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HomeMy WebLinkAboutDEPARTMENT OF PARKS AND RECREATION - 1975-07-07(21) September 7, 2004 - Council/Agency Minutes - Page 21 (City Council) Approved Project Plans and Specifications and Authorized Advertisement of Bids for the Central Park and Warner & Nichols Storm Water Treatment Project; CC- 1257 (600.60) — Approved the project plans and specifications and authorized the Director of Public Works to request bids for the Central Park and Warner & Nichols Storm Water Treatment Project, CC-1257. Submitted by the Public Works Director. Funding Source: Funds are budgeted in the Proposition 13 - 2000 Water Bond Act Grant Account. The engineer's cost estimate is $450,000. (City Council) Adopted Resolution No. 2004-72 Amending the Memorandum of Understanding (MOU) between the City and the Surf City Lifeguard Employees' Association (SCLEA) by Adopting the Side Letter of Agreement Re: the 1,500 Hours Provision (Number of Permitted Work Hours within a Twelve -Month Period) (720.20) - Adopted Resolution No. 2004-72 — "A Resolution of the City Council of the City of Huntington Beach Amending the Memorandum of Understanding between the City and the Surf City Lifeguard Employees' Association, by Adopting the Side Letter of Agreement (Regarding Number of Permitted Work Hours within a Twelve -Month Period)." Submitted by the Administrative Services Director. Fundino_.Source:_._Na_cost_µ ".--, — .---- (City Council) Directed Staff to Prepare Mayor's Letter to the State Department of Parks and Recreation Exercising City's Option to Extend the Bolsa Chica State Beach Operating Agreement between the City and the State of California for 20 Years (November 30, 2006 to November 30, 2026) (120.90) — Approved exercising the city's option granted in the 1986 Bolsa Chica State Beach Operating Agreement between the city and the State of Callomia to extend the term for a period of twenty years from November 30, 2006 to November 20, 2026, and authorized staff to prepare a letter for the Mayor's signature to communicate the option to the State Department of Parks and Recreation. Submitted by the Community Services Director. Funding Source: Not applicable. (City Council) Approved a Reimbursement Agreemen Vetreen t e�City and Huntington Center Associates, LLC for Professional Building Inspection Services in Connection with the Bella Terra Project — Authorized Appropriation of Funds (600.10) - 1. Approved the Reimbursement Agreement between the City of Huntington Beach and Huntington Center Associates, LLC and authorized the Mayor and City Clerk to sign; and 2. Appropriated Ninety Thousand Dollars ($90,000) to Building & Safety Department operating account number 10055201.69365 in connection with the Reimbursement Agreement between the City and Huntington Center Associates, LLC; and 3. Authorized the acceptance of two payments of $45,000.00 on or before October 1, 2004 and February 1, 2005 from Huntington Center Associates, LLC for building inspection services. Submitted by the Buitding and Safety Director. Funding Source: The proposed Agreement allows the developer to pay for expanded services by depositing funds totaling $90,000. Two payments of $45,000 each will be made on or before October 1, 2004, and February 1, 2005. (City Council) Approved the Children's Needs Task Force Reappointments of Ian Collins, Patricia Guidotti, Phyllis Lembke, and Catherine McGough and the Appointments of Adam Buttons and Rebecca Keene for a Term of September 1, 2004 to August 31, 2008 and Approved the Student Appointment of Katherine Do and Student Reappointment of Travis Holler for a Terris of September 1, 2004 to April 30, 2005 (570.70) Councilmember Coerper requested that this agenda item be removed from the Consent Calendar to highlight the names of the appointees and reappointees. d� C ky ®f Hunt'mgt on Bezc�h 2000 MAIN STREET CALI FORNIA 92648 OFFICE OF THE MAYOR Telephone (714) 536-5553 October 5, 2004 State of California Department of Parks & Recreation 3030 Avenida del Presidente San Clemente CA 92672 Dear Director: Re: Operating Agreement o Bolsa Chica State Beach; Exercise of 20-Year Option Pursuant to Paragraph 1. Term, of the State of California, Department of Parks and Recreation Operating Agreement for Bolsa Chica State Beach with the City of Huntington Beach, may this letter serve as the city's exercise of the option to extend subject agreement an additional twenty -years. The initial term of this agreement ends on December 1, 2006. In accor- dance with Paragraph 1 thereof, the city must exercise the additional -term option one year prior to the end of the initial term. On September 7, 2004, the Huntington Beach City Council approved exercising the additional twenty-year option for the operating agreement (approved action attached). Please have the appropriate state representative sign below and return this letter to my office to indicate the state's approval of the additional twenty? year term on the Bolsa Chica State Beach Operating Agreement. Approval:- of this letter will effectively change the term of the agreement to December-i. 1, 2026. Thank you for your attention to this matter. Sincerely, CATHY GREE Mayor City of Huntington Beach JBE:cr Attachment APPROVAL: STATE OF CALIFORNIA Department of Parks & Recreation —4�L C'&", cc: City Council; City Administrator; City Attorney; City Clerk Sacramento Office of State Parks & Recreation Anio, Japan SISTER CITIES u'aitakere. New Zealand r City of Huntiagta►eah 2000 MAIN STREET Z004 OCT tAL&O MA, 92648 OFFICE OF THE MAYOR Telephone (714) 536-5553 October 5, 2004 State of California Department of Parks & Recreation 3030 Avenida del Presidente DADA San Clemente CA 92672 0CD 7 Dear Director: " "� � 'q1r'O �S � � .`_f-I Re: Operating Agreement — Bolsa Chica State Beach; Exercise of 20-Year Option Pursuant to Paragraph 1. Term, of the State of California, Department of Parks and Recreation Operating Agreement for Bolsa Chica State Beach with the City of Huntington Beach, may this letter serve as the city's exercise of the option to extend subject agreement an additional twenty -years. The initial term of this agreement ends on December 1, 2006. In accor- dance with Paragraph 1 thereof, the city must exercise the additional -term option one year prior to the end of the initial term. On September 7, 2004, the Huntington Beach City Council approved exercising the additional twenty-year option for the operating agreement (approved action attached). Please have the appropriate state representative sign below and return this letter to my office to indicate the state's approval of the additional twen 7 year term on the Bolsa Chica State Beach Operating Agreement. Approval' of this letter will effectively change the term of the agreement to December:, 1, 2026. Thank you for your attention to this matter. Sincerely, CATHY GREE Mayor City of Huntington Beach JBE:cr Attachment 9/6 APPROVAL: STATE OF CALIFORNIA Department of Parks & Recreation cc: City Council; City Administrator; City Attorney, City Clerk Sacramento Office of State Parks & Recreation _DRUG USE AB Anio, Japan SISTER CITIES V aitakere, New Zealand ,fF, Z=� Z-�F, - 6FW � S')L, Council/Agency Meeting Held: Q Deferred/Continued to: .Approved ® Conditionally Approved ® Denied City le 's Si ature Council Meeting Date: September 7, 2004 Department ID umber: CSO4-024 CITY OF HUNTINGTON BEACH REQUEST FOR COUNCIL ACTION �.a SUBMITTED TO: HONORABLE MAYOR/AND CITY COUNCIL MEMBERS SUBMITTED BY: PENELOPE CULBR H- RA , City Administ a or PREPARED BY: JIM B. ENGLE, Director, Community Services' SUBJECT: APPROVE EXTENSION OIL BOLSA CHICA STATE BEACW9 OPERATING AGREEMENT rr Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s) Statement of Issue: There is a need for City Council to approve exercising the city's option to extend the 1986 Bolsa Chica State Beach Agreement between the city and the State of California for an additional twenty-year term until November 30, 2026. Funding- Source: NA Recommended Action: Approve exercising the city's option granted in the 1986 Bolsa Chica State Beach Operating Agreement between the city and the State of California to extend the term for a period of twenty years from November 30, 2006 to November 30, 2026, and authorize staff to prepare a letter for the Mayor's signature to communicate the option to the State Department of Parks and Recreation. Alternative Action(s): Do not approve exercising the city's extension of term option for the State Beach Operating Agreement, and return the area from the municipal pier to Seapoint Drive to the state for its control and operation after November 2006. Analysis: In December 1986, the city entered into an agreement with the California Department of Parks and Recreation for the control and operation of a portion of Bolsa Chica State Beach, which includes the area from the Huntington Beach Municipal Pier north to Seapoint Drive at Pacific Coast Highway. The city has invested millions of dollars in improvements to Blufftop Park and Pier Plaza, and has adopted a master plan for future improvements to the bluff area. This area is a very popular portion of the city beach which includes Pier Plaza and the northern Pier Plaza parking lot, Zack's Pier Plaza Beach Concession, the bicycle and recreational trail from the pier to Bolsa Chica State Beach, Blufftop Park, the bluffs beach area, and Huntington Dog Beach. This area is of vital interest to the city to continue maintaining its image as both a local and international tourist destination. ki�QUEST FOR COUNCIL ACTwN MEETING DATE: September 7, 2004 DEPARTMENT ID NUMBER: CSO4-024 Staff is recommending that Council exercise its option to extend its lease an additional twenty years. There is no cost to the city for the lease. Should the city receive more revenue from beach operations than its cost to provide services to this beach area, the state would share in 50 percent of that surplus revenue. During the past twenty years, revenue from the beach operations has only matched the city's cost and there have been no surplus revenues to share with the state. This is mainly due to the extensive beach improvements that the city has invested in this area of the beach. In summary, to maintain the city's control of this beach area and to insure the ability to offer events and maintain property values, staff is recommending approval of the option. In November 2026, the city will have the right to extend the agreement for another twenty years. Environmental Status: NA Attachmentis): RCA Author: JBE:cr G:\RCA\2004\04-024 Extension of Bolsa Chica State Beach Agreement.doc -2- 8/5/200410:58 AM ATTACHMENT I 1� 2 3 4 5 6 7 8 9 10 111 12 13 141 15 16 171 Z81 19i 20 21 22 23' 24 25 26 27 COURT PAPER STATE OR CAL'/ORNIA STO. 113 1@EV. 8.721 eS 34769 STATE OF CALIFORNIA PE.PARTMENT OF PARKS AND RECREATION OPERATING AGREEMENT BOLSA CHICA STATE BEACH I N D E X Paragraph 1. Term... .......... 2. Use of Premises . . . . . . . 3. Concessions . . . . . . . . . . . . . . . . . . . 4. Fees ....................... 5. Annual Reports . . . . . . . . . . . . . . . 6. Beach Erosion Control . . . . . . . . . . 7. Construction of Improvements . . . . . . . . . . . 8. Title .. . . . . . . . . . . . . . . . . . . . 9. Eminent Domain . . . . . . . 10. Hold Harmless . . . . . . . 11. Assignment . . . . . . . . . . . . . . . . . . 12. Notices . . . . . . . . . . . . . . . . . . . . . 13. Termination . . . . . . . . . . . . . . . . . 14. Real Property Acquisition . . . . . . . . . . . . 15. Nondiscrimination . . . . . . . . . . . . . . . . 16. Limitation . . . . . . . . . . . . . . . . . . . 17. Paragraph Titles . . . . . . . . . . . . . . . 18. Contracts in Counterparts Signatures. . . . . . . . . . . . . . . . . . . . Exhibit(s) . . . . . . . . . . . . . . . . . . . . Page 2 2 3 3 4 4 5 6 7 8 8 u 11 11 Ii 11 12 12 1 2 31 41 51 61 7� 1 l0 11 121 131 14' 15 i 16 17 181 19 20 21 22� 23� 24 25 26 27 ZOURT PAPER STATE OP CALIIORHIA STD. 113 (REV. 8.72) 85 34789 OPERATING AGREEMENT DEC THIS AGREEMENT, made and entered into this 1st day of-6 -r , 1986, and between the STATE OF CALIFORNIA, acting through the Department of Parks and Recreation, hereinafter called "STATE", and the City of Huntington Beach, a municipal corporation of the State of California, hereinafter called "CITY"; WITNESSETH WHEREAS, STATE has acquired for park and recreational purposes certain real property hereinafter described, known as a portion of Bolsa Chica State Beach and has jurisdiction thereof; and Pursuant to the provisions of Section 5080.30 et seq. of the Public Resources Code of the State of California, STATE may enter into contracts with political subdivisions of the State of California for the care, maintenance, Wand control, for the purposes of the State Park System, of lands under the jurisdiction of STATE; and STATE and CITY desire to enter into an agreement to provide for such care, maintenance, and control of Bolsa Chica State Beach, a description of (which is attached 'hereto as Exhibits "A" and "B" and incorporated herein by this reference. NOW, THEREFORE, in consideration of the mutual covenants hereinafter contained, the parties hereto agree as follows: 1 2 3 4 5 6 7 8 9 10 11 12 13 i 141 15 16 17 16, 19 20 21, 22I 2311 24 25 26 27 COURT PAPER STATC OF CALIFORNIA STD. 1 13 1 RBV. 8.72) 85 34769 1. Term: CITY shall be responsible for a period beginning on the date first above appearing and ending twenty years from said date, with an additional twenty-year option at the CITY'S option provided that CITY exercise such option not later than one year prior to the end of the initial 20-year term. During said period, CITY shall pay all costs of developing, maintaining, controlling, and operating said property for said purposes and STATE shall not, during said period, be liable for the cost of said development, maintenance, control, or operation. Nothing herein shall preclude CITY from receiving grants for such purposes to the full extent otherwise permitted by law. An express condition subsequent to this agreement is that the Irecreation policies 4.2.2 Coastal Recreation of the Recreation Element of the "CITY'S General Plan" May 1984 and the project plan for "Pierside Village" i Huntington Beach, California by Bryant Morris Development .,Phase Ii sheets 13 as Exhitit "D" through 15 (both documents attached hereto/and made part of this contract) for Ithe demised premises shall be submitted for approval by the State Department lof Parks and Recreation as specified in Paragraph 7 of this agreement. (Failure of the Department of Parks and Recreation to approve the development plan, listed above may result in termination of this agreement by the CITY, ursuant to fp+l-1-eig Paragraph 13b, Page 9. 2. Use of Premises: While this agreement is in force and effect, said property shall be accessible and subject to the use and enjoyment of all citizens of the State of California, and all other persons entitled to use and enjoy the same, subject, however, in the manner of such use and enjoyment to the control of CITY in conformity with this agreement. CITY may adopt rules 1 2 3 4 5 6 7 8 9 10 11 12 13i 14 15 16 17 18 19 20 21 221 23 24 25 26 27 COURT PAPER STATE Or CALIFORNIA STD. 113 tREV. 9•72) 85 34769 and regulations, including hours of operation, for the use and enjoyment of said property. Any such rules and regulations adopted by CITY shall conform to and be consistent with the rules and regulations adopted by STATE and generally applicable to the State Park System, including said property. Said property shall not be used for any other purpose than the purpose herein enumerated. 3. Concessions: Subject to prior approval in writing by STATE, CITY may grant concessions in or upon said property consistent with the use by the general public thereof for park and recreational purposes. The rights of the public to the use and enjoyment of said property shall thereupon be limited by such concession agreements. All such concessions shall be granted in substantial compliance with Public Resourc t Code Section 5080.20, 5030.33 State � -L and 5080.34, and the applicable/genera1 plan for the respective park unit. The concession contract between the State of California and lDonald Tosh, Ted E. Christensen, and Tom A. Lewis for parking lot operation land food and beverages and rentals is attached hereto and is marked (Exhibit "C" which by reference is incorporated herein for all purposes. CITY assignment of such concession agreement only to the extent of agrees to accept/ar+y the parking lot, -a-nd food, beverage Z5ental operation, known as "Sunnys" subject to the terms of the existing contract. STATE shall retain the right to such agreement (Ex ibit C) covering that portion west of the demised premises herein. '�. 4. Fees: Any charges, fees, or collections made by CITY for services, benefits, or accommodations to the general public shall be limited to actual needs for maintenance, control and operation and for improvements and development of said property to provide needed additional facilities, and that commercialization for profit shall not be engaged in by CITY. 3 3- 1 2 3 4 5 6 7 8 9i 10 11 12 13 141 15' 16 17, 181 19 20 211 22 23� 24 25 261 27 5. Annual Reports: All income received and all expenditures made by the CITY in relation to concessions, special services, and all other matters incident to the development, maintenance, control, and operation for the State Beach or portion thereof subject of this agreement shall be reported annually to the STATE. Pursuant to Public Resources Code Section 5080.32, all revenues received from lands subject to this agreement shall be expended only for the care, maintenance, operation, administration, improvement, or development of the State Beach and any other state recreational areas. Such annual report shall be made for the annual period commencing on July 1 and terminating June 30 and shall be filed with STATE not later than December 1 of each year. The first report hereunder shall be filed by CITY not later than December 1, 1987, and shall cover the periods beginning on July 1, 1986 and terminating June 30, 1987. The report shall include a reasonable annual estimate of the number of visitors to the State Beach or portion thereof described on Exhibits A and B, as well as the number of vehicles. "Revenue" herein shall be defined so as not to include indirect revenue such as sales tax, possessory interest tax, etc. The books, records, and accounts kept by CITY applying to the operation of the State Beach shall at all reasonable times be open for audit or inspection by STATE. 6, Beach Erosion Control: It is further agreed and understood between the parties hereto that any development, beach erosion control, or COURT PAPER STATE OF CALIFORNIA STO. 113 (REV. 8.721 85 34769 4 1 2 3 4' 5' 6 7'' 8 9 10 11 12 13 141 i 15 16 17 18 19 20 21 22 23 24 25 26 27 COURT PAPER STAT12 OR CALIFORNIA STD. 113 I REV. 8.72 ) 85 34769 protection work which may be undertaken by STATE or the United States of America, along or on said property, shall not, in any way, be construed as constituting a termination of this agreement or in any way affecting same. STATE shall have the right to enter into agreements for such work during the term hereof and to go upon said property or to authorize any person, firm, or corporation to go upon said property for the purpose of such construction, beach erosion protection or control work, or the doing of other public work for the improvement or development of said property, provided that STATE shall give CITY 90-day written notice of its intention to do any of the work herein mentioned before such work is undertaken. 7. Construction of Improvements: CITY may, by its own forces or by contract, undertake projects for the development, construction, or improvement to said property. Plans andspec.fications for any such project � St ate--���'- shall be submitted to STATE as a/General Plan amendment for approval. No such project shall be comme Jed by CITY'S own forces or contracts awarded prior to STATE approval. STATE has the right to disapprove such plans and specificatio s and of submittal 4 �A— shall notify the CITY of its decision within 90 days/ Such development, construction, or improve t shall be in accordance with 5080.31 P.R.C. and S�ATE's ,IV" -' 7�t" with the general plan for the respective unit and any amendment thereof shall gybe subject to prior approval in writing by STATE. Pursuant to Public Resources Code Section 5080.31(b) P.R.C. the STATE' general plan shall be prepared by the CITY and shall be approved by the 5 1 2 3 4 5 6 7 8 9 10 11 12 13� 141 15 16 17 18, i 19! 20 21 22I 23 24 25 261 27 =OURT PAPER STAY% OF CALIFORNIA Sm. 113 (REV. 8.72) 85 34789 California State Park and Recreation Commission. 8. Title: Improvements erected on said property by CITY shall, upon completion, become a part of the reality and title to said improvements shall vest in STATE upon termination of this agreement or any extension thereof. Any removal authorized shall be made without damage to adjacent j improvements and if adjacent improvements are damaged, CITY shall reimburse STATE therefore or shall repair the improvement so damaged at the option of STATE. After removal, the premises shall be left free and clear of all debris and in a condition reasonably similar to the present condition of said property. CITY shall not, without prior written approval of STATE, remove, move, demolish, or alter in any manner, any improvements, natural features, or accretions existing on said property on the effective date of this agreement', or subsequently occurring, except when engaged in the protection of public aitd private lands and waters from storms, floods, high tides, fire (all natural disasters), during a period of natural disaster or emergency declared by thel, Governor of California or the President of the united States. 9. Eminent Domain: If said property or portion thereof is taken,l by proceedings in eminent domain, STATE shall receive the entire award for I such taking except that CITY shall receive out of said award the fair market, value of any improvements than existing and constructed by CITY (other than improvements erected with funds realized through income from said property)on i said property as said fair market value may be determined by said proceedings taking into consideration the terms of this instrument. 1-i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 I 15 16 17' 18 19 20 21 22 23 24 25 26 27 COURT PAPER STATE OP CALIFORNIA STO. 113 (RHV. 8.72) 95 34709 10. Hold Harmless: CITY hereby waives all claims and recourse against the STATE including the right to contribution for loss or damage to persons or property arising from, growing out of, or in any way connected with or incident to this agreement except claims arising from the concurrent or sole negligence of STATE, its officers, agents, and employees. CITY shall indemnify, hold harmless, and defend STATE, its officers, agents, and employees against any and all claims, demands, damages, costs, expenses, or liability costs arising out of the acquisition, development, t cons,ruction, operation, or maintenance of said property described herein which claims, demands, or causes of action arise under Government Code Section 895.2 or otherwise except for liability arising out of the concurrent or sole negligence of STATE, its officers, agents, or employees. In the event STATE is named as co-defendant under the provisions of the Government Code Sections 895 et seq., the CITY shall notify STATE of such fact and shall represent STATE in such legal action unless STATE undertakes to represent itself as co-defendant in such legal action in which event STATE shall bear its own litigation costs, expenses, and attorney's fees. In the event judgment is entered against the STATE and CITY because of the concurrent negligence of STATE and CITY, their officers, agents, or employees, an apportionment of liability to pay such judgment shall be made by a court of competent jurisdiction. Neither party shall request a jury apportionment. 7 1 2 3 41 5' 61 7II 8 9 10 11 12 13 141 1 151 16 171 181 19I 20 21 221 231 241 25 26 27 COURT PAPER STATE OF CALIFORNIA STD. 113 I REV . 8- 72 ) 85 34769 11. Assignment: This agreement shall not, nor shall any interest therein or thereunder, be assigned, mortgaged, hypothecated, or transferred (either by CITY or by operation of law, nor shall CITY let or sublet, or grant any licenses or permits with respect to the use and occupancy of said property or any portion thereof, without the written consent of STATE first had and obtained. Such consent shall not be unreasonably withheld. 12. Notices: Notices or reports desired or required to be given Thereunder or under any law now or hereafter in effect may, at the option of the party giving same, be given by enclosing the same in a sealed envelope addressed to the party for whom intended and by depositing said envelopes, with postage prepaid, certified with return receipt requested, in the United States Post Office or any substation thereof. In the event such notice is being given to the CITY, such notice and the envelope containing the same shall be addressed to the City Council of the City of Huntington Beach, 2000 Main Street, Huntington Beach, 'California 92648, or such other place as may hereafter be designated in writing by or on behalf of CITY; and in the event that said notice being sent to STATE, said notice and the envelope containing the same shall be addressed to the Department of Parks and Recreation, 18221 Enterprise Lane, Huntington Beach, California 92648 and at P.O. Box 942896, Sacramento, California 94296-0001. 0 1 13. Termination: 2 3 a. STATE reserves the unqualified right to terminate this 4 agreement by giving CITY one (1) year's written notice of the effective date 5 of such termination. STATE further may terminate this agreement for material 6 breach by CITY of any of the provisions hereof. The CITY shall be given not 7 less than ninety (90) days to cure any and all breaches hereunder. 8 9 b. CITY reserves the unqualified right to terminate this 10 agreement by giving STATE one (1) year's written notice of the effective date 11 of such termination. CITY further may terminate this agreement for breach by 12 STATE of any of the provisions hereof. 13 14} C. Notwithstanding any other provisions in this contract and 15� in addition to any other remedy available to STATE, STATE shall have the 16 option to terminate the contract and to pay CITY the then depreciated cost of 17 the facilities placed, created, or developed by CITY on the premises. Such 18 payment (buy-out) shall app in the event of termination pursuant to Section 13 (a ) above. 191 d. It is expressly understood that the paragraph "c" does not 20 apply to the situation where the STATE may terminate this contract for any 21 material breach on the part of the CITY. Where there has been a breach on the 22 part of CITY, under any terms of this contract, the STATE shall not be 23 obligated to pay CITY before or after taking possession of the premises so 24 long as CITY has not cured said breach within ninety (90) days after written 25 notice -thereof. 26 -_- 27 --- COURT PAPER $TATi OR CALIFORNIA STO. 113 (RCY. 8.72) 9 85 34769 1' 2 3' 4' 5 6 7 8 9 10 11 121 131 181 191 20 21 22 23 24 25 26 27 COURT PAPER STATE OP CALIFORNIA STD. 113 (REV, 9.72 ) 85 34789 n Crr e. For the purpose of tH-T paragrapW, such facilities shall be deemed to be the improvements which CITY is expressly required to make hereunder or later adds, exclusive of trade fixtures, equipment, and any. personal property. The cost of such facilities for the purposes of this paragraph shall be computed in the following manner; f. Upon completion of improvements, or within thirty (30) days of opening for public use, whichever is earlier, CITY will submit verified cost statements accompanied by substantiating invoices and bills of labor, material, or any other reasonable construction costs, to STATE. After such statements, invoices, and bills have been examined by STATE, STATE will in its sole discretion establish in a reasonable and fair manner the cost of improvements. In the event costs are not filed by CITY within the period above provided, STATE shall estimate said cost and serve the same on CITY in the manner provided herein. STATE'S estimate shall become final thirty (30) days after service thereof. g. The amount to be paid as the then depreciated cost of the rrcrr facilities in the event of termination under t-hi-g paragraphlshall be aced on a capital recovery schedule determined by dividing the initial investment by the number of whole years remaining in the agreement period or any extension thereof at the time of investment, multiplied by the remaining years. The initial investment shall be the actual cost of all improvements, less any donations, contributions, or fees received by CITY for the construction of said improvements. 0 10 1 2 3 4 5' 6 7. 8 9 10 11 12 131 18 19 20 211 22 23 24 251 26 27 s In the event of breach, bankruptcy, insolvency, abandonment, or the contract is terminated at CITY's request, the buy-out provisions contained herein are not to be considered as an obligation of the STATE. The buy out provisions 4-p,— -/"-- tfis—p�r� pb shall only be operative when funds required by STATE for such buy-out are obtained through appropriation by the Legislature and through the normal budgeting process of the STATE. 14. Real Property Acquisition: It is understood and agreed by the parties hereto, that all applications for real property rights, appurtenant to the real properties herein described, shall be made in the name of and on behalf of STATE, and shall be subject to the prior approval in writing of STATE. 15. Nondiscrimination: Pursuant to Public Resources Code Section 5080.34, this agreement prohibits, and every contract for a concession on lands that are subject to this operating agreement shall expressly prohibit, discrimination against any person because of race, color, religion, sex, marital status, national origin, or ancestry of that person. Attached Standard Form 17A is incorporated herein, as Exhibit "E". LX 16. Limitation: This operating agreement is subject to all valid and existing contracts, leases, licenses, encumbrances, and claims of title which may affect said property. 17. Paragraph Titles: The paragraph titles in this contract are linserted only as a matter of convenience and for reference, and in no way COURT PAPER STATE OF CALIFORNIA STO. 113 IR[V. 9•73t 85 34759 11 1 2 3 4 5 6 7 8 9 10 11 12 13 define, limit or describe the scope or intent of this contract or in any way affect this contract. 18. Contracts in Counterparts: This contract is executed in counterparts each of which shall be deemed an original. IN WITNESS WHEREOF, the parties have executed this instrument upon the date first hereinabove appearing. Attest: STATE OF CALIFORNIA DEPARTMENT OF PARKS AND RECREATION _P-7 r7 or 15 ALICIA M. WENTWORTH CITY OF HUNTINGTON BEACH City Clerk 16 17 YAor �— Deputy City Clerk Mayor 18� I 19 i !�� w _ nd Apr ve 211 22 23 24 25 26 27 Y-5791X miniszra Npartment of General Services DPP 39D ,A� AUJUd I. iV'£iVCz:rr Aos t. Chief Coin Approved as to Form: City Attorney Af Initiated and Approved: Director of Community Services COURT PAPER STATE Or CALWONNIA STD. 113 (REV. 8.721 85 34769 12 1 HXHIBIT "A" 2 3 The real properties owned by the State of California, the 4 control, care, and maintenance of.which are by the attached lease 5 agreement given over to the City of Huntington Beach, shall be 6 known as "State Parks", and are identified as follows: 7 ` 8 BOLSA CHICA STATE BEACH 9 Deed from Huntington to Pacific Corporation recorded 10 grant deed on May 23, 1974 as Doc. 11151 O.R. 556. 11 "That portion of Bolsa Chica State Beach that was 12 within the boundaries of the City of Huntington Beach on May 23, 13 1974'as described in the above mentioned deed." < u a �^ V 1• Bo;.sa Chica State i Beach Lower Bluffer r �Y, f Goldenwest / r CITY OF Pier I HUNTINCTQN BEACH untington ORANGE COUNTY CALIFORNIA City Beach �a Huntington ` State Beach EXHIBIT "B" INITIATING DEPARTMENT: COMMUNITY SERVICES SUBJECT: APPROVE EXTENSION OF BOLSA CHICA STATE BEACH OPERATING AGREEMENT ,-COUNCIL MEETING DATE: September 7, 2004 RCA ATTACHMENTS STATUS Ordinance (w/exhibits & legislative draft if applicable) Not Applicable Resolution (w/exhibits & legislative draft if applicable) Not Applicable Tract Map, Location Map and/or other Exhibits Not Applicable Contract/Agreement (w/exhibits if applicable) (Signed in full by the City Attome Not Applicable Subleases, Third Party Agreements, etc. (Approved as to form by City Attorney) Not Applicable Certificates of Insurance (Approved by the City Attorney) Not Applicable Financial Impact Statement (Unbudget, over $5,000) Not Applicable Bonds (if applicable) Not Applicable Staff Report (If applicable) Not Applicable Commission, Board or Committee Report If applicable Not Applicable Findings/Conditions for Approval and/or Denial Not Applicable EXPLANATION FOR MISSING ATTACHMENTS REVIEWED RETURNED FORWARDED Administrative Staff ( ) ) Assistant City Administrator (initial) City Administrator Initial City Clerk EXPLANATION FOR RETURN OF ITEM: RCA Author: ,J.Alm&3 CITY OF HUNTifd GTON BEACH INTER -DEPARTMENT COMMUNICATION HUNTINGTON BEACH Connie Brockway, City Clerk Office of the City Clerk Liz Ehring, Deputy City Clerk II To: Spy'` Date: % D Meeting Date: 9/7/Ov Agenda Item: j a Proposed City Council Agenda Items: The City Clerk's Office/City Administrator's Office must return your agenda item due to the following requirements that have not been met. When your Agenda Item is ready to resubmit, please return to: E-W , Vie, Management Assistant, Administration 1. Signature(s) Needed A On RCA B On Agreement C Other 2. Attachments A Missing B Not identified C Other 3. Exhibits A Missing B Not identified C Other 4. Insurance Certificate (Proof Of Insurance) A Not attached B Not approved by City Attorney's Office C Signed form notifying City Clerk that department will be responsible for obtaining insurance certificate on this item. (See form attached) 5. Wording On Request For Council Action (RCA) Unclear A Recommended Action on RCA not complete B Clarification needed on RCA C Other 6. 