HomeMy WebLinkAbout2022 CON Living History Farm Preserve - Maintaince of Stein FarmMAINTENANCE AND OPERATING AGREEMENT
BY AND BETWEEN
THE CITY OF NATIONAL CITY
AND
NATIONAL CITY LIVING HISTORY FARM PRESERVE
This Maintenance and Operating Agreement (the "Agreement") is entered into as of
March 1, 2022 by and between the CITY OF NATIONAL CITY, a municipal corporation
(the "CITY"), and National City Living History Farm Preserve, a California non-profit
corporation ("NCLHFP").
RECITALS
A. WHEREAS, EAS, the CITY owns the improved real property commonly known as
"Stein Farm," located at 1808 "F" Avenue, National l City, California 91950 (the
"Property"). The improvements on the Property are referred to as the "Stein Farm
House" and the "Stein Farm Barn." The property shall also include the restrooms
at . 1810 "F" Avenue and the Victorian House relocated onto the property from
1904 "F" Avenue. A legal description of the Property is attached hereto as Exhibit
"A" and incorporated herein by reference; and
WHEREAS, rti l 1-1-, S i 7 of tile -California rr empowers the City
to provide for the health and welfare of its residents; and
C. WHEREAS, the CITY desires to enter into a Maintenance & Operating
Agreement due to the special services to be performed under this Agreement for
the CITY and to facilitate a more collaborative relationship between the CITY and
the operatorofth Property; and
D. WHEREAS, one of the goals of the C1TY's General Plan is to develop
educational experiences capable of promoting the cultural heritage of the CITY
and lifting the spirits of residents and visitors to National City; and
E. WHEREAS, the CITY desires the services of an organization to maintain and
operate the Property in a manner beneficial to the public; and
F. WHEREAS, the CITY has determined thatNCLHFP is a qualified, non-profit
corporation experienced in running a living history farm; and
G. WHEREAS, the CITY wishes to have NCLHFP continue to maintain and operate
the Property as an educational farm and museum for the community's benefit,
and NCLHFP is willing to operate and maintain the property for such a purpose.
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NOW, THEREFORE, I E, in consideration of the foregoing facts, and in consideration of the
promises and covenants hereinafter set forth, the parties agree as follows:
ARTICLE CLE 1
TERM OF AGREEMENT
1.1 Term. The term of this Agreement shall be sixty months, commencing
March 1, 2022 (the "Commencement Date") and expiring on February 28, 2027.
1.2 Option to Extend Term. If NCLHFP is not in default of any provision of this
Agreement upon the expiration of the Term described in Article 1.11 the City Manager or
designee may extend the term for up to three 3 additional sixty month periods.
The initial sixty -month term, and any extension pursuant to this Article 1.2 shall
collectively be referred to hereafter as the "Term.'
ARTICLE 2
THE PROPERTY
2.1 . License for Use of Property. The CITY grants NCLHFP a revocable license to
enter and operate the Property for the purpose of operating a public educational farm
and museum. for the benefit of National City residents and visitors. NCLAFP's revocable
license is subject to the covenants and requirements of this Agreement as of the
Commencement Date.
2.2 Ownership of Personal Property and 1t1JI[O.em.n,t... The rights.and obligations
of the parties regarding the ownership of personal property and improvements on the
Property shall be s follows:
2.2.1 Ownership of Personal Property. All improvements existing on the Property
(Improvements), together with all fixtures permanently attached to the Property
(Fixtures), as of the Commencement Date shall remain the property of the CITY
during the Term. NCLHFP• shall not remove any Improvements or Fixtures from
the Property and shall also not waste, destroy, or modify any improvements r
Fixtures on the Property, except as permitted by this Agreement. Items listed in'
Attachment A ofthis Agreement—Personal'Property of NCLHFPshall not be
considered Improvements or Fixtures and shall remain the personal property of
NCLHFP. NCLHFP may amend Attachment A in writing which must then b.e
approved by the City Manager. Written approval or denial of amendments to
Attachment A will be presented within 30 days of receipt of a written request for
amendment of Attachment A.
2.2.2 Ownership of Improvements and Equipment. All improvements made to
the property by the NCLHFP shall become the property of the CITY.
