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HomeMy WebLinkAbout2016-05-17; City Council; 22289; Authorize right of entry permit with California Department of Parks and Recreation for maintenance at Tamarack and Tamarack Frazee State BeachesItem 1; page 1 CITY OF CARLSBAD-AGENDA BILL AB# 22,289 AUTHORIZE A RIGHT OF ENTRY PERMIT WITH THE DEPT. DIRECTOR ® MTG. 05/17/2016 STATE OF CALIFORNIA DEPARTMENT OF PARKS & CITY ATTY. !-IS DEPT. P&R RECREATION TO MAINTAIN THE UPPER PICNIC CITY MGR. FACILITIES AT TAMARACK STATE BEACH AND THE \L L-- COASTAL BLUFF AT TAMARACK/FRAZEE STATE BEACH RECOMMENDED ACTION: Adopt a resolution authorizing the Right of Entry Permit with the State of California Department of Parks & Recreation to maintain the Upper Picnic Facilities at Tamarack State Beach and the Coastal Bluff at Tamarack/Frazee State Beach. ITEM EXPLANATION: On May 20, 2014, the City of Carlsbad entered into an initial Right of Entry Permit (Permit) with the State to improve/maintain the Upper Picnic Facilities (Picnic Facilities) at Tamarack State Beach and the Coastal Bluff at Tamarack/Frazee State Beach (Coastal Bluff) for a term of one year. The intent ofthe Permit was to provide enhanced coastal experiences for residents, business owners, and visitors of the City of Carlsbad. Concurrent with that action, the City Council allocated a total of $899,930 for corresponding one-time improvements, and $115,000 per year for corresponding ongoing maintenance. The boundary of the Picnic Facilities is depicted in the attached aerial photograph [Exhibit 2]. It includes approximately 1.5 acres of passive turf, hardscape, raised planters, trees, picnic tables and benches, trash receptacles, two showers, a drinking fountain, a stairway with adjacent hand railing, a blockhouse restroom and a corresponding wastewater pump station. The boundary of the Coastal Bluff is depicted in the attached aerial photograph [Exhibit 3]. It includes approximately 4.8 acres of slopes which contain a predominantly native plant material, and a permitted/improved footpath near the northern and southern ends ofthe boundary. The City Council directed staff to initiate discussions with State staff on the potential for the city to assume such services from the State-both in the short-term, and in the long term-at the Picnic Facilities and at the Coastal Bluff. The city and State entered into the initial Permit on May 20, 2014, for a term ending on May 19, 2015. The Permit allowed the city to: 1) enter onto the Picnic Facilities solely for the purpose of " ... maintaining landscaping, irrigation systems, hardscapes, and daily facility housekeeping tasks for the comfort station (i.e. blockhouse restroom) ... ", and 2) enter onto the Coastal Bluff solely for the purpose of " ... revegetating native coastal bluff habitat, retrofitting/expanding DEPARTMENT CONTACT: Kyle Lancaster 760-434-2941, Kyle.Lancaster@carlsbadca.gov FOR CLERK USE. ~ COUNCIL ACTION: APPROVED CONTINUED TO DATE SPECIFIC 0 DENIED 0 CONTINUED TO DATE UNKNOWN 0 CONTINUED 0 RETURNED TO STAFF 0 WITHDRAWN 0 OTHER-SEE MINUTES 0 AMENDED 0 REPORT RECEIVED 0 Item 1; page 2 existing irrigation system, and maintaining said vegetation and irrigation system .... " The intent of the initial Permit was to allow the city a short term means of entering the Picnic Facilities and Coastal Bluff to commence improvement and maintenance services. Within months after execution of the initial Permit, the subject sites were under regularly scheduled maintenance programs. Based upon the successful results achieved at these sites within the initial term of the Permit, both the city and the State expressed an interest in entering into a new Permit for an additional year. On May 19, 2015, the City Council adopted a resolution approving that Permit, from May 20, 2015 to May 19, 2016. Later in 2015, a lawsuit was filed against the State alleging that the Picnic Facilities violate the Americans with Disabilities Act, entitled Webb v. California Department of Parks, Southern California District Court Case No. 3:15-CV-02198. The State has demanded that the city defend and indemnify the State in this lawsuit based on the indemnification provisions in the prior Permits. The city disagrees that it is under a duty to defend and indemnify the State and has therefore refused the State's demand. The indemnification provision in the new Permit is identical to the language in the initial Permit and the 2015 Permit, as it is the State's standard indemnification provision for this type of Permit. Presuming successful results were achieved