HomeMy WebLinkAbout2012/07/17 Item 10~.~
~~~ CITY COUNCIL
AGENDA STATEMENT
ci1Y of
CHULAVISTA
JULY 17, 2012, Item ~~
ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING AN OPERATING
AGREEMENT BETWEEN THE CITY AND THE LIVING
COAST DISCOVERY CENTER
SUBMITTED BY: ASSISTANT CITY M AGER ST
REVIEWED BY: CITY MANAGER
4/STHS VOTE: YES ~ NO
SUMMARY
On February 2, 2010, the Chula Vista City Council (City) and the Chula Vista
Redevelopment Agency (Agency) entered into a formal Operating Agreement with the
Chula Vista Nature Center Foundation (Foundation) which set forth the terms and
conditions under which the Foundation would operate and manage the Chula Vista Nature
Center (Nature Center). On November 23, 2010, the Operating Agreement was amended,
and extended for eighteen (18) months. As that term has ended, the City and Operator would
like to enter into a new Operating Agreement for a period of one (1) year, ending June 30,
2013. This resolution approves such Operating Agreement and provides for additional
financial support from the City, previously approved by Council, to cover some utility and
shuttle bus expenses.
ENVIRONMENTAL REVIEW -The Environmental Review Coordinator has reviewed
the proposed activity for compliance with the California Environmental Quality Act
(CEQA) and has determined that the activity, approval of an amendment to an operating
agreement, is not a "Project" as defined under Section 15378 (b)(4) of the State CEQA
Guidelines because it does not involve a physical change to the environment; therefore,
pursuant to Section 15060(c)(3) of the State CEQA Guidelines the activity is not subject
to CEQA. Thus, no environmental review is necessary.
RECOMMENDATION
City Council adopt the resolution
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JULY 17, 2012, Item 1
Page 2 of 3
BOARDS/COMMISSION RECOMMENDATION
Not Applicable
DISCUSSION
On February 2, 2010, the Chula Vista City Council (City) and the Chula Vista
Redevelopment Agency (Agency) entered into a formal Operating Agreement with the
Chula Vista Nature Center Foundation (Foundation) which set forth the teens and
conditions under which the Foundation would operate and manage the Chula Vista Nature
Center (Nature Center).
On November 23, 2010, an amendment to the original agreement was approved, which
extended the term of the agreement for eighteen (18) months, with an expiration date of
June 30, 2012.
A new agreement is now being proposed, with a one (1) yeaz term and an expiration date of
June 30, 2013. The agreement addresses several timely issues:
• it acknowledges a recent name change to the non-profit corporation formerly known
as the Chula Vista Nature Center Foundation. The corporation is now the Living
Coast Discovery Center (Discovery Center)
• it provides for a defined level of additional fmancial support from the City
A copy of the proposed agreement is attached (Attachment "A").
The proposed agreement incorporates or restates all of the pertinent content that was agreed
upon by the City and the Nature Center Foundation for the initial agreement and the
subsequent first amendment, and excludes items that were essentially applicable only to the
initial transition of operations from the City to the Foundation.
The proposed agreement commits the City to a higher level of financial support, increasing
City expenditures by $75,570 or an estimated $6,300 each month. This increased funding
will cover the costs of electricity, water, and telephone services at the facility, and will also
provide fuel costs for the shuttle bus. A portion of these services were the City's
responsibility during the term of the initial agreement, but were transferred to the Nature
Center under the first amended agreement. The Discovery Center is experiencing some
financial challenges, and the additional City support will assist them in managing their
resources and will help to alleviate some cash flow issues. The Discovery Center has
applied for a number of grants and fmancial support from a variety of sources, and expects
to have some response to their applications during the term of the proposed agreement.
DECISION MAKER CONFLICTS
No Property within 500 feet
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JULY 17, 2012, Item ,!
Page 3 of 3
Staff has reviewed the property holdings of the City Council and has found no property
holdings within 500 feet of the boundaries of the property, which is the subject of this
action.
CURRENT YEAR FISCAL IMPACT
The FY 2013 Nature Center expenditure budget was approved at a level of $75,570, to
offset certain utility and shuttle bus expenditures associated with operations at the Nature
Center. In addition to the specified utilities, the City has an ongoing annual commitment
of $164,000 toward debt service, and the proposed agreement specifies continuing IT
support and continuing routine maintenance of the facility, at a level commensurate with
services at other City-owned facilities, subject to the financial constraints of the City.
The combined cost of maintenance and IT support is estimated to be $68,000-$80,000
annually. Additionally, the agreement specifes that the City is obligated to repair or
replace any failed infrastructure or life support equipment necessary_ for the full and
lawful operation of the Nature Center and the preservation and exhibit of the Nature
Centers wildlife up to a maximum of $40,000. Repairs over and above that amount
would be at the sole discretion of the City.
ONGOING FISCAL IMPACT
The term of the proposed agreement coincides with the City's fiscal year, so there is no
ongoing fiscal impact as a result of approval of the agreement.
ATTACHMENTS
"A" -Operating Agreement between the City and the Living Coast Discovery Center
Prepared by John Cates, Principal Recreation Manager
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RESOLUTION N0.2012
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING AN OPERATING AGREEMENT
BETWEEN THE CITY AND THE LIVING COAST
DISCOVERY CENTER
WHEREAS, on February 2, 2010, the City of Chula Vista ("City") and the Chula Vista
Redevelopment Agency ("Agency") entered into a formal Operating Agreement with the Chula
Vista Nature Center Foundation ("Foundation") which set forth the terms and conditions under
which the Foundation would operate and manage the Chula Vista Nature Center; and
WHEREAS, the term of the initial agreement was February 6, 2010 -December 31,
2010; and
WHEREAS, on November 23, 2010, the City and the Agency entered into an amended
Operating Agreement with the Foundation for continued operations until June 30, 2012; and
WHEREAS, the Chula Vista Nature Center Foundation has formally changed their name
to Living Coast Discovery Center (Operator); and
WHEREAS, with the term of the Operating Agreement now expired, the City and the
Operator wish to enter into a new 1-year Operating Agreement which sets forth the terms and
conditions under which the Operator will operate and manage the Chula Vista Nature Center;
and
WHEREAS, the agreement includes a financial commitment from the City for $75,570 to
offset the cost of certain utilities and shuttle bus fuel during the term of the agreement.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula
Vista does hereby approve a new Operating Agreement for the Chula Vista Nature Center
between the City and the Living Coast Discovery 1
Presented by
Scott Tulloch
Assistant City Manager
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THE ATTACHED AGREEMENT HAS BEEN REVIEWED
AND APPROVED AS TO FORM BY THE CITY
ATTORNEY'S OFFICE AND WILL BE
FORMALLY SIGNED UPON APPROVAL BY
THE CITY COU)1CIL
// /~
j ~-j
i
glen R. Googins
City Attorney
Dated: 1 D l ~
OPERATING AGREEMENT
BETWEEN
THE CITY OF CHULA VISTA AND
LIVING COAST DISCOVERY CENTER
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OPERATING AGREEMENT
This OPERATING AGREEMENT ("Agreement"), dated , 2012 and
effective as of July 1, 2012 ("Effective Date"), is by and between the CITY OF CHULA
VISTA, a chartered municipal corporation ("City"), and LIVING COAST DISCOVERY
CENTER, a California non-profit corporation ("Operator"). Individually, the City and
Operator may be referred to herein as "Parry" and collectively as "Parties". This Agreement is
made with reference to the following facts:
RECITALS
A. The Chula Vista Nature Center ("CVNC") is a world-class zoological institution and
attraction with hands-on exhibits and live animal displays, which emphasize the
importance of natural coastal marsh resources and their delicate ecosystem balance. The
CVNC is located at 1000 Gunpowder Point Drive, Chula Vista, CA on approximately 3.3
acres of land ("Nature Center Land") on Gunpowder Point within the Sweetwater Marsh
National Wildlife Refuge on land owned by the U.S. Fish and Wildlife Service
("USFWS").
B. The CVNC was opened to the public in July of 1987. Initially, the CVNC was operated
by the Bayfront Conservancy Trust ("BCT"),anon profit corporation formed for that
purpose. Thereafter, the City, Agency and the BCT oversaw significant improvements to
the CVNC. The City ultimately assumed direct control of the CVNC, and in 2002 the
City created an official Nature Center department to manage CVNC operations.
C. The Operator was initially formed as The Environmental Legacy Fund, a California non
profit corporation qualified as a tax exempt public charity for purposes of assisting with
fundraising for CVNC operations and to organize and support volunteer efforts at the
facility. On or about June 16, 1997, the Operator changed its name to the Chula Vista
Nature Center Foundation, and then in 2012 changed its name again to the Living Coast
Discovery Center.
