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HomeMy WebLinkAbout2011-09-13; City Council; 20675; LEASE AGREEMENT CA STATE LANDS COMMISSIONCITY OF CARLSBAD - AGENDA BILL AB# MTG. DEPT. 20,675 9/13/11 P&R AUTHORIZE THE MAYOR TO EXECUTE A LEASE AGREEMENT WITH THE CALIFORNIA STATE LANDS COMMISSION FOR THE CARLSBAD OPPORTUNISTIC SAND PROGRAM DEPT. CITY ATTORNEY CITY MANAGER RECOMMENDED ACTION: Adopt Resolution No. 2011-213 authorizing the Mayor to execute a lease agreement with the California State Lands Commission for the Carlsbad Opportunistic Sand Program. ITEM EXPLANATION: In 2006, the city received regulatory agency permits to implement the Carlsbad Opportunistic Sand Program. The objective of the Carlsbad Opportunistic Sand Program is to capitalize on opportunities to obtain beach-quality sand from upland construction projects when it becomes available by obtaining one permit from each permitting agency for an extended period of time (5 years) for beach placement, without having to reapply for individual permits for each placement operation. The current permits expire in 2011 and staff has been applying to each of the permitting agencies for five year extensions thus allowing the Opportunistic Sand Program to continue through 2016. Earlier this year, agency permit extensions were issued by the California Coastal Commission, California State Parks and Recreation, and the City of Carlsbad. The original Army Corps of Engineers approval is still current since the term of that permit does not expire until 2016. The only remaining permit extensions pending are from the Regional Water Quality Control Board (which will be considering the city's request in the next few months) and the California State Lands Commission. The California State Lands Commission requires the city to execute a successor lease agreement to continue to allow beach quality material to be deposited on the coastline directly north of the Encinas Creek outlet to the ocean. Staff has reviewed the attached lease agreement which is identical to the original State Lands Commission lease agreement with no new conditions or requirements. Therefore, staff recommends that the City Council authorize the Mayor to execute a five-year successor lease agreement with the California State Lands Commission for the continued implementation of the Carlsbad Opportunistic Sand Program. DEPARTMENT CONTACT: Steven Jantz 760-434-2838 steve.iantz@carlsbadca.qov FOR CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED DENIED CONTINUED WITHDRAWN AMENDED Dn D CONTINUED TO DATE SPECIFIC D CONTINUED TO DATE UNKNOWN D RETURNED TO STAFF D OTHER-SEE MINUTES D Page 2 FISCAL IMPACT: Since this proposed action is for a successor agreement to an existing no-cost State Lands Commission lease agreement, there is no associated cost. ENVIRONMENTAL IMPACT: On May 17, 2006 the Planning Commission adopted the Mitigated Negative Declaration (MND) and Mitigation Monitoring and Reporting Program (MMRP) for the Carlsbad Opportunistic Beach Fill Program (Resolution No. 6067). The MND evaluated the potential environmental effects of the Program pursuant to the California Environmental Quality Act (CEQA). On March 16, 2011, the Planning Commission approved a five year extension to CDP 06-02x1/SUP 04-13x1. The Planning Director determined the project complies with the prior environmental document since the extension was within the scope of the project for which the original Mitigated Negative Declaration was approved, and the project has no new significant environmental effects not analyzed in the prior MND. Therefore, no further CEQA compliance is required. EXHIBITS: 2011-2131. Resolution No. authorizing the Mayor to execute a lease agreement with the California State Lands Commission for the Carlsbad Opportunistic Sand Program. 2. State of California State Lands Commission Lease PRC 8718.9 1 RESOLUTION NO. 2011-213 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD AUTHORIZING THE MAYOR TO EXECUTE A 3 LEASE AGREEMENT WITH THE CALIFORNIA STATE 4 LANDS COMMISSION FOR THE CARLSBAD OPPORTUNISTIC SAND PROGRAM 5 6 WHEREAS, on November 21, 2006 the City of Carlsbad entered into a lease 7 agreement with the California State Lands Commission for the Carlsbad Opportunistic 8 Sand Program; and 9 WHEREAS, the objective of the Carlsbad Opportunistic Sand Program is to take 10 advantage of material exported from development/construction sites, if of a quality compatible with the beach environment, to be utilized as a small scale local beach 12 replenishment activity; and WHEREAS, the original lease agreement with the California State Lands 14 Commission established a term of five years from November 21, 2006 through 15 November 21, 2011; and 16 WHEREAS, the City Council finds it is in the best interest of the city to execute a new identical lease agreement with the California State Lands Commission for the 18 Carlsbad Opportunistic Sand Program for an additional 5 year period expiring on 19 November 21, 2016. 20 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of 21 Carlsbad, California as follows: 22 23 1. The above recitations are true and correct 24 2. The Mayor is authorized to execute a lease agreement with the California State Lands Commission for the Carlsbad Opportunistic Sand Program on 25 behalf of the city. 26 27 28 T 1 3. Upon execution of this lease agreement (PRC 8718.9), the City Clerk is directed to mail two (2) signed copies (including this resolution) to: Mr. 2 Kenneth Foster, Public Land Management Specialist, California State Lands Commission, 100 Howe Avenue, Suite 100-South, Sacramento CA 95828- 3 8202. 4 // 5 6 7 8 9 " 10 // 11 // 12 // 13 // 14 // 15 // 16 17 18 19 " 20 21 // 22 // 23 // 24 // 25 // 26 27 28 1 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council 2 of the City of Carlsbad on the 13th day of September 2011, by the following vote to wit: 3 .. AYES: Council Members Hall, Kulchin, Blackburn, Douglas, Packard. 4" 5 NOES: None. 6 7 ABSENT: None. s" 9 10 11 MATT HALL, Mayor 12 ATTEST: 13 14 15 LORRAINE to. WOOD, City Clerk 16 (SEAL) 17 18 19 20 21 22 23 24 25 26 27 28 RECORDED AT THE REQUEST OF AND WHEN RECORDED MAIL TO: ' STATE OF CALIFORNIA California State Lands Commission Attn: Title Unit 100 Howe Avenue, Suite 100-South Sacramento, CA 95825-8202 STATE OF CALIFORNIA OFFICIAL BUSINESS Document entitled to free recordation pursuant to Government Code Section 27383 SPACE ABOVE THIS LINE FOR RECORDER'S USE County: San Diego LEASE PRC 8718.9 This Lease consists of this summary and the following attached and incorporated parts: Section 1 Basic Provisions Section 2 Section 3 Section 4 Exhibit A Special Provisions Amending or Supplementing Section 1 or 4 Lease Area Description General Provisions Project Notification Report SECTION 1 BASIC PROVISIONS THE STATE OF CALIFORNIA, hereinafter referred to as Lessor acting by and through the CALIFORNIA STATE LANDS COMMISSION (100 Howe Avenue, Suite 100-South, Sacramento, California 95825-8202), pursuant to Division 6 of the Public Resources Code