1 City Attorney Approval Required 7. Agreement Needs To Be Changed A Page No. 8. Other 72 7Zt _ writ G: agenda/m isdreaform Council/Agency Meeting Held: DeferredlContinued to:,, Opprove onditiona(ly Approve 0 Denied City Clerk's Sig ature Council M eting Date: 12/16/96 Department ID Number: CA 96-31 C_ti- CITY OF HUNTENGTBEACH REQUEST FOR COUNCIL ACTION SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS SUBMITTED BY: MICHAEL T. UBERUAGA, City Administr G PREPARED BY: RON HAGAN, Director, Community Service SUBJECT: BOLSA CHZCA STATE BEACH CONCESSION AGENCY AGREEMENT Statement of Issue, Funding Source, Recommended Action, Alternative Actlon(s), Analysis, Environmental Status. Attachrnent(s) Statement of Issue: In 1992, the state and the city entered into an Assignment Agreement authorizing the city to terminate the Concession Contract that TLC has to operate Sunny's and the adjacent parking lot located north of the Huntington Beach Pier. The Court in City of Huntington Beach v. TLC may hold that the assignment of the termination provisions for Sunny's was ineffective. At issue is whether the city should obtain an authorization from the state to terminate the entire Concession Contract, not merely Sunny's concession and parking lot. Funding Source: Pier Plaza Project Fund. Recommended Action: 1. Approve in substantially the form presented and as approved by the City Attorney, the Bolsa Chica State Beach Concession Agency Agreement with the state, and authorize the Mayor and City Clerk to sign it; 2. Authorize the Director of Community Services to take all actions necessary to terminate the entire Concession Contract; and 3. Authorize up to $90,000 to be paid to TLC, representing the depreciated value of the concession improvements. Alter -native Action(s): Do not approve the Bolsa Chica State Beach Concession Agency Agreement. RERUEST FOR COUNCIL ACTIOF MEETING DATE: 12/16/96 DEPARTMENT ID NUMBER: CA 96-31 In 1979, the State Department of Parks and Recreation entered into a Concession Contract for Bolsa Chica State Beach with Donald W. Tosh, Ted E. Christensen and Tom A.Lewis CTLC") to operate a concession in Bolsa Chica State Beach. The Concession included the parking lot and the food concession stand known as Sunny's located just north of the Pier. It also required TLC to construct an additional five (5) food and beverage concessions further north within Bolsa Chica State Beach. In 1987, the State and the City entered into an Operating Agreement which provided that the City would care, maintain and control a portion of Bolsa Chica State Beach from the Pier to Seapoint Avenue. This included Sunny's, but excluded the other five concession stands. In April 1992, the City entered into an Assignment Agreement with the State regarding termination of the Sunny's portion of the TLC Concession Contract. Under the Concession Contract, the State had the right to terminate the Contract upon six (6) months written notice and payment to TLC of the depreciated value of any improvements installed pursuant to the Concession Contract. Under the Assignment Agreement, this right of termination was assigned to the City only for the portion of property located within the Operating Agreement (i.e., Sunny's). On September 20, 1995, the City served upon TLC a Notice of Termination of the Concession for Sunny's. The City gave TLC almost a year to move from the property. However, TLC has refused to move and the City has fled an eviction action. That action is currently proceeding in the Court in the case entitled City of Huntington Beach v. TLC, et al., Orange County Municipal Court Case No. 22 74 20. In that case, TLC is contending that the State did not have the authority to assign to the City the termination rights for only Sunny's. Rather, TLC is claiming that either the entire Concession Contract must be terminated, or none of it at all. To respond to this contention, it is recommended that the City enter into an agency agreement with the State that permits the City to terminate the entire TLC Concession Contract. Upon termination, the City would assume responsibility for payment of the value of the depreciated improvements. In exchange, City would be permitted to operate the concession stands for the remaining term of the Concession Contract (April 9, 2000). It is estimated that conservatively, the five additional concession stands would produce a profit of $150,000, which would exceed the cost of the depreciated improvements which are estimated at approximately $90,000.00. 96-031.DOC -2- 12106196 9M AM REQUEST FOR COUNCIL ACTION MEETING DATE: 12/16/96 DEPARTMENT ID NUMBER: CA 96-31 Environmental Status: N/A Attachment(sl: List attachment(s) below. No. Agency Agreement Description 96-031.DOC -3- 12/05/96 4:49 PM ATTACHMENT 1 `—��'-•� dtrwNr rOx ACr[t rKAIION AMO COMMIT )TAiION L eRUflxe ROOM te,t[IIIeN W41Me ...... IN,., C. ^�_ O(ChlNAI/ON L/Mft tt ,:IRG[NC• • Ali _ ..Crr .SI aw _ _ _ • RA(xrRAKLE .._•I. Q - re• c.- 0I � � O (0 Y D D F= •I tafTRIAN a BUS tNAM[N . 41 » op off Polxt �•• ••n \ ,rl. rNHI. reewu ,.ef �� c,HAa. n.•.AI. --''— - - ° :'' f r,P errr. A[t[NTIONUU N[IwOrol/IN rAIlR O/SO. CA[rrO'—rttrNCNI [MxIN.OI 1S 6i� Pa C r f r a •.Atr•rr Or c a n I" i` ' yy z a • 3i MAIN CONCESSION SLDf. RTRAN[I CetcRINt ITATHINS _ 1fsAayj PARK ENTRANCE sl� — Wlrn TRArrK coxttoL • ulT Y o Set t O !•tr `— m..c rt... It N `� r:t.W.� af• xs ADNIMIf TA i ON PUI�MxG LIr(GUAAD TOWER- LIrEGDARD S• �'� ' IRr <». I'- -_-_ - - ___ • Z n O C c a n erra W F- m z STATE BEACH BOUNDARY W W � ' i O PROPOSED COMFORT STATION B DRESSING RMS. pj Vd PROPOSED CONCESSION BUILDINGS 'Q W ' END OF PROPOSED DEVELOPMENT • PROPOSED LIFEGUARD STAND a W EMERGENCY EMTRANCC f�^•� PROPOSED PLANTING V A SECURItT FENCE CONTINUATION .;J _ E rwrre,rnxr— �, 17 PROPOSED PROMENADE B PICNIC TERRACE es�.. • a tEntona t--nwrtLN[—/ ��` o FACILITIES SUMMARY . W • • ._ - �_--�_ •� MINI ItAM PARKING DAY USE Carr 2247 n' 91 C t f r C' OCran .. MCNICKIMO •IMN.wIMMN•e•Nerlrbn rl•rl COMFORT STATION WITH DRESSING ROOMS 100 1 • Pm.. CONCEf110N'IfVILDINOS S �2586- ENTRANCE CHECKING STATIONS ADMINISTRATION BUILDING I►ARK OFFICE 2 I' LIFYGUARD CONTROL TOWER 1, 2"Lt of ?"I ' teD 0 S00 •00 C00. POATABLt LIFEGUAND STANDS.' ' PROMENADE' WALK B SAND NETENTNNt ,WAU.' 'CHILDREN' S,SANO PLAT AAEAS it � • I. A rlll 3 '., ,,, :, /. , U-4- REMESWMENT CCACr=S-=IC>Fl S*rAgr-> CO"cEe,'Sle'>M STAHO 21 f 171 0 0 to to 44 AlzF-Fiza-5mawr PARK FNTRA$Ict • . ..... . . .... ........ ............... ef. dr* e 0—.m C, c 0 w 4.0 *[Art$ sOwkGA4* COW6101 SIAINO a facssme aws. 0"060,10346 cG*Cc*$"m SUM61190,61 .4 -txo or rRonsto DEVLLCPWtNT SIANO GA V . ............. -1-tefte SUVVARf ft" a "t ft".0% 049 W&C 4004a1 out** wwm "n 1,41"ll so • -C-' tOWS9." "Ll"es 6 IZ506 AHI'BIT r.. oft" w"91 I I wH to"to wft. 6 "" w9falffift oft% shom 664-4 1-@ ft., 0.4.0 0 1 •i` ` A PORTION OF RANCHO LA BOL:.A WICA T. 5 Ek 6 S., R.11 W., S.B.K -- ,"" "•" ••"••,• ORANGE COUNTY O �..,,.\....rra .•.., _ \ � � �. _�• f.eww • 1 �y J \ t �; O Iww r r.•�. \ . wEco.n Or s4pwtT .......•. %— w.•`-... •.,w a.0 a w\f• .R 92 H 19 .•�f ...M••.Iw• rf.•. re or su"T {��]�t�•`�• ^^ q/If•••'•T'R1- .11L.J" t�7�ti •17.-w.-F.•.T\ . r w A C I F I C lot O C E A Ar _ sx,•, / l� .+. • \ ar e'it,v ._ -r-ti s.a sss siistas 0 C E A N i>wir 0 w cc mum / » N c ti:iT" 3 ir a / pill Mw- m ef ,'� wi--� '©iri'-i-i 1 - — w .. r j - •.~:� 11 � Ml ��Y . I -!s. .. ... - .. iLagu r�.M•f.1 „ 1 I.•.�1r 1' •iitix -• • wz- -'^•-4 ...- 1H I.Ii•.. M.• 4 M ww1 '.� '� _ /r':}} �.� i1��Ynf•�.� �.[—•"per � • ��.•.I•• '�'471 .�E471 ` ..L�•�..r� /f Fes'.. MN 'M.�. ' f.wy ii•�i •Ii • �+ \ - �Ti li P A C .I F I C Lu" rimmu— we O C War u.ai ■ nff EXHIBIT }..f1 .OI.f,1%11'f JLOM MiCgIL l7[.EY N7fIL[M MOME711E[Y AIO 7EiT(IILY .OIIhAY Or OTT Or WACTI"T011 /CApI rlXE. 61 AOKE21(kl 112A01K[b 8.33:2 111 SOCK Sift TAK 5 07 CA&L KCWAD& ' ST 4TE# GAUFORMA —THE iiMUR= AGENCC DEPARTMENT OF PARKS AND RECREATION 1 Orange Coast District 3030 Avenida Del Presidente San Clemente, California 92672 (714) 492-0802, FAX (714) 492-8412 : March 31, 1997 Mr. Ron Hagan, Director Community Services Department City of Huntington Beach . 2000 Main Street Huntington Beach, California 92W RE: ddendum To Operating Agreement - Bolsa Chica State Beach Dear Ua�a": Please find attached your copy with original signatures of the Addendum To Operating Agreement for Bolsa Chica State Beach. The document provides for the operation of five (5) concession stands at Bolsa Chica State Beach. Park Superintendent Don Ito and I are available to assist you further with the transition of the City into the facilities at Bolsa Chica. Please feel free to contact either of us as you see the need. Contract administration will be accomplished by Ms. Denise Murphy, Chief Administrative Officer, Orange Coast District, 3030 Avenida Del Presidente, San Clemente, CA 92672, tel: (714) 366-8505. 1 look forward to this new partnership with the City and the improvements to be forth coming around the Pier. Thank you for the patience as we worked through the process to achieve this solution. Attachment CC. D. 1to, Park Supt D. Murphy, RAO III J13R03-31a7c425 9261113Co1CADD Sincerel Jac . Roggenbuck District Superintendent C STATE OF CALIFORNIA DEPARTMENT OF PARES AND RECREATION ADDENDUM TO OPERATI1tiG AGREEMENT WITH THE CITY OF IIUN' TINGTON BEACH FOR BOLSA CHICA STATE BEACH LOCATED IN ORANGE COUNTY, CALIFORNIA Table of Contents 1. Amendment to Operating Agreement and Assignment of 4 Concession Contract 2. Acceptance 4 3 Funding 5 4. Conditions of Premises 5 5. Term 5 6. Quitclaim Deed 6 7. Rental 6 8. Use of Premises 10 9. Quality of Service and Control of Rates and Charges I2 10. Hold Harmless Agreement 13 11. Liability Insurance 14 12. Fire Insurance 15 13. Taxes 16 14. Title to Improvements 17 15. Personal Property Improvements 17 16. Maintenance of Improvements 17 I7. Utilities and Services 18 I8. Equipment 19 19. Signs, Advertising and Approval of Name 19 20. Inspection of Premises 19 21. Breach of Contract 20 22. State Buy -Out Provisions 20 23. Contract Notice 22 24. Interpretation of Contract 22 25. Waiver of Contract Terms 22 26. Modification of Contract 23 27. Assignments 23 a. Assignment For Security 23 b. Assignment for other than Security 24 c. SubConcessions 25 28. Waiver of Claims 26 29. Right of Entry as Agent 26 SF1s:PCD:Agrce:Addcn1213 i January 8, 1997 30. Terms Binding on Successors 26 31. Duration of Public Facilities 27 32. Time of Essence 27 33. Eminent Domain 27 34. Conflict of Interest 27 35. Photography 28 36. Hazardous Substances 28 37. Nondiscrimination 29 38. Paragraph Titles 30 39. Contract in Counterparts 30 40. Alcoholic Beverages 31 41. HeaIth Certificate 31 42. Employee Training 31 43. State's Area Manager 31 44. Agreement in Writing 31 45. Approval of Amendment 32 SF1s:PCD:Agrcc:Addcn1213 li January S. 1997 IN AMENDMENT TO OPERATING AGREEMENT BETWEEN STATE OF CALIFORNIA DEPARTMENT OF PARKS AND RECREATION AND CITY OF HUNTINGTON BEACH FOR BOLSA CHICA STATE BEACH LOCATEDIN ORANGE COUNTY, CALIFORNIA THIS AMENDMENT TO THE OPERATING AGREEMENT FOR BOLSA CHICA STATE BEACH is made and entered into this day of January I997, by and between the STATE OF CALIFORNIA, acting through its Department of Parks and Recreation, hereinafter referred to as "State", and the CITY OF HUNTINGTON BEACH, hereinafter referred to as "City" -WIThiEa!iETH IHAT «IEREAS, State and the City entered into an "Operating Agreement" dated December 1,1986, which agreement was approved by the State Department of General Services on January 13, I987, and which agreement provides for the care, maintenance, and control of the Bolsa Chica State Beach from the Huntington Beach Pier to immediately south of Seapoint Avenue by City; and State entered into a "Concession Contract" for Bolsa Chica State Beach dated September 5, 1979, with Donald W. Tosh, Ted E. Christensen, a -A Tom A Lewis (herein referred as "TLC') SF1s:PCD:AgrecAdden t 213 January 9. 1997 - 11 to operate the following facilities within Bolsa Chica State Beach: (i) an existing parking lot and a food and beverage stand located immediately north of the Huntington Beach Pier (hereinafter referred to as "Sunny's); and (ii) five (5) food and beverage stands located between Warner Avenue and Seapoint Drive, which TLC was required to construct (hereinafter referred to as the "Premises'). Sunny"s and the Premises will hereinafter be collectively referred to as the "Concession"; and The Operating Agreement in paragraph 3 pro%ides that City agreed to accept assignment of the TLC Concession Agreement for "Sunny's'; and State entered into an "Assignment" with City on or about May 21, 1992, assigning to City all State's right, title, and interest in and to that portion of the Concession Contract for Sunny's as described in paragraph 3 of the Operating Agreement. This Assignment included all rights of State in and to Sunny's specifically including but not limited to the termination provisions in paragraph 24 of the Concession Contract; and City has obtained approval of its Pier Plaza project from the California Coastal Commission pursuant to an amendment to Permit No. A-5-HNB-95-098, issued on May 2, 1996. Further, the Department of Parks and Recreation approved the plans for Pier Plaza in March 1995; and Pier Plaza will incorporate what is currently Sunny's and much more. Pier Plaza «ill consist of the construction of two, tri-level, surface parking lot facilities, one south of the Huntington Beach Pier, and the other north of the Pier. It also includes a plaza at the foot of the Pier comprised of interlocking pavers, an outside grass amphitheater, a beach restroomlconcession building, parking lot lighting, decorative plaza lighting, an 2 SF/s:FCU:AFrcc:A ddcn 1213 January 9. 1997 -11 Ann/Information kiosk, one mile of pedestrian and bike trail improvements, and two traffic signal modifications. Finally, an existing restaurant building at the base of the Pier will be demolished, and a building pad will be constructed for a new restaurant on the same footprint. State finds that Pier Plaza represents a vast improverrent over the existing site conditions and will provide the general public with a first class recreational facility; and City has attempted to exercise the termination provision of the Concession Contract as to Sunny's, but TLC has contested the termination in the still -pending unlawful detainer case entitled City of Huntington Beach a Tosh, et al, Orange County Municipal Court Case No. 22 74 20. As of the date of this Amendment, no final judicial determination has been made whether the City may exercise the termination provision of the Concession Contract as to only Sunny's pursuant to the Assignment. Further, TLC has filed art inverse condemnation case based upon the City filing the unlawful detainer action, which case is entitled Tosh, et al, v. CiV of Huntington Beach, et al., Orange County Superior Court Case No. 76 96 00; and State desires that Pier Plaza be developed, and to that end desires to amend the Operating Agreement to assign to City all State's right, title, and interest in and to the Concession Contract. This assignment includes all rights of State in and to the Concession, including Sunny's and the Premises, specifically including but not limited to the termination provisions in paragraph 24 of the Concession Contract; and State further finds that the funding provided at Section 4 of this Amendment to pay TLC the value of the depreciated improvements of the Premises satisfies the requirement of appropriation of funds pursuant to Paragraph 24 of the Concession Contract; and 3 Sr/s TMAgree:Adden 1213 January 8, 1997 - 01 State further desires that the City continue to operate the Premises if TLC is evicted from them. Therefore, it is appropriate that this Amendment be entered into for the safety and convenience of the general public in the use and enjoyment of the State Park System; NOW, THEREFORE, the parties hereto agree as follows: I . AMENDMENT TO OPERATING AGREEMENT AND ASSIrIhMENT OE CONCESSION CONTRAr : Pursuant to the authority of and in accordance with Section 5080.30 et seq., of the Public Resources Code of the State of California, State and City hereby amend the Operating Agreement (hereinafter referred to as the "Amendment") to assign to the City all of State's right, interests, and duties in the Concession Contract. This assignment includes the entire Concession, including Sunny's (which was previously assigned to the City pursuant to the Operating Agreement) and the Premises. This assignment includes the right to sign and serve notices which are required or appropriate to terminate the Concession Contract pursuant to Paragraph 24 thereof; to commence and prosecute actions to evict TLC; to recover possession of the Concession; to recover rents and other sums due; and to, when expedient, settle, compromise, and release claims, actions and suits and/or reinstate tenancies. Upon eviction of TLC, City shall operate the Premises pursuant to the terms and conditions of this Amendment, provided that the City may rebuild Sunny's as part of Pier Plaza, and operate it pursuant to the terms and conditions of the existing Operating Agreement. 2. ACCEPTANCE: City accepts the assignment and agrees to use due diligence in the performance of this Amendment. 4 Sr/s:PCD.Agrce:Addcn 1213 January 9, 1997 - M 1 k.i 3. FLTNDINS The City shall bear all expenses of terminating the Concession Contract, any payment to TLC of the value of the depreciated improvements of the Concession pursuant to Paragraph 24 of the Concession Contract and including any legal fees incurred in prosecuting Orange County Municipal Court Case No. 22 74 20, defending Orange County Superior Court Case No. 76 96 00, prosecuting any unlawful detainer action based upon this Amendment, and defending any future Iegal actions related thereto. Pursuant to the foregoing obligation of the City to bear all expenses of terminating the Concession Contract, State has satisfied the requirement of Paragraph 24 of the Concession Contract that it appropriate all funds necessary to terminate the Concession Contract. 4. CONDITIONS OF PRFMISES: The taking of possession of the Concession by the City shall, in itself, constitute acknowledgment that the Concession is in good and tenantable condition. City agrees to accept the Concession in its presently existing condition, "as is", and that the State shall not be obligated to make any alterations, additions or betterments thereto. AV y� 5. IERM: The term of this Amendment shall expire on April 9, 2000, provided that the Operating Agreement shall remain in effect upon the expiration of this L" Amendment, including the City's right to continue to operate Sonny's. Should City hold over after the expiration of the term of this Amendment with the express or implied consent of the State, such holding -over shall be deemed to be a tenancy from month -to -month at the herein stated prescribed rent, subject othenNise to all the terns and conditions of this Amendment. At the expiration or termination of this Amendment, as herein provided, the City shall within thirty 5 S17s: PC): Agrce:Addcn 1213 January 9, 1997.91 V (30) days thereafter, remove from the Premises, only or otherwise dispose of in a manner satisfactory to State All personal property belonging to City located on the Premises. Should City fail to remove or dispose of its property as herein provided, State may, at its election, consider such property abandoned and may dispose of same at City's expense. Also, at the expiration or termination of this Amendment, City shall quit and surrender the Premises, including real property improvements, in a good state of repair, damage by matters over which City has no control excepted, provided that such exculpatory provision shall not extend to any risk which City is required to insure against as herein provided. 6. QUITCLAIM DEED: Upon expiration of this Amendment, the City shall execute and deliver to State within thirty (30) days after service of written demand therefor, a good and sufficient quitclaim deed to the Premises. Should City fail or refuse to deliver to State a quitclaim deed as aforesaid, a written notice by State reciting the failure of the City to execute and deliver said quitclaim deed as herein provided, shall after ten (10) days from the date of recordation of said notice be conclusive evidence against the City and all persons claiming under City of the expiration of this Amendment, provided that the Operating Agreement shall remain in effect upon the expiration of this Amendment, including the City's right to continue to operate Sutxny's. 7. RFNTAL: City shall pay, without demand, as minimum annual rental for the Premises the sum of Two Thousand Dollars ($2,000.00) payable monthly at the rate of Four Hundred Dollars $400.00) in each of the specified months (June, July, August, September, and M 5F1s:PCD.Agmc:Addcn 1113 January 6.1997 - # I MR October) of each year of this Amendment or the following percentage(s) of annual gross receipts, whichever sum is greater: 10% of first $200,000.00 of annual gross receipts, plus 12% of all over $200,000.00 of annual gross receipts. Beginning with the 15th day of the month following the eviction of TLC, City shall furnish to the State Park Area Manager a verified statement of the gross receipts of the Premises for the preceding month. On or before the 15th day of each month thereafter, City shall furnish the Area Manager a verified statement of the Premise's cumulative total of gross receipts through the end of the preceding month for the then current year. A current year is defined as a year that begins on the 1 st of the month following the eviction of TLC and continues for I2 months thereafter: e.g., duly 1, 1997 TLC is evicted; August 1, 1997 current year begins; July 31, 1998 current year ends. With such monthly statement, the City shall pay to State the rental fee for the preceding calendar month. The rental payment for each preceding month shall be such an amount as will, if added to all previous months' payment of that current year, equal the prescribed percentage of the accumulated gross sales to the end of that month, or the total minimum monthly rental to date, whichever is greater. All net profits of the City from operating the Premises, shall be applied as follows: first, to repay the City's expenses of terminating the Concession Contract, including any payment to TLC of the value of the depreciated improvements of the Concession pursuant to Paragraph 24 of the Concession Contract; second, to repay the City's legal fees incurred in prosecuting Orange County Municipal Court Case No. 22 74 20, defending Orange County Superior Court Case No. 76 96 00, prosecuting any unlawful detainer action based upon this 7 S rIs:PCD:Agrce:Addcn 1213 January S. 1997 - N 1 Amendment, and defending any future legal actions related thereto plus the amount for settling the aforementioned litigation, and the amount of any judgment resulting from the aforementioned litigation; and third, to repay the City's expenses to install any fixtures, improvements and extraordinary repairs to the Premises, following eviction of TLC. After all such amounts have been repaid, any remaining; net profits shall be divided equally between the City and the State. In the event a rental payment is not made on or before the due date herein provided, City shall pay to State a late charge on said unpaid rental at the rate of one percent (IVo) per month from and after the due date thereof until the date of payment. Should there be unusual or extenuating circumstances for not paying said rental on or before the due date herein provided, the Area Manager may recommend and the State in its discretion may waive the late charge on the unpaid rental. Payments to the State shall be made to the order of the Department of Parks and Recreation and made at the office of the Area Manager at 18090 Beach Blvd., Suite 8, Huntington Beach, CA 92648 or at such other location as may from time to time be designated by State. City shall keep true and accurate books and records showing all of its business transactions in separate records of account for the Concession in a manner acceptable to State and the State shall have the right through its representative and at all reasonable times, to inspect such books and records including State of California sales -tax return records; and City hereby agrees that all such records and instruments are available to the State. 8 SFls: PCn:Agree:Addcn 1213 January 8, 1997 - N I City will submit to the State, no later than forty-five (45) days after the close of each business year during the term of this Amendment and no later than forty-five (45) days after the end of the term for the period not previously reported, a profit and loss statement prepared by a Certified Public Accountant or Public Accountant licensed by the State of California. Said statement shall contain an appropriate certification that all gross receipts during the yearly accounting period covered by said statement shall have been duly and properly reported to the State. In the event this Amendment is terminated, a profit and loss statement for the period of operation not previously reported, prepared in the manner stated above, shall be submitted by the City to the State within fifteen (I5) days after this Amendment is terminated. State further reserves the right to examine all such books and records at any time during the one (1) year period following the termination of this Amendment. City agrees that as part of its record -keeping activity, it shall at its own cost and expense install and maintain such cash register equipment as may be deemed necessary by State. Such cash register equipment shall contain a continuous registering tape. The term "gross receipts", wherever used in this Amendment, is intended to and shall mean all moneys, property or any other thing of value received by City through the operation of said Concession or from any other business carried on or upon the Premises or any portion thereof, or from any other use of the Premises or any portion thereof by City, without any deduction or deductions, it being understood, however, that the term "gross receipts" shall not include any sales tares imposed by any governmental entity and collected by City. In the event City is prevented from carrying on the operations contemplated herein by reason of an Act of God, or other reason beyond its control, and when such is so E S FA:PCD:Agnx:Addcn 1213 January 8. 1997 - # I determined by State, then the rentals prescribed herein shall be abated for such period of nonoperation. 8. USE OF PREMISES: The Premises shall be used by the City for the operation and maintenance of Premises as outlined in Exhibits I and II attached, comprised of five (5) Refreshment Rental and supply stands for the sale of food and beverages (non-alcoholic) and items of a similar nature usually sold at a beach refreshment stand; and for the rental and sale of beach equipment and fishing tackle. The City shall also sell firewood and shall be the same quantity and quality of wood as is sold by the State. These services shall be provided on a schedule no less than the following: from the Saturday preceding Palm Sunday to the Saturday of the Memorial Day weekend and from the day following Labor Day through September 30, a minimum of one stand shall be open daily, from 10:00 a.m. to 4:00 p.m.; from the Saturday of Memorial Day weekend through Labor Day, City shall be fully prepared and staffed to open daily all the Concession stands and shall maintain open a minimum of one stand from 10:00 a.m. to I0:00 p.m., during either period above. City shall open and maintain open additional stands to accommodate visitor attendance and usage. It is the intent of the State that services be provided in a manner to meet the needs of the visiting public and should State deem hours of operation or number of stands open inadequate to meet such needs State may require City to adjust its schedule to a schedule provided by State. City may remain open on other dates, observing same hours, at its discretion with the concurrence of the Area Manager. In the event of adverse weather or other operating conditions, the Area Manager or his authorized representative, may permit the Concession to close at any time during 10 sr/s PCD:Agrcc:Addcn1213 January 8.1997 - $1 4+ the term of this Amendment. City shall not use or permit the Premises to be used in whole or in part during the term of this Amendment for any purpose, other than as herein set forth, without the prior wTitten consent of the State first had and obtained. City expressly agrees at all times during the term of this Amendment, as its own cost and expense, to maintain and operate such premises and areas adjacent to a distance of not less than fifty (50) feet, in a clean, safe, wholesome and sanitary condition free of trash, garbage or obstructions of any kind and in compliance with any and all present and future laws, general rules or regulations of any governmental authority now or at anytime during the term of this Amendment in force relating to sanitation or public health, safety or welfare; and City shall at all times faithfully obey and comply with all laws, rules and regulations applicable thereto adopted by federal, state or other governmental bodies or departments or officers thereof. This Amendment is expressly subject to regulations and policies of 6e State Park and Recreation Commission and the Director of Parks and Recreation. City shall remedy without delay any defective, dangerous or unsanitary conditions. All foods and beverages (non-alcoholic) sold directly on the beaches shall be sold in disposable paper containers. No pull -top cans or styrofoam containers are to be vended or dispensed from the Premises. City and State shall from time to time review items sold and containers or utensils used or dispensed by City and wherever feasible, eliminate the use of non -returnable containers, plastics, etc. State reserves the right to prohibit the sale or use of non -recyclable containers or plastics. I s r/s:PCD:Agree:Addcn 12I3 January 8, 1997 - 01 Service to the public, with goods and merchandise of the best quality and at reasonable charges, is of prime concern to the State and is considered a part of the consideration for this Amendment. Therefore, City agrees that it will operate and manage the services and facilities offered in a first-class manner, and comparable to other first-class Concessions providing similar facilities and services, during the entire term of this Amendment. N4%ere such facilities are provided, City agrees that it shall and will furnish and dispense foods and beverages (non-alcoholic) of the best quality and shall and mill maintain a high standard of service at least equal to that of other establishments in State Parks ancYor adjacent communities and to those prevailing in such areas for similar products and services, and without discrimination. The State shall have access to and the right to inspect the schedule of prices and rates for goods sold or services rendered or performed upon the Premises, and menus, lists, portion schedules, and schedules of prices in the restaurant or other food -serving activities of City; and in the event that after City has been advised and given a reasonable opportunity to confer %N ith the State and justify the prices or portions mentioned above, if the State shall determine any price or prices to be unreasonable or inappropriate for the services rendered, the item sold, or any portion or portions to be inadequate, the same shall be modified as directed by the State. City shall post rates and prices for all goods and services in such places as may be designated by State. State reserves the right to prohibit the sale or rental of any item which it deems objectionable, beyond the scope of merchandise deemed necessary for proper service to the public or of inferior quality. 12 Srls:l M.Agrec:Adden1213 January 8. 