HomeMy WebLinkAbout2013/06/11 Item 14CITY COUNCIL
AGENDA STATEMENT
t'#d*x *.
~ ,~;~~ Alm CITY OF
CHULA VISTA
JUNE 11, 2013, ITEM 14
ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING A FIRST AMENDMENT TO
THE OPERATING AGREEMENT BETWEEN THE CITY
AND THE LIVING COAST DISCOVERY CENTER
SUBMITTED BY: ASSISTANT DIRECTOR OF RECREATION ~'~
REVIEWED BY: DEPUTY CITY MAN E .~-~
CITY MANAGE
4/STHS VOTE: YES ~ NO
SUMMARY
On July 17, 2012, the Chula Vista City Council (City) and the Chula Vista Redevelopment
Agency (Agency) entered into a formal Operating Agreement with the Living Coast
Discovery Center (Center) formerly Chula Vista Nature Center which set forth the terms
and conditions under which the Centex would operate and manage the Living Coast
Discovery Center for twelve (12) months. As that term is expiring June 30, 2013, the City
and Operator would like to enter into a first amendment to the current Operating Agreement
for a period of one (1) year, ending June 30, 2014. This resolution approves a First
Amendment to the Operating Agreement and continues to provide financial support which
is included in the City's FY 2013-14 budget.
ENVIRONMENTAL REVIEW -The Environmental Review Coordinator has reviewed
the proposed activity fox 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 T 5060(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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JUNE 11, 2013, Item 14
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BOARDS/COMMISSION RECOMMENDATION
Not Applicable
DISCUSSION
On February 6, 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, 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.
On July 17, 2012, the Chula Vista City Council (City) and the Chula Vista Redevelopment
Agency (Agency) entered into a formal Operating Agreement with the Living Coast
Discovery Center (Center) formerly Chula Vista Nature Center which set forth the terms
and conditions under which the Center would operate and manage the Living Coast
Discovery Center for twelve (12) months. A copy of the original Operating Agreement
between the City and the Living Coast Discovery Center (Attachment "A") is attached.
In the 2012 Operating Agreement, Section 3.2 permits the Parties to extend the 2012
Operating Agreement by mutual written agreement. The proposed First Amendment to the
Operating Agreement (Attachment "B") is attached with a one (1) year term extension with
an expiration date of June 30, 2014. The proposed First Amendment to the agreement
extends the original agreement to an additional one (1) year term, continues the commitment
that was agreed upon by the City and the Living Coast Discovery Center of the original
agreement and the City's financial support of expenditures.
The Living Coast Discovery Center had submitted a request to the City for an additional
three year extension, with no changes to the current agreement. The Living Coast Discovery
Center has continued to experience financial challenges, thus it was agreed upon to move
forward at this time with a recommendation to the City Council for a one yeaz extension to
the 2012 operating agreement between the City and Living Coast Discovery Center with the
terms of funding to remain the same.
In the meantime a team effort is focused on the Strategic Plan for an Optimal Business
Delivery Model for the Living Coast Center; Carl Nettleton, President of Nettleton
Strategies, LLC, is the facilitator of the strategic planning process, working with J. Scofield
Hage Sustainability Task Force Chair, Task Force Members, Living Coast Discovery Center
Board and staff, Port of San Diego and Chula Vista staff. The need and goal is aimed for
the Living Coast Discovery Center to be sustainable verses in survival mode.
DECISION MAKER CONFLICTS
No Property within 500 feet
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JiJNE 11, 2013, Item 14
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
There is no fiscal impact in the current fiscal year as the proposed contract extension
begins on July 1.
The proposed budget for fiscal year 2013-14 includes $75,570 for costs related to the
utilities and shuttle bus expenditures at the Living Coast Discovery Center. In addition to
the specified utilities, the City has an ongoing annual commitment of $164,000 toward
debt service. 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 specifies 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 first amendment to the agreement.
ATTACHMENTS
"A" -Operating Agreement between the City and the Living Coast Discovery Center
"B" -First Amendment to the Operating Agreement
Prepared by Kristi McClure, Assistant Director of Recreation
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f~~lztchn-lerrE A-
OPERATING AGR););1VIENT
This OPERATING AGREEMENT ("Agreement"),dsted 7/7 , 2012 and
effective as of 7nly 1, 2012 ("Effective Date"), is by and between the CITY OF CI-IULA
VISTA, a chartered tmmicipal corporation ("City"), and LIVING COAST DISCOVERY
CENTER, a Califorrrianon-profit corporation ("Operator'. Individually, the City and
Operator may be refereed to hereur as "Party" and collectively as "Pasties". This Agreement is
made with reference to the following facts:
RECITALS
A: The Chula Vista Nature Center ("CVNC'~ is a world-class zoological instihitou and
attraction with hands-on exlriUits 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 ("Name Center Land") on Gunpowder Pohrt within the Sweetwater Marsh
Nafioual Wildlife Refuge on laud owned by the U.S. Fish and Wildlife Service
("USFWS").
B. The CVNC was opened to the public in July of 1987. Irritially, 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 ulthuately assmued direct conhol of the CVNC, and in 2002 the
City created an official Nahue Center department to manage CVNC operations.
C. The Operator was initially formed as The Environmeirtal Legacy Fund, a California non
profit corporation qualified as a tax exempt public charity for purposes of assisting with
fimdraising 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 Cerrter.
D. Notwithstanding each party's good faith efforts to make the CVNC rnoie self-sustaining;
in each year of its operations the CVNC required a significant financial contribution from
City's general fiord. 1n fiscal year 2007/2008, for example, City and Agency together
fimded approximately $750,000 of the $1,000,000 CVNC budget for that year.
E. hr November 2008, facurg its. own budget shortfall, City deterrnined that it could no
longer continue to firlly fiord the CVNC amoral operating deficit: Iu response to this
crisis, Mayor Cox commissioned a CVNC Task Force ("Task Force") comprised of City
staff, Directors of the Operator, members and ofFcers of the South County Econoluic
Development Corporation and other CVNC stakeholders. The Task Force was charged
with exploring alternative approaches to CVNC ownership arrd 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
C $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 enltance 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 fimdraising.
G. On Apri128, 2009, the City Council authorized City staff to pursue apublic-private
par•htersliip and operating Agreement with the Operator for the operation and
management of the CVNC, along with riro conceptual fimding plans as a basis for
negotiations.
H. On June 1, 2009, City and Operator entered urto a Letter of Intent that conunitted the
parties to meet and confer to develop terms for the transtiar 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 conriibufion of
$75,000 towards CVNC transition period operations; (2) the pooling of Operator's
contribution and donated amotuits into an "Operating and Development Reserve"
account; (3) City operations over a six month "Transition Period" ut accordance frith a
mutually approved budget and business plan; (4) a Transition Period fimdu~g 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 artd eonferperiod under the Letter Agreement for a period of 90 days.
K. After a series of meetings and negotiations, the Parties 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 Agenc}~ to
Operator of a license to manage and conhol CVNC operations; and a formal Operating
Agreement was entered into on or about February 6, 2010. '~
L. On or about November 23, 2010, the Parties agreed to amend. the Operating Agreement in
order to extend the term until Jtute 30, 2012. As that term has now exphed, the City and
Operator would like to enter into a new Operating Agreement for a period of one (1)
year, eudutg June 30, 2013.
