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HomeMy WebLinkAbout2009/01/27 Item 6CITY COUNCIL AGENDA STATEMENT ~~ CITY OF CHUTA VISTA JANUARY 27, 2009 Item~_ ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AMENDMENT AND RESTATEMENT OF THE JANUARY 21, 2003 AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND THE BOYS AND GIl2LS CLUB OF CHULA VISTA FOR THE LEASE AND OPERATION OF A SKATE PARK AT GREG ROGERS PARK ORDINANCE OF THE CITY OF CHULA VISTA AMENDING CHAPTER 2.66, SECTION 2.66.255 OF THE CHULA VISTA MUNICPAL CODE TO ALLOW BMX BICYCLE USAGE AT THE LEN M9QRE SKATE PARK SUBMITTED BY: DIRECTOR OF RECREATIONI; DIltECTOR OF P WORKS REVIEWED BY: CITY MANAGE ASSISTANT CITY AGER S~ DEPUTY CITY MANAGERS"~' 4/STHS VOTE: YES ~ NO ~X SUMMARY The Len Moore Skate Park ("Skate Pazk"), located within the Greg Rogers Pazk, is operated under an existing Lease and Operating Agreement with the Boys & Girls Club of Chula Vista ("B&G Club"). Since beginning operations in 2003 the use of Bicycle Motocross ("BMX") bicycles at the facility has been prohibited by City of Chula Vista Municipal Code Chapter 2.66. In the time since opening of the Skate Pazk, interest and demand for BMX bicycle access has increased. Experience elsewhere in California and across the United States has shown that the originally feared negative consequences of BMX bicycle use were without foundation. Staffs research indicates that there has not been any significant increase in physical damage to facilities or personal injury occurring in controlled pazks where BMX bicycle use is permitted. These recommended amendments would allow BMX bicycle use at the Skate Park specifically. The ban would remain in force at all other City facilities. 6-1 JANUARY 27, 2008 Item Page 2 of 3 ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed action for compliance with the California Environmental Quality Act ("CEQA") and has determined that the activity is categorically exempt from environmental review pursuant to Title 14 of the California Code of Regulations, Chapter 3, Article 19, (the "State CEQA Guidelines") Section 15323, "Normal Operations of Facilities for Public Gatherings" because the action only consists of the normal operations of existing facilities for public gatherings for which the facilities were designed and there is a past history of the facility being used for the same or similar kind of purpose. Therefore, pursuant to Section 15300 et seq. of the State CEQA Guidelines the activity is not subject to CEQA. RECOMMENDATION That the City Council adopt a) the Resolution approving an Amendment and Restatement of the existing Lease and Operating Agreement with the Boys and Girls Club of Chula Vista and b) the Ordinance approving an Amendment to Chula Vista Municipal Code Section 2.66.255 allowing bicycle use at the Len Moore Skate Park. BOARDS/COMMISSIONS RECOMMENDATION The Pazks and Recreation Commission heazd this item at their January 15, 2009 meeting and recommends that the City Council adopts the subject Resolution and Ordinance. DISCUSSION BMX bicycle use was originally prohibited at Len Moore Skate Park due to concern that the use would cause damage to the facility causing increased maintenance costs and that there could also be a potential increase in liability exposure. Since 2003 a number of cities in San Diego County have allowed use of BMX bicycles in their skate parks of similar construction to the Len Moore Skate Pazk without incurring damage to the facilities. It should also be noted that there has not been an increase in personal injury. City staff from Recreation and Public Works Departments inspected facilities at the City of Escondido and the City of Santee and found no damage or reported injuries attributable to BMX bicycle use. In addition, several other cities in the State of Califomia were contacted with regazds to BMX bicycle usage, and they confirmed that there were no adverse outcomes of BMX use occurring at their facilities. The potential damage to the concrete surfaces of the facility has been mitigated by changes in materials used for the `pegs' which protrude from the BMX bicycles and from after-mazket covers for pegs. In addition, conflict between skaters and BMX cyclists will not occur due to segregation of users by time of use or area of use. The insurance requirement for B&G Club has been modified downwazd to reflect mazket realities and the absence of any liability claim for injury since the skate park opened. DECISION MAKER CONFLICT Staff has reviewed the property holdings of the City Council Members and has found no such holdings within 500' of the property which is the subject of this action. FISCAL IMPACT No impact to the General Fund. 6-2 JANUARY 27, 2008 Item~~ Page 3 of 3 ATTACHMENTS Attachment A - Amended and Restated Lease and Operating Agreement between the City of Chula Vista and Boys and Girls Club of Chula Vista Prepared by: Ed Hall, Assistant Director, Recreation and Nature Center 6-3 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 COUNCIL Dated: ~- Z ~ - ~~ Amendment and Restatement