D. Notwithstanding each parry's good faith efforts to make the CVNC more self-sustaining,
in each year of its operations the CVNC required a significant financial contribution from
City's general fund. In fiscal year 2007/2008, for example, City and Agency together
funded approximately $750,000 of the $1,000,000 CVNC budget for that year.
E. In November 2008, facing its own budget shortfall, City determined that it could no
longer continue to fully fund the CVNC annual operating deficit. In response to this
crisis, Mayor Cox commissioned a CVNC Task Force ("Task Force") comprised of City
staff, Directors of the Operator, members and officers of the South County Economic
Development Corporation and other CVNC stakeholders. The Task Force was charged
with exploring alternative approaches to CVNC ownership and operations that would
improve CVNC prospects for long-term sustainability.
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F. In the ensuing months (1) City and Operator worked together to raise approximately
$580,000 in donations for the benefit of the CVNC; and (2) the Task Force issued a
report with certain findings and recommendations on how to enhance CVNC operations
and sustainability. The report included the recommendation that the CVNC be operated
by an independent, non-profit, entity separate from the City. City officials then
determined that the Operator organization, with some modifications, was uniquely
qualified, to take over operations of the CVNC from the City based upon its 21 years of
involvement and experience with the CVNC, its commitment to the mission of the
CVNC, and its capacity for fundraising.
G. On Apri128, 2009, the City Council authorized City staff to pursue apublic-private
partnership and operating Agreement with the Operator for the operation and
management of the CVNC, along with two conceptual funding plans as a basis for
negotiations.
H. On June 1, 2009, City and Operator entered into a Letter of Intent that committed the
parties to meet and confer to develop terms for the transition of the CVNC from City
managed operations to Operator managed operations.
I. On June 18, 2009, City and Operator entered into a Letter Agreement ("Letter
Agreement") pursuant to which the parties agreed to (1) Operator's contribution of
$75,000 towards CVNC transition period operations; (2) the pooling of Operator's
contribution and donated amounts into an "Operating and Development Reserve"
account; (3) City operations over a six month "Transition Period" in accordance with a
mutually approved budget and business plan; (4) a Transition Period funding plan; (5)
provisions for extension of the meet and confer period for negotiations of a longer term
"MOU" and/or Operating Agreement; and (6) related matters.
J. On or about July 14, 2009, Operator notified City in writing of its election to extend the
meet and confer period under the Letter Agreement for a period of 90 days.
K. After a series of meetings and negotiations, the Pazties agreed to further extend the meet
and confer period. As a result of additional meetings and negotiations the Parties agreed
on the terms and conditions for the initial grant by City and Redevelopment Agency to
Operator of a license to manage and control CVNC operations, and a formal Operating
Agreement was entered into on or about Februazy 6, 2010.
L. On or about November 23, 2010, the Parties agreed to amend the Operating Agreement in
order to extend the term until June 30, 2012. As that term has now expired, the City and
Operator would like to enter into a new Operating Agreement for a period of one (1)
year, ending June 30, 2013.
NOW, THEREFORE, in consideration of the above Recitals, the mutual covenants
contained herein and for other good and valuable consideration, the receipt and sufficiency of
which the Parties hereby acknowledge, the Parties hereby agree as follows:
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ARTICLE I. GRANT OF LICENSE
1.1. Grant of License for Nature Center Operations. As of the Effective Date, and subject
to the various terms and conditions of this Agreement, City hereby grants to Operator the
exclusive license to operate the CVNC (the "CVNC License"). Except as otherwise
expressly provided herein and/or to the extent necessary for City to perform and satisfy its
obligations under this Agreement, the CVNC License shall include exclusive access to,
possession of, and control over the following CVNC assets and programs:
a. Land and Improvements. Operator shall have exclusive access to and control over the
Nature Center Land and improvements thereon used in the operation of the CVNC
(collectively, the "CVNC Land and Improvements"). A description of the CVNC
Land and Improvements is attached hereto as Exhibit A. Operator's use and control
of the CVNC Land and Improvements shall be subject to any and all (1) City reserved
rights expressly provided for in this Agreement; and (2) leases,. easements, liens,
restrictions and requirements existing with respect thereto as of the Effective Date
(collectively, the "CVNC Requirements").
b. Permits and Contracts. Operator shall have City's beneficial rights under any and all
permits, agreements, grants, licenses, easements, and/or contracts related to the
operation of the CVNC (the "CVNC Permit and Contracts"). To the best of their
knowledge, City represents and warrants to Operator that (1) the CVNC Permits and
Contracts are assignable, (2) the list of CVNC Permits and Contracts attached hereto
as Exhibit B is complete and accurate in all respects, and (3) City has obtained any
and all approvals from the applicable governing authorities or contracting parties that
aze necessary or appropriate to allow Operator's use thereof.
c. Management of Dav to Day Operations. Except as otherwise specifically provided
herein, Operator shall have exclusive authority and control over the day to day
operations of the CVNC including, without limitation, the following matters: (1)
Hours of Operation; (2) Staffing Levels: (3) Hiring and firing of employees; (4)
Marketing; (5) Admissions Rates and Policies; (6) Fundraising; (7) Educational
Programs; (8) Facility Maintenance; (9) Gift Store Operations; (10) Third-party use of
CVNC facilities; (11) Food Service; (12) Concessions; (13) Third-party contracts for
supplies or services; (14) Presentation, standards of caze and disposition of CVNC
Wildlife; (15) Arrangement, Modification and Construction of Exhibits; and (16)
modification of CVNC Permits and Contracts.
d. Cit~Assiumnent of Use Rights to CVNC Land and Improvements. To the extent
necessary or appropriate for the operation of the CVNC by Operator, City hereby
assigns to Operator respective rights to (1) use of the CVNC Land and Improvements,
(2) the CVNC Permits and Contracts, and (3) the CVNC Wildlife (collectively, the
"CVNC Assets"). Notwithstanding the foregoing, City shall retain a residual interest
in and/or ownership of, as the case maybe, the underlying rights and title to the
CVNC Assets (excluding the CVNC fauna) such that upon the expiration or other
termination of this Agreement, unless otherwise agreed between the parties, total
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ownership and control of the CVNC Assets (excluding the CVNC fauna) shall revert
to the City.
ARTICLE II. TRANSFER OF TITLE OF TANGIBLE ASSETS
2.1 Wildlife (Flora and Fauna). Operator shall have exclusive possession and control over
any and all flora and fauna (the ownership of such fauna has been previously transferred to
the Operator, pursuant to the February 6, 2010 Agreement) located at the CVNC as of the
Effective Date ("CVNC Wildlife"): such possession and control shall include, without
limitation, the exclusive right and authority to sell, transfer, trade, loan or otherwise
dispose of the CVNC Wildlife in Operator's sole discretion and consistent with practices
of the National Association of Zoos and Aquariums as same may be updated from time to
time. Notwithstanding the foregoing, prior to any determination that any of the fauna
shall be euthanized for reasons other than terminal illness or injury, the Operator shall
inform the City in writing of its intention to do so and provide the .City with the option to
refer the care of fauna to another agency. Funds for such disposition and transfer for care
to other agency shall be drawn from the Contingency Fund identified in Article VI,
Section 4.3.
2.2 Fixtures, Furnishings, Equipment and Supplies. Operator shall have exclusive
possession and control over all fixtures, furnishings, inventory, office and maintenance
equipment and supplies ("CVNC FF&E") that were transferred from the City to the
Operator pursuant to the February 6, 2010 Operating Agreement between the City and the
Nature Center Foundation.
ARTICLE III. TERM OF AGREEMENT
3.1 Term. The initial term of this Agreement ("Initial Term") shall commence on the
Effective Date and shall expire on June 30, 2013 ("Expiration Date"), unless earlier
terminated pursuant to ARTICLE X, herein.
3.2 Extension of Term. The Initial Term may be extended by mutual written agreement of the
Parties.
ARTICLE IV. FUNDING AND USE OF REVENUE
4.1 CVNC Revenues. Any and all revenues generated through CVNC operations and/or
fundraising ("CVNC Revenue)" during the Term shall be retained by Operator and solely
applied to CVNC operational costs and/or development.
4.2 Operator Management and Funding. During the Initial Term or any extension thereof,
the Operator shall manage and finance all of the CVNC operations in a manner consistent
with and that fully satisfies Operator's obligations under the terms of this Agreement. In
the event that CVNC Revenue is insufficient by itself to cover the operation of the CVNC
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under this Agreement, the Operator shall be responsible for funding any operational deficit
out of its own funds.
