term of this Agreement comprehensive general
14 I; liability insurance, insuring against claims for injuries to persons or I_
15 ii property occurring in, upon, or about premises. Said insurance shall have
16 !I limits of not less than $500,000 and $l,OOO,OOO for injuries to person or ,i
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17 i/ persons, respectively; not less than $150,000 for property damage; and said
18 j limits shall be adjusted annually to reflect changes in the prior year's
ig i Consumer Price Index (CPI) for Los Angeles - Anaheim - Riverside (all urban
20 '/ consumers - all items), promulgated by the Bureau of .Labor Statistics of the
21 ,I U.S. Department of Labor. STATE agrees that CITY, at CITY’S option, may 1 I
22 1) self-insure the coverages required by this Paragraph 14 (PUBLIC LIABILITY ;I
23 ;i INSURANCE).
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25 :j 15. HOLD HARMLESS AGREEMENT: CITY shall indemnify, hold harmless,
26 '/ and defend STATE, its officers, agents, and employees against any and all :I 27 ,I claims,
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demands, damages, costs, expenses, or liability costs arising out of
COURT PAPER I *TITS 0, cALlCQn*I* STD. 113 ,Nl”. 8.721 ;
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1 the development, operation, or maintenance of the property by CITY described
2 : herein which claims, demands, or causes of actipn arise under Government Code
3 1 Section 895.2 or otherwise, except for liability arising out of the concurrent
4 ii or sole negligence, or deliberate act of STATE, its officers, agents, or
5 I, employees.
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7 In the event STATE is named as co-defendant in a legal action, under
8 the provisions of the Government Code Section 810 et seq., and CITY is served
I , 9 '1 with process of such legal action, then CITY shall immediately notify STATE of
I 10 1 such fact and shall represent STATE in such legal action as provided herein
11 :/ unless STATE undertakes to represent itself as co-defendant in such legal
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12 action, in which event STATE shall bear its own litigation costs, expenses,
13 and attorney's fees.
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15 ;i In the event CITY is named as co-defendant in a legal action, under
16 I_ the provisions of the Government Code Section 810 et seq., and STATE is served
17 ii with process of such legal action, then STATE shall immediately notify CITY of
18 such fact and shall represent CITY in such legal action unless CITY undertakes
19 ! to represent itself as co-defendant in such legal action, in which event CITY
20 shall bear its own litigation costs, expenses, and attorney's fees.
21
;; 22 ]/ In the event judgment is entered against STATE and CITY because of
23 ij the concurrent negligence of STATE and CITY, their officers, agents, or
24 1' employees, an apportionment of liability to pay such judgment shall be made by
25 ; a court of competent jurisdiction. Neither party shall request a jury /I 26 ,j apportionment. :I
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COURT PAPER !
STTIT2 0, cAl.l?ORNlA STD. ,13 (REV. 8.721 / . . .
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1 ,I 16. PROHIBITIONS AGAINST CITY ASSIGNING, SUBLETTING: This
2 I Agreement shall not, nor shall any interest therein or thereunder be assigned,
3 ii delegated, mortgaged, hypothecated, or transferred either by CITY let or /I
4 ;j sublet, or grant any licenses or permits with respect to the use and occupancy
5, I( of the premises or any portion thereof, without obtaining the prior written
6 :I consent of STATE which shall not be unreasonably withheld. This paragraph I
7 does not apply to the provisions of Paragraph 7 (MAINTENANCE OBLIGATIONS OF
8 ,j CITY) and Paragraph 8 (CONCESSIONS) above.
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10 /I 17. DEFAULTS AND REMEDIES: Either party may terminate this 11
11 i Agreement for breach by the other party upon giving the other party written
/I 12 ;; notice at least sixty (60)
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14 In the event of 'I
days prior to said termination date.
any breach of this Agreement by STATE, CITY shall
15 ii notify STATE in writing of such breach, and STATE shall have thirty (30) days
I 16 11 in which to initiate action to cure said breach. /
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18 ' j In the event of any breach of this Agreement by CITY, STATE shall
19 '/ notify CITY in writing of said breach, and CITY shall have thirty (30) days in
20 : which to initiate action to cure said breach.
