HomeMy WebLinkAbout2011-02-08; City Council; 20440; MAINTENANCE AGREEMENT OCEAN ST SCULPTURE PARKCITY OF CARLSBAD - AGENDA BILL
AB#
MTG. 02/08/11
20.440
DEPT. Parks &Rec
OPERATIONS AND MAINTENANCE
AGREEMENT WITH CALIFORNIA
RESOURCES AGENCY FOR THE
OCEAN STREET SCULPTURE PARK
DEPT. DIRECTOR
CITY ATTORNE
CITY MANAGER
RECOMMENDED ACTION:
Adopt Resolution No. 2011-014 authorizing the Mayor to execute an agreement between
the City of Carlsbad and the State of California - Resources Agency for the development,
operation, control and maintenance of that portion of Carlsbad State Beach known as Ocean
Street Sculpture Park.
ITEM EXPLANATION:
In 1990, the city adopted Resolution No. 90-99 approving a twenty-year Operating and
Maintenance Agreement with the California Department of Parks and Recreation for the
landscaped area and adjacent parking lot at Carlsbad Boulevard and Pine Avenue, known
as Ocean Street Sculpture Park. The initial improvements to the area included a steel art
sculpture commissioned by the city. That sculpture was subsequently removed and replaced
with grass, at the desire and expense of the city.
Under the terms of the Operating and Maintenance agreement, the city performs all routine
maintenance services to this grass/planter area, its amenities (e.g., concrete benches,
receptacles/stations, drinking fountains, etc.), and the adjacent parking lot at the southern
terminus of Ocean Street. According to the provisions, the state authorizes the use of the
half acre property by the city on a rent-free basis, on the condition that the city exerts a good
faith effort in performing appropriate maintenance activities. The cost of those activities has
been borne by the city's Parks Maintenance Operating Budget.
In April 2010 [notwithstanding the June 30, 2009 error date in the agreement], the original
20-year agreement expired and staff is recommending the Council approve a successor
operating agreement with the state to continue the same development, operation, control
and maintenance activities to this area. Staff would continue to provide operation and
maintenance in a manner that ensured the property met city park maintenance standards.
The current estimated annual cost of those activities is $7,000 per year. The term of the
new operating agreement would again be for twenty years, and would expire on March 31,
2030. After March 31, 2030, the agreement would continue month-to-month until terminated.
DEPARTMENT CONTACT: Steve Jantz 760-434-2838, steve.iantz@carlsbadca.gov
FOR CITY CLERKS USE ONLY.
COUNCIL ACTION: APPROVED
DENIED
CONTINUED
WITHDRAWN
AMENDED
XDn
D
D
CONTINUED TO DATE SPECIFIC
CONTINUED TO DATE UNKNOWN
RETURNED TO STAFF
OTHER -SEE MINUTES
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FISCAL IMPACT:
No new fiscal impact is associated with this successor agreement. All operations and
maintenance costs associated with the Ocean Street Sculpture Park would continue to be
borne within the city's existing Parks Maintenance Operating Budget.
ENVIRONMENTAL IMPACT
The proposed action does not qualify as a "project" under the California Environmental
Quality Act (CEQA) per State CEQA Guidelines Section 15378, as it does not result in a
direct or reasonable foreseeable indirect physical change in the environment.
EXHIBITS:
1. Resolution No. 2011-014 authorizing the Mayor to execute an agreement between the
City of Carlsbad and the State of California - Resources Agency for the development,
operation, control and maintenance of that portion of Carlsbad State Beach known as
Ocean Street Sculpture Park.
2. Operating Agreement with City of Carlsbad for Carlsbad State Beach
3. 1990 Operating Agreement with City of Carlsbad for Carlsbad State Beach (Expired)
1 RESOLUTION NO. 2011-014
2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD AUTHORIZING THE MAYOR TO EXECUTE A
3 RATIFICATION OF THE OPERATING AGREEMENT WITH
4 THE STATE OF CALIFORNIA - RESOURCES AGENCY
FOR THE CITY OF CARLSBAD TO CONTINUE
5 PERFORMING MAINTENANCE OPERATIONS OF THE
PORTION OF CARLSBAD STATE BEACH KNOWN AS
6 OCEAN STREET SCULPTURE PARK
7
8 WHEREAS, pursuant to City Council Resolution No. 90-99, the City Council of
9 the City of Carlsbad determined it necessary, desirable, and in the public interest to
10 construct public park improvements on property owned by the State of California; and
11 WHEREAS, on April 10, 1990 the City of Carlsbad entered into an Operating and
12 Maintenance Agreement with the California Department of Parks and Recreation for the
13 property at Carlsbad Boulevard and Pine Avenue known as the Ocean Street Sculpture
14 Park; and
15 WHEREAS, the current Operating and Maintenance Agreement has expired and
16 the city and state desire to enter into a successor Operating Agreement for
17 maintenance activities at the Ocean Street Sculpture Park; and
18 WHEREAS, the City Council of the City of Carlsbad hereby finds it desirable and
19 in the public interest to enter into a 20-year Operating Agreement with the State of
20 California - Resources Agency to continue to provide maintenance activities at the
21 Ocean Street Sculpture Park.
22 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
23 Carlsbad, California as follows:
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1. That the above recitations are true and correct.25
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1 2. That the Operating Agreement with the State of California - Resources
Agency is hereby approved and the Mayor is authorized and directed to
2 execute said agreement.
3 3. That following execution of said agreement, the City Clerk is authorized and
4 directed to forward the six (6) copies of the agreement with original signatures
and a copy of this resolution to the State of California, Department of Parks
5 and Recreation, Attention Concessions Specialist Donna Renner, San Diego
Coast District Office, 4477 Pacific Highway, San Diego CA 92110.
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PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council
of the City of Carlsbad on the 8th day of February, 2011, by the following vote to wit:
AYES: Council Members Hall, Kulchin, Blackburn, Douglas and Packard
NOES: None.
ABSENT: None.