4.3 Operator's Special Reserve for Disposition of Fauna. Operator shall establish and
maintain a special contingency reserve account in the amount of $10,000. This account
shall be dedicated exclusively towards funding any and all activities Operator deems
necessary for the transfer, or other appropriate disposition, of the CVNC fauna to the
extent such disposition becomes necessary pursuant to the terms of Article X hereof.
Operator shall not withdraw funds from the contingency reserve account for any purpose
other than that identified above and shall obtain prior written consent from the City to
withdraw such funds.
4.4 Joint Fundraising Efforts. The Parties agree to exercise their combined best efforts to
solicit and secure additional funding to support CVNC operations and development.
Fundraising efforts shall be coordinated through Operator's Director of Development
pursuant to Operator's approved fundraising plans and policies.
ARTICLE V. ADDITIONAL OPERATOR COVENANTS
5.1 Use Covenant. During the Initial Term and any mutually agreed upon extension thereof,
Operator covenants and agrees for itself, and its successors and assigns, that Operator shall
operate the CVNC as a zoological institution and attraction with hands-on exhibits and
live animal displays, which emphasize the importance of natural coastal marsh resources
and their delicate ecosystem balance. To the extent practical, and to the extent consistent
with both the CVNC Requirements and the CVNC Permits and Contracts, Operator shall
also operate the CVNC consistent with the standards established by the National
Association of Zoos and Aquariums as same may be updated from time to time
(collectively, the "Nature Center Use"). Without City's prior written approval, Operator
shall not seek entitlements or permits for the operation or redevelopment of the CVNC
property for other than the Nature Center Use. Operator shall conduct the Nature Center
Use in compliance with any and all applicable federal, state and local laws and regulations
and the CVNC Permits and Contracts and consistent with the purpose of the CVNC
License.
5.2 Operator's Non Profit Status and Management Ownership Structure. During the
Initial Term of this Agreement (and thereafter if extended), unless otherwise approved by
the City, the Operator shall continue to operate as a California non profit corporation that
is qualified as a tax exempt public charity pursuant to Internal Revenue Code Section
501(c)(3) and California Revenue and Taxation Code Section 23701d. City shall have the
right to appoint one (1) Director to Operator's Board whenever the Board is comprise of
fifteen (15) Directors or less, and two (2) Directors whenever the Boazd is comprised of
sixteen (16) Directors or more; provided however, City agrees not to exercise its
appointment right(s) hereunder in any manner that triggers application of the Ralph M.
Brown Act to Operator's Board meetings.
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53 City Access for Special Events. Operator shall grant City free access to and use of
CVNC facilities for up to sixteen (16) sepazate events (including meetings) per calendaz
yeaz. City events shall be scheduled in accordance with Operator's normal scheduling
procedures so as not to interfere with normal CVNC operations or other scheduled events.
Events shall be for a maximum of one day each. Operator shall waive its standazd facility
charges for City events covered by this Section, but reserves the right to charge for any
special services provided or costs incurred (for example, staff overtime or chazges for
extended bus service hours).
5.4 Admissions. Operator shall provide City with fifty (50) admission passes per year for use
by City in any manner consistent with City policies and law.
ARTICLE VL ADDITIONAL CITY COVENANTS
6.1 Approvals of Other Agencies. City has obtained any and all approvals from the
applicable governing authorities or contracting parties that are necessary or appropriate to
allow Operator's use of the CVNC Permits and Contracts.
a. City's Failure to Obtain Arororoval of Related Agencies In the event that after City's
good faith efforts to obtain approvals of Related Agencies for the transfer of City
obligations with respect to the CVNC, which failure would subject the City to
financial or other liability, this contract shall be deemed invalid, and the Parties shall
reenter good faith negotiations to establish a method to accomplish the goals of this
Agreement.
6.2 City "In-Kind" Services and Supplies. City agrees to provide certain "in-kind" services
and supplies to Operator to assist with CVNC operations during the Initial Term either at
no cost or at an agreed upon rate of reimbursement. A list of such services and supplies;
corresponding reimbursement rate(s), if any; standazds of performance; and schedules for
delivery, is attached hereto as Exhibit C. Additional "in kind" services not listed may be
provided by City on terms to be negotiated.
6.3 Compliance with Permits and Contracts. City shall take no action with respect to the
CVNC Permits and Contracts that would cause any violation thereof or default thereunder,
or that would cause the CVNC to lose its accreditation with the American Association of
Museums. City shall immediately notify Operator in writing of any notice of violation or
default under any CVNC permit or contract, with sufficient notice to allow Operator to
take the necessary steps to cure same.
6.4 Deferred Maintenance Items. Parties agree to ongoing discussions regarding the
condition of the CVNC improvements and work plan for items requiring deferred
maintenance (the "Deferred Maintenance Work"). The Deferred Maintenance Work shall
be implemented by the City in accordance with industry standards and shall be subject to
Operator's prior reasonable approval and acceptance.
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6.5 Payment of Debt Service on CVNC Improvements. City shall continue to pay debt
service to Bank of New York to finance amounts loaned to City for construction of certain
of the CVNC Improvements, and shall strictly comply with any and all covenants and
agreements entered into in connection therewith.
6.6 Payment of Utilities and Shuttle Bus Fuel. Upon receipt of utility bills for electric,
water, and telephone, City shall remit payment for such utilities directly to the utility
operator in the amount of the invoice for the utility services used for the operation and
maintenance of the CVNC during the term of this Agreement. In addition, City shall pay
for Shuttle Bus fuel costs described in Exhibit C. Operator shall be responsible for all
other utility costs, including propane gas and wastewater removal.
a. Maximum Amount. City's commitment to pay Utilities and Shuttle Bus fuel costs
shall not exceed $75,570. ("Maximum Payment Amount"). Any costs/expenses in
excess of this Maximum Payment Amount shall be the obligation of Operator.
ARTICLE VII. INSURANCE
7.1 Insurance. Operator's Obligation. Prior to the execution of this Agreement, Operator
shall (i) obtain, and upon the City's request provide to the City, insurance certificates
reflecting evidence of all insurance required in Section 7.1(a); (ii) obtain City approval of
each company or companies; and (iii) confirm that all policies contain the specific
provisions required by section 7.3(c).
a. Types of Insurance. At all times during the term of this Agreement, Operator shall
maintain insurance coverage as follows:
i. Commercial General Liability. Operator shall provide at its expense a policy or
policies of Commercial General Liability [CGLj Insurance written on an ISO
Occurrence form CG 00 O1 07 98 or an equivalent form providing coverage at
least as broad and which shall cover liability including, personal injury and
advertising injury, bodily injury, property damage, and liability assumed under an
insured's contract (including the tort liability of another assumed in a business
contract). There shall be no endorsement or modification of the CGL Insurance
limiting the scope of coverage for either "insured vs. insured" claims or contractual
liability. Operator shall maintain the same or equivalent CGL Insurance as
described herein for at least ten (10) yeazs following termination of this
Agreement. All costs of defense shall be outside the policy limits. The Policy shall
provide for coverage in amounts not less than three million dollars ($3,000,000)
general aggregate limit, one million ($1,000,000) per occurrence for Bodily Injury,
Personal Injury, or Property Damage, and five hundred thousand ($500,000)
sublimit for "Damage to Rented Premises," one million ($1,000,000) of liquor
liability coverage, and a $5 million excess liability policy;
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ii. Commercial Automobile Liability. For all of Operator's automobiles used in
conjunction with the Project including owned, hired and non-owned automobiles,
Operator shall keep in full force and effect, a policy or policies of Commercial
Automobile Liability Insurance written on an ISO form CA 00 O1 12 90 or a later
version of this form or equivalent form providing coverage at least as broad in the
amount of one million dollars ($1,000,000) combined single limit per occurrence,
covering bodily injury and property damage for owned, non-owned and hired
automobiles ["Any Auto"]. All costs of defense shall be outside the policy.
iii. Excess Liability. Operator shall provide Excess Liability Insurance affording three
million dollazs ($3,000,000), or any other amount agree to and approved by the
City's Risk Management Department, in excess of General Liability and
Employer's Liability limits afforded on primary policies. The coverage will be
subject to the same terms, conditions, and exclusions found in the primary policies.
iii. Worker's Compensation. For all of Operator's employees who are subject to this
Agreement and to the extent required by the State of California, Operator shall
keep in full force and effect, a Workers' Compensation Insurance and Employers'
Liability Insurance to protect Operator against all claims under applicable state
workers' compensation laws. The City, its elected officials, and employees will
not be responsible for any claims in law or equity occasioned by the failure of the
Operator to comply with the requirements of this section. That policy shall
provide at least the statutory minimums of one million ($1,000,000) for Bodily
Injury by Accident for each accident, one million dollazs ($1,000,000) for Bodily
Injury by Disease each employee, and a one million dollazs. ($1,000,000) for
Bodily Injury by Disease policy limit.
