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HomeMy WebLinkAboutCalifornia State Lands Commission - 2007-02-20U Council/Agency Meeting Held: a c20 O Deferred/Continued to: Approved ❑ Conditionally Approved ❑ Denied CilerkA SignattVe Council Meeting Date: 2/20/2007 Department ID Number: ED 07-06 CITY OF HUNTINGTON BEACH REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO: HONORABLE MAYOR ND CIT UNCIL MEMBERS SUBMITTED BY: PENLfOPE G LBRETH-GRAFT, DPA, CITY ADMINISTRATOR PREPARED BY: TANLEY SMALEWITZ, DIRECTOR OF ECONOMIC DEVELOP NT� ` ROBERT F. BEARDSLEY, PE, DIRECTOR OF PUBLIC WORK SUBJECT: Approve a Lease Agreement with the California State Lands Commission for the Warner Avenue Sewer Project Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s) Statement of Issue: The City Council is asked to approve an interim lease agreement with the California State Lands Commission for a portion of State-owned land adjacent to Warner Avenue within the boundary of the Bolsa Chica Ecological Reserve for the construction, use, and maintenance of a gravity sewer pipeline. A longer term agreement will be requested upon completion of the project. Funding Source: Sufficient funds are available in the project budget, Sewer Service Fund, Sewer Lift Stations, Sewer Improvements, 51189001.82600. The estimated cost is $12,000. Recommended Action: Motion to: 1. Approve and authorize the Director of Public Works to execute the Lease Agreement (Lease W 26183 Public Resources Code 8738.9) between the City of Huntington Beach and the California State Lands Commission for the construction, use, and maintenance of the Warner Avenue sewer pipeline; and 2. Authorize the Director of Public Works to execute Standard Agreement No. R08206, the reimbursement agreement. Alternative Action(s): Do not approve the Lease Agreement and reimbursement agreement and direct staff to negotiate alternative lease terms with the State Lands Commission. L -S REQUEST FOR CITY COUNCIL ACTION MEETING DATE: 2/20/2007 DEPARTMENT ID NUMBER: ED 07-06 Analysis: The City is currently in construction for the Warner Gravity Sewer Line, which consists of replacing the existing sewer main with a new 4,100 foot sewer main along Warner Avenue, from Pacific Coast Highway to Los Patos Avenue. The line is being built in conjunction with the replacement of Sewer Lift Station "D," and is anticipated to be completed in Spring 2007. During construction the CSLC informed the City that the road right-of-way easement did not include a utility easement although the existing sewer line was installed in the 1960s. The proposed 20-year lease can be processed within a short time frame, and with no impact on the current construction schedule. A longer term lease is both desirable and necessary, however, the application and review process requires a minimum of six months to complete. To avoid project delays, the short term lease is proposed. As record drawings are required for the long-term lease, application will be made after the project is complete. The State Lands Commission has agreed to enter into a zero -rent, 20-year lease allowing the City to construct, use, and maintain the sewer line. The lease encompasses only the asphalt surface and roadway shoulder area necessary to complete the project. General terms of the agreement include: 1. During construction, the City will ensure access to the interpretive center driveway. 2. The City will provide sewer and water stubs to the ecological reserve. 3. The City will maintain general liability insurance coverage of no less than $1,000,000. The CSLC requires a reimbursement agreement to review and process the lease agreement. Included in the application for General Lease, is the request for an additional expense deposit due upon execution of the agreement. This amount was determined to be $3,000 for a total estimated cost of $12,000. Funds are available in the project budget. The proposed lease and standard reimbursement agreement was prepared by the State Lands Commission and has been reviewed and approved as to form by the City Attorney. Authorization is requested to allow the Director of Public Works to execute the lease and the standard reimbursement agreement on behalf of the City. Public Works Commission Action: Not required. Environmental Status: Not applicable to the lease agreement. Attachment(s): -2- 2/12/2007 4:58 PM ATTACHMENT #1 ATTACHMENT #2 CITY OF HUNTINGTON BEACH 2000 MAIN STREET CALIFORNIA 92648 OFFICE OF THE CITY CLERK JOAN L. FLYNN CITY CLERK February 28, 2007 Title Unit California State Lands Commission 100 Howe Avenue, Suite 100-South Sacramento, CA 95825-8202 To Whom It May Concern: Enclosed please find the Lease Agreement PRC 8738.9 between the City of Huntington Beach and the California State Lands Commission for construction of a 24-inch diameter gravity sewer pipeline adjacent to Warner Avenue within the boundaries of the Bolsa Chica Ecological Reserve. Upon execution by the commission, please return a complete copy to: Joan L. Flynn City Clerk 2000 Main Street Huntington Beach CA 92648 Your attention to this matter is greatly appreciated. Sincerely, oan L. Flynn City Clerk JF: pe Enclosure: Agreements G-followup:agrmtltr 1 Telephone: 714-536-5227 ) I RECORDED AT THE REQUEST OF AND WHEN RECORDED MAIL TO: STATE OF CALIFORNIA California State Lands Commission Attn: Title Unit 100 Howe Avenue, Suite 100-South Sacramento, CA 95825-8202 STATE OF CALIFORNIA OFFICIAL BUSINESS CON Document entitled to free recordation pursuant to Government Code Section 27383 A.P.N. County: Orange Recorded in Official Records, Orange County Tom Daly, Clerk -Recorder 111111111111111111111111111111111111111111111111111111111111111111111111111 NO FEE 2007000510943 0938am 08/16/07 106 207 Lot 16 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 COPY SPACE ABOVE THIS LINE FOR RECORDER'S USE W 26183 LEASE PRC 8738.9 This Lease consists of this summary and the following attached and incorporated parts: Section 1 Basic Provisions Section 2 Special Provisions Amending or Supplementing Section 1 or 4 Section 3 Description of Lease Premises Section 4 General Provisions Exhibit A Mitigation Monitoring Program SECTION 1 BASIC PROVISIONS THE STATE OF CALIFORNIA, hereinafter referred to as Lessor acting by and through the CALIFORNIA STATE LANDS COMMISSION (100 Howe Avenue, Suite, I 00-South, Sacramento, California 95825-8202), pursuant to Division 6 of the Public Resources Code and Title 2, Division 3 of the California Code of Regulations, and for consideration specified in this Lease, does hereby lease, demise and let to the City of Huntington Beach hereinafter referred to as Lessee, those certain lands described in Section 3 subject to the reservations, terms, covenants and conditions of this Lease. MAILING ADDRESS: City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 LEASE TYPE: General Lease - Public Agency Use LAND TYPE: Sovereign lands LOCATION: A parcel of State-owned land along and adjacent to Warner Avenue within the boundaries of the Bolsa Chica Ecological Reserve, described in Section 3. LAND USE OR PURPOSE: To construct, use and maintain a 24-inch diameter gravity sewer pipeline. TERM: 20 years; beginning December 14, 2006, ending December 13, 2026, unless sooner terminated as provided under this Lease. CONSIDERATION: The public use and benefit; with the State reserving the right at any time to set a monetary rent if the Commission finds such action to be in the State's best interest. AUTHORIZED IMPROVEMENTS: One 24-inch diameter gravity sewer pipeline. LIABILITY INSURANCE: Liability insurance coverage of no less than $1,000,000. SURETY BOND: N/A SECTION 2 SPECIAL PROVISIONS BEFORE THE EXECUTION OF THIS LEASE, ITS PROVISIONS ARE AMENDED, REVISED OR SUPPLEMENTED AS FOLLOWS: 1. Lessee will provide unlimited access to the project site for Lessor's staff during the course of the project. 2. Any deviations from the approved plans and procedures will require prior review and approval from the Lessor's engineering staff. 3. Within 90 days of completion of the work, Lessee will provide: A set of "as -built" construction plans showing all field changes or other modifications to the plans as originally approved for construction. A post construction written narrative report confirming completion of the project in accordance with the approved design and execution plans, describing any field changes with the justification: any accidents or spills affecting the state waters and corrective measures taken; and any other extraordinary conditions that occurred during the course of the project. 4. All future repairs, structural modifications or abandonment of the pipeline within the lease area will require prior review and approval by Lessor. In the event of an urgent repair requiring immediate action, telephone contact can be made through the Lessor's 24-hour emergency response number (562) 590-5201. 5. In the event of an oil spill during construction that impacts state waters, notification is to be made as soon as possible to the State Office of Emergency Services at (800) 853-7550 and to the Lessor's 24-hour emergency response number (562) 590-5201 and other applicable agencies. 6. Lessee acknowledges that the Mitigation Monitoring Program attached as Exhibit A and by reference made a part of this Lease, is adopted by the Lessor at the time of approval of this Lease and Lessee agrees to be bound by and perform all of the conditions contained in the Mitigation Monitoring Program adopted by Lessor. Lessee shall be responsible for all costs associated with the Mitigation Monitoring Program. 