and Title 2, Division 3 of the California Code of Regulations, and for consideration specified hi this Lease, does hereby lease, demise and let to the City of Carlsbad, hereinafter referred to as Lessee, those certain lands described in Section 3 subject to the reservations, terms, covenants and conditions of this Lease. MAILING ADDRESS: 1635 Faraday Avenue Carlsbad, CA 92008 LEASE TYPE: General Lease - Public Agency Use LAND TYPE: Filled Tide and Submerged Sovereign Land LOCATION: Pacific Ocean, at South Carlsbad State Beach - Encinas Beach, San Diego County, as described in Lease Section 3. LAND USE OR PURPOSE: Continued implementation of the City of Carlsbad Opportunistic Beach Fill Program involving the placement on State sovereign lands of a combined maximum of 150,000 cubic yards of sand annually at the South Carlsbad State Beach - Encinas Beach receiver site. TERM: Five years, beginning October 12,2011; ending October 11, 2016 unless sooner terminated as provided under this Lease. CONSIDERATION: The public use and benefit with the State reserving the right at any time to set a monetary rent if the Commission finds such action to be in the State's best interest; subject to modification by Lessor as specified in Paragraph 2(b) of Section 4 - General Provisions. LIABILITY INSURANCE: N/A SURETY BOND OR OTHER SECURITY: N/A SECTION 2 SPECIAL PROVISIONS BEFORE THE EXECUTION OF THIS LEASE, ITS PROVISIONS ARE AMENDED, REVISED OR SUPPLEMENTED AS FOLLOWS: 1. Lessee must at all times during the Lease term maintain the authorization of the California Department of Parks and Recreation (DPR) as the upland property owner at the South Carlsbad State Beach - Encinas Beach receiver site. Upon termination of the DPR authorization, Lessee's use of the receiver site shall also terminate. 2. At least 30 days prior to the start of the first beach replenishment activity performed under this Lease at the receiver site, Lessee shall submit a mean high tide line survey for Lessor's review and approval. The following is required: a. The survey must be based on the California Coordinate System 1983 and must include a control scheme showing found monuments and coordinates referencing the epoch date. b. The survey must locate a minimum of two property monuments shown on an official record map. c. The vertical datum must be shown on the map with the benchmark location and elevation. d. The mean high tide elevation and tidal epoch must be noted on the survey and Lessor's staff must approve the elevation prior to the fieldwork. e. Stations used to locate the mean high tide line must be at intervals of 50'±. f. The survey must be performed by or under the supervision of a Licensed Land Surveyor. g. Lessee will provide Lessor with a hardcopy map and Autocad drawing file within 30 days of completion of survey fieldwork. 3. Lessee will undertake the City of Carlsbad Opportunistic Beach Fill Program (OBFP) pursuant to: 1) the Mitigation Monitoring Program contained in Final Mitigated Negative Declaration SCH#2001091126 prepared and adopted by Lessee on May 17,2006, including the Addendum adopted by Lessee on March 16, 2011; 2) the OBFP Coastal Development Permit as authorized by the California Coastal Commission; and, 3) the requirements of all other agencies having approval authority over the OBFP. 4. Lessee is authorized during the lease term to periodically place up to a maximum of 150,000 cubic yards of sand annually on the receiver site as described in Section 3 of this Lease. 5. At least 30 days prior to the start of beach replenishment activities as described herein, Lessee shall provide the name and telephone number of the Lessee's representative responsible for maintaining the beach replenishment database for both sites within the Lease Premises. 6. At least 30 days prior to the start of beach replenishment activities as described herein, Lessee shall provide Lessor with copies of all final permits and approvals from all other agencies with jurisdiction over the OBFP. 7. At least 30 days prior to the start of beach replenishment activities as described herein, Lessee shall provide written notification to Lessor, and all other regulatory agencies having approval authority for the OBFP. Written notification shall include a Project Notification Report approving sand for placement, substantially in the form of the draft outline attached hereto as Exhibit A. Lessee shall not proceed with a beach replenishment project until the staff of each of the agencies has provided written concurrence that the material meets the criteria for placement. Lessee shall provide Lessor with all copies of public notification that are issued prior to the commencement of beach replenishment activities. 8. Prior to the start of beach replenishment activities as described herein, Lessee shall provide Lessor with the name, address, telephone number and contractor's license number of the contractor(s) selected to implement the beach replenishment program. Should Lessee change contractors, Lessee shall provide Lessor with all pertinent information, as described above. 9. Lessee shall provide pre-project biological survey information of the beach replenishment sites prior to commencement of beach replenishment activities within the Lease Premises. Lessee shall provide to Lessor copies of all annual mitigation monitoring compliance reports for replenishment activities within the Lease Premises. 10. Lessee agrees that printed material, such as handouts and signs or other types of printed notices installed to provide notification of the public use and benefit of the project as set forth herein shall contain and reasonably display a statement acknowledging the California State Lands Commission as having contributed lands for the project. The statement may read as follows: "A portion of the land required for the Opportunistic Beach Fill Program was contributed by the California State Lands Commission." 11. Lessee acknowledges and agrees: a. The sites may be subject to hazards from natural geophysical phenomena including, but not limited to, waves, storm waves, tsunamis, earthquakes, flooding and erosion. b. To assume the risks of injury and damage to Lessee, its agents, employees, contractors, permittees, invitees and guests and the Leased Lands from such hazards in connection with the development and use of the Leased Lands subject to any Coastal Development Permit. c. To unconditionally waive any claim or damage or liability against the State of California, its agencies, officers, agents, and employees for injury and/or damage from such hazards to Lessee, its agents, employees, contractors, permittees, invitees and guests. d. To indemnify, hold harmless and, at the option of Lessor, defend the State of California, its agencies, officers, agents, and employees, against and for any and all liability, claims, demands, damages, injuries, or costs of any kind and from any cause (including costs and fees incurred in defense of such claims), expenses, and amounts paid in settlement arising from any alleged or actual injury, damage or claim due to site hazards or connected in any way with respect to the approval of any Coastal Development Permit involving the Leased Lands, except for any such liability, claims, damage or injury solely caused by the negligence of Lessor, its officers, agents and employees. 