A. Prior to the execution of the Agreement by the City, the Operator shall file the
following signed certification:
"I am aware of the provisions of Section 3700 of the Labor Code which
requires every employer to be insured against liability for worker's
compensation or to undertake self-insurance, in accordance with the provisions
of that code, and I will comply with such provisions before commencing the
performance of the work of the Contract."
b. Rating Requirements. Except for State Compensation Insurance Fund, all insurance
required by express provision of this Agreement shall be carried only by responsible
insurance companies that have been given at least an "A" or "A--" and "V" rating by
AM BEST, that are. authorized by the California Insurance Commissioner to do
business in the State of California, and that have been approved by the City.
i. Non-Admitted Carriers. The City will accept insurance provided by non-admitted,
"surplus lines" carriers only if the carrier is authorized to do business in the State
of California and is included on the List of Eligible Surplus Lines Insurers [LESLI
list] with a current AM BEST rating of no less than A:X.
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c. Endorsements Required. Each policy required under Section 73 of this Agreement
shall expressly provide, and an endorsement shall be submitted to the City, that:
i. Additional Insureds. Except as to Workers Compensation, the City and its
respective elected officials, officers, employees, agents, and representatives shall
be named as additional insureds.
ii. Primary and Non-Contributory. The policies aze primary and non-contributing to
any insurance or self-insurance that may be carried by the City of Chula Vista, its
elected officials, officers, employees, agents, and representatives with respect to
operations, including the completed operations if appropriate, of the Named
Insured. Any insurance maintained by the City of Chula Vista and its elected
officials, officers, employees, agents, and representatives shall be in excess of
Operator's insurance and shall not contribute to it. _
iii. Waiver of Subrogation. Operator's insurer will provide a Waiver of Subrogation
in favor of the City for each required policy providing coverage for the term
required by this Agreement.
iv. Written Notice. Except as provided for under California law, the policies cannot
be canceled, non-renewed or materially changed except after thirty (30) calendar
days prior written notice by Operator to the City by certified mail, as reflected in
an endorsement which shall be submitted to the City, except for non-payment of
premium, in which case ten (10) Calendar Days notice shall be provided.
A. The words "will endeavor" and "but failure to mail such notice shall impose no
obligation or liability of any kind upon the company, its agents, or
representatives" shall be deleted from all certificates.
d. Additional Insurance. Operator may obtain additional insurance not required by this
Agreement.
e. Deductibles/Self Insured Retentions. All deductibles and self-insurance retentions on
any policy shall be the responsibility of Operator. Deductibles and self-insurance
retentions shall be disclosed to and approved by the City at the time the evidence of
insurance is provided. At the option of the City, either: the insurer shall reduce or
eliminate such deductibles or self-insured retentions as respects the City, its officers,
officials, employees and volunteers; or the Operator shall provide a financial guazantee
satisfactory to the City guazanteeing payment of losses and related investigations,
claim administration and defense expenses.
£ Policy Chances. Operator shall not modify any policy or endorsement thereto which
increases the City's exposure to loss for the duration of this Agreement.
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g. Reservation of Riehts. The City reserves the right, from time to time, to review the
Operator's insurance coverage, limits, deductible and self-insured retentions to
determine if they are acceptable to the City.
h. Not a Limitation of Other Obli atg ions. Insurance provisions under this section shall
not be construed to limit the Operator's obligations under this Agreement, including
Indemnity.
i. Material Breach. Failure to maintain, renew, or provide evidence of renewal during
the term of this Agreement may be treated by the City as a material breach of contract.
7.2 Insurance -City's Obligation.
a. Self Insure: City is self-insured and will provide evidence to the extent requested by
the Operator.
ARTICLE VIII. INDEMNITY
8.1 Indemnity Defense and Hold Harmless. Operator shall defend, indemnify, protect and
hold harmless the City its elected and appointed officers, employees, volunteers, and
agents (collectively "Indemnified Parties"), from and against any and all claims, demands,
causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to
property or persons, including wrongful death, in any manner azising out of or incident to
any alleged acts, omissions, negligence, or willful misconduct of Operator, its officials,
officers, employees, agents, and contractors, arising out of or in connection with the
operation of CVNC. This indemnity provision does not include any claims, damages,
liability, costs and expenses (including without limitations, attorneys fees) arising from the
sole negligence or sole willful misconduct of one or more of the Indemnified Parties. Also
covered is liability arising from, connected with, caused by or claimed to be caused by the
active or passive negligent acts or omissions of the Indemnified Parties, which may be in
combination with the active or passive negligent acts or omissions of the Operator, its
employees, agents or officers, or any third party.
8.2 Costs of Defense and Award. Included in the obligations in Section 8.1 is the Operator's
obligation to defend, at Operator's own cost, expense and risk, any and all aforesaid suits,
actions or other legal proceedings of every kind that maybe brought or instituted against
the Indemnified Parties. Operator shall pay and satisfy any judgment, awazd or decree
that may be rendered against the Indemnified Parties, for any and all legal expense and
cost incurred by each of them in connection therewith.
8.3 Insurance Proceeds. Operator's obligation to indemnify shall not be restricted to
insurance proceeds, if any, received by the Indemnified Parties.
8.4 Enforcement Costs. Operator agrees to pay any and all costs Indemnified Parties incur
enforcing the indemnity and defense provisions set forth in this Article VIII.
to
10-15
8.5 City's Indemnity Obligation. City shall have reciprocal obligations to defend, indemnify
and hold Operator, its officers, employees, and agents harmless as those obligations of the
Operator to defend, indemnify and hold City harmless defined in Sections 8.1 through 8.4.
8.6 Survival. A Party's obligations under this Article VIII shall survive the termination of
this Agreement.
ARTICLE IX. REPORTING
9.1 Periodic Reports and Meetings. Operator shall provide City with quarterly periodic
financial reports and shall meet and confer with City staff from time to time to review
operational issues not specifically addressed by this Agreement. In the event that
Operator anticipates an operating deficit that may affect the continued operation of the
CVNC, Operator shall immediately arrange to meet and confer with the City to determine
how such deficits may be appropriately addressed.
ARTICLE X. TERMINATION
10.1 Termination for Breach. Either party may terminate this Agreement earlier than the
natural expiration date if the other party has materially defaulted in its obligations and the
terminating party has provided the defaulting party with written notification of such
determination, and the defaulting party has refused to cure the default within thirty (30)
days of such notice. If the default is such that the cure will require longer than 30 days,
the time for cure will be extended for the period of time reasonably necessary to complete
the required work, provided, however, the defaulting party must promptly begin the
required cure and diligently prosecutes same to completion.
10.2 Natural Termination of this Agreement. In the event that either party elects not to
extend this Agreement past the Initial Term, upon thirty (30) days written notice from
City, Operator, at its sole cost, shall take all necessary and appropriate steps necessary to
transfer CVNC fauna to another qualified institution for continued care and maintenance.
CVNC fauna that Operator determines cannot reasonably be transferred shall be otherwise
disposed of as Operator deems appropriate and in a manner that is consistent with industry
standards, provided, however, in no event shall Operator euthanize any animals, unless
and until the Operator has informed the City in writing of its intention to do so and
provided the City with the option of taking control of the care thereof Title to CVNC
FF&E transferred from the City to Operator pursuant to the February 6, 2010 Operating
Agreement shall be transferred back to the City.
10.3Injunctive Relief. If the Operator commits a breach or actions that suggest an
anticipatory breach of any of the covenants contained in this Agreement, and such
occurrence or actions remain uncorrected for a period of thirty (30) days or more
following written notice describing such breach, City and its successors and assigns,
without regard to whether City or its successors and assigns are an owner of any land or
interest therein to which these covenants relate, may institute and prosecute any
11
10-16
proceedings at law or in equity to abate, prevent or enjoin any such violation or attempted
violation or to compel specific performance by Operator of its obligations hereunder. No
delay in enforcing the provisions hereof as to any breach or violation shall impair, damage
or waive the right of any party entitled to enforce the provisions hereof or to obtain relief
against or recover for the continuation or repetition of such breach or violations or any
similar breach or violation hereof at any later time.
a. Additional Time for Cure. In the event that the breach cannot be cured within the 30
day timeframe identified above, Operator shall immediately notify City in writing of
its inability to cure, describing the reason for the inability to cure, and provide a date
by which the cure shall be accomplished. If the City deems such explanation of the
delay reasonable, it shall provide Operator with additional time to cure such breach
and a second notice with the date by which the cure shall be accomplished.