1997 - N 1 All foods and beverages (non-alcoholic) sold directly on the beaches shall be sold in disposable containers of paper or other biodegradable materials. City and State shall from time to time review items sold and containers or utensils used or dispensed by City, and whenever possible, eliminate the use of non -returnable containers, plastics, etc. State reserves the right to prohibit the sale or use of non -recyclable containers or plastics. No pull -top cans or styrofoam cups or other non -biodegradable cups are to be used or sold by City. No pesticides, herbicides or fungicides may be used that are not approved in writing by the Area Manager in advance of use. A competent person shall be on the Premises at all times while the Concession is in operation. If the on -site manager is other than the City, State reserves the right to approve such manager. 10. HOLD HARMLESS AGREE City shall protect, defend, indemnify and hold harmless State from all costs, expenses, suits, liabilities, damages, and claims of every type, including but not limited to those arising out of injury or death of any person(s), or damage to any real or personal property of any person(s), including State, in any way relating to the acts or omissions of the City in the performance or exercise of any of the duties, powers, or authorities herein or hereafter granted to City, except to the extent arising from the active negligence, gross negligence or willful misconduct of State, its officers, agents or employees. 13 if /s:l MAgrcc:Addcn1213 January 8. 1997 -81 V U In the event State is named as codefendant, the City shall notify State of such fact and shall represent State in such legal action unless State undertakes to represent itself as codefendant in such legal action, in which event State shall bear its own litigation costs, expenses and attorney's fees. In the event judgment is entered against State and City because of the negligence of State and City, their officers, agents or employees, an apportionment of liability to pay such judgment shall be made by a court of competent jurisdiction. Neither party shall request a jury apportionment. 11. LIABILITY INSURANCE City shall provide before entering the Premises and shall maintain in force during the term of this Amendment public liability insurance in the sum of One Hundred Thousand Dollars ($100,000.00) for injury to or death of any one person; and Three Hundred Thousand Dollars ($300,000.00) for injury to or death of more than one person; and property damage and products liability insurance in the sum of Fifty Thousand Dollars (550,000.00). This policy or policies of liability insurance shall contain the following special endorsement: 1. State of California, its officers, employees, and servants are included as additional insured but only insofar as operations under this Amendment are concerned; 2. The insurer will not cancel or reduce the insured's coverage without thirty (30) days prior written notice to State. 3. State will not be responsible for premiums or assessments on the policy. 14 Sr1s:1'CD:ASmc: Addcn 1213 January 8. 1997 . # I fir✓ No cancellation provision in any insurance policy shall be construed in derogation of the continuous duty of City to Furnish insurance during the term of this Amendment. Said policy or policies shall be underwritten to the satisfaction of the State. A signed and complete certificate of insurance, with all endorsements required by this paragraph, shall be submitted to State concurrently with the execution of this Amendment. At least thirty (30) days prior to the expiration of any such policy, a signed and complete certificate of insurance, with all endorsements required by this paragraph, showing that such insurance coverage has been renewed or extended, shall be filed with State. Upon request, insurer shall furnish State a certified copy of the policy within fifteen (15) days. 12. FIRE INSURANCE City shall provide before entering the Premises and shall maintain in force during the term of this Amendment, fire insurance with extended coverage endorsements thereon, on the Premises in an amount equal to ninety percent (901/o) of the full replacement cost and/or value thereof; said policy to contain a replacement cost endorsement naming the City as the insured; provided however, that if there is a lender on the security of the improvements so insured, the proceeds of any such policy or policies may be made payable to such lender. In either case, whether proceeds are paid to City or to lender, the policy shall contain a special endorsement that such proceeds shall be used to repair or rebuild any such improvements so damaged or destroyed; and if not so used, such proceeds shall be paid to the 15 S17ls:PCn:Agrcc:Addcn 1213 January 8. 1997 - N I State. The proceeds of any such insurance payable to the State shall be used for rebuilding or repair as necessary to restore the Premises and at the discretion of State. This policy or policies shall also contain the following endorsements: l . The insurer will not cancel or reduce the insured's coverage without thirty (30) days prior wTitten notice to State; 2. State will not be responsible for premiu•ns or assessments on the policy. A complete and signed certificate of insurance with all endorsements required by this paragraph shall be filed i&ith the State prior to the commencement of operation of the Premises. At least thirty (30) days prior to the expiration of any such policy, a signed and complete certificate of insurance coverage has been renewed, shall be filed with the State. Upon request, insurer shall furnish State a certified copy of the policy «within fifteen (15) days. 13. TAXES: This Amendment may create a possessory interest in public property which is subject to property taxation. in the event that such possessory interest is created, City agrees to be subject to the payment of and to pay property taxes levied on such interest. City agrees to pay the above and all other la%& ful taxes, assessments or charges which at any time may be levied by the State, County, City or any tax or assessment levying body upon any interest in this Amendment or any possessory right which City may have in or to the Premises covered hereby or the improvements thereon by reason of its use or occupancy thereof 16 Sr/sTCD:ANrcc:Addcn 1213 January 8, 1997 - N I M or otherwise, as well as all taxes, assessments, and charges on goods, merchandise, fixtures, appliances, equipment, and property owned by it in or about the Premises. City shall comply with all laws, regulations and ordinances regarding the collection of taxes due a local government agency, and otherwise administer the same. 14. TITLE TO IMPROVEMENTS: City hereby acknowledges the title of State in and to the Premises described in this Amendment, including real property improvements existing or hereafter erected thereon, by City, State or others and hereby covenants and agrees never to assail, contest or resist said title. Title to improvements will remain in State upon any termination of this Amendment and no sums whatsoever shall be paid to City or any other person upon termination for default of any terms of this Amendment. 15. PERSONAL PROPERTY TMPR03MIFNTS: Title to all personal property provided by City and additions and betterments thereto made by City shall remain in City. 16. MAINTENANCE OF IMPROVEMENTS: City agrees to maintain the Premises in good order and repair at its o,%m cost and expense during the entire term of this Amendment. Such maintenance shall conform to the same standards and schedule as the State provides in its Facility Maintenance Program for the subject park unit. City shall perform at its oven cost and expense, any required maintenance and repairs including structural maintenance and landscape maintenance, and should City fail, neglect or refuse to do so, the State shall have the right to perform such maintenance or repairs for the City's account, and the City agrees to promptly 17 5f1s:1 MAgrmAdden1213 January 8, 1997 - N I reimburse the State for the cost thereof, provided, however, that the State shall first give City ten (10) days written notice of its intention to perform such maintenance or repairs for a City's account for the purpose of enabling City to proceed with such maintenance or repairs at its own expense. The State shall not be obligated to make any repairs to or maintain any improvements on the Premises. City hereby expressly waives the right to make repairs at the expense of the State and the benefit of the provisions of Section 1941 and 1942 of the Civil Code of the State of California relating thereto if any there be. City expressly agrees at all times during the term of this Amendment, at its own cost and expense, to maintain and operate the Premises and areas adjacent to a distance of not less than fifty (50) feet, in a clean, safe, wholesome and sanitary condition free of trash, garbage or obstructions of any kind and in compliance with any and all present and future laws, general rules or regulations of any governmental authority now or at any time during the term of this Amendment in force relating to sanitation or public health, safety or welfare; and City shall at all times faithfully obey and comply with all laws, rules and regulations applicable thereto, adopted by Federal, State or other governmental bodies or departments or officers thereof. This Amendment is expressly subject to regulation and policies of the State Park and Recreation Commission and the Director of Parks and Recreation. City shall remedy without delay any defective, dangerous or unsanitary conditions. City shall annually expend a minimum of One (1%) percent of the average annual gross receipts for maintenance of the Premises. Such expenditures shall be verified by expense statements and shall be as concurred in by State. 18 SF/s:PCD:Agrce:Addcn 1213 January 8. 1997 - 91 17. UTTLITIES AND SERVICES: City shall be responsible for the payment of all utility charges, including, furnishing all necessary refuse and garbage containers and removal and disposal of all rubbish, refuse and garbage resulting from operation of the Premises. All such rubbish, refuse and garbage removed shall be disposed of outside the Park Unit and in accordance with applicable laws and local ordinances. All trash containers and/or trash bins shall be adequately screened to the satisfaction of the Area Manager. For the purpose of this paragraph, sewage disposal shall be construed as a utility. 18. EQUIPMENT: City, at its own expense, shall equip the Premises and shall keep the same equipped in a first-class manner throughout the term of this Amendment. placards or advertising matter, other than those specified in Exhibit "I" hereto, shall be inscribed, painted or affixed upon the Premises, circulated or published without written consent of the State first had and obtained. 20. INSPECTION OF PREMISES: The State hereby reserves the right to enter upon the Premises occupied by City at any reasonable time to inspect the same. State also reserves the right of ingress and egress to inspect, investigate and survey the Premises as deemed necessary, and the right to do any and all work of any nature necessary for preservation, maintenance and operation of this State Unit in any areas within the confines of said unit. City will be given reasonable notice when such work may become 19 S r/s:PCD:Agrce:A ddcn 1213 hmuary S. 1997 . # 1 necessary and shall adjust operation of the Premises in such a manner that State may proceed expeditiously. 21. : This Amendment is made upon the condition that if the rents or other sums which City herein agrees to pay or any part thereof shall be unpaid on the date on which the same shall become due, or if breach be made in any of the terms, agreements, conditions or covenants herein contained on the part of the City, or should City become insolvent or bankrupt either voluntarily or involuntarily, then, and in such event at the option of the State, this Amendment shall cease and terminate and the State may enter upon and take possession of the Premises and City shall vacate the Premises within 30 days after notice that this Amendment is terminated and City agrees to pay all costs incurred by State in its taking possession of the Premises. Except for the payment of rent, City will have thirty (30) days to cure a breach or if more than thirty (30) days is necessary to cure a breach, City, upon the written concurrence of State, will faithfully commence to cure such breach. Notwithstanding any of the above breach of contract provisions, should City create or allow to be created a nuisance on the Premises described herein, State at its discretion may immediately declare this Amendment and all rights therein terminated. 22. SIAMBUY-OUI PROVISIONS: Notwithstanding any other provision in this Amendment and in addition to any other remedy available to State, State shall have the option to terminate this Amendment upon 6 months written notice and payment to City of the 20 Sr/s: PCD: Agrcc:Addcn 1213 January 8. 1997 • #I following amount: (i) the amount the City paid TLC for the Concession to terminate the Concession Contract, including any payment to TLC of the value of the depreciated improvements of the Concession pursuant to Paragraph 24 of the Concession Contract; (ii) any legal fees incurred in prosecuting Orange County Municipal Court Case No. 22 74 20, defending Orange County Superior Court Case No. 76 96 00, prosecuting any unlawful detainer action based upon this Amendment, and defending any future legal actions related thereto, plus the amount for settling the aforementioned litigation, and the amount of any judgment resulting from the aforementioned litigation; and (iii) the City's expenses to install any fixtures, improvements and extraordinary repairs to the Premises, follo%%ing eviction of TLC. This amount shall be reduced by any amounts the City repays itself from the net profits from City operation of the Premises, as described at Paragraph No. 7. It is expressly understood that this Paragraph No. 22 does not apply to the situation where the State may terminate this Amendment for any breach on the part of the City. Where there has been a breach on the part of the City, under any terms of this Amendment, the State shall not be obligated to pay the City before or after taking possession of the Premises. In the event of breach, bankruptcy, insolvency, abandonment, or the Amendment is terminated at City's request, the buy-out provisions contained herein are not to be considered as an obligation of the State. In the event there is an assignment of this Amendment for security and as consented to by State, then any payments made pursuant to this paragraph shall be used to satisfy such assignee to the extent of his interest. 21 Sr/s:PCD Agrcr.Addcn1213 January 9, 1997 - M 1 rIL I This paragraph shall only be operative when funds required by State for such buy- out are obtained through the normal budgeting processes of the State. 23. CONTRACT_ NOTICE: Except for rent, as provided for herein, any notices herein provided to be given, or which may be given by either party to the other, shall be deemed to have been fully given when made in writing and deposited as certified mail in the United States mail, postage prepaid and addressed as follows: To the City at: City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 Attention: City Clerk To the State at: California Department of Parks and Recreation Orange Coast District 3030 Avenida del Presidente San Clemente, CA 92672 The address to which notices shall or may be mailed as aforesaid by either party, shall or may be changed by written notice given by such party to the other as hereinbefore provided, but nothing herein contained shall preclude the giving of any such notice by personal service. a r : ' : � rtr7�►[r��Ir�r�► sty-�:�:[ - - . - . - . is subject to the laws of the State of California in all respects as to interpretation, construction, operation, effect and performance. 22 SFlsTCD;Agrcc: Addcn 1213 January S. 1"7 - KI I No waiver by either party at an), time of any of the terms, conditions or covenants of this Amendment shall be deemed as a waiver at any time thereafter of the same or of any other term, condition or covenant herein contained, nor of the strict and prompt performance thereof. No delay, failure or omission of the State to re- enter the Premises or to exercise any right, power or privilege or option arising from any breach, nor and subsequent acceptance of rent then or thereaft--r accrued shall impair any such right, power, privilege or option or be construed as a waiver of such breach or a relinquishment of any right or acquiescence therein. No notice to the City shall be required to restore or revive time as of the essence after the waiver by the State of any breach. No option, right, power, remedy or privilege of the State shall be construed as being exhausted by the exercise thereof in one or more instances. The rights, powers, options and remedies given to the State by this Amendment shall be deemed cumulative. 26. Notwithstanding any of the provisions of this Amendment, the parties may hereafter, by mutual consent, agree to modifications thereof, additions thereto or termination thereof, in writing, which are not forbidden by law. The State shall have the right to grant reasonable extensions of time to City for any purpose or for the performance of any obligation of City hereunder. 27. ASSIGNMENTS: No transfer, assignment or corporate merger by the City that affects this Amendment or of any part thereof or interest therein, directly or indirectly, 23 .SFls:PCD: Arrcc:A ddcn 1213 Janusry 8, 1997 - # 1 voluntarily or involuntarily, shall be made unless such transfer, assignment or corporate merger is first consented to in writing by State. (a) ." The City's possessory interest in City's improvements under the terms of this Amendment, for the purposes of affording security only, may be assigned, transferred or encumbered when first consented to in writing by State. No mortgage shall be executed and no bonds or other evidence of interest in, or indebtedness upon the assets or proposed assets of the City in the State unit shall be issued except for the purposes of installing, enlarging or improving plant and equipment and extending facilities for the accommodation of the public in the State unit and then only except upon prior consent in writing in each case obtained from the State. In the event of breach and foreclosure on such a mortgage or such other indebtedness or of other assignment, transfer or encumbrance, the purchaser under the foreclosure sale, shall succeed to the possessory interest of the City in City's improvements. Under these circumstances, operating rights and privileges shall be as outlined in this Amendment; however, the right of any person or persons to actually operate the Premises is subject to the consent of the State. (b) Assignment for other than Secu-ity: City shall neither assign, sublease or otherwise convey any interest of any sort granted by this Amendment, to any person or persons, entity or entities whatsoever without prior written consent and approval of the conveying document by State. Before State considers such assignment, evidence must be given to State that the proposed assignee qualifies as a "best responsible bidder" under the terms of Sections 5019.11 and 5019.15 of the Public Resources Code and has and will have available a responsible managing employee. The City's interest hereunder shall not be assignable in 24 SF/s:PCD:Agrce:Addcn 1213 January 8, 1991 • N I bankruptcy, nor shall said interest be assignable by operation of law. Any document by which an interest is granted, subject to the consent of State, shall indicate that the person acquiring that interest has been advised of the terms of this Amendment and takes his interest subject to the terms and conditions in this Amendment and recognizes that upon termination of the interest of the City granted by this Amendment, his interest shall also be terminated. However, in the event of termination of this Amendment, State, at its sole option, may elect to treat any assignee, subtenant or holder of an interest conveyed by City as State's tenant, subject to the terms and conditions of this Amendment and that entered into between the City and its assignee, subtenant or holder of an interest conveyed by City. In the event that State does consent to the assignment of City's interest in the Amendment, the State may prescribe the conditions of assignment, including the price therefor. Such assignment and price shall be subject to the following, as well as other considerations: (1) The sale price of improvements erected by the City at any given point in time shall not be more than the value established above prorated on a 20 year, three percent (3%) recovery of capital basis. (2) The value of stock in trade shall not be more than its cost to the City, as verified by invoice. (3) The value of equipment shall be not more than the value established by straight-line depreciation on a ten (10) year schedule. (c) SubConcessions With the prior iATitten consent of State, portions of this Premises may be operated by others. The following conditions must be met: 25 S Fls: P CD: A g rcc: A d d cn 1213 January 8. 1997 - N I (1) The sub -tenant must be fully qualified. (2) The sub -tenant understands that his interest is taken under this Amendment. 28. WAIVER OF CLAIMS: The City hereby waives any claim against the State of California, its officers, agents or employees for damage or loss caused by any suit or proceeding directly or indirectly attacking the validity of this Amendment, or any part thereof or by any judgment or award in any suit or proceeding declaring this Amendment null, void or voidable or delaying the same or any part thereof from being carried out. 29. RIGHT OF ENTRY AS AGENT: In any case in which provision is made herein for the termination of this Amendment by the State or in the case of abandonment on vacating of the Premises by City, the State, in lieu of declaring a forfeiture, may enter upon the Premises. To such end, City hereby irrevocably appoints the State its agent to remove any and all persons or property on the Premises and place any such property in storage for the account of and at the expense of City and to Met the Premises. In such case, the State may relet the Premises upon such terms as it may deem proper, and if a sufficient sum shall not be realized thereby, after paying expenses of such reletting, to satisfy the rent and other sums herein agreed to be paid by City, City agrees to save the State harmless from any loss or damage or claim arising out of the action of the State in pursuance of this paragraph. 26 Srrs:PCD:AFrec:Addcn1213 Januar? 8. 1997 - N I 30. TERMS BINDING ON SUCCESSORS: All the terms, covenants and conditions of this Amendment shall inure to the benefit of and be binding upon the parties and their successors and assigns. The provisions of this paragraph shall not be deemed as a waiver of any of the conditions against assignment hereinbefore set forth. In the event this paragraph becomes operative, the selection by the City of a manager for the Concession shall be subject to the consent of State. 31. 12URATION-OF PUBLICFACILITLS: By entering into this Amendment, State makes no stipulation as to the type, size, location, or duration of public facilities to be maintained at this unit, or &.e continuation of State oti4;nership thereof, nor does the State make any guarantee regarding the tentative projections in any prospectus furnished to the City at any time. MEWN-MU • this Amendment. Time shall be of the essence in the performance of If, during the term of this Amendment, any property described herein or hereinafter added hereto, is taken in eminent domain, the entire award shall be paid to State, provided however, that the City shall be paid the book value of the payment to TLC and any future modifications or additions to the Premises made by City. Book value shall be the established cost of improvements as determined under subparagraph (d) of Paragraph 22 27 S r1s:rCD:Agrcc:Addcn 1213 January R. 1997 - M I above, less depreciation based on a straight-line method of depreciation on a life as established for such facilities by the United States Internal Revenue Service. 34. CONFLICT OF.IN'FREST: City warrants and covenants that no official or employee of State nor any business entity in which an official or employee of State is interested; (1) has been employed or retained to solicit or aid in the procuring of this Amendment; (2) u711 be employed in the performance of this Amendment without the immediate divulgence of such fact to State. In the event State determines that the employment of any such official, employee or business entity is not compatible with such official's or employee's duties as an official or employee of the State of California, City, upon request of State, shall terminate such employment immediately. For breaches or violation of this paragraph, State shall have the right both to annul this Amendment without liability and, in its discretion, recover the full amount of any such compensation paid to such official, employee or business entity. 35. PHOTOGRAPHY: State may grant permits to persons or corporations engaged in the production of still and motion pictures and related activities, for the use of the Premises for such purposes when such permission shall not interfere %ith the primary business of City. 36. HAZARD01 l No goods, merchandise or material shall be Dept, stored or sold in or on the Premises which are in .any way explosive or hazardous; and no offensive or dangerous trade, business or occupation shall be carried on therein or thereon, and nothing shall be done on the Premises, other than as is provided for in this Amendment, and no 28 Sr/s:TCD:Agrcc:Addcn 1213 January 8. 1997 - U I machinery or apparatus shall be used or operated on the Premises which will in any way injure the Premises or adjacent buildings, provided however, that nothing in this paragraph contained shall preclude City from bringing, keeping or using on or about the Premises such materials, supplies, equipment and machinery as are appropriate or customary in carrying on its said business or from carrying on its business in all respects as is generally usual. Gasoline and oils shall be stored, handled and dispensed as required by present or future regulations and laws. 37. NONDISCRIM1NATi(7N: The City and its employees shall not discriminate because of race, religion, color, ancestry, sex, age, national origin or physical handicap against any person by refusing to furnish such person any accommodation facility, service or privilege offered to or enjoyed by the general public. Nor shall the City or its employees publicize the accommodation, facilities, services or privileges in any manner that would directly or inferentially reflect upon or question the acceptability of the patronage of any person because of race, religion, color, ancestry, sex, age, national origin or physical handicap. In the performance of this Amendment, the City will not discriminate against any employee or applicant for employment, because of race, color, religion, ancestry, sex, age, national origin or physical handicap. The City will take affirmative action to ensure that applicants are employed and that employees are treated during employment, without regard to their race, color, religion, ancestry, sex, age, national origin or physical handicap. Such action shall include, but not be limited to, the foIlownng: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The City shall post in 29 Sr/s: PCD:AFrcc:Addcn 1213 January 8. 1997 - M 1 conspicuous places, available to employees and applicants for employment, notices to be provided by the State setting forth the provisions of this Fair Employment Practices Section. Form 809, Equal Employment Opportunity Poster, may be used. The City will permit access to its records of employment, employment advertisement, application forms, and other pertinent data and records by the State Fair Employment Practices Commission, or any other agency of the State of California designated by the awarding authority, for the purpose of investigation to ascertain compliance with the Fair Employment Practices Section of this Amendment. The State may determine a willful violation of the Fair Employment Practices provision to have occurred upon receipt of a final judgment having that effect from a court in an action to which City was a party, or upon receipt of a written notice from the Fair Employment Practices Commission that it has investigated and determined that the City has violated the Fair Employment Practices Act and has issued an order, under Labor Code Section 1426, which has become final, or obtained an injunction under Labor Code Section 1429. In the event of violation of this paragraph, the State will have the right to terminate this Amendment, and any loss of revenue sustained by the State by reason thereof shall be borne and paid for by the City. 38. PARAGRAPH, TITLES: The paragraph titles in this Amendment are inserted only as a matter of convenience and for reference, and in no way define, limit or describe the scope of intent of this Amendment or in any way affect this Amendment. r SFIs:PCD:Agrcc:Addcn 1213 January R. 1997 - N 1 Y •• ► =114�liii►[K�I11r;���i:Z7:�i�� counterparts, each of which shall be deemed an original. This Amendment is executed in 40. ALCOHOLIC BEVERAGES: Notwithstanding anything to the contrary, the sale of alcoholic beverages on the Premises is expressly forbidden. 41. HFALTII CERTIFICATE: City shall file with the Area Manager a certificate showing that within the last two years, every person employed in the operation of the Premises has been examined and has been found to be free of communicable tuberculosis, all in accordance with Section 506.1 et seq. of the Public Resources Code. 42. EMPLOYEE TRAiMNG: All employees involved in the operation of the Premises are to receive an orientation on the State Part: System, the park unit in which the Premises are located, and local points of interest, which will be sufficient to permit such employees to reply adequately to inquiries from the visiting public. The employee Orientation Program is subject to the approval of the Area Manager. 43. STATE'S AREA MANAUR: For purposes of this Amendment, the "Area Manager" is the State representative in direct charge of Orange Coast Area and other units of the State Park System as may be assigned. He is charged with the day-to-day administration of this Amendment and is the City's initial contact with the State for information, contract performance, and other problems as might arise. Sr/s: PCD.Agrca:Addcn 1213 ]anuaty 8. 1997 - N I 31 u 1 Zia a 12114M. This Amendment contains and embraces the entire agreement between the parties hereto and neither it nor any part of it may be changed, altered, modified, limited or extended orally or by any agreement between the parties unless such agreement be expressed in writing, signed and acknoNvledged by the State and the City, or their successors in interest. 45. APPROVAL OF AMENDMENT It is understood and agreed that neither this Amendment, nor any amendments, modifications, or termination thereof shall be effective until approved by the Department of General Services and the Attorney General. 32 SHs:I'M Agrcc:Addcn 1213 January 9. 1997 - * 1 IN WITNESS V'HEREOF, the parties hereto have caused these present to be executed the day and year first above written. STATE OF CALIFORNIA Attorn eml By Deputy Attorney General DATED: - q 7 APPROVED: GENERAL SERVICES Departrne T _nasal5erv;ces APPROVED t 2 0107 sr•/s.PCD:A&rcc:Addcn 1213 January S. 1997 - N 1 33 CITY OF HUNTINGTON BEACH Mayor o Temore ATTEST: City Clerk APPROVED AS TO FORM: C1 v ; §orney INITIA2D AND APPROVED: I ector of1Community Services APPROVED: �.�A STATE OF CALIFORNIA DEPARTMENT OF PARKS AND RECREATION DONALD W. MURPHY, Director By: • Title: �;Trr n41ly 1)TR ., Date: FJAN 1 0 1997 RCA ROUTING SHEET INITIATING DEPARTMENT: City Attorney SUBJECT: Agency Agreement COUNCIL MEETING DATE: December 16, 1996 Ordinance (w/exhibits & legislative draft if applicable) Not Applicable Resolution (w/exhibits & legislative draft if applicable) Not Applicable Tract Map, Location Map and/or other Exhibits Not Applicable Contract/Agreement (w/exhibits if applicable) (Signed in full by the City Attomey) Attached Subleases, Third Party Agreements, etc. (Approved as to form by City Attorney) Not Applicable Certificates of Insurance (Approved by the City Attorney) Not Applicable Financial Impact Statement (Unbudget, over $5,000) Not Applicable Bonds (If applicable) Not Applicable Staff Report (If applicable) Not Applicable Commission, Board or Committee Report (If applicable) Not Applicable Findings/Conditions for Approval and/or Denial Not Applicable Administrative Staff Assistant City Administrator (I City Administrator (Initial) City Clerk t 'k f Jj "Off CITY OF HUNTINraTON BEAC RiveD FROM ( , AND MADE A PAR T OF E THE RECORD AT INTER -DEPARTMENT COMMUNICATION COUNCIL MEETING OF J-- OFFICE OF THE CITY CLERK MUVT1NGTtKV MACH CONNIE BROCKWAY C . � ITY CLERK TO: Honorable Mayor and Members of the City Council FROM: Gail Hutton, City Attorney DATE: December 16,1996 SUBJECT: Bolsa Chica State Beach Concession Agency Agreement - Item E-11 on December 16, 1996 Agenda Since the distribution of the agenda, the City Attorneys office, in consultation with the State Parks Department and special counsel to the City, has revised the format of the Agency Agreement between the City and the State regarding the Bolsa Chica State Beach concessions. The basic principals remain the same. The City will serve as the agent to the State for the eviction of TLC. Further, upon the eviction of TLC the City will serve to operate the five beach concessions. However, the format of the Agency Agreement has been revised, and in addition, the City will operate the concessions upon termination of the TLC lease pursuant to an Addendum to the existing Operating Agreement. That draft Agency Agreement and the Addendum to the Operating Agreement are attached. Accordingly, it is requested that in place of the prior recommendation, the City Council approve the following recommendation: 1. That the City Council approve in substantially the form presented the attached Agency Agreement, and the Addendum to Operating Agreement with the State. 