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ARTICLE 3
PERMITTED USE
3.1 Purpose. The parties intend that the operation of the Property by NCLHFP will
provide an opportunity for the community to experience life on a turn -of -the -century farm
and provide historical and educational experiences for the children and citizens of
National City.
3.2 operations Plan. NCLHFP will submit a written operations plan to the CITY that
addresses all aspects of maintaining and operating the Property. This written operations
plan must include, but will not be limited to, descriptions of the following:
1 Hours of operation;
2) Proposed activities or facilities available to the public;
3) The number of employees, volunteers, or long term caretakers on staff;
4Visitor safety and property security;
5) Capital improvements;
6) Property, building, equipment and preservation of grounds;
7) Sources of funding, fundraising plan;
8 Community outreach;
9 Parking;
10) Lighting;
11) Handicap accommodations;
12) Facility rentals to third parties.
3.3 Hours of Operation. NCLHFP shall open the Property to the general public on
Saturdays from 10 am. to 2 p.m. and also for public special events scheduled in
advance of the event. NCLHFP shall post, in a location visible from either East 1 th
Street or "F" Avenue, the Property's hours of operation.
3.3.1 Barn Activities Prohibited. NCLHFP, and any third party who uses the
Property, shall prohibit members of the public from entering the barn orfror coming
within 25 feet of the barn. The CITY may assist the NCLHFP in the securing of grants
and/or other funding for the restoration of the barn.
3.4 Service Fees. NCLHFP shall not provide programs and services for profit.
However, NCLHFP may charge fees for classes and programs offered to school groups
and the community to offset costs incurred by NCLHFP in its maintenance and
operation of the Property. Any fees charged under this Article 3.4 must be approved by
the City Manager or designee. The public shall pay no fee to gain access to the
Property during those hours of operation listed in this Article 3.
3.5 Reporting b_y lCL -IFP. NCLHFP shall provide reports to the CITY every six
months that identify the total number of: National City residents who participated in
NCLHFF events; (b) participants and volunteers who participated in NCLHFP events;
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(c) events and programs coordinated by NCLHFP; (d) capital projects completed; (e)
operating and maintenance plans; and (f) any other relevant statistics. The information
required to appear in these reports by this Article 3.5 will be referred to as "Statistical
Information." Each report will include all previous years' worth of statistical Information,
if any. NCLHFP will deliver an annual report to the CITY at a City Council meeting and
at a mutually agreeable date and time.
3.6 Annual Budget., NCLHFP shall provide the CITY with a proposed budget for
NCLHFP's estimated maintenance and operating expenses for the Property by January
1st of each year during the Term. NCLHFP shall provide to the CITY an audited
financial report and tax returns, forty-five 4 days following December ber 3l t of each
year during the Term.
3.7 Reimbursable Maintenance and Upkeep. The City agrees to reimburse NCLHFP
an annual amount not to exceed $5,000 for expenses related to the maintenance and
upkeep of the Property. NCLHFP shall make a written request for reimbursement to the
City Manager or their designee. This written request must be supported by receipts for
purchases or maintenance and upkeep services rendered on the Property. Requests for
reimbursement be approved or denied within 7 business days. Once approved,
payment will be issued within 45 days of approval.
3.8 Volunteer Management. NCLHFP may utilize volunteers to operate the Property,
and in providing the Projects required by this Agreement. NCLHFP is responsible for
recruiting, training and managing all volunteers on the Property. Volunteers are
considered the responsibility of.NCLHFP for the purpose of workers compensation or
general liability. NCLHFP is responsible for ensuring that volunteers are apprised of the
obligations and requirements contained within this Agreement.
3.9 Alcohol Use. NCLHFP, or third parties with permission from NCLHFP, may hold
events on the Property where alcoholic beverages are served. Alcoholic beverages
shall be served subject to the following requirements:
• Alcohol will not be served during youth programming under any circumstances.
• Alcoholwill be served in limited areas of the Property, designated by NCLHFP in
advance, and approved by the City Manager or designee.
• Alcoholic beverages must be served by a licensed bartender, with a copy of the
bartender's license on the Property.
• The event host must obtain approval from the state Department of Alcoholic
Beverage Control to serve alcohol.
• The event host is responsible for all guest behavior during and following the
service of alcohol.
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• "Last call" for service of alcohol shall be at least thirty (30) minutes prior to the
scheduled end of the event.