NOW, TFII+;R)1T0~, iu consideration of the above Recitals, the mutual covenants
contained herein and for dtlter good and valuable consideration, the receipt attd sufficiency of
which the Parties hereby acknowledge, the Parties hereby agree as follows;
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ARTICLE L GRANT OF LICENSE.
~__
1.1. Grunt of License for Nahu•e 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 conhol over the following CVNC assets and programs:
a. Land and Improvements. Operator shall have exclusive access to and conh`ol over the
Nature Center Land and improvements thereon used in the operation of the CVNC
(collectively, the "CVNC Laud and hnprovements"), A description of the CVNC
Land and hnprovements is attached hereto as Exhibit A. Operator's use and control
of the CVNC Land and Improvements shall be subject to any acrd 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 fights under any and all
permits, agreements, grants, licenses, easements, and/or contracts related to the
operation of the CVNC (the "CVNC Pernut acrd 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 puties that
ue necessary or appropriate to allow Operator's use thereof.
c. Management of Dav to_Da~perations. Exeept as otherwise specifically provided
herehr, Operator shall have exchrsive authority and control over the day to day
operations of the CVNC including, without limitation, the followhtg matters: (1)
Hours of Operation; (2) Staffing Levels: (3) Airing and firing of employees; (4)
Markethtg; (5) Admissions Rates and Policies; (6) Fundraising; (7) Educational
Programs; (S) Facility Maintenance; (9) Gift Store Operations; (10) Third-parry use of
CVNC facilities; (1 I) 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 Pernuts and Contracts.
i. Marketing. Any and all marketing and advertising activities for the Living Coast
Discovery Center shall contain an addition to the logo, as either a "Logo '
Descriptor" or "Tagline," with the words "at Chula Vista".
d. City Assienment of Use Rights to CVNC Land and hnnrovernents. To the extent
necessary or appropriate for the operation of the CVNC by Operator, City hereby
assigus fo Operator respective rights to (1) use of the CVNC Land and Improvements,
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(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 may be, 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 beriveen the patties, total
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 ot~merslrip of such fauna has been previously transferred to
the Operator, ptusuant to the February 6, 2010 Agreement) located at the CVATC as of the
Effective Date ("CVNC Wildlife"): such possession and confrol shall include, withouk
luuitation, the exclusive right and authority to sell, transfer, trade, loan or otherwise
dispose of the CVNC Wildlife ut 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 eutltarrized for reasons other than terminal illness or injury, the Operator shall
irrfornt 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. Fmtds for such disposition and transfer for care
to other agency shall be drawn from the Contingency Fund identified ur Article VI,
Section 4.3.
2.2 Fixtures, Furnishings, ];gniPmeut and Supplies. Operator shall have exclusive
possession and control over all fixtures, fiirrtishings, inventory, office and maintenance
equipment and supplies ("CVNC FF&E") that were transferred fiom the City to the
Operator pursuant to the February 6, 2010 Operating Agreement beriveen the City and the
Nature Center Foundation.
ARTICLE III. TERM OF AGREEMENT
3.1 Terrn. The initial term of this Agreement ("htitial Perm") shall oonuiience on the
Effective Date and shall expire on Jtme 30, 2013 ("Expiration Date"), artless earlier
terutinated pursuant to ARTICLE X, herein.
3.2 Extension of Ternt. The Initial Term may be extended by nnrloal written agreement of the
Parties.
ARTICLE IV. FUNDING AND USE OF REVENUE
4.1 CVNC Revenues. Any and all revenues generated tluongh CVNC operations and/or
fundraising ("CVNC Revenue)" dining the Term shall be retained by Operator acid solely
applied to CVNC operational costs and/or development.
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4.2 Operator Management and Funding. Daring the Initial Tertn or any extension thereof,
the Operator shall manage aril finance all of the CVNC operations in a mariner consistent
with and that filly 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
under this Agreement, the Operator shall be responsible for finding any operational deficit
out of its own fiords.
4.3 Operator's Special Reserve for Disposition of Tanta. Operator shall establish and
maintain a special contingency reserve account in the flmonnt of $10,000. This account
shall he dedicated exclusively towards funding any and all activities Operator deems
necessary for the transfer, or other appropriate disposition, of the CVNC farina to the
extent such disposition becomes necessary pursuant to the terms of Article X hereof.
Operator shall not vt2thctraw fiords fiotn the contingency reserve accotuit for any purpose
other titan that identified above and shall obtant prior written consent from the City to
withdraw such finds.
4.~1 Joint Fanchaising Efforts. The Parties agree to exercise their combined best efforts to
solicit and secure additional finding to support CVNC operations and development.
Fmrdraising efforts shall be coordutatecl tluough Operator's Director of Development
pursuant to Operator's approved fimclraising plants and policies.
ARTICLE V. ADDITIONAL OPERATOR COVENANTS
5.1 Use Covenant. During the htitial Term and .any mutually agreed upon extension thereof,
Operator covenants attd 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 eutphasize the importance of nahtral coastal ntatsh resources
and their delicate ecosystem balance. To the extent practical, and to the extent consistent
with both the CVNC Requirements aril 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 maybe updated fi•om time to tithe
(collectively, the "Nahue Center Use"). Without City's prior ~~n•itten 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 Nahue Center
Use incompliance with any and all applicable federal, state and local laws turd 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 Ouatet•ship Structure. Doting the
hiitial Term of this Agreement (and thereafter if extended), unless othertvise 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 puusuant to Internal Revenue .Code Section
501(c)(3) and California Revenue and Taxation Code Section 23701 d. 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 Board is comprised of
sixteen (16) Directors or more; provided however, City agiees not to exercise its
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appointment right(s) heretutder in any manner that triggers application of the Ralph M.
Brown Act to Operator's Board meetings.
5.3 City Access for Special l;vents. Operator shall grant City flee access to and use of
CVNC facilities for up to sixteen (16) separate events (including meethtgs) per calendar
year. Cite 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 standard facility
charges for City events covered by tlils Section, but reserves the right to charge for any
special services provided or costs incurred (for example, staff overtime or charges for
extended bus service hours).
5.4 Achnissions. Operator shall provide City a~th fifty (50) admission passes per year for use
by City in any marmer consistent with City policies and law.
ARTICLE VI. 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 Contacts.
a. City's Faihue to Obtain Approval 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 Ue 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-I{utd" Services and Supplies. City agrees to provide certain "in-kind" services
and supplies to Operator" to assist with CVNC operations dining the Initial Tenn either at
no cost or at an agreed upon rate of rehnbursement. A list of such sernices and supplies;
coresponding reimbursement rate(s), if any; standards of performance; and schedules for
delivery, is attached hereto as )I;xhihit C. Additional "in kind" services not listed may be
provided by City ou terms to be negotiated.
6.3 Compliance with Permits and Contracts. City shall take no action with respect to the
CVNC Permits acrd Contracts that would cause any violation thereof or default theretutder,
or that would cause the CVNC to lose its accreditation with the American Association of
Museums. City shall immediately notify Operator in wilting of any notice of violation or
default wider any CVNC permit or contract; with sufficient notice to allow Operator to
take the necessu~y steps to ctne 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
maintetk'rnce (the "Deferred Maintenance Work"). The Deferred Maintenance Work shall
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be implemented by the City in accordance with industry standards and shall be subject to
Operator's prior reasonable approval and acceptance.
