HomeMy WebLinkAbout2024-05-14; City Council; ; Right of Entry Permit with the California Department of Parks & Recreation for Maintenance of the Upper Picnic Facilities at Tamarack State Beach and Coastal Bluff at TamCA Review __AF _
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To:
From:
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Subject:
District:
May 14, 2024
Mayor and City Council
Scott Chadwick, City Manager
Todd Reese, Parks Services Manager
todd.reese@carlsbadca.gov, 442-339-2151
Right of Entry Permit with the California Department of Parks &
Recreation for Maintenance of the Upper Picnic Facilities at Tamarack
State Beach and Coastal Bluff at Tamarack/Frazee State Beach, and for
Reimbursement for Plan Reviews of Two City Projects
1
Recommended Action
Adopt a resolution authorizing the execution of a right of entry permit with the California
Department of Parks & Recreation to maintain the upper picnic facilities at Tamarack State
Beach and the coastal bluff at Tamarack/Frazee State Beach, and to reimburse the state for
plan reviews of two Capital Improvement Program projects that impact state property: Beach
Access Repairs and Upgrades from Pine to Tamarack Avenues (CIP Project No. 3896), and
Carlsbad Boulevard and Tamarack Avenue Intersection Improvements (CIP Program Project No.
6058).
Executive Summary
The City Council is being asked to authorize the execution of a right of entry permit with the
California Department of Parks and Recreation under which the city can continue to maintain
the upper picnic facilities at Tamarack State Beach and the coastal bluff at Tamarack/Frazee
State Beach for an additional one-year term.
The city executed its initial right of entry permit with State Parks on May 20, 2014 (City Council
Resolution No. 2014-098). The intent of the permit was to improve the coastal experiences for
residents, business owners and visitors.
Based on the successful results during the first year, the city and the state have entered into
annual permits for the past nine years, as well as an amendment to the current year permit to
reimburse the state for plan reviews of the Beach Access Repairs and Upgrades from Pine to
Tamarack Avenues Project (Capital Improvement Program Project No. 3896), which impacts
state property (City Council Resolution No. 2022-263).
Staff are recommending authorizing the execution of a new right of entry permit beginning May
20, 2024, and ending May 19, 2025. The new permit includes the terms and conditions of the
current amended right-of entry permit and a provision for reimbursement for plan reviews for
May 14, 2024 Item #4 Page 1 of 17
both projects, the Carlsbad Boulevard and Tamarack Avenue Intersection Improvements Project
and the Beach Access Repairs and Upgrades from Pine to Tamarack Avenues Project, which also
impact State Parks property.
The City Council is being asked to authorize the execution of this permit because the Carlsbad
Municipal Code does not delegate this authority to the City Manager.
Explanation and Analysis
Consistent with past City Council direction, this agreement provides the city the ability to
maintain the Upper Picnic Facilities at Tamarack State Beach and the Coastal Bluff at
Tamarack/Frazee State Beach. The area includes about 1.5 acres of turf, hardscape, raised
planters, trees, picnic tables and benches, trash receptacles, two showers, a drinking fountain, a
stairway with adjacent hand railing, a restroom and a wastewater pump station.
The bluff area is approximately 4.8 acres that contain predominantly native plants and a
permitted and improved footpath near the northern and southern ends of the boundary.
The right of entry permit is provided as Attachment A to Exhibit 1. The permit includes aerial
views showing the boundary of the picnic facilities, the coastal bluff, and the two city Capital
Improvement Program projects.
The permit will allow the city to:
1) Enter onto the upper 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.)”
2) Enter onto the coastal bluff solely for the purpose of “revegetating native coastal
bluff habitat, retrofitting/expanding existing irrigation system, and maintaining
said vegetation and irrigation system.”
3) Reimburse the state for its costs up to $20,000 for plan review services on the
city’s Beach Access Repairs and Upgrades from Pine to Tamarack Avenues
Project, and the Carlsbad Boulevard and Tamarack Avenue Intersection
Improvements Project. The boundaries of these projects are shown in Exhibit C
of the right of entry permit.