10.4 Additional Remedies. In addition to the termination rights contained in Sections 10.1,
10.2, and 10.3 hereof, City and Operator shall each have any other remedies available at
law, equity, or other proper proceedings.
ARTICLE XI. NOTICE
11.1 Notices. Unless otherwise specifically permitted by this Agreement, all notices or other
communications required or permitted under this Agreement shall be in writing, and shall
be personally delivered; sent by registered or certified mail, postage prepaid, return receipt
requested; or sent by facsimile, provided that the telecopy cover sheet contain a notation
of the date and time of transmission, and shall be deemed received: (a) if personally
delivered, upon the date of delivery to the address of the person to receive such notice, (b)
if mailed in accordance with the provisions of this paragraph, two (2) business days after
the date placed in the United States mail, (c) if mailed other than in accordance with the
provisions of this paragraph or mailed from outside the United States, upon the date of
delivery to the address of the person to receive such notice, or (d) if given by facsimile
during business hours when delivered can be confirmed, when delivered. Notices shall be
given at the following addresses:
If to City: The City of Chula Vista
Attn: City Manager
276 Fourth Avenue
Chula Vista, CA 91910
Fax: (619) 409-5884
With a copy to: City Attorney [same address]
If to OPERATOR: Living Coast Discovery Center
Attn: Executive Director
1000 Gunpowder Point Drive
Chula Vista, CA 91910-1201
Fax: (619) 409-5910
12
10-17
With Copy to: William L. Fischbeck, Esq.
Fischbeck & Oberndorfer
5464 Grossmont Center Drive, Suite 300
La Mesa, CA 91942
Fax: (619)464-6471
ARTICLE XII. MISCELLANEOUS PROVISIONS
12.1 Headings. All article headings are for convenience only and shall not affect the
interpretation of this Agreement.
12.2 Gender & Number. Whenever the context requires, the use herein of (i) the neuter
gender includes the masculine and the feminine genders and (ii) the singular number
includes the plural number.
12.3 Reference to Paragraphs. Each reference in this Agreement to a section refers, unless
otherwise stated, to a section in this Agreement.
12.4Incorporation of Recitals. All recitals herein are incorporated into this Agreement and
are made a part hereof.
12.5 Covenants and Conditions. All provisions of this Agreement expressed as either
covenants or conditions on the part of the City or the Operator, shall be deemed to be both
covenants and conditions.
12.6Integration. This Agreement and the Exhibits and references incorporated into this
Agreement fully express all understandings of the Parties concerning the matters covered
in this Agreement. No change, alteration, or modification of the terms or conditions of this
Agreement, and no verbal understanding of the Parties, their officers, agents, or employees
shall be valid unless made in the form of a written change agreed to in writing by both
Parties or an amendment to this Agreement agreed to by both Parties. All prior
negotiations and agreements are merged into this Agreement.
12.7 Severability. If any portion of this Agreement shall be held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, the remaining provisions shall
remain enforceable to the fullest extent permitted by law if enforcement would not
frustrate the overall intent of the parties (as such intent is manifested by all provisions of
the Agreement, including such invalid, void or otherwise unenforceable portion).
12.8 Drafting Ambiguities. The Parties agree that they are aware that they have the right to be
advised by counsel with respect to the negotiations, terms and conditions of this
Agreement, and the decision of whether or not to seek advice of counsel with respect to
this Agreement is a decision which is the sole responsibility of each Party. This
Agreement shall not be construed in favor of or against either Party by reason of the extent
to which each Party participated in the drafting of the Agreement.
13
10-18
12.9 Conflicts Between Terms. If an appazent conflict or inconsistency exists between the
main body of this Agreement and the Exhibits, the main body of this Agreement shall
control. If a conflict exists between an applicable federal, state, or local law, rule,
regulation, order, or code and this Agreement, the law, rule, regulation, order, or code
shall control. Varying degrees of stringency among the main body of this Agreement, the
Exhibits, and laws, rules, regulations, orders, or codes aze not deemed conflicts, and the
most stringent requirement shall control. Each Pazty shall notify the other immediately
upon the identification of any apparent conflict or inconsistency concerning this
Agreement.
12.10 Prompt Performance. Time is of the essence of each covenant and condition set forth
in this Agreement.
12.11 Good Faith Performance. The parties shall cooperate with each other in good faith,
and assist each other in the performance of the provisions of this Agreement.
12.12 Further Assurances. City and Operator each agree to execute and deliver such
additional documents as may be required to effectuate the purposes of this Agreement.
12.13 Exhibits. Each of the following Exhibits is attached hereto and incorporated herein by
this reference:
Exhibit A - CVNC Land and Improvements
Exhibit B - CVNC Permits and Contracts
Exhibit C-City "In-Kind" Services
12.14 Conflict of Interest.
a. No member, official or employee of City or Operator shall have any personal
interest, direct or indirect, in this Agreement, nor shall any such member, official or
employee participate in any decision relating to the Agreement which affects his or
her personal interests, those of his/her immediate family, or the interests of any
corporation, partnership or association in which he or she is, directly or indirectly,
interested.
b. Operator warrants that it has not paid or given, and will not pay or give, any third
person any money or other consideration for obtaining this Agreement.
12.15 Non-liability of City Officials and Employees. No member, official or employee of
City shall be personally liable to Operator or any successor in interest in the event of any
default or breach by City or for any Agreement which may become due to Operator or
successor or on any obligation under the terms of this Agreement.
14
10-19
12.16 Compliance with Law. City and Operator agrees to comply with all the requirements
now in force, or which may hereafter be in force, of all municipal, county, state and
federal authorities, pertaining to the ownership and operation of the CVNC all
improvements constructed thereon and all operations conducted thereon.
12.17 Jurisdiction and Venue. The venue for any suit or proceeding concerning this
Agreement, the interpretation or application of any of its terms, or any related disputes
shall be in the County of San Diego, State of California.
12.18 Municipal Powers. Nothing contained in this Agreement shall be construed as a
limitation upon the powers of the City as a chartered city of the State of California.
12.19 Attorneys' Fees. Should any litigation (including any proceedings in a bankruptcy) or
azbitration be commenced between the parties hereto or their representatives concerning
any provision of this Agreement or the rights and duties ofany-person or entity
hereunder, the party or parties prevailing in such litigation or arbitration shall be
entitled, in addition to such other relief as maybe granted, to the attorneys' fees and
court or arbitration costs incurred by reason of such litigation or arbitration, including
attorneys' fees and experts' fees incurred in preparation for or investigation of any
matter relating to such litigation or arbitration.
12.20 Administrative Claims Requirements and Procedures. No suit or arbitration shall be
brought arising out of this agreement, against the City unless a claim has first been
presented in writing and filed with the City and acted upon by the City in accordance
with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as
same may from time to time be amended, the provisions of which are incorporated by
this reference as if fully set forth herein, and such policies and procedures used by the
City in the implementation of same. Upon request by City, Operator shall meet and
confer in good faith with City for the purpose of resolving any dispute over the terms of
this Agreement.
12.21 No Third Party Beneficiaries. The parties to this Agreement acknowledge and agree
that the provisions of this Agreement are for the sole benefit of City and Operator and
not for the benefit, directly or indirectly, of any other person or entity, except as
otherwise expressly provided herein.
12.22 Successors in Interest. This Agreement and all rights and obligations created by this
Agreement shall be in force and effect whether or not any Parties to the Agreement have
been succeeded by another entity, and all rights and obligations created by this
Agreement shall be vested and binding on any Party's successor in interest.
12.23 No Partnership. Nothing contained in this Agreement shall be deemed or construed to
create a partnership, joint venture or any other similar relationship between the parties
hereto or cause City to be responsible in any way for the debts or obligations of Operator
or any other person.
15
10-20
12.24 Approval. Except as otherwise expressly provide in this Agreement, where the consent
or approval of a Party is required or necessary under this Agreement, the consent or
approval shall not be unreasonably withheld.
12.25 Assignments.
a. Citv Approval Required. The qualifications and identity of the Operator aze of
particulaz concern to City. Operator recognizes that it is because of such
qualifications and identity that City is entering into this Agreement with Operator.