of Agreement Between The City of Chula Vista and Boys and Girls Clubs of Chula Vista for the Lease and Operation of a Skate Park in Greg Rogers Park 6-4 AMENDMENT AND RESTATEMENT OF AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND THE BOYS AND GIRLS CLUB OF CHULA VISTA FOR THE LEASE AND OPERATION OF A SKATE PARK IN GREG ROGERS PARK THIS AMENDMENT AND RESTATEMENT of the LEASE AND OPERATING AGREEMENT (hereinafter "Agreement") dated for convenience this of 200_, is entered into between the CITY of Chula Vista, a political subdivision of the State of California ("CITY") and the Boys and Girls Club of Chula Vista ("CLUB") , a California non- profitpublic benefit corporation. KECTfALS WHEREAS, CITY recognizes a need for a safe and secure skateboard park ("Skate Park")venue within CITY; and WHEREAS, The Board of Directors of the Boys and Girls Club of Chula Vista has supported the Skate Park concept as a unique recreation experience and has agreed to provide leased property for its development; and WHEREAS, CITY and CLUB agree to expand the Oleander facilities for the purpose of providing wholesome recreational activities and continue to support "The Positive Place-for Kids"; and WHEREAS, CITY has expressed a willingness to construct a Skate Park on the condition that the CLUB agrees to operate and maintain it; and WHEREAS, the City of Chula Vista ("CITY") and the Boys and Girls Club of Chula Vista ("CLUB") entered into a lease dated November 8,1977, pursuant to City Council Resolution No. 8882, for the lease by CLUB of CITY property in Greg Rogers Park ("Original Lease'); and WHEREAS, CITY and CLUB entered into an amended lease dated September 5, 1978, pursuant to City Council Resolution No. 9262, for the lease by CLUB of CTI'Y property in Greg Rogers Park ("Original Amended Lease"); and WHEREAS, CITY and CLUB entered into an amended lease dated January 21, 2003 to modify said Original Amended Lease by removing from the definition of premises in the Original Amended Lease the property that will be occupied by a planned skate park; and WHEREAS, CITY and CLUB entered into an agreement for the lease and operation for a skate park in Greg Rogers Park (the "Lease and Operating Agreement"); and Page 1 of 11 6-5 WHEREAS, the skate park was completed and opened in 2003 and named the Len Moore Skate Pazk; and WHEREAS, it is now desirable to amend the Lease and Operating Agreement to permit new uses of the Len Moore Skate Park by allowing the use of BMX bicycles. NOW, THEREFORE pursuant to the above Recitals which aze incorporated herein and subject to the mutual covenants contained herein and for valuable consideration, receipt of which is hereby acknowledged, CTTY and CLUB do hereby mutually agree as follows: AGREEMENT CITY hereby leases to CLUB, and CLUB hereby leases from CITY, that certain property, including the Skate Park located in Greg Rogers Park as outlined and provided for in Exhibit "A" (hereinafter "Premises"), attached hereto and incorporated herein by reference as if set forth in full. The parties hereto agree that said letting is upon and subject to the terms, covenants and conditions herein set forth, and CLUB covenants as a material part of the consideration for this lease, to keep and perform each and all of said terms, covenants and conditions. Section 1. Use, Agreement, Term, Renewal and Consideration 1.1 Purpose. CLUB and CITY have determined that in the community there is a public need for additional recreation facilities in the nature of a skateboard park (a depiction of which is attached as Exhibit "A"), and that the creation and operation of a Skate Park in the community would help meet that public need. Furthermore, CITY desires CLUB to operate said Skate Park on leased CITY property 1.2 Use. The Premises shall be used for the purpose of a Skate Park and related recreational activities. As an accessory use, CLUB may operate a "Pro Shop' for the purposes of skateboarding equipment rental and sale. 1.3 Availability of Premises. For the purposes of this Agreement, CITY hereby grants permission to CLUB to occupy the Premises. CLUB accepts such occupancy subject to the terms and conditions of this Agreement. 1.4 Term. The term of this Agreement shall commence on execution by CITY, ("Commencement Date') and shall terminate on the 31s~ day of August, 2018, or the termination date of the Original Lease, which ever is earlier -unless the term shall be sooner terminated as provided elsewhere in this Agreement. 1.5 Consideration to CITY. Consideration to CITY for entering into this Agreement is CLUB's performance of the covenants and conditions herein, which provide a public benefit to the Community. In addition, CLUB agrees to pay CITY the sum of $1.00 per year payable on July 1 of each year during the term thereof. Page 2 of 11 6-6 Section 2. Operation 2.1 Laws. CLUB shall, throughout the term hereof comply with all applicable federal, state, and CITY laws, ordinances and regulations affecting the Premises or the activities to be performed thereon. 