The City Council previously directed staff to initiate discussions with the state on the potential
for the city to assume such services. City staff have continued to seek a long-term agreement
with the state that would allow for the continuation of the services identified in the annual
permit, as well as the potential for expanding maintenance and operations services to other
state-owned properties within the city.
At the City Council’s direction, staff have held several meetings with representatives of the
state’s local and district offices to discuss the potential for a long-term operating agreement on
the picnic facilities, coastal bluff and other state-owned properties. According to the state,
however, a permit can currently only be issued for a term of one year.
May 14, 2024 Item #4 Page 2 of 17
Fiscal Analysis
The City Council previously appropriated a total of $899,930 for one-time improvements that
were completed during the period covered by the first annual right of entry permit, and
$115,000 per year for ongoing maintenance of the upper picnic facilities at Tamarack State
Beach and the coastal bluff at Tamarack/Frazee State Beach. Sufficient funds for ongoing
maintenance of these areas are available in the fiscal year 2023-24 Parks Maintenance
Operating Budget and the funds required in the following fiscal year will be requested in the
Parks Maintenance Operating Budget.
The City Council previously appropriated a total of $13,511,750 for the Beach Access Repairs
and Upgrades from Pine to Tamarack Avenues Project, and a total of $2,825,000 for the
Carlsbad Boulevard and Tamarack Avenue Intersection Improvements Project. Sufficient funds
for the one-time reimbursement of plan review services are available in each project’s adopted
fiscal year 2023-24 Capital Improvement Program budget.
Environmental Evaluation
The City Planner has considered Public Resources Code Section 21065, and determined the
action to approve a right of entry permit does not constitute a project within the meaning of
the California Environmental Quality Act in that it has no potential to cause either a direct
physical change in the environment, or a reasonably foreseeable indirect change in the
environment, so does not require environmental review.
For the projects referenced above, Capital Improvement Program Projects Nos. 3896 and 6058,
separate environmental reviews will be conducted in accordance with the CEQA Guidelines.
Next Steps
Staff will continue to administer maintenance of the picnic facilities and the coastal bluff
through May 19, 2025. During that period, staff will also continue discussions with the state on
a long-term operating agreement for these properties, and other state-owned beach
properties. Staff will also continue to finalize the two capital improvement program projects’
engineering and design and coordinate with the state on the plan reviews.
Exhibits
1. City Council resolution
May 14, 2024 Item #4 Page 3 of 17
RESOLUTION NO. 2024-096
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, AUTHORIZING THE EXECUTION. OF A RIGHT OF ENTRY
PERMIT WITH THE CALIFORNIA DEPARTMENT OF PARKS & RECREATION
TO MAINTAIN THE UPPER PICNIC FACILITIES AT TAMARACK STATE BEACH
AND THE COASTAL BLUFF AT TAMARACK/FRAZEE STATE BEACH, AND TO
REIMBURSE THE STATE FOR PLAN REVIEWS OF TWO CAPITAL
IMPROVEMENT PROGRAM PROJECTS THAT IMPACT STATE PROPERTY:
BEACH ACCESS REPAIRS AND UPGRADES FROM PINE TO TAMARACK
AVENUES (CIP PROJECT NO. 3896), AND CARLSBAD BOULEVARD AND
TAMARACK AVENUE INTERSECTION IMPROVEMENTS (CIP PROJECT NO.