7. Lessee shall provide a minimum of bus traffic -width ingress to and egress from the Bolsa Chica Conservancy interpretive center driveway at 3942 Warner Avenue. 8. Prior to construction, Lessee shall provide a copy of the draft traffic control plan for review and approval by Lessor's staff before it is finalized. 9. Lessee shall provide sewer and water stubs as designated by Lessor to the Bolsa Chica Ecological Reserve and to the Bolsa Chica Lowlands Restoration Project at no cost to Lessor. 10. Within 90 days from completion of construction, Lessee shall restore all disturbed areas within the lease premises to the satisfaction of Lessor's staff at Lessee's expense. 11. Lessee shall monitor the sewer pipeline depth of burial under the Bolsa Chica outer channel annually within the lease area for the first five years and provide Lessor with two copies of the pipeline monitoring report by the end of each calendar year. Lessee acknowledges that adequate burial of the pipeline is required and that any future remedial action to maintain adequate pipeline burial may require a subsequent Lease amendment, CEQA analysis, and additional discretionary approvals by other responsible agencies, including, but not limited to, the U.S. Army Corps of Engineers, the Regional Water Quality Control Board, the California Department of Fish and Game, and the California Coastal Commission. 12. This lease does not authorize access to any area within the Bolsa Chica Lowlands Restoration Project without prior written permission from the Lessor or the Lessor's long-term operations and maintenance manager. Access may be denied at the sole discretion of Lessor or Lessor's long-term operations and maintenance manager. 13. Lessee acknowledges and agrees: a. The site may be subject to hazards from natural geophysical phenomena including, but not limited to, waves, storm waves, tsunamis, earthquakes, flooding and erosion. b. To assume the risks of injury and damage to Lessee, its agents, employees, contractors, permittees, invitees and guests and the Leased Lands from such hazards in connection with the development and use of the Leased Lands subject to any Coastal Development Permit. c. To unconditionally waive any claim or damage or liability against the State of California, its agencies, officers, agents, and employees for injury and/or damage from such hazards to Lessee, its agents, employees, contractors, permittees, invitees and guests. d. To indemnify, hold harmless and, at the option of Lessor, defend the State of California, its agencies, officers, agents, and employees, against and for any and all liability, claims, demands, damages, injuries, or costs of any kind and from any cause (including costs and fees incurred in defense of such claims), expenses, and amounts paid in settlement arising from any alleged or actual injury, damage or claim due to site hazards or connected in any way with respect to the approval of any Coastal Development Permit involving.the Leased Lands. 14. In the event a conflict arises between language in Section 1 and 2 and language in Section 4 of the Lease, Section I and 2 language will prevail. SECTION 3 W26183 LAND DESCRIPTION A parcel of State-owned land in the unincorporated territory of the County of Orange, State of California and more particularly described as follows: The northerly thirty (30) feet of that certain parcel described as Exhibit 1, Part 3 of that corporation quitclaim deed recorded August 17, 1973 from Signal Bolsa Corporation to the State of California, recorded in Book 10855 Official Records Page 531, Orange County Records. END OF DESCRIPTION Prepared 12/14/2006 by California State Lands Commission Boundary Unit. LAND S� �. 0, No.7377 �Q- t��of CAL�Ffl�� SECTION 4 GENERAL PROVISIONS 1. GENERAL These provisions are applicable to all leases, permits, rights - of -way, easements, or licenses or other interests in real property conveyed by the State Lands Commission. CONSIDERATION (a) Categories (1) Rental Lessee shall pay the annual rental as stated in this Lease to Lessor without deduction, delay, or offset, on or before the beginning date of this Lease and on or before each anniversary of its beginning date during each year of the Lease term. (2) Non -Monetary Consideration If the consideration to Lessor for this Lease is the public use, benefit, health, or safety, Lessor shall have the right to review such consideration at any time and set a monetary rental if the State Lands Commission, at its sole discretion, determines that such action is in the best interest of the State. (b) Modification Lessor may modify the method, amount, or rate of consideration effective on each fifth anniversary of the beginning date of this Lease. Should Lessor fail to exercise such right effective on any fifth anniversary it may do so effective on any one (1) of the next four (4) anniversaries following such fifth anniversary, without prejudice to its right to effect such modification on the next or any succeeding fifth anniversary. No such modification shall become effective unless Lessee is given at least thirty (30) days notice prior to the effective date. (c) Penalty and Interest Any installments of rental accruing under this Lease not paid when due shall be subject to a penalty and shall bear interest as specified in Public Resources Code Section 6224 and the Lessor's then existing administrative regulations governing penalty and interest 3. BOUNDARIES This Lease is not intended to establish the State's boundaries and is made without prejudice to either party regarding any boundary claims which may be asserted presently or in the future. 4. LAND USE (a) General Lessee shall use the Lease Premises only for the purpose or purposes stated in this Lease and only for the operation and maintenance of the improvements expressly authorized in this Lease. Lessee shall commence use of the Lease Premises within ninety (90) days of the beginning date of this Lease or within ninety (90) days of the date set for construction to commence as set forth in this Lease, whichever is later. Lessee shall notify Lessor within ten (10) days after commencing the construction of authorized improvements and within sixty (60) days after completing them. Lessee's discontinuance of such use for a period of ninety (90) days shall be conclusively presumed to be an abandonment. (b) Continuous Use Lessee's use of the Lease Premises shall be continuous from commencement of the Lease until its expiration. (c) Repairs and Maintenance Lessee shall, at its own expense, keep and maintain the Lease„Premises and all improvements in good order and repair and in safe condition. Lessor shall have no obligation for such repair and maintenance. (d) Additions, Alterations, and Removal (1) Additions - No improvements other than those expressly authorized in this Lease shall be constructed by the Lessee on the Lease Premises without the prior written consent of Lessor. (2) Alteration or Removal - Except as provided under this Lease, no alteration or removal of. improvements on or natural features of the Lease Premises shall be undertaken without the prior written consent of Lessor. (e) Conservation Lessee shall practice conservation of water, energy, and other natural resources and shall prevent pollution and harm to the environment. Lessee shall not violate any law or regulation whose purpose is to conserve resources or to protect the environment. Violation of this section shall constitute grounds for termination of the Lease. Lessor, by its executive officer, shall notify Lessee, when in his or her opinion, Lessee has violated the provisions of this section and Lessee shall respond and discontinue the conduct or remedy the condition within 30 days. (t) Toxics Lessee shall not manufacture or generate hazardous wastes on the Lease Premises unless specifically authorized under other terms of this Lease. Lessee shall be fully responsible for any hazardous wastes, substances or materials as defined under federal, state or local law, regulation, or ordinance that are manufactured, generated, used, placed, disposed, stored, or transported on the Lease Premises during the Lease term and shall comply with and be bound by all applicable provisions of such federal, state or local law, regulation or ordinance dealing with such wastes, substances or materials. Lessee shall notify Lessor and the appropriate governmental emergency response agency(ies) immediately in the event of any release or threatened release of any such wastes, substances, or materials. (g) Enjoyment Subject to the provisions of paragraph 5 (a) (2) below, nothing in this Lease shall preclude Lessee from excluding persons from the Lease Premises when their presence or activity constitutes a material interference with Lessee's use Page 2 and .enjoyment of the Lease Premises as provided under this Lease. (h) Discrimination Lessee in its use of the Lease Premises shall not discriminate against any person or class of persons on the basis of race, color, creed, religion, national origin, sex, age, or handicap. (i) Residential Use No portion of the Lease Premises shall be used as a location for a residence or for the purpose of mooring a structure which is used as a residence. For purposes of this Lease, a residence or floating residence includes but is not limited to ` boats, barges, houseboats, trailers, cabins, or