2. That the City Council authorize the Mayor and the City Clerk to sign the Agency Agreement and the Addendum subject to the final approval of the City Administrator and the City Attorney as to the form of the Agreements. 3. That the City Council authorize the Director of Community Services to take all actions necessary to terminate the TLC Concession Contract. SFIs-G:S r-91%kmos:Addcndum / 12115.96-#1 4. That the City Council authorize up to $90,000.00 to be paid to TLC, representing the depreciated value of the Concession Improvements. Gail Hutton City Attorney Attachment: Addendum c: Michael Uberuaga, City Administrator Ray Silver, Assistant City Administrator SF/s:G:SF-96N1cmos:Addcndum 12/16/96 - N I State of California Department of Parks and Recreation and City of Huntington Beach Department of Community Services BOLSA CHICA STATE BEACH CONCESSION AGENCY AGREEMENT The State of California, acting through its Department of Parks arld Recreation hereinafter referred to as "STATE" and the City of I luntin ton Beac a municipal corporation { ) Y 8 p rP of the State of California (hereinafter referred to as "CITY") hereby enter into this Agency Agreement. WHEREAS, STATE and the CITY entered into an "0/erating Agreement" dated December 1, 1986, which agreement was approved by Stat Department of General Services on January 13, 1987, and which agreement provides for the are, maintenance, and control of the Bolsa Chica State Beach from the Huntington Beach ier to immediately south of Seapoint Avenue by CITY; and STATE entered into a "Concession September 5, 1979, with Donald W. Tosh, referred as "TLC") to operate a concession including an existing parking lot and a f + Huntington Beach Pier (hereinafter ref rrei for Bolsa Chica State Beach dated 'eA E. Christensen, and Tom A. Leis (herein n Bolsa Chica State Beach for various facilities, and beverage stand located immediately north of the to as "SONNY'S). The Concession Contract further required TLC to construct and opera five (5) food and beverage stands between Warner Avenue and Seapoint Drive (hereinafter ref rrcd to as the "STANDS'). (SONNY'S and the STANDS will hereinafter be referred to as toe "CONCESSION'); and 1 SF/s:PCD:ASrcc:BCSBmgmt 12/16.96 - N3 1 2 3 4 5 6 7 s 9 10 11 12 13 14 is 16 17 is 19 20 21 22 23 24 2s 26 27 28 GAIL HUTTON, City Attorney, SB# 57372 SCOTT F. FIELD, Deputy City Attorney, SB4 105709 Box 190, 2000 Main Street Huntington Beach, CA 92648 (714) 536-5555 FAX (714) 374-1590 KANE, BALLMER & BERKMAN, Specia' Counsel Murray 0. Kane, SB# 48082 R. Bruce Tepper, Jr., SB# 75339 June Ailin, SB# 109498 515 S. Figueroa Street, Suite 1850 Los Angeles, CA 90071-3301 (213) 617-0480 Attorneys for Plaintiff, City of Huntington Beach ORANGE COUNTY MUNICIPAL COURT WEST ORANGE DISTRICT CITY OF HUNTINGTON BEACH, a } CASE NO.227420 municipal corporation ' DECLARATION OF CONNIE BROCKWAY Plaintiff's), } IN SUPPORT OF PLAINTIFF'S MOTION } FOR SUMMARY JUDGMENT OR �s. SUMMARY ADJUDICATION DONALD W. TOSH; TOM A LEWIS; ) Date: TLC COMPANY, a California general } Time: partnership; DOES 1-20, Inclusive, } Div.: Defendant(s). ) } 1, Connie Brockway, hereby declare and state: I . 1 am the City Clerk for the City of Huntington Beach (the "City"), Plaintiff in the above -captioned action. This declaration is offered in support of Plaintiff's Motion for Summary Judgment or Summary Adjudication. I have personal knowledge of the facts set forth in this declaration. C:SF\pleaid\tic\CO."IEl.doc/11/8/96\ k..j �.O' 1 2 3 4 5 6 7 e 9 10 11 12 13 14 15 16 17 l8 19 20 21 22 23 24 25 26 27 28 2. 1 have served the City in the capacity of City Clerk since June 20, 1987. As City Clerk, my duties include the maintenance of original City records located in the Office of the City Clerk, including, but not limited to, contracts to which the City is a party. 3. I have reviewed such contracts in order to locate contracts pertaining to Bolsa Chica State Beach. As a result of that review, I located the original Operating Agreement between the City and the State of California pertaining to Balsa Chica State Beach. Attached hereto as Exhibit A is a true and correct copy of the criginal Operating Agreement that I found in the City Clerk's contract files located in the Office of the City Clerk. Exhibit C to the Operating Agreement is the Concession Contract between the State of California and Donald W. Tosh, Tom A. Le%%is and Ted E. Christensen. 4. In reviewing the City contracts located in the Office of the City Clerk, I also Iocated the original Assignment of the Operating Agreement, a true and correct copy of which is attached hereto as Exhibit B. I declare under penalty of perjury, pursuant to the laws of the State of California, that the foregoing is true and correct and that this %,,as executed on November Tr, 1996, in Huntington Beach, California. -2- Connie Brockway G:sF\plead\tic\CON^4lEl.doc/11/8/96\ i REQUEST FOR CITY COUNCIL ACTION Date September 22, 1993 Submitted to: HON. MAYOR AND CITY COUNCILMEM13ERS Submitted by GAIL HUTTON, CITY ATTORNEY Prepared by: TGAIL HUTTON. CITY ATTORNEY Subject: City agreement to hold harmless and indemnify State of C Consistent with Council Policy? IX ] Yes [ ] New policy or Exception APPROVED LY CITY COUtiCIL 101#103 41Y.&4A- Xett�4�t Statement of Issue: The state has requested, pursuant to paragraph 10 of the operating agreement with the city for Bolsa Chica State Beach, that city defend and indemnify the state in the case of Sonya Serna v. City of Huntington Beach, et al., Orange County Superior Court Case No. 708317. Recommendation: City defend and indemnify state as per our agreement. Analysis: Plaintiff alleges injury as a result of stepping into a hole on the bluff top. She has sued the state and city. The attached agreement, Section 10, obligates city to defend and indemnify the state in this type of case. Funding Source: NIA Alternative Actions: Do not agree to defend and indemnify state in which case state would sue the city and win. Attachments: 1. 9121/93 Letter of Attorney General 2. Pertinent portions of Operating Agreement between city aad state. "° x N rQ ��O W f• r w 3lrcalse ma=122193 UU-41_VJ UJ.LU ra: CAv14 n111, 11G11LAAL VrU, OUL/UU4/rJ4 - T DANIEL E. LUNGREN State of Cal(fornia Attorney Gmeral DEPARTMENT OF JUSTICE sm soum srRLxcj ST Euf. sur E 5212 LAM AIvOM-M CA 90013 (213) 097-UM rAcslumz-(213) 897-2810 Writer's Dlrem Dial: (213) 897.2130 September 21, 1993 n; GAIL HUTTON, City Attorney 71 `- WILLIAM AMSBARY, Special Counsel ��s► City of Huntington Beach 2000 Hain Street Huntington Beach, CA 9264B = - Res SONYA L. SERNA v. CITY OF HUNTINGTON BEACH, et al. 4" Orange County Su erior Court -Cave Leo. 708317 Dear Mr. Amsbary: As you know, this case involves an accident which occurred on the bluff -top section of Bolaa Chica State Beach. This area is covered by the operating agreement between the State and the City of Huntington Beach. Pursuant to paragraph 10 of that ' agreement, the City has agreed to defend and indemnify the State in any personal injury actions such as the one in this case. This letter is to tender the defense of this lawsuit against the State to the City of Huntington Beach and to demand that the City indemnify the State in event of any adverse judgment. Upon your anticipated acceptance of this tender of defense, please be assured that I will cooperate fully in providing information you may need to terminate this matter favorably. Given that discovery is progressing and plaintiff's deposition is set for next week, I would appreciate a prompt response to this request. Thank you for your prompt attention to,this matter. Sincerely, DANIEL E. LUNGREN Attorney Ge9paral JOEL A. DAVIS Deputy Attorney General JADltlm Irwl8.m.1DT 21 3 4 5' 6 7 8 9 10 11 12 13 14 15 16 17 1s 19 20 21 22 23 24 25 26 27 COURT PAPER 5 1Af= OF CALIFORNIA sm 113 laar. 0.721 05 )4M STATE OF CALIFORNIA DEPARTMENT OF PARKS AND RECREATION OPERATING AGREEMENT BOLSA CHICA STATE BEACH INDEX Paragraph Page 1. Term ....................... 2 2. Use of Premises 2 3. Concessions . . . . . . . . . . . . . . . . . . . 3 4. Fees ....................... 3 5. Annual Reports 4 6. Beach Erosion Control . •. 4 7. Construction of Improvements . . . . . . . . . . . 5 8. Title 6 9. Eminent Domain 6 10. Hold Harmless . . . . . . . . . . . . . . . . . . 7 11. Assignment . . . . . . . . . . . . . . . . . . . . 8 12. Notices 8 13. io Terminatn 9 14. Real Property Acquisition . . . . . . . . . . . . 11 15. Nondiscrimination . . . . . . . . . . . . . . . . 11 16. Limitation . . . . . . . . . . . . . . . . . . . . 11 17. Paragraph Titles . . . . . . . . . . . . . . . 11 18. Contracts in Counterparts . . . . . . . . . . . . 12 Signatures . . . . . . . . . . . . . . . . . . . . 12 Exhibit(s) . . . . . . . . . . . . . . . . . . . . it 3 4 5 6 7 8 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 COURT PAPER "rA72 o/ CALIFORNIA STD. 113 IRIV. 6•721 05 91M OPERATING AGREEMENTLv MEC THIS AGREEMENT, made and entered into this 1st day of $ctober, 1986, and between the STATE OF CALIFORNIA, acting through the Department of Parks and Recreation, hereinafter called "STATE", and the City of Huntington Beach, a municipal corporation of the State of California, hereinafter called "CITY"; W I T N E S S E T H WHEREAS, STATE has acquired for park and recreational purposes certain real property hereinafter des:ribed, known as a portion of Bolsa Chica State Beach and has jurisdiction thereof; and Pursuant to the provisions of Section 5080.30 et seq. of the Public Resources Code of the State of California, STATE may enter into contracts with political subdivisions of the State of California for the care, maintenance,_ and control, for the purposes of the State Park System, of lands under the jurisdiction of STATE; and STATE and CITY desire to enter into an agreement to provide for such care, maintenance, and control of Bolsa Chica State Beach, a description of which is attached hereto as Exhibits "A" and "B" and incorporated herein by this reference. NOW, THEREFORE, in consideration of the mutual covenants hereinafter contained, the parties hereto agree as follows: I� ORE 1 2 3 4 5 s 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 GOuRT PAPER STA-C or GuronNiA *TO 113 I*tf 6.111 05 14M 1. Term: CITY shall be responsible for a period beginning on the date first above appearing and ending twenty years from said date, with an r additional twenty-year option at the CITY'S option provided that CITY exercise{ such option not later than one year prior to the end of the initial 20-year term. During said period, CITY shall pay all costs of developing, maintaining, controlling, and operating said property for said purposes and STATE shall not, during said period, be liable for the cost of said development, maintenance, control, or operation. Nothing herein shall preclude CITY from receiving grants for such purposes to the full extent otherwise permitted by law. An express condition subsequent to this agreement is that the recreation policies 4.2.2 Coastal Recreation of the Recreation Element of the "CITY'S General Plan" May 1984 and the project plan for "Pierside Village" Huntington Beach, California by Bryant Morris Development Phase II sheets 13 as Exhixit "D" yC �i..- through 15 (both documents attached hereto/and made part of this contract) for the demised premises shall be submitted for approval by the State Department of Parks and Recreation as specified in Paragraph 7 of this agreement. Failure of the Department of Parks and Recreation to approve the development plan listed a o e_may7rult in termination of this agreement by the CITY, pursuant to �'� `" fa444w44v9 Paragraph 13b, Page 9. 2. Use of Premises: While this agreement is in force and effect, said property shall be accessible and subject to the use and enjoyment of all citizens of the State of California, and all other persons entitled to use and enjoy the same, subject, however, in the manner of such use and enjoyment to the control of CITY in conformity with this agreement. CITY may adopt rules 2 �'W? 1 2 3 4 5 6 7 8� 9 10 11 12 13 14 15 16 17 18 19 20 21 22' 23 241 25 26 27 COURT PAPER /TATO DIP CALIFORNIA STD. tt] Inew. 6-721 as 34W and regulations, including hours of operation, for the use and enjoyment of said property. Any such rules and regulations adopted by CITY shall conform to and be consistent with the rules and regulations adopted by STATE and generally applicable to the State Park System, including said property. Said property shall not be used for any other purpose than the purpose herein enumerated. 3. Concessions: Subject to prior approval in writing by STATE. CITY may grant concessions in or upon said property consistent with the use by the general public thereof for park and recreational purposes. The rights of the public to the use and enjoyment of said property shall thereupon be limited by such concession agreements. All such concessions shall be granted :in substantial compliance with Public Resour;ct Code Section 5080.20, 5080.33 State '.A'r and 5080.34, and the applicable/general plafi for the respective park unit. The concession contract between the State of California and JDonald Tosh, Ted E. Christensen, and Tom A. Lewis for parking lot operation and food and beverages and rentals is attached hereto and is marked Exhibit "C" which by reference is incorporated herein for all purposes. CITY assignment of such concession agreement only to the extent of agrees to accept/orrVy the parking lot,-a-fvd food, beverage,/rrental operation, Ad known as "Sunnys" subject to the tears of the existing contract. STATE shall retain the right to such agreement (Ex ibit C) covering that portion west of the demised premises herein. 4. Fees: Any charges, fees, or collections made by CITY for services, benefits, or accommodations to the.general public shall be limited Ito actual needs for maintenance, control and operation and for improvements land development of said property to provide needed additional facilities, and Ithat commercialization for profit shall not be engaged in by CITY. 3 LIE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 COUPT PAPKR STAT! 01 CALIFORNIA $TO. 113 IR[V.••7,1 05 W09 5. Annual Reports: All income received and all expenditures made by the CITY in relation to concessions, special services, and all other matters incident to the development, maintenance, control, and operation for the State Beach or portion thereof subject of this agreement shall be reported annually to the STATE. Pursuant to Public Resources Code Section 5080.32, all I revenues received from lands subject to this agreement shall be expended only for the care, maintenance, operation, administration, improvement, or development of the State Beach and any other state recreational areas. Such annual report shall be made for the annual period commencing on July 1 and terminating June 30 and shall be filed with STATE not later than December 1 of each year. The first report hereunder shall be filed by CITY not later than December 1, 1987, and shall cover the periods beginning on July 1, 1986 and terminating June 30, 1987. The report shall include a reasonable annual estimate of the number of visitors to the State Beach or portion thereof described on Exhibits A and B, as well as the number of vehicles. "Revenue" herein shall be defined so as not to Include indirect revenue such as sales tax, possessory interest tax, etc. She books, records, and accounts kept by CITY applying to the operation of the State Beach shall at all reasonable times be open for audit or inspection by STATE. b. Beach Erosion Control: It is further agreed and understood between the parties hereto that any development, beach erosion control, or 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 COURT TAPER •TATC Of CALIFORNIA STD. 113 iM14- 9-7IY 95 39M protection work which may be undertaken by STATE or the United States of America, along or on said property, shall not, in any way, be construed as constituting a termination of this agreement or in any way affecting same. STATE shall have the right to enter into agreements for such work during the term hereof and to go upon said property or to authorize any person, firm, or corporation to go upon said property for the purpose of such construction, beach erosion protection or control work, or the doing of other public work for the improvement or development of said property, provided that STATE shall give CITY 90-day written notice of its intention to do any of the work herein mentioned before such work is undertaken. 1. Construction of Improvements: CITY may, by its own forces or by contract, undertake projects for the development, construction, or improvement to said property. Plans and spec ficatians for any such project St ate 4f- shall be submitted to STATE as a/General Plan amendment for approval. No such project shall be commended by CITY'S own forces or contracts awarded prior to STATE approval. STATE has the right to disapprove such plans and specificatio s and of submittal e 6— , shall notify the CITY of its decision within 90 days Such development, construction, or improve t shall be in accordance with 5080.31 P.R.C. and STATE's )0 -� _ with the/general plan for the respective unit and any amendment thereof shall be subject to prior approval in writing by STATE. Pursuant to Public Resources Code Section 5080.31(b) P.R.C. the STATE' general plan shall be prepared by the CITY and shall be approved by the 4J 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 221 23 24 25 26; 27 COURT PAPER /TAT: Of CA1.1/O11MIA STD- 113 111LV. ••771 05 34 California State Park and Recreation Commission. 8. Title: Improvements erected on said property by CITY shall, upon completion, become a part of the reality and title to said improvements shall vest in STATE upon termination of this agreement or any extension thereof. Any removal authorized shall be made without damage to adjacent improvements and if adjacent improvenents are damaged, CITY shall reimburse STATE therefore or shall repair the inprovement so damaged at the option of STATE. After removal, the premises shall be left free and clear of all debris and in a condition reasonably similar to the present condition of said property. CITY shall not, without prior written approval of STATE, remove, move, demolish, or alter in any manner, any improvements, natural features, or accretions existing on said property on the effective date of this agreement or subsequently occurring, except when engaged in the protection of public and private lands and waters from storms, floods, high tides, fire (all natural disasters), during a period of natural disaster or emergency declared by the Governor of California or the President of the United States. 9. Eminent Domain: If said property or portion thereof is taken by proceedings in eminent domain, STATE shall receive the entire award for such taking except that CITY shall receive out of said award the fair market value of any improvements than existing and constructed by CITY (other than . improvements erected with funds realized through income from said property) on said property as said fair market value may be determined by said proceedings taking into consideration the terms of this instrument. 6 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23� 24 251 26 27 I I coum-r PAPER STATi 3I CALIFORNIA !TO_ It [ww. 6.71, 85 3470 10. Hold Harmless: CITY hereby waives all claims and recourse against the STATE including the right to contribution for loss or damage to persons or property arising from, growing out of, or in any way connected with or incident to this agreement except claims arising from the concurrent or sole negligence cf STATE, its officers, agents, and employees. CITY shall indemnify, hold harmless, and defend STATE, its officers, agents, and employees against any and all claims, demands, damages, costs, expenses, or liability costs arising out of the acquisition, development, t cons+uction, operation, or maintenance of said property described herein which claims, demands, or causes of action arise under Government Code Section 895.2 or otherwise except for liability arising out of the concurrent or sole negligence of STATE, its officers, agents, or employees. In the event STATE is named as co-defendant under the provisions of the Government Code Sections 895 et seq., the CITY shall notify STATE of such fact and shall represent STATE in such legal action unless STATE undertakes to represent itself as co-defendant in such legal action in which event STATE shall bear its own litigation costs, expenses, and attorney's fees. In the event judgment is entered against the STATE and CITY because of the concurrent negligence of STATE and CITY, their officers, agents, or employees, an apportionment of liability to pay such judgment shall be made by a court of competent jurisdiction. Neither party shall request a jury apportionment. 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 241 25 26 27 COUR"-PAPER ST.TV PF C-L-"Ikklw Ora. i'3 c11[v. 9•7=1 05 34701 11. Assignment: This agreement shall not, nor shall any interest therein or thereunder, be assigned, mortgaged, hypothecated, or transferred either by CITY or by operation of law, nor shall CITY let or sublet, or grant any licenses or permits with respect to the use and occupancy of said property or any portion thereof, without the written consent of STATE first had and obtained. Such consent shall not be unreasonably withheld. 12. Notices: Notices or reports desired or required to be given hereunder or under any law now or hereafter in effect may, at the option of the party giving same, be given by enclosing the same in a sealed envelope addressed to the party for whom intended and by depositing said envelopes, with postage prepaid, certified with return receipt requested, in the United States Post Office or any substation thereof. In the event such notice is being given to the CITY, such notice and the envelope containing the same shall be addressed to the City Council of the City of Huntington Beach, 2000 Main Street, Huntington Beach, California 92648, or such other place as may hereafter be designated in writing by or on behalf of CITY; and in the event that said notice being sent to STATE, said notice and the envelope containing the same shall be addressed to the Department of Parks and Recreation, 18221 Enterprise lane, Huntington Beach, California 92648 and at P.O. Box 942896, Sacramento, California 94296-0001. 8 1 13. Termination: 2 3 a. STATE reserves the unqualified right to terminate this 4 agreement by giving CITY one (1) year's written notice of the effective date 5 of such termination. STATE further may terminate this agreement for material 6 breach by CITY of any of the provisions hereof. The CITY shall be given not 7 less than ninety (90) days to cure any and all breaches hereunder. 8 9 b. CITY reserves the unqualified right to terminate this 10 agreement by giving STATE one (1) year's written notice of the effective date 11 of such termination. CITY further may terminate this agreement for breach by 12 STATE of any of the provisions hereof. 13 14 c. Notwithstanding any other provisions in this contract and 15 in addition to any other remedy available to STATE, STATE shall have the 16 option to terminate the contract and to pay CITY the then depreciated cost of 17 the facilities placed, created, or developed by CITY on the premises. Such payment (buy-out) shall app in the event of termination pursuant to 18 Section 13(a) above. 19 d. It is expressly understood that the paragraph "c" does not 20 apply to the situation where the STATE may terminate this contract for any 21 material breach on the part of the CITY. Where there has been a breach on the 22 part of CITY, under any terms of this contract, the STATE shall not be 23 obligated to pay CITY before or after taking possession of the premises so 24 long as CITY has not cured said breach within ninety (90) days after written 25 notice -thereof. 26 ___ 27 ___ cou K- PAPER STATIC OF CALWORNIA STD- 113 48911- •-771 85 3003 9 . 1 2 3 4 5 6 7 8 9; 10 11l 12 13 14 15 16 17i 18 19 20 21 22' 23 24 i 25 26 --- 27 -- DOUR',' PAPER STATIC 91 CALIFORNIA :TO. It3 Sp[V 6.721 $5 3470 e. For the purpose of t-H-s paragraph, such facilities shall be deemed to be the improvements which CITY is expressly required to make hereunder or later adds, exclusive of trade fixtures, equipment, and any personal property. The cost of such facilities for the purposes of this paragraph shall be computed in the following manner: f. Upon completion of improvements, or within thirty (30) days of opening for public use, whichever is earlier, CITY will submit verified cost statements accompanied by substantiating invoices and bills of labor, material, or any other reasonable construction costs, to STATE. After such statements, invoices, and bills have been examined by STATE, STATE will in its sole discretion establish in a reasonable and fair manner the cost of improvements. In the event costs are not filed by CITY within the period above provided, STATE shall estimate said cost and serve the same on CITY in the manner provided herein. STATE'S estimate shall become final thirty (30) days after service thereof. g. The amount to be paid as the then depreciated cost o the ICI, facilities in the event of termination under Wts- paragraph/shall be eased on a capital recovery schedule determined by dividing the initial investment by the number of whole years remaining in the agreement period or any extension thereof at the tine of investment, multiplied by the remaining years. The initial investment shall be the actual cost of all improvements, less any donations, contributions, or fees received by CITY for the construction of said improvements. 10 tl. . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27, cOUR- PAPER %TATY OI CALI/ORw A STO. 113 (11[V. 0•721 05 347a) s In the event of breach, bankruptcy, insolvency, abandonment, or the contract is terminated at CITY's request, the buy-out provisions contained herein are not to be considered as an obligation of the STATE. The buyout provisions qV%.-- �hs-pa�ara ph -/I'— shall only be operative when funds required by STATE for such buy-out are obtained through appropriation by the Legislature and through the normal budgeting process of the STATE. 14. Real Property Acquisition: It is understood and agreed by the parties hereto, that all applications for real property rights, appurtenant to the real properties herein described, shall be made in the name of and on behalf of STATE, and shall be subject to the prior approval in writing of STATE. 15. Nondiscrimination: Pursuant to Public Resources Code Section 5080.34, this agreement prohibits, and every contract for a concession on lands that are subject to this operating agreement shall expressly prohibit, discrimination against any person because of race, color, religion, sex, marital status, national origin, or ancestry of that person. Attached Standard Form 17A is incorporated herein, as Exhibit "E".�� 16. Limitation: This operating agreement is subject to all valid and existing contracts, leases, licenses, encumbrances, and claims of title which may affect said property. 17. Paragraph_ Titles_: The paragraph titles in this contract are `inserted only as a matter of convenience and for reference, and in no way 11 1 2 3 4 5 6 7 8 9 10 11 12 �'I define, limit or describe the scope or intent of this contract or in any way affect this contract. 18. Contracts in Counterparts: This contract is executed in counterparts each of which shall be deemed an original. IN WITNESS WHEREOF, the parties have executed this instrument upon the date first hereinabove appearing. 13 Attest: 14 STATE OF CALIFORNIA DEPARTMENT OF PARKS A110 RECREATION 15 ALICIA M. WENTWORTH CITY OF HUNTINGTON BEACH City_C.erk 16 - - �: r 17 YL Deputy City Clerk Mayor 18 19 Review nd-Approved: Approved as to Form: 21 Ci m 22 23 24 25 2s 27 Y-5791X COURZ PAPER 271 or CAU7'011I 310. 113 SRCV. 9.724 85 3AM Deportment of General Services APP ,X/-rD QRICNA! iiGNIM 6Y AMAN L 1I1iENDROFF 12 Initiated and Approved: Director of Community Services NONDISCRIMINATION CLAUSE (OCP - �) 1. During the performance of this contract, contractor and its subcontractors shall not unlawfully discriminate against any employee or applicant for employment because of race, reli- gion, color, national o n gin, ancestry, physical handicap, medical condition, marital status, age (over 40) or sex. Contractors and subcontractors shall insure that the evalua- tion and treatment of their employees and applicants for employment are free of such discrimination. Contractors and subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq.) and the applicable regulations promulgated thereunder (California Administrative Code, Title 2, Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 2990, set forth in Chopter 5 of Division 4 of Title 2 of the Ca i- fornio Administrative Code are incorporated into this contract by reference and made a part hereof as if set forth in full. Contractor and its subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement. 2. This contractor shall include the nondiscrimination and com- pliance provisions of this clause in all subcontracts to perform work under the contract. STD. 17A (WW I -as) .. 1 EXHIBIT "A" 2 3 The real properties owned by the State of California, the 4 control, care, and maintenance of.which are by the attached lease 5 agreement given over to the City of Huntington Beach, shall be 6 known as "State Parks", and are identified as follows: 8 BOLSA CHICA STATE BEACH 9 Deed from Huntington to Pacific Corporation recorded 10 grant deed on May 23, 1974 as Doc. 11151 O.R. 556. 11 "That portion of Bolsa Chica State Beach that was 12 within the boundaries of the City of Huntington Beach on May 23, 13 1974'as described in the above mentioned deed." ■ •_�,.. A rOMIJCN1•por APICHO u} DOLIAGICA I L1�.tL9. - •%♦ s u G Sy R,I)em, J. �.Ir1. ^... �-.•w rwr .w.r.w Iifv ORANGE COUNTY..., --love � •, !p A C- I F ! C T O C IVA N 1 .� •x, • ... / `� /fir St • �• , C�..-- -' = " 1 C 0 7,- 1- A r tJ do ♦� C i�1r.. - �t :,.. r Of w 0. {� »-:-� -r •�� ` �.;/ aim.-- x No f:S�.._. 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YY ww YY F+rI M. fw r; r1 rtM ram• d t•.•:L+.<s'7 �ilra•LM rlsn r;.wlat lr �� ey i. •_�_ ._ a.i a•✓ aw�rl Yl 7a y/ NN{u Irf/r �' /i.h !_ L•^YY.•I i. RL'17r!l11r� !•r:+q IA.1• !•w1 LLr1 _ ...ir .0 ��wi,� J•+L. t►Nl tf a'rt.•N .i: ^'fir— rir TM" -Rz I.Irt a.'SLLF.04Y'�' iWlM � W aW.w7^� � ■f• +aw.1 ~� • {Yrw ' v MGM' lq.c Yi •.11r rw a r'Yf y J Y f � i� • � w Q' .moww W w z � y d 0 0 z rrw.. r f xwir ,s` z z ! t i 2 , 3 4 5 '6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 E �,r /►'� r'T ' C 4 STATE OF CALIFORNIA DEPARTMENT OF PARKS AND RECREATION CONCESSION CONTRACT BOLSA CHICA STATE BEACH DONALD W. TOSH . TED E. CHRISTENSEN TOM A. LEWIS I N D E X Paragraph 1 Grant and Description of Premises . . . . . . . . . 2 Condition of Premises . . . . , . . '... . . . . . . 3 Term . . . . . . . . . . . . . . . . . . . . . . . . . A Quitclaim Deed . . . . . . . . . . . . . . . . . 5 Rental . . . . . . . . . . . . . . . . . . . . . . . 6 Use of Premises . . . . . . . . . 9.0 . . . . . . . . 7 Quality of Service and Control of Rates and Charges . . 8 Bonds . . . . . . . . . 9 Hold Harmless Agreement . 10 Liability Insurance . a. 11 Fire Insurance . . . . . . . . . . . . . . . . . . . . 12 Taxes . . . . . . . . . . 13 Type and Approval of Improvements . 14 Construction or Modification of Improvements . . . . . 15 Completion of Improvements . . . . . . .. . 16 Title to Improvements . . . . . . . . . . . 17 Personal Property Improvements . . . . . . . . . . . . 18 'Maintenance of Improvements . . . . . . . . . . . . . . 19 Utilities and Services . . . . . . . . . . . . . . . . 20 Equipment . . . . . . . . . . . . . . . . . . . . . . . . 21 Signs, Advertising and Approval of Name . . . . . . . . 22 Inspection of Premises . . . . . . . . . . . . . . . . 23 Breach of Contract . . . . . . . . . . . . . . . . . . 24 State Buy -Out Provision . . . . . . . . . . . . . . . . 25 Contract Notice . . . . . . . . . . . . . . . . . . . . 26 Interpretation of Contract . . . . . . . . . . . . . . 27 Waiver of Contract Terms . . . . . . . . . . . . . . . 28 Modification of Contract . . . . . . . . . . . . . . . 29 Assignments . . . . ... . . . . . . 30 Waiver of Claims . . . . . . . . . 