6058)
WHEREAS, the City Council of the City of Carlsbad has determined that it is beneficial to improve
and maintain the upper picnic facilities at Tamarack State Beach and the coastal bluff at
Tamarack/Frazee State Beach; and
WHEREAS, the City Council of the City of Carlsbad has determined that it is beneficial to plan
and design two Capital Improvement Program Projects: Beach Access Repairs and Upgrades from Pine
to Tamarack Avenues (CIP Project No. 3896), and Carlsbad Boulevard and Tamarack Avenue
Intersection Improvements (CIP Project No. 6058); and
WHEREAS, on May 20, 2014, the City of Carlsbad entered into an initial Right of Entry Permit
with the State of California Department of Parks & Recreation (State Parks) to improve and maintain
the Upper Picnic Facilities at Tamarack State Beach and the Coastal Bluff at Tamarack/Frazee State
Beach for a term of one year; and
WHEREAS, the intent of the permit was to provide enhanced coastal experiences for residents,
business owners and visitors of the City of Carlsbad; and
WHEREAS, with that action, the City Council allocated $899,930 in corresponding one-time
improvements for these areas and $115,000 per year in corresponding ongoing maintenance; and
WHEREAS, the City Council previously directed staff to initiate discussions with the state on the
potential for the city to assume such services. City staff have continued to seek a long-term agreement
with the state that would allow for the continuation of the services identified in the permit, as well as
the potential for expanding maintenance and operations services to other state-owned properties
within the city; and
Exhibit 1
May 14, 2024 Item #4 Page 4 of 17
WHEREAS, at the City Council's direction, staff held several meetings with representatives from
the State's local and district offices to discuss the potential for a long-term operating agreement on the
Picnic Facilities, the Coastal Bluff, and other state-owned properties; and
WHEREAS, according to the state, however, a permit can currently only be issued in a term of
one year; and
WHEREAS, based upon the successful results during the first year, the city and the state entered
into an annual permits for the past nine years, ending May 19, 2024, and an amendment to the current
year permit for reimbursement to the state for plan reviews of the Beach Access Repairs and Upgrades
from Pine to Tamarack Avenues Project (Project No. 3896) that impacts state property (City Council
Resolution No. 2022-263); and
WHEREAS, staff recommends the authorization of a new permit to include the terms and
conditions of the current amended right of entry permit and a new reimbursement provision for plan
reviews for a second project, the Carlsbad Boulevard and Tamarack Avenue Intersection Improvements
Project (CIP Project No. 6058), that impacts state property, beginning May 20, 2024, and ending May
19,2025;and
WHEREAS, to address maintenance needs, sufficient operating funds are available in the
adopted FY 2023-24 Parks Maintenance Operating Budget and funds required in the following fiscal
year will be requested in the fiscal year 2024-25 Parks Maintenance Operating budget; and
WHEREAS, to address one-time reimbursement of plan reviews up to a total of $20,000,
sufficient funds are available in the respective project's adopted fiscal year 2022-23 Capital
Improvement Program budget; and
WHEREAS, the City Planner has considered Public Resources Code Section 21065, and
determined the action to approve a right of entry permit does not constitute a "project" within the
meaning of the California Environmental Quality Act in that it has no potential to cause either a direct
physical change in the environment, or a reasonably foreseeable indirect change in the environment,
so does not require environmental review. For the referenced projects, CIP No. 3896 and No. 6058,
separate environmental reviews will be conducted in accordance with the CEOA Guidelines.
May 14, 2024 Item #4 Page 5 of 17
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as
follows:
1.The above recitations are true and correct.
2.The City Council authorizes and directs the Mayor to execute the Right of Entry Permit
with State Parks (Attachment A) to maintain the Picnic Facilities and the Coastal Bluff
and to reimburse the State for plan reviews of two Capital Improvement Program
projects {CIP Project Nos. 3896 and 6058) for one year.
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of
Carlsbad on the 14th day of May, 2024, by the following vote, to wit:
AYES:
NAYS:
ABSTAIN:
ABSENT:
BLACKBURN, BHAT-PATEL, ACOSTA, BURKHOLDER, LUNA.
NONE.
NONE.
NONE.