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22 :j 18. NOTICES: All written notices pursuant to this Agreement shall
23 ,I be addressed as set forth below or as either party may hereafter designate by I
24 ~ written notice and shall be personally delivered or sent through the United
25.i States mail:
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I COURT PAPER *TATS 0, CAUCOIINIA STD. , 13 , REV. 8.721
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1: STATE: State of California
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Department of Parks and Recreation
Concession Programs Division
P.O. Box 942896
Sacramento, CA 94296-0001
7 '4 With Copy to:
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Southern Region Headquarters
1333 Camino De1 Rio South, Suite 200
San Diego, CA 92108
13 CITY: City Manager
City of Carlsbad
15 /: 1200 Elm Avenue
I 16 ,! Carlsbad, CA 92008-1982
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18 j j 19. TERMINATION: Notwithstanding the provisions of Paragraph 17
19 :I (DEFAULTS AND REMEDIES) either party may terminate this Agreement for any
reason. The party who wishes to .terminate the Agreement shall give written
21 ;! notice of its intention no later than three hundred and sixty five (365) days I
11 22 ji before the scheduled termination date. Such notice shall be given in writing i/
23 I' and shall be effective on the date given in the notice as the scheduled date
24 j for the termination of the Agreement. In the event that the STATE is the
I 25, party choosing to terminate the Agreement, the STATE shall pay to CITY on the / I 26 j termination date a sum of money equal to the depreciated cost of the
27 / improvements ins-talled or constructed upon the premises by the CITY with the
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COURT PAPER .j
sT*T2 0, cAl.I~ORNIA /I
STD. 113 IRE”. S.‘lPI :; II
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following exceptions, (a) improvements erected with funds realized through
income from the premises, and (b) improvements the cost of which CITY has been
paid or reimbursed by STATE, through grants or other sources.
Depreciated costs shall be computed in the following manner:
A. Upon completion of improvements, or within sixty (60) days of
opening for public use, whichever is later, CITY will submit verified cost
statements accompanied by substantiating invoices and bills of labor,
material, or any other reasonable construction costs, to STATE. These costs,
plus such future construction costs when expended shall represent the cost of
improvements.
B. The cost of improvements shall be depreciated on a straight
line basis over twenty (20) year life. The depreciated cost shall be
determined by dividing the cost of improvements by two hundred forty (240)
months and multiplying the results by the number of whole months remaining in
the term of the Agreement at the scheduled termination date.
C. STATE may not commence termination proceedings until such time
as the funds required for such termination and reimbursement have been
obtained through appropriations by the Legislature and through the normal
budgeting process of the STATE.
It is expressly understood that the above-described reimbursement
provisions are not applicable where STATE terminates this Agreement for any
breach on the part of CITY.
COURT PAPER
l T*Ts 0, cAuIonw1,. )I
STD. 113 I REV. B-72) i
a5 34769
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1 In the event of br.each, bankruptcy, insolvency, abandonment, or
2 termination of Agreement upon CITY’S request, the above-described
3 reimbursement provision shall not apply and shall not be considered an
4 !i obligation of the STATE.
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6 ;: 20. REAL PROPERTY ACQU ISiTION: It is understood and agreed by the
7 : parties hereto, that all applications for real property rights, appurtenant to
8 ,: the real properties herein described, shall be made in the name of and on
g i! behalf of STATE, and shall be subject to the prior approval in writing of
10 '~ STATE.
12 j, 21. NONDISCRIMINATION: Pursuant to Public Resources Code
1.3 Section 5080.34, this Agreement prohibits, and every contract on lands that
14 : are subject to this Agreement shall expressly prohibit, discrimination against
15 (1 any person because of race, color, religion, sex, marital status, national
16 !/ origin, or ancestry of that person. Attached Standard Form 17A is
17 :/ incorporated herein.
18
19 22. LIMITATION: This Agreement is subject to all valid and
20 existing contracts, leases, licenses, encumbrances, and claims of title which
21 may affect premises.
22 I I
23 ,I 23. PARAGRAPH TITLES: The paragraph titles in this Agreement are
24 / inserted only as a matter of convenience and for reference, and in no way
25 ;I define, limit, or describe the scope or intent of this Agreement or in any way
26 1 affect this Agreement. I ! 27 11 ---
COURT PAPER aTATs 0, ULICOnNIA STD. 113 , *E”. 8.72)
a5 34769 I
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1 24. AGREEMENT IN COUNTERPARTS: This Agreement is executed in
2 counterparts each of which shall be deemed an original.