31 Agent for Service of Process 32 Right of Entry as Agent . . . 0. 33 Terms Binding on Successors . 0... . 34 Duration of Public Facilities . . . .'. . 35 Time of Essence . 36 Eminent Domain . . . . . . . . 6. 37 Conflict of Interest . . . . . 0. 38 Photography . . . 6.4 39 Hazardous Substances 41 40 Nondiscrimination . Al Paragraph Titles 1 2 3 3 6 8 10 11 12 13 14 15 16 17 18 18 18 20 20 20 21 21 22 23 24 24 25 25 28 28 29 29 30 30 30 30 31 31 32" 33 CCU )IT TAPIR ITAT, Or CALnO,Ms■ STp 163 �09V 6.911 f *t. 1' 2' 3I 41 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 42 Contract in Counterparts . . . . . . 43 Alcoholic Beverages . . . . . . . . . 44 Health Certificate . . . . . . . . . . . . . . . 45 Employee Training . . . . . . . . . . . . . ... 46 State's Area Manager . . . . . . . . . . . . . 47 Agreement in Writing . . . . . . . . . . . . ... . 48 Approval of Contract . . . . . . . . . . . . . . . . Signatures . . . . . . . . . . . . . . . . . . . . . . Exhibit(s) . . . . . . . . . . . . . . ... . . . . 33 34 34 34 34 34 35 35 >URT PAPER AT[ Of CALf/O.•n. O 113 rfiv 6.72. 06P 1 2 3 4 5 6 7 8 9 10 11 I 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 STATE OF CALIFORNIA DEPARTMENT OF PARKS AND RECREATION CONCESSION CONTRACT BOLSA CHICA STATE BEACH LOCATED IN ORANGE COUNTY, CALIFORNIA DONALD W. TOSH TED E..CHRISTENSEN TOM A. LEWIS THIS CONTRACT made and entered into this 5th day of September 1979, by and between the STATE OF CALIFORNIA, acting through its Department of Parks and Recreation, hereinafter referred to as "State", and DONALD W. TOSH, TED E. CHRISTENSEN, and TOM A. LEWIS, of Big Sur, California, hereinafter referred to as "Concessionaire", W I T N E S S E T H T H A T ---------- ---- WHEREAS, it is appropriate that the following contract be entered into for the safety and convenience of the general public in the use and enjoyment of the State Park System; NOW THEREFORE, IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS: OURT PAPER fAT9 o► C�uroPeu ro 113 RtV o9P 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 URT PAPER ..TE OF CALWORNIA p t13 REV 0.721 1. GRANT AND DESCRIPTION OF PREMISES: The State, pursuant to the authority -of and in accordance with Section 5019.10 et seq., of the Public Resources Code of the State of California, and for and -in consideration of the agreements hereinafter stated, grants to Concessionaire for the purposes stated herein, the right, privilege and duty to construct, equip, operate, and main- tain a nonexclusive concession in Bolsa Chica State Beach at the location(s) as set forth in Exhibit "I and II " attached and hereby made a part of this contract. The possessory interest herein given to the Concessionaire does not exclude the general public from the premises; however, the use by the general public is limited by the terms and conditions of the possessory interest given herein. This contract is not intended to confer third party beneficiary status to any member of the public who is benefited by the terms of this contract. This grant is subject to all valid and existing contracts, leases, licenses, encumbrances and claims of title which may affect said property, and the use of the word "grant" herein shall not be construed as a covenant against the existence of any thereof. 2. CONDITION OF PREMISES: The taking of possession of the subject premises by the Concessionaire shall, in itself, constitute acknowledgment that the subject premises are in good and tenantable condition. Conces- sionaire agrees to accept said premises in their presently existing condition, "as is", and that the State shall not be obligated to make any alterations, additions or betterments thereto. lit . 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 i 18 19 20 21 22' 23 24 25 26 27 3. TERM: The term of this contract shall be for a period of twenty (20) years, and shall commence on date of approval by the Department of General Services, as shown below. Should Concessionaire hold over after the expiration of the term of this contract with the express or implied consent of the State, such holding -over shall be deemed to be a tenancy from month -to -month at the herein stated prescribed rent, subject otherwise to all the terms and conditions of this contract. At the expiration or termination of this contract, as herein provided, the Concessionaire shall within thirty (30) days thereafter, remove from said premises or otherwise dispose of in a manner satisfactory to State all personal property belonging to Concessionaire located on said premises. Should Concessionaire fail to remove or dispose of his property as herein provided, State may, at its election, consider such property abandoned and may dispose of same at Concessionaire's expense. Also, at the expiration or termination of this contract, the Concessionaire shall quit and surrender the said premises, including real property improvements, in a good state of repair, damage by matters over which Concessionaire has no control excepted, provided that such exculpatory provision shall not extend to any risk which Concessionaire is required to insure against as herein provided. 14. QUITCLAIM DEED: Upon termination of the rights hereby granted, the Concessionaire shall execute and deliver to State within thirty (30) days after service of written demand therefor, a good and sufficient quitclaim deed to the rights arising hereunder. Should Concessionaire fail or refuse to deliver to State a quitclaim deed as aforesaid, a written notice by State reciting the failure of the Concessionaire to execute and deliver said quitclaim deed as herein provided, shall after ten (10),days from the date of recordation of U1tT PATER \T[ OF CALL/OOk IA �. its �wtty e.72r Ow A 4 1 said notice be conclusive evidence against the Concessionaire and all persons 2 claiming under Concessionaire of the termination of said contract. ! 3 i 4 5. RENTAL: Concessionaire shall pay, without demand, as minimum annual 5 rental the sum of Two Thousand Dollars ($2,000) payable monthly at the rate of 6 Four Hundred Dollars ($400) in each of the specified months, June, July, d 7 August, September, and October of each year of this contract or the'following S g percentage(s) of annual gross receipts, whichever sum is greater: 9 I 10 10% of first $200,000 of annual gross receipts, plus 3 11 12% of all over $200,000 of annual gross receipts. i 12 13 Beginning with the 15th day of the month following the opening of the 14 concession for business, Concessionaire shall furnish to the State Park Area 15 Manager a verified statement of the gross receipts of the concession for the f 16 preceding month. On or before the 15th day of each month thereafter, 17 Concessionaire shall furnish the Area Manager a verified statement of the T 1�, concession's cumulative total of gross receipts through the end of the " 1., preceding month for the then current year. A current year is defined as a yea) 20 that begins on the 1st of the month following the opening of the concession 21 for business and continues for 12 months thereafter: e.g., June 20, 1975 open 22 for business; July 1, 1975 current year begins; June 30, 1976 current year 23 ends. With such monthly statement the Concessionaire shall ay to State the Y � P 24 rental fee for the preceding calendar month. The rental payment for each 25 preceding month shall be such an amount as will, if added to all previous 26. months' payment of that current year, equal the prescribed percentage of the 27 accumulated gross sales to the end of that month, or the total minimum monthly COURT PAPER .TAT[ 0I CALWOIINIA STO 113 .REV 0.72• O./ 4 a 1 rental to date, whichever is greater. Payments to the State shall be made to 2 the order -of the Department of Parks and Recreation and made at the office of 3 the Area Manager at 18090 Beach Blvd., Suite 8, Huntington Beach, CA 92648 or 4 at such other location as may from time to time be designated by State. 5 In the event a rental payment is not made on or before the due date t s 6 herein provided, Concessionaire shall pay to State a late charge on said 7 unpaid rental at the rate of one percent (1%) per month from and after the due 8 date thereof until the date of payment. Should there be unusual or extenuating 9 circumstances for not paying said rental on or before the due date herein 10 provided, the Area Manager may recommend and the State in its discretion may 11 waive the late charge on the unpaid rental. 12 Concessionaire shall keep true and accurate books and records showing 13 all of its business transactions in separate records of account for the 14 concession in a manner acceptable to State and the State shall have the right 15 through its representative and at all reasonable times, to inspect such books 16 and records including State of California sales -tax return records; and 17 Concessionaire hereby agrees that all such records and instruments are 18 available to the State. 29 Concessionaire will submit to the State, no later than forty-five (45) 20 days after the close of each business year during the term of this contract 21 and no later than forty-five (45) days after the end of the term for the 22 period not previously reported, a profit and -loss statement prepared by a 23 Certified Public Accountant or Public Accountant licensed by the State of 24 California. Said statement shall contain an appropriate certification that 25 all gross receipts during the yearly accounting period covered by said 26 statement shall have been duly and properly reported to the State. In the 27 event this contract is terminated, a profit and loss statement for the period )URT PAPER 'ATE 01 CALIFON./IA .0 113 -REV 0-72 Opp 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 1 22 23 24 25 26 27 of operation not previously reported, prepared in the manner stated above, shall be submitted by the Concessionaire to the State within fifteen (15) days Rafter the contract is terminated. State further reserves the right to examine all such books and records at any time during the one (1) year period following the termination of this contract. Concessionaire agrees that as part of its record -keeping activity, it shall at its own cost and expense install and maintain such cash register equipment as may be deemed necessary by State. Such cash register equipment shall contain a continuous registering tape. The term "gross receipts", wherever used in this contract, is intended to and shall mean all monies, property or any other thing of value received by Concessionaire through the operation of said concession or from any other business carried on or upon said premises or any portion thereof, or from any other use of said premises or any portion thereof by Concessionaire, without any deduction or deductions, it being understood, however, that the term "gross receipts" shall not include any sales taxes imposed by any governmental entity and collected by Concessionaire. In the event Concessionaire is prevented from carrying on the operations contemplated herein by reason of an Act of God, or other reason beyond his control, and when such is so determined by State, then the rentals prescribed herein shall be abated for such period of nonoperation. 6. USE OF PREMISES: The subject premises shall be used by the Conces- sionaire for the construction, operation and maintenance of concession facilities as outlined in Exhibits I, II, and III attached, including a parking lot; (Exhibit II) for the rental of parking space. Six (6) DURT PAPER 'AT[ Or CAMOPOIINIA ro 113 IREV 8.72 car 0 1 Refreshment Rental and supply stands for the sale of food and beverages 2 (non-alcoholic) and items of a similar nature usually sold at a beach 3 refreshment stand; and for the rental and sale of beach equipment and fishing 4 tackle. The concessionaire shall also sell firewood and shall be the same 5 quantity and quality of wood as is sold by the State. 6 These services shall be provided on a -schedule no less than the 7 following: from the Saturday preceding Palm Sunday to the Saturday of the 8 Memorial Day weekend and from the day following Labor Day through September 9 30, a minimum of one stand shall be open daily, from 10:00 a.m. to 4:00 p.m.; 10 from the Saturday of Memorial Day weekend through Labor Day, concessionaire 11 shall be fully prepared and staffed to open daily all the concession stands 12 and shall maintain open a'minimum of one stand from 10:00 a.m. to 10:00 p.m., 13 during either period above. Concessionaire shall open and maintain open 14 additional stands to accommodate visitor attendance and usage. It is the 15 intent of the State that services be provided in a manner to meet the needs of 16 the visiting public and should State deem hours of operation or number of 17 stands open inadequate to meet such needs State may require concessionaire to 18 adjust his schedule to a schedule provided by State. Concessionaire may 19 remain open on other dates, observing same hours, at its discretion with the 20 concurrence of the Area Manager. In the event of adverse weather or other + 21 operating conditions, the Area Manager or his authorized representative, may 22 permit the concession to close at any time during the term of this contract. 23 Concessionaire shall not use or permit the subject premises to be used in 24 whole or in part during the term of this contract for any purpose, other than 25 as herein set forth, without the prior written consent of the State first had 26 and obtained. Concessionaire expressly agrees at all times during the term of 27 this contract, at its own cost and expense, to maintain and operate such COURT PAPER •TAT[ or CALIFORNIA STD 113 sAtY 0•72t - ___ 7 k 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 premises and areas adjacent to a distance of not less than fifty (50) feet, in a clean, safe, wholesome and sanitary condition free of trash, garbage or obstructions of any kind and in compliance with any and all present and future laws, general rules or regl.ilations of any governmental authority"now or at anytime -during the term of this contract in force relating to sanitation or public health, safety or welfare; and concessionaire shall at all times faithfully obey and comply with all laws, rules and regulations applicable thereto adopted by federal, state or other governmental bodies or departments or officers thereof. This contract is expressly subject to regulations and policies of the State Park and Recreation Commission and the Director of Parks and Recreation. Concessionaire shall remedy without delay any defective, dangerous or unsanitary conditions. All foods and beverges (non alcoholic) sold directly on the beaches shall be sold in disposable paper containers. No pull -top cans or styrofoam containers are to be vended or dispensed from the premises. Concessionaire and State shall from time to time review items sold and containers or utensils used or dispensed by concessionaire and wherever feasible, eliminate the use of non -returnable containers, plastics, etc. State reserves the right to prohibit the sale or use of non -recyclable containers or plastics. 7. QUALITY OF SERVICE AND CONTROL OF RATES AND CHARGES: Service to the I public, with goods and merchandise of the best quality and at reasonable charges, is of prime concern to the State and is considered a part of the consideration for this contract. Therefore, Concessionaire agrees that he will operate and manage the services and facilities offered in a first-class manner, and comparable to other first-class concessions providing similar COURT PAPER STATE or CALIF**WIA LTD, 113 6REV. ••721 1� + 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 facilities and services, during the entire term of this contract. Where such facilities are provided, Concessionaire agrees that he shall and will furnish and dispense foods and beverages (nonalcohotlic) of the best quality and shall and will maintain a high standard of service at least equal to that of other establishments in State Parks and/or adjacent communities and to those prevailing in such areas for similar products and services, and without discrimination. The State shall have access'to and the right to inspect the schedule of prices and rates for goods sold or services rendered or performed upon the subject premises, and menus, lists, portion schedules, and schedules of prices in the restaurant or other food -serving activities of Concessionaire; and in the event that after Concessionaire has been advised and given a reasonable opportunity to confer with the State and justify the prices or portions mentioned above, if the State shall determine any price or prices to be unreasonable or inappropriate for the services rendered, the item sold, or any portion or portions to be inadequate, the same shall be modified as directed by the State. Concessionaire shall post rates and prices for all goods and services in such places as may be designated by State. State reserves the right to prohibit the sale or rental of any item which it deems objectionable, beyond the scope of merchandise deemed necessary for proper service to the public or of inferior quality. All foods and beverages (nonalcoholic) sold directly on the beaches shall be sold in disposable containers of paper or other biodegradable materials. Concessionaire and State shall from time to time review items sold and containers or utensils used or dispensed by Concessionaire, and whenever possible, eliminate the use of non -returnable containers, plastics, etc. COURT PAPER stun o" Cwt+roaN+w STD. 113 4Riv ••"a+ ��....r+�. r,�r.f ... .-1 � .- ra.rr.. cYa wa•irYO.CI'�-l:Y :t'. .,. - .. 's-..ryw-.�...+�..�.r�r`.- - aii4✓`�.•�.'�Jl�ia+a�-�-�.aw �wCti. r, :� 1 2 3 4 5 6 7 8 S 10 11 15 • 16 17 18 19 20 21 22 i 23 24 25 26 27 >UKT ►s.►LR ATE o. %610.MM111 o t13.•tr ••st+ State reserves the right to prohibit the sale or use of non-recyc.able containers or plastics. No pull -top cans or styrofoam cups or other non - biodegradable 1up3 are to be used er sold by Concessionaire. No pesticides, herbicides or fungicides may be used that are not approved in writing by the Area Manager in advance of use. A competent person shall be on the premises at all times while the concession is in operation. If the on -site manager is other than the Concessionaire, State reserves the right to approve such manager. 8. BONDS: Concessionaire, at its own cost and expense, shall furnish the State two (2) separate bonds as follows: (a) Continuing Performance Bond: Concessionaire agrees to obtain and deliver to State within thirty (30) days after the final awarding of this contract and prior to entering the premises, a valid surety bond issued by a corporate surety licensed to transact surety business in the State of California and in a form satisfactory to State, in the sum of Ten Thousand Dollars ($10,000) payable to the State and conditioned upon full and satisfactory performance of the obligations of Concessionaire set forth in this contract including required construction and operation. Said bond renewable annually shall be kept in full force and effect by the Concessionaire during the entire term of this contract to insure faithful performance by Concessionaire of all the covenants, terms and conditions of this contract inclusive of, but not restricted to, the payment of all rentals, fees and charges. The corporate surety issuing said bond or bonds shall give 1 1 2 3 4 5� 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 State, as well as the Concessionaire, notice in writing at least thirty (30) days prior to ea--h anniversary date of Its intention to renew or not to renew bond or bonds of Concessionaire. .(b) Payment Bond: Prior to the commencement of construction hereunder, Concessionaire shall furnish the State a surety bond of a corporate surety licensed to transact surety business in the State of California and in a form satisfactory to the State, with Concessionaire's contractor or contractors as principals, in a sum not less than ninety percent (90%) of the total contract cost of the construction of the facility mentioned above, guaranteeing the payment for all materials, provisions, provender, supplies and equipment.used in, upon, for or about the performance or said construction work or labor 'one thereon of any kind whatsoever and protecting the State from any.liability, losses or damages arising therefrom. 9. HOLD HARMLESS AGREEMENT: Concessionaire hereby waives all claims and recourse against the State including the right to contribution for loss or damage to persons or property arising from, growing out of or in any way connected witi or incident to this agreement except claims arising from the sole negligence of State, its officers, agents or employees. Concessionaire shall indemnify, hold harmless, and defend State, its officers, agents and employees against any and all claims, demands, damages, Costs, expenses or liability costs arising out of the development, construc- tion, operation or maintenance of the property described herein except for liability arising out of the sole negligence of State, its officers, agents or -employees. :ov+lr r��cll STATE •. �AL1..w�1. iTD 11� 1*[V.••T1� 411 1 2 3� 4 5 6 7 8 9 10 11 12 13 14 15 16 17 l8 19 20 21 22 23 24 25 26 27 count rxrra {741t • 1 CA W*0281A iTD oil 10EV 0.129 _ .�.•+..+ ... . .....� ..aR •rs •+r.�...r .. ..,.• ..µ raltil.�M�.MYrsr.l:.+. _ . 0-9 In the event State is named as codefendant, the Concessionaire shall notify State of such fact and shall represent State in such legal action unless State undertakes to represent itself as codefendant in such legal action, in which event State shall bear'its own litigation costs, expenses and attorney's fees. In the event judgment is entered against State and Concessionaire because of the negligence of State and Concessionaire, their officers, agents or employees, an apportionment of liability to pay such judgment shall be made by a court of competent jurisdiction. Neither party shall request a jury apportionment. 1 10. LIABILITY INSURANCE: Concessionaire shall provide before entering the premises and shall maintain in force during the term of this contract public liability insurance in the sum of One Hundred Thousand Dollars ($100,000) for injury to or death of any one person; and Three hundred Thousand Dollars ($300,000) for injury to or death of more than one person; and property damage and products liability insurance in the sum. of Fifty Thousand Dollars ($50,000). This policy or policies of liability insurance sha)1 contain the following special endorsement: I. State of California, its officers, employees, and servants are included as additional insured but only insofar as operations under this contract are concerned; 2. The insurer will not cancel or reduce the Insured's coverage> -without thirty (30) diys prior written notice to State. I 1 3. 2 policy: 3U 4 5 6 7' B 91' 10 11 12 13 14 15 16 17 18 19 20 21 22 r 23 24 25 26 ' } 27 COURTPAr[R OVA?@ OF CALIFOR141• Giro 13 o■sr s•.ao ... State will not be responsible for premiums or assessments on the No cancellation provision in any insurance policy shall be construed in derogation of the continuous duty of Concessionaire to furnish insurance during the term of this contract. Said policy'or policies shall be under- written to the satisfaction of the State. A signed and complete certificate of insurance, with all endorsements required by this paragraph, shall be submitted to State concurrently with the execution of this contract. At least thirty (30) days prior to the expiration of any such policy, a signed and complete certificate or insurance, with all endorsements required by this paragraph, showing that such insurance coverage has been renewed or extended, shall be filed with State. Upon request, insurer shall furnish State a certified copy of the policy within fifteen (15?'days. . 11. FIRE INSURANCE: Concessionaire shall provide before entering the premises and shall maintain in force during the term of this contract, fire insurance with extended coverage endorsements thereon, on all concession improvements, whether State-owned, placed or constructed upon the subject premises by Concessionaire, in an amount equal to ninety percent (90%) of the full replacement cost and/or value thereof; said policy to contain a replace- ment cost endorsement naming the Concessionaire as the insured; provided however, that it there is a lender on the security of the improvements so insured, the proceeds of any such policy or policies may be made payable to i such lender. In either case, whether proceeds are paid to Concessionaire or-to� lender, the policy shall contain a special endorsement that such proceeds shall! 13 1 be used to repair or rebuild any as-.h improvements so damaged or destroyed; 2 and if aot so used, such proceeds shall be paid to the State. The proceeds of 3 any such insurance payable to the State shall be used for rebuilding or repair 4 as :eccssary to restore the premis^q And At the discretion of State. 5 This policy or policies shall also contain'the following endorsements: 7 1. The insurer will not cancel or reduce the insured's coverage without 8 thirty (30) days prior written notice to State; 9 10 2. State will not be responsible for premiums or assessments on the 11 policy. 12 13 A complete and signed certificate of insurance with all endorsements 14 required by this paragraph shall be filed with the State prior to the commence- 15 pent of operation of such improvements. At least thirty (30) days prior to 16 the expiration of any such policy, a signed and complete certificate of 17 insurance with all endorsements required by this paragraph, showing that such 18 irsurance coverage has been renewed, shall be filed with the State. 19 Upon request, insurer shall furnish State a certified copy of the 20 policy within fifteen (15) days. 21 22 12. TAXES: This concession agreement may create a possessory interest in 23 public property which is subject to property taxation. In the event that such 24 possessory interest is created, concessionaire agrees to be subject to the 25 payment of and to pay property taxes levied on such interest. Concessionaire 28 agrees to pay the above and all other lawful taxes, assessments or charges 27 Which at any time may be levied by the State, County, City or any tax or couw'r PAPER OTATI, 0• t•ALI/.A•IiA iTp 1 %2 10tT •.T=. 1 2 3 d 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 1 20 ! k 21 22 23 24 25 28 27 assessment levying body upon any interest in this contract or any possessory right which Concessionaire may have in or to the premises covered hereby or the improvements thereon by reason cf its use or occupancy thereof or et!:erW{qe. es well a4 all taxes, assessments, and charges on goods; merchandise, fixtures, appliances, equipment, and.ptoperty owned by it in or about said premises. Concessionaire shall comply with all laws, regulations and ordinances regarding the collection of taxes due a local government agency, and otherwise administer the same. 13. TYPE AND APPROVAL OF IMPROVEMENTS: The concession design and construction will conform to the preliminary plans and specifications contained. in Exhibit "III" attached hereto and hereby made a part of this contract. Construction of a permanent Refreshment stand and modification or improvements of the parking lot next to the Huntington City main pier "Drawing No. 13230 Land ownership record Department of Parks and Recretion", will be the subject of negotiation and a separate agreement between the parties, and no agreement is hereby mada at this time, nor upon what conditions such agreement may be entered, exce)t for rent, as provided for in said concession contract. The negotiation for the improvements of this area between 7th Street, Highway 1, main pier and beach will be executed before 1984. Concessionaire shall utilize the services of an architect and contractor, both licensed by the State of California, for the construction of said facilities. Copies of the contract between Concessionaire and his architect and contractor, and inspection reports, shall be furnished to and consented to in writing by State. .The architect's services shall include the preparation of working drawings, detailed specifications, estimates of cost of construction, supervision, stage -ouKT r.Psn {TATC O. e.0r .o.,. ire �I] �11iv 0.12. 04. 7CZ .. i M 1 2 31 I 4 5, i 6! 7i 8; I 9 10, 11 12 13 14 15 16 17 18 19 20 21 22 23 24 251 26 27 couR'r PAPKR STATE er C.wn.■1. C 3To 413 1149V S•Ti� •.• inspection, and upon completion of construction, the construction shall be certified by an architect to be in substantial accordance with the original plans and specifications. Within six (6) weeks after the execution of this contract, working drawl.^.es, detailed specifications and estimates of construction cost shall be submitted to State for.approval in accordance with the Plan Approval Procedure attached hereto, marked Exhibit "IV" and hereby made a part of this contract. Within three (3) months after plans and specifications have been submitted as directed above, Concessionaire shall submit an equipment schedule, including catalog cuts, for approval. If the State disapproves any drawings, plans or specifications, Concessionaire shall submit necessary modifications and revisions. The State shall not unreasonably withhold such approval, and will give approval or specify specific changes within thirty (30) days of receipt of such Working drawings, plans and specifications, and if State fails. to so approve or specify change, then approval is deemed to be given at the end of the 30-day period. Once approved, no changes or alterations shall be made in working drawings, plans. or specifications without prior written approval of State. Employment of a professional person, such as an engineer, instead of an architect, must be approved by State and the person must be a professional person in the field of work involved. 14. CONSTRUCTION OR MODIFICATION OF IMPROVEMENTS: Concessionaire shall; without cost to State, construct new facilities upon the areas specified herein and as delineated in Exhibit "I, II, and III" hereto. Said concession shall contain all service facilities and equipment complete and ready for use for i the purposes set forth in paragraph-6 above. . 3 4I 5 6 71 8� 9 10� 11 121 13 14 15 16 17 KIM 21 22 23 24 25 In the event that modifications or additions to concession improve - meets are desired, the approval in writing of'the State shall first be had and obtained prior to such modification or addition. The plan approval procedure prescribed in Exhibit "IV" attached hereto ana hereby made a part of this contract shall be used for such modification. . 15. COMPLETION OF IMPROVEMEENTS: upon approval of and in accordance with the Working drawings, plans and specifications as provided in the paragraph entitled "Type and Approval of Improvements" on page 15 of this contract, Concessionaire shall immediately co=ence construction of the facilities described herein and prosecute the save to completion with all due diligence and within 12 months after said plans and specifications have been approved by State. Upon said completion, Concessionaire. shall file a Notice of Completion of Construction with State, provided that such time for completion will be extended by a fair and reasonable period on account of any delay due to Sire, earthquake, wars, strikes, or other calamity beyond the control of Concessionaire. 'When construction has been completed and facilities accepted by State, Concessicnaire will be directed in writing to commence operations. I It is the intent of this contract and the State that the concession facilities contemplated herein for construction and operation shall not only be constructed in accordance with the requirements herein, but such construc- tion shall be coordinated with State's development of the unit, subject to availability of funds and legislative direction. The State may in its discretion, after consultation With the Concessionaire, alter concession facilities, construction time or the completion date thereof' to agree --with its 26 -- 27 - - :oURT/ArLR I fAT4 O11 CALI/O.r r• rT6 113 @Rw O•TS nL w x 2 3 k 4 5 rr 6 7 x 8 i 9 10 11 12 I 13 I •14 15 16 17 181 19 I 20 21 22 23 24 25 26 27 CCU R PAPER 0T.TE OF CGLlTC.rgA sT0 1 ! 3 schedule of development of the unit. Any changes in such dates shall -not be earlier than the dates noted on Concessionaire's initial construction schedule, as approved by State, unless concurred in by Concessionaire. 16. TITLE TO IMPROVEMENTS: Concessionaire,hereby acknowledges the title of State in and to the premises described in this contract, including real property improvements existing or hereafter erected thereon, by Concessionaire, State or others and hereby covenants and agrees never to assail, contest or resist said title. Title to improvements will remain in State upon any termination of this contract and no sums whatsoever shall be paid to Concessionaire or any other person upon termination for default of any terms of this contract. F 17. PERSONAL PROPERTY IMPROVEMENTS: Title to all personal property provided by Concessionaire and additions and betterments thereto made by Concessionaire shall remain in Concessionaire. 