within the initial term of the Permit, the city's intent was to execute a long term agreement for continuation and expansion of the described services on these sites. The city and the State have one such long term agreement already in place for the Ocean Street Sculpture Park, located northwest of the intersection of Pine Avenue and Carlsbad Boulevard. In 1990, the city and the State entered into a 20-year agreement. In 2011, based on the successful results achieved, the city and the State entered into a successor 20-year agreement. Due to the extensive nature and duration of a long-term operating agreement, additional levels of State review and approval are needed which typically takes at least one year. At the City Council's direction, staff held several meetings with the representatives from the State's local offices in 2015 to discuss the potential for a long-term operating agreement on the Picnic Facilities, Coastal Bluff, and other State- owned beach sites. Staff is now in communication with representatives from the State's headquarter offices regarding the potential for executing such an agreement. As an agreement has not yet been executed, staff recommends renewing the Permit on the Picnic Facilities and Coastal Bluff for one year, beginning May 20, 2016, and ending May 19, 2017, to give the parties an opportunity to negotiate a long-term operating agreement. Such an agreement would also provide an opportunity to lay out the respective responsibilities of the State and city regarding the requirements of the Americ:ans with Disabilities Act. FISCAL IMPACT: There is no new fiscal impact associated with the recommended action. The City Council appropriated one-time funds of $899,930 to the Capital Improvement Program and $115,000 in annual operating funds to the Parks Maintenance budget on May 20, 2014. ENVIRONMENTAL IMPACT: Pursuant to Public Resources Code Section 21065, the recommended action does not constitute a "project" within the meaning of CEQA in that it has no potential to cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and thus does not require environmental review. Item 1; page 3 EXHIBITS: 1. Resolution approving a Right of Entry Permit with State of California Department of Parks & Recreation to maintain the Upper Picnic Facilities at Tamarack State Beach and the Coastal Bluff at Tamarack/Frazee State Beach 2. Aerial photo depicting the boundaries of Tamarack State Beach Upper Picnic Facilities 3. Aerial photo depicting the boundaries of Tamarack/Frazee State Beach Coastal Bluff Item 1; page 4 1 2 3 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 RESOLUTION NO. 2016-089 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING A RIGHT OF ENTRY PERMIT WITH THE STATE OF CALIFORNIA DEPARTMENT OF PARKS & RECREATION TO MAINTAIN THE UPPER PICNIC FACILITIES AT TAMARACK STATE BEACH AND THE COASTAL BLUFF AT TAMARACK/FRAZEE STATE BEACH EXHIBIT 1 WHEREAS, the State of California Department of Parks and Recreation (State) operates under significant budget constraints that resulted in a corresponding decline in the quantity and quality of services it provided to the public at Tamarack and Frazee State Beaches prior to May 20,2014;and WHEREAS, the city became increasingly concerned about the effects of the State's declining service levels within these properties on the general public, including residents, business owners, and tourists, and on the city's image; and WHEREAS, in consideration of these concerns and desires, the City Council directed staff to initiate discussions with State staff on the potential for the City to assume such services from the State-both in the short-term, and in the long term-at the Picnic Facilities and at the Coastal Bluff; and WHEREAS, on May 20, 2014, the city entered into a Right of Entry Permit (Permit) with the State to improve/maintain the Tamarack State Beach Upper Picnic Facilities (Picnic Facilities) and the Tamarack/Frazee State Beach Coastal Bluff (Coastal Bluff); and WHEREAS, with that action, the City Council allocated $899,930 for corresponding one- time improvements, and $115,000 per year for corresponding ongoing maintenance; and Item 1; page 5 1 2 3 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 WHEREAS, based upon the successful results achieved at these sites within the initial term of the Permit, on May 19, 2015, the City Council adopted a resolution entering into a new Permit, from May 20, 2015 to May 19, 2016; and WHEREAS, at the City Council's direction, staff held several meetings with the representatives from the State's local offices to discuss the potential for a long-term operating agreement on the Picnic Facilities, Coastal Bluff, and other state-owned beach sites; and WHEREAS, staff is now in communication with representatives from the State's headquarter offices regarding the potential for executing such an agreement; and WHEREAS, staff recommends approving the Permit on the Picnic Facilities and Coastal Bluff for one year, beginning May 20, 2016, and ending May 19, 2017, to give the State and city time to negotiate a long-term agreement. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows that: Ill Ill Ill Ill Ill Ill Ill Ill 1. The above recitations are true and correct. 2. The City Council does hereby authorize and direct the Mayor to execute the Permit with the State to maintain the Picnic Facilities and the Coastal Bluff for one year, which is attached to this Resolution as Attachment A. Item 1; page 6 1 2 3 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 PASSED, APPROVED AND ADOPTED at a Regular Meeting ofthe City Council of the City of Carlsbad on the 17th day of __ _;M~a.~--v __ , 2016, by the following vote to wit: AYES: Hall, Schumacher, Blackburn. NOES: None. ABSENT: Wood, Packard. ATTEST: -- BARBARA ENGLESO (SEAL) Item 1; page 7 ATTACHMENT A Agency: Department of Parks and Recreation RIGHT OF ENTRY PERMIT Project: Operation of Tamarack Upper Picnic Facilities: Tamarack RR, Grass and Picnic Area & Bluff This Right of Entry Permit (Permit) is made and entered into this 19th day of May 2016, between the State of California, acting by and through its Department of Parks and Recreation, hereinafter called State, and City of Carlsbad, a local Government entity hereinafter called Permittee; State and Permittee may hereinafter be referred to as a Party, or collectively the Parties. • • • RECITALS Whereas, the State owns, operates and maintains the State Park known as Carlsbad State Beach, in the County of San Diego, State of California; and Whereas, Permittee has applied to State for permission to access for purposes of carrying out grounds keeping, maintenance of facilities, and restoration of the coastal bluff habitat (the Project); and Whereas, the State desires to accommodate Permittee's application for permission to enter Carlsbad State Beach for purposes of the Project, as provided herein and as, and to the extent, such Project may be ultimately described, permitted, approved and conditioned by this document and subsequent environmental documents, and as may be conditioned by any other regulatory agency having jurisdiction, if applicable. TERMS AND CONDITIONS Now therefore, the State by this Permit hereby grants to the Permittee permission to enter upon State's property, conditioned upon the agreement of the Parties that this Permit does not create or vest in Permittee any interest in the real property herein described or depicted, that the Permit is revocable and non-transferable, and that the Permit is further subject to the following terms and conditions: 1. Project Description: By this Permit, the State hereby ~rants to the Permittee permission to enter onto those lands depicted and/or described on Exhibits 'A" and "B" (the Property), attached hereto and herein incorporated by this reference, solely for the purpose of 1) maintaining landscaping, irrigation systems, hardscapes, and daily facility housekeeping tasks for the comfort station (for the Area described in Exhibit "A" and 2) revegetating and maintaining the native coastal bluff habitat within a 4.8 acre area also described in Exhibit "B" 2. Permit Subject to Laws and Regulatory Agency Permits: This Permit is expressly conditioned upon Permittee's obtaining any and all regulatory permits or approvals required by the relevant regulatory agencies for the Project and Permittee's use of the Property, and upon Permittee's compliance with all applicable municipal, state and federal laws, rules and regulations, including all State Park regulations. Permittee shall, at Permittee's sole cost and expense, comply with the Project Description, and requirements and mitigations pursuant to the California Environmental Quality Act (CEQA). Prior to commencement of any work, Permittee shall obtain all such legally required permits or approvals and submit to the State full and complete copies of all perm1ts and approvals, including documentation related to or referenced in such permits and approvals, along with the corresponding agency contact and telephone numbers, and related CEQA and/or National Environmental Policy Act (NEPA) documentation as applicable. 