6.5 Payment of Debt Service on CVNC Improvements. City shall continue to pay debt
service to Baiilc of New York to finance aznomtts loaned to City for construction of certain
of the CVNC huprovernents, and shall strictly comply with any and all covenants and
agreements entered into in cotmection therewith.
fi.5 Payment of Utilities and Shutfle Bus Fuel. Upon receipt of utility bills for electric,
water, and telephone, City shall remit payment for such utilities duectly to the utility
operator in the amount of the invoice for the utility sen~ices used for the operation and
maintenance of the CVNC during the term of this Agreement. In addition, City shall pay
for Shuttle Bus fiiel costs describedui Exhibit C. Operator shall be responsible for all
other utility costs, including propane gas and wastewater removal.
a. Maximum Amount City's commihnent to pay Utilities and Shuttle Bus fitel costs
shall not exceed $75,570. ("Maximmm Payment Amount"). Any costslexpenses hi
excess of this Maximum Payment ?,mount shall be the obligation of Operator.
ARTICLE VII: INSURANCE
7.1 Insurance. Operator's Qbligatiou. Prior to the execution oftlus Agreement, Operator
shall (i) obtain, and upon the City's request provide to the City, insurance certificates
reflectntg evidence of all insurance required in Section 7.1(a); (ii) obtain City approval of
each company or companies; turd (iii) confmu that all policies contain the specific
provisions required by section 7.3(c).
a. Tyoes ofof I~ nsurance. At all times during the term of this Agreement, Operator shall
maintahi insurance coverage as follows:
Conunercial General Liability. Operator shall provide at its expense a policy or
policies of Commercial General LiaUility [CGL] hnsurance written on an ISO
Occurrence form CG 00 Ol 07 9S or an equivalent form providing coverage at
least as broad and wluch shall cover liability including, personal injury and
advertising injury, bodily injury, property damage, and liability asstuned under ati
insured's contract (including the tort liability of another assumed iu a business
contract). There shall be no endorsement or modification of the CGL Insurance
limiting the scope of coverage for either "insured vs. insured" clahns or conhactual
liability. Operator shall maintain the same or equivalent CGL Insurance as
described herein for at least ten (10) years following terntination of this
Agreement. All costs of defense shall be outside the policy linuts. The Policy shall
provide for coverage in amounts not less than tluee million dollars ($3,000,000)
general aggregate Bruit, one million ($1,000,000) per occurrence for Bodily hyury,
Personal Injury, or Property Damage, and five hundred thousand ($500,000)
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sublimit for "Damage to Rented Premises," one million ($1,000,000) of liquor
C liability coverage, and a $5 million excess liability polic};
ii. Conunercial Automobile Liability. For all of Operator's automobiles used in
conjunction with the Project including okmed, hired and non-owned automobiles,
Operator shall keep in full force and effect, a policy or policies of Conunercial
Automobile Liability Iusmttnce written on an ISO form CA 00 Ol 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 uiied
automobiles ["Arty Auto"]. All costs of defense shall be outside the policy.
iii. Excess Liability. Operator shall provide Excess Liability Insutance affording tln•ee
million dollars ($3,000,000), or airy 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 prunary policies. The coverage will be
subject to the same terms, conditions, and exclusions found in the prunary 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 acid 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 dollars ($1,000,000) for Bodily
Lrjury by Disease each employee, and a one million dollars ($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 3200 of the Labor Code which
requires every employer to Ue instued against liability for worker's
compensation or to undertake self-insurance, in accordance with the provisions
of that code, and I will comply Svith such provisions before conunencing the
performance of the work of the Contract."
b. Ratuie 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 Ueen given at least an "A" ar "A--" and "V" rating by
AM BEST, that aze authorized by the California Insurance Conunissioner to do
business in the State of California, and that have been approved by the City.
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i. Non-Admitted Carders. The City will accept insurance provided by non-admitted,
"surplus lines" cm1•iers only if the carrier is authorized to do business hi the State
of California and is included on the List of Eligible SLU•plus Lines Insurers [LESLI
list] with a current AM BEST rating of no less than A:X. .
o. Endorsements Regnired. Each policy regiured under Section 7.3 of tlus Agt~eement
shall expressly provide, and an endorsement shall Ue submitted to the Citiy, that:
i. Additional Insureds: Except as to Workers Compensation, the Citiy acid. ifs
respective elected officials, officers, employees, agents, and representatives shall
be named as additional insureds.
ii. Primary and Non-Conhibutoiy. The policies are prhnuy and non-conhibuting to
any insurance or self-insurance that may Ue carried Uy 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 u~aiutaiued by the City of Chula Vista and its elected
officials, officers, employees, agents, and representatives shall be in excess of
Operator's insurance uul shall not conhibute to it.
iii. Wai~~er 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
he 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 Ue submitted to the City, except for non-payment of
premium, in ~vluch 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 fiom all certificates.
d. Additional Insurance: Operator niay obtain additional insurance not required by this
Agreement.
e. Deductibles/Se1P his~ued Retentions. All deductibles and self-hisurance retentions on
any policy shall be the responsibility of Operator. Deductibles and self-insurance
retentions shall be disclosed to and approved bg 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-irrsiued retentions as respects the City, its officers,
officials, employees and volunteers; or the Operator shall provide a financial guarantee
satisfactory to the City guaranteeing payment of losses and related investigations,
claim administration and defense expenses.
14-12
£ Policy Chances. Operator shall not modify any policy or endorsement thereto which
~- increases the City's exposure to loss for the dtu•ation of this Agreement:
g. Reservation of Ri lg tts. 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 Limitafion of Other Oblications. Insurance provisions ender this section shall
not be consttved to limit the Operator's obligations under this Agreement, including
Indettutity.
i. material Breach. Failure to maintain, renew, or provide evidence of renewal during
the terrti 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-insiued and will provide evidence to the extent requested by
t}te Operatoz.
ARTICLE VIlI. INDEMNITY
S.1 Indentnitp Defense and Hold Ilarmless. Operator shall defend, indemnify, protect atul
hold harmless the City its elected and appointed officers, employees, volunteers, and
agents (collectively "Indetnnifred Parties"), from and against any and all claims, demands,
causes of action, costs, expenses, liability, loss, damage or injtiiy, iu law or equity, to
property or persons, including wrongful. death, in any matmer arising out of or incident to
any alleged acts, omissions, negligence, or willfitl misconduct of Operator, its officials,
officers, employees, agents, and contractors, arising out of or in cortuection with the
operation of CVNC. This indemnity provision sloes not include any claims, damages,
liability, costs and expenses (including without lhmitations, attorneys fees) arising from the
sole negligence or sole willfid miswnduct of one or more of the Irtdenmified Parties. Atso
covered is liability arising fiotit, contested with, caused by or claimed to be caused by the
active or passive negligent acts or omissions of the Htdenutified Parties, which maybe in
combhtation with the active or passive negligent acts or anissions of the Operator, its
employees, agents or officers, or any third patty.