MATt HALL, Mayor
ATTEST:
bORRAlNE M. WOOD, City Clerk
,J
Operating Agreement
with
City of Carlsbad
for
Carlsbad State Beach
STATE OF CALIFORNIA - RESOURCES AGENCY
DEPARTMENT OF PARKS AND RECREATION
CONCESSIONS DIVISION
1416 NINTH STREET, 14™ FLOOR
SACRAMENTO, CA 95814
State Park Operating Agreement
OPERATING AGREEMENT
for
Carlsbad State Beach
INDEX
1. PREMISES 2
2. TERM 2
3. USE OF PREMISES 2
4. CONSIDERATION 3
5. CONSTRUCTION AND COMPLETION OF IMPROVEMENTS 3
6. MAINTENANCE OBLIGATIONS OF CITY 5
7. CONCESSIONS 6
8. TAXES , 6
9. RECORDS AND ACCOUNTS 7
10. BEACH EROSION CONTROL AND PROTECTION WORK : 7
11. UTILITIES AND SERVICES 8
12. INSURANCE 8
13. HOLD HARMLESS AGREEMENT
14. EMINENT DOMAIN PROCEEDINGS
9
10
15. PROHIBITIONS AGAINST ASSIGNING, SUBLETTING 10
16. NOTICES j 10
17. DEFAULTS AND REMEDIES \ 11
18. TERMINATION \ 11
19. SURRENDER OF THE PREMISES-:HOLDING OVER.... .:..... 12
20. REAL PROPERTY ACQUISITION 12
21. COMPLIANCE WITH LAWS, RULES, REGULATIONS, AND POLICIES 12
22. NONDISCRIMINATION 13
23. DISABILITY ACCESS LAWS 13
24. NATIONAL LABOR RELATIONS BOARD CERTIFICATION 14
25. DRUG-FREE WORKPLACE 14
26. ENVIRONMENTAL AWARENESS AND RESOURCE PROTECTION.... 14
27. HAZARDOUS SUBSTANCES 15
State Park Operating Agreement
28. SIGNS AND ADVERTISING... 16
29. INTELLECTUAL PROPERTY RIGHTS 17
30. PARTICIPATION IN STATE PARK MARKETING PROGRAMS 17
31. CHILD SUPPORT COMPLIANCE ACT 17
32. DISPUTES 18
33. LIMITATION 18
34. SECTION TITLES 18
35. AGREEMENT IN COUNTERPARTS 18
36. INSPECTION 18
37. SUCCESSORS IN INTEREST 18
38. PARTIAL INVALIDITY 19
39. TIME OF ESSENCE 19
40. DURATION OF PUBLIC FACILITIES. 19
41. WAIVER OF RIGHTS, CLAIMS, AND AGREEMENT TERMS 19
42. INTERPRETATION OF AGREEMENT 20
43. INDEPENDENT CONTRACTOR 20
44. MODIFICATIONS AND APPROVAL OF AGREEMENT 20
IJ
State Park Operating Agreement
OPERATING AGREEMENT
with
City of Carlsbad
for
Carlsbad State Beach
THIS OPERATING AGREEMENT (Agreement), by and between STATE
OF CALIFORNIA, acting through the Department of Parks and Recreation,
hereinafter referred to as "State", and City of Carlsbad, hereinafter referred to as
"City".
WITNESSETH:
Whereas, pursuant to the provisions of Section 5080.30, et seq., of the
California Public Resources Code, State may enter into an operating agreement
with any city, county, district, public agency, or combination thereof of the State
of California for the care, maintenance, administration, and control of lands under
the jurisdiction of State for the purpose of the state park system; and
Whereas, State has acquired for park and recreational purposes certain
real properties known as Carlsbad State Beach located within the city of
Carlsbad in San Diego county; and
Whereas, 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 as identified on Exhibit A; and
Whereas, the Agreement meets the criteria for exemption from review by
the Legislature as defined in Section 5080.40 (c) of the California Public
Resources Code;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, the parties hereto agree as follows:
State Park Operating Agreement
1. PREMISES
State authorizes City to develop, operate, control, and maintain a part of
Carlsbad State Beach as shown in "Exhibit A", attached and hereby made a part
hereof, hereafter "Premises". City agrees to accept Premises, including facilities
covered by this Agreement, and take the same in their present condition "AS IS"
with all faults, and agrees to maintain the same in a safe and tenable condition,
and, at any termination of this Agreement, to promptly turn back the same to
State in the same or better condition, reasonable wear and tear excepted. State
shall not be obligated to make any alterations, additions, or betterments to the
Premises except as otherwise provided for in this Agreement. This Agreement is
not intended to and does not create any third party rights and in no event shall be
relied on by any party other than City and State.
2. TERM
The term of this Agreement shall be for a period of Twenty Years and shall
commence on April 1, 2010 and end on March 31, 2030. Should City hold-over
after the expiration of the term of this contract with the express or implied
consent of the State, such holding-over shall be deemed to be a tenancy from
month-to-month at the herein stated prescribed rent as set forth in this contract
subject otherwise to all the terms and conditions of this contract.
3. USE OF PREMISES
City agrees to develop, operate, control, and maintain the Premises as a
public recreational beach/park facility with related concessions and/or other
facilities accessible and subject to the use and enjoyment of the general public.
Development and operation of the Premises shall be conducted in accordance
with all applicable State general planning principles, State Commission policies
and all federal, state, and local government statues, laws, and regulations.
Upon written permission of State, City may improve the Premises by
constructing and operating features consistent with the approved State General
Plan for Carlsbad State Beach which is available at www.parks.ca.gov. These
State Park Operating Agreement
facilities shall not adversely affect the use and enjoyment of the Premises by the
public.
City may adopt rules and regulations for the use and enjoyment of the
Premises by the public. Any such rules and regulations adopted by City shall
conform to and be consistent with the rules and regulations adopted by State and
generally applicable to the California State Park system. The Premises shall not
be used for any purpose other than those permitted by this Agreement.
City shall not use or permit the Premises to be used in whole or in part
during the term of this Agreement for any purpose other than as herein set forth
without the prior written consent of the State.
4. CONSIDERATION
In consideration of the services to be performed by City pursuant to this
Agreement, State hereby authorizes the use of the Premises by City on a rent-
free basis on the condition that City exert a good faith effort in performing the
terms and conditions of this Agreement. In the event that City fails to perform in
good faith, the Premises shall revert back to the State, at State's option, and
State shall have the right to pursue any other remedies available under this
Agreement and/or otherwise available by law.
Any income to City derived from its control and operation of Premises for
services, benefits, or accommodation to the general public, or otherwise, shall be
used only for the maintenance, operation, administration, improvement, or
development of lands and/or facilities located within Carlsbad State Beach. Any
such portion of income as may exceed costs and expenses described in this
paragraph shall be remitted to State in accordance with Section 5080.32 (b) (2)
of the California Public Resource Code.
5. CONSTRUCTION AND COMPLETION OF IMPROVEMENTS
A. At no cost or expense to State, City may undertake new
construction, reconstruction, alteration, and maintenance to enhance public
recreation facilities subject to prior written approval by State. In the event that
State Park Operating Agreement
City desires to make modifications, improvements, or additions to the Premises
or any part of the Premises, including changes to structural design, landscape
design, or interior or exterior fixtures, design, and/or furnishings, (collectively
"Alteration(s)"), written approval by State shall be obtained prior to the
commencement of any Alterations. State shall dictate the plan approval process.
All modifications and additions shall be made in accordance with State's
standards for construction and completion of improvements. Further, all
Alterations shall be made in accordance with State's general planning principles
and with all applicable state and federal laws, rules and regulations.