3. Term of Permit: This Permit shall only be for the period beginning on 05/20/2016. and ending on 5/19/2017, or as may be reasonably extended by written mutual agreement of the Parties. 4. Consideration: As this is a mutually beneficial agreement between the parties which will improve facility features and maintenance, a component of CA State Parks' Mission and Director's Strategic Vision, no monetary compensation is being sought by Permitee. 5. Permit Subject to Existing Claims: This Permit is subject to existing contracts, permits, licenses, encumbrances and claims which may affect the Property. Item 1; page 8 6. Waiver of Claims and Indemnity: Permittee waives all claims against State, its officers, agents and/or employees, for loss, injury, death or damage caused by, ansing out of, or in any way connected with the condition or use of the Property, the issuance, exercise, use or implementation of this Permit, and/or the rights herein granted. Permittee further agrees to protect, save, hold harmless, indemnify and defend State, its officers, agents and/or employees from any and all loss, damage, claims, demands, costs and liability which may be suffered or incurred by State, its officers, agents and/or employees from any cause whatsoever, arising out of, or in any way connected with th1s Permit, exercise by Permittee of the rights herein granted, Permittee's use of the Property and/or the Project for which this Permit is granted, except those arising out of the sole active negligence or willful misconduct of State. Permittee will further cause such indemnification and waiver of claims in favor of State to be inserted in each contract that Permittee executes for the provision of services in connection with the Project for which this Permit is granted. 7. Contractors: Permittee shall incorporate the terms, conditions and requirements contained herein when contracting out all or any portion of the work permitted hereunder. Permittee shall be responsible for ensuring contractor/subcontractor compliance with the terms and conditions contained herein. Failure of Permittee's contractors to abide by State's terms and conditions shall constitute default by Permittee (see DEFAULT paragraph below) allowing State to terminate this Permit and seek all legal remedies. 8. Insurance Requirements: As a condition of this Permit and in connection with Permittee's indemnification and waiver of claims contained herein, Permittee shall maintain, and cause its contractors to maintain, a policy or policies of insurance as follows: A. Commercial Permittees Permittee shall maintain motor vehicle liability with limits of not less than $1 ,000,000 per accident. Such insurance shall cover liability arising out of a motor vehicle, including all owned, hired, and non-owned motor vehicles. Permittee shall maintain statutory Workers' Compensation and employer's liability insurance coverage in the amount of $1 ,000,000/employeeldisease/each accident, for all its employees who will be engaged in the performance of work on the Property, including S!)ecial extensions where applicable. Said policy shall include a waiver of subrogation in favor of State. If the permittee has no employees and/or the owner(s) have elected not to be covered by workers' compensation, Permittee shall provide State with a written confirmation that Permittee is not required to be, and/or has elected not to be, covered by Workers' Compensation. Permittee shall procure commercial general liability insurance at least as broad as the most commonly available ISO policy form CG 0001 covering premises operations, products/completed operations, personal/advertising injury and contractual liability with limits not less than $1,000,000 per occurrence and $2,000,000 general aggregate. Said policy shall apply separately to each Insured against whom any claim is made or SUit is brought subJect to the Permittee limits of liability B. Private Party Permittees Permittee shall maintain personal auto insurance with limits of not less than $100,000 bodily injury per person, $300,000 bodily injury per accident, and $50,000 property damage per accident. Permittee shall maintain comprehensive personal liability with limits of not less than $300,000 each occurrence. Each policy of insurance required by this provision shall: (a) be in a form, and written by an insurer, reasonably acceptable to State and (b) be maintained at Permittee's sole expense. Permittee shall provide to the State within five (5) business days following receipt by contractor a copy of any cancellation or non-renewal of insurance required by th1s Permit. Insurance