2.2 BMX Bicycle Use. Bicycle use may be permitted by express written consent by the Director of Recreation. Such consent may be withdrawn at any time for any reason at the sole discretion of the Duector of Recreation. Should express written consent of the Director of Recreation be obtained, then CLUB hereby agrees to modify the language on the posted signs at the Len Moore Skate Park to read as follows, pursuant to Chula Vista Municipal Code Section 2.66.255(G): WARNING Skateboarding, in-line skating, roller skating, BMX bicycle riding and scooter riding are hazardous recreational activities. Use of this facility may result in serious injuries or death. The City of Chula Vista does not assume any responsibility for injuries or death. Any person using this facility must weaz a helmet, elbow pads, and knee pads designed for skateboading, in-line skating or BMX bicycle riding. The required protective gear shall be properly worn (i.e., chin strap attached) and be in good repair. Any person failing to comply with this section shall be subject to citation and penalties pursuant to Chula Vista Municipal Code Section 2.66.255(F). 2.3 Management. At all times during the term hereof CLUB shall, at its sole cost, keep qualified personnel on the Premises to supervise operation of the Skate Park. 2.4 Fees. CLUB will develop a fee schedule for use of the Skate Park that may include session fees, seasonal fees, yearly fees, discount passes, or free use for educational incentives or similar promotional activities. All fees charged by CLUB shall be compazable to the fees charged for a similar activity at other fee-based Skate Parks in San Diego County. In calculating such fees, CLUB may take into account those attributes of the Skate Park that distinguish it from other skate parks, such as extended operating hours, unique facility enhancements, special programs, and nighttime illumination. 2.5 Maintenance Fund. CLUB shall establish a separate maintenance fund in an escrow account for the purpose of repairing, replacing, and maintaining the Skate Park facility in a safe and secure manner. More specifically, disbursements from the fund shall only be used to pay for those repairs with aone-time cost of more than $1,000 and shall not be used for "day-to-day maintenance' or "upkeep' of the Skate Park. Ten percent (10%) of any fee charged for admission to the Skate Park shall be placed within the account for this expressed use. CITY and CLUB agree to negotiate this percentage in the future, if the percentage is found to be inadequate or more than adequate to effectuate the maintenance fund's stated purpose. CLUB understands that the cost to maintain the Premises may exceed the revenues deposited into the Maintenance Fund, in which case CLUB must still fulfill its duties set forth h1 Section 4 of this Page 3 of 11 6-~ Agreement ("Maintenance and Repair, Damage and Destruction') utilizing any other available CLUB funds. Fund balances shall be verified at the request of the CTI'Y by CLUB providing detail bank statements. On termination of this Agreement, all monies remaining in the Maintenance Fund shall be the property of CITY and disbursed to CITY within ten (10) calendar days. CLUB shall have the right to offset any damages to the Premises, which require reimbursement by CLUB to CITY, with the monies remaining in the Maintenance Fund. 2.6 Age and Release of Liability. CLUB shall allow admittance to the Skate Pazk only if the person executes a CITY approved waiver and release of liability. If the person is under the age of eighteen, the person s parent or guardian must execute the waiver and release of liability. 2.7 Reporting Requirements. CLUB shall complete incident reports on forms approved by CITY for all reported injuries in the Skate Park. CLUB shall immediately send such incident reports to CITY. CLUB shall keep a copy of all incident reports on file and comply with any statutory reporting requirements that may be in effect (for example, Health and Safety Code 115800 (d)(4) -reports must be submitted to Judicial Council by Januazy 30~ each year). 2.8 Signs. CLUB shall post visible signs affording reasonable notice that persons using the Skate Park must wear a helmet, knee pads and elbow pads, and that any participant failing to do so will be subject to citation under a City ordinance requiring such. Furthermore, no person shall be allowed to use the Skate Pazk without wearing such protective gear. In general, advertisements and program announcements on the walls or fences of the Premises are prohibited, however special event signs will be allowed for the duration of the event. In no case shall signs promoting alcohol or tobacco or signs depicting sponsorship by an alcohol or tobacco company be allowed. Notwithstanding the language in this section allowing certain signs, CITY, in its sole discretion, may object to any sign, in which case such sign shall be removed promptly from the Premises by CLUB. 2.9 Inspection by CITY. The CLUB covenants and agrees that the CITY, or the CITY's agent or representative, shall have the right to enter upon the premises at all reasonable times for the purpose of examining or inspecting the premises and to observe the compliance or noncompliance by the CLUB with the terms of this Agreement. 