12. Any vehicles, equipment, or machinery to be used on the Lease Premises are limited to those which are directly required to perform the authorized use and shall not include any vehicles, equipment, or machinery that may cause damage to the Lease Premises or lands subject to Lessor's jurisdiction. 13. All vehicles, equipment, machinery, tools or other property taken onto or placed within the Lease Premises or lands subject to Lessor's jurisdiction shall remain the property of the Lessee and/or its authorized contractors (collectively, Lessee). Such property shall be promptly and properly removed by Lessee, at its sole risk and expense. 14. Lessor does not accept any responsibility for any damages to any property, including any vehicles, equipment, machinery, or tools within the Lease Premises or lands subject to Lessor's jurisdiction. 15. No vehicle or equipment refueling, maintenance, or repairs will be permitted within the Lease Premises or lands subject to Lessor's jurisdiction. 16. All waste material and debris created by Lessee shall be entirely removed from the Lease Premises and lands subject to Lessor's jurisdiction. 17. The State of California's sovereign ownership claim of the lands underlying the Pacific Ocean extends to the ordinary high water mark. The description in Section 3 contained herein is not to be deemed an admission by Lessor or Lessee as to the boundary between private, City-owned and State-owned lands. 18. Lease Section 4, Paragraph 4(a) LAND USE - General, is modified as follows: 'Lessee shall use the Lease Premises only for the purpose or purposes stated in this Lease and only for the operation and maintenance of the improvements expressly authorized in this Lease.' The remainder of Paragraph 4(a) is deleted in its entirety. In the event of any conflict between the provisions of Section 2 and Section 4 of this Lease, the provisions of Section 2 shall prevail. SECTION 3 PRC 8718.9 LAND DESCRIPTION A parcel of tide and submerged land situate in the Pacific Ocean, adjacent to La Costa Beach State Park (now known as South Carlsbad State Beach) as described in Division of Highways Transfer of Control and Possession dated June 2nd, 1961, in the City of Carlsbad, San Diego County, more particularly described as follows: BEGINNING at a point having CCS83 Zone VI coordinates N(y)=1989986 ft, E(x)=6231393 ft; thence clockwise through the following three (3) points: 1) N(y)=1987739 ft, E(x)=6232360 ft; , 2) N(y)=1987807 ft, E(x)=6232015ft; 3) N(y)=1989706 ft, E(x)=6231202 ft; thence along a course to the POINT OF BEGINNING. EXCEPTING THEREFROM any portion lying landward of the ordinary high water mark of said ocean. END OF DESCRIPTION Prepared by the California State Lands Commission Boundary Unit 7/29/2011 SECTION 4 GENERAL PROVISIONS 1. GENERAL These provisions are applicable to all leases, permits, rights- of-way, easements, or licenses or other interests in real property conveyed by the State Lands Commission. 2. CONSIDERATION (a) Categories (1) Rental Lessee shall pay the annual rental as stated in this Lease to Lessor without deduction, delay, or offset, on or before the beginning date of this Lease and on or before each anniversary of its beginning date during each year of the Lease term. (2) Non-Monetary Consideration If the consideration to Lessor for this Lease is the public use, benefit, health, or safety, Lessor shall have the right to review such consideration at any time and set a monetary rental if the State Lands Commission, at its sole discretion, determines that such action is in the best interest of the State. (b) Modification Lessor may modify the method, amount, or rate of consideration effective on each fifth anniversary of the beginning date of this Lease. Should Lessor fail to exercise such right effective on any fifth anniversary it may do so effective on any one (1) of the next four (4) anniversaries following such fifth anniversary, without prejudice to its right to effect such modification on the next or any succeeding fifth anniversary. No such modification shall become effective unless Lessee is given at least thirty (30) days notice prior to the effective date. (c) Penalty and Interest Any installments of rental accruing under this Lease not paid when due shall be subject to a penalty and shall bear interest as specified in Public Resources Code Section 6224 and the Lessor's then existing administrative regulations governing penalty and interest. 3. BOUNDARIES This Lease is not intended to establish the State's boundaries and is made without prejudice to either party regarding any boundary claims which may be asserted presently or in the future. 4. LAND USE (a) General Lessee shall use the Lease Premises only for the purpose or purposes stated in this Lease and only for the operation and maintenance of the improvements expressly authorized in this Lease. Lessee shall commence use of the Lease Premises within ninety (90) days of the beginning date of this Lease or within ninety (90) days of the date set for construction to commence as set forth in this Lease, whichever is later. Lessee shall notify Lessor within ten (10) days after commencing the construction of authorized improvements and within sixty (60) days after completing them. Lessee's discontinuance of such use for a period of ninety (90) days shall be conclusively presumed to be an abandonment. (b) Continuous Use Lessee's use of the Lease Premises shall be continuous from commencement of the Lease until its expiration. (c) Repairs and Maintenance Lessee shall, at its own expense, keep and maintain the Lease Premises and all improvements in good order and repair and in safe condition. Lessor shall have no obligation for such repair and maintenance. (d) Additions, Alterations, and Removal (1) Additions - No improvements other than those expressly authorized in this Lease shall be constructed by the Lessee on the Lease Premises without the prior written consent of Lessor. (2) Alteration or Removal - Except as provided under this Lease, no alteration or removal of improvements on or natural features of the Lease Premises shall be undertaken without the prior written consent of Lessor. (e) Conservation Lessee shall practice conservation of water, energy, and other natural resources and shall prevent pollution and harm to the environment. Lessee shall not violate any law or regulation whose purpose is to conserve resources or to protect the environment. Violation of this section shall constitute grounds for termination of the Lease. Lessor, by its executive officer, shall notify Lessee, when in his or her opinion, Lessee has violated the provisions of this section and Lessee shall respond and discontinue the conduct or remedy the condition