3
4 ‘I 25. AGREEMENT IN WRITING: This Agreement contains and embraces the
5 ,I entire Agreement between the parties hereto and neither it nor any part of it
6 ~ may be changed, altered, modified, limited, or extended orally, or by any
7' Agreement between the parties unless such Agreement be
0 signed, and acknowledged by the STATE and CITY, or the
expressed in writing,
ir successors in
g /I interest.
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!I 26. INSPECTION: STATE or its authorized representative shall have
12 ,: the right at all reasonable times to inspect the premises to determine if the
13 ~ provisions of this Agreement are being complied with.
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27. SUCCESSORS IN INTEREST: Unless otherwise provided in this
16 :I Agreement, the terms, covenants, and conditions contained herein shall apply
17 '1 to and bind the heirs, successors, executors, administrators, and assigns of
18 all the parties hereto, all of whom shall be jointly and severally liable
19 hereunder.
20
21' 28. PARTIAL INVALIDITY: If any term, covenant, condition, or
22 ; provision of this Agreement is held by a court of competent jurisdiction to be
23 invalid, void, or unenforceable, the remainder of the provisions hereof shall
24 ', remain in full force and effect and shall in no way be affected, impaired, or
25 / invalidated thereby.
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COURT PAPER ‘I STATS 0, cAl.l~onNlA I STD. 113 IRE”. (1.721 1
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COURT PAPER STATE 01: CALl.O”HI* STD. 113 (REV. 8.72)
65 34769
29. WAIVER OF RIGHTS: The failure of STATE or CITY to insist upon
strict performance of any of the terms, conditions, and covenants in this
Agreement shall not be deemed a waiver of any right or remedy that STATE or
CITY may have, and shall not be deemed a waiver of any right or remedy for a
subsequent breach or default of the terms, conditions, and covenants herein
contained.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
CITY OF CARLSBAD
CITY ATTORNEY DEPARTMENT OF GENERAL SERVICES
RONALD R. BALL., AssYstant
City Attorney
CITY CLERK
Attest
Karen R. Kundtz, Assistant
City Clerk
0-8232X
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STATE OF CALIFORNIA DEPARTMENT OF PARKS AND RECREATION
BY
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LAND OWNERSHIP RECORD DEPARTiENl OF PARKS AND RKREATKJN
uvmvm c2tL&~~-.---.- mm5 yl aa Dill -0 ,117 “.“.L,“I,’
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NONDISCRIMINATION
(Ocp - 1)
CLAUSE
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1, During the performance of this contract,* contractor and its subcontrdctors shall not unlawfully.discriminate aSafnst any employee or applicant for employment because of race, reli- gion, color, national orf medical condition, 9 in, ancestry, physical handicap, marfta status, age (over 40) or sex, Contractors and subcontractors shall insure that the evalua- tion and treatment of their employees and applicants for em loyment are free of such discrimination, Contractors and su contractors & shall comply with the Provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et se 1 and the applicable regulations promul ated thereunder Kali%rnia Administrative Code, Title 2, Sect on 7285,O et 4 seq,L The applicable regulations of the Fair Emoiovment. and Housing Commission im lemznting Government Code, Section 2990, set forth in Chapter !! 1 of Division 4 of Title 2 of the Ca i- fornia Administrative Code are incorporated into this contract by reference and made a part hereof as if set forth in full., Contractor and its subcontractors shall give written notice of their obligations under thfs clause to Iabor organizations with which they have a co1 lective bargaining or other agreement,
2, This contractor shali include the nondiscrimination and com- pliance provisions of this clause in all subcontracts to perform work under the contract
STD. I7A (NEW S-83)
1 .STAlE OF CALIFORNIA-THE RESOURCES AGENCY
DEPARTMENT OF PARKS AND RECREATION
La Costa District
GEORGE DEUKMEJIAN, Governor
2680 Car&bad Boulevard
Carlsbad, CA 92008
(619) 729-8947
May 30, 1990
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Attn: Karen R. Kundtz
Attached is one fully executed copy (original signatures) of the Operating Agreement for the Ocean Street Sculpture Park.