Therefore, no voluntary or involuntary successor in interest of Operator shall acquire
any rights or powers under this Agreement except with the prior written approval of
City in its sole discretion. Any purported assignment in violation of this Section
shall be void.
b. Permitted Transfers. Notwithstanding anything in this Agreement to the contrary,
Operator may, without the prior written approval of City, assign or otherwise
transfer its interest in this Agreement and its rights and powers under this Agreement
(a "Permitted Transfer") to any holding company, corporation, association or entity
which is or becomes a parent, subsidiary or affiliate of Operator provided that
Operator retains substantial management and control thereof, or to any successor of
Operator by reason of change of name, merger, consolidation, reorganization,
dissolution, lender acquisition or sale of Operator interests or assets, provided that,
the transferee assumes the rights and powers of Operator under this Agreement.
12.26 Condition Precedent. It is understood that as a condition precedent to any action to
approve this Agreement, City must consider and adopt the appropriate resolution. Said
resolution must contain the findings required by law. City agrees to use due diligence in
processing the matter to heazing before the City Council.
12.27 No Waiver. No failure of either Party to insist upon the strict performance by the other
of any covenant, term or condition of this Agreement, nor any failure to exercise any
right or remedy consequent upon a breach of any covenant, term, or condition of this
Agreement, shall constitute a waiver of any such breach of such covenant, term or
condition. No waiver of any breach shall affect or alter this Agreement, and each and
every covenant, condition, and term hereof shall continue in full force and effect to any
existing or subsequent breach.
12.28 Signing Authority. Each party represents that the persons executing this Agreement on
behalf thereof have full authority to do so and to bind such parties to perform pursuant to
the terms and conditions of this Agreement. Concurrently with Operator's submission
of this Agreement to the City for execution, Operator will submit to City a copy of
documents evidencing the due formation and nature of Operator and the signatory's
authority to sign on behalf of Operator.
12.29 Counterparts. This Agreement may be signed in multiple counterparts with the same
force and effect as if all original signatures appeared on one copy; and in the event this
16
10-21
Agreement is signed in counterparts, each counterpart shall be deemed an original and
all of the counterparts shall be deemed to be one Agreement.
[NEXT PAGE IS SIGNATURE PAGE]
17
10-22
SIGNATURE PAGE
TO MEMORANDUM OF UNDERSTANDING
[CHULA VISTA NATURE CENTER]
IN WITNESS WHEREOF, the parties have executed this AGREEMENT as of the
date first set forth above.
CITY:
THE CITY OF CHULA VISTA
By:
Cheryl Cox, Mayor
Attest:
Donna Norris, City Clerk
OPERATOR:
LIVING COAST DISCOVERY CENTER
By: cu t~P-~~
arusp~~1 f'u ~Ce2
Susan Fuller, Chairman
By ~ .
~~ ~ ~~ C . ~d ~.~~~
Brian Joseph, Executive Director \
APPROVED AS TO FORM:
Glen R Googins
City Attorney
18
10-23
~1
II
1633 SB•2~q~rP~r
~ ~.~YVh J111V RLyyLJI LIJ Uli V
AEDEVECOPHEH7 AGENCY OF THE CITY DF CHULA VISTA neeono~Pn e,",
c ruaal n_Lnr.:,.
Hh en Recorded, Pleaea Ha11 Ci ~ey cl;CG ¢I,Il~p,i.,
This In etrument Tor
1566 JW 30 pl ~ ps
REDEVELOP14fNT AGfNLY OF THE CITY OF CHUCA VISTA
City of Chula Vista LVERA L. LYCg
P.O. Box 1087 CWNNiY R£LORDER J
Chula V10te, CA 92012
NO TRANSFER TAx DOE
Aseeseorle Pe reel No.c
I
~
I~
~
pace a owe a ne or ecor ar a use on y ~
NO FEE
EASEHENT FDR NATURE INTERPRETNE CENTER AND ---
I
.. A LZCENSE FOR ACCESS AND UTILITY LIMB PURPOSES .
FOR A VALUABLE CONSSDERATIDN, receipt of wht ch !s hereby
acknowledged, SANTA PE LAND IMPROVEMENT COMPANY, a corpora tien '
organized under the laws of the Etnte o[ Calitornfa hereby grants ~, .,
to Che REOEVELCPM ENT AGENCY DP THE CITY OP CHULA VI6TA an ease-
ment, to be used Eor the purpose specified herein and no other,
upon, over and across the real property Iacnted In the C1ty of
Chula V1etaJ County of Snn Diego, Btnte of Cal ifornt a, more per-
tlcularly de scr[bed in Exh Lbit A attached hereto and initialed and f
by thfs [eference lncorpora ted harem.
This easement is granted Bole ly for the mnstructfon, opera-
tion, maintenance, cepatc, renewal and replacement from time to t
time of a Nature Into rpretlve Center open to the public contal ping
approzlmately ten thouesnd (10.000) square Peet under roof, Ln
addt tlon to associated and ancillary parking [aoilSCtea, landacep-
ing, within the area above descrl bed Ln Exhl bit A. In addition,
tats eeseme nt Ss gran tea [or all ~Phaee 1 and Phase 2 on and
off-site grading work for said Nature In terpre tlve Center,
including, but not lim lied to, oPF-site drainage and utility
taci Ii Cloe required to serve the subject Center project shown sn
Exh1 b1C 'E" attached hereto and incorporated herein by reference
dnd mole particularly described on City Of Chu 1a Vista Plan Noe.
86-59 through and including 06-fi4 revised April 2E, 7986. ,-
Tn eddltion to the above-referenced eneenent, Grantor hereby
grants to Grantee a license aver and across the land hereinafter
deacri bed for vehicular and podeet Ylan ingrese and egreea to and
E rom the Ha tore InterpretL ve Center area. GrentoY also giants a
licence [o Grantee for the pu rpoae of Ln stalling a water line to
Serve the Ha tore Interpretive Center sits, the nature and type of
which to be der ermined by Grantee. Grantor shell he ve the right
Co relo ea Ce said access and water 11 ne In the event that said ~
~.2~?.6 ~. 8-
.. I~
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,, ~.:
10-24
1fi34
access and aster ilne obstructs or SnterEe rte uich the development
of adjacsnt and/or underl ylnp property owned by the Grantor, pro-
vided that reaeonahle alternative senses and water lino roloca tl on
are therea Eter allowed to and for the Nature Interpretive Center.
The cost a£ moving the water line ar oth ar utilit les ecru in9 the
Nature Interpretive Center she 11 be borne equally by the Grantor
and Grantee. Grantor £urthec grants to Grantee a license to
install utll•i ty lines that Grantee may require For the Nature
Irate rpretlve Canter site. '
The !n lClal to cations of the above-reEereneed lSeensea for
roadway and utility 11nee is ae designated on Exhibit a attached
hereto and loco rpora tad herein 6y re Perence.
Grantee, by accapting th ie easement and licence, agrees to
the fol lowing:
7) Grantee agrees [o lndemni Py, defend and hold harmYeoa
Grantor from all ISab111ty arising from actions of Grantee or !te
agents .and root roe [orar and persona using, visiting and !n transit
Yo or from Grants e'a foci llties over the property descrl bed !n
Exhibits A end 8.
2) Grnnte6 shall, prior to boginning any grading or other
work on or related [o ronstruction of the Nature Interpretive
Center project, ins tell ea nd bags at [he lima to oL grading ae
shown on CiCy. of Chula Vista plan Noe, 86-39 through and Sncluding
G6'-6~ referenced he reins hove, ea id limits having been established
and clearly marked on the ground by a Fegistered Civ 11 Engineer
au thorized to practice land surveying or a lLcenasd land surveyor
who shall work for and at [he expense of Grantee. Grantee shall
also, prior to begin ning conatruat ion o£ the Nature Tnterpretlva
Center project, Install a fence around the perimeter of Parcel A,
as deeerlhed in Exhf bit A, oP a type reasonably designed to
prevent unauthorized persona from going onto or leaving the site
during construction. Grantee hereby warrants to Gran tar that it
shall not permit or suPPer any debris ar demolition materials or
other waste of any kind to be placed, buried, stored or abandoned
within any area subject to this easement In favor of Grantee, or
subject to rontrol or use by Crantoe for purposes of grading or
construction.
3) Grantee shall, prior to beginning any grading or other
work On or related to ronatructlon oP the Nature Znterpra tlve
Center project, submit [o Grantor for its review any and n11
contracts For grading or other construction work on or ral aced to
the Nature Interpce [!ve Center project. Gran tor'a cevieu shall be
solely for the purpose o£ aseuri ng lte elf toot job spa elEi ce float
and contract documents adequately protset Grantor and Grantor's
property from damage or misuse.
_p-
2/9 ~ GP
~ ( ~'
r
C
10-25
1635
Grantor eh all hove the right of reasonable .acceae to and over
1 Leenflfe,t Eor ingress andd egreeay tohand aC rom nibs rea lbjproperty tof
Grantor.