within 30 days. (f) Toxics Lessee shall not manufacture or generate hazardous wastes on the Lease Premises unless specifically authorized under other terms of this Lease. Lessee shall be fully responsible for any hazardous wastes, substances or materials as defined under federal, state or local law, regulation, or ordinance that are manufactured, generated, used, placed, disposed, stored, or transported on the Lease Premises during the Lease term and shall comply with and be bound by all applicable provisions of such federal, state or local law, regulation or ordinance dealing with such wastes, substances or materials. Lessee shall notify Lessor and the appropriate governmental emergency response agency(ies) immediately in the event of any release or threatened release of any such wastes, substances, or materials. (g) Enjoyment Subject to the provisions of paragraph 5 (a) (2) below, nothing in this Lease shall preclude Lessee from excluding persons from the Lease Premises when their presence or activity constitutes a material interference with Lessee's use I J Page 2 and enjoyment of the Lease Premises as provided under this Lease. (h) Discrimination Lessee in its use of the Lease Premises shall not discriminate against any person or class of persons on the basis of race, color, creed, religion, national origin, sex, age, or handicap. (i) Residential Use No portion of the Lease Premises shall be used as a location for a residence or for the purpose of mooring a structure which is used as a residence. For purposes of this Lease, a residence or floating residence includes but is not limited to boats, barges, houseboats, trailers, cabins, or combinations of such facilities or other such structures which provide overnight accommodations to the Lessee or others. 5. RESERVATIONS, ENCUMBRANCES, AND RIGHTS- OF-WAY (a) Reservations (1) Lessor expressly reserves all natural resources in or on the Lease Premises, including but not limited to timber and minerals as defined under Public Resources Code Sections 6401 and 6407, as well as the right to grant leases in and over the Lease Premises for the extraction of such natural resources; however, such leasing shall be neither inconsistent nor incompatible with the rights or privileges of Lessee under this Lease. (2) Lessor expressly reserves a right to go on the Lease Premises and all improvements for any purpose associated with this Lease or for carrying out any function required by law, or the rules, regulations or management policies of the State Lands Commission. Lessor shall have a right of reasonable access to the Lease Premises across Lessee owned or occupied lands adjacent to the Lease Premises for any purpose associated with this Lease. (3) Lessor expressly reserves to the public an easement for convenient access across the Lease Premises to other State-owned lands located near or adjacent to the Lease Premises and a right of reasonable passage across and along any right-of-way granted by this Lease; however, such easement or right- of- way shall be neither inconsistent nor incompatible with the rights or privileges of Lessee under this Lease. (4) Lessor expressly reserves the right to lease, convey, or encumber the Lease Premises, in whole or in part, during the Lease term for any purpose not inconsistent or incompatible with the rights or privileges of Lessee under this Lease. (b) Encumbrances This Lease may be subject to pre-existing contracts, leases, licenses, easements, encumbrances, and claims and is made without warranty by Lessor of title, condition, or fitness of the land for the stated or intended purpose. 6. RULES, REGULATIONS, AND TAXES (a) Lessee shall comply with and be bound by all presently existing or subsequently enacted rules, regulations, statutes or ordinances of the State Lands Commission or any other governmental agency or entity having lawful authority and jurisdiction. (b) Lessee understands and agrees that a necessary condition for the granting and continued existence of this Lease is that Lessee obtains and maintains all permits or other entitlements. (c) Lessee accepts responsibility for and agrees to pay any and all possessory interest taxes, assessments, user fees or service charges imposed on or associated with the leasehold interest, improvements or the Lease Premises, and such payment shall not reduce rental due Lessor under this Lease and Lessor shall have no liability for such payment. 7. INDEMNITY (a) Lessor shall not be liable and Lessee shall indemnify, hold harmless and, at the option of Lessor, defend Lessor, its officers, agents, and employees against and for any and all liability, claims, damages or injuries of any kind and from any cause, arising out of or connected in any way with the issuance, enjoyment or breach of this Lease or Lessee's use of the Lease Premises except for any such liability, claims, damage or injury solely caused by the negligence of Lessor, its officers, agents and employees. (b) Lessee shall notify Lessor immediately in case of any accident, injury, or casualty on the Lease Premises. 8. INSURANCE (a) Lessee shall obtain and maintain in full force and effect during the term of this Lease comprehensive general liability insurance and property damage insurance, with such coverage and limits as may be reasonably requested by Lessor from time to time, but in no event for less than the sum(s) specified, insuring Lessee and Lessor against any and all claims or liability arising out of the ownership, use, occupancy, condition or maintenance of the Lease Premises and all improvements. (b) The insurance policy or policies shall name .the State of California, its officers, employees and volunteers as insureds as to the Lease Premises and shall identify the Lease by its assigned number. Lessee shall provide Lessor with a certificate of such insurance and shall keep such certificate current. The policy (or endorsement) must provide that the insurer will not cancel the insured's coverage without thirty (30) days prior written notice to Lessor. Lessor will not be responsible for any premiums or other assessments on the Form 51.15 (Rev. 6/06) PageS policy. The coverage provided by the insured (Lessee) shall be primary and non-contributing. (c) The insurance coverage specified in this Lease shall be in effect at all times during the Lease term and subsequently until all of the Lease Premises have been either accepted as improved, by Lessor, or restored by Lessee as provided elsewhere in this Lease. 9. SURETY BOND (a) Lessee shall provide a surety bond or other security device acceptable to Lessor, for the specified amount, and naming the State of California as the assured, to guarantee to Lessor the faithful observance and performance by Lessee of all of the terms, covenants, and conditions of this Lease. (b) Lessor may require an increase in the amount of the surety bond or other security device to cover any additionally authorized improvements, alterations or purposes and any modification of consideration. (c) The surety bond or other security device shall be maintained in full force and effect at all times during the Lease term and subsequently until all of the Lease Premises have been either accepted as improved, by Lessor, or restored by Lessee as provided elsewhere in this Lease. 