2.10 Utilities and Grounds Maintenance. CLUB shall pay, or cause to be paid, all charges for water, gas, electricity, light, heat, telephone, waste disposal, sewer, storm drain and other utility service used or supplied upon or in connection with the Premises during the term of this Agreement or any extensions hereof. CLUB shall be responsible for all janitorial services and shall maintain the Premises in accordance with any landscape plan associated with construction of the Skate Park. 2.11 CTTY's Use of Facility. It is understood and agreed that CITY shall have the right to reasonable, occasional and scheduled use of the Skate Park at no cost, and at such time and in such manner so as not to interfere with the normal and customary use of the Premises. Such use must be preceded by reasonable notice and CITY must confer with CLUB in an attempt to find a mutually acceptable time. Page 4 of 11 6-8 Section 3. Maintenance and Repair, Damage and Destruction. 3.1 Maintenance and Repairs. CLUB shall, during the term of this Agreement, keep in good order, condition and repair, the Premises and every part thereof, structural or non- structural, and all adjacent sidewalks, landscaping, driveways, pazking lots, fences and signs located in the areas which aze adjacent to and included with the Premises. CITY shall incur no expense nor have any obligation of any kind whatsoever in connection with maintenance of the Premises, and CLUB expressly waives the benefits of any Statute now or hereafter in effect which would otherwise afford CLUB the right to make repairs at CITY's expense or to terminate this Agreement because of CITY's failure to keep the Premises in good order, condition and repair. On the last day of the term hereof, or on any sooner termination, CLUB shall surrender the Premises to CITY in good condition, broom clean, ordinary wear and tear excepted. CLUB shall repair any damage to the Premises or its improvements occasioned by its use thereof. 3.2 Damage or Destruction. In the event the improvements on the Premises are damaged or destroyed, partially or totally, from any cause whatsoever, whether or not such damage or destruction is covered by any insurance required to be maintained by CLUB under this Agreement, CLUB shall repair, restore; and rebuild the Premises to their condition existing immediately prior to such damage or destruction and this Agreement shall continue in full force and effect. Such repair, restoration and rebuilding (all of which aze herein called the "repair') shall be commenced within a reasonable time after such damage or destruction and shall be diligently prosecuted to completion. Section 4. Improvements 4.1 Improvements by CLUB. CLUB shall have the right, with the prior written consent of CITY, to make such alterations, additions, or improvements in or to the Premises as it shall consider necessary or desirable for conducting the operations of the Skate Park, provided that all such work shall be done in a good and workmanlike manner, that the structural integrity of any part of the Premises shall not be impaired, and that no liens shall attach to the Agreement Premises by reason thereof. Upon the termination of this Agreement such alterations, additions, or improvements shall, at the option of the CLUB: (1) become the property of CITY (with no compensation due the CLUB for such improvements); or (2} be removed by the CLUB provided that any part of the Premises affected by such removal shall be restored to its original condition, reasonable wear and tear excepted. Section 5. Taxes Assessments 5.1 Possessory Interest. Pursuant to the provisions of Revenue and Taxation Code section 107.6, CLUB acknowledges that the terms of this Agreement may result in the creation of a possessory interest. If such a possessory interest is vested in CLUB it may be subject to the payment of real property taxes levied on such Interest. CLUB shall be solely responsible for all such taxes when due, and shall not allow any such taxes, assessments, or fees to become a lien against owner's property or any improvements thereon: provided, however, that nothing herein shall deemed prevent or prohibit CLUB from contesting the validity of any such tax, assessment, or fee in a manner authorized by law. Page 5 of 11 6-9 Section 6. Hazardous Materials 6.1 Definition. "Hazardous materials" means any substance so designated (or designated "hazardous substances°) in any federal, state, or local statute, ordinance or regulation affecting the Premises. 