combinations of such facilities or other such structures which provide overnight accommodations to the Lessee or others. RESERVATIONS, ENCUMBRANCES, AND RIGHTS - OF -WAY (a) Reservations (1) Lessor expressly reserves all natural resources in or on the Lease Premises, including but not limited to timber and minerals as defined under Public Resources Code Sections 6401 and 6407, as well as the right to grant leases in and over the Lease Premises for the extraction of such natural resources; however, such leasing shall be neither inconsistent nor incompatible with the rights or privileges of Lessee under this Lease. (2) Lessor expressly reserves a right to go on the Lease Premises and all improvements. for any purpose associated with this Lease or for carrying out any function required by law, or the rules, regulations or management policies of the State Lands Commission. Lessor shall have a right of reasonable access to the Lease Premises across Lessee owned or occupied lands adjacent to the Lease Premises for any purpose associated with this Lease. (3) Lessor expressly reserves to the public an easement for convenient access across the Lease Premises to other State-owned lands located near or adjacent to the Lease Premises and a right of reasonable passage across and along any right-of-way granted by this Lease; however, such easement or right- of - way shall be neither inconsistent nor incompatible with the rights or privileges of Lessee under this Lease. (4) Lessor expressly reserves the right to lease, convey, or encumber the Lease Premises, in whole or in part, during the Lease term for any purpose not inconsistent or incompatible with the rights or privileges of Lessee under this Lease. 6. 8. (b) Encumbrances This Lease may be subject to pre-existing contracts, leases, licenses, easements, encumbrances, and claims and is made without warranty by Lessor of title, condition, or fitness of the land for the stated or intended purpose. RULES, REGULATIONS, AND TAXES (a) Lessee shall comply with and be bound by all presently existing or subsequently enacted rules, regulations, statutes or ordinances of the State Lands Commission or any other governmental agency or entity having lawful authority and jurisdiction. (b) Lessee understands and agrees that a necessary condition for the granting and continued existence of this Lease is that Lessee obtains and maintains all permits or other entitlements. (c) Lessee accepts responsibility for and agrees to pay- any and all possessory interest taxes, assessments, user fees or service charges imposed on or associated with the leasehold interest, improvements or the Lease Premises, and such payment shall not reduce rental due Lessor under this Lease and Lessor shall have no liability for such payment. INDEMNITY (a) Lessor shall not be liable and Lessee shall indemnify, hold harmless and, at the option of Lessor, defend Lessor, its officers, agents, and employees against and' for any and all liability, claims, damages or injuries of any kind and from any cause, arising out of or connected in any way with the issuance, enjoyment or breach of this Lease or Lessee's use of the Lease Premises except for any such liability, claims, damage or injury solely caused by the negligence of Lessor, its officers, agents and employees. (b) Lessee shall notify Lessor immediately in case of any accident, injury, or casualty on the Lease Premises, INSURANCE (a) Lessee shall obtain and maintain in full force and effect during the term of this Lease comprehensive general liability insurance and property damage insurance, with such coverage and limits as may be reasonably requested by Lessor from time to time, but in no event for less than the sum(s) specified, insuring Lessee and Lessor against any and all claims or liability arising out of the ownership, use, occupancy, condition or maintenance of the Lease Premises and all improvements. (b) The insurance policy or policies shall name the State of California, its officers, employees and volunteers as insureds as to the Lease Premises and shall identify the Lease by its assigned number. Lessee shall provide Lessor with a certificate of such insurance and shall keep such certificate current. The policy (or endorsement) must provide that the insurer will not cancel the insured's coverage without thirty (30) days prior written notice to Lessor. Lessor will not be responsible for any premiums or other assessments on the Form 51.15 (Rev. 6/06) Page 3 policy. The coverage provided by the insured (Lessee) shall be primary and non-contributing. (c) The insurance coverage specified in this Lease shall be in effect at all times during the Lease term and subsequently until all of the Lease Premises have been either accepted as improved, by Lessor, or restored by Lessee as provided elsewhere in this Lease. 9. SURETY BOND (a) Lessee shall provide a surety bond or other security device acceptable to Lessor, for the specified amount, and naming the State of California as the assured, to guarantee to Lessor the faithful observance and performance by Lessee of all of the terms, covenants, and conditions of this Lease. (b) Lessor may require an increase in the amount of the surety bond or other security device to cover any additionally authorized improvements, alterations or purposes and any modification of consideration. (c) The surety bond or other security device shall be maintained in full force and effect at all times during the Lease term and subsequently until all of the Lease Premises have been either accepted as improved, by Lessor, or restored by Lessee as provided elsewhere in this Lease. 10. ASSIGNMENT, ENCUMBRANCING OR SUBLETTING (a) Lessee shall not either voluntarily or by operation of law, assign, transfer, mortgage, pledge, hypothecate or encumber this Lease and shall not sublet the Lease Premises, in whole or in part, or allow any person other than the Lessee's employees, agents, servants and invitees to occupy or use all or any portion of the Lease Premises without the prior written consent of Lessor, which consent shall not be unreasonably withheld. (b) The following shall be deemed to be an assignment or transfer within the meaning of this Lease: (1) If Lessee is a corporation, any dissolution, merger, consolidation or other reorganization of Lessee or sale or other transfer of a percentage of capital stock of Lessee which results in a change of controlling persons, or the sale or other transfer of substantially all the assets of Lessee; (2) If Lessee is a partnership, a transfer of any interest of a general partner, a withdrawal of any general partner from the partnership, or the dissolution of the partnership. (c) If this Lease is for sovereign lands, it shall be appurtenant to adjoining littoral or riparian land and Lessee shall not transfer or assign its ownership interest or use rights in such adjoining lands separately from the leasehold rights granted herein without the prior written consent of Lessor. (d) If Lessee desires to assign, sublet, encumber or otherwise transfer all or any portion of the Lease Premises, Lessee shall do all of the following: (1) Give prior written notice to Lessor; (2) Provide the name and complete business organization and operational structure of the proposed assignee, sublessee, secured third party, or other transferee; and the nature of the use of and interest in the Lease Premises proposed by the assignee, sublessee, secured third party or other transferee. If the proposed assignee, sublessee, or secured third party is a general or limited partnership, or a joint venture, provide a copy of the partnership agreement or joint venture agreement, as applicable; (3) Provide the terms and conditions of the proposed assignment, sublease, or encumbrance or other transfer; (4) Provide audited financial statements for the two most recently completed fiscal years of the proposed assignee; sublessee, secured party or other transferee; and provide pro forma financial statements showing the projected income, expense and financial condition resulting from use of the Lease Premises; and (5) Provide such additional or supplemental information as Lessor may reasonably request concerning the proposed assignee, sublessee, secured party or other transferee. Lessor will evaluate proposed assignees, sublessees, secured third parties and other transferees and grant approval or disapproval according to standards of commercial reasonableness considering the following factors within the context of the proposed use: the proposed parry's financial strength and reliability, their business experience and expertise, their personal and business reputation, their managerial and operational skills, their proposed use and projected rental, as well as other relevant factors. (e) Lessor shall have a reasonable period of time from the receipt of all documents and other information required under this provision to grant or deny its approval of the proposed party. (f) Lessee's mortgage or hypothecation of this Lease, if approved. by Lessor, shall be subject to terms and conditions found in a separately drafted standard form (Agreement and Consent to Encumbrancing of Lease) available from Lessor upon request. (g) Upon the express written assumption of all obligations and duties under this Lease by an assignee approved by Lessor, the Lessee may be released from all liability under this Lease arising after the effective date of assignment and not associated with Lessee's use, possession or occupation of Form 51.15 (Rev. 6/06) Page 4 or activities on the Lease Premises; except as to any hazardous wastes, substances or materials as defined under federal, state or local law, regulation or ordinance manufactured, generated, used, placed, disposed, stored or transported on the Lease Premises. (h) If the Lessee files a petition or an order for relief is entered against Lessee, under Chapters 7,9,11 or 13 of the Bankruptcy Code (11 USC Sect. 101, et seq.) then the trustee or debtor -in -possession must elect to assume or reject this Lease within sixty (60) days after filing of the petition or appointment of the trustee, or the Lease shall be deemed to have been rejected, and Lessor shall be entitled to immediate possession of the Lease Premises. No assumption or assignment of this Lease shall be effective unless it is in writing and unless the trustee or debtor -in - possession has cured all defaults under this Lease (monetary and non -monetary) or has provided Lessor with adequate assurances (1) that within ten (10) days from the date of such assumption or assignment, all monetary defaults under this Lease will be cured; and (2) that within thirty (30) days from the date of such assumption, all non -monetary defaults under this Lease will be cured; and (3) that all provisions of this Lease will be satisfactorily performed in the future. 