companies issuing such policies shall have a rating classification of "A-" or better and financial size category ratings of "VII" or better according to the latest edition of the A.M. Best Key Rating Guide. All Insurance companies issuing such policies shall be licensed admitted insurers or eligible surplus lines insurers authorized to do business in the State of California. Said motor vehicle liability and commercial general liability policies shall contain an endorsement naming the STATE OF CALIFORNIA and the CALIFORNIA DEPARTMENT OF PARKS AND RECREATION as an additional insured at no cost to State. The endorsements shall be provided and not substituted by referring to such coverage on the certificate of insurance. Permittee shall provide to State evidence that the insurance required to be carried by this Permit, including the endorsements affecting the additional insured status and waiver of subrogation, is in full Rev. 6/6/2012 2 of 6 Item 1; page 9 force and effect and that premiums therefore have been gaid. Such evidence shall, at State's discretion, be in the form of a Certificate of Insurance or DPR Form 169A, Certificate of Insurance for Concession Contracts/Special Events, or a certified copy of the original policy, including all endorsements. Permittee is responsible for any deductible or self-insured retention contained within the insurance program. Should Permittee fail to keep the specified insurance in effect at all times, Permittee shall be considered to be in default of this Permit, and State may, in addition to any other remedies it has, terminate this Permit. Permittee shall require and ensure that all contractors and subcontractors have adequate insurance meeting the coverage requirements in this provision. Any insurance require.d to be carried shall be primary and not excess to any other insurance carried by State. Coverage shall be in force for the complete term of this Permit, including any extension thereof, and for all work being done for which this Permit is required. 9. Reservation of Rights: State reserves the right to use the Property in any manner, provided such use does not unreasonably interfere with Permittee's rights herein. 10. Access Limits and Conditions: Access to the Property shall be limited to the access designated by State. 11. Notice of Work: Any required notices to State shall be sent to the State authorities in charge of Carlsbad State Beach named below. At least forty-eight (48) hours prior to any entry upon the Property for any of the purposes hereinabove set fortll, Permittee shall provide the State contact[s] named below with written notice of Permittee's intent to enter the Property. Permittee shall also notify the State contact[s] listed below in writing at least forty-eight (48) hours prior to any change in the Project schedule or cessation or completion of work. Should State personnel need to contact Permittee, State shall notify Permittee's contact person listed below: 12. 13. 14. STATE: Contact: lnterm Superintendent Lisa Urbach District: San Diego Coast /North Sector Address: 2680 Carlsbad Bl, Carlsbad, CA 92008 Telephone: (760) 720-7001 E:mail: lisa.urbach@parks.ca.gov PERMITTEE'S CONTACT: Contact: Superintendent Kyle Lancaster Department: Parks & Recreation Address: 799 Pine Ave., Carlsbad, CA 92008 Telephone: (760) 434-2941 E: mail: kyle .lancaster@carlsbadca.gov Limits of Work: In no event shall this Permit authorize work in excess or contrary to the terms and conditions of any regulatory agency permit or approval. Under no circumstances, whether or not authorized by any regulatory agency, other permit or any person or entity other than State, shall work exceed that which is authorized by this Permit. Public Safety: Permittee shall erect orange plastic temporary construction fencing and appropriate signage prior to commencement of work to prevent public access to the construction zone. Permittee shall remove such fencing within two (2) days after the completion of work. Permittee shall take, and shall cause its contractors or subcontractors to take, any and all necessary and reasonable steps to protect the public from harm in connection with the Project or implementation of this Permit. Compliance with Project Requirements, Monitoring and Mitigation Measures (if applicable): Prior to commencement of revegetating native coastal bluff habitat State will update CEQA document (NOE 2002/2003-SD-78) that updates and specifies resource monitoring and mitigation measures. The measures identified shall be completed by Permittee in accordance with and to the satisfaction of the District Superintendent or designee. Permittee's activities conducted under this Permit shall comply with all State and Federal environmental laws, including, but not limited to, the Endangered Species Act, CEQA, and Section 5024 of the Public Resources Code. Any of Permittee's archaeological consultants working within the boundaries of the Property shall obtain a permit from the California State Parks Archaeology, History & Museums Division prior to commencing any archaeological or cultural investigations of the Property. Rev. 6/6/2012 3 of 6 Item 1; page 10 15. 