18. MAINTENANCE OF IMPROVEMENTS: Concessionaire agrees to maintain any and all concession facilities on the subject premises in good order and repair at his own cost and expense during the entire term of this contract. Such maintenance shall conform to the 'same standards and schedule as the State provides in its Facility Maintenance Program for the subject park unit. Concessionaire shall perform at his own cost and expense, any required main- tenance and repairs including structural maintenance and landscape maintenance, and should Concessionaire fail, neglect or refuse to do so, the State"shall have the right to perform such maintenance or repairz for the Concessionaire's account, and the Concessionaire agrees to promptly reimburse the State for the r i 2 3 10 11 12 13 14 15 16 17 181 is 20 21 •22 23 24 25 26 27 OURT PAPER TAT■ 0I TALI/O..IA to. tli 1111+I.0.Val w.. cost thereof, provided, however, that the_State shall first give Concessionaire ten (10) days written notice of its intention to perform such maintenance or repairs for a Conces31onaire'3-account for the purpose of enabling Concession- aire to proeeed with such maintenance or repairs at Its own expense. The State shall not -be obligated to make any repairs to or maintain any improvements on the subject premises. Concessionaire hereby expressly waives the right to make repairs at the expense of the State and the benefit of the provisions of Section 1941 and 1942 of the Civil Code of the State of California relating thereto if any there be. Concessionaire expressly agrees at all times during the term of this contract, at its'own cost and expense, to maintain and operate such premises and areas adjacent to a distance of not less than fifty (50) feet, in a clean, safe, wholesome and sanitary condition free of trash, garbage or obstructions of any kind and in compliance with any and all present and future laws, general rules or regulations of any governmental authority now or at any time during the term of this contract in force relating to sanitation or public health, safety or welfare; and Concessionaire shall at all times faithfully obey and comply with all laws, rules and regulations applicable thereto, adopted by Federal, State or other governmental bodies or departments or officers thereof. This contract is expressly subject to regulations and policies of the State Park and Recreation Commission and the Director of Parks and Recreation. Concessionaire shall remedy without delay any defective, dangerous or unsanitary conditions. Beginning with year fifteen (15) of this contract, Concessionaire shall annually expend a minimum of One (1%) percent of the average annual �.r... n..•r•-r�41 .+►r�....+�•...... aw .� ..r.r ........ww•• fif:--�..�....la �?�:a•r..� a � 7 1 2 ' 3 4 5 6 'ds F 7 8 s 10 r 11 12 13 14 15 ' 16 17 18 is 20 21 22 23 24 i 25 26 27 :CURT PAPER TArf OF CA&WO•Mu irp 113 •O[v a ?I+ gross receiptn.received from year 13 and including year 15, for maintenance of concession facilities. Such expenditures shall be verified by expense I statements and shall be as concurred in by State. 19. UTILITIES AND SERVICES: Concessionaire shall be responsible for the installation and provision of all utilities necessary to and used in connection with the concession facilities shown on•Exhibit--"I", and "II" and hereby made a part of this contract. When installing facilities, no trees shall be trimmed or cut without permission of the Area Manager... Concessionaire shall be responsible for the payment of all utility charges, including furnishing all necessary. refuse and garbage containers and removal and disposal of all rubbish, refuse and garbage resulting from concessions operations. All such rubbish, refuse and garbage removed shall be disposed of outside the Park Unit and in accordance with applicable laws and local ordinances. All trash containers and/or trash bins shall be adequately screened to the satisfaction of the Area Manager. For the purpose of this paragraph, sewage disposal shall be construed as a utility. a . 20. EQUIPE�-=: Concessionaire, at its own expense, shall completely equip the concession improvements described herein and shall keep the same equipped in a first-class manner throughout the term of this contract. 21. SIGNS,_ADVERTISING'AND ,APPROVAL OF NAME: No signs, names, placards or advertising matter, other than those specified in Exhibit "I" hereto, shall be inscribed, painted or affixed upon said premises, circulated or published without written consent of the State first had and obtained. 1 2 3 4 • 5 6 7 S 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 22. INSPECTION OF PREMISES: The State hereby reserves the right to enter upon the premises occupied by Concessionaire at any reasonable time to inspect the same. State als-a rtsia' es Lisa right o: ingress and egress to inspect, investigate and survey said premises as deemed necessary, and the right to do any and all work of any nature necessary for preservation, maintenance and operation of this State Unit in any areas within the confines of said unit. Concessionaire Will be given reasonable notice when such Work may become necessary and shall adjust concession operations in such a manner'that State may proceed expeditiously. 23. BREACI OF CONTRACT: This contract is made upon the condition that if the rents or other sums which Concessionaire herein agrees to pay or any part thereof shall be unpaid on the date on which the same shall become due, or if breach be made in any of the terms, agreements, conditions or covenants herein contained on the part of the Concessionaire, or should Concessionaire become insolvent or bankrupt either voluntarily or involuntarily, then, and in such event at the•option of tLe State, this contract shall cease and terminate and i the State may enter upon and take possession of the premises and Concessionaire shall vacate the premises within 30 days after notice that this contract is terminated and Concessionaire agrees to pay all costs incurred by State in its taking possession of the premises. Except for the payment of rent, Concessionaire will have thirty (30) days to cure a breach or if more than thirty (30) days is necessary to cure a breach, Concessionaire, upon the written concurrence of State, will faithfully commence to cure ouch breach. :OURT PA IT;76 N CALWOMMIA ITo 113 .09V *nip 3' 4 5 6 7 8 9 10 11 12 13 14 15 16 17 20 21 22 23 24 25 3a 4M Notwithstanding any of the above breach of contract provisions, should Concessionaire create or allow to be created a nuisance on the premises described herein, State at its discretion may immediately declare this contract i and all rights therein terminated. 24. STATE BUY-OUT PROVISIONS: (a) Notwithstanding any other provision in this contract and in addition to any other remedy -available to State, upon: b months written notice State shall have the option to terminate the contract and to pay Concessionaire the then depreciated cost of the facilities placed, created or developed by Concessionaire on the premises. (b) It is expressly understood that this paragraph No. 24 does not apply to the situation where the State may terminate this contract for any breach on the part of the Concessionaire. Where there has been a breach on the part of the Concessionaire, under any terms of this contract, the State shall not be obligated to pay .the Concessionaire before or after taking possession of the premises. (c) For the purpose of this paragraph, such facilities shall be deemed to be the structures which Concessionaire is expressly required to construct hereunler or later adds to, exclusive of trade fixtures, equipment and any personal property. The cost of such facilities for the purposes of this paragraph shall be computed in the following manner: (d) Upon filing of Notice of Completion as required in paragraph 15 entitled "Completion of Improvements" on page 17 of this contract, or within thirty (30) days of opening for business, whichever is earlier, Concessionaire Will submit verified cost statements accompanied by substantiating invoices and bills of labor, material or -any ether reasonable construction costs, to State. After such statements, invoices and bills have been examined by State, SOVRT PAPER 171Te of c4LIFO.YI• Jiro 113 409V 6•7!l emu. 22 4 L . - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 State Will in its sole discretion establish in a reasonable and fair manner the colt of facilities and improvements to which the Notice of Completion relates. In the event costs are not filed by Concessionaire Within the period above provided, State shall estimate said cast and serve the same on Concessionaire in the manner provided herein. State's estimate shall become final ten (10) days after service thereof. (e) The amount to be paid as the then depreciated cost of the facilities in the event of termination under this paragraph shall be based on a Twenty (20) year 3% capital recovery schedule, which will provide Six Thousand Seven Hundred and Twenty Two Dollars ($6,722) for each One Hundred Thousand Dollars ($100,000) of beginning cost, multiplied by the remaining 1 years. In the event of breach, bankruptcy, insolvency, abandonment, or the contract is terminated at Concessionaire's request, the buy-out provisions contained herein are not to be considered as an obligation of the State. In the event there is an assignment of this contract for security and as consented to by State, then any payments made pursuant to this paragraph shall -be used to satisfy suca assignee to the extent of his interest. This paragraph shall only be operative when funds required by State for auch buy-out are obtained through appropriation by the Legislature and through the normal budgeting processes of the State. 25. CONTRACT NOTICE: Except for rent; as provided for herein, any notices herein provided to be given, or which may be given by either party to couwr PAPER :TO.193 .w[r s•Tf- •.• .. 23 1 the other, shall be deemed to have been fully given when made in writing and 2 deposited as certified mail in the United States mail, postage prepaid and 3 addressed as follows: 4 5 To the Concessionaire at: 6 . .7 8 9 To the State at: Department of Parks and Recreation 10 Concessicns Section 11 Post Office Box 2390 12 Sacramento, California 95811 13 14 The address to which notices shall or may be mailed as aforesaid by 15 either party, shali'or may be changed by written notice given by such party to 16 the other as hereinbefore provided, but nothing herein contained shall 17 preclude the giving of any such notice by personal service. 19 26. INTERPRETAT;QN OF CONTRACT:' This contract is made under and is 20 subject to the laws of the State of California in all respects as to 21 interpretation, construction, operation, effect and performance. 22 23 27. WAIVER OF CONTRACT TERMS: No waiver by either party at any time of 24 any of the terms, conditions or covenants of this contract shall be deemed as 25 a waiver at any time thereafter of the same or of any other term, condition or 26 covenant herein contained, nor of the strict and prompt performance thereof. 27 No delay, failure or omission of the State to re-enter the premises or to IT&TV N CALl.fOyl. ATO 113 d"ev ••Ta. - .I. 24 -- 1 exercise any right, power or privilege or option arising from any breach, nor 2 any subsequent acceptance of rent then or thereafter accrued shall impair any 3 such right, power, privilege or option or be•construed as a Waiver of such 4 n breach or a relinquishment of any right or acquiescence therein. No notice to 5 ' 6 r 7 8 9 ! 10 11 12 I 13 14 15 { 16 17 i 18 19 20 21 22 23 24 25 26 r 27 i COVET PAriR %VATt N ca.1WO90I• t iTO 113 @new 0•120 N. the Concessionaire shall be required to restore or revive time'as of the essence after the waiver by the State of any breach. No option, right, power, remedy or privilege of the State shall be construed as being exhausted by the exercise thereof in one or more instances. The rights, powers, options and remedies given to the State by this contract shall be deemed cumulative. 28. MODIFICATION OF CONTRACT: Notwithstanding any of the provisions of this contract, the parties may hereafter, by mutual consent, agree to modifi- cations thereof, additions thereto or termination thereof, in writing, which are not forbidden by law. The State shall have the right to grant reasonable extensions of time to Concessionaire for any purpose or for the performance of any obligation of concessionaire hereunder. 29. . ASSIGNMENTS: No transfer, assignment or corporate merger by the. Concessionaire that affects this cos+tract or of any part thereof or interest therein, directly or indirectly, voluntarily or involuntarily, shall be made unless such transfer, assignment or corporate merger is first consented to in writing by State. (a) Assignment for Security: The Concessionaire's possessory interest in Concessionaire's improvements under the terms of this contract, for the purposes of affording security only, may be assigned, transferred or encumbered when first consented to in writing by State. No mortgage shall be executed and no bonds or other evidence of interest in, or indebtedness upon 25 I 2 3 4 5 6 7 8 9' 10 11 12 13 14 15, 16 17 18 19 20 21 1 22 23 24 25 26 27 coups rAPIR LYAT[ O•CALIIO-WIA sro tt� 0Nev. 5-721 M.• the assets or proposed assets of the Concessionaire in the State unit shall be issued except far the purposes of installing, enlarging or Improving plant and I equipment and extending facilities for the accommodation of .the public in the State unit and thhcn. only except up--.-. prior consent in writing in each case obtained -from the State. In the event of breach and foreclosure on such a mortgage or such other indebtedness or of other assignment, transfer or encumbrance, the purchaser under the foreclosure sale, shall succeed to the possessory interest of the Concessionaire in Concessionaire's improvements. Under these circumstances, operating rights and privileges shall be as I outlined in this contract; however, the right of any person or persons to actually operate the said concession is subject to the consent of State. (b) Assignment for other than Security: Concessionaire shall neither assign, sublease or otherwise convey any interest of any sort granted by this contract, to any person or persons, entity or entities Whatsoever without prior written consent and approval of the conveying document by State. Before State considers such assignment, evidence must be given to State that the proposed assignee qualifies as a "best responsible bidder" under the terms of Sections 5019.11 and 5019.15 of the Public Resources Code and has and will have available a responsible managing employee. The Concessionaire's interest hereunder shall not be assignable in bankruptcy, nor shall said interest -be assignable by operation of law. Any document by which an interest is granted, subject to the consent of State, shall indicate that the person acquiring that interest has been advised of the terms of this contract and takes his interest subject to the terms and conditions in this contract and recognizes that upon termination of the interest of the Concessionaire granted by this contracts his interest shall also be terminated. However, in the event of termination of this contract State, at its sale option, may elect to treat any assignee, 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 16 19 20 21i 22,1 23 i 24 25 26 27 subtenant or holder of an interest conveyed by Concessionaire as State's tenant, Subject to the terms and conditions of this contract and that entered into between the Concessionaire and his or its assignee, subtenant or holder of an interest conveyed by Concessionaire. Upon completion of construction as contemplated herein, the value of facilities constructed by the Concessionaire and at its expense will be the established cast of improvements as determined under subparagraph d of Paragraph 24 above. In the event that State does consent to the assignment of Conces- sionaire's interest in the concession, the State may prescribe the conditions of assig=ent, including the price therefor. Such assignment and price shall be subject to the following, as well as other considerations: (1) The sale price of improvements erected by the Concessionaire at any given point in time shall not be more than the value established above prorated on a 20 year, three percent (3%) recovery of capital basis. (2) The value of stock in trade shall not be more than its cost to the Concessionaire, as verified by invoices. (3) The value of equipment shall be not more than the value established by straight-line depreciation on a ten (10) year schedule. COURT PAPER OTa?i a CALIVO/111• 5To Ili 10911. @.T71 N . 27 I 2 3 5 6 7 8 12 13 14 15 16 17 18 1s 20 21 22 23 24 25 26 27 COURT ►APLR :TAT[ er CAUIOf NI• STD 112 649r !-7i- A. • . .s (c) Subconcessions: With the prior written consent of State, portions of this concession may be operated by others. The following conditions must be met: (1) The subconcessionaire must be fully *qualified* (2) The subconcessionaire understands that his interest is taken under this contract. 30. WAIVER OF CLAIMS: 'The Concessionaire hereby waives any claim against the State of California, its officers, agents or employees for damage or loss caused by any suit or proceeding directly or indirectly attacking the validity of this contract, or any part thereof or by any judgment or award in any suit or proceeding declaring this contract null, void or voidable or delaying the same or any part thereof from being carried out. 31. AGENT FOR SERVICE OF PROCESS: It is expressly agreed and understood that if the Concessionaire is rot a resident of this State or is an association or partnership without a member or partner resident of this State, or is a foreign corporation, then in any such event, the Concessionaire shall file with the State, upon his execution of the contract, a designation of a natural person residing in the State of California, giving his name, residence and business address, as his or its agent for the purpose of service of process in any court action between him or it and the State arising out of or based upon this contract, and the delivery to such agent of a copy of any process in any. such action shall constitute valid service upon such Concessionaire; aqd it is .further expressly agreed, covenanted and stipulated that if for any reason 1 service of such process upon such agent is not possible, then in such event 2 Concessionaire may be personally served with such process out of this State 3 and that such service shall constitute valid service upon such Concessionaire; 4 e-nd it is further exrrp22Iy agreed that Concessionaire Will accept the process 5 so served, submits to the jurisdiction of the court 'so acquired, and waives. 6 any and all objection and protest thereio. - 7 8 9' 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 OUATPAPER ..,.., rat1.9.,I. fD. 117 1sw i sop 32. RIGHT OF ENTRY AS AGENT: In any case in which provision is made herein for the termination of this contract by the State or in the case of abandonment o^ vacating of the premises by Concessionaire, the State, in lieu of declaring a•forfeiture, may enter upon the premises: To such end, j Concessionaire hereby irrevocably appoints.the State its agent to remove any and all persons or property on said premises and place any such property in storage for.the account of and at the expense of Concessionaire and to relet the premises. In such case, the State may relet the premises upon such terms as it may deem proper, and if a sufficient sum shall not be realized thereby, after paying expenses of such reletting, to satisfy the rent and other sums herein agreed to be paid by Concessionaire, concessionaire agrees to save the State harmless from any loss or damage or c13im arising out of the action of the State in pursuance of this paragraph. 33. TERMS BINDING ON SUCCESSORS: All the terms, covenants and conditions of this contract shall inure to the benefit of and be binding upon the sub - concessionaire and the successor and assigns of the parties hereto. The Provisions of this paragraph shall not be deemed as a waiver of any of the conditions against assignment hereinbefore set forth. 29 � s � 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 In the event this paragraph becomes operative, the selection by the Concessionaire of a manager for the concession shall be subject to the consent of State. 34. DURATION OF PUBLIC FACILITIES: By entering into this contract, State makes no 'stipulation as to the type, size, location, or duration of public facilities to be maintained at this unit, or the -continuation of State ownership thereof, nor does the State make any guarantee regarding the tentative proiections in any prospectus furnished to the Concessionaire at any time. 35. TIME OF ESSENCE: Time shall be of the essence in the performance of this contract. 36. EMINENT DOMAIN: If, during the term of this contract, any property described herein or hereinafter added hereto, is taken in eminent domain, the entire award shall be paid to State, provided however, that the Concessionaire shall be paid the book value of the construction described herein and any future modifications or additions thereto made by Concessionaire. Book value shall be the established cost of improvements as determined under subpara- graph (d) of Paragraph 24 above, less depreciation based on a straight-line method of depreciation on a life as established for such facilities by the United States Internal Revenue Service. 37. CONFLICT OF INTEREST: Concessionaire warrants and covenants -that no official or employee of State nor any business entity in which an.offieial or employee of State is interested; (1) has been employed or retained to solicit )URT PAPER AT[ _ CA161POPINIA f 1 - or aid in the procuring of this contract; (2) will be employed in the 2 performance of this contract without the immediate divulgence of such fact 3 to State. In the event State determines that the employment of any such ,� A.., . , _ , a..._i..�_. ♦f .. ► a a• ......>• art a ,e "&AP u.ployce or b-uz1, c3.., cn ity is • of Cc=pati a with JUIcf. oaf �� alai s 5 or employee's duties as an official or employee of the State of California, 6 Concessionaire, upon request of State, shall terminate such employment 7 immediately. For breaches or violation of this paragraph, State shall have 8 the right both to annul this contract without liability and, in its 9 discretion, recover the full amount of any such compensation paid to such 10 official, employee or business entity. lI 12 38. PHOTOGRAPHY: State may grant permits to persons or corporations 13 engaged in the production of still and motion pictures and related activities, 14 for the use of said premises for such purposes when such permission shall not 15 interfere with the primary business of Concessionaire. 16 17 39. HAZARDOUS SUBSTANCES: No goods, merchandise or material shall be 18 kept, stored or sold in or on said premises which are in any way explosive or 19 hazardous; and no offensive or dangerous trade, business or occupation. shall 20 be carried on therein or thereon, and nothing shall be done on said premises, 21 other than as is provided for in this eontract,'and no machinery or apparatus 22 shall be used or operated on said premises which will in any way injure said 23 premises or adjacent buildings, provided however, that nothing in this 24 paragraph contained shall preclude Concessionaire from bringing, keeping or 25 using on or about said premises such materials, supplies, equipment and ' 26 machinery as are appropriate or customary in carrying on its said business or 27 -- rOURT PAPER BTAT■ asCALIFOANIA STD 112 afly ••71 w.. w • 4 1 2 3 4 5 6 7 8 9 1D 11 12 13 14 15 16 17 18 1s 20 21 22 23 24 • 25 26 27 COURT PAPER 874 1 t 61• CA%.1/6.b1■ ago 113 o0ty 9•121 010 from carrying cn its business in all respects.as is generally usual. Gasoline and 0113 shall be stored, handled and dispensed as required by present or future regulations and laws. 40. NONDISCRIMINATION: The Concessionaire and his employees shall not discriminate because of race, religion, color,•ancestry, sex, age, national origin or physical handicap against any person by refusing to furnish such person any accommodation -facility, service or privilege offered to or enjoyed by the general public. Nor shall the Concessionaire or his employees publicize the accommodation, facilities, services or privileges in any -manner that would directly or inferentially reflect upon or question the acceptability of the patronage of any person because of race, religion, color, ancestry, sex, age, national origin or physical handicap. In the performance of this contract, the Concessionaire will not discriminate against any employee or applicant for employment, because of race, color, religion, ancestry, sex, age, national origin or physical handicap. The Concessionaire will take affirmative action to ensure that applicants are employed and that employees are treated during employment,' without regard to their race, color, religion, ancestry, sex, age, national origin or physical handicap. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Concessionaire shall post in conspicuous places, available to employees and applicants for employment, notices to be provided by the State setting forth the provisions of this Fair Employment Practices Section. Form 809, Equal Employment Opportunity Poster, may be used. r 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 0VFtT 1PAPE1! 1. <Of r.Aure.n• 10. 113.Etr 0•135 of The Concessionaire will permit access to his records of employment, employment advertisement, application forms, and other pertinent data and records by the State Fair Employment Practices Commission, or any other agency of the State of California designated by the awarding authority, for the purpose of investigation to ascertain compliance with the Fair Employment Practices Section of this contract. The State may determine a willful violation of'the Fair Employment -ti Practices provision to have occurred upon receipt of a final judgment having that effect from a court in an action to which Concessionaire was a party, or upon receipt of a written notice from the Fair Employment Practices Commission that it has investigated and determined that the Concessionaire has violated the Fair Employment Practices Act and has issued an order, under Labor Code Section 1426, which has become final, or obtained an injunction under Labor Code Section 1429. In the event of violation of this paragraph, the State will have the right to terminate this contract, and any loss of revenue sustained by the State by reason.thereof shall be borne and paid for by the .Concessionaire. 41. PARAGRAPH TITLES: The paragraph t.Ltles in this contract are inserted only as a matter of convenience and for reference, and in no way define, limit or describe the scope of intent of.th13 contract or in any way affect this contract. 42. CONTRACT IN COUNTERPARTS: This contract is executed in counterparts, each of which shall be deemed an original. r' h1 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 . 16 17 18 19 20 21 22 23 24 25 26 1 27 1 43. ALCOHOLIC BEVERAGES: Notwithstanding anything to the contrary, the aale of alcoholic beverages on the subject premises is expressly forbidden. uu. REALTIA C.rRTTVTrATF; Concesaionairp shall file with the Area Manager a certificate showing that within the last two yeats, every person employed in the concession activity has been examined and'has been found to be free of communicable tuberculosis, all in accordance with Section 506.1 et seq. of the Public Resources Code. 45. EMPLOYEE TRAINING: All concession employees are to receive an orientation on the State Park System, the park unit in Which the concession is located, and local points of interest, which will be sufficient to permit such employees to reply adequately to inquiries from the visiting public. The employee Orientation Program is subject to the approval of the Area Manager. 46. STATE'S AREA MANAGER: For purposes of this contract, the "Area Manager" is the State representative in direct charge of Orange Coast Area. and other units of the State'Park System as may be assigned. He is charged with the day -today administratici of this contract and is the Concession- aire's initial contact with the State for information, contract performance, and other problems as might arise. 47. AGREEMENT IN WRITING: This concession contract contains and embraces the entire agreement between the parties hereto and neither it nor any part of it may be changed, altered, modified, limited or extended orally or by any COUP PAPER S7.1S •• C."'...l. sm. 113 4pxv. 0.71I I H• Ru . 1 2 3 4 5 6 7 8 9' 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 :CURT PAP914 ITATE OT r.AIITOAMI• ;To 113 1 0tv 0•72 . O.. agreement between the parties unless such agreement be expressed in writing, signed and acknowledged by the State and the Concessionaire, or their successors in interest. �8. APPROVAL OF CONTRACT: It is understood and agreed that neither this contract, amendments, modifications, or termination thereof shall be effective until approved by the Department of General Services and the Attorney General. IN WITNESS WHEREOF, the parties hereto have caused these present to be executed the day and year first above written. it 11 " TO !'fit-` AM) r�MTD CONCESSIONAIRE. i?'Z' B• �Z,g Date: 49 7 r Ly_�1_l_..t».:.� .�.•...11 r �) B Date: D rIW: ' 1 BY-0y 11J Date: /f _ 9 _ %gi . t p#lG�N111 S�r�ED BY . 3EMMM STATE OF CALIFORNIA DEPARTMENT OF PARKS AND RECREATION SY 'RUSSELL W. CAHILL, Director APR J 0 19001 APPROVED: ...._'- ' . - - DEPARTMENT OF GENERAL SERVICES B : - Title: thief Dcyutv -Pi cctor' Date: FEE '? B-7145A 1 2 3 4 5 6 7 8 9 10 11. 12 13 14 15 16 17 18 1s 20 21 22 23 24 25 26 27 agreement between the parties unless such agreement be expressed in writing, signed and acknowledged by the State and the Concessionaire) or their suceessors in interest. 48. .-APPROVAL OF CONTRACT: It is understood and agreed that neither this contract, amendments, modifications, or termination thereof shall be effective until approved by the Department of General Services and the Attorney General. N� y IN WITNESS WHEREOF, the parties hereto have caused these present to be executed the day and year first above written. APPROVED: DEPARTMENT OF GENERAL SERVICES, CONCESSIONAIRE: By: Date: By: Date: By: Date: STATE OF CALIFORNIA DEPARTMENT OF PARKS AND RECREATION .RUSSELL•W. CAHILL, Director By: Title: - Date: :OURT I�ArL'R iTAT aTo 11, r." •.7� � *1. 8-V 45A T. 5 & S S* R.11 W, S. B.A+L .-. _. �.,t .�.....••. �\ ORANGE COUNTY • � ��w�•� a ww v Warn. • ��RCCO.f dfafrCY . •�••••. ••..r. .ta..r�.w. YM f r,.• 01 • .'Com �••r.r, , ••. .�-• .ter• t •�..�.`- (1 t1LCW10 d iJkv[� •k !t*.�....-.trr �•"„ P A C I F I C � �' /� O C E. A ,1Y �'.. a, .....� {.. T,-•,•. F a.ssasriiri+-+ srsps.: st=i s *XP • � ■ "-�+Y+'+•-�` �r+s•.Si... if '��� �y �i � � `��' C F ,4 N 0.�.r ..r«.. 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Yo A➢YIY,SitrTq. tY,lp+G - ^~-` �-� __ .• � �'�-�—.-`.-�-•,. ► Y • ••r r_. l trrttu t➢ i0•ER _ _ - tiff",a tr•M➢t'+- - _-'-__••-�_-��. • _ to x -- J m_ - - - STATE •EACH ROUMDARY f - HIOPOGCD CO,AORT STATION • 6R[SSU[• •ttt y -A C.QHG t Ol;t �jT/SFlD N 'PRO►OECD COMC[ISIlM wILDIMCi Ic N >UJ . _ �"►floroscD LxuuARo STAND a —END Of POPOSED OYELOPMENT )— MO►OECD PLANTING xcwm rtYct CDYtNwt�a ►R010S[D M01[EkADE D ►ICMIC TERRACE y Q tw ' • -�..� . ➢rtTr"'j -" �•1 ` - FACILITIES SUMMARY r• � = • -' - - •t L.'sm" �.. q•+r ` ;. �Mn+W Mr YS( •� ti•e- t+r •�. A � l • t - - � - - � Z pn'K..YG lw+r. li•w.i a�.aw+.•r1 -100. � j as r . (wrest fTAtIDY 1LtY x(ItrG ba•G [A w.++c .� , t{ t c O e e A a _ ' - + "(ttt•n[ GTK[J WG GTaT,•.t • , -.. • I - - - _- % ,yft GUMO GMTnq T0.(R [ m P➢.TAAII LrtGYA■➢11-OG t• �Ku �stl.L t: •,U Cw OY[afW➢Kr - - - - - : ter.-=F. M''i .••7T C1F N..S-:tom c Q - .. yy�l,l, v✓: fi GX�S-, I.VG P1.YY 'JV�..71i.i%t 'yam- 6E I..7Eln.C--0 5�,6•urr_r,� curt r. car 70i - - '—_ — I •t.�c•Y.ae = III �!•11 --- 4. FlN'Si: TL T!f\; �--' -- i� l ••.e.... _ = _ ,1 i - —� f..o�r e.n' _ same Y•no atnct .2E'Y.A.J.7+•.V'f AQ RE41J: ,O��• } zx- �LFVATIOfJ- D Et-EVATI,9G proo s pAt'!N6 A17;•y.:tl1•-, pl efflOtil 1 '1'.JING Tb ✓ -,CN F-x{ST,Nf. 4--afTf ! �� W-74 4r✓=76 TZws, T,or.t ro ,III G : dT,O-PIG.I-rim- L.a.+osua.a+G R+a �J ON 4rTE PLAAj �2s Ls��T,I.Jb. - � • q. ,� - � - 6�et �:2,e- TE7=f�17oNE- T I 2'=2 �iY;.V.m{f C �•✓•: =�• � FaJ NVa 5SWE2 .42r. .A:lalalj'-I! } - Gr:-to fRAi4:- :�•r`i`��.:4:-O O.G:� - AT Tim CC-ONC=SSIoN f`�1r _ _ T.E :J'%SCS, a•:EZ 1S RGSFpn?S iF%LS4 - _ VGf• o f:Yz r�-a.vr�c a. swcs� = E.N �'� _ ` ¢oa�.� _ ___ u• ;c• i2c-Cr �,2-D %•OZ- N1S L•Sm. G.-r• 'B•�4i LCXF.1! 1 A..:a Ottoa �•PU�CT-7 .,�uMiNJa' 6^' 'C FJ.!?. �-.3t 7 7 O I:s •�te. t.� 4 ao4 .ab6 it�G/�„p '.i- M. S y \ o 4•c it. o-IzJ•+'ir •. I �aucco w��o sa,,.e 1 I e jo �.v f . 1.._._.a. 1 a I • - � _ PrJM FNAi� - - • -Socci�� Nd'c . - - AFXi VAl-- F:7�M TN= COcDUTr L:5:AL.Tt4 flf-j7�2TNEf�:T '$hRLL Be o3TAluED Ccn1ST'2.VCTIClN! v,c- r,S `�NG�LS:, pai C3 uc�t7:ivGS. • �J' ETC ��� EXHIBIT ID PW N• 2 J �I 1 _ •`GT' Y r C I I I t�i �' RRSOURCIS AGRNCY Of CAUFONNIA NRYIfiOM eft[ � RI �l�a GNiGa �It(E DEPARTMENT OF PARKS ANO RECREATION �; A►►ROYFO T :`� Tr i i Yr. J a t t 'it r ii i 1 i I l i yr. I �► �' �rr/sluau r P T, 16:11 1 MAR AI nk Cl FLn nun �n i . 