When third parties (with permission from NCLHFP) serve alcoholic beverages, the
following additional requirements shall apply:
• The party shall provide the CITY proof of liability insurance acceptable to the
City's Risk Manager.
• The third party shall provide two licensed security guards for every 100 guests
registered to attend the event.
• NCLHFP shall reserve the authority to immediately terminate an event if
NCLFIFP determines, in its sole discretion, the third party has not complied with
any requirement of this Article 3.8.
• NCLHFP shall provide the CITY a copy of their third party rental agreement
template for approval.
3.10 Consideration. f CLFIFP's payment of $1.00 to the CITY, in addition to its
—performance u...d. r th.e-rernaind.er...of-this Agreement_ .se.rveas the.. sole
consideration due the CITY for f CLFIFP's license to use and operate the Property.
3 11 Compliance with Laws.. NCLHFP, at its sole expense, shall procure, maintain
and hold available for the CITY's inspection any governmental license or permit
required for the proper and lawful conduct of NCLHFP's operation of the Property.
NCLHFP shall not use the Property for any use or purpose in violation of the laws of the
United States of America, or the laws, ordihances, regulations, orders or requirements
of the State of California, the County of San Diego, the CITY, or of other lawful
authorities. NCLHFP shall, at its sole expense, comply with all applicable statutes, laws,
ordinances, rules, regulations, orders, covenants and restrictions of record, -and
requirements in effect during the Term (Laws .or orders), regulating the use by NCLHFP
of the Property.
3.11.1 Any programs, activities, or events that are not provided for in this
Agreement may, in the CITY's sole discretion, require a Temporary Use Permit (TUP) or
other permit as required by the CITY.
3.112 Cannabis Cultivation Prohibited. Notwithstanding any other provision in
this. Agreement, or in this Article 3.11, NCLHFP shall neither cultivate, nor allow the
cultivation of, cannabis at the Property.
ARTICLE 4
UTILITIES AND INSPECTIONS
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.1 Utility Services. The CITY shall be responsible for maintaining reasonable utility
services to the Property. The CITY shall pay for all water and sewer charges. NCLHFP
shall provide and pay for all utilities or services necessary for its use and operation of
the Property during the Term, including electricity, trash, and any other utility charges.
NCLHFP shall pay directly to the applicable utility company such charges as they are
responsible for.
4.2 Responsibility for inspections. NCLHFP acknowledges and accepts that this
maintenance and operations agreement gives rise to required inspections, necessary
for the legal operation of the Property. iCLHFP agrees to be responsible for all costs of
required. and necessary inspections. These include but are not limited to annual fire
inspections and annual backflow device inspections and/or any other inspection as is
required by law during the Term of this Agreement. CITY may request proof of
inspections completed and said proof must be provided within 15 business days of the
request.
ARTICLE
REPAIRS; MAINTENANCE
ANCE
.1 NCLHFP Repair and Maintenance obligations. NCLHFP acknowledges that it
has made a thorough inspection of the Property and that it accepts the Property "as -is"
as of the Commencement encement Date. At f CLHFP's own cost and expense, NCLEIFP shall
repair, replace, and maintain the Property in good, tenable condition as necessary •
NCLHFP shall not be obligated to repair or replace damage to the Property caused by
ordinary wear and tear. iCLHFP shall maintain the Property in an .accessible manner
for use by. individuals with.. disabilities and comply with federal and state law regarding
accessibility, including but not limited to the Americans with Disabilities Act and
California's Disabled Persons Act. Other than repair work in emergency situations not
exceeding Three Thousand and, no/100 Dollars $3, 0 , NCLHFP shall not perform
ahy repair work without the CITY's prior written consent. As used in this Article 5.1,
"emergency" reas.a sudden, unexpected Occurrence that poses a clear and imminent
danger, requiring immediate action to prevent or mitigate the loss or impairment of life,
health, property, or essential public services. All emergency repairs performed by the
City on the Property are governed by Public Contract Code Section 22050. lCLHFP's
obligations under this Article shall apply regardless of whether the repairs, restorations,
and replacements are ordinary or extraordinary, foreseeable or unforeseeable, capital
or non apical, or the fault or not the fault of NCLHFP, its agents, employees, volunteers,
invitees, visitors, or contractors. All replacements made by the NCLHFP shall be of like
size, kind, and quality to the items replaced.