KEITH BLACKBURN, Mayor
SHERRY FREISINGER, City Clerk
{SEAL)
May 14, 2024 Item #4 Page 6 of 17
Agency: Department of Parks and Recreation
RIGHT OF ENTRY PERMIT
Projects: Maintenance of Tamarack Upper Picnic Facilities:
Facilities:
Permit No. Tamarack RR, Grass and Picnic Area & Bluff
23/24-SDCD-ROE-10
This Right of Entry Permit (Permit) is made and entered into this 20th day of May 2024, 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 Carlsbad State Beach for purposes of carrying out grounds keeping, maintenance of facilities, and restoration of the coastal bluff habitat (the Project); and
Whereas, improvement program projects within the Carlsbad State Beach boundaries; and
Whereas, the State desires to accommodate Permittee's application for permission to enter Carlsbad State Beach for purposes of the Projects, as provided herein and as, and to the extent, such Projects 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 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 grants to the Permittee permission to enteronto those lands depicted and/or described on Exhibit "B" (the Property), attached heretoand 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
In addition, the Project will include completion and review of the stairway and sidewalk repair and upgrades construction plans known as the Beach Access Repair and Upgrades from Pine to Tamarack Avenues Project and the completion and review of the construction plans known as the Carlsbad Boulevard & Tamarack Avenue Intersection Improvements Project, as shown in Exhibit , as follows: a. Permittee will finalize and submit plans to State.b. State will review plans and submit comments to the city within forty (40) calendar daysthrough its Southern Service Center.c. State will review plans and long-term access through its Acquisition and Real PropertyDepartment.d. State will track staff hours for all plan review related to the Beach Access Repairs andUpgrades from Pine to Tamarack Avenues Project, and the Carlsbad Boulevard & TamarackAvenue Intersection Improvements Project, and use the funds identified in Section 4 toreimburse staff time.
2. Permit Subject to Laws and Regulatory Agency Permits: This Permit is expressly conditionedupon Permittee any and all regulatory permits or approvals required by the relevantregulatory agencies for the Project
Attachment A
May 14, 2024 Item #4 Page 7 of 17
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compliance with all applicable municipal, state and federal laws, rules and regulations, including all State Park regulations.Project Description, and requirements and mitigations contained in the Environmental Document.
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 permits and approvals, including documentation related to or referenced in such permits and approvals, along with the corresponding agency contact and telephone numbers, and related California Environmental Quality Act (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 May 20, 2024, and ending on May 19, 2025, 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
Vision, no monetary compensation is being sought by Permittee for paragraph one of Section 1.
Specific to paragraph two of Section 1, Permittee agrees to reimburse State for its plan review
services for projects cited in Section 1-d., the sum of up to twenty thousand dollars ($20,000) as
consideration for the rights granted by this Permit. This includes reimbursement of billable hours for
specialist reviews as described in Section 1-d. Payments are due
receipt of invoices from the State.
5. Permit Subject to Existing Claims: This Permit is subject to existing contracts, permits, licenses, encumbrances, and claims which may affect the Property.
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, arising 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 this Permit, exercise by Permittee of the rights herein granted, 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 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 indemnification and waiver of claims contained herein, Permittee shall maintain, and cause its contractors to maintain, a policy or policies of insurance as follows:
General Provisions Applying to All Policies A. Coverage Term Coverage needs to be in force for the complete term of the contract. If insurance expires during the term of the contract, a new certificate must be received by the State at least ten (10) days prior to the expiration of this insurance. Any new insurance must still comply with the original terms of the contract. B. Policy Cancellation or Termination & Notice of Non-Renewal Contractor is responsible to notify the State within five business days before the effective date of any cancellation, non-renewal, or material change that affects required insurance coverage. In the event Contractor fails to keep in effect at all times the specified insurance coverage, the State may, in addition to any other remedies it may have, terminate this Contract upon the occurrence of such event, subject to the provisions of this Contract. C. Deductible Contractor is responsible for any deductible or self-insured retention contained within their insurance program.
May 14, 2024 Item #4 Page 8 of 17
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D. Primary Clause Any required insurance contained in this contract shall be primary, and notexcess or contributory, to any other insurance carried by the State.