6.2 Liability. CLUB shall comply with all laws regarding hazardous substances, materials or wastes, or petroleum products or fraction thereof (herein collectively referred to as "Contaminants") relative to occupancy and use of the premises. CLUB shall be liable and responsible for any Contaminants arising out of the occupancy or use of the premises by CLUB. Such liability and responsibility shall include, but not be limited to, (i) removal from the premises any such Contaminants; (ii) removal from any area outside the premises, including but not limited to surface and groundwater, any such Contaminants generated as part of the operations on the premises; (iii) damages to persons, property and the premises; (iv) all claims resulting from those damages; (v) fines imposed by any governmental agency, and (vi) any other liability as provided by law. 6.3 Discovery and Notice. Should CLUB discover any Contaminants that could environmentally endanger air, soils or groundwater, CLUB shall immediately discontinue all activities which could aggravate the condition and immediately notify CITY both orally and in writing. CLUB shall also diligently proceed to identify the extent of contamination, how it will be remediated, when it will be remediated, by whom, and the cost of such remediation. Section 7. Indemnity, Insurance 7.1 Indemnity. CLUB shall, to the fullest extent permitted by law, defend, indemnify and hold harmless CITY and its officers, employees, and agents for any and all liability, claims, judgments, or demands arising directly or indirectly out of the obligations undertaken in connection with this Agreement. It is the intent of this Paragraph that CLUB indemnify and hold harmless CITY for any actions of CLUB, including any liability arising from, connected with, caused by or claimed to be caused by CLUB's duty under contracts with third parties. This indemnity obligation shall survive the termination of this Agreement and apply for the entire time that any third party can make a claim against or sue CITY for liabilities arising out of CLUB's use, occupancy, or operation of the above-described Premises, or arising from any defect in any part of said Premises. 7.2 Insurance. Without limiting CLUB's indemnification of CITY as provided above, CLUB shall take out and maintain at all times during the term of the Agreement: 7.2.1 Required Coverage -After Skate Park Construction is Complete. After Skate Park construction is complete, Commercial General Liability Insurance covering Premises and operations in the amount of not less than One Million Dollars ($1,000,000) each occurrence with a General Aggregate limit of Two Million Dollars ($2,000,000) combined single limit per occurrence for bodily injury, personal injury and property damage suffered or alleged to be suffered by any person or persons whatsoever resulting directly or indirectly from any act or activities of CLUB, of any person acting for it or under its control or direction, or any person Page 6 of 11 6-10 authorized by it to use the Premises. The Two Million Dollar ($2,000,000) general aggregate limit shall apply exclusively to the Premises and CLUB's use of the Premises, otherwise the general aggregate limit shall be twice the required occurrence limit. 7.2.2 Cost of Insurance and Certificates. All required insurance shall be in force prior to the opening of the Skate Park. Said policies shall be issued by insurance companies that have an AM Best's Rating of "A, Class V" or better, or shall meet with the approval of the City, and the cost of all required insurance shall be borne by CLUB. Certificates in a form acceptable to CITY evidencing the existence of the necessary insurance policies, and original endorsements effecting coverage required by this clause, shall be kept on file with CITY during the entire term of this Agreement. Certificates for each insurance policy are to be signed by a person authorized by that insurer to issue evidence of coverage on its behalf. Endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The CITY reserves the right to require complete, certified copies of all required policies at any time. 7.2.3 Endorsements. All liability insurance policies will name, or be endorsed to name, CITY, its officers, officials and employees as additional insureds and protect CITY, its officers, officials and employees against any legal costs in defending claims. All insurance policies will be endorsed to state that CLUB's insurance is primary and not excess or contributing to any insurance issued in the name of CITY. Preferably, all insurance policies will be endorsed to state that coverage will not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested has been given to the CITY. If CLUB's insurance provider does not typically provide thirty (30) days' prior written notice, insurance policies may be endorsed to state that coverage will not be suspended, voided, canceled, reduced in coverage or in limits except after ten (10) days' prior written notice by certified, overnight mail has been given to the CITY. 7.2.4 Deductibles or Retentions. Any deductibles or self-insured retentions must be declared and acceptable to the CITY. 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, and employees; or, the CLUB shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. 