5.2 CITY Repair and Maintenance obligations. For any repair and maintenance work
exceeding Three Thousand and no 100 Dollars ($3,000), the CITY will consider the
nature and priority of the work and available funding to determine if and when such
repairs will be completed.
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.3 CITY Right to Inspect. CITY Not Oblicigted to Repair or Maintain. NCLHFP shall
permit the CITY to enter the Property at all times during usual hours of operation to
inspect the Property. Any entry pursuant to this Article 5.3 shall not unreasonably
interfere with iCLHFP's operation of the Property. However, nothing contained in this
Article 5 shall create any duty on the part of the CITY to do any work which, under any
provision of this Agreement, NCLHFPmay be required to do,
ARTICLE
IMPROVEMENTS; O EMENTS; ALTERATIONS
IS
.1 Alterations. NCLHFP may alter, replace, add to, change, or construct additional
improvements ents to the Property (collectively, "Alterations") as NCLF FP may find
necessary or convenient for its operation of the Property. Any Alterations performed . by,
NCLHFP under this Article 6.1 shall be performed: (a) at NCLHFP'S sole cost and
expense; b with the CITY's prior written consent; and in accordance with
construction plans submitted to and approved byth CITY.
6.2 Construction Permits and Licenses, At all times during the Term, NCLHFP shall
procure, at its sole cost and expense, all permits and licenses that are necessary or
required from any local governmental agency for the proposed construction of any
Alterations. The CITY. may, in its sole discretion, waive CITY permitting fees where
applicable.
6.3 Proposed Plans. In its sole discretion, the CITY may require NCLHFP to do any
of the following:
• Submit a complete set of proposed plans of any Alteration to the CITY;
• Apply for and receive a permit from the Building Department to complete any
Alterations;
• Within sixty (60) days of a written request, furnish the CITY with a complete set
of "as -built" plans for any City -approved Alterations.
6A Prevailing Wages. NCLHFP shall comply with prevailing wage statutes for any
work not performed by volunteers.
ARTICLE 7
MECHANICS' LIENS; STOP NOTICES
.1 Mechanics' Liens; Stop Notices. NCLHFP shall pay, or cause to be paid, the
total cost and expense of all works of improvement, as that phrase is defined in the
Mechanics Lien Law in effect at the place of construction, done by it, or caused to be
done by it, on the Property, and for all materials furnished for or in connection with any
such work. If any lien or stop notice is filed against the Property, NCLHFP shall cause
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the lien or stop notice to be discharged of record within one hundred eighty (180) days
after it is filed. NCLHFP shall indemnify, defend, and hold the CITY harmless from any
and all liability, loss, damage, costs, attorneys' fees and all other expenses on account
of claims of lien of laborers, materialmen, or others for work performed, or materials or
supplies furnished for NCLHFP or persons claiming under NCLHFP.
7.2 Notice of Lien or Stop. Notice. Should any claim of lien or stop notice related to
NCLHFP's work of improvement of the Property be filed against the Property, or any
action be filed against the Property, or any action affecting the title to the Property be
commenced, the party receiving notice of such lien or stop notice or action shalt
immediately give the other party written notice thereof.
.3 Notice of Nonresponsibility. The CITY or its representatives shall have the right
to post and keep posted on the Property notices of non -responsibility or such other
notices which the CITY may deem to be proper for the protection of the CITY's interest
in the Property. NCLHFP shall, before the commencement of any work which might
result in any such lien or stop notice, give to the CITY written notice of its intention to do
so with sufficient time to enable posting of such notices.
ARTICLE
TAXES
.1 Definition. "Taxes" shall mean all taxes, governmental bonds, special
assessments, charges, or transfer taxes, license and transaction fees, including, but not
limited to, any state, local, federal income tax, or any real or personal property tax,
(b) increases in taxes attributable to NCLI-1FP's operation of the Property, or any
taxes which are essentially payments to a governmental agency, other than the CITY,
for the right to make improvements to the Property.