8.2 Costs of Defense and Award. Included iu 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 scuts,
actions or other legal proceedings of every kind that may be Drought or instituted against
the Indemnified Parties. Operator shall pay and satisfy any judgment, award or decree
that maybe rendered against. the Indenmified Parties, for any and all legal expense and
cost incurred by each of them in cotmection therewith.
8.3 Insurance Proceeds. Operator's obligation to indemnify shall not be restricted to
insurance proceeds, if any, received by the fiideninified Parties.
]0
14-13
8.4 Enforcement Costs. Operator. agrees to pay any and all costs Indenmified Parties inctu•
enforcing the indemnity and defense ptrovisions set forth in this Article. VIII.
8.5 City's Indemnity Obligation, City shall have reciprocal abligations to defend, indemnify
and hold Operator, its officers, employees, and agentsltarutless as those obligations of the
Operator to defend, indemnify and hold City harmless defined in Sections 8.1 tlu~ough 5.4.
8.6 Sut•t~val. A Patty's obligations under this Article VIII shall snzvive the tenttinatiou of
this Agreement.
ARTICLE IX. REPORTING
9.1 Periodic Reports and Meetings. Operator shall provride City with quarterly periodic
fintutcial reports and shall meet and confer with City staff from tune to time to review
operational issues not specifically addressed by this Agreement: Irrthe event that
Operator anticipates an operating deficit that may affect the continued operation of the
CVNC, Operator shall inuuediately an~ange to meet and confer with fire City to determine
how such deficits Wray 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 patty has provided the defaulting parry Fvith written notification of such
determination, and the defaulting party has refiised to clue the default withht thhty (30)
days of such notice. If the default is such that fife care will require longer than 30 clays,
fire time for cure will be extended for the period of time reasonably necessary to complete
fire required work, provided, however, the defaulting patty must promptly Uegin the
required clue and diligently prosecutes same to completion:
10.2 Nntnral Termination of this Agreement. In the event that either party elects not to
extend this Agreeiiient past the hritial Tenn, upon thirty (30) days written notice frozn
City, Operator, at its sole cost, shall take all necessary and appropriate steps necessary to
transfer CVNC fauna to another qualified instihitiou for continued care and maintenance.
CVNC fauna that Operator determines cannot reasonably be trutsferred shall be otherwise
disposed of as Operator deems appropriate and iu a manner that is consistent with industry
standards, provided, however, ui no event shall Operator euthattize any animals, unless
and tuttil 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 trutsferred from the City to Operator ptusuant to the February 6, 2010 Operating
Agreement shall be transferred back to the City.
10.3 Hijnnctive Relief. Tf the Operator commits a breach or actions that. suggest au
anticipatory breach of any of the covenants contained in this Agreement, and sitclt
occuneuce or actions remain uncotiected for a period of thirty (30) days or more
11
14-14
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 thereinto which these covenants relate, may instihrte and prosecute any
proceedings at law or in equity to abate, prevent or enjoin any such violation or attempted
violation or to compel specific perfomtance 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 an}'
sinular breach or violation hereof at any later time.
a. Additional Time for Cure. Iit tlje event that the breach camtot be cured within the 30
day timeframe identified above, Operator shall inunediately notify City in writing of
its inability to cure, desccibittg the reason for the inability to true, and provide a date
by which the cure shall Ue accomplished. If the City deems such explanation of the
delay reasonable, it shall provide Operator t~+ith additional time to cure such breach
and a secon8 notice with the date by which the cure shall be accomplished.
10.4 Additional Remedies. In addition to the terutination rights contained in Sections 10.1,
10.2, and 10.3 hereof, City and Operator shall each have any other remedies available at
law, equit}+, or outer proper proceedings.
ARTICLE XI. NOTICE
11.1 Notices. Unless otherwise specifically permitted by this Agreement, all notices or other
cornmm~ications iequhed or permitted tinder this Agreement shall Ue 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, tavo (2) business days after
the date placed in the United States mail, (c) if mailed other that iu 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
durhrg business hours when delivered tau be confirmed, when delivered. Notices shall Ue
given at the follot~+ing addresses:
If to City: The City of Chula Vista
Attn: City Manager
276 Fourth Avenue
Chula Vista, GA 91910
Fax: (619) 409-5884
With a copy to: City Attorney [same address]
12
14-15
If to OPERATOR: Livhrg Coast Discovery Center
=- Attn: Executive Director
1000 Gttupowder Point Drive
Clrttla Vista, CA 91910-1201
Fax: (619)409-5910
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 azticle headings are for convenience Drily and shall not affect the
interpretation of this Agreement.
12.2 Gender & Nuuiber. Wlienever 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 iti this Agreement to a section refers, miles
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 :ind Conditions. All provisions of this Agreement expressed as either
covenants or conditions on the hart of the City or the Operator, shall Ue deemed to be both
covenants anti conditions.
12.6Integrafion. Tlus Agreement azrd the EaIribits and ieference§ incorporated into this
Agreement fiilly express all understandings of the Pazlies concerning the matters covered
in this Agreement. No chazige, alteration, or modification of the terms or conditions of this
Agreement, and no verbal understanding of the Puties, 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 azi amendment to this Agreement agreed to by both Pazties. All prior
negotiations and agreements are merged into this Agreement.
12.7 Sevelatrlity. 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 perriritted by law if enforcement wotild not
frustrate the overall intent oftlre parties (as such intent is matrifested by all provisions of
the Agreement, incfidiug such invalid, void or otherwise unenforceable portion).
13
14-16
_ 12.8 Drafting Ambiguities. The Parties agree that they are aware that they have the right to be
C 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 Part}~ participated in the drafthtg of the Agreement.
12.9 Conflicts Behveeu Tcrnts. If an apparent 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 behveen art applicable federal, state, or local law, rule,
regulation, order, or code and this Agreement, the law, Wile, 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 are not deemed conflicts, and the
most stringent requirement shall control. Each Party shall notify the other iuunediately
upon the identification of any apparent conflict or inconsistency concerning this
Agreement.
12.10 Proutpt Perfm•mance. 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 Farther Assnrauces. City-and Operator each agree to execute and deliver such
additional docnmehts as may be regLtired to effecfiate the pwposes of this Agreement.
12.13 Exhibits. Each of the following Exhibits is attached hereto and incorporated herein by
this reference:
Exhibit A - CVNC Laud and Improvements
Exhibit B - CVNC Perutits and Contracts
Exhibit GCity"In-Kind" Services
12.14 Conflict of Interest.
a. No member, official or employee of City or Operator shall have vry 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 lus or
her personal interests, those of his/her hmnediate family, or the interests of any
corporation, partnership or association in ~vltich be or she is, directly or indirectly,
interested.
b. Operator wan~ants that it has not paid or given, and will not pay or give, airy third
person airy money or other consideration for obfaining this Agreement.
14
14-17
12.15 Non-liability of City Officials and Eruployees. I~ro member, official or employee of
City shall be personally liable to Operator or any successor irr 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.
12.16 Compliance with La~v. City and Operator agrees to comply with all #lie requirements
now in force, or wluch may hereafter be at force, of all mruucipal, cormty, state and
federal authorities, pertaining to the ownership and operation of the CVNC all
hnprovements constructed thereon and all operations conducted thereon.