10. ASSIGNMENT, ENCUMBRANCBVG OR SUBLETTING (a) Lessee shall not either voluntarily or by operation of law, assign, transfer, mortgage, pledge, hypothecate or encumber this Lease and shall not sublet the Lease Premises, in whole or in part, or allow any person other than the Lessee's employees, agents, servants and invitees to occupy or use all or any portion of the Lease Premises without the prior written consent of Lessor, which consent shall not be unreasonably withheld. (b) The following shall be deemed to be an assignment or transfer within the meaning of this Lease: (1) If Lessee is a corporation, any dissolution, merger, consolidation or other reorganization of Lessee or sale or other transfer of a percentage of capital stock of Lessee which results in a change of controlling persons, or the sale or other transfer of substantially all the assets of Lessee; (2) If Lessee is a partnership, a transfer of any interest of a general partner, a withdrawal of any general partner from the partnership, or the dissolution of the partnership. (c) If this Lease is for sovereign lands, it shall be appurtenant to adjoining littoral or riparian land and Lessee shall not transfer or assign its ownership interest or use rights in such adjoining lands separately from the leasehold rights granted herein without the prior written consent of Lessor. (d) If Lessee desires to assign, sublet, encumber or otherwise transfer all or any portion of the Lease Premises, Lessee shall do all of the following: (1) Give prior written notice to Lessor; (2) Provide the name and complete business organization and operational structure of the proposed assignee, sublessee, secured third party, or other transferee; and the nature of the use of and interest in the Lease Premises proposed by the assignee, sublessee, secured third party or other transferee. If the proposed assignee, sublessee, or secured third party is a general or limited partnership, or a joint venture, provide a copy of the partnership agreement or joint venture agreement, as applicable; (3) Provide the terms and conditions of the proposed assignment, sublease, or encumbrance or other transfer; (4) Provide audited financial statements for the two most recently completed fiscal years of the proposed assignee, sublessee, secured party or other transferee; and provide pro forma financial statements showing the projected income, expense and financial condition resulting from use of the Lease Premises; and (5) Provide such additional or supplemental information as Lessor may reasonably request concerning the proposed assignee, sublessee, secured party or other transferee. Lessor will evaluate proposed assignees, sublessees, secured third parties and other transferees and grant approval or disapproval according to standards of commercial reasonableness considering the following factors within the context of the proposed use: the proposed parry's financial strength and reliability, their business experience and expertise, their personal and business reputation, their managerial and operational skills, their proposed use and projected rental, as well as other relevant factors. (e) Lessor shall have a reasonable period of time from the receipt of all documents and other information required under this provision to grant or deny its approval of the proposed party. (f) Lessee's mortgage or hypothecation of this Lease, if approved by Lessor, shall be subject to terms and conditions found in a separately drafted standard form (Agreement and Consent to Encumbrancing of Lease) available from Lessor upon request. (g) Upon the express written assumption of all obligations and duties under this Lease by an assignee approved by Lessor, the Lessee may be released from all liability under this Lease arising after the effective date of assignment and not associated with Lessee's use, possession or occupation of Form 51.15 (Rev. 6/06) Page 4 or activities on the Lease Premises; except as to any hazardous wastes, substances or materials as defined under federal, state or local law, regulation or ordinance manufactured, generated, used, placed, disposed, stored or transported on the Lease Premises. (h) If the Lessee files a petition or an order for relief is entered against Lessee, under Chapters 7,9,11 or 13 of the Bankruptcy Code (11 USC Sect. 101, et seq.) then the trustee or debtor-in-possession must elect to assume or reject this Lease within sixty (60) days after filing of the petition or appointment of the trustee, or the Lease shall be deemed to have been rejected, and Lessor shall be entitled to immediate possession of the Lease Premises. No assumption or assignment of this Lease shall be effective unless it is in writing and unless the trustee or debtor-in- possession has cured all defaults under this Lease (monetary and non-monetary) or has provided Lessor with adequate assurances (1) that within ten (10) days from the date of such assumption or assignment, all monetary defaults under this Lease will be cured; and (2) that within thirty (30) days from the date of such assumption, all non-monetary defaults under this Lease will be cured; and (3) that all provisions of this Lease will be satisfactorily performed in the future. 11. DEFAULT AND REMEDIES (a) Default The occurrence of any one or more of the following events shall immediately and without further notice constitute a default or breach of the Lease by Lessee: (1) Lessee's failure to make any payment of rental, royalty, or other consideration as required under this Lease; (2) Lessee's failure to obtain or maintain liability insurance or a surety bond or other security device as required under this Lease; (3) Lessee's vacation or abandonment of the Lease Premises (including the covenant for continuous use as provided for in paragraph 4) during the Lease term; (4) Lessee's failure to obtain and maintain all necessary governmental permits or other entitlements; (5) Lessee's failure to comply with all applicable provisions of federal, state or local law, regulation or ordinance dealing with hazardous waste, substances or materials as defined under such law; (6) Lessee's Failure to commence to construct and to complete construction of the improvements authorized by this Lease within the time limits specified in this Lease; and/or (7) Lessee's failure to comply with applicable provisions of federal, state or local laws or ordinances relating to issues of Health and Safety, or whose purpose is to conserve resources or to protect the environment. (b) Lessee's failure to observe or perform any other term, covenant or condition of this Lease to be observed or performed by the Lessee when such failure shall continue for a period of thirty (30) days after Lessor's giving written notice; however, if the nature of Lessee's default or breach