B. Once prior approvals, permits, etc. have been received as required
herein above, and the work on any Alteration has begun, City shall prosecute to
completion with reasonable diligence all approved Alterations. All work shall be
performed in a professional manner, and will comply substantially with plans and
specifications submitted to State as required herein and with all applicable
governmental permits, laws, ordinances, and regulations. It shall be the
responsibility of City, at its own cost and expense, to obtain all licenses, permits,
security, and other approvals necessary for the construction of approved
Alterations. City shall comply with public bidding requirements as set forth in the
California Public Contract Code.
C. For all Alterations erected on the Premises by City, upon
completion of construction, City shall (1) record a Notice of Completion, with a
copy provided to the State; (2) provide State with a complete set of "as-built"
plans for all improvements in a format reasonably acceptable to State; (3) submit
evidence that all improvements are clear of any mechanic's liens or stop notices;
(4) submit a verified accounting of the cost for Alterations, excluding equipment
and trade fixtures that are the personal property of City; and (5) submit a verified
report demonstrating full compliance with the pertinent state and federal
accessibility laws, including but not limited to, the Americans with Disabilities Act
of 1990, Titles I, II and III.
D. Title to all Alterations existing or hereafter erected on Premises,
regardless of who constructs such improvements, shall immediately become
State Park Operating Agreement
State's property, and, upon termination of this Agreement, all improvements shall
become part of the realty and title to the Premises and shall vest in State, without
compensation to City. City agrees never to assail, contest, or resist said title.
The foregoing notwithstanding, State may elect, by notice to City, that City must
remove any Alterations that are peculiar to City's use of the Premises and are not
normally required or used by State and/or future occupants of the Premises. In
this event, City shall bear the cost of restoring the Premises to their condition
prior to the installment of the Alterations.
6. MAINTENANCE OBLIGATIONS OF CITY
A. During the term of this Agreement and at City's own cost and
expense, City shall maintain and operate the Premises including equipment,
personal property, and Alterations or improvements of any kind that may be
erected, installed, or placed thereon in a clean, safe, wholesome, and sanitary
condition free of trash, garbage, or obstructions of any kind. During the term of
this Agreement it shall be the City's responsibility to insure that the Premises are
maintained to the satisfaction of State. All construction, operation, and
maintenance shall be in accordance with all laws, codes, regulations, ordinances,
and generally accepted industry standards pertaining to such work.
B. Should City fail, neglect, or refuse to undertake and complete any
required maintenance, State shall have the right to perform such maintenance or
repairs for the City. In this event, City shall promptly reimburse State for the cost
thereof, provided, however, that State shall first give City ten (10) days written
notice of its intention to perform such maintenance or repairs. State shall not be
obligated to make any repairs to or maintain any improvement on the Premises.
City hereby expressly waives the right to make repairs at the expense of the
State and the benefit of Sections 1941 and 1942 of the California Civil Code
relating thereto, if there be any. State has made no representations respecting
the condition of the Premises, except as specifically set forth in this Agreement.
C. State reserves the right to enter the Premises for inspection and
work related to its care and maintenance during the term hereof, provided that
State Park Operating Agreement
State shall give City reasonable written notice of its intention to do any of the
work herein mentioned before such work is undertaken.
7. CONCESSIONS
Subject to prior written approval by State, City may grant concessions in
or upon the Premises consistent with the requirements of State under Sections
5080.33 and 5080.34 of the California Public Resources Code. All concession
contracts shall be subject to the requirements of the California Public Resources
Code Section 5080.20 and shall be assumable and/or subject to termination by
State, at State's sole discretion, in the event this Agreement is terminated by its
terms. No concessions that exploit public lands for commercial purpose shall be
granted by City. Further, all concession agreements shall be made subject to
audit by State. State shall have the right, through its representative and at all
reasonable times, to examine and copy all working papers supporting
Concessionaire's annual financial statement. In addition, the State, acting
through its representative, may conduct additional independent reviews of the
concession operations upon written notification of such intent to City.
8. TAXES
City, by signing this Agreement, acknowledges that occupancy interest
and rights to do business on State property may create a possessory interest as
that term is defined in Revenue and Taxation Code Section 107.6, which
possessory interest may subject a concessionaire to liability for the payment of
property taxes levied on such possessory interest. City and/or any
concessionaire engaged by City shall pay all lawful taxes, assessments, or
charges that may be levied by the State, County, City, or any tax or assessment
levying body at any time upon any interest in or created by this Agreement, or
any possessory right that City and/or any concessionaire may have in or to the
Premises covered hereby or the improvements thereon, by reason of City and/or
any concessionaire's use or occupancy thereof or otherwise, as well as all taxes,
assessments, and charges on goods, merchandise, fixtures, appliances,
6
State Park Operating Agreement
equipment, and property owned by City and/or any concessionaire in or about
the Premises.
9. RECORDS AND ACCOUNTS
A. At all times during the term of this Agreement, City shall 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,
events, 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 in accordance with "Exhibit B" Annual Revenue and
Expenditure Report, or in a similar format acceptable to State on an annual
basis, which annual report shall be submitted for the period commencing July 1st
and ending June 30th of each reporting year, and shall be filed with State no later
than the following September 30th. In addition, within forty-five (45) days of the
expiration or termination of this Agreement, City shall submit to State a statement
of income and expenditures for the period of operation not previously reported,
prepared as set forth above.
B. The books, records, and accounts applying to the operation of the
Premises and kept by City shall be open for audit or inspection by State at all
reasonable times. All records shall be kept by City for a period of at least four (4)
years. City shall be subject to State's audit requirements and remedies as set
forth herein.
10. 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 Park Operating Agreement
11. UTILITIES AND SERVICES
City shall be responsible for all expenses resulting from utilities supplied to
the Premises. City shall be responsible for distribution systems and all related
expenses within the Premises.
12. INSURANCE
A. Liability Insurance: At its sole expense, City agrees to maintain in
force during the term of this Agreement comprehensive general liability
insurance, insuring against claims for injuries to persons or property occurring in,
upon, or about Premises. The insurance shall have limits of not less ONE
MILLION DOLLARS ($1,000,000) for injuries to person or persons; not less than
ONE MILLION DOLLARS ($1,000,000) for property damage; and said limits shall
be per occurrence and shall be adjusted annually to reflect changes in the prior
year's Consumer Price Index (CPI).
B. State agrees that City, at City's option, may self-insure the
coverage required by this Section.
C. Each policy of liability insurance shall contain additional named
insured endorsements in the name of the State of California, through its
Department of Parks and Recreation, as to all insurable interests of the State
including, but not limited to, the Premises and all contents as follows:
1) State of California, its officers, employees, and servants are
included as additional insured but only insofar as operations and facilities
under this Agreement are concerned;
2) The insurer will not cancel or reduce the insured's coverage
without thirty (30) days prior written notice to State.
D. No cancellation provision in any insurance policy shall diminish the
responsibility of the City to furnish continuous insurance throughout the term of
the Agreement. Each policy shall be underwritten to the satisfaction of the State.