Thank you for your assistance in this matter.
Sincerely,
William V. Fait District Superintendent
cc: John Cahill, Carlsbad City Municipal Projects Manager
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Paragraph Page
OPERATING AGREEMENT
CARLSBAD STATE BEACH
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Premises ............................. Use ................... . ...........
Term ............................... Consideration ..........................
Construction ...........................
Ownership of Improvements ....................
Maintenance of Obligations of City ................
Concessions ...........................
Revenues .............................
Records and Accounts .......................
Beach Erosion Control and Protection Work ............
Eminent Domain Proceedings .................... Utilities
Public Liabilit; induia&l ........................................
Hold Harmless Agreement .....................
Prohibitions Against City Assigning, Subletting .........
Defaults and Remedies ...................... Notices
Terminatiin'
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Real Property'A&i;iti&' :
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Nondiscrimination ........................
Limitation ............................
Paragraph Titles .........................
Agreement in Counterparts .................... Agreement in Writing ... ; ................... Inspection ............................ Successors in Interest ......................
Partial Invalidity ........................
Waiver of Rights .........................
Signatures ............................ Exhibits .............................
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COURT PAPER II STATS 0. cAL,,o*III* STD. 113 IRB”. 6.721 :,
95 34769
OPERATING AGREEMENT
CARLSBAD STATE BEACH
THIS OPERATING AGREEMENT (Agreement), made and entered into this
10 th day of April 1990, by and between STATE OF CALIFORNIA, acting through
the Department of Parks and Recreation, hereinafter referred to as "STATE",
and the City of Carlsbad hereinafter referred to as "CITY", without regard to
number and gender.
WITNESSETH --------em
A. Pursuant to the provisions of Section 5080.30, et seq., of the
Public Resources Code of the State of California, STATE may enter into an
operating agreement with subdivisions of the State of California for the
development and operation of lands under the jurisdiction of STATE for the
purpose of the State Park System.
B. STATE has acquired for park and recreational purposes certain
real property known as "Carlsbad State Beach as identified in Exhibit A
attached. These park properties are located-within the City of Carlsbad in
the County of San Diego.
C. STATE and CITY desire to enter into an Agreement to provide for
the development, operation, control, and maintenance of a part of Carlsbad
State Beach by the City of Carlsbad as identified on Exhibit "A".
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NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto do hereby covenant and agree as follows:
1. PREMISES: STATE authorizes CITY to develop, operate, control,
and maintain a portion of Carlsbad State Beach, as shown on Exhibit "A"
attached, and hereby made a part hereof. STATE shall not be liable for any
costs of development, maintenance, control, or operation of the premises.
2. USE: CITY agrees to develop, operate, control, and maintain
the premises as public recreational beach/park facilities to be accessible and
subject to the use and enjoyment of the general public. Such development and
operation of the premises shall be conducted in accordance with the approved
13 " State General Plan for Carlsbad State Beach adopted November 1983 and all
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regulations. Copies of said General Plans are on file at the San Diego Coast
District Office, 2680 Carlsbad Boulevard, Carlsbad, CA 92008.
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19 ~j under the current Carlsbad State Beach general plan, CITY may prepare an
z. 'i amendment to said plan, pursuant to Public Resources Code Section 5080.31
21 ! which amendment shall be submitted to and approved by the California State I
22 Park and Recreation Comnission;
24 ji CITY may adopt rules and regulations for the use and enjoyment of
25 /I the premises. Any such rules and regulations adopted by CITY shall conform to
26 i/ and be consistent with the rules and regulations adopted by STATE and :I 27 ./ --- 11 1
COURT PAPER STITZ 0, CALIIOINIA STD. 113 ,RE”. 8-77.1
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generally applicable to the State Park System, including said property. Said
premises shall not be used for any other purpose than those herein described.
3. TERM: The term of this Agreement shall be twenty (20) years
and shall commence on April 1, 1990 and end on June 30, 2009.
CITY shall have the option to extend the term of this Agreement for
an additional twenty (20) year period subject to approval of STATE.