12.17 Jurisdiction and Venue. The venue for any suit or proceeding concenung this
Agreement, the interpretation or application of azry of its terms, or any related disputes
shall be in the County of San Diego, State of Califonria.
12.15 Municipal Powers. Nothing contained in this Agreement shall be conshued as a
linutation upon the powers of the City as a chartered city of the State of California.
12.19 Attorneys' Fees. Should. any litigation (including any proceedurgs in a barrkruptcy) or
arbitration be conuuenced between the pubes hereto or then representatives concerning
any provision of this Agreement or the rights and duties of any person or entity
hereunder, the party or parties prevailing in such litigation or arbihation shall be
entitled, in addition to such other relief as may Ue granted, to the attorneys' fees and
court or arbitration costs incurred by reason of such litigation or azbihatiorr, including
attorneys' fees and experts' fees incrured in preparation for or investigation of any
matter relating to such litigation or arbitration.
12.20 Admiuish•ative Clairns. Regrrir•emenfs and Procedures. No suitor arbihation shall be
brought arising out of this agreement, against the Citg unless a claun has first been
presented in writhrg and filed with the City and acted upon by the City in accordance
with the procedures set forth in Chapter 1.34 of the Clnrla Vista Municipal Code, as
same may from time to time be amended, the provisions of which are incorporated by
-this reference as if fidly set forth. herein, and such policies and procedures used by the
City iu 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
othertivise expressly provided herein.
12.22 Successors in Interest. This Agreement and all rights and obligations created by this
Agreement shall be iu 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 arty Party's successor in interest.
15
14-18
12.23 No Partnership. Nothing contained in this Agreement shall be deemed or construed to
create a partnership, joint venhue or any other sinular relationship between the parties
hereto or cattle City to be responsible in any way for the debts or obligations of Operator
or any other person.
12.24 Approval. Except as otherwise expt-essly 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 urri-easortably withheld.
12.25 Assignments.
a. City Annroval Re hired. The qualifications and identity of the Operator are of
particular concern to GitS~. Operator recognizes that it is because of snch
qualifications and identity that City is entering htto this Agreement with Operator.
Therefore, uo voluntary or involuntary successor in interest of Operator shall acquire
arty rights or powers tinder 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, witlront the prior written approval of City, assignor otherwise
hansfer its interest in this Agreement and its rights and powers tinder this Agreement
(a "Permitted Transfer") to any holding company, corporation, association or entity
which is or becomes a parent, subsidiary or affiliate of Operatorptrovidedtpat
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 Hurst consider and adopt the appropriate resolution. Said
resolution Hoist contain the findings required by law. City agrees to use due diligence in
processing the matter to hearing before the City Council.
12.27 No V4'aiver. No failure of either Party to hrsist 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, terns, or condition of this
Ab eemeut, shall constitute a waiver of any snch breach of such covenant, term or
condition. No waiver of any breach shall affect or alterthis Agreement; and each and
every covenant, condition, and term hereof shall continue in fill 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 firll authority to do so and to bind such parties to perform pursuant to
the terms and conditions of this Agreement. Concnrtently with Operator's submission
l6
14-19
of this Agreement to the City for execution, Operator «~ill suUniit to City a copy of
documents evidencing the due formation and nahu~e of Operator cued the signatory's
authority to sign on behalf of Operator.
12.29 Counterparts. This Agreement maybe signed in multiple counterparts with the same
force and effect as if all original signahues appeared on one copy; and in the event this
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
14-20
SIGNATURE PAGE
TO MEMORANDUM OT UNDERSTANllING
~ [CIIULA 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, ayor
Attest:
DoruraNoiris, ityClerk
OPERATOR:
LIVING COAST DISCOVEpERY CENTER
By. L C LC"i~S/
~+.tSAr~/ ~ccGfez
Susan Fuller, Chairman
Brian 7oseph, Executive Director
18
14-21
_ ~ r.XnI3I? ".A"
- ii
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r.,wRDN;GaIrd~rm Gr: 1633 $~•2E750~
_ REDEVELGHiENi A6EHCY OF T}IE CITY OF CHULA VISTA ~ gCCORDfvQ w~
Hhen Recorded, Pleaem Nail OF H'pifc6 [:yiil P;:'•.
Thi9 InelYem ent To,
896 JW 30 pl C DS
.. REDEVE107fENi AGENCY OF TitE CITY OF CNULA VISTA
City of Chula Vista LV~RAC IYLE
P.O. Box 1087 COUNTY RECDAOEF J
Chula Vleta, CA 92012 '
- NO TRA1iEFER TAX DUE
Aeeeseor'a percel No.t
pace a ove _. s ne oc~ ecor. ar a use on y
EASEMENT FOR NATURE YNTBRPRETIVE CENTER AND
A LICENSE FOR ACCES6 AND UTILITY LYNB PURPOSES
FGA A VAGUMLE CONSIDERATION, YeCe ipt of vhl eA i~ hereby
acknoxlodgedr SAIiTA FE LAND IM PROVRHdNT C1INPANy a' Corpora tian
organized under the lava of the State of Cal7forn la hereby grants
to the AEDEVELOPNENT AGENCY OP TR$ CITY OP CHULA VI6TA an aaee-
ment, to be used Eor Cha purpose specified herein and na other,
upon, over and across the real property located In the City of
Chula Vlata, County of Son Diego, state of Ca1lEOZnla, more par-
ticularly desorCbed Ln Bxh lbi[ A attached hereto and lnlt[aled and
by this tefarence lncorporatod heroin.
ThSa easement !s granted solely Lor khe was traction, Opera-
tlont mafntenan ee, repair, ranenal and replacement from time to
time nE a Nature Interpretivo canter open to tho public wntatning
approxlmaiely ten thouennd (1O,ODO1 square Leet under root/ In
adds Clon to associated and anti Mary parking eaoliit (ea, Iartdacap-
Sng, vtthin the area above desarl bed Cn Exhibit A. In add ltion,
this eaaenent is granted [or alI •Phase 1 and Phase 2 on and
off-alto grading work fox eaSd Nataro intarpretlve center,.
including, but not 11m(tetl to, off-sits drainage and utllSty
[acilitloo required to serve the subject Center peoj ect shown on
Bxhl btc 'S" attached hereto and incrorporated herein by reference
and rtoro particularly de6crlaed on City of Chula Vista Plan:Noe.
E6-59 through and including 06-64 zaviaed April 2G, 1986.
In eddl tion to tha above-referenced ena¢aent~ Grantor heroby
gran to to Grantee a licenso over and across the land hereinafter
described for vehicular and podeetrtan ingress and egress toana
from Che Na twee Interpretive Center axed. GCCntOY 4100 grants a
li tense to Grantee for !ha purpoao of installing a vator line to
serve the Nature Interpretive Center Bite, the na tore and type of
which to ha determined by Grantee. Grantor shell havn the right
to relocate said access one wa tar ;ins Sn the event that eaSd
i~
NO FE£
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1
1
14-22
1634
aoeena and water Ilhe obstructs or inter Forea wt th tho development
vtdedjth at treasonable dal Carnet ive pacceea and walerh llnaa colocati on
are theroafeer allouad to and Cor the Nature Inkerpre Glue Center.