A signed Certificate of Insurance, with each endorsement required, including but
not limited to State's additional insured endorsement, shall be submitted to State
at the time this Agreement is executed, showing that the required insurance has
8
State Park Operating Agreement
been obtained. Further, at least thirty (30) days prior to the expiration of any
such policy, City shall submit to State a signed and completed Certificate of
Insurance, with all endorsements required by this Section, showing, to the
satisfaction of State, that such insurance coverage has been renewed or
extended. Within fifteen (15) days of State's request, City shall furnish State with
a signed and complete copy of the required policy and/or evidence of self-
insurance.
E. City agrees to impose the foregoing insurance requirements on any
and all concessionaires and shall require that State be named as an additional
insured on all policies. Failure to provide any of the required insurance and/or
endorsements shall constitute a material breach of this Agreement.
13. HOLD HARMLESS AGREEMENT
City shall indemnify, hold harmless, and defend State, its officers, agents,
and employees against any and all claims, demands, damages, costs, expenses,
or liability costs, (including but not limited to attorneys fees, experts fees, and
costs of suit), arising indirectly or directly out of the development, operation, or
maintenance of the Premises by City, or in any way related to the performance of
this Agreement by City, by reason of its acts or omissions relating to the
Premises and/or its obligation pursuant to this Agreement and/or by reason of
injury, death, property damage, or any claim arising from the alleged violations of
any state or federal law, statute, or regulations, including but not limited to the
Americans with Disabilities Act of 1990 Titles I, II and III ["ADA"], however
caused or alleged to have been caused, provided, however, in no event shall City
be obligated to defend or indemnify State with respect to the sole negligence or
willful misconduct of State, its employees, or agents (excluding City herein, or
any of its concessionaires.).
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 served with process
of such legal action, State shall immediately notify City of such fact and City shall
represent State in such legal action as provided herein unless State undertakes
State Park Operating Agreement
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 judgment is entered against State and City because of the
concurrent negligence of State and City, their officers, agents, or employees, an
apportionment of the liability to pay such judgment shall be made by a court of
competent jurisdiction. Neither party shall request a jury apportionment.
14. EMINENT DOMAIN PROCEEDINGS
If the Premises or any portion thereof is taken by proceedings in eminent
domain, State shall receive the entire award for such taking.
15. PROHIBITIONS AGAINST ASSIGNING. SUBLETTING
This Agreement and/or any interest therein or thereunder shall not be
assigned, delegated, mortgaged, hypothecated, or transferred by City without
obtaining the prior written consent of State.
16. NOTICES
Any notice and/or report required to be given or that may be given by
either party to the other shall be deemed to have been fully given when made in
writing and deposited in the United States Postal Service, postage prepaid, and
addressed as follows:
State: Department of Parks and Recreation
San Diego Coast District Office
4477 Pacific Highway
San Diego, CA92110
(619)688-3260
City: Carlsbad City Manager
1200 Carlsbad Village Drive
Carlsbad, CA 92008-1989
(760) 434-2821
Copy to: Department of Parks and Recreation
10
State Park Operating Agreement
Concession and Reservations Division
P.O. Box 942896
Sacramento, California 94296-0001
17. DEFAULTS AND REMEDIES
Any failure by a party to this Agreement to observe or perform a provision
of this Agreement, where such failure continues for thirty (30) days after written
notice of such failure, shall constitute a default and breach of this Agreement.
However, if the nature of the default is such that it cannot be reasonably cured
within the thirty (30) day period, the offending party shall not be deemed to be in
default if an effective cure is commenced within the thirty (30) day period and
thereafter diligently prosecuted to completion. Upon an event of default by State,
City shall have the right to terminate this Agreement by providing written notice to
State.
Upon an event of default by City, State shall have the right to terminate
this Agreement and obtain immediate possession of the Premises at any time by
written notice to City. In such event, State shall be entitled to all rights and
remedies at law and/or in equity, including but not limited to, costs and expenses
incurred by State in recovering possession of and/or restoring the Premises, and
compensation for all detriment proximately caused by City's failure to perform its
obligations under this Agreement.
18. TERMINATION
Notwithstanding the provisions of Section 17, DEFAULTS AND
REMEDIES, either party may terminate this Agreement for any reason. The
party who wishes to terminate the Agreement shall give written notice of its
intention no later than three hundred and sixty five (365) days 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.
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State Park Operating Agreement
19. SURRENDER OF THE PREMISES: HOLDING OVER
A. Surrender: On expiration or within thirty (30) days after earlier
termination of this Agreement, City shall surrender the Premises to State with all
fixtures, improvements, and Alterations in good condition, except for fixtures,
improvements, and Alterations that City is obligated to remove. City shall
remove all of its personal property and shall perform all restoration required by
the terms of this Agreement within the above stated time unless otherwise
agreed to in writing.
If City fails to surrender the Premises to State on the expiration,
assignment, or within thirty (30) days after earlier termination of the term as
required by this Section, City shall hold State harmless for all damages resulting
from City's failure to surrender the Premises.
B. Holding Over: After the expiration or earlier termination of the term
and if City remains in possession of the Premises with State's express consent,
such possession by City shall be deemed to be a temporary tenancy terminable
on thirty (30) days written notice given at any time by either party. All provisions
of this agreement except those pertaining to the term shall apply to the temporary
tenancy.
20. REAL PROPERTY ACQUISITION
It is understood and agreed to by the parties that all applications for real
property rights, appurtenant to the Premises, shall be made in the name of and
on behalf of State, and shall be subject to the prior written approval of State.
21. COMPLIANCE WITH LAWS. RULES. REGULATIONS. AND POLICIES
City shall comply with all applicable laws, rules, regulations, and orders
existing during the term of this Agreement, including obtaining and maintaining all
necessary permits and licenses. City acknowledges and warrants that it is, or
will make itself, through its responsible managers, knowledgeable of all pertinent
laws, rules, ordinances, regulations, or other requirements having the force of
law affecting the operation of the Premises, including but not limited to laws
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State Park Operating Agreement
affecting health and safety, hazardous materials, pest control activities, historical
preservation, environmental impacts, and building standards.
22. NONDISCRIMINATION
Pursuant to Public Resources Code Section 5080.34, this Agreement and
every contract on lands that are subject to this Agreement shall expressly prohibit
discrimination against any person because of sex, sexual orientation, race, color,
religious creed, marital status, ancestry, national origin, medical condition, age
(40 and above), and disability (mental and physical) including HIV and AIDS.
City shall comply with the provisions of the Fair Employment and Housing
Act (Gov. Code, §12900 et seq.) and the applicable regulations promulgated
thereunder (Cal. Code Regs, tit. 2, §7285.0 et seq.). The applicable regulations
of the Fair Employment and Housing Commission implementing Government
Code, §12990 (a)-(f), are incorporated into this agreement by reference and
made a part hereof as if set forth in full (Cal. Code Regs, tit. 2, §7285.0 et seq.).
City shall give written notice of their obligations under this clause to labor
organizations with which they have a collective bargaining or other agreement.