8.2 P.o.es.oryInterest. Notwithstanding article 2.1, NCLH.FP acknowledges that
this Agreement may create a possessory interest subject to property taxation and that
NCLHFP may be subject to the payment of taxes levied on such interest. NCLHFP shall
pay, before delinquency, all taxes, assessments and fees assessed or levied upon the
Pro
Pe
rty.
8.3 Responsibility for Payment of Taxes. The CITY shall not be obligated to pay any
Taxes accruing against any interest in NCLHFP's use of the Property at any time before
or during the Term. NCLHFP shall pay any taxes that accrue against any interest in
NCLHFP's use of the Property. Additionally, NCLHFP shall pay any taxes' levied upon
any Improvements, Fixtures or Personal Property located on the Property to the extent
such Taxes result from NCLHFP's operations or other activities held upon, or in
connection with, the Property.
ARTICLE 9
INDEMNIFICATION AND INSURANCE
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9.1 NCLHFP Indemnity. The CITY shall. not be liable for, and NCLHFP shall defend,
indemnify, and hold harmless the CITY, its officers, officials, agents, employees, and
volunteers from any and all claims, costs, liability, loss, damages to property, injuries to,
or death of any person or persons, and all claims, demands, suits, actions, proceedings,
reasonable attorneys' fees, and defense costs, of any kind or nature, including workers'
compensation claims resulting from, related to., or arising out of NCLHFP's
improvement, operation or use of the Property, or arising either directly or indirectly from
any act, error, omission or negligence of NCLHFP .or its contractors, licensees, invitees,
members, agents, servants or employees; provided, however, that this indemnification
and hold harmless shall not include any claims or liability arising from the established
sole negligence or willful misconduct of the City, its agents, officers, or employees. CITY
will cooperate reasonably in the defense of any action, and NCLHFP shall employ
competent counsel, reasonably acceptable to the CIT 's City Attorney.
The indemnity, defense, and hold harmless obligations contained herein shall
survive the termination of this Agreement for any alleged or actual omission, act, or
negligence under this Agreement that occurred during the term of this Agreement.
9.1.1 Third Party Indemnity. NCLHFP shall not invite third party organizations
onto the Property until said third party organization furnishes CITY a written agreement
in which it indemnifies and holds CITY harmless, upon terms satisfactory to CITY.
9.1.2 Waivers from Third Parties. NCLHFP agrees to obtain from allguests,
invitees, or third party organizations whose participants visit the Property, a waiver of
liability and hold harmless agreement upon terms satisfactory to the CITY.
9.2 Insurance. NCLHFP, at its sole cost and expense, shall purchase and maintain,
and shall require its subcontractors, and third party organizations NCLHFP invites onto
the Property, to purchase and maintain throughout the term of this Agreement, the
following insurance policies:
9.2.1 Commercial ercial General Liability Insurance (CGL): Insurance Services
Office Form CC 00 01 covering CGL on an "occurrence" basis, including
products and completed operations, property damage, bodily injury and personal
advertising injury with minimum limits of $1,000,000 per occurrence and
$2,000,000 aggregate, covering all bodily injury and property damage arising out
of its operations under this Agreement. The policy shall name the CITY and its
officers, agents, employees, and volunteers as additional insureds, and a
separate additional insured endorsement shall be provided. The general
aggregate limit must apply solely to this "project" or "location." The Commercial
General Liability required by this Article must include Sexual Misconduct Liability
coverage.
9.2.2 Automobile Insurance covering all bodily injury and property damage
incurred during the performance of this Agreement, with a minimum coverage of
$1,000,000 combined single limit per accident. Such automobile insurance shall
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include owned, non -owned, and hired vehicles ("Any Auto". The policy shall
name the CITY and its officers, agents, employees, and volunteers as additional
insureds, and a separate additional insured endorsement shall be provided.
9.2.3 Workers' Compensation Insurance in an amount sufficient to meet
statutory requirements covering all of fCLHFP's employees, and employers'
liability insurance with limits of at least $1,000,000 per accident. In addition, the
policy shall be endorsed with a waiver of subrogation in favor of the CITY. Said
endorsement shall be provided prior to commencement of work under this
Agreement.
9.2.4 Property Insurance against all risks of loss to any improvements ents or
betterments made by NCLHFP, or any third party with permission from NCLHFP,
at full replacement cost with no coinsurance penalty provision.