7.2.5 Modification of Coverage Requirements. CITY shall retain the right at any time to review the coverage, form, and amount of the insurance required hereby. If, in the opinion of CITY, the insurance provisions in this Agreement do not provide adequate protection for CITY and/or for members of the public, CITY may require CLUB to obtain insurance sufficient in coverage, form and amount to provide adequate protection. CITY's requirements shall be reasonable but shall be designed to assure protection from and against the kind and extent of risk which exist at the time a change in insurance is required. CITY shall notify CLUB in writing of changes in the insurance requirements and, if CLUB does not deposit certificates evidencing acceptable insurance policies with CITY incorporating such changes within sixty (60) days of receipt of such notice, this Agreement shall be in default without further notice to CLUB, and CITY shall be entitled to all legal remedies. Page 7 of 11 6-11 7.2.6 Effect on Indemnification Requirements. The procuring of such required policies of insurance shall not be construed to limit CLUB's liabIlity hereunder, nor to fulfill the indemnification provisions and requirements of this Agreement. Notwithstanding said policies of insurance, CLUB shall be obligated for the full and total amount of any damage, injury, or loss caused by negligence or neglect connected with this Agreement or with the use or occupancy of the Premises. 7.2.7 Proof of Insurance. Upon execution of this Agreement, CLUB shall provide evidence of compliance with the insurance requirements listed above by providing CITY with certificates of insurance, in a form satisfactory to the CITY. Copies of the policies of insurance required in Section 7.2.2 ("Required Coverage -Prior to and During Skate Park Construction') shall be delivered to CITY within 30 days after execution of this Agreement. In addition, copies of the policies of insurance required in Section 7.2.1 ("Required Coverage -After Skate Pazk Construction is Complete") shall be delivered to CITY 30 days after construction of the Skate Park is complete. Section 8. Assignment, Subletting, Encumbering 8.1 Prohibition. Neither the whole nor any part of the Premises nor any of the rights or privileges granted by this Agreement shall be assignable or transferable in any way without the express written consent of the City Council is obtained in each instance. Nor shall CLUB grant any permission to any other person to occupy any portion of the Premises without the express written consent of the City Council is obtained in each instance. Furthermore, CLUB shall not encumber this Agreement, the Premises thereof and the improvements thereon by a deed of trust, mortgage, or any other security instrument without the express written consent of the City Council is obtained in each instance. Any such purported assignment, transfer, sublease, encumbrance, or permission given without such consent shall be void as to CITY. Section 9. Termination 9.1 Early Termination. Notwithstanding any other provision of this Agreement, CLUB may terminate this Agreement upon ninety (90) days advance written notice thereof to CITY. CITY may terminate this Agreement at any time upon ninety (90) days advance written notice to CLUB. 9.2 Skate Pazk Not Constructed. If for any reason CITY in its sole discretion decides to close the Skate Park this Agreement shall terminate immediately. 9.3 Waiver of Damages or Compensation. CLUB hereby expressly waives any and all claims for damages or compensation arising under this Agreement due to early terminafion of the Agreement by CITY. Section 10. Breach and Cure 10.1 Breach. CLUB shall be in breach hereof if it defaults in the performance of any covenant or condition required by this Agreement and fails to cure such default within thirty (30) days following written notice thereof from CITY; or if any such default is not curable within thirty Page 8 of 11 6-12 (30) days, fails to commence to cure the default(s) within said thirty day period and diligently pursue such cure to completion. If a default is not corrected within the cure period mentioned above, this Agreement shall immediately terminate and CLUB shall have no further rights hereunder and shall immediately vacate said Premises; and CITY shall immediately thereupon, without recourse to the courts, have the right to reenter and take possession of said Premises. CITY shall further have all other rights and remedies as provided by law, including without limitation the right to recover damages from CLUB in the amount necessary to compensate CITY for all the detriment proximately caused by CLUB's failure to perform its obligations under this Agreement or which in the ordinary course of things would be likely to result therefrom. Section 11. Independent Contractor 11.1 Independent Contractor. CLUB and any of the CLUB's agents, employees or representatives aze, for all purposes under this Agreement, an independent contractor and shall not be deemed to be an employee of City, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits Section 12. Notices 12.1 Time of Delivery, Addresses. Unless otherwise specifically provided in this Agreement, all notices, demands or other communications given hereunder shall be in writing and shall be deemed to have been duly delivered upon personal delivery or as of the second business day after mailing (by United States registered or certified mail, return receipt requested, postage prepaid and addressed as follows: If to CITY, to: City of Chula Vista Director of Recreation 276 Fourth Avenue Chula Vista, CA 91910 If to CLUB, to: President /CEO Boys & Girls Club of Chula Vista 1301 Oleander Avenue Chula Vista, CA 91911 or to such other address as any party may designate to the others for such purpose in the manner set forth above. Section 13. General Provisions 0 Page 9 of 11 6-13 13.1 Prompt Performance. Time is the essence of each covenant and condition set forth in this Agreement. 