16. 17. 18. Permittee shall immediately advise State's contact person if any new site conditions are found during the course of permitted work. State will advise Permittee if any new historical resources (including archaeological sites), special status species, threatened/endangered species protocols, or other resource issues are identified within the Project site. Permittee shall abide by District Superintendent or designee's instructions to protect the resource(s) during the permitted work or risk revocation of the Permit. Permittee shall make all excavation activities on the Property available to the State Archaeologist for observation and monitoring. During excavation, the State archaeological monitor may observe and report to the State on all excavation activities. State archaeological monitor shall be empowered to stop any construction activities as necessary to protect significant cultural resources from being disturbed. In the event that previously unknown cultural resources, including, but not limited to, dark soil containing shell, bone, flaked stone, groundstone, or deposits of historic trash are encountered during Project construction by anyone, work will be suspended at that specific location, and the Permittee's work will be redirected to other tasks, until after a State-qualified archaeologist has evaluated the find and implemented appropriate treatment measures and disposition of artifacts, as appropriate, in compliance with all applicable laws and department resource directives. If human remains are discovered during the Project, work will be immediately suspended at that specific location and the District Superintendent or designee shall be notified by Permittee. The specific protocol, guidelines and channels of communication outlined by the California Native American Heritage Commission (NAHC), and/or contained in Health and Safety Code Section 7050.5 and Public Resources Code Sections 5097.9 et seq., will be followed. Those statutes will guide the potential Native American involvement in the event of discovery of human remains. Permittee shall provide a written work schedule to State so that the State archaeological monitor can arrange to be on site on the necessary days. Permittee shall provide reasonable advance notice of and invite the District Superintendent or designee to any preconstruction meetings with the prime contractor or subcontractors. Restoration of Property: Permittee shall complete the restoration, repair, and revegetation of the Property in consultation with, and to the satisfaction of, the State Environmental Scientist within one ( 1) year after completion of the Project or the expiration or termination of this Permit, whichever comes first. This obligation shall survive the expiration or termination of this Permit. Performance Bond: If required by State in order to ensure that Permittee performs and completes its obligations in accordance with the terms of the Permit, Permittee shall obtain a Performance Bond in the amount of from a surety duly licensed in the State of California. Permittee shall provide State with a copy of such insurance bond. Right to Halt Work: The State reserves the right to halt work and demand mitigation measures at any time, with or without prior notice to Permittee, in the event the State determines that any provision contained herein has been violated, or in the event that cessation of work is necessary to prevent, avoid, mitigate or remediate any threat to the health and safety of the public or state park personnel, or to the natural or cultural resources of the state park. Use Restrictions: The use of the Property by Permittee, including its guests, invitees, employees, contractors and agents, shall be restricted to the daytime hours between sunrise and sunset on a day-by-day basis, unless otherwise approved in advance in writing by State. No person shall use or occupy the Property overnight. Activities on the Property shall be conducted only in a manner which will not interfere