E. Insurance Carrier Required Rating All insurance companies must carry a ratingacceptable to the Office of Risk and Insurance Management. If the Contractor is self-insuredfor a portion or all of its insurance, review of financial information including a letter of creditmay be required.
F. Endorsements Any required endorsements requested by the State must be physicallyattached to all requested certificates of insurance and not substituted by referring to suchcoverage on the certificate of insurance.
G. Inadequate Insurance Inadequate or lack of insurance does not negate the contractorobligations under the contract.
H. Satisfying an SIR - All insurance required by this contract must allow the State to pay and/or-insured retention (SIR). The choice to pay
I. Available Coverages/Limits - All coverage and limits available to the contractor shall also beavailable and applicable to the State.
J. Subcontractors - In the case of Contractor utilization of subcontractors to complete the
Contractor and insurance or supply evidence of insurance to The State equal to policies,coverages and limits required of Contractor.
COMMERCIAL GENERAL LIABILITY: Commercial General Liability Insurance covering bodily injury and property damage in a form and with coverage that are satisfactory to the State. This insurance shall include personal and advertising injury liability, products and completed operations, and liability assumed under an insured contract. Coverage shall be written on an occurrence basis in an amount of not less than $1,000,000 per occurrence. Annual aggregate limit shall not be less than $2,000,000. The State of California, its officers, agents, and employees are to be covered as additional insureds with respect to liability arising out of work or operations.
AUTOMOBILE LIABILITY INSURANCE: Automobile Liability Insurance covering all owned, non-owned, and hired vehicles with a combined single limit of not less than $1,000,000 for bodily injury and property damage. The State of California, its officers, agents, and employees are to be covered as additional insureds with respect to liability arising out of work or operations.
WORKERS COMPENSATION AND EMPLOYERS LIABILITY:
disease. in favor of the State of California.
9. Reservation of Rights: State reserves the right to use the Property in any manner, provided suchuse does not unreasonably interfere with Permittee's rights herein.
10. Access Limits and Conditions: Access to the Property shall be limited to the access designatedby State.
11. Notice of Work: Any required notices to State shall be sent to the State authorities in charge ofCarlsbad State Park named below. At least forty-eight (48) hours prior to any entry upon theProperty for any of the purposes hereinabove set forth, Permittee shall provide the State contact[s]named below with written notice of Pe . Permittee shall alsonotify the State contact[s] listed below in writing at least forty-eight (48) hours prior to any change inthe Project schedule or cessation or completion of work. Should State personnel need to contactPermittee, s contact person listed below:
STATE: PERMITTEE : Contact: Sean Homer, Sector Superintendent Contact: Parks Services Mgr. Todd Reese District: San Diego Coast City of Carlsbad, Parks & Recreation Address: 2680 Carlsbad Blvd., Address:799 Pine Ave., Carlsbad, CA 92008 Carlsbad, CA 92008 Telephone: (760) 720-7001 Telephone: (442) 339-2151 Email: Sean.Homer@parks.ca.gov Email: Todd.Reese@carlsbadca.gov
May 14, 2024 Item #4 Page 9 of 17
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12. Limits of Work:In no event shall this Permit authorize work in excess or contrary to the terms andconditions of any regulatory agency permit or approval. Under no circumstances, whether or notauthorized by any regulatory agency, other permit or any person or entity other than State, shallwork exceed that which is authorized by this Permit.
13. Public Safety: Permittee shall erect orange plastic temporary construction fencing and appropriatesignage 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. Permitteeshall take, and shall cause its contractors or subcontractors to take, any and all necessary andreasonable steps to protect the public from harm in connection with the Project or implementationof this Permit.