11. DEFAULT AND REMEDIES (a) Default The occurrence of any one or more of the following events shall immediately and without further notice constitute a default or breach of the Lease by Lessee: (1) Lessee's failure to make any payment of rental, royalty, or other consideration as required under this Lease; (2) Lessee's failure to obtain or maintain liability insurance or a surety bond or other security device as required under this Lease; (3) Lessee's vacation or abandonment of the Lease Premises (including the covenant for continuous use as provided for in paragraph 4) during the Lease term; (4) Lessee's failure to obtain and maintain all necessary governmental permits or other entitlements; (5) Lessee's failure to comply with all applicable provisions of federal, state or local law, regulation or ordinance dealing with hazardous waste, substances or materials as defined under such law; (6) Lessee's Failure to commence to construct and to complete construction of the improvements authorized by this Lease within the time limits specified in this Lease; and/or (7) Lessee's failure to comply with applicable provisions of federal, state or local laws or ordinances relating to issues of Health and Safety, or whose purpose is to conserve resources or to protect the environment. (b) Lessee's failure to observe or perform any other term, covenant or condition of this Lease to be observed or performed by the Lessee when such failure shall continue for a period of thirty (30) days after Lessor's giving written notice; however, if the nature of Lessee's default or breach under this paragraph is such that more than thirty (30) days are reasonably required for its cure, then Lessee shall not be deemed to be in default or breach if Lessee commences such cure within such thirty (30) day period and diligently proceeds with such cure to completion. (c) Remedies In the event of a default or breach by Lessee and Lessee's failure to cure such default or breach, Lessor may at any time and with or without notice do any one or more of the following: (1) Re-enter the Lease Premises, remove all persons and property, and repossess and enjoy such premises; (2) Terminate this Lease and Lessee's right of possession of the Lease Premises. Such termination shall be effective upon Lessor's giving written notice and upon receipt of such notice, Lessee shall immediately surrender possession of the Lease Premises to Lessor; (3) Maintain this Lease in full force and effect and recover any rental, royalty, or other consideration as it becomes due without terminating Lessee's right of possession regardless of whether Lessee shall have abandoned the Lease Premises; and/or (4) Exercise any other right or remedy which Lessor may have at law or equity. 12. RESTORATION OF LEASE PREMISES (a) Upon expiration or sooner termination of this Lease, Lessor upon written notice may take title to any or all improvements, including fills, or Lessor may require Lessee to remove all or any such improvements at its sole expense and risk; or Lessor may itself remove or have removed all or any portion of such improvements at Lessee's sole expense. Lessee shall deliver to Lessor such documentation as may be necessary to convey title to such improvements to Lessor free and clear of any liens, mortgages, loans or any other encumbrances. (b) In removing any such improvements Lessee shall restore the Lease Premises as nearly as possible to the conditions existing prior to their installation or construction. Form 51.15 (Rev. 6/06) Page 5 (c) All plans for and subsequent removal and restoration shall be to the satisfaction of Lessor and shall be completed within ninety (90) days after the expiration or sooner termination of this Lease or after compliance with paragraph 12(d), whichever is the lesser. (d) In removing any or all the improvements Lessee shall be required to obtain any permits or other governmental approvals as may then be required by lawful authority. (e) Lessor may at any time during the Lease term require Lessee to conduct at its own expense and by a contractor approved by Lessor an independent environmental site assessment or inspection for the presence or suspected presence of hazardous wastes, substances or materials as defined under federal, state or local law, regulation or ordinance manufactured, generated, used, placed, disposed, stored or transported on the Lease Premises during the term of the Lease. Lessee shall provide the results of the assessment or inspection to Lessor and the appropriate governmental response agency(ies) and shall further be responsible for removing or taking other appropriate remedial action regarding such wastes, substances or materials in accordance with applicable federal, state or local law regulation or ordinance. 13. QUITCLAIM Lessee shall, within ninety (90) days of the expiration or sooner termination of this Lease, execute and deliver to Lessor in a form provided by Lessor a good and sufficient release of all rights under this Lease. Should Lessee fail or refuse to deliver such a release, a written notice by Lessor reciting such failure or refusal shall, from the date of its recordation, be conclusive evidence against Lessee of the termination of this Lease and all other claimants. 14. HOLDING -OVER Any holding -over by Lessee after the expiration of the Lease term, with or without the express or implied consent of Lessor, shall constitute a tenancy from month to month and not an extension of the Lease term and shall be on the terms, covenants, and conditions of this Lease, except that the annual rental then in effect shall be increased by twenty- five percent (25%). (b) Time. Time is of the essence of this Lease and each and all of its terms, covenants or conditions in which performance is a factor. (c) Notice All notices required to be given under this Lease shall be given in writing, sent by U.S. Mail with postage prepaid, to Lessor at the offices of the State Lands Commission and the Lessee at the address specified in this Lease. Lessee shall give Lessor notice of any change in its name or address. (d) Consent Where Lessor's consent is required under this Lease its consent for one transaction or event shall not be deemed to be a consent to any subsequent occurrence of the same or any other transaction or event. (e) Changes This Lease may be terminated and its term, covenants and conditions amended, revised or supplemented only by mutual written agreement of the parties. (f) Successors The terms, covenants and conditions of this Lease shall extend to and be binding upon and inure to the benefit of the heirs, successors, and assigns of the respective parties. (g) Joint and Several Obligation If more than one Lessee is a party to this Lease, the obligations of the Lessees shall be joint and several. (h) Captions The captions of this Lease are not controlling and shall have no effect upon its construction or interpretation. (i) Severability If any term, covenant or condition of this Lease is determined by a court of competent jurisdiction to be invalid, it shall be considered deleted and shall not invalidate any of the remaining terms, covenants and conditions. 15. ADDITIONAL PROVISIONS (a) Waiver (1) No term, covenant, or condition of this Lease and no default or breach of any such term, covenant or condition shall be deemed to have been waived, by Lessor's acceptance of a late or nonconforming performance or otherwise, unless such a waiver is expressly acknowledged by Lessor in writing. (2) Any such waiver shall not be deemed to be a / waiver of any other term, covenant or condition of any other default or breach of any term, covenant or condition of this Lease. Form 51.15 (Rev. 6/06) Page 6 STATE OF CALIFORNIA - STATE LANDS COMMISSION LEASE NO. PRC 8738.9 This Lease shall become effective only when approved by and executed on behalf of the State Lands Commission of the State of California and a duly executed copy has been delivered to Lessee. The submission of this Lease by Lessor, its agent or representative for examination by Lessee does not constitute an option or offer to lease the Lease Premises upon the terms and conditions contained herein, or a reservation of the Lease Premises in favor of Lessee. Lessee's submission of an executed copy of this Lease to Lessor shall constitute an offer to Lessor to lease the Lease Premises on the terms and conditions set forth herein. IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the date hereafter affixed. LESSEE: CITY OF HUNTINGTON BEACH LESSOR: STATE OF CALIFORNIA STATE LANDS COMMISSION Robert F. Beardsley Title: Director of Public W Date: 2/Z7//Zc-'c>7 ACKNOWLEDGEMENT Chi Drvrsfun Title: land Management Date: JUN 19 7007 This Lease was authorized by the California State Lands Commission on /,Q114 (Mor(th ay Year) Form 51.15 (Rev. 6/06) CALIFORNIA•ACKNOWLEDGMENT .... .,vaC------- �..,s- . ,:.