Notification of said exercise of option shall be submitted to STATE in writing
at least 18 months prior to the termination date of this Agreement,
4. CONSIDERATION: In consideration of the services to be
performed by CITY pursuant to this Agreement, i.e., development, care,
maintenance, operation, and control of subject premises, STATE hereby
authorizes the use of the said premises by CITY on a rent-free basis on the
condition that CITY exert a good faith effort in performing the services
identified in this paragraph. In the event that CITY fails to perform in good
faith, such services for the benefit, use, and enjoyment for the general
public, this beach park unit identified in Exhibit "A" shall revert back to
the STATE.
5. CONSTRUCTION: CITY, at no cost or expense to STATE, may
undertake new development, construction, or improvements to enhance public
recreational facilities at this park unit. Such development, construction, or
improvements shall be in accordance with the State General Plan for Carlsbad
State Beach. All plans and specifications for improvement and development
shall be approved by STATE to ensure that such plans comply with STATE'S
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requirements. No such improvement or development including beach erosion
control and protection, shall be commenced by CITY'S own forces or by its
contractors without prior written STATE approval of such plans and
specifications. STATE agrees to communicate its approval or disapproval of
such plans and specifications, in writing, within forty five (45) days of
receipt of same (disapprovals shall be accompanied with written explanation of
reasons for such disapproval). STATE, however, agrees not to unreasonably
withhold said approval, and if STATE fails to so approve or specify changes,
then approval is deemed to be given at the end of the forty five (45) day
period.
6. OWNERSHIP OF IMPROVEMENTS: Upon termination of this Agreement
pursuant to any provisions under Paragraph 19 (TERMINATION), all improvements
constructed shall become part of the realty and title to said improvements
shall vest in STATE. For all improvements erected on the premises by CITY, a
Notice of Completion shall be filed with the STATE.
Notwithstanding the above, art park elements consisting of art
19 sculpture shall remain the property of the CITY and at the time of expiration
20 ii or termination of the operating agreement may be removed or relocated off
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7. MAINTENANCE OBLIGATIONS OF CITY: During the term of this
Agreement, CITY at no cost or expense to STATE shall provide for upkeep and
maintenance of the premises in a safe, good condition, and in substantial
26 '/ repair, and all improvements of any kind which may be erected, installed, or
27 / placed thereon. During the term of this agreement it shall be CITY’S
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COURT PAPER STATI OF CALICOINIA STD. (13 ,RE”. 8.7Pl
65 34769
/! responsibility to ensure that the premises are maintained in such a level and
, standard of condition and repair as other city park and beach facilities.
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8. CONCESSIONS: Subject to prior approval in writing by STATE,
CITY may grant concessions in or upon the premises consistent with the
requirements of the STATE under Section 5080.33 and 5080.34 of the Public
Resources Code. All concession contracts shall be subject to the requirements
of the Public Resources Code Section 5080.20. No concession shall be granted
by CITY which will exploit public lands for comnercial purposes.
9. REVENUES: Any income to CITY derived from its control and
operation of premises for services, benefits, or accomnodation to the general
public shall strictly be used for operation and maintenance expenses of the
premises. Any such portion of income as may exceed costs and expenses shall
be utilized for the benefit of the premises.
10. RECORDS AND ACCOUNTS: CITY shall, at all times during the term
of this Agreement, keep separate, true and complete books, records, and
accounts of all income and fees received and all expenditures made by CITY in
relation to concessions, special services, and all other matters incident to
the development, control, and operation of the premises. CITY shall report
said income and expenditures to STATE on an annual basis, which annual report
shall be submitted for the period comnencing July 1st and ending June 30th of
each reporting year, and shall be filed with STATE not later than the
following September 30th. Said report shall include a reasonable weekly
estimate of the number of visitors to the area, as well as the number of
vehicles.
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The books, records, and accounts kept by CITY applying to the
operation of the premises, shall at all reasonable times be open for audit or
inspection by STATE.
The annual report required by this clause shall be delivered to
STATE at the address set forth in Paragraph 18 (NOTICES).
11. BEACH EROSION CONTROL AND PROTECTION WORK: Any development,
beach erosion control, or protection work which may be-undertaken by STATE or
the United States of America, along or on the premises, in the manner provided
by law or under the rules of STATE, shall not, in any way be construed as
constituting a termination of this Agreement or in any way affecting same.