1 vt X � ilt"i .2�' � 3 1'•< f: -1 Goal: Provide for adequate neighborhood recreation facilities for all areas of •— the City. Policy: Provide neighborhood parks that are generally 2.5 to 5 acres _ in size. Policy: Centrally locate parks within neighborhoods. ._ Policy: Design neighborhood parks to serve the area within a' one -quarter mile radius. Policy: When possible, locate neighborhood parks adjacent to schools l' so that both facilities can provide more functional uses. Policy: Place a high priority on developing a neighborhood park to serve the Seaclif f area. Policy: In new residential tracts, consideration should be given to ... " providing and maintaining neighborhood recreation areas through a homeowner's maintenance association. Goal: Provide for adequate community park facilities for all areas of the City. Policy: Provide community parks that are generally 15 to 20 acres in _I size. Policy: Design, community parks to serve several neighborhoods within a one and one-half mile service radius. Policy: Include both indoor and outdoor recreational activities such as baseball diamonds, basketball courts, tennis courts and community centers in community parks. Policy: Provide additional community facilities within Huntington Central Park to help satisfy the deficiency in community park space. 4.2.2 Coastal Recreation (The following policies are also contained in the City's Coastal Element.) Goal: Provide for maximum, recreational opportunities along the City and State beaches. Policy: Prohibit development of permanent above -ground structures on the beach sand area with the exception of the following permitted uses: - Lifeguard towers and other facilities necessary for public safety. _ - Public restrooms and beach concession stands when located immediately adjacent to paved parking or access areas. - Reconstruction and expansion related to the Municipal Pier. - Fire rings and volleyball nets. Bike trails, bike support facilities, and handicapped access. 1 ;'� 26 Goal: Policy: Prohibit expansion of parking facilities that would result in _ the loss of recreational sand area; expansion of parking facilities on Huntington State Beach between the existing parking area and Pacific Coast Highway would be permitted subject to: - City approval of design and landscaping plans. - State assurance that curbs, gutters, sidewalks, transit turnouts, highway medians and street lighting will be provided when improvements to this section of Pacif is Coast Highway are implemented. Policy: Prohibit groins, cliff retaining walls, pipelines, outfalls, and other such construction that may alter natural shoreline processes unless designed to eliminate or mitigate adverse impacts on local shoreline sand supply. Protect, encourage and where feasible provide a variety of recreation facilities which provide opportunities for all income groups. Policy: Provide opportunities for recreational fishing and support facilities on the Huntington Beach Pier. Policy: Require that any plans for restoration or replacement of the Municipal Pier include the following provisions: - Areas for recreational fishing and support facilities. - Unobstructed public views seaward from the end of the Pier. Significant opportunities for unobstructed public views of the ocean and shoreline. - Pedestrian access as the primary mode of circulation on the Pier. - A minimum of 50 percent of the total area of the Pier as public open space. Policy: Support the development of the Bolsa Chica linear park and the implementation of a continuous trail system from Huntington Central Park to the beach along the perimeter of the Bolsa Chica; establish an implementation plan for the Bolsa Chica linear park in cooperation with the County of Orange. Policy: Support recreational facilities in the Bolsa Chica Linear Park tha t: - Emphasize a low intensity Character for that portion of the park within the City's coastal zone. - Locate any higher intensity uses in nodes consistent with adjacent areas. - Limit aboveground structures to support facilities such as restrooms, picnic tables and bike racks. Site all uses, so. as, to preserve views to the adjacent Bolsa Chica. 27 9 { � �)�1•� cell F`}1� ii �' � , e r, N :i 1 r } �, Policy: Provide additional bike racks to encourage the use of City and State beaches as a destination point for bicyclists, and encourage the State to do the same. • ,t I r Policy: Actively pursue county, State and, federal funding for coastal projects including: - Renovation of the Huntington Beach Municipal Pier. Provision of nature walks and other educational opportunities in environmentally sensitive habitats where compatible. i• - Development of the Bolsa Chica linear park. Policy: Encourage the provision of public boating support facilities ;. compatible with surrounding land uses and water quality. Policy: Encourage additional dry storage'areas for boats in industrial areas zoned MI. Policy: Establish the responsibility for maintenance prior to approval of a marina or other major recreational facility. Policy: Encourage privately -owned recreation facilities to be open to the public. Policy: Encourage, where feasible, facilities and programs which increase and enhance public recreational opportunities in Huntington Harbour., Goal: Ensure local interests and concerns are included in State and regional recreation planning. Policy: Require review and approval by the City of final development plans prior to permitting any ladditional development on the State beaches. Policy: Prior to permitting any additional.development:on Huntington State Beach require:, f' - Review and approval rby 'the',Qity'.of final landscape and architectural plans. - Location of new facilities'and landscaping in a manner that minimizes public view' blockage and that enhances visually degraded areas. - Location of new facilities -in a manner that maximizes the area of beach sand available for recreational use. - Location of comfort stations within or adjacent to parking facilities. Provision of drop-off and turn -around facilities for public transit. 1.1r ' Provision of bus parking areas. Removal of the existing chain link fence; City review and approval of the location, design and materials of any fencing necessary for safety purposes. 92 Policy: Utilize a staff coordinating committee of representatives from Planning, Public Works and Community Services to coordinate and cooperate with adjacent jurisdictions and other public agencies in developing and reviewing plans affecting recreation opportunities in Huntington Beach and adjacent' areas. Such committee shall review plans and provide comments and recommendations for: Huntington and Bolsa Chica State Beaches - Bolsa Chica - Mile Square Park (Fountain Valley) - Sunset Aquatic Park (Seal Beach) Bolsa Chica Linear Park Other Related Projects Goal: Provide public access to coastal resources when possible. Policy: Require 'an offer of dedication of an easement in all new development to allow vertical access to the shoreline or to public recreation areas or to public trails and bikeways unless: - Adequate access exists nearby or is proposed by the land use plan within 1,000 feet; or - Access at the site would significantly degrade environmentally sensitive habitat areas; or - Findings are made, consistent with Section 30212 of the Coastal Act that access is inconsistent with public safety, military security needs, or that agriculture would be adversely affected, or - The parcel is too narrow for, an adequate privacy buffer separating the accessway from the existing residence and would therefore adversely affect the privacy of the property owner. The following guideline shall be used in determining adequate privacy buffers: There should be at least 15 feet between the existing residence and the side yard property line for an adequate buffer. These exceptions shall not apply to the Pacific Electric right-of-way. Offers of dedication for vertical access shall be provided only to sandy beaches and recreation areas and in conjunction with development on vacant parcels, replacement of existing structures or in commercial projects. Policy: Require an offer for dedication of an easement in all new development to allow lateral access along the shoreline public recreation areas or to public trails and bikeways unless: c� �f 29 30 t - Findings are made 'consistent'!with Section 30212 of the ' Coastal Act that'' access., is` i inconsistent' with public - safety, military secu ri ty' needs,:o_r'that-agriculture would C be adversely affected;'or,• - ' ': ' - Access at the ' site `would" ." signif icanLly degrade environmentally sensitive habitat areas; or - The parcel is too narrow for an adequate privacy buffer separating the lateral `accessway 'from an existing ' residence. The following guideline shall be used in determining adequate privacy buffers: There must be at least 15 feet between an' existing residence, patio cover or pool and the shoreline' in' order to accommodate both an accessway and the privacy buffer. These exceptions shall not apply to the Pacific Electric right-of-way. An offer of dedication :for lateral''access 'shall `be required only in conjunction with new development on vacant parcels and along all sandy beach areas. In existing` developed' residential areas'which do'not front a sandy beach area, access will generally'only be required where it can be accomplished with the privacy standards established above. Access j to the bulkhead areas of Huntington 'Harbour -is generally not appropriate, because in most: cases it cannot be provided consistent with privacy standards. However, there may,be situations where access. Lo and along the bulkhead` is appropriate. ' Where `a parcel is large enough to provide public access consistent"with the privacy standards in new development, access along the bulkhead may be appropriate, particularly if public use areas'such as fishing piers :can be reached or ' provided in new develop ment'through such accessways.' ' Policy: In no case shall development in anyway diminish or`interfere L, + with the public's right'of access to the sea where acquired through use or legislative authorization."- Policy: The City shall accept ' offers' ` oft `dedication for' access consistent with its ability to assume maintenance and liability. If not accepted by the City, offers of dedication for access may be accepted by' any t other' public agencies or ' private association, provided that''any. association- or agency which proposes to accept accessways must be able'to assume maintenance and operation' of 'such ''accessway prior to opening it to the public. Policy: Analyze the impact of current. and projected recreation traffic on the City's circulation system. Policy: Promote safe pedestrian access,.to" the beach from the inland � side of Pacific Coast Highway. Policy: Establish a signing 'program '_which ­ will identify public accessways, bikeways, recreation areas and vista points throughout the coastal zone. I 3 • . i� 't r Policy: Preserve, and where possible, provide additional public access to the Huntington Harbour waterways; assemble for public information the full legal documentation to identify the - public rights -of -way, ownership and other agreements ' concerning the Huntington Harbour channels including applicable homeowners association deed restrictions. Policy: Promote public access to coastal wetlands for limited nature study, passive recreation and other low intensity uses compatible with the sensitive nature of these areas. Policy: Pursue local, state and federal funding to provide and maintain boardwalks, peripheral trails, interpretive exhibits and other educational facilities in coastal wetlands. f I t 1 l 1 , i , 1 , 1�tr � � •t �� f f 1 r+ j + ; i' • f 3 i s •j i r ,'�{ t f 1 � 31 f PIERSIDE VILLAGE HUNTINGTON BEACH, CALIFORNIA BRYANT MORRIS DEVELOPM14NT PROJECT DESCRIPTION Pierside Village is proposed to be an oceanfront specialty retail center on four levels; two levels below grade (one subterranean parking level and one partially subterranean level of parking and retail with beachfront exposure), and two levels above grade (housing the majority of the retail activities). The project has been designed to comply with the Huntington Beach District 10 Downtown Specific Plan and the Downtown Architectural Design Guidelines. The retail shop areas are proposed to be Type 5 - One Hour Construction and will conform to all Huntington Beach Build- ing Ordinances. The retail structures will be erected above the two subterranean parking levels, which will be Type I cast in place concrete with steel reinforcement -fully sprinkled structures. The finished surfaces of the project will replicate the Mediterranean architecture of the Greek Isles. Thus, 90% of all exterior vertical surfaces will be whitewashed stucco; with the remaining 10% being the painted wood trim elements such as doors, stairways, shutters, and railings. All common area finished floor surfaces will be slabbed and honed metamorphic stone pavers set in a white mortar bed with expressed grout lines. Roofing will be either traditional terra cotta tile or traditional parapeted flat masonry roofing, typical of Mediterranean island architecture. Landscarinq will be typical of the Mediterranean motif as well; ie, flowering vines such as Bougainvillaea placed randomly throughout the common areas, planted in authentic olive oil vats. Other landscaping will be container planted flowers and plants indigenous to the Mediterranean and Southern Califor- nian climates. PARKING TABULATIONS ITAM*&V truu a w"wcAr taus I.ToTti n TIMaq llY6 ll cme UT tua tEM P�.* N1 TOTw. PAMM tuT /Taus SITE PLAN PROPOSED NORTIf-SUE PARKING STRUCTURE I tI W PHASE 11 I II I �,mrt li I I II I .i I 11 111111HIIIIIIIIII tl'?11111111I i I ail M i koril U 11111It II II r��r I ;T- H41 TH I ;11-1 dr-4, ItI�I�,I�I��I • i I Id. III I F4 I I III 411 !I I I ivwi I I •1 14 . 1_ ..I i 10 w'mup I ilk4ill l l 11 H I 'i------- PARKING TABULATIONS • COW -IT RaLLa M - - MTK . "I TERRACE LEVEL PARKING PLAN PROPOSED NORTH SCE PARKING STRUCTURE. u .• uo ' • a. .o PHASE If 1 F_ Z W a 0� WWV Q O CC cc.° 0-� N Jw F. a Z a } m I I HqHI I1111 id I I III If I I=t+11 1111111 L411 I HII 1 I 1 I N I I I If I I d liq° l I 11111I' i l 1 i FTI1' I mi [n-W i i i i i i i Ia-1-1111111 1111111 111111111111111111 H 1-411 TNTfflH4 L=11 • •U•TL1wA14Y1 !M[N• Ut70f q R 1 .1• ' I�TTIT 1TTTTTI T-----1-- I I 'd i I I Ii I I I I I I I I N 4AWL______ PARKING TABULATIONS •T..oun •rcu fov.oT fTKu . w WTK fM fTMlf BEACH LEVEL PARKING PLAN PROPOSED NORTH SIDE PARKING STRUCTURE • >d f0 . PHASE H r Bol.sa Chica State i f Beach Lower Bluff r ' +•`did:. S r .•- ------ -. _...-.. - ------ Goldenwest C)n CITY OF Pier HUNTINGTON BEACH Huntington ORANGE COUNTY CALIFORNIA City Beach Huntington' State Beach •� EXHIBIT 1 i INN .1E.M.M.M.10M LE M ID M-00. WLI M Ul ID M. 10 ID m m m m m m 111" " F mr-immmmmmmm. mmf ROD, mmmmmmmmmC� 111T TV A 11 L Iwo A a F 3 4 Luj ......... . ...... ...... . .................... .. . ..................... P1 SE] M-_ pq �j _—ion UW'l an a am L Ojai ijigi,f OCEAN OCEAN PIER Main -Pier Project Area MAIN -PIER PLAN CITY OF HUNTINGTON BEACH CA 87-8 COUNCIL - ADMINISTRATOR COMMUNICATION ElLft NGfON $EACH To Honorable Mayor and From Charles W. Thompson, City Council Members City Administrator Subject STATE BEACH AGREEMENT Date January 16, 1987 The State Parks and Recreation Department has executed the agreement approved by the City Council for city operation of a portion of the Bolsa Chica State Beach. The city will commence operation on February 1, 1987, of this additional 2.3 miles of beach extending from the pier to the bluff areas of the Bolsa Chica. The agree- ment is for a period of twenty years with a twenty year option. City jurisdiction and control of the beach north of the pier will permit implementation of the city's revitalization efforts. In addition, the public's safety will be enhanced by the con- tinuity of lifeguard, maintenance, and law enforcement services throughout this highly used and active beachfront. The state has been very cooperative in effecting this transition, and we look fcrward to a continued harmonious relationship. Respe a- cy submitted, 7j"-�--- ries W. mpson, i-ity Administrator CWT/,%IB:PI 012 REQUE&.) FOR CITY COUNCI[,r,ACTION Date October 23, 1986 Submitted to: The Honorable Mayor and City Council Submitted by: Charles W. Thompson, City Admir_istrat PIP v�tU Prepared by: Melvin M. Bowman, Director, Community Service rl. CCIL Subject: OPERATING AGREEMENT FOR BOLSVCIIICA STAT II Consistent with Council Policy? [ �1 Yes [ I New Policy or Exception Statement of Issue, Recommendation, Analysis, Funding Source, Alternative Actions, Attachments: STATEMENT OF ISSUE The State Department of Parks and Recreation has prepared a new agreement for city operation of a portion of the Bolsa Chica State Beach. RECOMMENDATION Approve the new operating agreement with the State of California for operation of a portion of the Bolsa Chica State Beach to commence November 1, 1986. and authorize Mayor to execute same. ANALYSIS At its August 4, 1986 meeting, City Council approved the operating agreement with the State of California for city operation of that portion of the Bolsa Chica State Beach from the pier north to the westerly city limits. When the agreement went to the state for execution, a state representative felt that some items in the agreement should be more clearly defined, specifically, the can- cellation procedure if the city's development plans and specifications were not approved by the state, and the exact location of the parking lot and concession stand covered by the agreement. FUNDING SOURCE Hone. ALTERNATIVE ACTIONS 1. Negotiate with state to acquire beach through fee simple title. 2. Do not enter into a long term lease agreement with the state. ATTACHMENT Operating Agreement for Bolsa Chica State Beach 14MB:cs PIO 4/84 LJO CITY OF HUNTINGTON BEACH S, INTER -DEPARTMENT COMMUNICATION ILV Cyf��j MUNTIN41pN BEACH ��15�. d3.a•� ��i���o To Charles W. Thompson City Administrator Subject City Operation of Bolsa Chica State Beach Fro raxBowmCa(inDor, mmunity Services Date January 13, 1987 The operating agreement with the State Department of Parks and Recreation for a portion of the Bolsa Chica State Beach has been executed by the state. The city will be taking over operation of the beach from the pier north to the westerly city limits, approximately 2.3 miles, effective February 1, 1987. MNIB:cs cc: Department Heads f 6051 REQUES,-)FOR CITY COUNCIi�CTION ,6 ��% Date Lui 21. 1986 Submitted to: The Honorable Mayor and City Council APpRCI'£D Y Cary Submitted by: Charles W. Thompson, City Administra r CO , oiz Prepared by: Melvin M. Bowman, Director, Community Servic C' : zy Subject: OPERATING AGREEMENT WITH STATE OF CALIFO NiA FOR A crrr ot�kx CHICA STATE BEACH Consistent with Council Policy? [ Yes ( New Policy / w or Exception /`^ ,.le IVeL/ a 2 P Statement of Issue, Recommendation, Analysis, Funding Source, Alternative Actions, Attachments: �W STATEMENT OF ISSUE There is a need for the city to acquire control of the beachfront between the pier and the west city limits in order to further implement the goals and objec- tives of the downtown specific and main pier redevelopment plans. RECOMMENDATION Approve the agreement with the State of California for operation of Bolsa Chica State Park to commence October 1, 1986; authorize Mayor to execute same; and allocate $47,200 from the unappropriated fund balance for personnel and operating expenses for FY86/87. ANALYSIS The State Parks and Recreation Department has submitted a proposed agreement for the care, maintenance and operation of state beach property north of the municipal pier to the west city limits. The agreement is for a period of twenty years with a twenty year option. The city would be given control of this property for recreational and park purposes. The city would pay for the development, maintenance and operation of the area and receive all direct revenue therefrom. Any development, construction or improvements to this property would be subject to prior written approval of the state. Over the past several years, with the support of State Parks and Recreation and the assistance of the State Coastal Conservancy, the city has made great strides in the revitalization of this under developed and under utilized section of state beach. These improvements were part of the implementation efforts of the city's downtown specific and main pier redevelopment plans. City jurisdic- tion and control of the beach north of the pier are critical to the further implementation of the goals and objectives of these adopted plans. Because of the city's logistical capabilities, this operational change could be accomplished quickly and cost effectively. Annual personnel and operating expenses are estimated to be $165,000 (recurrent personnel - $133,000; operating $32,000), which would be offset by concession revenue, tax increments from the redevelopment agency and sales tax. A city operated beach between the pier and the west city limits would be bene- ficial to all parties. Most importantly, the safety of the public would be f NO 4/84 Page 15 - Council Minutes - 8/4/86 On motion by MacAllister, second Kelly, Council adopted Resolution No. 5688 by the following roll call vote: AYES: Kelly, MacAllister, Mandic, Bailey, Green, Thomas NOES: None ABSENT: Finley l APPROVED OPERATING AGREEMENT WITH STATE OF CALIFORNIA FOR BOLSA CHICA STATE BEACH The City Clerk presented a communication from the Community Services Director transmitting an Operating Agreement between the City and State of California for the beachf runt between the pier and the west city limits in order to fur- ther implement the goals and objectives of the Downtown Specific and Main Pier Redevelopment Plans. Exhibits A-C on file in the City Clerk's Office. Following discussion, a motion was made by MacAllister, seconded by Kelly, to approve and authorize execution of the agreement between the State and City for operation of Bolsa Ch1ca State Park to commence October 1, 1986 and approve an allocation of $47,200 from the unappropriated fund balance for per- sonnel end operating e3penses for FY 1986-87. The motion. carried by the fol-:; lowing roll call vote:� AYES: Kelly, MacAllister, Bailey, Green, Thomas NOES: Mandic :ABSENT: Finley ORDINANCE NO 2855 - CONTINUED TO 8/18/86 - OVERSIZED VEHICLE PARKING REGULA- TIONS - COUNCILMAN THOMAS TO ASSIST STAFF IN DRAFTING ALTERNATE ORDINANCE The City Clerk presented Ordinance No. 2855 for Council consideration - "AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH MUNI- CIPAL CODE BY AMENDING SECTION 10.44.060 "OVERSIZED VEHICLE PARKING REGULA- TIONS!" Discussion was held regarding state law as it pertains to mandating that over - wide or oversized vehicles parking on arterial highways during certain hours of the day. Councilman Thomas stated he would not vote on Ordinance No. 2855 because of a possible conflict of interest. On motion by MacAllister, second keen, Council_ continued consideration of Ordinance No. 2855 to August 18, 1986 to allow staff time to draft an alter- nate ordinance for Council to compare with this proposed ordinance. The motion carried by the following roll call vote: AYES: Kelly, Macs Mister, Mandic, Bailey, Green NOES: None NOT VOTING: Thomas ABSENT: Finley The foregoing instrument is a correct copy �f the original on file in this office. Attest AQUA, Cily Clerk artd Alte City Council of the ('itylurrting'oil Beach, cal. BY put` �4,J IF 1. .K,.Tnrcto�. CITY OF HUNTINGTON BEACH INTER -DEPARTMENT COMMUNICATION To L P►LES W. THOMjPSON City dministrator Subject APPROPmATION FOR CITY OPERATIONk OF BOLSA CHICA STATE PAF.K, FIS 86-34 From ROBERT J. FRANZ Deputy City Administrator Date JULY 2a, 1986 As requested under the authority of Resolution 4832, a Fiscal Impact Report has been prepared and submitted relative to the City's contemplated expense for maintaining and operating the Bolsa .Chita State P k comrr:encing/ 10/01/86. As anticipated by the requesting entity, an appropriation of $4,�,200 would be adequate for the remainder of the current fiscal year. An affirmative response by the City Coun ,would reduce the balance of the City's unaudited, unappropriated General Fund to $2,0 : 48. RJF:AR:skd 26t6j 110;'r - ! R ° R1 J. FR Deputy City A&ini: Administrative Servi for 3� 2 i J F 4� i 5 Paragraph 6i Z. 7' 2. 3. 5, 4. 5. 9; 6. 7• 10,1 a• 9. 11 , 10. 1 12 11. 12. 1 13. 13 14 15. 14 16. 17. 15 18. 16 . 18 - lc 20 21 22 23 24 25: 26 27 ccJr-PAPER f*.TL Or CA �I.Ow.t.• STATE OF CALIFORNIA DEPARTMENT OF PARKS AND RECREATION OPERATING AGREEMENT BOLSA CHICA STATE BEACH I h P E x Term . . . . . . . . • . . . _ . . . . . . . Use of Premises . . . . Concessions , . . . . . . w Fees . . . . , . . . . . . . Annual Reports . . . . . . Beach Erosion Control . . . , . . . . . Construction of Improvements . ... . . . Title Eminent Domain . . . Hold Harmless . . . . . . . . . . . . . 'Assignment . . . . . . . . . . . . . Notices . . . . . . . . . . . . . . . Termination . . . . . . . . . . . . . . Real Property Acquisition . . . . . . . Nondiscrimination . . . . . . . . . . . Limitation . . . . . . . . . . , . . . Paragraph Titles . . . . . . . . . . . . Contracts in Counterparts . . . . . . . Signatures ... . . . . . . . . . . . . . Exhibit (s) . . . . . . . . . . . . . Page 2 3 4 4 6 7 7 8 9 10 12 13 13 13 13 14 ILM J.r HUWnN(;TDM LEACH CITY OF HUNTINGTON BEACH INTER -DEPARTMENT COMMUNICATION To CHARLES W. THOMPSON City Administrator ' Subject APPROPRIATION FOR CITY OPERATIONS OF 130LSA CHICA STATE PARK, FIS 86-34 From ROBERT J. FRANZ Deputy City Administrator Date JULY 25, 1986 As requested under the authority of Resolution 4832, a Fiscal Impact Report has been prepared and submitted relative to the City's contemplated expense for maintaining and operating the Bolsa Chica State Park commencing 10/01/86. As anticipated by the requesting entity, an appropriation of $47,200 would be adequate for the remainder of the current fiscal year. An affirmative response by the City Council would reduce the balance of the City's unaudited, unappropriated General Fund to $2,002,748. Administrative Services Department RJF:AR:skd 2676j REQUEST FOR CITY COUNCIL ACTION July 21, 1986 OPERATING AGREEMENT WITH STATE OF CALIFORNIA FOR BOLSA CHICA STATE BEACH enhanced by the continuity of lifeguard, maintenance and law enforcement services throughout this densely populated and active beachfront in the "heart of the city." The year-round lifeguard tower on the pier provides the highest level of lifeguard observational service to this area. City beach and land- scaping services could easily be expanded to include this beach area. The city is presently maintaining the "bluff top landscaped area." The city police department would also be very effective in patroling the area, reducing criminal activity by increased surveillance (24-hour patrol, communications center, and helicopters.) Control of the area would also allow the city to propose improve- ments and future developments equally on both sides of the pier. This approach will be more economical and help the city establish a strong visitor attracting mode in the downtown. The aerial photo (Exhibit "A") and redevelopment map (Exhibit "B") illustrate how vital this area is to the future planning of the city and present a clear picture of the operational relationship between the beach areas north and south of the pier. City and state park employees are in support of this agreement. No displacement of permanent state employees would occur. The city would also be amenable to working with the state to absorb any recurrent positions that would be affected by this agreement. FUNDING SOURCE Unappropriated General Fund Balance ALTERNATIVE ACTIONS 1. Negotiate with state to acquire beach area through fee simple 2. Negotiate with state for a longer term operating agreement. 3. Advise state that the city is not interested in operating this ATTACHMENTS Financial Impact Statement Agreement Aerial photo ( Exhibit "A") Redevelopment map (Exhibit "B") NIMB:cs title. beach area. MA �.r City of Huntington Beach 2000 MAIN STREET CALIFORNIA 92648 January 9, 1987 OFFICE OF TUE CITY ADMINISTRATOR Mr. Tom S. Miller Superintendent Orange Coast District State Department of Parks and Recreation 18331 Enterprise Lane Huntington Beach, CA 92648 Dear Mr. !Miller: Re: Operating Agreement for Bolsa Chica State Beach It is the city's understanding that• the intent of the language contained in subject agreement Section 13, Termination, (lines 15, 16 and 17 of page 9) is that the city would be reimbursed for the cost of facilities placed, created or developed by the city on the premises with funds other than those realized through income derived from the operation of said property. This is the same concept as referred to in subject agreement Section 9, Eminent Domain, (lines 22, 23, 24 and 25 of page 6). Sincerel CHARLES W. THOMPSON City Administrator CWT:cs cc: Melvin M. Bowman, Director, Community Services F?ECEIVED JAN 1 21?97 Economic tl� ..tifvirs Dept: of P:+•k% R Re•reation Telephone (714) 536-5202 7. REQUESY FOR CITY COUNGIL ACTION 34 Date February 13, 1984 Submittedto: The Honorable Mayor and City Councilts 1 Submitted by: Charles W. Thompson, City Admini ra Prepared by: Melvin M. Bowman, Acting Director, Community Services Subject: CITY TAKEOVER OF HUNTINGTON AND BOLSA CHICA STATE BEACHES on a1XI Re LaIlLf—P rt nLm • Statement of Issue, Recommendation, Analysis, Funding Source, Alternative Actions, Attachments: STATEMENT OF ISSUE The State Department of Parks and Recreation has proposed that the city assume total operational responsibility for Huntington and Bolsa Chica State Beaches. RECOMMENDATION Direct City Administrator to negotiate with state for a final operating agree- ment for Huntington and Bolsa Chica State Beaches to become effective May 1, 1984, if feasible, and an alternate date of January 1, 1985. ANALYSIS The City Council at its 3anuary 3, 1984 meeting adopted Resolution No. 5345 authorizing staff to enter into negotiations with the state for the operation and management of state beaches within the city limits. The advantages of city operation and management of state beaches fall into three categories: Safety: City police department could be very effective in patrolling the beaches and reducing criminal activity by increased surveillance. (Twenty-four hour patrol, communication center and helicopters.) There are remote areas along Bolsa Chica State Beach where crime continues to be a problem. The state has limited enforcement capa- bility, no jail and must rely on county sheriff for backup. The city has an existing police force, jail and the necessary backup to provide effective enforcement. Water safety would also benefit from city management since the city has an established marine safety division which could be expanded to include managing the state beach. Maintenance: City beach maintenance division and parks, tree and landscaping division perform similar functions throughout the city. Local maintenance management means a closer span of control and elimination of costly duplication. Using the city's landscape expertise translates to better utilization of species adapted to the local climate and environment, and more cost effective landscape maintenance proce- dures. The existing organizational capabilities could be easily expanded to manage the additional maintenance tasks. PI0 4181 Request for City Council Action February 13, 1984 Subj: CITY TAKEOVER OF HUNTINGTON AND BOLSA CHICA STATE BEACHES Page Two Economics: Cost-cutting advantages are available by concise use of resources under a proven management system and elimination of costly overlap and duplication of service that exists with parallel systems. The city already has an effective, experienced management structure. Additional personnel can be accommodated without additional super- vision. This will result in a cost-effective operation. The city has. expertise in beach management, demonstrated by an extremely well -run and cost effective beach. This management structure can be expanded to include the state beaches which are presently operated at a deficit. It is the city's projection through cost saving management of reducing duplication of service that the state beaches will be self supporting. Early this month, city staff met with state representatives and the following items were agreed upon by both parties: - Operation of state beaches would be under an operating agreement, not a transfer of property or ownership; -- No state subsidy would be involved; however, the city would assume all facilities and improvements as constructed including Phase 11 development when completed; Pending lawsuits against the state which occurred before the effective date of the operating agreement would remain responsibility of state. Expenses include allocation of funds to cover costs of liability insurance; Concession agreements would be transferred to city with city receiving rental revenue: Operator on Bolsa Chica has 21 years remaining on 25 year agree- ment; operator on Huntington has four years left on a five year agreement. - City would not be responsible for moving expenses of state employees affected by takeover; - Thirty-foot right-of-way