The cost oC naving tho water 31 na or other uCl lttles servlAg the
Nature Tntexpre Glue Center shall ba borne egos Sly by the Grantor
inaeail Ho[l]d ty GlSnear thatthGrantae tmaytoraqutreBefor Ghee Nature
Irate rpretlve Canter al te. '
The in leis! lOCaClortA aE the above-referenced ]!ceases for
h ore eoyA nd dlncorparated Ierel na bydre EUZence, on Exhlblt a ateaehed
Grantae~ by accapttng eh Le easement and llca nee. ag recA to
the Eollowing:
7) Grantee agrees to indemnify, deFend and hold harmless
Grantor from allliabillty arleing from aceions of Grantee ar its
Goa ore From Grnntea~aa ~Facl !!ties novari hie vpropsrtya deacrlbeQ sin
Exhibits A and EI.
2) Granteo shall, prior to baginnl ng any grading or other
Center ~pcoj eotla in¢tell aandr bagsonat Ethehelimlte oET gra tag lea
shown on City.of Chula Vleta Plan Noa. G6-59 thcough nrtd inoiuding
E6-6d re EArenaod herelnabove~ ea id 11mSte having beeh established
and clearly marked an the ground by a Registered Civ11 Engineer
authorized [o Practice land ourveying or a Stcenaed land surveyor
who eha 11 cork for and ae the expense of Grantee. Grantee shall
e lao, prior to heginntng ronstruat lob of the Nature Tnterproeivu
center project, !natal! aEence Around the perimeter of Parcol A,-
prevent uaauthocLzedhp rsone~ From gyyoirtgaonto soraleaving itheede Lte
enal2gnotnparmi el ors eufCert anyh dobrisw err denolleiona materials or
other xa ate of any kind to bo planed, buried, stored oY abandoned
with to any area subject to this easement In Eavar of Grantee, or
subj set to rontrol or use by GeantoA for purp onus of grading or
cone tructlon.
7} Grantee shall, prior to bagtnning Any gradlnq o= other
work on or related ko coast=action of kha Nature Tnterprakive
con traot rf r graaLngiar Gosh era con stru~etionauork Onw orn ral aced ato
the Naturo Ynta=pretSve Canter prpjeee, Grantor's reviev shall be
solely For the purpose of aseurS ng ltselE th of job spec! Eica tionB
and contract documents adequately protect Gran eor and Grantor's
property Eros damage or mlBUae.
-. -Z_
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~~
14-23
1635
Grantor ohali hove the right ¢f reaaonayte .access to and over
llcen e,k Por ingress andd egraeeY tol~and aErom nthe rrea lb properky koE
Grantor.
Grantor hereby EuKFher grants to the Clty of Chula Via to she
privilege and right to azt¢nd reasonable drat naggs structures. .and
excavation and ¢mbankment elopes beyond the limits of the rlght-
oE-way d¢acrtbe8 in Exhibit b where reguired for the constructlort
sad malntennnc¢ OE Bald aCCeaB road, AESERVYHG unto Grantor of
the above-deeorLbed parcel of land, lte aucdeasora or asaigne~ the
t tone tharoaf, nwhen aln tithe written opinion of that City Cngin¢e~oE
protection hoaupportland/or rdralnage rfaatlltyY ptovid area ch oeuti- _
s Lira tton is E1 raC approved !n Nriting by said Clty En93noar,
GYantor hereby Curthar grants t0 Grantee ell trees. gr¢uehn
(growl nG ar [het may hereafter grov), and road building materials
then rights to taker NatorY together ith xthe lrlght ate use itha ueame
in such manner end et such looatipna as said Grantee may doom
improvementdorlmalntsnnncerof aaldhGrantea'rsaimprovemente tractions
in add loon, Grantor antlclpates allowing a 11.aBnse to
continue Ear roadway, drainage, and ueillty Ilne purpase6 until
such Lima as a permanent rood la built to serve the )Tatars
I nrerpxetive Centa_ area, Nhlah road ahSY~.) be a~~5s7t~~L~ eased es
permanent public, et ty street and which thtYf "i~lrtain thee
uellit lea requisite for service of the Natuee to terpretive Canter
Eacillty.
This Grant of easement shall exist until each, ttme ae there
is an agreamedt ancered Into between Grantor and Grantee and the
Chula Yleta Redevelopment Agency enA City of Chula 9is to Yelattn9
to the Bay PronC Project, end through which St le anticipated the
area shorn to Exhibit A NL 11 be ronvagyed to Grantee In Pae. in
roadNeyn nndrut[llty slineppurposes¢untglesucb etlme ns an permanent
..__.. - ,
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-;-
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14-24
zees
which iElmeD Sa id troad wi ilt6e dedCcated0 asraY permancht tpu bl lce, cl ty
a troot,
Daaed Eh la 28 'day of ~. 19D6.
9A~-NT~-A __PE~~LSSAN~~D h~H~~PROVEHENT CO11PA17Y.
a Calltocnia norpora tlon
r n O'
V
It C
The to rma aE this Eesomone and Classes Agraement ace accepted
by the clty of china vie as
REOEVP.LOPHENT AGENCY tlP THE TEST:
C ZTY OP HOLA V 7 / `~~/^
BY°E~,n...~ ,L GX-GG ~ G
(nnknoxiedpamsnt)
STATE OP CJILZPO RNIA
J a6
COUNTY OF ~.c.,a„. )
On , Ml - , 19/x& } bcLoze me:
the un era Ene , a otaryy Publfo !n and
for said State. Persaaaily appeared
c~
peesona y noxn o ree or pravn Eo me
eo be the person whose name
subserlhed to tba vi thin lnserumen'i; and
acknowledged ghat he~ Gxaouted the
Same.
WT?NESS my hood and o(E~LO~lal aea1,
$ipnaEUes ~ CY2ann
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L ' E%WJ67T "A"
• 1637
t]Ieyh VISTA 21rrfF1'lUtTIYF WeTD]tL C1t71rLA
8ein9 a portion of Qve rcer •ettfone 177 and 1flD o[ ehe Aanoho De
1A Na cionr in the City of Chula Vi rep, Cmmty of ban Diego, Sta to
of Ca liEOZhia as shown an Record o! Svrvep 170. 9039 on file in
the OSlf ee o4 the Recorder of aald Count)'( said portion being
more partf cular ly described ae iollovar
PAACLL "A~
8 eginning at the Southeasterly corner of said Quarter Section. I73
an shown"on said Record of Survey No, 9039; thence _
3. South 72"73'27" West 370.OD feet to 8 point on the _
Eas ter7y Iwundnry' of said ltecotd of Survey No. gD391
2. thence continuing Sout)t 78.13'27" Weat 516.57 fees co
ehe be93nning of a tang ert 30.00 fODt 'radius curve
oon ea ve Northerly)
3. thence West eYly along said curve through a central
angle of 92'47'01' en ere diseenco of 10.513 feat?