STATE shall have the right to enter into agreements for such work
during the term hereof and to go upon the premises or to authorize any person,
firm, or corporation to go upon the premises for the purposes of such
construction, beach erosion control, or protection work, or the doing of other
public work for the improvement or development of the premises, provided that
19 j: STATE except for emergency repair, shall give CITY three (3) months prior
20 :' written notice of its intention to do any of the work herein mentioned. CITY
I/ 21 :I shall be given the opportunity to review and comment on plans and
22 ;/ specifications before such work is undertaken. STATE agrees to repair, at its
(1 23 j[ sole cost and expense, any damage to CITY'S improvements caused by such
24 j hereinabove described work.
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26 Ii 12. EMINENT DOMAIN PROCEEDINGS: If the premises or any portion I
27 thereof is taken by proceedings in eminent domain, STATE shall receive the
COURT PAPER STATE 01 cALIIOINIA STD. 113 t RL”. S-72)
65 347a ;/ 6 jl
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. . I; .: 1 ii entire award for such taking except that CITY shall receive out of said award
2 li the fair market value of any improvements then existing and constructed by
il 3 / CITY, except for: (a) improvements erected with funds realized through income
4 from the premises, and (b) improvements the costs of which CITY has been paid
5 I or reimbursed by STATE through grants or other sources. Fair market value
6 / shall be determined by said proceedings taking into consideration the terms of
7 11 this Agreement.
13. UTILITIES: CITY shall be responsible for all utility charges
10 // supplied to the premises.
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4 12 j; 14. PUBLIC LIABILITY INSURANCE: CITY agrees, at its sole expense,
13 ji to maintain in force during the term of this Agreement comprehensive general
I’ !! 14 / liability insurance, insuring against claims for injuries to persons or
1, I5 /I property occurring in, upon, or about premises. Said insurance shall have
I 16 !, limits of not less than $500,000 and $l,OOO,OOO for injuries to person or
!I I.7 I/ persons, respectively; not less than $150,000 for property damage; and said
18 '1 limits shall be adjusted annually to reflect changes in the prior year's
19 ~1 Consumer Price Index (CPI) for Los Angeles - Anaheim - Riverside (all urban
20 'j consumers - all items), promulgated by the Bureau of Labor Statistics of the
21 i/ U.S. Department of Labor. STATE agrees that CITY, at CITY’S option, may
‘I 22 :) self-insure the coverages required by this Paragraph 14 (PUBLIC LIABILITY
23 ~’ INSURANCE). /
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25 j/ 15. HOLD HARMLESS AGREEMENT: CITY shall indemnify, hold harmless, II
26 I/ and defend STATE, its officers, agents, and employees against any and all
;I 27 I/ claims, demands, damages, costs, expenses, or liability costs arising out of
COURT PAPER STATS 0, ULICORNIA j STD. 113 (REV. 8.721 i Ii 66 34769 ii I
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the development, operation, or maintenance of the property by CITY described
herein which claims, demands, or causes of action arise under Government Code
Section 895.2 or otherwise, except for liability arising out of the concurrent
or sole negligence, or deliberate act of STATE, its officers, agents, or
employees.
In the event STATE is named as co-defendant in a legal action, under
the provisions of the Government Code Section 810 et seq., and CITY is served
with process of such legal action, then CITY shall immediately notify STATE of
such fact and shall represent STATE in such legal action as provided herein
unless STATE undertakes to represent itself as co-defendant in such legal
action, in which event STATE shall bear its own litigation costs, expenses,
and attorney's fees.
In the event CITY is named as co-defendant in a legal action, under
the provisions of the Government Code Section 810 et seq., and STATE is served
with process of such legal action., then STATE shall immediately notify CITY of
such fact and shall represent CITY in such legal action unless CITY undertakes
19 !! to represent itself as co-defendant in such legal action, in which event CITY
20 '1 shall bear its own litigation costs, expenses, and attorney's fees.
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23 / the concurrent negligence of STATE and CITY, their officers, agents, or ,
24 j employees, an apportionment of liability to pay such judgment shall be made by
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a court of competent jurisdiction. Neither party shall request a jury
apportionment.