City shall include the non-discrimination and compliance provisions of this clause
in all contracts to perform work under and/or in connection with this agreement.
In the event of violation of this Section, State will have the right to
terminate this agreement, and any loss of revenue sustained by the State by
reason thereof shall be borne and paid for by City.
23. DISABILITY ACCESS LAWS
With regard to all operations and activities that are the responsibility of
City under this Agreement, and without limiting City's responsibility under this
Agreement for compliance with all laws, City shall be solely responsible for
complying with the requirements of the Americans with Disabilities Act of 1990
(ADA) (Public Law 101-336, commencing at Section 12101 of Title 42, United
States Code, including Titles I, II, and III of that law), the Rehabilitation Act of
1973, and all related regulations, guidelines, and amendments to both laws.
13
State Park Operating Agreement
With regard to facilities for which City is responsible for operation,
maintenance, construction, restoration, or renovation under this Agreement, City
also shall be responsible for compliance with Government Code Section 4450, et
seq., Access to Public Buildings by Physically Handicapped Persons, and
Government Code Section 7250, et seq., Facilities for Handicapped Persons,
and any other applicable laws, regulations, guidelines and successor statutes.
Such compliance shall be at City's sole cost and expense. Written approval from
State is required prior to implementation of any plans to comply with accessibility
requirements.
24. NATIONAL LABOR RELATIONS BOARD CERTIFICATION
By signing this Agreement, City does hereby swear, under penalty of
perjury, that no more than one final, unappealable finding of contempt of court by
a federal court has been issued against City within the two-year period
immediately preceding the date of this Agreement because of City's failure to
comply with a federal court order that City shall comply with an order of the
National Labor Relations Board.
25. DRUG-FREE WORKPLACE
City agrees to comply with Government Code Section 8355 in matters
relating to the provision of a drug-free workplace. This compliance is evidenced
by the executed Standard Form 21, Drug-Free Workplace Certification, attached
hereto as Exhibit "C" and made a part of this Agreement.
26. ENVIRONMENTAL AWARENESS AND RESOURCE PROTECTION
City shall comply with State's resource management and preservation
mandates in the conduct of all activities that impact cultural, natural, or scenic
resources. These mandates include the California Public Resources Code
Sections 5024 and 5097 et seq., State's Resource Management Directives and
the United States Secretary of the Interior's Guidelines for Historic Preservation.
14
State Park Operating Agreement
27. HAZARDOUS SUBSTANCES
A. On the Premises City shall not:
1) keep, store, or sell any goods, merchandise, or materials
that are in any way explosive or hazardous;
2) carry on any offensive or dangerous trade, business, or
occupation;
3) use or operate any machinery or apparatus that shall injure
the Premises or adjacent buildings in any way; or
4) do anything other than is provided for in this Agreement.
B. Nothing in this Section shall preclude City from bringing, keeping,
or using on or about said Premises such materials, supplies, equipment, and
machinery as is appropriate or customary in the care, maintenance,
administration, and control of parklands. Gasoline, oils, and all other materials
considered under law or otherwise to be hazardous to health and safety shall be
stored, handled, and dispensed as required by present or future regulations and
laws.
C. City shall comply with all laws, federal, state, or local, existing
during the term of this Agreement pertaining to the use, storage, transportation,
and disposal of any hazardous substance, as that term is defined in such
applicable law. In the event the State or any of its affiliates, successors,
principals, employees, or agents should incur any liability, cost, or expense,
including attorney's fees and costs, as a result of the City's illegal use, storage,
transportation, or disposal of any hazardous substance, including any petroleum
derivative, City shall protect, indemnify, defend, and hold harmless any of these
individuals against such liability. Where City is found to be in breach of this
provision due to the issuance of a government order directing City to cease and
desist any illegal action in connection with a hazardous substance, or to
remediate a contaminated condition directly caused by City or any person acting
under City's direct control or authority, City shall be responsible for all costs and
expenses of complying with such order including any and all expenses imposed
15
State Park Operating Agreement
on or incurred by the State in connection with or in response to such
government order.
D. Notwithstanding the foregoing, in the event a government order is
issued naming City, or City incurs any liability during or after the term of the
Agreement in connection with contamination that preexisted the City's
obligations and occupancy under this Agreement, or prior agreements or that
were not directly caused by City, the State shall be solely responsible as
between City and State for all expenses and efforts in connection wherewith,
and State shall reimburse City for all reasonable expenses actually incurred by
City therewith.
E. All pest control activities, chemical and non-chemical, shall be
approved by State prior to action by the City. City or the pest control business
acting on behalf of City shall submit a DPR 191, Pest Control Recommendation,
or equivalent to State for approval. State has fourteen (14) days to approve or
deny the request. State review and approval shall be solely for compliance with
State's policies and in no way shall relieve City or its contractors, employees,
agents, or representatives from compliance with all laws and regulations
concerning such activities, nor from carrying out the work in a workmanlike
manner.
City or the pest control business acting on behalf of City shall
submit a report of completed work for each pest management action to the State
no later than seven (7) days after performance of the work. The report may be
submitted on a DPR 191, Pest Control Recommendation, or equivalent.
28. SIGNS AND ADVERTISING
No signs, logos, names, placards, or advertising matter shall be inscribed,
painted, or affixed upon Premises, or circulated or published without prior written
approval of the State. Approval will be granted only when said signs or
advertising is consistent with the purposes of this Agreement.
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State Park Operating Agreement
29. INTELLECTUAL PROPERTY RIGHTS
Any names, logos, trademarks, and/or copyrights developed during and/or
pursuant to this Agreement that in any way associate, identify, or implicate an
affiliation with California State Parks shall be approved by State for use, shall
belong to State upon creation, and shall continue in State's exclusive ownership
upon termination of this Agreement.
30. PARTICIPATION IN STATE PARK MARKETING PROGRAMS
City acknowledges that State has an established advertising and
marketing program designed to promote additional revenue for the State and to
deliver a consistent and positive image to the public. City agrees to cooperate in
this program in the manner described below without compensation from the State
for such cooperation.
A. City agrees to honor all statewide graphic standards, licensing, and
merchandising agreements entered into with corporate sponsors of the
Department of Parks and Recreation.
B. City agrees to place on the Premises any advertising that the State
approves under this program. Any advertising approved by the State
under this program will be placed at State's expense.
31. CHILD SUPPORT COMPLIANCE ACT
A. City recognizes the importance of child and family support relating
to child and family support enforcement, including, but not limited to, disclosure
of information and compliance with earnings assignment orders, as obligations
and shall fully comply with all applicable state and federal laws provided in
Chapter 8 (commencing with section 5200) of Part 5 of Division 9 of the Family
Code.
B. To the best of its knowledge City is fully complying with the
earnings assignment orders of all employees and is providing the names of all
new employees to the New Hire Registry maintained by the California
Employment Development Department.