with the orderly operation of the state park. Permittee shall not engage in any disorderly conduct and shall not maintain, possess, store or allow any contraband on the Property. Contraband includes, but is not limited to: any illegal alcoholic beverages, drugs, firearms, explosives and weapons. Roads and trails where motorized vehicles are normally prohibited may be used for vehicle access by Permittee, its employees, agents or contractors for patrol, maintenance or repair purposes only, and only to the extent specified by State, and shall be otherwise subject to all other conditions and/or restrictions of this Permit and any applicable laws, state park regulations and state park policies. Permittee shall not use or allow the Property to be used, either in whole or in part, for any purpose other than as set forth in this Permit, without the prior written consent of the State. 19. State's Right to Enter: At all times during the term of this Permit and any extension thereof, there shall be and is hereby expressly reserved to State and to any of its agencies, contractors, agents, Rev. 6/6/2012 4 of 6 Item 1; page 11 employees, representatives, invitees or licensees, the right at any and all times, and any and all places, to temporarily enter upon said Property to survey, inspect, or perform any other lawful State purposes. Permittee shall not interfere with State's right to enter. 20. Protection of Property: Permittee shall protect the Property, including all improvements and all natural and cultural features thereon, at all times at Permittee's sole cost and expense, and Permittee shall strictly adhere to the following restrictions: · (a) Permittee shall not place or dump garbage, trash or refuse anywhere upon or within the Property, except in self-contained trash receptacles that are maintained to State's satisfaction by Permittee. (b) Permittee shall not commit or create, or suffer to be committed or created, any waste, hazardous condition or nuisance in, on, under, above or adjacent to the Property. (c) Permittee shall not cut, prune or remove any vegetation upon the Property, except as identified in the Project description and herein permitted or subsequently approved in writing by the District Superintendent. (d) Permittee shall not disturb, move or remove any rocks or boulders upon the Property, except as identified in the Project description and herein permitted or subsequently approved in writing by the District Superintendent. (e) Permittee shall not grade or regrade, or alter in any way, the ground surface of the Property, except as herein permitted, or subsequently approved in writing by the District Superintendent. (f) Permittee shall not bait, poison, trap, hunt, pursue, catch, kill or engage in any other activity which results in the taking, maiming or injury of wildlife upon the Property, except as identified in the Project description and herein permitted or subsequently approved in writing by the District Superintendent. (g) Permittee shall not use, create, store, possess or dispose of hazardous substances (as defined in the California Hazardous Substances Act) on the Property except as herein permitted, or subsequently approved in writing by the District Supenntendent. (h) Permittee shall exercise due diligence to protect the Property against damage or destruction by fire, vandalism and any other causes. 21. Default: In the event of a default or breach by Permittee of any of the terms or conditions set forth in this Permit, State may at any time thereafter, without limiting State in the exercise of any right of remedy at law or in equ1ty which State may have by reason of such default or breach: (a) Maintain this Permit in full force and effect and recover the consideration, if any, and other monetary charges as they become due, without terminating Permittee's right to use of the Property, regardless of whether Permittee has abandoned the Property; or (b) Immediately terminate this Permit upon giving written notice to Permittee, whereupon Permittee shall immediately surrender possession of the Property to State and remove all of Permittee's equipment and other personal property from the Property. In such event, State shall be entitled to recover from Permittee all damages incurred or suffered by State by reason of Permittee's default, including, but not limited to, the following: (i) any amount necessary to compensate State for all the detriment proximately caused by Permittee's failure to perform its obligations under this Permit, including, but not limited to, compensation for the cost of restoration, repair