COURT PAPER /
STATE 0, cALl,OIINI* ! STD. 113 ,RE”. a-721
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COURT PAPER ! i! STATS 0, CALIIORNIA ! STD. 113 ,RL”. 8.72)
85 34769
16. PROHIBITIONS AGAINST CITY ASSIGNING, SUBLETTING: This
Agreement shall not, nor shall any interest therein or thereunder be assigned,
delegated, mortgaged, hypothecated, or transferred either by CITY let or
sublet, or grant any licenses or permits with respect to the use and occupancy
of the premises or any portion thereof, without obtaining the prior written
consent of STATE which shall not be unreasonably withheld. This paragraph
does not apply to the provisions of Paragraph 7 (MAINTENANCE OBLIGATIONS OF
CITY) and Paragraph 8 (CONCESSIONS) above.
17. DEFAULTS AND REMEDIES: Either party may terminate this
Agreement for breach by the other party upon giving the other party written
notice at least sixty (60) days prior to said termination date.
In the event of any breach of this Agreement by STATE, CITY shall
notify STATE in writing of such breach, and STATE shall have thirty (30) days
in which to initiate action to cure said breach.
In the event of any breach of this Agreement by CITY, STATE shall
notify CITY in writing of said breach, and CITY shall have thirty (30) days in
which to initiate action to cure said breach;
18. NOTICES: All written notices pursuant to this Agreement shall
be addressed as set forth below or as either party may hereafter designate by
written notice and shall be personally delivered or sent through the United
States mail:
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. 1 STATE: State of California
2 I; ,/ Department of Parks and Recreation
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Concession Programs Division
P.O. Box 942896
Sacramento, CA 94296-0001
With Copy to:
Southern Region Headquarters
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1333 Camino De1 Rio South, Suite 200
San Diego, CA 92108
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13 CITY: City Manager
14 j/ City of Carlsbad
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1200 Elm Avenue
Carlsbad, CA 92008-1982 ii
18 ii 19. TERMINATION: Notwithstanding the provisions of Paragraph 17
19 ii (DEFAULTS AND REMEDIES) either party may terminate this Agreement for any
20 reason. The party who wishes to terminate the Agreement shall give written ,
21 :i notice of its intention no later than three hundred and sixty five (365) days
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COURT PAPER /j SflTL 0, cAL,CO”Nr* I) STD. 113 (REV. 8.7PI iJ IQ
65 34769
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before the scheduled termination date. Such notice shall be given in writing
and shall be effective on the date given in the notice as the scheduled date
for the termination of the Agreement. In the event that the STATE is the
party choosing to terminate the Agreement, the STATE shall pay to CITY on the
termination date a sum of money equal to the depreciated cost of the
improvements installed or constructed upon the premises by the CITY with the
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26 provisions are not applicable where STATE terminates this Agreement for any
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COURT PAPER ST*,= 01 CALICOLNIA STD. 113 IRE”. e-721
65 34769
following exceptions, (a) improvements erected with funds realized through
income from the premises, and (b) improvements the cost of which CITY has been
paid or reimbursed by STATE, through grants or other sources.
Depreciated costs shall be computed in the following manner:
A. Upon completion of improvements, or within sixty (60) days of
opening for public use, whichever is later, CITY will submit verified cost
statements accompanied by substantiating invoices and bills of labor,
material, or any other reasonable construction costs, to STATE. These costs,
plus such future construction costs when expended shall represent the cost of
improvements.
B. The cost of improvements shall be depreciated on a straight
line basis over twenty (20) year life. The depreciated cost shall be
determined by dividing the cost of improvements by two hundred forty (240)
months and multiplying the results by the number of whole months remaining in
the term of the Agreement at the scheduled termination date.
C. STATE may not comnence termination proceedings until such time
as the funds required for such termination and reimbursement have been
obtained through appropriations by the Legislature and through the normal
budgeting process of the STATE.
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1 ‘/ In the event of breach, bankruptcy, insolvency, abandonment, or
2 1 termination of Agreement upon CITY’S request, the above-described
3 jl reimbursement provision shall not apply and shall not be considered an
4 /i obligation of the STATE.
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6! 20. REAL PROPERTY ACQUISITION: It is understood and agreed by the
!, 7 ii parties hereto, that all applications for real property rights, appurtenant to
8 ii the real properties herein described, shall be made in the name of and on
I g ii behalf of STATE, and shall be subject to the prior approval in writing of :I
IO /I STATE.