from Pacific Coast Highway to newly built block wall at Huntington State Beach will not be part of operating agreement; maintenance for that area will remain state's responsi- bility; , - Capital improvements by city on state beaches will require state approval; - City has prerogative of charging reasonable fees for parking, special events, camping, etc.; - State beach names must remain the same; - Terms of operating agreement will be negotiated for no less than 25 years and no more than 50; - City has right to establish operating hours and laws at its dis- cretion; - Two year cancellation clause by either party. Request for City Council Action February 13, 198L Subj: CITY TAKEOVER OF HUNTINGTON AND Page Three BOLSA CHICA STATE BEACHES We have estimated total expenditures for FY84/85 at $2,640,000 (Exhibit C). Included in this expenditure is $87,000 for capital outlay equipment amor- tized from three to twenty years (Exhibit D). We would be adding twenty- three permanent employees with the takeover, twelve in public safety and eleven in maintenance and parking facility operations. In- negotiations with the state, we advised we would consider transferring any state employ- ees who qualified for specific classifications. Estimated income for FY84/85 is $2,595.000. First year estimated deficit would be $45,000. The remaining four years of the five-year project, FY86 through FY89, show a slight increase each year for an overall pro- jected program of $139,000 income over expenses (Exhibit A). A revenue breakdown is shown in Exhibit B. FUNDING SOURCE General Fund ALTERNATIVE ACTIONS 1) Negotiate with state for operation of only one beach, rather than both; 21 Renegotiate to include state subsidy for operation of beaches, guaran- teeing a cost effective program; 3) Discontinue negotiations and advise state that city is not interested in operating state beaches at this time. ATTACHMENTS Exhibits A through D. MMB:cs HUNTINGTON AND BOLSA CHICA STATE BEACHES ESTIMATED EXPENSES AND REVENUES JULY 1, 1984 - JUNE 30, 1989 EXPENSES 1984-85 1985-86 1986-87 1987-88 1988-89 � TOTAL Personnel & w Operating $2,553,000 $2,681,000 $2,814,000 $2,955,000 $3,103,000 $14,106,000 Capital Outlay 87,000 87,000 89,000 91,000 93,000 447,000 TOTAL $2,640,000 $2,768,000 2,903,000 3,046,000 3,196,000 $14,553,000 INCOME 1984-85 1985-86 1986-87 1987-88 1988-89 TOTAL Parking & Camping $2,370,000 $2,546,000 $2,723,000 $2,824,000 $3,098,000 $13,561,000 Oil & Gas Tax 200,000 200,000 200,000 200,000 200,000 1,000,000 Concessions 25,000 25,000 26,000 27,000 28,000 131,000 TOTAL 2,595,000 2,771,000 2,949,000 3,051,000 3,326,000 14,692,000 Income Over Expenses ($45,000) $3,000 $46,000 $5,000 $130,000 $139,000 EXHIBIT "A" 0105E/q - 2/11'011F HUNTINGTON AND BOLSA CHICA STATE BEACHES REVENUE 8REAKD0Wh Fiscal Year 1984-85 Day Use $3 year round $ 2,068,000 Camping $12 - 105 days (300 spaces) 3022000 $ 2,370,000 1985-86 Day Use $4 summer weekends & holidays $ 816,000 Day Use $3 all other days 1,392,000 Camping $14 - 105 days (300 spaces) 338,000 $ 2,546,000 1986-87 Day Use. $4 summer (105 days) $ 1,646,000 Day Use $3 all other days (260 days) 739,000 Camping $14 - 105 days (300 spaces) 338,000 $ 2,723,000 1987-88 Day Use $4 summer (105 days) $ 1,716,000 Day Use $3 all other days (260 days) 766,000 Camping $14 - 105 days (300 spaces) _ _ 342,000 $ 2,824,000 1988-89 Day Use $5 summer weekends & holidays $ 960,000 Day Use $4 all other days 1,775,000 Camping $16 - 105 days (300 spaces) 363 000 $ 3,09.82000 TOTAL $13,5610000 EXHIBIT "B" 0105E/8 - 2/13/84F �2 HUnTINGTON AND BOLSA CHICA STATE BEACHES JULY 1, 1984 - JUNE 30, 1985 E X P E N S E S Personnel - Beach $1,205,000 Police 419,000 Public Works _ 80600 Sub -total Operating Beach $ 492,000 Police 7,000 Public Works 315,000 Liability Insurance 35,000 Sub -total *Capital- Outlay Beach $ 70,000 Police 17,000 Public Works N/A * Amortized/itemized list attached. Sub -total TOTAL $1,704,000 $ 849,000 EXHIBIT "C" 0105E/2 - 2/13/84P r HUNTINGTON AND BOLSA CHICA STATE BEACHES CAPITAL 0 U T L A Y AM0RTIIATI0N Unit Life Annual , Number Cost Total S an Cost COMIMUNITY SERVICES DEPARTMENT - BEACH DIVISION Beach Sanitizers 2 $41,000 S 82,000 20 5,465 Tractors 6 50,OCO 300,000 20 15,000 Beach Rakes 4 3,000 12,000 20 600 Tennant Sweeper 2 34,000 68,000 10 6,800 Sidekick Broom 1 9,500 9,500 10 950 Dump Trucks 3 24,000 72,000 8 9,000 Pickup Trucks 8 11,000 88,000 8 11,000 Four Wheel Drive Pickup 2 12,500 25,000 8 3,125 Two Channel Radios 13 1,500 19,500 10 1,950 Air Compressor 2 11,030 22,000 10 2,200 C-J 7 Jeeps 5 12,000 60,000 8 71,500 Jeep Cherokees 2 16,000 32,000 8 4,000 Speaker/Siren Units 7 400 2,800 10 280 Light Bars 7 700 4,900 10 490 Resuscitators 7 600 4,200 10 420 Spinal Injury Splints 7 250 1,750 15 115 Manikins 2 1,500 3,000 10 300 Ordinance Signs 12 200 2,400 5 480 Desks 4 475 1,900 20 95 Executive Chairs 4 275 11100 10 110 Typewriters 2 750 1,500 10 ISO Filing Cabinets 2 200 400 20 20 $813,950 $70,050 POLICE DEPARTMENT Four Wheel Drive 2 $15,000 $30,000 5 $6,000 Pack Set Radios 10 2,000 20,000 10 2,000 . ATC Units 12 29135 259600 3 89530 $75,600 $16,530 PUBLIC WORKS DEPARTMENT N. 0105E/3 - 2/10/84 EXHIBIT "D" REQbE FOR CITY COUNCIL ACTION Submitted by J.W. Palin1Department 0%aty Lynn Norby Planning & Local -Coastal Progran. Date Prepared January 4 , 1979 Backup Material Attached ❑X Yes ❑ No Subject guntin2ton State Beach Development Plan City Administrator's Comments Approve as recommended. � .'O� 71 ` /I I I , Statement of Issue: City Staff from various departments have reviewed the Development Plan (July, 1978) which the California Departnent of Parks & Recreation has proposed for the further development of Huntington State Beach. A consensus statement defining suggestions by the City for improving the Plan has been sent directly to that State Agency. Previous efforts to have City preferences and input considered by the State have been frustrated and largely ignored. The aim is to have the City input included in a comprehensive beach plan. Recommendation: That Council adopt the attached resolution supporting Staff efforts to effect coordinative planning for the State Beach facilities within the jurisdiction of the City and establishing the LCP-CAC as development monitor. Analysis: Representatives from the Department of Public Works, Planning, Harbors and Beach, Recreation and Parks, Fire, Police and Administration heard a presentation on August 10, 1978 by the California Department of Parks and Recreation - Development Division. The 16602 Development Plan for Huntington State Beach, dated July, 1978, was explained and discussed. Issues concerning capacities of beach and parking lots, facilities, parking, PCH, bike trail, transportation, pedestrian safety, recreational vehicles, signing, maintenance facilities and Least Tern habitat were discussed. Several coastal concerns were also expressed as input to the plan. P1Q V78 MA ' RCA-LCP January 5, 1979 Page 2 Information about the State Beach plans had been requested by the Local Coastal Program Staff early in 1978 in order to include necessary Citv interfaces in the Coastal Plan. This portion of the coastal planning had to be deferred until the State Plan was developed. The Local Coastal Program has a task of coordinating plans for projects within the coastal zone consistent with Coastal Act policies. Subsequent to the August 10 presentation, inter -department meetings were conducted to determine the City response to the plan features. Iterative drafts produced the points of discussion in the November 6, 1978 letter to Mr. Russell Cahill, Director of the California Department of Parks and Recreation. The input of the City Staff to -a state agency would be greatly enhanced by the Resolution of support of the'C:ity Council. Continued efforts will no doubt be necessary to effect a final acceptable plan for this and also Bolsa Chica State Beach. The support of the Council behind these efforts will facilitate the input to the State of the City's design preferences. Also the Local Coastal Program will be aided in its progress toward a coastal plan. The appointment of a monitor for this planning effort will serve to delegate the responsibility for keeping track of the continuing process of plan development. An associated responsibility will be the review of the EIR for this project. The Local Coastal Program - Citizen Advisory Committee is a logical group to assume this duty and it - i-s tAllinq to- Qo so.," Funding_Source: No funds are necessary. Alternative Actions: 1) Support the City developing and/or operating the beach as a contractor to the State. Respectfully submitted, 0 James W. Palin Acting Plannina Director JWP/MLN/dc Attachment: Draft Resolution x y 0 I s November 6, 1978 City of Huntington Beach P.O. BOX 190 CALIFORNIA 92648 OFFICE 01: THE CITY ADtiiINISTRATOR Mr. Russell Cahill, Director California Department of Parks & Recreation Sacramento, CA. Re: Huntington State Beach Development Plan --No. 16602 - July, 1978 Dear Mr. Cahill: Through this communication, I am confirming the oral communications made as fecaiack from the City Staff to your Development Division on the Huntington Beach Development Plan referenced above. We appreciate your Iepartment's briefing of City Staff on the Plan on August 10 and receipt of informal conerents on November 6. The City particularly approves of the number of entrances provided for in this plan. We feel these are necessary to provide the public accessibility to the beach resource, to relieve the congestion at Beach Boulevard, and to allow greater use of the entire beach area. Entrances at these four locations have been requested previously by the City, and we appreciate the provision in the plan for two nei•i entrances immediately and the third entrance and upgrade of Beach Boulevard in the Phase II. Although the number and location of the beach entrances meet with the City's approval, the design should he improved to provide for better traffic and Pedestrian flows. The Beach Boulevard entrance particularly needs coordination to effect improved circulation in conjunction with the City Beach entrance at that same location. A concept drawing depicting certain improvements recomm- ended by the City's engineers is enclosed with this letter. There are several issues concerning the State Beach development which the City, through this letter, is requesting that you address. Ile final Plan which the State adopts Should include resolution of these issues. In the past fifteen years, the City has requested that its concerns be considered for the State Beaches in our jurisdiction. Many of these concerns are reiterated again here. Presently the City is preparing its Local Coastal Plan (LCV) which is mandated to consider all activity occurring or likely to occur in its coastal zone. Coordinating the activities of the various agencies and individuals who are Telepbone (714) 536-5201 ' hovemller G, 1978 Page Z. involved in the coastal area to assure the overall resulting; effect is in compliance with Coastal Act Policies is an I.CP task. The items important for local coastal planning are included in this listing. 1. Mvc the comfort stations Lack into the sand area. They will be nearer the beach i6ers there, will impede the traffic flow in the parking; lot less, and will provide space for additional parking; in the lot. Use the released areas for additional parking and for .improved entrance arrangements. A better balance then will be provided between beach capacity and parking;. 2. Provide turn -around area at the entrances large enough for buses. 'lbese would be fined for auto drop-offs and bus route connections. '!bey would relieve Pacific Coast highway of additional traffic flows becawse the traffic may return up the arterial reducing impact to Pacific Coast Highway. The southhound highway drop-off (turnouts) as they arc depicted in the plan are placed in a position where pedestrirns'may be endangered. 'ibis condition at least could be corrected by moving; these turnouts farther from the corner and across from the parking lot rattier than the traffic squeeze behind the concession stand. 3. he understand this plan to be based on c 300-foot right-of-way for Pacific Coast Hig;hwnay. This is not compatible with the present plans to increase the carriage capacity of Pal by a widening project requiring a 120-foot right-of-way for six lanes of traffic and two parking; lanes.* 111e dedication of some ID to 20 feet of the old Pacific Electric right-of-way for this state hipliway project is requested. Ile BeacE Plan needs to consider mid be compatible with the highway grading level planned. Of special concern is that the seaward -most lane of PCII be available for uttered parking to serve the short -tens or transient visitors. The only acceptable alternative would be a metered area within the beach parking area which would provde this same service 24 hours per day. 4. Include a metered parking; area in the Huntington State Beach (and also Bolsa Mica State Park) to allow for early users. Huntington Beach has found these metered lots to be very successful on our beach. In lieu of the metered lots, the operation schedule of the beach could be modified to Provide access for early users. ibesc users arc fishermen, surfers, and beach walkers who prefer to use the beach at dawn and thereafter. If the parking lots are closed and locked, these early users will be excluded. It is proposed that the parking; lots be unlocked at dawn and entry to the beach be unippeded. If no fees were required until 9:00 a.m., for example, the parking; lot attendants mould not be required at the early Hour. The California Coastal Act of 1976 requires increased public access. Tlie present Planned development of the beach could actually decrease existing; access espccially for this specific user group, without a provision for early - hour usage. *Note: Huntington Beach comments to the l:llt of the previous plan indicated at.that time (Sept. 7, 1977) that 120' right-of-way would be minimally required. 0 .k.l aa. 1.., if.. � .4. � iv•. . ' h'omplu r G, l978 ]'age 3. I S. Provision needs to be made at some of the entrances for charter buses to -enter the parking areas. 1. G. A statement should be included in the hilt that Least 'foils, although they nest in the Protected sand area, feed in the S111W Ana River acid on the t.et],ands to the north across Pacific Coast Highway. (ItcvclopRi6ilt on that property coulT�"tc� t this endangered species.) 11ttts the alternative of acquisition of that property should be considered. 7. Refore the construction begins, review the architectural layout of all buildings and review the planting schctlulcs and landscape flans with City staff to insure compatibility with local design and landscaping standards and to secure advice on species compatible with the local heath ecology. 'll,e landscaping should be planned to inprove the visual effects of the parking areas as seen from Pacific Coast Ilighi.ay. Tic City's experience 11.-15 shorn that additional attention to prober planting methods and Soil. improvement will be cost effective and prevent high plant loss. 8. Ilse no fencing along; Pacific Const Highway within the Cicy limits except that t,•ltich is in the fonn of railings to protect t}te immic from extruic changes in elevation. A sense of frecdont for the people who use the beach will he provided. I-encing within the park used to direct and control rnove- ment of people shade] be of a material that is esthetically pleasing, strong, and of lots maintenance, such as the ]sigh quality anodized altanintun fencing; that the City has used. It doesn't burn and, therefore, clues not end up in the firo rings. It does not require paint atul, therefore, there is no imintenaticc. There is an initial high cost of installation but considering, the lung;-tct-nt use of the facility it is very cost effective. 9. Provide drainage of the narking; areas graded toward the ocean or a storm drain systcm. 'Iltis will prevent the flooding over of Pacific coast highway during heavy ninoff periods. 10. Provide in yottr plan ror connections of the beach bile trail with the Santa Arta River Trail and across the bridge toward Nciport Beach. 'ilic City prefers a pcdestrian/bUc overpass. to the inland side of 1)(11. An underpass large c11001',11 for hicylists mitild be subject to tidaL flow~ which would imkc it unusable Ivirt or each day. Since the bridge over the Santa Ana Rim- is suh jcct to removal thiring t4rlc•10)1g of the PilCific Co:lst llighs.ay, spoci flint; the cx:zc:t imple„ontation of tho connoction may be premiturc. Ilowcver, a umppcd locational designation for future develc anent would be appropriate. 11. Plan and provide liar a variable message sii;tt systC»t which will ittl'urnl tiltpublic of access conditions at each of the entrances, whr.ther there is parking; available, etc. It is InWorred that this system include exit directing signs on the San Dicgo Freeway. I teevcr, signing; on Prcwkhurst, AUgnnl i,t, Ncwl:vtcl, '111d Dt"111 far crtou";h from the approaches to tho beach to permit the driver to change direction to use mlother entrance or to turn arcund would he minimally sufficient. An alternativc is a radio inforimtion service similar to an aiil)ort approach station. lto>,cHicr 0, 1978 12. Rased ulx)n a State-wide g;raarth in demand for recce:at ion:al vehicle (fitI overnight stopping shots, provide hooka;)s for RV's and a chump station. With effectively no stopping; place for IN's between Dolieny State I;each and Ventura County,' a real need for this public service is evident. There is no evidence that this demand will lessen in the near future. 1% actual design could show the vans and smaller RV's nearest the beach next to tables and perhaps shelters which are provided. The areas to the center of tho lot could be diagonally striped to accommodate large W's, charter buses, and trailer vehicles. An alternative to the provision in this urban beach of the RV services would be to increase the ol►cration of the more rcanotc Bolsa Cpica State Beach to the north to include additional RV facilities. These RV facilities should be available not just in off-season, as there is a regional need for additional campsites during the stmviler season.* As a third alternative, both beaches could provide this service. 13. The plan depicts no fire rings. A wininntm.of 15 new fire rings should he included. To serve the evening; rascrs, fire rings at least dcsig;nate fire ;areas and discourage open, uncontaained fires. Grouping, these fire rinks into one or two arras will aid in maintenance. Ibily cleanout of the fire rings will be necessary to maintain the duality of the surrounding; sand areas. 14. Picnic tables (not just snack tables at concessions) should be provided to serve short -tern visitors, travelers, etc:. These tables should be soon hat separated and identifiable from the highway. A section of metered parking; spaces within the lot would serve the user~ of those tables. Large g;rouhs of tables, ati at ltolsaa Chita leach, have been fuurad to be U1111SCd because of their lacy of separation for private use and easy access from parking. 15. 'Ibe plan should discuss ► by inland parking; and bus tram~ to the beach arc not to be utilized. 16. 'Ilai s is a request that the .state reconsider the City of Huntington Beach as a contract operator for the State beaches in the corporate limits of Ilrintington Veatch. Ra i ntcnancc u•oul d be i ncl doled as a City reslxans ib i l i ty. Ilae City has a long; history and knowled);e of beach operation ;uul rtainteli.urce. This arrangement would certainly relieve the State of its many problcttts-of maintaining: two widely separated beaches. It would also provide for a nacre cost-effective operation. 17. ►1n expanded FIR is needed to provide inforrution necessary to the cvalttat ion of this project; .also a cost analysis which indicates the annual cost of operation anrtd raaaintenance ;as proposed. •llnc City of llunting;ton Beach h,as experience with developing and operating, beaches in a cost effective manner and can provide :advice on design Niteria based on nmintcn,ance and onerationaal cost. �"i7j'stinp c•ampg;rounds ;arc filled to capacity over 80 nig;hts coach suaamner, fully reserved mrantlas in advance, and there is a lack of additiotal Park System land for new c;uaapg;rounds." kept. of Parks F. Recreation. ,State Parks li kec:reation • Novenbcr G, 1978 'Page S. 71ie Plan needs to discuss the facilitation of access for the 20,000 more People for whom there is capacity, even if in a later phase, etc. ll phased developneit plan would present such provisions. 18. '1•lris plan needs to be coordinated in its time phasing, design location and I;raclirlg level with other plans within the City of Huntington Beach. In particular, the Orange County Sanitation District pl.ais to place trunk scwcr lines along; the ocean side of Pacific Coast Highway Will require inricdintc coordination. The Orange County Flood Control District proposals for modifications at the mouth of the Santa Ma River adjacent to the Huntington State Beach and Tern Sanctuary may have significant effects which will need to be considered in the Beach Development Plan. 'laic Pacific Coast Highway widening project though originally proposed and presently supported by the City may be led by the California Dcpart1aent of 'Transportation which should be consulted concerning rights -of -way, etc. A rcpcat of the right-of-way problem at the Bolsa Chica State Beach, where only 100' of right-of-way Was left for the Pacific Coast Highway, should he avoided. In that arca, now to Widen the Pacific Coast Highway, area on the inland side of the Highway within the Bolsa Chica natural habitat area may have to be disturbed. With possible waland areas innncdiately inland of Pacific Coast Highway across from the Huntington State Beach the potential for an identical difficulty with rights- of -way exists. Concerning this undeveloped property directly opposite the Beach, coordination with State Department of Fish and Gaine about State oumer- ship potentials, and designation of this area within the Resource Protection zone of the State Beach is recommended. Finally, we appreciate the opportunity for our Staff to have this input in the planning process for the Huntington State leach. We would welcome the opportunity to pnrticipate in planning decisions for the further development of the Bolsa Chica State Beach as well. Sincerely, FIoyd . Itclsi to City dininistrator FGHANIl.h'/dc DISTRII3 MON LIST hopartrimt of. Farks & Recreaticn Mr. Russell Cahill, Director District 15 Calif. Dept. of Parks & Ibc. Ill Patera I-ane 1416 Ninth Street roleta, M. 93017 Sacramento, CA. 95011 Attn: E.D. 1•Tilson Per artrrr_nt of Parks & Rr creation Senator Paul tenter 1416 Ninth Street 37th District Sacramento, CA. 9S811 1600 N. Broadway Attn: Daniel C',orfaim Suite 550 Santa Ana, CA. 92706 DeFartment of Parks & Recreation Governor i nand Pawn, Jr. 1416 Plinth Street State Capitol Sacaranrnto► CA. 95811 Sacramento, CA. 95814 Attn: Cla&, rtuldaVin r�n7rcmmcnt<-�1 Mnagement Agency Tom rliller P.U. nox 404R Calif. Parks & Pv=cation Sarita Ana, C1. 92702 18090 Reach Blvd. f3 Att-n: Ridiarcl Muisell Ifuntingban Beach, CA. 92648 n. Smith Smith Coast Req. Orxrmission r3ox 145n Wnq Beach, CA. il. Trartwic{, PlannirrcT Director Oriuyja County Tr=sit District 41222 Acncia Parkway Ga.:-den Cove, CA. Assm blyman Mangers 73rd District Huntington Beach, CA. 92648 1 Miry Lynn lbrby Huntington Beach Planning Dept;. P. Pcid, 1'mject Planning lbrm Worthy, Director Orange County Sanitation Dist. Tiuntirn7ton Peach Recreation 10344 Ellis Avenue and Parks Departs tnt Eb'antain Valley, CA. Damrtrpnt of Parks & R--creation Ialph InWa 1416 Ninth Street Traffic Division Su z to 1405 I1=tingtnn Beach Public Works !',a,--ra:rPntn, CA. 95814 - Departrrent Attn: Tirwe Kennedy Vince Pborhouse, Director Iluntington Beach Harbors and Deaches Deparbamt Jim Palin, Acting Director Plandinq Depart7nmt s- fM 9-" I i,�i2L, , "at ft. It SUM WMAJ Cant -4P- CADWMCT Cant,& col of IL -W&4g. T 7L If REVISIONS REFERENCES' PACip'oc C 40.4 r T I p•i� err p/I� / ,� _ Lam+ _s:.+♦ .._-. ♦i i ! •i??.^1 °' u L1 ". -t�. _��! � ,t = t✓J _ �.. fir.,.. �� i"'' — �f \�• � 1 �!'�..Y: ri► ..ram .r.i+. . ` , 1rFt .*mot' •:,... \.y �N f' VMS 1. \\\ ./ AW _ _ • M.R�rr(MOF.i T nArc / N TE.0 S EC T/GN L #f yc Po4C/i/G Ce.4.4T Hwy- 6aAGy BL vAo Ta _ -��7 ^`fw.Ty[Yt ry f.,.r Ana.—T .tT( CITY OF HU NTI NGTON BEACH [IrPARTMENT OF Pt.eoC WDRI(S '5!t sTAIE CALIFORNIA1HE RESOURCES AGENCY E�•MUNI) G. DROWN 1R. Gn.rrnor — DEPARTMENT OF PARKS AND RECREATION 429.6-4534 Southern Region Headquarters CA *:=•r.: 2505 Congress Street i)�)� + 3 Saa Diego, California 92110 !a 5-ro February 26, 1981 Mr. :like Adams Assistant Planner Department of Development Services City of Iluntington Beach P. 0. Box 190 Huntington Beach, California 92648 Dear Mr. Adams: Please assure the Ilutitington Beach City Council that the Statc of California, Department of Parks -and Recreation, Will endeavor to maintain the public access facilities constructed on Bolsa Crica State Beach between 9t:i Avenue and Coldenwest. We look forward to bein- involved in the 2csign review and final approval of construction plan:;. It is our intent to operate .a.id maintain the facilitics to the: highest level possible within our funded capabilities. Sincerely, erbert L. 11einze, Regionll,ir cEor Southern Region REQUES-IP-FOR CITY COUNCIL X.-C-ii'M Submitted by James W. Palin Department Development Service 36 �A Date Prepared December 230 19 80 Backup Material Attached Subject HUNTINGTON STATE BEACH DEVELMIENT PLAN [x Yes [:kNo City Administrator's Comments " -� q A; 5APPROVED 81' CITY COUNCILI ��0 Approve as Recommende S I9 • CITY Statement of Issue, Recommendation, Analysis, Funding Source, Alternative Actions: STATEMENT OF ISSUE: The State Department of Parks and Recreation's Redevelopment Plans for _-Huntington State Beach will be submitted to the California Coastal Commission on January 7, 1981. The Department of Parks and Recreation is requesting that the City sign an "approval in concept" form, which can be submitted to the Coastal Commission. RECOMMENDATION: Approve the adoption of a resolution for the redevelopment of Huntington State Beach (attachment I) and authorize the Department of Development Services Director to sign the "approval in concept" form as conditioned (Attachment II). .ANALYSIS: Since the early 19601s, the State Department of Parks and Recreation has been planning for improvements to Huntington State Beach. In 1974, the Department began work on plans for the redevelopment of Huntington State Beach. The department reviewed the plan with the City and citizens' groups and received a favorable response. The 1975-76 State budget appropriated $1,250,000 for the first phase of development; however, these funds were later used to purchase the old Pacific Electric Right -of -Way adjacent to the park. Ile ►10 3178 i i Page Two The additional land acquisition required the Department to revise the development plan. The revised plan was presented to the City in July, 1975. The City raised numerous objections and Council opposed the plan as presented. City and State staff worked together in the development of a new plan,which was presented to the State Parks and Recreation Commission in January, 1976. The State Commission felt that the additional parking would pave too much of the sand area and encourage more cars rather than public transportation. A compromise plan was prepared in August 1978. After careful review by the City, 18 points of contention were expressed in a letter to the State, dated November 5, 1978. On January 17, 1979, the State responded to these comments agreeing with many. however, identifying a number which need further discussion and a few that they could not agree to. On December 4, 1980 the State met with City staff to review the 18 point letter. The meeting concluded with the City and State in basic agreement on the issues (Attachment III meeting minutes). Two additional concerns were raised at this meeting. 1. The State should be responsible for the cost of curb, gutters, sidewalks, and street lighting adjacent to the park boundaries. 2. The design, materials and maintenance of the State Beach landscaping should be compatible with the City beach; and the City will have an opportunity to review the.fin31_design. These items should be added as conditions to the "approval in concept" form required by the Coastal Commission. The revised plan has been approved by the State Parks and Recreation Commission with $500,000 budgeted for the Development of working drawings. The State will request $7,000,000 in development funds from the legislature early in 1981. Respectfully submitted, L lames W. Palin, Director Department of Development Services ,TWP : MA: g C J• �! CITY OF HUNTINGTON BEACH Ts- COUNCIL - ADMINISTRATOR COMMUNICATION CA-46 "Lft INGSON 314CM To Honorable Mayor and From City Administrator City Council Members Subject HUNTINGTON STATE BEACH Date July 7, 1975 Over the past year the State Department of Parks and Recreation has been preparing a development plan for Huntington State Beach. Numerous meetings have been held with the State and City Staff as well as the State Beach Design Committee which was appointed in December 1973. The City has been commenting on the plan during each stage of its development. However, only minimal considerations have been given to City recommendations. Input has ranged from general c", ents on the State's approach to planning the facility to specific details of the proposed project. In February,'1975 the State Parks and Recreation Commission held a public hearing in Santa Barbara, California on the plan. At that meeting City Staff requested a continuance of the hearing to the July 11, 1975 meeting of the Commission. During the time since that meeting City Staff and the State Beach Design Committee have met with State Park and Recreation Department staff members and reiterated previous concerns. These meetings resulted in a revised draft which was sent to us for comment in May, 1975. Sub- sequently, on June 26, 1975, a revised document for the general develop- ment plan was released by the State. This revised document is now scheduled for public hearing on July 11, 1975 in the Huntington Beach City Council Chambers. After a year of work with the State Park and Recreation Department Staff the plan is still not acceptable to City Staff. The plan deficiencies can be grouped in two categories: the general philosophy of the plan and specific design proposals. The general philosophy of the plan document is unacceptable to City Staff as it lacks an overall plan for Huntington State Beach as it will ultimately be with the recommended land acquisitions. Also it is questionable as to whether there is a justifiable cost -benefit ratio for the proposed improvements which increase accessibility by only 100 cars. The document assumes and plans for a much lesser intensity of use than the City Beach realizes on peak periods and thus does not provide for the increasing demand for beaches in Southern California. Lastly, the plan philosophy does not provide for design compatibility of Huntington State Beach with our City Beach. The plan is also unacceptable in some of its design proposals. It does not indicate the design treatment to be given to comfort stations, lifeguard control tower, and concession buildings. Rather than some Page 2 CA-46 standard plan, buildings that are compatible with the structures on the City Beach would be preferable. The plan does not provide for acceptable traffic circulation, particularly the nebulous statement regarding the possibility of a main entrance at Magnolia Street. While the proposed landscaping plan is imaginative, City Staff feels that it is impractical with our climatic conditions. The document provides for the removal of the chain link fence but does not specify what will replace it. Previous proposals were for a modified low fence which City Staff opposed. Finally,the plan makes no provisions for improvements to Pacific Coast Highway which are necessary for aesthetic and safety reasons. For these -reasons the Departments of Planning, Public Works, and Harbors and Beaches recommend that the City Council go on record opposing adoption of the proposed plan and that City Staff be authorized to present this position to the State Parks and Recreation Commission on July 11, 1975: Furthermore, it is recommended that the City request the State Department of Parks and Recreation to work with the City Staff in developing a phased comprehensive development plan for the entire shoreline of Huntington Beach which includes the three State Beaches and the City Beach. It is felt that in this way these beaches can be developed to their optimum potential and improve the aesthetic quality of the Huntington Beach shoreline. It must be pointed out that taking this position may have the dis- advantage of holding up improvements on the State Beach from Fiscal Year 76-77 to Fiscal Year 77-78. City Staff, however, feels that obtaining a design plan that provides for a beach that is harmonious and compatible with Huntington Beach is worth a possible year's delay. Respectfully ritt d, A David D. Rowlands City Administrator