and revegetation of the Property, which shall be done at State's sole discretion and compensation for the detriment which in the ordinary course of events would be likely to result from the default; plus (ii) at State's election, such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable law. 22. State's Right to Cure Permittee's Default: At any time after Permittee is in default or in material breach of this Permit, State may, but shall not be required to, cure such default or breach at Permittee's cost. Rev. 6/6/2012 5 of 6 Item 1; page 12 23. Revocation of Permit: The State shall have the absolute right to revoke this Permit for any reason upon ten (1 0) business days written notice to Permittee. Written notice to Permittee may be accomplished by electronic or facsimile transmission, and the notice period set forth in this paragraph shall begin on the date of the electronic or facsimile transmission, or, if sent by mail, on the date of delivery. If Permittee is in breach of the Permit or owes money to the State pursuant to this Permit, any prepaid monies paid by Permittee to State shall be held and applied by the State as an offset toward damages and/or amounts owed. Nothing stated herein shall limit the State's exercise of its legal and equitable remedies. 24. Recovery of Legal Fees: In any action brought to enforce or interpret any provisions of this Permit or to restrain the breach of any agreement contained herein, or for the recovery of possession of the Property, or to protect any rights given to the State against Permittee, and in any actions or proceedings under Title 11 of the United States Code, if the State shall prevail in such action on trial or appeal, the Permittee shall pay to the State such amount in attorney's fees in said action as the court shall determine to be reasonable, which shall be fixed by the court as part of the costs of said action. 25. Voluntary Execution and Independence of Counsel: By their respective signatures below, each Party hereto affirms that they have read and understood this Permit and have received independent counsel and advice from their attorneys with respect to the advisability of executing this Permit. 26. Reliance on lnvestig;:~tions: Permittee declares that it has made such investigation of the facts pertaining to this Permit, the Property and all the matters pertaining thereto as it deems necessary, and on tliat basis accepts the terms and conditions contamed in th1s Permit. Permittee acknowledges that State has made, and makes, no representations or warranties as to the condition of the Property, and Permittee expressly agrees to accept the Property in its as-is condition for use as herein permitted. 27. Entire Agreement: The Parties further declare and represent that no inducement, promise or agreement not herein expressed has been made to them and this Permit contains the entire agreement of the Parties, and that the terms of this agreement are contractual and not a mere recital. 28. Warranty of Authority: The undersigned represents that they have the authority to, and do, bind the person or entity on whose behalf and for whom they are signing this Permit and the attendant documents provided for herein, and this Permit and said additional documents are, accordingly, binding on said person or entity. 29. Assianment: This Permit shall not be assigned, mortgaged, hypothecated, or transferred by Perm1ttee, whether voluntarily or involuntarily or by operation of law, nor shall Permittee let, sublet or grant any license or permit with respect to the use and occupancy of the Property or any portion thereof, without the prior written consent of State. 30. Choice of Law: This Permit will be governed and construed by the laws of the State of California. STATE OF CALIFORNIA Parks and R~ion By: __ ~~-~=---~------------­Name: Robin Greene Title: District Superintendent San Diego Coast District 4477 Pacific Highway San Diego, CA 92110 PH (619) 488-3356 Robin.Greene@parks.ca.gov Rev. 6/6/2012 City Of Carlsbad By: ______ ~~~~-------------Name: Matt Hall Title: Mayor Address: City Hal l 1200 Carlsbad Village Dr. Carlsbad, CA 92008 PH (760) 434-2820 council@carlsbadca .oov Approved As To Form: ~ Name: : H~ ~'1-r-b~ld- Title: . ~4 O.:.hJ ~ 6 of 6 Item 1; page 13 /!:\ ~ Exhibit "2" Limit of Work Tamarack Upper Picnic Facilities Carlsbad State Beach N 50 100 200 0 300 --==::::11----=====:::::J Feet Item 1; page 14 ~ v r::J Limit of Work c::J Park A North Exhibit "3" Limit of Work Tamarack/Frazee Coastal Bluff Carlsbad State Beach o ...... 2s.o .... s•o=o=========15,ooo Feet