14. Compliance with Project Requirements, Monitoring and Mitigation Measures (if applicable):Prior to commencement of revegetating native coastal bluff habitat State will update CEQAdocument (NOE 2002/2003-SD-78) that updates and specifies resource monitoring and mitigationmeasures. The measures identified shall be completed by the permittee in accordance with and tothe satisfaction of the District Superintendent or designee.
ctivities 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 archaeological consultants working within the boundaries of the Property shall submit a DPR 412A permit application to the District cultural resource specialist for approval prior to commencing any archaeological or cultural investigations of the Property.
Permittee shall immediately advise State 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 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 , until a State archaeologist or professionally qualified designee 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.
If resource monitoring is required to be performed by State staff, the Permittee shall provide a written work schedule to the State at least 48 hours in advance of the work. Permittee shall provide reasonable advance notice of and invite the District Superintendent or designee to any preconstruction meetings with the prime contractor or subcontractors.
15. Restoration of Property: Permittee shall complete the restoration, repair, and revegetation of theProperty 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, whichevercomes first. This obligation shall survive the expiration or termination of this Permit.
16. Performance Bond: If required by State in order to ensure that Permittee performs and completesits obligations in accordance with the terms of the Permit, Permittee shall obtain a Performance
May 14, 2024 Item #4 Page 10 of 17
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Bond from a surety duly licensed in the State of California. Permittee shall provide State with a copy of such insurance bond.
17. Right to Halt Work: The State reserves the right to halt work and demand mitigation measures atany time, with or without prior notice to Permittee, in the event the State determines that anyprovision contained herein has been violated, or in the event that cessation of work is necessary toprevent, avoid, mitigate or remediate any threat to the health and safety of the public or state parkpersonnel, or to the natural or cultural resources of the state park.
18. 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 aday-by-day basis, unless otherwise approved in advance in writing by State. Exception: Groundsmaintenance and janitorial employees, contractors and agents may be on site between 6:30ammidnight for the purpose of servicing the facilities. No person shall use or occupy the Propertyovernight.
Activities on the Property shall be conducted only in a manner which will not interfere with theorderly operation of the state park. Permittee shall not engage in any disorderly conduct and shallnot maintain, possess, store, or allow any contraband on the Property. Contraband includes but isnot 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 accessby 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 conditionsand/or restrictions of this Permit and any applicable laws, state park regulations and state parkpolicies.
Permittee shall not use or allow the Property to be used, either in whole or in part, for any purposeother 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, thereshall be and is hereby expressly reserved to State and to any of its agencies, contractors, agents,employees, representatives, invitees or licensees, the right at any and all times, and any and allplaces, to temporarily enter upon said Property to survey, inspect, or perform any other lawful Statepurposes.
Permittee shall not interfere with State's right to enter.
20. Protection of Property: Permittee shall protect the Property, including all improvements and allnatural and cultural features thereon, at all times at Permittee's sole cost and expense, andPermittee shall strictly adhere to the following restrictions:
(a) Permittee shall not place or dump garbage, trash or refuse anywhere upon or within theProperty, except in self-contained trash receptacles that are maintained to State's satisfactionby 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 asidentified in the Project description and herein permitted or subsequently approved in writingby the District Superintendent.
(d) Permittee shall not disturb, move, or remove any rocks or boulders upon the Property, exceptas identified in the Project description and herein permitted or subsequently approved inwriting 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 DistrictSuperintendent.
(f) Permittee shall not bait, poison, trap, hunt, pursue, catch, kill, or engage in any other activitywhich results in the taking, maiming or injury of wildlife upon the Property, except as identifiedin the Project description and herein permitted or subsequently approved in writing by theDistrict Superintendent.
(g) Permittee shall not use, create, store, possess or dispose of hazardous substances (asdefined in the California Hazardous Substances Act) on the Property except as hereinpermitted, or subsequently approved in writing by the District Superintendent.