�. .......�..s�d;s�C,.^.....�.C,s?.'vs�,•,.s�C,-LC <...�. c�>..T. '�.'va..,�. vs...a.'..T.'..�:,.v.Z/.�-C.. .z. ,s1 ,:sa..r. State of Californniiaa✓I `� C /JV��� ss. County of On jG;A. a��, before me, /b Z--- �f i 42A Date N Name and Title of Off4Qr (e.g., "Jane Eloe, Notary Public") personally appeared Name(s) of Signer(s) ❑ personally known to me �C proved to me on the basis of satisfactory evidence to be the person(jo whose name(k) isfam subscribed to the within instrument and acknowledged to me that heAshe4hey executed the same in him authorized capacity(o&�, and that by hisA49A46W signature(4 on the instrument the person(,), or the entity upon behalf of which the personX acted, executed the instrument. WITW hand and offic I seal. Signature of Notary ublic OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Place Notary Seal Above Document Date: Signer(s) Other Than Named Above: Capacity(ies) C411med by Sig r(s) Signer's Name: 7W ry ❑ Individual 14 Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact Top of thumb here ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here 0 2004 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 Item No. 5907 Reorder: Call Toll -Free 1-800-876-6827 CALIFORNIA•ACKNOWLEDGMENT S'.�..c�>,:1. TSw-a.,-aft...�S..�Ss�.,�>..�S.c�S,c�;,.-aS�S��.•,..�5 Ss�C,.�4..T4�.s�S�S�:�4.TS_.�;..T�sa�.•�•.�S.c�S.c�Ss� s�S��,��,�-�.> >,c�S S,?, State of California } ss. County of Si�f"r�-11)lel`ifiL J On `6i/iSf 10 ° Q before me, C1�G�CP1 I�clfiGf NO i �1i711 Date Name and Title of Officer (e.g., "Jane doe, Notary Public") personally appeared C►1���lil% i po6I v� �fl Name(s) of Signer(s) ------------- i�• Place Notary Seal Above personally known to me ❑ proved to me on the basis of satisfactory evidence to be the person whose nameelis/aKe subscribed to he within instrument and acknowledged to me that *she/twey executed the same in 4i</her/th4ir authorized capacity(i9K, and that by Ws/her/tk(ir signature4 on the instrument the person(,s`f, or the entity upon behalf of which the personA acted, executed the instrument. WITNESS my hand and official seal. OPTIONAL Signature of Notary Public Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General Tim ❑ Attorney in Fact Top of thumb here ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): _ ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing RIGHT THUMBPRINT OF SIGNER Top of -- © 2004 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 Item No. 5907 Reorder: Call Toll -Free 1-800-876-6827 City of Huntington Beach Lift Station D Warner Ave. Gravity Sewer Mitigation Monitoring Program CC# 1182 CC# 1269 Description of Mitigation Measure Implimentation Monitoring Activity Timin Responsible compliance Verification Date I pact Documentation Monitor Signature Design grading and construction activities undertaken to implement the Review and approve project shall be in accordance with the seismic design criteria of the Project construction activities for Public Works, Uniform Building Code, Seismic Standards and accepted grading Construction Plans compliance with plans, Construction practice (per City of Huntington Beach policy EH 1.2.1) and Specifications specifications, codes and Division GEO-1 standards Specifications for all excavation activities will identify BMPs, such as requiring the use of sand bags and bales where appropriate; to reduce potential erosion and surface water quality impacts during excavation and other construction activities. The BMPs will be incorporated into H-1 special conditions within a construction permit issued by the California Coastal Commission. The City will take steps to monitor the actual Review contractors Public Works, (Impacts on excavation, and other construction activities to ensure that said work is Stormwater activities for compliance Ongoing During Water Quality & surface water being carried out in conformance with the BMP specifications. Pollution with Stormwater Pollution Construction Construction The review and approval process required to obtain the construction Prevention Plan prevention plan Division quality and water permit for the project from the California Coastal Commission will discharge ensure that the BMPs, adopted and implemented with respect to this requirements project will be sufficient to reduce the potential impacts of the project on during surface water quality to a level that is less than significant. construction activities) Construction materials, debris, or waste placed onsite will not directly or Review contractors ' Public Works, indirectly contact or enter receiving waters entering the Pacific Ocean. Stormwater activities for compliance Ongoing During Water Quality & All construction materials, excluding lumber, shall be covered and Pollution with Stormwater Pollution Construction Construction enclosed on all sides, and stored as far away from the existing storm Prevention Plan prevention plan Division H-2 drain inlet, excavation and receiving waters as possible. Construction debris and sediment shall be removed from project Review contractors Public Works, construction areas each day that construction occurs to prevent the Stormwater activities for compliance Ongoing During Water Quality & onsite accumulation of sediment and other debris. Any and all debris Pollution with Stormwater Pollution Construction Construction resulting from construction activities shall be removed from the project Prevention Plan , prevention plan Division H-3 site within 24 hours of completion of the project. All construction debris resulting from the proposed project shall be Review contractors Public Works, disposed of at an approved landfill located outside the coastal zone. Stormwater activities for compliance Ongoing During Water Quality & Pollution Prevention Plan with Stormwater Pollution Construction Construction H-4 prevention plan Division Any areas within the project site that are affected by construction Review contractors Public Works, activities shall be revegetated for slope stability, erosion control, and Stormwater activities for compliance Ongoing During Water Quality & habitat enhancement. Pollution Prevention Plan with Stormwater Pollution Construction Construction H-s prevention plan Division City of Huntington Beach Mitigation Monitoring Program CC# 1182 Lift Station D Warner Ave. Gravity Sewer CC# 1269 Description of Mitioatian Measure Implimentation Monitoring Activity Timing Restionsible Compliance Verification Date Impact Documentation Monitor Si?nature Prior to construction of the proposed improvements, the contractor will provide a traffic control plan that will provide safe detours around the project construction site and provide temporary traffic control (i.e. flag person) during concrete transport and other construction -related truck Review contractors Public Works, AQ-1 hauling activities. Traffic Control Plan activities for compliance Ongoing During Traffic & with traffic control plan and Construction Construction (Violation of state City standards Division or federal ambient air qualivy standards) During construction of the proposed improvements, construction Review and approve equipment will be properly maintained at an offsite location and includes Project Construction Plans construction activities for Ongoing During Public Works, tunin and timing of engines. Equipment maintenance records proper 9 g gp compliance with plans, p Construction Construction and equipment design specification data sheets shall be kept on -site and Specifications specifications, codes and Division AQ-2 during construction. standards During construction of the proposed improvements, all contractors will Review and approve be advised not to idle construction equipment on site for more than ten Project Plans construction activities for with Ongoing During Public Works, minutes. Construction compliance plans, Construction Construction and Specifications specifications, codes and Division AQ-3 standards During construction of the proposed improvements, contractors will use Review and approve electricity from power poles rather than temporary diesel power Project construction activities for Ongoing During Public Works, generators. Construction Plans compliance with plans, Construction Construction and Specifications specifications, codes and Division AQ-4 standards Prior to construction, the contractor shall include all dust suppression Review and approve measures that the City determines compliance with SCAQMD Rules Project construction activities for Ongoing During Public Works, 403 and 404. Construction Plans compliance with plans, Construction Construction and Specifications . specifications, codes and Division AQ-5 standards Prior to construction, the