under this paragraph is such that more than thirty (30) days are reasonably required for its cure, then Lessee shall not be deemed to be in default or breach if Lessee commences such cure within such thirty (30) day period and diligently proceeds with such cure to completion. (c) Remedies In the event of a default or breach by Lessee and Lessee's failure to cure such default or breach, Lessor may at any time and with or without notice do any one or more of the following: (1) Re-enter the Lease Premises, remove all persons and property, and repossess and enjoy such premises; (2) Terminate this Lease and Lessee's right of possession of the Lease Premises. Such termination shall be effective upon Lessor's giving written notice and upon receipt of such notice, Lessee shall immediately surrender possession of the Lease Premises to Lessor; (3) Maintain this Lease in full force and effect and recover any rental, royalty, or other consideration as it becomes due without terminating Lessee's right of possession regardless of whether Lessee shall have abandoned the Lease Premises; and/or (4) Exercise any other right or remedy which Lessor may have at law or equity. 12. RESTORATION OF LEASE PREMISES (a) Upon expiration or sooner termination of this Lease, Lessor upon written notice may take title to any or all improvements, including fills, or Lessor may require Lessee to remove all or any such improvements at its sole expense and risk; or Lessor may itself remove or have removed all or any portion of such improvements at Lessee's sole expense. Lessee shall deliver to Lessor such documentation as may be necessary to convey title to such improvements to Lessor free and clear of any liens, mortgages, loans or any other encumbrances. (b) In removing any such improvements Lessee shall restore the Lease Premises as nearly as possible to the conditions existing prior to their installation or construction. Form 51.15 (Rev. 6/06) PageS (c) All plans for and subsequent removal and -restoration shall be to the satisfaction of Lessor and shall be completed within ninety (90) days after the expiration or sooner termination of this Lease or after compliance with paragraph 12(d), whichever is the lesser. (d) In removing any or all the improvements Lessee shall be required to obtain any permits or other governmental approvals as may then be required by lawful authority. (e) Lessor may at any time during the Lease term require Lessee to conduct at its own expense and by a contractor approved by Lessor an independent environmental site assessment or inspection for the presence or suspected presence of hazardous wastes, substances or materials as defined under federal, state or local law, regulation or ordinance manufactured, generated, used, placed, disposed, stored or transported on the Lease Premises during the term of the Lease. Lessee shall provide the results of the assessment or inspection to Lessor and the appropriate governmental response agency(ies) and shall further be responsible for removing or taking other appropriate remedial action regarding such wastes, substances or materials in accordance with applicable federal, state or local law regulation or ordinance. 13. QUITCLAIM Lessee shall, within ninety (90) days of the expiration or sooner termination of this Lease, execute and deliver to Lessor in a form provided by Lessor a good and sufficient release of all rights under this Lease. Should Lessee fail or refuse to deliver such a release, a written notice by Lessor reciting such failure or refusal shall, from the date of its recordation, be conclusive evidence against Lessee of the termination of this Lease and all other claimants. 14. HOLDING-OVER Any holding-over by Lessee after the expiration of the Lease term, with or without the express or implied consent of Lessor, shall constitute a tenancy from month to month and not an extension of the Lease term and shall be on the terms, covenants, and conditions of this Lease, except that the annual rental then in effect shall be increased by twenty- five percent (25%). 15. ADDITIONAL PROVISIONS (a) Waiver (1) No term, covenant, or condition of this Lease and no default or breach of any such term, covenant or condition shall be deemed to have been waived, by Lessor's acceptance of a late or nonconforming performance or otherwise, unless such a waiver is expressly acknowledged by Lessor in writing. (2) Any such waiver shall not be deemed to be a waiver of any other term, covenant or condition of any other default or breach of any term, covenant or condition of this Lease. ..(b) Time Time is of the essence of this Lease and each and all of its terms, covenants or conditions in which performance is a factor. (c) Notice All notices required to be given under this Lease shall be given in writing, sent by U.S. Mail with postage prepaid, to Lessor at the offices of the State Lands Commission and the Lessee at the address specified in this Lease. Lessee shall give Lessor notice of any change in its name or address. (d) Consent Where Lessor's consent is required under this Lease its consent for one transaction or event shall not be deemed to be a consent to any subsequent occurrence of the same or any other transaction or event. (e) Changes This Lease may be terminated and its term, covenants and conditions amended, revised or supplemented only by mutual written agreement of the parties. (f) Successors The terms, covenants and conditions of this Lease shall extend to and be binding upon and inure to the benefit of the heirs, successors, and assigns of the respective parties. (g) Joint and Several Obligation If more than one Lessee is a party to this Lease, the obligations of the Lessees shall be joint and several. (h) Captions The captions of this Lease are not controlling and shall have no effect upon its construction or interpretation. (i) Severability If any term, covenant or condition of this Lease is determined by a court of competent jurisdiction to be invalid, it shall be considered deleted and shall not invalidate any of the remaining terms, covenants and conditions. 