Grantor hereby fu xther grants to the City of Chula vista the
prix liege and right to extend reasonable dra nags structures and
e xcavatlon and embankment slopes beyond the limits of the right-
of-way described in Exhlhlt E vhare required far the construction
and maintenance of said acceae road, xESERVYNG unto Grantor o£
the above-described parcel of land, its aucceesors or assigns, the
r tght !o elimirta to such elopes and/or drainage atructu rea or por-
tions thereo E, when in the written opinion of the City Engineer of
Grantee, the nppecesflity she reFor 1a removed by aubatitueing other
P titut icnnls fire[ [approved lna writingabylsaid City SEng inear, eub-
Grantor hereby Lu rthar grants to Grantee all trees, growths
(growing or ehet may hereaE ter grow), and road build lag materials
theh rtgfite toe to ker xeter, dtoga Cher with the irSgbt ato use [the usame
in such manner and nt such lacationa as said Grantee may deem
SmprOV PnleO tdOTimaLnten anCB rof ealdhG CanteCr6 clmpro VementaCYaet ion,
In addition, Grantor anti ands tutiiity olive purposesnsuntil
continue for roadway, drainage,
such time as a perms vent rood is boils [o serve the Nature
Z neerpretivo Ssnter area, which road ah~~ be [~lcated as
permanent publl c, cl ty street and whi cfl ehsiT Main rhos
u ellit See requls lie for eervice of the Nature Interpretive Center
f acl lity.
This Grant of Basement shall exist une13 au ch time as th ere
is an agreement entered Into between Grantor and Grantee and the
Chula Vlste Redevelopment Agency and City of Chu 1a Vista relating
to the Hay Pront Project, and through which it is anticipated the
a Yea shown In Exhibit A will be conveyed to Grantee Sn Eee. In
Yoadwaynendrutillty nllneppurposesauntllasuchetime cos an permanent
/~fldG~
-3-
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10-26
1836
road ie bun t to eerve the Ha tors intarpre tiye Center nre9y at
which time said road will 6e ded Ccated as a Permanent pu bile, city
street, yy--~~~~
Dated eh is 2 2' ~'d ay o! () /Lr-z_ . 1996.
SANTA YE LAND INPROVENENT CONPANY,
a CallLarnla rorporatton
B
>, t e _ V
The terms of Lhis Easement nd LLee nee Ag roement are accepted
by the City o£ Chula vista
AEOEVF.LOPHEHT AGENCY OP THE
C ITY~OP NULA V T~
gy,, oC
(Aek novledgement)
~f/~IjTEST• ~~~~,~f~~~~~~~~,,./
STATE OP CALZ POANIA )
) s6
COUNTY OP 1jy Y.an nn )
On . 19~L , before me,
the un era gne , a Notdry Publio Sn and
for said State, parsonaliy appeared
persona y nown o me or prove to me
to be the parson whose name
subscribed to Cha xlthtn ins erumene and
a cknowle dgad that ~ executed the
same.
WITNESS my hand and oFFiciai ae al,
S ignatuze ~ t~<n,.n /
Name
ype or Pr me
yxu~sua
J,L LYONS
IIOIA9Y %1900 -Cea0a1(G
+• ~• n.^IIrv,G4w County
VY~CimnL•11x Egdrt,lb 11.199)
~PI9 G G' ~
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I
10-27
~~
EXHi67T "A"
1637
l~ VISYA 1Trf]tP1taT1YL YA79xL Clt]RtR
Being a pbztSon o£ pusrter ^e etione 173 and 180 D2 the Aancho De
Le Na cion, to thr City of Chula vista, County of Ban Diego, State
of Ce lifornia as shown on Record of burvey No. 9039 on file in
the OSf1ee oP the Reeordrr of safd CounCyt raid portion bainq
Mora perelcularly deserl bed ea follow,
PARC>•L 'A`
Beginning at the South ae aterly corner of said Ouerter Section 173
oe shown"on sand Retard o! Survey Ho. 9039: thence __
1, South 72']3'27" West 1J0.00 feet so a point on the
Easterly bounder)' 02 said Record of Survey No. 9039;
2. thence Conti nufng South 72'13'27" Feat 516.5] fees ca
ch= beginni ng o! a tangent 30.00 iooc 'radius curve
concave Northerly)
3, thence Westerly along eaid curve through a eencrel
angle o! 92'47'01' an arc diaten ce of 18.58 feet!
4, thence tangent to said curve north 14'59'32" Weat
651.90 feet to Lhe beginning of a tang ant 50.00 foot
radius Curve tones ve Southerly;
5. thence Westerly along said curve through a eantrel
angle of 93'22']1" an are distance of 81.4E feetr
6. thence tangent td raid curve South 71'38'16" nest
1644.42 feet to the beginning of a to ngent 300.00 foot
red Sue curve Concave Korthwescerlyl
7, thence Southwesteriy along acid curve ehreugh a central
_ engle of 37'10'07" nn ere dtatance of 89.90 feet:
H. thence tangent to aead curve South 68'46'23" Wese
163.76 fees to the baganning of a tnnq ent 40.00 toot
radius curve conceve Nor char) yr
9, thenc= Westerly along said curve through a central
angle of 51 '39'SA" an nee distance of 36.06 teat;
10. th=nee tangent to said Curve Nor tri 39']2'43" Wess 49.1b
feat to the beginning of a tong=nt 320.00 Soot radius
curve concave Northeaaterlyr
]] an9l ea of r22'SBtSb°yanlarc di Lance of}1Z6 36 feetrtc
the TAUS PDINT OF BEGI NITS NG of tY.e herein deacrabee
Parcel "A"r
thence lee wing said curve a3ong a noncangent ]ins north 9Q']~:'
nest 39.05 leas; thence North__OD'15'26~ast 395.13_fee ~ thence
TLorch, 08'96'54".-Nast 59~.28_fee t; th=nee Nerch SD'S2_22~w est
,221.57 feet/ thence North ~34'33_06':~eat_139.Q9 fees: thence
North 72~'44'S 7" Easc j5,ZY41esA; cnanca Louth 56_Q@:511^ East
283.08 fete; sh=nee South 74,5619=Eeas }Q},.b2fe.at3o o point
od~eDe arc of a nontangant 900.00 lose radi ur curve concave
NoIt T.~.'eaterly. a Tsdial line to sold point bears Soutr,l3 '.55'52"
Easc; thanee Seus h~-esterly along said curve through a centre]
anole of ]]'J]'3A" an arc die ranee of 183.05 !ctrl thence a]onc a
n ontangen~ line South 47'5 2_32_West ~29J.90 fetes thence North
$0~q}2„56"~ WesN ~Y A.98 _`e et io the TRUE Po7 NT OF B[Gi NY.ING.
Vase 1 of 4
Cor.teaning 3.376 acres
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10-28
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PARCEL •s'
A 3D-DO font Easement for ingrea s, egtee s, public imprn vemants
and public utilities over a pnrtf nn of Quarter Seeiinns 174, 173,
and 1B0 of the abn ve des crtbed Rancho , said eaaefient lying 15.00
tee[ nn eitheY side meaeared at right angles to the fnllnvinq
described coneerline~
g eginning at ehe beginning nF course nn. 2 in parcel "A" above
thence retracing enursesT through 71 in parcel "A" to the TAUS
POINT OF HEGI NNIN6 of parcel `A" above being the terminus of the
herein described een[erlln e, the atdel Snea of said 30.OD font
ea aemar,t to be lengthened nr shot caned sn as Ln terminate fn the
5a st erly boundary of Record nt 5urvey Nn. 9D39 ,ht the point of
beginning and in the boundary of pa rte] "A" abnve at the point nF
terms ova.
Page 2 of 4
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10-29
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EXHIBIT "A"
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PAItCII. 'C'
A 30.00 font Easrment Cnr ingress, egress, public imprn vementa
and public utilities nv er pnrtl one of puarter Sectinn• 172 and
173 of Aenchn De Ia Nxclnn Sn thr City of Chula Vista, Cnvnty of
San Diego. State of Ca]Sfnrn3a ea eh nun nn Aaenrd of Survey Nn.