City will develop a traffic control plan that will provide safe detours around the project construction within the public rights -of -way of Los Patos Avenue, Warner Avenue, and Pacific Coast Highway. Review contractors Public Works, T-1 Traffic Control Plan activities for compliance Ongoing During Traffic & with traffic control plan and Construction Construction City standards Division (Impacts to the flow of Traffic) City of Huntington Beach Lift Station D Warner Ave. Gravity Sewer Mitigation Monitoring Program CC#1 1182 CC# 1269 ` Description of AlitigationMeasure Implimentation D'IonitoringActivity Timing Responsible Compliance Verification Date Impact Documentation Monitor Signature Information needs to be provided that.the Warner Fire Station was previously remediated or the site needs to be remediated prior to issuance of a grading permit. HZ-1 (Hazardous impacts to the project site) During construction of the proposed improvements, mobile construction equipment will be properly maintained at an offsite location and includes proper tuning and timing of engines to minimize noise emissions. Review and approve N-1 Project construction activities for Ongoing Dur ng Public Works, Construction Plans compliance with plans, Construction Construction and Specifications specifications, codes and Division standards (construction noise impacts) All equipment shall be fitted with properly operating mufflers, air intake Review and approve silencers and engine shrouds. Project construction activities for Ongoing During Public Works, Construction Plans compliance with plans, Construction Construction and Specifications specifications, codes and Division N-2 standards Construction shall be restricted to between the hours of 7:00 a.m. and Review and approve 8:00 p.m. on weekdays, including Saturday. No construction shall occur Project construction activities for Public Works, at any time on Sunday or on a federal holiday. These days and hours Construction Plans compliance with plans, Ongoing During Construction shall also apply to any servicing of equipment and to the delivery of and Specifications specifications, codes and Construction Division -3 materials to or from the site. standards During trenching operations a qualified archaeologist shall be on the Review and approve project site monitoring excavation activities. Project construction activities for Ongoing During Public Works, Construction Plans compliance with plans, Construction Construction and Specifications specifications, codes and Division C-1 standards ATTACHMENT #3 CITY OF HUNTINGTON BEACH 2000 MAIN STREET OFFICE OF THE CITY CLERK JOAN L. FLYNN CITY CLERK February 28, 2007 Reimbursement Administrator California State Lands Commission 100 Howe Avenue, Suite 100-South Sacramento, CA 95825-8202 Dear Ms. Brown: CALIFORNIA 92648 Enclosed please find the Standard Agreement #R08206 between the City of Huntington Beach and the California State Lands Commission for construction of a sewer lift station and gravity sewer main at 4200 Warner Avenue between Pacific Coast Highway and Los Patos Avenue. Upon execution by the commission, please return a complete copy to: Joan L. Flynn City Clerk 2000 Main Street Huntington Beach CA 92648 Your attention to this matter is greatly appreciated. Sincerely, toan L. Flynn City Clerk JF: pe Enclosure: Agreement G:fo1Iowup:agrmt1tr 1 Telephone: 714-536-5227) STATE OF CALIFORNIA California State Lands Commission 100 Howe Avenue, Suite 100 South Sacramento, California 95825 Date: December 11, 2006 Agreement #: R08206 To: Attn: Joe Dale City of Huntington Beach Public Works 2000 Main Street Huntington Beach CA 92648 From: Reimbursement Administrator California State Lands Commission 100 Howe Avenue, Suite-100 South Sacramento, CA 95825-8202 Subject: Application for General Lease — Public Agency Use W26183 1. ❑ Std.213, Interagency Agreement for a reimbursement agreement, enclosed with six(6) signed copies on the behalf of the CSLC. Along with a copy of CSLC approved exemption. Continue processing and when approved, return a fully executed copy to the California State Lands Commission office. 2. ® Reimbursement Agreement. Enclosed are four (4) face sheets and one (1) full copy. Please sign the four(4) face sheets and return them for further processing along with the deposit request. Keep the one (1) full copy for your records. A fully executed agreement will be mailed to you. 3. ❑ Std 213, Standard Reimbursement Agreement. Enclosed are four(4) copies. Sign three (3) copies and return for further processing. Keep one (1) copy for your files. A fully executed copy will be mailed to you. 4. ❑ Std.213, Standard Agreement —Interagency Agreement. Three (3) copies enclosed. Sign two (2) copies and return for further processing. Keep one (1) copy for your records. A fully executed copy will be mailed to you. 5. ❑ Std.210, Simplified Service Contract with attachment. Sign one (1) original and three (3) face sheets and return for further processing. A fully executed copy will be mailed to you. s 6. ❑ Attached are four copies (face sheets) of the Std 213, Standard Agreement signed on behalf of the California State Lands Commission. Continue processing and when approved, return a fully executed copy to this office. 7. ❑ Enclosed is a fully executed copy of the Reimbursement Agreement for your files. 8. ❑ Please initial all corrections and/or changes. 9.OWN Please call Monika Saputra at (916) 5114-0397 agreement. Attachment(s) you have any questions about the above referenced reimbursement STATE OF CALIFORNIA STANDARD AGREEMENT STD.213 (new 06/03) AGREEMENT NUMBER R08206 REGISTRATION NUMBER 1. This Agreement is entered into between the State Agency and the Contractor named below: STATE AGENCY'S NAME California State Lands Commission (CSLC) CONTRACTOR'S NAME City of Huntington Beach; hereinafter "Applicant" 2. The term of this Agreement is: October 24, 2006 to October 23, 2007 3. The maximum amount of this Agreement is: $ 9,000.00 4. The parties agree to comply with the terms and conditions of the following exhibits which are by this reference made a part of the Agreement: Exhibit A — Scope of Work 2 Page(s) Exhibit B — Budget Detail and Payment Provision/Definitions and Terms 2 Page(s) Exhibit C — General Terms and Conditions 2 Page(s) Check mark one item below as Exhibit D: Page(s) ❑ Exhibit D — Special Terms and Conditions (attached hereto as part of this Agreement) n Exhibit D* — Special Terms and Conditions Items shown with an Asterisk (*) are hereby incorporated by reference and made part of this Agreement as if attached hereto. These documents can be viewed at http✓/www.ols.dgs.ca.gov/Standard+Language/default.htm. IN WITNESS WHEREOF, this Agreement has been executed by parties hereto. CALIFORNIA CONTRACTOR Department of General Services Use oniv CONTRACTOR'S NAME (tf other than individual, state whether a corporation, partnership, etc.) Citv of Huntinqton Beach B(Authariz �Signature), 5..�. J DATE SIGNED j�OPi 7 PRINTED NAME AND TITLE OF PERSON ADDRESS 2000 Min Street. Huntington Beach, CA 92648 {I STATE OF CALIFORNIA AGENCY NAME California State Lands Commission BY (Authorized Signature) PRINTED NAME AND TITLE OF PERSON SIGNING David W. Brown. Chief. Administration DATE SIGNED ADDRESS 100 Howe Avenue, Suite100 South, Sacramento, California 95825-8202 CONTRACT REVIEW AND APPROVAL RECOMMENDED BY LEGAL: Jim Frey, Staff Counsel J LV�F- B I cy Deputy City Attornev ® Exempt per GC &14616 G:ADMIN1Reimbursements\2006-07 Agreements\R08206 City of HB\R08206.doc EXHIBIT A SCOPE OF WORK R08206 City of Huntington Beach 1. Work to be Performed — Applicant has submitted an application for a new General Lease -Public Agency Use, pertaining to the applicant's project described as: construction of a sewer lift station and gravity sewer main and forced sewer main at 4200 Warner Avenue between Pacific Coast Highway and Los Patos Avenue, Huntington Beach on file with the State and identified as Work Orders W26183. The State hereby agrees to perform the following services: A. Application Processing: The State shall process the Applicant's project application. Processing shall include, but not be limited to, document preparation, negotiation of terms and conditions, review of project impacts on the Public Trust when necessary, field inspections, preparation of field reports, office technical review services, boundary services, appraisals and coordination with other governmental agencies, but shall not include preparation of an environmental analysis or mitigation monitoring program. B. Environmental Analysis: The State as a Responsible Agency shall review the environmental document prepared by the Lead Agency and perform all other duties required by law of a responsible agency. C. Construction Compliance and Monitoring: CEQA (Pub. Res. C. Sec. 21081.6) requires the Lead Agency for an approved project to adopt a mitigation and compliance monitoring program to ensure that mitigation measures and other conditions for the Applicant's project are implemented. The Applicant shall be provided with a copy of the proposed monitoring program prior to approval by the State. Applicant agrees to comply with the program as a condition of approval of the project. A refundable deposit may be required to insure construction compliance with the mitigation program. This deposit will be used to cover costs not otherwise reimbursed by the Applicant. This Agreement shall be amended to reflect the estimated costs when they are identified. D. This Agreement is entered into by the parties hereto with the express understanding that the State cannot assure: 1) final approval of the permit or lease for the proposed project; 2) that permits from other State or local permitting agencies are obtainable: 3) that either the State or the Applicant by entering into this Agreement is representing that the project will go forward as proposed; and 4) that either the State or the applicant is irrevocably committed to proceeding with this project. 