1(0 Form 51.15 (Rev. 6/06) Page 6 STATE OF CALIFORNIA - STATE LANDS COMMISSION LEASE NO. PRC 8718.9 This Lease shall become effective only when approved by and executed on behalf of the State Lands Commission of the State of California and a duly executed copy has been delivered to Lessee. The submission of this Lease by Lessor, its agent or representative for examination by Lessee does not constitute an option or offer to lease the Lease Premises upon the terms and conditions contained herein, or a reservation of the Lease Premises in favor of Lessee. Lessee's submission of an executed copy of this Lease to Lessor shall constitute an offer to Lessor to lease the Lease Premises on the terms and conditions set forth herein. IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the date hereafter affixed. LESSEE: LESSOR: CITY OF CARLSBAD STATE OF CALIFORNIA STATE LANDS COMMISSION By: Title:c SEPTEMBER 2011 Date: This Lease was authorized by the ACKNOWLEDGMENT California State Lands Commission on (Month Day Year) Form 51.15 (Rev. 6/06) CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of California County of On before me,r\^^YN (Here insert name and title of the officer) . J personally appeared who proved to me on the basis of satisfactory evidence to be the personfs) whose namet^Xis^afe-subscribed to the within instrument and acknowledged to me tha<£lie/^he/trrEy executed the same ir(W§/hef/thei^authorized capacityXies^Tand that by$tt$}ke¥/$Kir signature^-sT'on the instrument the person^, or the entity upon behalf of which the personj(js)-l!cted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. «^ Signature of^lotary Public (Notary Seal) SHEILA RENAE COBIAN P Commission # 1848471 I Notary Public - California I San Diego County i My Comm. Expires May 10,2013 j ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT (Title or description of attached document) (Title or description of attached document continued) Number of Pages Document Date (Additional information) CAPACITY CLAIMED BY THE SIGNER D Individual (s) D Corporate Officer D D D D (Title) Partner(s) Attorney-in-Fact Trustee(s) Other INSTRUCTIONS FOR COMPLETING THIS FORM Any acknowledgment completed in California must contain verbiage exactly as appears above in the notary section or a separate acknowledgment form must be properly completed and attached to that document. The only exception is if a document is to be recorded outside of California. In such instances, any alternative acknowledgment verbiage as may be printed on such a document so long as the verbiage does not require the notary to do something that is illegal for a notary in California (i.e. certifying the authorized capacity of the signer). Please check the document carefully for proper notarial wording and attach this form if required. • State and County information must be the State and County where the document signer(s) personally appeared before the notary public for acknowledgment. • Date of notarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). « Print the name(s) of document signer(s) who personally appear at the time of notarization. • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. he/she/they, is /afe ) or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording. • The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re-seal if a sufficient area permits, otherwise complete a different acknowledgment form. • Signature of the notary public must match the signature on file with the office of the county clerk •!• Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. •I* Indicate title or type of attached document, number of pages and date <• Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e CEO, CFO, Secretary). • Securely attach this document to the signed document 2008 Version CAPA v!2.10.07 800-873-9865 www.NotaryClasses.com CARLSBAD OPPORTUNISTIC BEACH FILL PROGRAM PROJECT NOTIFICATION REPORT 1. Introduction Provide the basic program outline. Specify the permit conditions (USAGE, CCC, RWQCB, and SLC). This Project Notification Report will request agency concurrence and a Notice to Proceed from the USAGE (See Section 8.1 for further information) Proposed Project Limits Placement Site' Maximum Annual Quantity (CY) Maximum Project Length (ft) Placement Scenarios (i) Season Maximum Percent Fines Allowed Proposed Volumes (CY) Maximum Annual Volume12' Initial Maximum Volumes'3' Maximum Volume per Week Encinas Beach (South Carlsbad State Beach) 150,000 2,000 a) Berm b) MHT c) Dike Fall/Winter (Sept 15 -Mar 15) Spring (Mar 15 -Memorial Day) Summer (Memorial Day -Labor Day) Late Summer Option (Labor Day. Sept IS) 25% 15% — 15% 150,000 40,000 — 10,000 30,000 20,000 — 5,000 20,000 10,000 — 10,000 1) (a) Berm-beach berm on upper beach; (b) MHT-placement below the high tide line; c) Dike-sand dike along toe of bluff 2) The cumulative maximum quantity of all sand in a calendar year, regardless of season, is 150,000 cy (3) It is proposed that the program start with relatively small projects followed by monitoring, before larger projects be considered. 4) Assumes a 6-day workweek; Monday through Saturday only. No work will occur on holidays < 5) No work can occur at any site on the holiday weekends of Memorial Day and Labor Day, and weekends adjacent to Independence Day, when Independence Day falls on a Friday or Monday 2. Source Material 2.1. General Site Location Include maps, figures, and text description of site location and surrounding areas. 2.2. Specific Location of Source Material at Site Describe where on the site the source material is found 2.3. Volume of Material (Total volume and volume proposed for beach placement) Describe total volume of material available at site and volume that is being proposed for beach nourishment. The disposal method of excess material will be described in this section. 2.4. Material Testing Present the Sampling and Analysis Plan that was prepared for and approved by the USAGE as part of their permit conditions. The results will-be provided, which will include any chemistry and grain size testing. Figures and tables will be provided. 2.5. Debris Management Describe general content of material with regard to debris. This will include a description of the kinds of debris found in the source material, methods for screening, separating, and/or retrieving the debris, and disposal methods. An on-site debris monitor will be present during beach replenishment to monitor for 'the presence of debris in the sandy material. If any debris or non-sandy material is detected, the specific beach replenishment project(s) that was/were using that sand material shall be halted at that site(s). The project(s) shall not continue until a new Project Notification Report with updated information on the composition of the material is submitted and approved by the resource agencies. 3. Transportation and Placement 3.1. Site Location and Timing Describe the existing conditions of the beach site and the timing of project. Include projected schedule. 3.2. Transportation Method Describe how the material will get to the beach site. Outline trucking routes and provide figures, if needed. Indicate how many trucks and frequency. Specify a traffic control plan from the contractor. 