13.2 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. 13.3 Joint Work Product. This Agreement is the joint work product of both pazties and their attorneys and shall not be construed more favorably for, or m ore strictly, against either party on the grounds that such party or its attorney participated more or less fully in the preparation of this Agreement. 13.4 No Waiver. No (i) failure, neglect or delay by either party. in exercising any of its rights thereunder or (ii) negotiations between the parties or their attorneys shall operate as a waiver, forfeiture or abandonment such right(s) or any other rights hereunder. Any waiver, forfeiture or abandonment by either party or its right(s) hereunder shall, to be effective, be in writing (i) expressly stating the provision(s) hereof to be waived, forfeited or abandoned, (ii) signed by the party charged with such waiver, forfeiture or abandonment and (iii) delivered to the other party. 13.5 Captions. Captions in this Agreement are inserted for convenience of reference only and so not affect the construction or interpretation of this Agreement. 13.6 References, Exhibits. Each reference in this Agreement to a section or paragraph refers, unless otherwise stated, to a section or paragraph in this Agreement. All exhibits referred to in this Agreement are attached to, and are a part of, this Agreement. 13.7 Entire Agreement. This Agreement contains the entire agreement between the parties relating to the transactions contemplated hereby and all prior or contemporaneous agreements, understandings, representations and statements, oral or written, aze merged into and superseded by this Agreement. 13.8 Modification. No modification, waiver or discharge of this Agreement shall be valid unless it is in writing and signed by the party against which the enforcement of the modification, waiver or discharge is or maybe sought. 13.9 Counterparts. This Agreement may be executed in any number of counterparts, all of which together shall constitute one instrument. 13.10 Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California. This Agreement has been signed at Chula Vista, California, as of the date set forth at the beginning of this Agreement. 13.11 Capacity of Parties. Each signatory and party hereto hereby warrants and represents that it has the legal authority and capacity and direction from its principal to enter into this Agreement and that all resolutions or other actions have been taken so as to enable it to enter into this Agreement. Page 10 of 11 6-14 Signature Page to AMENDMENT AND RESTATEMENT OF AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND THE BOYS AND GIRLS CLUB OF CHULA VISTA FOR THE LEASE AND OPERATION OF A SKATE PARK IN GREG RODGERS PARK IN WITNESS WHEREOF, CITY and CLUB have executed this Agreement as of the last date written below thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms: Dated: 200 City of Chula Vista by: Cheryl Cox, Mayor Attest: Donna Norris, City Clerk Approved as to form: Bart Miesfeld, City Attorney Dated: , 200_ BOYS AND GIRL'S CLUB OF CHULA VISTA By: Jo . Clingan , Pr s' ent /CEO Attachments: Exhibit A Page 11 of 11 6-15 RESOLUTION NO.2009- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AMENDMENT AND RESTATEMENT OF THE JANUARY 21, 2003 AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND THE BOYS AND GIRLS CLUB OF CHULA VISTA FOR THE LEASE AND OPERATION OF A SKATE PARK AT GREG ROGERS PARK WHEREAS, the City of Chula Vista ("CITY") and the Boys and Girls Club of Chula Vista ("CLUB") entered into a 'lease dated November 8, 1977, pursuant to City Council Resolution No. 8882, for the lease by CLUB of CITY property in Greg Rogers Pazk ("Original Lease"); and WHEREAS, CITY and CLUB entered into an amended lease dated September 5, 1978, pursuant to City Council Resolution No. 9262, for the lease by CLUB of CITY property in Greg Rogers Pazk ("Original Amended Lease"); and WHEREAS, CITY and CLUB entered into an amended lease dated January 21, 2003 to modify said Original Amended Lease by removing from the definition of premises in the Original Amended Lease the property that will be occupied by a planned skate pazk; and WHEREAS, CITY and CLUB entered into an agreement for the lease and operation for a skate pazk in Greg Rogers Pazk (the "Lease and Operating Agreement"); and