2. Parties' Agents A. The State's Project Officer shall be: Judy Brown CA State Lands Commission 100 Howe Avenue, Suite 100 South Sacramento, CA 95825-8202 Tel. 916-574-1868 Fax 916-574-18 Email: brown* _sic.ca.gov B. The Applicant's Project Manager shall be: Joe Dale, Contract Administrator City of Huntington Beach, Public Works 2000 Main Street Huntington Beach, CA Tel. 714-536-5915 Fax 714-374-1573 Email: idale(@surfcity-hb.org R08206 City of Huntington Beach 3. Notices and Authorities A. Any notice or other written communications required or permitted under this Agreement may be personally delivered in writing to the Project Officer or Project Manager, or may be sent by certified mail, return receipt requested, to the address stated above and shall, based on such delivery or sending, be deemed to have been effectively communicated. Either party may change such address by written notice to the other party. Any notice given other than as provided above, shall not be deemed to be effectively communicated until received in writing. B. The Project Manager shall have full authority to act on behalf of the Applicant for administration of the project. All communications given to the Project Manager shall be as binding as if given to the Applicant. C. The State may change its Project Officer at any time by written notice to the Applicant. The Applicant may change its Project Manager at any time by written notice to the State's Project Officer. EXHIBIT B GENERAL TERMS AND CONDITIONS R08206 City of Huntington Beach Invoicing and Payment — Applicant agrees to reimburse the State for all reasonable costs associated with the processing of its application according to this Standard Agreement whether prior or subsequent to the execution of this Agreement. Processing costs shall include, but not be limited to, 1) actual costs of the State staff time to conduct the following: document processing, negotiation of terms and conditions, field inspections (travel and per diem), preparation of field reports, technical and legal reviews, boundary services, and consultation and coordination; 2) consultant contracts or preparation of any portion of the project application, should the State deem such work or any additional work to be necessary; 3) any other associated activity involved in processing the application described in Exhibit A. Staff costs shall be computed in accordance with Section 8752 of the State Administrative Manual and shall include salaries and wages, related staff benefits and administrative overhead. The invoice shall be mailed to the Applicant's Project Manager. Payments shall reference the Agreement number assigned to this project and must be mailed to the following address: State Lands Commission 100 Howe Avenue, Suite 100 South Sacramento, CA 95825-8202 Attn: Fiscal Services 2. Estimated Reimbursable Costs — The initial estimated costs are based on the information and contracts existent as of the date of this Agreement, it is estimated that the itemized reimbursable costs for Work To Be Performed will be: Initial Application Processing Fees $ 9,000 and Engineering Review Environmental Analysis and Review Staff Costs (initial) $ N/A Consultant $ N/A Engineering Compliance & Mitigation Monitoring Staff Costs $ to be determined Consultant $ to be determined Approximate Total Cost $ 9,000 Estimated costs above are based on the initial processing of the application. Additional costs will be determined upon defining of the scope of the project and cost of consultant contracts. 3. Expense Deposits and Billings — An expense deposit equal to the amount of the initial contract shall be made upon execution of this agreement. Additional staff costs incurred by the State pursuant to this Agreement shall be billed in arrears on a monthly basis. All payments are due 30 days from date of the invoice. 4. Additional Costs or Services — Applicant will be advised of any estimated cost increase in writing in accordance with this Agreement should the need for additional services become known or as costs previously estimated exceed the above estimate by ten percent (10%). Upon notification of the need for additional funds, the Applicant shall have the right to terminate this Agreement in accordance with the Termination clause; or dispute the change. The Applicant shall have the option to dispute or accept the increase with all the terms and conditions of this Agreement being unchanged and in effect. Applicant shall notify the State within five (5) days of notice of any intent to terminate the Agreement or dispute the change. Non -response shall be acknowledged as acceptance of the additional charges and Applicant will be billed for the balance in accordance with the terms above. R08206 City of Huntington Beach 5. Definitions and Terms - Wherever the following abbreviations and terms (or pronouns in place of them) are used, the intent and meaning shall be interpreted as provided in this section. Working titles having a masculine gender, and pronouns referring to such said titles, are utilized in this Agreement for the sake of brevity and are not intended to refer to either sex or the neuter. All references to the singular shall refer also to the plural. All references to the plural shall refer also to the singular. A. The term "Agreement" refers to this document as executed by the Applicant and the State. This document includes Standard Form and any attached Exhibits. B. The term "Application Processing" refers to all staff services necessary to process an applicant's proposed project application but shall not include staff services for environmental analysis or project mitigation monitoring pursuant to CEQA. C. The term "Executive Officer" refers to the Executive Officer of the State Lands Commission. D. The term "Project" means that activity which is the subject of the application for a permit, lease or other entitlement from the State. E. The term "Project Manager" refers to that person appointed or designated by the Applicant to administer the project for the Applicant. F. The term "Project Officer" refers to that person appointed by the State to process the project application. G. The term "CEQA" refers to the California Environmental Quality Act of 1970, as amended (Public Resources Code Section 21000 et seq.). H. The term "Department of Fish and Game Fees" refers to those fees authorized under Fish and Game Code Section 711.4. 1. The term "Environmental Officer' refers to that person designated by the State to be responsible for the preparation of the environmental analysis and conduct of the mitigation monitoring program. J. The term "Mitigation Monitoring Program" refers to that program mandated by CEQA as found in Public Resources Code Section 21081.6. EXHIBIT C GENRAL TERMS AND CONDITIONS R08206 City of Huntington Beach 1. Assignment - Without the written consent of the State, this Agreement is not assignable by Applicant either in whole or in part. 2. Timeliness -Time is of the essence in this Agreement. 3. Deviations - Any alteration or variation of the terms of this Agreement shall be invalid unless made in writing and signed by the parties hereto, and no oral understanding or agreement not incorporated herein, shall be binding on any of the parties hereto. 4. Indemnification - State: To the extent allowable by law, the State hereby agrees to hold harmless the Applicant, its agencies, officers, agents, and employees from any liability imposed for injury or damage to property caused by any act or omission arising out of the State's performance of this Agreement, but only in proportion to, and to the extent such liability arises as a result of the negligence or willful misconduct of the State, its agencies, officers, agents, and employees or anyone acting under the Applicant's direction or control or on State's own behalf. Applicant: To the extent allowable by law, Applicant hereby agrees to hold harmless the State, its agencies, officers, agents, and employees from any liability imposed for injury or damage to property caused by any act or omission arising out of the Applicant's performance of this Agreement, but only in proportion to, and to the extent such liability arises as a result of the negligence or willful misconduct of the Applicant, its agencies, officers, agents, and employees, or anyone acting under the Applicant's direction or control or on Applicant's own behalf. 5. Governing Law -This Agreement shall be governed by the laws of the State of California, both as to interpretation and performance. 6. Amendments - Amendments to this Agreement may be proposed by either party and shall be effected by issuance of a written instrument executed by both parties. The Agreement price may be equitably adjusted to reflect any additional costs or new savings resulting from such amendment(s). 