17
State Park Operating Agreement
32. DISPUTES
City shall continue with any and all responsibilities under this Agreement
during any dispute.
33. LIMITATION
This Agreement is subject to all valid and existing contracts, leases,
licenses, encumbrances, and claims of title that may affect Premises.
34. SECTION TITLES
The paragraph titles in this Agreement are inserted only as a matter of
convenience and reference and in no way define, limit, or describe the scope or
intent of this Agreement or in any way affect this Agreement.
35. AGREEMENT IN COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be
deemed an original.
36. INSPECTION
State or its authorized representative shall have the right at all reasonable
times to inspect the Premises to determine compliance with the provisions of this
Agreement.
37. SUCCESSORS IN INTEREST
Unless otherwise provided in this Agreement, the terms, covenants, and
conditions contained herein shall apply to and bind the heirs, successors,
executors, administrators, and assigns of all the parties hereto, all of who shall
be jointly and severally liable hereunder.
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State Park Operating Agreement
38. PARTIAL INVALIDITY
If any term, covenant, condition, or provision of this Agreement is held by
a court of competent jurisdiction to be invalid, void, or unenforceable, the
remainder of the provisions hereof shall remain in full force and effect and shall in
no way be affected, impaired, or invalidated thereby.
39. TIME OF ESSENCE
Time shall be of the essence in the performance of this Agreement.
40. DURATION OF PUBLIC FACILITIES
By entering into this Agreement, State makes no stipulation as to the type,
size, location, or duration of public facilities to be maintained at this unit, or the
continuation of State ownership thereof, nor does the State guarantee the
accuracy of any financial or other factual representation that may be made
regarding the Premises.
41. WAIVER OF RIGHTS. CLAIMS. AND AGREEMENT TERMS
Unless otherwise provided by this Agreement, no waiver by either party at
any time of any of the terms, conditions, or covenants of this Agreement shall be
deemed as a waiver at any time thereafter of the same or of any other term,
condition, or covenant herein contained, nor of the strict and prompt performance
thereof. No delay, failure, or omission of the State to re-enter the Premises or to
exercise any right, power, or privilege, or option arising from any breach, nor any
subsequent acceptance of rent then or thereafter accrued shall impair any such
right, power, privilege, or option, or be construed as a waiver of such breach or
relinquishment of any right or acquiescence therein. No notice to the City shall
be required to restore or revive time as of the essence after the waiver by the
State of any breach. No option, right, power, remedy, or privilege of the State
shall be construed as being exhausted by the exercise thereof in one or more
instances. The rights, powers, options, and remedies given to the State by this
Agreement shall be deemed cumulative.
19
State Park Operating Agreement
42. INTERPRETATION OF AGREEMENT
This Agreement is made under and is subject to the laws of the State of
California in all respects as to interpretation, construction, operation, effect, and
performance.
43. INDEPENDENT CONTRACTOR
In the performance of this Agreement, City and the agents and employees
of City shall act in an independent capacity and not as officers or employees or
agents of the State.
44. MODIFICATIONS AND APPROVAL OF AGREEMENT
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.
Notwithstanding any of the provisions of this Agreement, the parties may
hereafter, by mutual consent expressed in writing, agree to modifications thereof,
additions thereto, or terminations thereof, which are not forbidden by law. This
Agreement, amendments, modifications, or termination thereof shall not be
effective until approved by State's relevant control agencies.
20
State Park Operating Agreement
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
CITY OF CARLSBAD
By:
STATE OF CALIFORNIA
CALIFORNIA PARKS AND RECREATION
By:
Title: Mayor Title: Director
Date:2-8-11 Date:
APPROVED:
ATTORNEY GENERAL:
Approved as to legal sufficiency
in accordance with the requirements
of Sections 5080.02-5080.21 of the
Public Resources Code.
APPROVED:
DEPARTMENT OF GENERAL SERVICES:
KAMALA D. HARRIS, Attorney General
of the State of California
By:
Deputy Attorney General
Dated:
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PROJECT SITE
Ocean Street
g
d>
<D
COO
LESAl DESCMPTiat FOR STKETSCMt SCULPTURE PARK
That portion of Tract 200, according to mp thereof""
tw. 1681, filed In the office of the county records of
Sen Diego Cointy, DeceAer 9, 1915, lying northvrtnterl/ of
th* utterly line of tne Callfornl* State Highway as describedIn the 4e«4 to the State of California, dated September 8, 1924,
and recorded In Book 1032. Page 284 of Deeds, 1n the office of the
County Recorder of San Olego County, to the top of the bluff.
Nofth
SCALE: 1V60'PROJECT AREA
EXHIBIT APME 2 of 2
State Park Operating Agreement
EXHIBIT B
Annual Revenue and Expenditure Report
Operating Agreements
Park Unit
Operating Agency
State's Fiscal Year
Estimated Total Visitors
to
Visitor Entrance Fees
Separate Parking Fees
Concession A
Concession B
Concession C
Special Events
Miscellaneous Revenue
Total Annual Revenue
Salaries & Wages
Maintenance & Housekeeping
Utilities
Capital Improvement Projects
Miscellaneous Expenses
Total Annual Expenditures
Grand Totals
Revenue Expenditures Balance
Preparer Name
Phone Number
Date
23
STATE OF CALIFOH NIA
DRUG-FREE WORKPLACE CERTIFICATION
STD. 21 (Rev. 12/93) <CA ST PKS, EXCEL 4/W1999)
CERTIFICATION
/, the official named below, hereby swear that I am duly authorized to legally to bind the contractor or
grant recipient to the certification described below. I am fully aware that this certification, executed on
the date below, is made under penalty of perjury under the laws of the State of California.
CONTRACTOR/BIDDER FIRM NAME
BY (Authorized Signature)
ft*
PRINTED NAME AMD TITLE OF PERSON SIGNING
FEDERAL ID NUMBER
DATE EXECUTED
TELEPHONE NUMBER (Include Area Code)
( )
TITLE
CONTRACTOR/BIDDER FIRM'S MAILING ADDRESS
The contractor or grant recipient named above hereby certifies compliance with Government Code Section 8355
in matters relating to providing a drug-free workplace. The above named contractor or grant recipient will:
1. Publish a statement notifying employees that unlawful manufacture, distribution, dispensation, possession,
or use of a controlled substance is prohibited and specifying actions to be taken against employees for
violations, as required by Government Code Section 8355(a).
2. Establish a Drug-Free Awareness Program as required by Government Code Section 8355(b), to inform
employees about all of the following:
(a) The dangers of drug abuse in the workplace,
(b) The person's or organization's policy in maintaining a drug-free workplace,
(c) Any available counseling, rehabilitation and employee assistance programs, and
(d) Penalties that may be imposed upon employees for drug abuse violations.
3. Provide as required by Government Code Section 8355(c), that everyone who works on the proposed
contract or grant:
(a) Will receive a copy of the company's drug-free workplace policy statement, and
(b) Will agree to abide by the terms of the company's statement as a condition of employment on
the contract or grant.