4. thence tangent to said curve north 19'19'32" Wese
651.90 feet to the beginning o£ a tangent 50.00 foot
radius curve concave 6ouchezlyl
5. thence Waster ly along sefd curve through a central
angle o£ 93.2272" an arc distance of 01.48 feetr
6. thence tangent ed caid curve South 71'38'16" i3oss
1644.42 feet to iho beg3 nriing of a tangent 3OD.OO foot
radius Curve concave 1:orchwesterlyl
7:" tryence Southweetesly along acid curve tarou gh a central
eagle of 17'10'07" an arc distance oP 09•DO feet:
II. thenco tangent Co 9aad cur Ve 6outh 88.46'23" Nest
163.76 feat to the bogannf ng of a tangent 40.00 foot
radius curve canceve Eorcherlyr
H. thence Westerly a3 ong avid curve through a central
a»gle of 5]'38'Sd" en are diatanna of 36.06 feet;
1 D.• thence tangent to said Curve North 39'32'43" Weas 47.16
" fens to the begfnnSng of a cengen t. 320.00 foot radius
curve concave lrortheeatsrlyr
I1, thence Narchwesterly along saSd curve tY.rough a central
angle of 22'Stl'50" an arc dicta ncc of 1213.36 fees tc
the T'RUP. PO1NT OF DEGJ Nf1JN0 of tF.a aerein descrzbed
parcel "A"f
thenco lea vino said curve along a noneangons ]Sae north 9D~2:~•
crest 39.05 faetr thence 2loreh__O.4:1@'26_'~ast 39f.~3_fee~ thence
2Zorch, Q6'96'54 ".1Vnst 53%Tfl_tee t; Lhanre Ndr tfi 50'52!22=~esz
.221.67 €ee cr thenco 13artly.,34'33_06':~ee t_1.53,P9 Fest; thence
203.08 tact; thence Sousa:
on"ehe are of a nontangrr
Northt.•esterly, a Yadiel ]SI
Eaicf tharce Se ns h.-aster]
angle of I]']]'3d" an arc dS
nontangerii'-line South 47!5
_ .B.,OS],2',$e"- Wast• 44.9s feat to
Cortal Wing 9.370 err es
' ~/p/GG~
. 900.00 feet radf ua curve con ee ve
to sefd poi nt heart South ?3 ',5532°
along said curve taro ugh a cent[s]
tenet of 187.05 ievtJ thence alone a
_32_t;est ~2O3.9O four Chance North
the TALE POS NT OF DELI Nf:7 NG.
Pane 7 of 4
14-26
c ,.I
... •• '' EkHIBtf "A"
issa
PARCaL 'R"
A 30.90 font Ensement for Sngr eav, egress, pub? is imprn veme•n t¢
and public utilStiae oust a portion rt Qaarier SCCCinn¢ ]7R, 173,
and 3B0 9F the above doseribed Rancho , said aaeoment lying 15.00
feet nn either ¢ide measured at rlgDt angloa to the Following
dvs art bed conecrllner -
Eeglnning at ihs begSnnAary of course nn. 2 in parcel "A" ebnve-.=
thence retracinry 9nurseG 2 thrnugh 11 in PAree1. "A" to the TAUS
POINT OF ALCINNIN6 of Parc¢1 "A" above boSng the terminus n! the
herein described conterl{n e, the rtdellnee of anid 30.00 font
ea acme rt to be length oned nr ahnreened an es to terminate !n the
£a ¢t arly Dnundnry nt Recnrtl nt Sur Yky Nn. 9039 dt the point of
Da ginning and in the }mundary of pares] "A" above at the point of
terminue.
page 2 of 4
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14-27
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' EXNYBIT "A"
• 1639
PAI4CSG 'C"
A 30.00 Eons £asemant for ingree a, egress, putilic imprnvementa
and public utllltlee over pnrti nos n£ puarter Sectinna 172 and
373 of Renchn ne T.a NscJnn Sn she city of Chula vista, -county of
ben Diego, Gtate n£ Ca7lfnrnSa as eh own nn Aecnrd of Survey Nn.
9039 nn file in the Of fi co of the Reenrder of said County, livid
easement being 30.00 fret in width, 16.00 feet nn rlthar aide
measured at Yight engl es to the following described centerline,
~13e91nn1n4 at the Snu thea st corner n£ puarter Section 173 as shown
nn ~aaid Focnrd n# Survey Tin. 9039! thence South 7Z'13'Z7" We6t
20.0 Peet to the wes teriy line of the San Dl ego anC Arizona
Eestern Aailrnad right-nf-way as shown nn se3d Ascnrd of survey,
said point Leing the TRUE POl RT OP SEOTRNi NG7 thence continuing
South 72"13'27" West 150.00 feet to a pnl bt do the boundary of
acid Racnrd of Sv rvey Nn. 9039 and the point of to rfiinus of the
herein described centerline.
The std eline5 of said easement to be lengthened nz shortened an
as ca terminate nn the Hesterly line of Lhc rai lrnad right-nf-way
at the TR171; POXNT Op BEGZNNZNG and the Easterly boundary of
Aecnrd of Survey Nn. 9039 at the point nt terminus.
Page 3 of d
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14-28
i
L'r:
f. I
'. jg,j~ fNHI01Y "A"
PARCII. "D'
A 30.00 fon[ Easement for ingrcns, egress, public improvements
and publtc utilitian over portions nF Ounrter 6ecti nna 16], Ifi2,
1]2 and 173 of Aanchn Da Ln Nacion 1h the City of Chula Vista,
County nF San Di¢gn, State of California ns shown nn Record of
6urv¢y Nn. 9099 nn file in ahn Office nF the A¢rnrd er of said
County, said easement being 30.00 f¢et in H3 deh, 15. DD fa et nn
ci ther c£de measured at right angl ea to the fnl loving described
een to rli net
eeginotng at the Snutheaat cnrn¢r of puarter 6aceinn 173 na shown
nn said Record of survey Rn. 9039t thenr¢ 6nutfi 72.13'27•' Hcat
20.00 feet to the Hesterly lino of the San Diego and Rriznna
F.a stern Aailrnad rightdnf_vay as shown nn saiQ Aeenrd of 6urvey,
paid point being the TRUE POINT OF BEGIHRINGp thence North
72.13'27" East 40,00 feet to a point nn the Eaatar ly right-nf-way
n£ paid railroad ana the pnf nk of terminus of the herein
described centerline.
Th¢ sidelines of said ¢adement to be lengthened nr sTnrcen¢d sn
as to terminate nn the Heaterly line of the railroad right-of-o~ny
et eh¢ TRU$ POINT DP 8E0INKING and the Easterly lin¢ of the
railroad right-nf-way at the point nF termi++us.