7. Termination - Either party may elect to terminate this Agreement by written notice at any time prior to referral of the project to the Commission upon ten (10) days written notice to the other party. The Applicant agrees that in the event of termination of this agreement by either party as provided above, it shall reimburse the State upon its written request one hundred percent (100%) of all costs incurred by the State in the performance of its obligations as described in this Agreement. 8. Records - Upon five (5) business days notice, the State's records relating to its costs shall be available for the Applicant's audit in the State's office in Sacramento. Said audit shall take place only during regular business hours of the State. Payment of costs by the Applicant shall not constitute a waiver of its rights to audit nor an acknowledgment by the Applicant of the validity of the costs that have been paid. Nothing herein shall be deemed to require the State, its consultants, other contractors and subcontractors to maintain books, records, or documents other than those usually maintained by them, provided that such books, records and documents reasonably segregate and identify the costs for which reimbursement is required hereunder. As used herein, "State's records" include any audit of the consultant by the State or its designated representative as authorized in this Agreement. 9. Disputes - Except as otherwise provided in this Agreement, any dispute concerning a question of fact arising under or relating to the performance of this Agreement which is not disposed of by agreement shall be decided by the Project Officer, who shall reduce his decision to writing in regard to the dispute and shall transmit a copy thereof to the Applicant within thirty (30) days. The decision of the Project Officer shall be final and conclusive, unless within thirty (30) days from the date of receipt of such copy, the Applicant transmits to the State a written appeal. Said appeal shall be supported with specificity. R08206 City of Huntington Beach In connection with any appeal proceeding under this clause, the Applicant shall be afforded an opportunity to be heard before the State Lands Commission within sixty (60) days of the receipt by the State of the Applicant's written appeal and to offer evidence in support of its appeal. Pending the final decision of any such dispute, the Applicant shall proceed diligently with the performance of the Agreement and in accordance with the written decision of the Project Officer which is the subject of the Applicant's appeal including the payment of invoices to the State. The procedure described herein shall not prejudice or deny the Applicant his remedies at law. However, the Applicant agrees to exhaust the procedure described herein before pursuing his remedies at law. All amounts paid to the State under protest shall be held by the State in trust until the dispute is resolved. RCA ROUTING SHEET INITIATING DEPARTMENT: Economic Development SUBJECT: Approval of Lease with CA State Lands Commision for Warner Avenue Sewer Project COUNCIL MEETING DATE: February 20, 2007 RCA ATTACHMENTS STATUS Ordinance (w/exhibits & legislative draft if applicable) Attached ❑ Not Applicable Resolution (w/exhibits & legislative draft if applicable) Attached Not Applicable Tract Map, Location Map and/or other Exhibits Attached Not Applicable ❑ Contract/Agreement (w/exhibits if applicable) Attached ❑ Signed in full by the City Attorney) Not Applicable Subleases, Third Party Agreements, etc. Attached Approved as to form by City Attorney) Not Applicable ❑ Certificates of Insurance (Approved by the City Attorney) Attached ❑ Not Applicable Fiscal Impact Statement (Unbudgeted, over $5,000) Attached ❑ Not Applicable Bonds (If applicable) Notached t Applicable Staff Report (If applicable) Attached Not Applicable Commission, Board or Committee Report (If applicable) Attached ❑ Not Ap licable Findings/Conditions for Approval and/or Denial Attached Not Applicable EXPLANATION FOR MISSING ATTACHMENTS REVIEWED RETURNED FORWARDED Administrative Staff ( ) &�- Deputy City Administrator Initial At - City Administrator Initial City Clerk ) EXPLANATION FOR RETURN OF ITEM: RCA Author: HOLTZ (5901) i- , STATE OF CALIFORNIA ARNOLD SCHWARZENEGGER, Governor CALIFORNIA STATE LANDS COMMISSION 100 Howe Avenue, Suite 100-South Sacramento, CA 95825-8202 JUN 1 9 2007 Mr. Joe Dale City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 Dear Mr. Dale: PAUL D. THAYER, Executive Officer (916) 574-1800 FAX (916) 574-1810 Relay Service From TDD Phone 1-800-735-2929 from Voice Phone 1-800-735-2922 Contact Phone (916) 574-1868 Contact FAX: (916) 574-1835 File Ref: PRC 8738.9 SUBJECT: Lease for City of Huntington Beach Warner Avenue Sewer Project Enclosed is your fully executed copy of the subject lease, which was approved by the California State Lands Commission at its meeting on December 14, 2006. It appears that we have not received evidence of liability insurance as required by the lease. The following assurances need to be on or attached to the certificate of insurance: 1. The amount shall be for no less than $1,000,000. 2. That the State of California, its officers, agents, employees, and servants are included as additional insured, but only insofar as the operations under this permit are concerned. 3. That the insurer will not cancel the insured's coverage without thirty (30) days written notice to the State. 4. That the policy specifically identifies the lease by its assigned number PRC 8738.9. 5. That the State will not be responsible for any premiums or other assessments on the policy. 6. That the insurance coverage provided by the insured (Lessee) is primary and non-contributing. In lieu of the above, the City may also provide a letter of self-insurance. Mr. Joe Dale Page Two A revised Reimbursement Agreement was recently sent to your attention reflecting an estimate of staff's costs to monitor the construction project within the Commission's jurisdiction. This Reimbursement Agreement will remain active until construction within the Commission's jurisdiction has been completed to the satisfaction of our Long Beach engineering inspector and to the Commission's Lessees, the California Department of Fish and Game and the Bolsa Chica Conservancy. Please contact me if you have any questions. I appreciate your cooperation in completing this transaction. Sincerely, J y Bro u lic La Management Specialist cc: Accounting 916 - . ?-/ - /,?V/ t Ms. Kelly O'Reilly Department of Fish and Game P. O. Box 1879 Huntington Beach, CA 92647 Ms. Grace Adams Bolsa Chica Conservancy 3842 Warner Avenue Huntington Beach, CA 92649 City of Huntington Beach 2000 Main Street • Huntington Beach, CA 92648 OFFICE OF THE CITY CLERK JOAN L. FLYNN CITY CLERK August 1, 2007 0 Judy Brown California State Lands Commission 10G Howe Ave, Suite 100-South Sacramento, CA 95825-8202 Dear Judy - Just to confirm our conversation, I'm enclosing Lease PRC 8738.9 for recordation by your organization, and that you will return it to the person listed below when completed. Patty Esparza Sr Deputy City Clerk City of Huntington Beach PO BOX 190 City of Huntington Beach, CA 92648 Sincerely, Caren Ferrera Sr Deputy City Clerk Encl. Sister Cities- Anjo, Japan • Waitakere, New Zealand ( Telephone: 714-536-5227 ) STATE OF CALIFORNIA ARNOLD SCHWARZENEGGER, Govemor CALIFORNIA STATE LANDS COMMISSION 100 Howe Avenue, Suite 100-South Sacramento, CA 95825-8202 PAUL D. THAYER, Executive Officer (916) 574-1800 FAX (916) 574-1810 Relay Service From TDD Phone 1-800-735-2929 from Voice Phone 1-800-735-2922 Contact Phone: (916) 574-1868 Contact FAX. (916) 574-1835 September 18, 2007 File Ref: PRC 8738.9 Ms. Patty Esparza Sr. Deputy City Clerk City of Huntington Beach P. O. Box 190 City of Huntington Beach, CA 92648 Dear Ms. Esparza SUBJECT: Lease for City of Huntington Beach Warner Avenue Sewer Project Enclosed is your fully executed copy of the recorded lease for the subject project. It appears that we have not received evidence of liability insurance as required by the lease. The following assurances need to be on or attached to the certificate of insurance: 1. The amount shall be for no less than $1,000,000. 2. That the State of California, its officers, agents, employees, and servants are included as additional insured, but only insofar as the operations under this permit are concerned. 3. That the insurer will not cancel the insured's coverage without thirty (30) days written notice to the State. 4. That the policy specifically identifies the lease by its assigned number PRC 8738.9. 5. That the State will not be responsible for any premiums or other assessments on the policy. 6. That the insurance coverage provided by the insured (Lessee) is primary and non-contributing. In lieu of the above, the City may also provide a letter of self-insurance. Page Two A revised Reimbursement Agreement was recently sent to your attention reflecting an estimate of staffs costs to monitor the construction project within the Commission's jurisdiction. This Reimbursement Agreement will remain active until construction within the Commission's jurisdiction has been completed to the satisfaction of our Long Beach engineering inspector and to the Commission's Lessees, the California Department of Fish and Game and the Bolsa Chica Conservancy. Please contact me if you have any questions. I appreciate your cooperation in completing this transaction. Sincerely, eManagement Specialist cc: Mr. Joe Dale City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 Chandra Basavalinganadoddi, CSLC Accounting