4At the election of the contractor or grantee, from and after the "Date Executed" and until
(NOT TO EXCEED 36 MONTHS), the state will regard this certificate as valid for all contracts<orE>grants
entered into between the contractor or grantee and this state agency without requiring the contractor or
grantee to provide a new and individual certificate for each contract or grant. If the contractor or grantee
elects to fill in the blank date, then the terms and conditions of this certificate shall have the same force,
meajiing, effect and enforceability as if a certificate were separately, specifically, and individually provided
for each contract or grant between the contractor or grantee and this state agency.
2 :,
IT i;
OPERATING AGREEMENT
CARLSBAD STATE BEACH
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Paragraph Page
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1. Premises 2
2. Use 2
3. Term 3
4. Consideration 3
5. Construction 3
6. Ownership of Improvements 4
7. Maintenance of Obligations of City 4
3. Concessions 5
9. Revenues 5 !
10. Records and Accounts 5 j
11. Beach Erosion Control and Protection Work 6 '
12. Eminent Domain Proceedings 6 j
13. Utilities 7 i
14. Public Liability Insurance 7 i
15. Hold Harmless Agreement 7
16. Prohibitions Against City Assigning, Subletting 9 i
17. Defaults and Remedies 9 i
18. Notices 9 j
19. Termination 10 j
20. Real Property Acquisition 12 j
21. Nond1scr1m1nation 12
22. Limitation 12 j
23. Paragraph Titles 12 |
24. Agreement 1n Counterparts 13 j
25. Agreement 1n Writing , 13 i
26. Inspection 13
27. Successors in Interest , . 13
28. Partial Invalidity 13
29. Waiver of Rights 14
Signatures 14
Exhibits
COURT PAPER
STATE Or CALirOHNI*
STO 1 '3 I HIV. B-721
85 34769
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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.
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A. Pursuant to the provisions of Section 5080.30, et seq. , of the '
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Public Resources Code of the State of California, STATE may enter into an ;
operating agreement with subdivisions of the State of California for the j
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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 j
attached. These park properties are located within the City of Carlsbad in j
the County of San Diego. j
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C. STATE and CITY desire to enter into an Agreement to provide forj
the development, operation, control, and maintenance of a part of Carlsbad
State Beach by the City of Carlsbad as identified on Exhibit "A".
COURT PAPERST»TI or CALifonxiA
STO. 1 13 IRIV. 8.72 l
85 34769
1 i 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 jj 1. PREMISES; STATE authorizes CITY to develop, operate, control,
5 I and maintain a portion of Carlsbad State Beach, as shown on Exhibit "A"
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6 .! attached, and hereby made a part hereof. STATE shall not be liable for any
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7 ' costs of development, maintenance, control, or operation of the premises.
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9 i! 2. USE; CITY agrees to develop, operate, control, and maintain
10 the premises as public recreational beach/park facilities to be accessible and
11 subject to the use and enjoyment of the general public. Such development and
12 j 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
i!14 applicable federal, state, and local government statutes, laws, and
i15 'I regulations. Copies of said General Plans are on file at the San Diego Coast
L6 ji District Office, 2680 Carlsbad Boulevard, Carlsbad, CA 92008.
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13 i 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 [ which amendment shall be submitted to and approved by the California Stateii
22 I Park and Recreation Commission.
33 i04 : CITY may adopt rules and regulations for the use and enjoyment ofi
25 ' 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
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COURT PAPERSTATI Of CALiroKN IA
STO- I 13 <»EV «-7ZI
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! : generally applicable to the State Park System, including said property. Said
2 | 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
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
COURT PAPER
STATK or CALIFORNIA
STD 113 <RSV B-72>
US 94768
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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 1n 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
sculpture shall remain the property of the CITY and at the time of expiration
or termination of the operating agreement may be removed or relocated off
State propety.
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
repair, and all Improvements of any kind which may be erected, installed, or
placed thereon. During the term of this agreement it shall be CITY'S
COURT PAPER
STATI OF CALIFORNIASTO i13 i«ev B-TJI
85 34769
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COURT PAPKR
STATE Of CAUrOHNlA
STO 113 (RKV 8.711
85 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.
8. CONCESSIONS: Subject to prior approval In writing by STATE, i
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 i
of the Public Resources Code Section 5080.20. No concession shall be granted !
by CITY which will exploit public lands for commercial purposes. i
9* REVENUES; Any Income to CITY derived from its control and
operation of premises for services, benefits, or accommodation 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 commencing 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 1n 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, 1n the manner provided
by law or under the rules of STATE, shall not, 1n 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
STATE except for emergency repair, shall give CITY three (3) months prior
written notice of its intention to do any of the work herein mentioned. CITY
shall be given the opportunity to review and comment on plans and
specifications before such work 1s undertaken. STATE agrees to repair, at its
sole cost and expense, any damage to CITY'S Improvements caused by such
hereinabove described work.
12. EMINENT DOMAIN PROCEEDINGS: If the premises or any portion
thereof 1s taken by proceedings in eminent domain, STATE shall receive the
COURT PAPER
STAT« or CALirOHNIA
STO 1 13 IBtV. 8-7JI
85 34789
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COURT PAPER
CTATK OF CAUrOHNIA
STD I 13 tMV. 8.7ZI
86 34769
entire award for such taking except that CITY shall receive out of said award
the fair market value of any improvements then existing and constructed by
CITY, except for: (a) improvements erected with funds realized through income
from the premises, and (b) improvements the costs of which CITY has been paid
or reimbursed by STATE through grants or other sources. Fair market value
shall be determined by said proceedings taking into consideration the terms of
this Agreement.
13. UTILITIES; CITY shall be responsible for all utility charges
supplied to the premises.
14. PUBLIC LIABILITY INSURANCE; CITY agrees, at its sole expense,
to maintain in force during the term of this Agreement comprehensive general
liability insurance, insuring against claims for injuries to persons or
property occurring in, upon, or about premises. Said insurance shall have
limits of not less than $500,000 and $1,000,000 for injuries to person or
persons, respectively; not less than $150,000 for property damage; and said
limits shall be adjusted annually to reflect changes in the prior year's
Consumer Price Index (CPI) for Los Angeles - Anaheim - Riverside (all urban
consumers - all items), promulgated by the Bureau of Labor Statistics of the
U.S. Department of Labor. STATE agrees that CITY, at CITY'S option, may
self-insure the coverages required by this Paragraph 14 (PUBLIC LIABILITY
INSURANCE).
15. HOLD HARMLESS AGREEMENT; CITY shall indemnify, hold harmless,
and defend STATE, its officers, agents, and employees against any and all
claims, demands, damages, costs, expenses, or liability costs arising out of
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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 1s named as co-defendant 1n 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 1n 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
to represent Itself as co-defendant in such legal action, in which event CITY
shall bear its own litigation costs, expenses, and attorney's fees.