May 14, 2024 Item #4 Page 11 of 17
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(h) Permittee shall exercise due diligence to protect the Property against damage or destructionby 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 forthin this Permit, State may at any time thereafter, without limiting State in the exercise of any right ofremedy at law or in equity 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 othermonetary charges as they become due, without terminating Permittee's right to use of theProperty, regardless of whether Permittee has abandoned the Property; or
(b) Immediately terminate this Permit upon giving written notice to Permittee, whereuponPermittee shall immediately surrender possession of the Property to State and remove all ofIn such event, Stateshall be entitled to recover from Permittee all damages incurred or suffered by State byreason of Permittee's default, including, but not limited to, the following:
(i) any amount necessary to compensate State for all the detriment proximately caused byPermittee's failure to perform its obligations under this Permit, including, but not limitedto, compensation for the cost of restoration, repair and revegetation of the Property, 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 maybe 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 materialbreach of this Permit, State may, but shall not be required to, cure such default or breach atPermittee's cost. If State at any time, by reason of such default or breach, pays any sum or doesany act that requires the payment of any sum, the sum paid by State shall be due immediately fromPermittee to State at the time the sum is paid. The sum due from Permittee to State shall bear themaximum interest allowed by California law from the date the sum was paid by State until the dateon which Permittee reimburses State.
23. Revocation of Permit: The State shall have the absolute right to revoke this Permit for anyreason upon ten (10) days written notice to Permittee. Written notice to Permittee may beaccomplished by electronic or facsimile transmission, and the notice period set forth in thisparagraph shall begin on the date of the electronic or facsimile transmission, or, if sent by mail, onthe date of delivery. If Permittee is in breach of the Permit or owes money to the State pursuant tothis Permit, any prepaid monies paid by Permittee to State shall be held and applied by the Stateas an offset toward damages and/or amounts owed. Nothing stated herein shall limit the State'sexercise of its legal and equitable remedies.
24. Recovery of Legal Fees: In any action brought to enforce or interpret any provisions of thisPermit or to restrain the breach of any agreement contained herein, or for the recovery ofpossession of the Property, or to protect any rights given to the State against Permittee, and in anyactions or proceedings under Title 11 of the United States Code, if the State shall prevail in suchaction on trial or appeal, the Permittee shall pay to the State such amount in attorney's fees in saidaction as the court shall determine to be reasonable, which shall be fixed by the court as part of thecosts of said action.
25. Voluntary Execution and Independence of Counsel: By their respective signatures below, eachParty hereto affirms that they have read and understood this Permit and have receivedindependent counsel and advice from their attorneys with respect to the advisability of executingthis Permit.
26. Reliance on Investigations: Permittee declares that it has made such investigation of the factspertaining to this Permit, the Property and all the matters pertaining thereto as it deems necessary,and on that basis accepts the terms and conditions contained in this Permit. Permitteeacknowledges that State has made, and makes, no representations or warranties as to thecondition of the Property, and Permittee expressly agrees to accept the Property in its as-iscondition for use as herein permitted.
27. Entire Agreement: The Parties further declare and represent that no inducement, promise oragreement not herein expressed has been made to them and this Permit contains the entireagreement of the Parties, and that the terms of this agreement are contractual and not a mererecital.
May 14, 2024 Item #4 Page 12 of 17
N 0 100 200 30050Feet
Limit of Work
Park Boundary
Carlsbad State Beach
Exhibit "A" Limit of Work
Tamarack Upper Picnic Facilities
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0 500 1,000250FeetCarlsbad State Beach
Exhibit "B" Limit of Work
Native Bluff Restoration
Limit of Work
Park Boundary N
May 14, 2024 Item #4 Page 15 of 17
Pine Ave
Walnut Ave
Chestnut Ave
Maple Ave
Acacia Ave
Cherry Ave
Juniper Ave
Hemlock Ave
Redwood Ave
Tamarack Ave
Sequoia Ave
Aqua Hedionda
Lagoon
Oak Ave
Chinquapin Ave
Sycamore Ave
May 14, 2024 Item #4 Page 16 of 17
May 14, 2024 Item #4 Page 17 of 17