9039 nn file in the Offl ce nC the Aerorder nC sots County, snid
ea¢emeNt being 90.00 feet in width. 15 00 fret nn either aide ~+~
meeeured at right an93 ea to the Following deecribed eenterllne, 75~~
Beginning at the Gnutheaet corner of 4uarter Sec[inn I73 e¢ slrnwn
nn ~a aid Fecnrd of Survey Nn. 9039 then<e 6nwth 72'33'27" West
20.00 Feet to the sres ter3y line of the San Diego and Ariz nna
Eest ern Railroad right-nf-way as ahnwm nn avid Aacnrd of 6urvey, i
soid point being the TRUF 'PDI NT OF BEGINN7 NGr thence continuing
South 72"13'27" West liD.00 fee[ to a point in the boundary of
sold Record of 6urvey Hn. 9039 and the point of to rfiinvs of tha
herein deaerib ed centerline.
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The etdelines M Said eas [meet to ba lengthened nr shortened 6n ~~
as en terminate nn the Neaterly line of [he rallznnd right-of-wey ~
ai the TRUE POINT OF HEGINN ING and the Easterly boundary of
Aacnrd of Survey Nn. 9039 at thr yni nt of terminu e.
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10-30
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• ]sQ~ EXHIfdf7 "A"
PT7tCII. •D'
A 36.DD fnne Easement fnz ingren s, egress, public imprn vemanta
and public utilities over portions of Dunrtar eecei nna 163, 162,
1J2 and 173 of Aanchn De Le Na ci nn in the City of Chula Vista,
County of San Di ag n, Ste to of Calt £nrnia as shown nn Aecnrd of
6urvey Nn. 9039 nn file in the Office of the Aaenrder of said
County, said easement being 30.OD feet Sn wld ih. 35.00 feet nn
either side measured at right englas to the fnltnwing deaeribad
centerliner
Deginhing at the Enuthfleat corner of OuBT[er 6netinn 173 as shown
nn nail Reenrd of Survey Nn. 9039r thence 6nuth 72'13'27" Neat
20.00 feet to the Westerly line of the San Diego and Ariznna
Eastern Aailrnad right-of-vay an shown nn said Aecnrd of Survey,
said point being the TAUE POINT OF HEGI NNINGf thence North
72.13'27" East 40,00 feet to a point nn the EaateTly right-nf-way
of said railroad and the point of terminus of the herein
described centerline,
The sidelines of said easement to be 7angthened nr shnrcened an
as to terminate nn the Westerly line of the rai lrnad right-nf-way
at the TRUE POINT OP eEG3NKING and the Easterly line of the
railroad right-of-wey at the point of terminus.
Page A of 4
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Exhibit "B"
Chula Vista Nature Center Permits and Contracts
State of California Coastal Conservancy
Grants/Funding Agreements:
Grant Agreement # 84-67
Grant Agreement # 84-83
Grant Agreement # 87-035
Grant Agreement # 95-012
Grant Agreement # OS-073
United States Fish and Wi]dlife Service
Easements
Grants/Funding Agreements
Agreement # 801817M292
Agreement # 8168067219
Agreement # 81680761060
Agreement # 81680761094
Agreement # 8 1 6 8 09703 1
San Diego Unified Port District
Grants/Fttnding Agreements
Agreement -Document 53847
Agreement -Document 53889
State of California - Department of Parks and Recreation
Grants/Fttnding Agreements
Project # GF-37-018; Contract # SO-13-016
Project # WC-37-001; Contract # C2009475
Project # UC-37-003; Contract # C2011022
Project # GF-37-084; Contract # C5028016
10-33
Exhibit - "C"
City "In Kind" Services
Maintenance of Facilities
City, through its Public Works Department, at its sole cost, shall provide maintenance
services and materials for CVNC facilities, infrastructure, built-in exhibits, and life support
equipment in order to keep such items in operating condition in a manner commensurate with
the provision of such services and materials to other City facilities, with a target of
maintaining the CVNC in accordance with industry standards for similar facilities or better
("Routine Maintenance"). City's obligations hereunder shall exclude the maintenance and
repair work required for removable exhibits, exhibit decorative exteriors, and exhibit
contents.
In addition to Routine Maintenance, City's obligations hereunder shall include the obligation
to repair or replace, as necessary, any failed infrastructure or life support equipment item
necessary for the full and lawful operation of the CVNC and the preservation and exhibit of
CVNC Wildlife ("Key Facility Repair or Replacement"). City commits to expending up to
$40,000 amlually in labor and materials toward Key Facility Repair or Replacement during
the term of the agreement, with any additional City finding subject to City approval in its
sole discretion. Operator shall be responsible for any Key Facility Repair or Replacement
work it decides is necessary above and beyond City's commitment hereunder.
With the exception of the Key Facility Repair or Replacement obligation, the above described
services and standards maybe subject to modification in the event City budget related issues
materially affect the standards upon which such services are delivered to City's other
facilities. Prior to implementing any such modifications in services, including any initial
modification of service required below the standard of services existing as of the Effective
Date, City agrees to provide Operator reasonable notice of such change and to reasonably
consider Operators input regarding same, with the shared objective of maintaining the highest
possible CVNC physical appearance, condition, and functionality.
Transit Services
City, through its contract with MTS, shall continue to provide bus transit services to Operator
for CVNC operations, in accordance with standards existing under the MTS contract as of the
Effective Date. City shall be responsible for the cost of fuel for the shuttle vehicles during the
term of the agreement, subject to the Maximum Payment t~mount. Operator shall be
responsible for any and all other costs associated with such service, either through direct
payment to the transit provider or reimbursement to the City.
10-34
IT Services
City, through its IT Department, at its sole cost, shall provide Operator support services for
CVNC telecommunications and computing systems (excluding telephone and data
transmission services provided by outside vendors or contractors) at the same level provided
other City facilities.
The above described services may be subject to modification in the event City budget related
issues materially affect the standards upon which such services are delivered to City's other
facilities. Prior to implementing any such modifications in services, inchiding any initial
modification of service required below the standard of services existing as of the Effective
Date, City agrees to provide Operator reasonable notice of such change and to reasonably
consider Operators input regarding same.
2
10-35
ARTICLE I. GRANT OF LICENSE
1.1. Grant of License for Nature Center Operations. As of the Effective Date, and subject
to the various terms and conditions of this Agreement, City hereby grants to Operator the
exclusive license to operate the CVNC (the "CVNC License"). Except as otherwise
expressly provided herein and/or to the extent necessary for City to perform and satisfy its
obligations under this Agreement, the CVNC License shall include exclusive access to,
possession of, and control over the following CVNC assets and programs:
a. Land and Improvements. Operator shall have exclusive access to and control over the
Nature Center Land and improvements thereon used in the operation of the CVNC
(collectively, the "CVNC Land and Improvements"). A description of the CVNC
Land and Improvements is attached hereto as Exhibit A. Operator's use and control
of the CVNC Land and Improvements shall be subject to any and all (1) City reserved
rights expressly provided for in this Agreement; and (2) leases, easements, liens,
restrictions and requirements existing with respect thereto as of the Effective Date
(collectively, the "CVNC Requirements").
b. Permits and Contracts. Operator shall have City's beneficial rights under any and all
permits, agreements, grants, licenses, easements, and/or contracts related to the
operation of the CVNC (the "CVNC Permit and Contracts"). To the best of their
knowledge, City represents and warrants to Operator that (1) the CVNC Permits and
Contracts are assignable, (2) the list of CVNC Permits and Contracts attached hereto
as Exhibit B is complete and accurate in all respects, and (3}City has obtained any
and all approvals from the applicable governing authorities or contracting parties that
are necessary or appropriate to allow Operator's use thereof.
c. Management of Dav to Dav Operations. Except as otherwise specifically provided
herein, Operator shall have exclusive authority and control over the day to day
operations of the CVNC including, without limitation, the following matters: (1)
Hours of Operation; (2) Staffing Levels: (3) Hiring and firing of employees; (4)
Marketing; (5) Admissions Rates and Policies; (6) Fundraising; (7) Educational
Programs; (8) Facility Maintenance; (9) Gift Store Operations; (10) Third-party use of
CVNC facilities; (11) Food Service; (12} Concessions; (13) Third-party contracts for
supplies or services; (14) Presentation, standards of care and disposition of CVNC
Wildlife; (15) Arrangement, Modification and Construction of Exhibits; and (16)
modification of CVNC Permits and Contracts.
i Marketing An and all marketing and advertising activities for the Living Coast --- -~-- Formatted: Indent: Left: 0.56°
Discoverv Center shall contain an addition to the logo as either a `Logo
Descri tor" or "Tagline "with the words "m Chula Vista" or "of Chula Vista".
d. City Assignment of Use Rights to CVNC Land and Improvements. To the extent
necessary or appropriate for the operation of the CVNC by Operator, City hereby
assigns to Operator respective rights to (1) use of the CVNC Land and Improvements,
(2} the CVNC Permits and Contracts, and (3) the CVNC Wildlife (collectively, the