WHEREAS, the skate park was completed and opened in 2003 and named the Len Moore Skate Pazk; and WHEREAS, it is now desirable to amend the Lease and Operating Agreement to permit new uses of the Len Moore Skate Park by allowing the use of BMX bicycles; and WHEREAS, the Environmental Review Coordinator has reviewed the proposed action for compliance with the California Environmental Quality Act ("CEQA") and has determined that the activity is categorically exempt from environmental review pursuant to Title 14 of the California Code of Regulations, Chapter 3, Article 19, (the "State CEQA Guidelines") Section 15323, "Normal Operations of Facilities for Public Gatherings" because the action only consists of the normal operations of existing facilities for public gatherings for which the facilities were designed and there is a past history of the facility being used for the same or similar kind of purpose. Therefore, pursuant to Section 15300 et seq. of the State CEQA Guidelines the activity is not subject to CEQA. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve an Amendment and Restatement of the January 21, 2003 Agreement between the City of Chula Vista and the Boys and Girls Club of Chula Vista for the Lease and Operation of the Len Moore Skate Pazk at Greg Rogers Park. 6-16 BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized and directed to execute said Agreement on behalf of the City. Presented by James Sandoval City Manager Approved as to form by B esfeld ~°``t City A 6-17 ORDINANCE NO. ORDINANCE OF THE CITY OF CHULA VISTA AMENDING CHAPTER 2.66, SECTION 2.66.255 OF THE CHULA VISTA MUNICIPAL CODE TO ALLOW BMX BICYCLE USAGE AT THE LEN MOORE SKATE PARK WHEREAS, the City of Chula Vista ("CITY") and the Boys and Girls Club of Chula Vista ("CLUB") entered into a lease dated November 8, 1977, pursuant to City Council Resolution No. 8882, for the lease by CLUB of CITY property in Greg Rogers Park ("Original Lease"); and WHEREAS, CITY and CLUB entered into an amended lease dated September 5, 1978, pursuant to City Council Resolution No. 9262, for the lease by CLUB of CITY property in Greg Rogers Park ("Original Amended Lease"); and WHEREAS, CITY and CLUB entered into an amended lease dated January 21, 2003 to modify said Original Amended Lease by removing from the definition of premises in the Original Amended Lease the property that will be occupied by a planned skate pazk; and WHEREAS, CITY and CLUB entered into an agreement for the lease and operation for a skate pazk in Greg Rogers Pazk (the "Lease and Operating Agreement"); and WHEREAS, the skate pazk was completed and opened in 2003 and named the Len Moore Skate Park; and WHEREAS, it is now desirable to amend the Lease and Operating Agreement to permit new uses of the Len Moore Skate Pazk by allowing the use of BMX bicycles; and WHEREAS, the Environmental Review Coordinator has reviewed the proposed action for compliance with the California Environmental Quality Act ("CEQA") and has determined that the activity is categorically exempt from environmental review pursuant to Title 14 of the California Code of Regulations, Chapter 3, Article 19, (the "State CEQA Guidelines") Section 15323, "Normal Operations of Facilities for Public Gatherings" because the action only consists of the normal operations of existing facilities for public gatherings for which the facilities were designed and there is a past history of the facility being used for the same or similaz kind of purpose. Therefore, pursuant to Section 15300 et seq. of the State CEQA Guidelines the activity is not subject to CEQA. NOW, THEREFORE, the City Council of the City of Chula Vista does hereby ordain as follows: SECTION 1: That Chapter 2.66, Section 2.66.255 of the Chula Vista Municipal Code is amended by adding Subsection "G" in accordance with the following: 6-18 Ordinance No. Page 2 G. Notwithstanding any other provision contained within this code section, BMX bicycle use may be permitted by express written consent of the Director of Recreation at the Len Moore Skate Park. Should express written consent of the Director of Recreation be obtained, then the posted signs at the Len Moore Skate Pazk shall be revised to read as follows: WARNING Skateboazding, in-line skating, roller skating, BMX bicycle riding and scooter riding aze hazazdous recreational activities. Use of this facility may result in serious injuries or death. The City of Chula Vista does not assume any responsibility for injuries or death. Any person using this facility must wear a helmet, elbow pads, and knee pads designed for skateboazding, in-line skating or BMX bicycle riding. The required protective geaz shall be properly worn (i.e., chin strap attached) and be in good repair. Any person failing to comply with this section shall be subject to citation and penalties pursuant to Chula Vista Municipal Code Section 2.66.255(F). SECTION 2: This ordinance shall take effect and be in fixll force thirty (30) days following its second reading. Presented by James Sandoval City Manager Xo~4 6-19 Approved as to form by