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12 :i :/ 21. NONDISCRIMINATION: Pursuant to Public Resources Code
13 : Section 5080.34, this Agreement prohibits, and every contract on lands that
14 / are subject to this Agreement shall expressly prohibit, discrimination against
15 I any person because of race, color, religion, sex, marital status, national
/i 16 I; origin, or ancestry of that person. Attached Standard Form 17A is
17 1 incorporated herein.
18 I
19 ~ 22. LIMITATION: This Agreement is subject to all valid and
20 ; existing contracts, leases, licenses, encumbrances, and claims of title which
21 / may affect premises. I
22 j I 23 '1 23. PARAGRAPH TITLES: The paragraph titles in this Agreement are
24 : inserted only as a matter of convenience and for reference, and in no way
25 define, limit, or describe the scope or intent of this Agreement or in any way
1 26 affect this Agreement.
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15 27. SUCCESSORS IN INTEREST: Unless otherwise provided in this
16 I/ Agreement, the terms, I' covenants, and conditions contained herein shall apply
17 /I to and bind the heirs, successors, executors, administrators, and assigns of
il
24.. AGREEMENT IN COUNTERPARTS: This Agreement is executed i n
counterparts each of which shall be deemed an original.
25. AGREEMENT IN WRITING: This Agreement contains and embraces the
entire Agreement between the parties hereto and neither it nor any part of it
may be changed, altered, modified, limited, or extended orally, or by any
Agreement between the parties unless such Agreement be expressed in writing,
signed, and acknowledged by the STATE and CITY, or their successors in
interest.
26. INSPECTION: STATE or its authorized representative shal
the right at all reasonable times to inspect the premises to determine
provisions of this Agreement are being complied with.
1 have
if the
18 '1 all the parties hereto, all of whom shall be jointly and severally liable
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21 28. PARTIAL INVALIDITY: If any term, covenant, condition, or
22 provision of this Agreement is held by a court of competent jurisdiction to be
hereunder.
23 /j invalid, void, or unenforceable, the remainder of the provisions hereof shall jj
24 remain in full force and effect and shall in no way be affected, impaired, or
25 ;j invalidated thereby.
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COURT PAPER STITE OF CAllfORNlA STD. 113 IRE”. 8.721
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29. WAIVER OF RIGHTS: The failure of STATE or CITY to insist upon
strict performance of any of the terms, conditions, and covenants in this
Agreement shall not be deemed a waiver of any right or remedy that STATE or
CITY may have, and shall not be deemed a waiver of any right or remedy for a
subsequent breach or default of the terms, conditions, and covenants herein
contained.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
CITY OF CARLSBAD MAYOR
BY
CITY ATTORNEY
RONALD P. BALL., Assistant
City Attorney
CITY CLERK
Attes
Karen R. Kundtz, Assistant
City Clerk
0-8232X
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STATE OF CALIFORNIA DEPARTMENT OF PARKS AND RECREATIOC
BY
hief Deputy Dire&or
DEPARTMENT OF GENERAL SERVICES
BY
RI 1 l=pp y POLICY lsUpSpT I
Departmmtd Ganwel Services
APPROVED
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NONDISCRIMINATION CLAUSE
(OCP - 1)
I, During the performance of this contract; contractor and’its subcontractors shall not unlawfulIy~discrfminate against any employee or applicant for employment because of race, reli- gion, color, national ori medical condition, marita 9 in, ancestry, physical handicap, status, age (over 40) or sex. Contractors and subcontractors shall insure that the evalua- tion and treatment of their employees and applicants for em loyment are free of such discrimination, Contractors and su Ii contractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et se 1 and the applicable regulations promul ated thereunder tCali?ornia Administrative Code, Title 2, Sect on 7285,O et f seq,), The applicable regulations of the Fair Employment and Housing Commission im lementina Government Code, Section set forth in Chapter F of Diviiion 4 of Title 2 of the Ca i- 1 2990,
fornia Administrative Code are incorporated into this contract bv reference and made a Dart hereof as if- set forth in full., &tractor and its subcontractors shall g.ive written notice of their obligations under this clause to labor organisations with which they have a co1 lective bargaining or other agreement,
2, This contractor shali include the nondiscrimination and com- pl.iance provisions of this clause in all subcontracts to perform work under the contract, ,
STD. 17A (NEB S-83)