In the event judgment is entered against STATE and CITY because of
the concurrent negligence of STATE and CITY, their officers, agents, or
employees, an apportionment of liability to pay such judgment shall be made by
a court of competent jurisdiction. Neither party shall request a jury
apportionment.
COURT PAPBRSTATS of CAuro*HiASTD 1 13 (REV. 8-711
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COURT PAPERSTATC or CAU'QRNIA
STD I 13 IHIV. B.7ZI
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
i! 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 1n writing of such breach, and STATE shall have thirty (30) days
1n 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 inii
! which to initiate action to cure said breach.
^' 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 mall:
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COURT PAPER
STATS Of CALIFORNIA
STO 1 13 IBtV 8-7JI
% 34769
STATE: State of California
Department of Parks and Recreation
Concession Programs Division
P.O. Box 942896
Sacramento, CA 94296-0001
With Copy to:
Southern Region Headquarters
1333 Camino Del Rio South, Suite 200
San Diego, CA 92108
CITY: City Manager
City of Carlsbad
1200 Elm Avenue
Carlsbad, CA 92008-1982
19. TERMINATION; Notwithstanding the provisions of Paragraph 17
(DEFAULTS AND REMEDIES) either party may terminate this Agreement for any
reason. The party who wishes to terminate the Agreement shall give written
notice of its intention no later than three hundred and sixty five (365) days
before the scheduled termination date. Such notice shall be given in writing
and shall be effective on the date given 1n 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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COURT PAPER
•TAT«OF CAUrOKNIA !
STO I 13 IHIV. ••721 i
85 347S9 I
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 1s expressly understood that the above-described reimbursement
provisions are not applicable where STATE terminates this Agreement for any
breach on the part of CITY.
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1 • In the event of breach, bankruptcy, insolvency, abandonment, or
2 termination of Agreement upon CITY'S request, the above-described
3 ;i reimbursement provision shall not apply and shall not be considered an
4 j obligation of the STATE.
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COURT PAPER
STATt or CALIFORNIA
STD. 113 <*M- 9-721
85 3*'09
20. REAL PROPERTY ACQUISITION: It is understood and agreed by the
parties hereto, that all applications for real property rights, appurtenant to
the real properties herein described, shall be made in the name of and on
behalf of STATE, and shall be subject to the prior approval in writing of
STATE.
21. NONDISCRIMINATION; Pursuant to Public Resources Code
Section 5080.34, this Agreement prohibits, and every contract on lands that
are subject to this Agreement shall expressly prohibit, discrimination against
any person because of race, color, religion, sex, marital status, national
origin, or ancestry of that person. Attached Standard Form 17A is
Incorporated herein.
22. LIMITATION; This Agreement is subject to all valid and
existing contracts, leases, licenses, encumbrances, and claims of title which
may affect premises.
23. PARAGRAPH TITLES; The paragraph titles in this Agreement are
Inserted only as a matter of convenience and for reference, and in no way
define, limit, or describe the scope or intent of this Agreement or in any way
affect this Agreement.
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1 • 24.. AGREEMENT IN COUNTERPARTS; This Agreement is executed ini
2 i counterparts each of which shall be deemed an original.
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COURT PAPERSTATC OF CALIPPMNIA
STO. 113 IBIV. 8.7JI
85 34789
25. AGREEMENT IN WRITING: This Agreement contains and embraces the
entire Agreement between the parties hereto and neither 1t nor any part of 1t
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 shall have
the right at all reasonable times to inspect the premises to determine if the
provisions of this Agreement are being complied with.
27. SUCCESSORS IN INTEREST; Unless otherwise provided in this
Agreement, the terms, covenants, and conditions contained herein shall apply
to and bind the heirs, successors, executors, administrators, and assigns of
all the parties hereto, all of whom shall be jointly and severally liable
hereunder.
28. PARTIAL INVALIDITY; If any term, covenant, condition, or
provision of this Agreement is held by a court of competent jurisdiction to be
invalid, void, or unenforceable, the remainder of the provisions hereof shall
remain in full force and effect and shall in no way be affected, impaired, or
invalidated thereby.
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COURT PAPER
6TATC Of CALIFORNIA
STO. I 13 IRSV. e-VJl
85 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
MAYOR
STATE OF CALIFORNIA
DEPARTMENT OF PARKS AND RECREATION
IS, Mayor
CITY ATTORNEY
By
RONALD R. PALL, Assistant
City Attorney
ief Deputy Director
DEPARTMENT OF GENERAL SERVICES
By
CITY CLERK
Attest
ORTT I 1
FQPH J_52HSi_l_SiJE?JG._l
Deport-mwnf o< O»nw«l Ssrvicot
APPROVED
City Clerk
Karen R. Kundtz, Assistant
City Clerk
0-8232X
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TI2S,R.4a5W.,S.B.B.aM.
SAN DIEGO COUNTY
L EGEND
PACIFIC OCEAN
/»>! CIFIC O CEA N
EXHIBIT "A"
Page 1 of 2
E,E, -..•••••...•••.- mmmmmm
CITY 0F CARLSBAD WSIfT^OF-WAY
PROJECT SITE
LEGAL DESCRIPTION FOR STREETSCAPE SCULPTURE PARK
Ocean Street
CDZ3CCD
CO
O
That portion of Tract 200, according to map thereof
no.1681, filed in the office of the county recorder of
San Diego County, December 9, 1915, lying northwesterly of
the westerly line of the California State Highway as describ
in the deed to the State of California, dated September 8, 1924,
and recorded in Book 1032, Page 284 of Deeds, in the office of the
County Recorder of San Diego County, to the top of the bluff.
North
SCALE: 1V60
PROJECT AREA
EXHIBIT APAGE 2 of 2
NONDISCRIMINATION CLAUSE
(oc? - i)
1. During the performance of this contract; contractor and itssubcontractors shall not unlawfully discriminate against anyemployee or applicant for employment because of race, reli-gion, color, national origin, ancestry, physical handicap,medical condition, marital status, age (over 40) or sex,Contractors and subcontractors shall insure that the evalua-tion and treatment of their employees and applicants foremployment are free of such discrimination, Contractors andsubcontractors shall comply with the provisions of the FairEmployment and Housing Act (Government Code, Section 12900et seq,) and the applicable regulations promulgated thereunder(California Administrative Code, Title 2, Section 7285,0 etseq,), The applicable regulations of the Fair Employment andHousing Commission implementing Government Code, Section 12990,set forth in Chapter 5 of Division A of Title 2 of the Cali-fornia Administrative Code are incorporated into this contractby reference and made a part hereof as if set forth in full,Contractor and its subcontractors shall give written notice oftheir obligations under this clause to labor organizations withwhich they have a collective bargaining or other agreement,
2, This contractor shall include the nondiscrimination and com-pliance provisions of this clause in all subcontracts to performwork under the contract,
STD, 17A (NEW