HomeMy WebLinkAbout2017-05-09; City Council; Resolution 2017-073EXHIBIT 1
RESOLUTION NO. 2017-073
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
WHEREAS,on May 20, 2014, the City of Carlsbad (City) entered into an initial Right of Entry Permit
(Permit)with the State to improve and 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; and
WHEREAS,the intent of the Permit was to provide enhanced coastal experiences for residents,
business owners, and visitors of the City of Carlsbad;
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
WHEREAS,the City Council directed staff to initiate discussions with State staff on the potential
for the City to assume improvement and maintenance 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,based upon the successful results achieved at these sites within the initial term of
the Permit, on May 19,2015, the City Council adopted Resolution No.2015-118 authorizing a new
Permit, beginning May 20, 2015, and ending May 19, 2016; and
WHEREAS,both the City and the State expressed an interest in entering into a new Permit for
an additional year, on May 17,2016, the City Council adopted Resolution No. 2016-089 approving a
new Permit, beginning May 20, 2016, and ending May 19, 2017; and
WHEREAS, at the City Council's direction, staff held several meetings with representatives from
the State's local and district offices between 2014 and 2017 to discuss the potential for a long-term
operating agreement on the Picnic Facilities, the Coastal Bluff, and other State-owned beach sites; and
WHEREAS,staff recommends the authorization of a new Permit to maintain the Picnic Facilities
and the Coastal Bluff for another year,beginning May 20,2017,and ending May 19,2018.
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 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.
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on
the 9th day of May, 2017, by the following vote, to wit:
AYES:M. Hall,K.Blackburn, M. Schumacher,C.Schumacher, M. Packard.
NOES:None.
ABSENT:None.
MA HALL,Mayor
BARBARA ENGLESON, ENGLESON,City Cfgrk
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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 2017, 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 grants 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 or the
Area described in Exhibit "A" and 2) revegetatingand 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 relevantregulatory 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 orapprovals 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 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 05/20/2017. and ending on
5/19/2018, 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.
6.Waiver of Claims and Indemnity:Permittee waives all claims against State, its officers, agentsand/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, 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 containedherein.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'sindemnification 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/employee/disease/each accident, for all its employees who
will be engaged in the performance of work on the Property, including special 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 eachinsured 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 this 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
force and effect and that premiums therefore have been paid.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 required 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 forth, 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:
STATE:PERMITTEE'S CONTACT:
Contact:Interm Superintendent Lisa Urbach Contact:Superintendent Kyle Lancaster
District:San Diego Coast /North Sector Department:Parks & Recreation
Address: 2680 Carlsbad BI,Carlsbad, CA 92008 Address:799 Pine Ave., Carlsbad, CA 92008
Telephone:(760) 720-7001 Telephone:(760) 434-2941
E:mail:lisa.urbach@parks.ca.gov E:mail:kyle.lancaster@carlsbadca.gov
12.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, shallwork exceed that which is authorized by this Permit.
13.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.
14.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
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, asappropriate, in compliance with all applicable laws and department resource directives.
If human remains are discovered during the Project, work will be immediately suspended at thatspecific 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.
15.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.
16.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.
17.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 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 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/orrestrictions 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
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, exceptas 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 identifiedin 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 Superintendent.
(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 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 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
23.Revocation of Permit:The State shall have the absolute right to revoke this Permit for any reason
upon ten (10) 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 Investigations: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 that basis accepts the terms and conditions contained in this 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 attendantdocuments provided for herein, and this Permit and said additional documents are, accordingly,
binding on said person or entity.
29.Assignment:This Permit shall not be assigned, mortgaged, hypothecated, or transferred by
Permittee, whether voluntarily or involuntarily or by operation of law, nor shall Permittee let, sublet orgrant 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 City Of Carlsbad
Parks and Recreati n
By:By:-td.
Name:Robin ne Name:att Hall
Title:District Superintendent Title:Mayor
San Diego Coast District Address:City Hall
4477 Pacific Highway 1200 Carlsbad Village Dr.
San Diego, CA 92110 Carlsbad, CA 92008
PH (619) 488-3356 PH (760) 434-2820
Robin.Greene@parks.ca.ciov council@carlsbadca.qov
Approved As To Form:(tiee-zi-a-C3
Name:Paul Edmonson
Title:Sr. Assistant City Attorney
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