3.3. Beach Placement Method Describe the placement method, including any equipment that may be needed to construct the project. Outline specific public access closures or restrictions. Outline project BMPs, such as flagmen, perimeter fencing, etc. that are proposed. Specify how the access ramp will be constructed and how it will be removed or maintained following the project. Construction materials or waste will not be stored where it will could potentially be subjected to wave erosion and dispersion. In addition, no machinery will be placed, stored, or otherwise located in the Intertidal zone at any time, except for the minimum necessary to implement the project. Construction equipment shall not be washed on the beach or in the beach parking lots. Construction debris and sediment shall be properly contained and secured on site with BMPs, to prevent the unintended transport of sediment and other debris into coastal waters by wind, rain, or tracking. Construction debris and sediment shall be removed from the construction areas as necessary to prevent the accumulation of sediment and other debris which may be discharged into coastal waters. Any and all debris resulting from construction activities shall be removed from the project site within 24 hours of completion of construction. Debris shall be disposed of at a debris disposal site outside the coastal zone. Plans for the staging and storage of the construction equipment shall be provided by the contractor. Where possible, public parking areas shall not be used for staging or storage of equipment and materials. Where this is unavoidable, the minimum number of parking spaces that are required shall be used. Access corridors and staging areas shall be located in a manner that has the least impact of public access via the maintenance of existing public parking areas and traffic flow on coastal access routes. 3.4. Contractor Information Include Contractor name, address, contact information, etc. 4. Pubic Notification Process Thus section will outline how the public is being notified of the overall program and this specific project. Each upland project will be approved by the Carlsbad Planning Commission or City Council through a public hearing. This section of the report will include a listing of the local hearing dates and copies of all the local hearing notices. All written correspondence received by the City regarding the project and minutes of the Planning Commission/City Council meetings will be included. Other proposed public noticing methods may include Beach Preservation Committee (BPC) Workshops, City Council Meetings, Chamber of Commerce/Downtown Business Association articles, City Publications, Newspaper Articles, Signage, Public Television, or Water Billing notices. Also, a posting will be placed at each construction site with a notice indicating the project scope, expected dates of construction, and/or beach closure. 5. Project Monitoring This section will outline the pre-, during, and post-construction monitoring plan for the project. This section will also include the reporting protocols for the monitoring efforts as outlined in the CCC, RWQCB, USAGE, and SLC permit requirements. 5.1. Pre-Construction Monitoring Describe all pre-construction monitoring and that will be conducted. This will include biological monitoring and physical monitoring (pre-fill profiles and surfing conditions). The description will include what will be monitored, procedures for the monitoring, frequency, who will conduct the monitoring and their qualifications. Figures representing areas, transects, etc., will be included in the pre-construction monitoring. If pre-construction monitoring identifies potential adverse impacts to coastal resources from the proposed project not identified and addressed in the Mitigated Negative Declaration or within the Resource Agency permits, the specific replenishment project for which the pre-construction monitoring was being conducted shall be suspended. The monitoring results will be presented to the above mentioned agencies for their review and files. 5.2. Construction Monitoring Describe what monitoring will be conducted during construction, including biological and physical monitoring. This will include monitoring protocol and contingency operations for monitoring of turbidity, sedimentation, surfing effects, and biology at the proposed discharge site and adjacent nearshore and offshore areas. Monitoring personnel will be identified and their qualifications will be provided: 5.3. Post-Construction Monitoring Describe what monitoring will be conducted after construction, including biological and physical monitoring. This will include monitoring protocol and contingency operations for monitoring of sedimentation, biology and effects to surfing at the proposed discharge site and adjacent nearshore and offshore areas. Monitoring personnel will be identified and their qualifications will be provided. 6. Previous Projects in Carlsbad This section will provide a table outlining each placement site and any beach fills that have occurred within the City as part of the Opportunistic Beach Fill Program or otherwise. Site Dates of Placement Volume (CY) Total Volume to Date (CY) Placement Method Fill Length Width (if applicable)%fmes 7. Submittals This section will outline what submittals are required and when the resource agencies can expect them. This will include notification of any violations to the resource agencies. 7.1. Post Discharge Report Post-Discharge Report will be compiled and submitted to the resource agencies which will include all of the information collected by the City for an individual project, including all preparation testing, volume of material placed at the site, transportation and construction details, finalized project schedule, and monitoring results. An assessment of the project effects, both beneficial and adverse will be presented at the end of every year. This analysis will serve as the basis for any modifications that can be made to optimize the program. 8. Special Requirements 8*1. Timing ofSubmittal and Approval from the Resource Agencies This section will include description of any special permit conditions for the program with regards to timing of submittals and approvals. 8.1.1. California Coastal Commission (CCC) 8.1.2. Regional Water Quality Control Board (RWQCB) ~8.1.3. California State Lands Commission (SLC) 8.1.4. U.S. Army Corps of Engineers (USACE) 8.2. Other Permits Copies of permits from the Coastal Commission, State Lands Commission, Regional Water Quality Control Board, and U.S. Army Corps of Engineers will be attached to this notification report. 8.3. Copies of Approvals Copies of approvals, including the Letter of Permission from the U.S. Army Corps of Engineers will be provided to all agencies once they are received. The project will not commence until approvals from all permitting agencies has been obtained. 8.4. Assumption of Risk, Waiver of Liability and Indemnity The City of Carlsbad acknowledges and agrees (i) that the site may be subject to' hazards such as erosion and landslides; (ii) to assume the risks to the City and the property that is the subject of this permit of injury and damage from such hazards in connection with this permitted development; (iii) to unconditionally waive any claim of damage or liability against the Coastal Commission, its officers, agents, and employees for injury or damage from such hazards; and (iv) to indemnify and hold harmless the Commission, its officers, agents, and employees with respect to the Commission's approval of the project against any and all liability, claims, demands, damages, costs (including costs and fees incurred in defense of such claims), expenses, and amounts paid in settlement arising from any injury or damage due to such hazards.