Page A of A
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14-30
se~IG GB
Y ~ • t T
i=
-- Exhibit "B"
Chula Vista Natura Center Permits and Contracts
State of Cniifornla Coastal Conservancy
Grants(Funding Agreements:
Grant Agreement # 84-67
Grant Agreement # 84-83
Giant Agreement # 87-035
Grant Agreement # 95-012
Grant Agreement # OS-073
United States Tish and Wildlife Service _
Easements •
Grants/Funding Agreements
Agreement # 801817M292
Agreement # 8 1 68 0672 19
Agreement # 81680761060
Agreement # 81680761094
Agreement # 8168097031
San Diego Unified Port District
Grants/Fnnding Agreements
Agreement -Document 53847
Agreement -Document 53889
State of California - Acpartment of Parks and Recreation
Grants/Funding Agreements
Project # GF-37-018; Contract# SO-13-016
Project # WC-37-001; Contract # C200941 S
Project # UC-37-003; Contract # C2011022
Project # GF-37-084; Contract # C50280I5
14-31
Exhibit - "C"
City "In Find" Services
Maintenance of Facilities
City, tluongh its Public Works Deparrinent, at its sole cost, shall provide mairtenance
services and materials for CVNC facilities, irtfiashncture, built-in exhibits, aiid life support
equipment in order to keep such items in operating condition in a mamier commensurate with
the provision of such services and materials to other City facilities, with a target of
maintaituttg the CVNC in accordance with industry standards for shrrilar facilities or better
("Routine Maintenance"). City's obligations hereunder shall exclude the maintenance and
repah' 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 repah- or replace, as necessary, any failed iufrashucture or life support equipment item
necessary for the full and lawful operation of the CVNC and the preservation and exhibit of
CVATC Wildlife ("Key Facility Repair or Replacement"). City commits to expendirrg up to
$40,000 amorally in labor and materials toward Key Facility Repair or Replacement during
the term of the agreement, with any additional City fimdutg subject to City approval in its
sole discretion. Operator shall be responsible for any Key Facility Repair or Replacement
work it decides is necessazy above and beyond City's cormnitment herermder.
With the exception of the Key Facility Repair or Replacement obligation, the above described
services and stardards 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 arty 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, tvith the shared objective of maintainhtg the Irighest
possible CVNC physical appearance, condition, and functionality.
Transit Services
City, tIuough its contract with MTS, shall continue to provide bus transit services to Operator
for CVNC operations, in accordance with standards existing under the MTS conhact as of the
Effective Date. City shall be responsible for the cost of firel for the shuttle vehicles during the
term of the agreement, subject to the Maximmn Payment Arnotrrit. Operator shall be
responsible for any and all other costs associated with such service, either tluough direct
payment to the transit provider or reimbursement to the City.
14-32
~ IT Services
City, tlu•ough its IT Department, at ifs sole cost, shall provide Operator support services for
CVNC teleconununications and computing systems (excludurg 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 liudget related
issues materially affect the standards upon which such services are delivered to City's other
facilities. Prior to implementutg airy 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 ch2nge and to reasonably
consider Operators input regarding same.
14-33
THE ATTACHED AGREEMENT HAS BEEN REVIEWED
AND APPROVED AS TO FORM BY THE CITY
ATTORNEY'S OFFICE AND WILL BE
FORMALLY SIGNED ~JPON ~~PI'R~QVAL BY
;Ien R. Googins
City Attorney
Dated: ~ ~ ~ ~
FIRST AMENDMENT
TO
THE OPERATING AGREEMENT
BETWEEN
THE CITY OF CHULA VIST AND
LIVING COAST DISCOVERY CENTER
14-34
C%m~%r~
FIRST AMENDMENT TO THE OPERATING AGREEMENT
This FIRST AMENDMENT TO THE OPERATING AGREEMENT, dated
2013, for reference purposes only, 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 "Party" and collectively
as "Parties. This Agreement shall be deemed executed on the date the last party hereto
affixes his/her signature hereto and is made with reference to the following facts:
RECITALS
A. The Living Coast Discovery Center ("LCDC") 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 LCDC is located at 1000 Gunpowder Point Drive, Chula Vista, CA on
approximately 3.3 acres of land ("LCDC Land") on Gunpowder Point within the
Sweetwater Marsh National Wildlife Refuge on land owned by the U.S. Fish and
Wildlife Service ("USFWS").
B. On or about February 6, 2010, City and Redevelopment Agency entered into an
Operating Agreement with Operator to manage and control LCDC operations.
C. On or about November 23, 2010, the Parties agreed to amend the Operating
Agreement in order to extend the term until June 30, 2012.
D. On or about July 17, 2012, the Parties entered into a new Operating Agreement,
setting forth new terms and conditions under which OPERATOR would operate the
LCDC ("2012 Operating Agreement").
E. The term of the 2012 Operating Agreement was for 1 year, ending on June 30, 2013.
F. Section 3.2 of the 2012 Operating Agreement permits the Parties to extend the 2012
Operating Agreement by mutual written agreement.
G. As that term of the 2012 Operating Agreement is about to expire, the City and
Operator would like to extend the term in accordance with Section 3.2 for a period of
one (1) year, ending on June 30, 2014.
14-35
NOW, THEREFORE, in consideration of the recitals and the mutual obligation of the
parties set forth herein, the City and Operator agree to amend the 2012 Operating
Agreement to extend the term to June 30, 2014, as follows:
1. Section 3.1, entitled "Term.":
Delete: "June 30, 2013"
Replace with: "June 30, 2014"
2. Scope of Amendment. This 1st Amendment changes only those sections of the
Original Agreement specifically identified in section 1, above. No other changes
to the Original Agreement are contemplated or intended by this 1st Amendment.
The balance of the Original Agreement shall remain unchanged and in continue
full force and effect.
[NEXT PAGE IS SIGNATURE PAGE]
14-36
Signature Page To
FIRST AMENDMENT TO THE OPERATING AGREEMENT
Ih1 WITNESS WHEREOF, City and Operator have executed this First
Amendment to the Operating Agreement, dated , 2013, thereby indicating
that they have read and understood same, and indicate their fixll complete consent to its
terms:
Dated:
City of Chula Vista
by:
Jim Sandoval, CiTy Manager
Approved as to Form:
Bart Miesfeld
City Attorney
Dated:
LIVING COAST DISCOVERY CENTER
by: '~ t eGfiL
us i Fuller, Chair
~--~- ~ ~~
Dr. Brian Joseph, Executive Director
14-37
RESOLUTION NO.2013
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING A FIRST AMENDMENT TO
THE OPERATING AGREEMENT BETWEEN THE CITY AND
THE LIVING COAST DISCOVERY CENTER
WHEREAS, on July 17, 2012, the City of Chula Vista ("City") and the Chula Vista
Redevelopment Agency ("Agency") entered into a formal 2012 Operating Agreement with the
Living Coast Discovery Center ("LCDC") which set forth the terms and conditions under which
the LCDC would operate and manage the Living Coast Discovery Center; and
WHEREAS, the term of the initial agreement was for 1 year, ending on June 30, 2013;
and
WHEREAS, Section 3.2 of the 2012 Operating Agreement permits the Parties to extend
the 2012 Operating Agreement by mutual written agreement.; and
WHEREAS, as the term of the 2012 Operating Agreement is about to expire, the City
and Operator would like to extend the term in accordance with Section 3.2 for a period of one (1)
year, ending on June 30, 2014.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula
Vista does approve the First Amendment to the Operating Agreement between the City of Chula
Vista and the Living Coast Discovery Center.
Presented by Approv'~d as to,,f by
Kristi McClure `Glen R. Goog
Assistant Director of Recreation Clity Attorney
J:Wttorney\FINAL RESOS AND ORDINANCES\2013\06 11 13V2ES0 -LCDC First Amendment to 2072 Operating
Agreement for 6-11 CC Mtg.doc
6/3/2013 7:58 AM
14-38