9.2.5 The aforesaid policies shall constitute primary insurance, at least as broad
as ISO CG 20 01.04 13, as to the CITY, its officers, employees, and volunteers,
so that any other policies held by the CITY shall not contribute to any loss under
said insurance. Said policies shall provide for thirty 3 days prior written notice
to the CITY's Risk Manager, at the address listed in Article. 9.2.7 below, of
cancellation or material change.
9.2.6 If required insurance coverage is provided on a "claims made" rather than
"occurrence" form, NCLHFP shall maintain such insurance coverage for three
years after expiration of the term (and any extensions) of this Agreement. In
addition, the "retro" date must be on or before the date of this Agreement.
9.2.7 The Certificate Holder for all policies of insurance required by this Article
9.2 shall be: .
City of National City
co Risk Manager
1243 National City Boulevard
National City, CA 19 -43 7
9.2.8 Insurance shall be written with only insurers authorized to conduct business
in California that hold a current policy holder's alphabetic and financial size
category rating of not less than A VIII according to the current Best's Key Rating
Guide, or a company equal financial stability that is approved by the CITY'S Risk
Manager. In the event coverage is provided by non -admitted `surplus lines"
carriers, they must be included on the most recent California List of Eligible
Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements.
.2.9 This Agreement shall not take effect until certificate(s) or other sufficient
proof that these insurance provisions have been complied with, are filed with and
approved by the CITY'S Risk Manager. If NCLHFP does not keep all of such
insurance policies in full force and effect at all times during the terms of this
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Agreement, the CITY may elect to treat the failure to maintain the requisite
insurance as a breach of this Agreement and terminate the Agreement as
provided herein.
9.2.10 All deductibles and elf -insured retentions in excess of $10000 must be
disclosed to and approved by the CITY. CITY reserves the right to modify the
insurance requirements of this Article 9.2, including limits, based on the nature of
the risk, prior experience, insurer, coverage, or other special circumstances.
, .11 If NCLHFP maintains broader coverae or hiher limits or boththan the
minimum limits shown above, the CITY requires and shall be entitled to the
broader coverage or higher limits (or both) maintained by NCLHFP. Any available
insurance proceeds in excess of the specified minimum limits of insurance and
coverage shall be available to the CITY.
ARTICLE 10
TERMINATION
10.1 This Agreement may be terminated with or without cause by the CITY.
Termination without cause shall be effective only upon 120-day's written notice to
NCLHFP. During said 12 -day. period, NCLHFP shall perform all services in accordance
with this Agreement. This Agreement may also be terminated immediately by the CITY
-fir cause....in th evert f a rrr t ril breach --of this Agreement, -misrepresentation Icy.-
NCLHFP in connection with the formation of this Agreement or the performance of
services, or the failure to perform services as directed by the CITY. Termination with or
without cause shall be effected by delivery of written Notice of Termination to NCLHFP
as provided for herein. The CITY further reserves the right to immediately terminate this
Agreement upon: (a) the filing of a petition in bankruptcy affecting NCLHFP; (b) a
reorganization of NCLHFP for the benefit of creditors; or (c) a business reorganization,
change in business name or change in business status of NCLHFP.
ARTICLE 11
HAZARDOUS MATERIALS
11.1 Hazardous Materials Laws -Definition. As used in this Article, the term
"Hazardous Materials' Laws" means any and all federal, state orlocal laws or
ordinances, rules, decrees, orders, regulations or court decisions (including the so-
called "common law") relating to hazardous substances, hazardous materials,
hazardous waste, toxic substances, environmental conditions on, under or about the
Property, soil and ground water conditions or other similar substances or conditions.
The following legal authority is a non -exhaustive list of the legal authority that applies to
the definition of the term "Hazardous Materials Laws":
• the Comprehensive Environmental Response, Compensation and, Liability Act of
1980, as amended 2 U.S.C., Section 9601 et seq.)
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• the Hazardous Materials Transportation Act, as amended U.S.C., Section
1801 et seq.), and
• the Resource Conservation and Recovery Act of 1976, as amended 2 U.S.C.,
Section 6901 et seq.),
11.2 Hazardous Materials - Definition. As used in this Article the term "Hazardous
I aterials" means any chemical, compound, material, substance or other matter that:
11.2.1 is a flammable, explosive, asbestos, radioactive nuclear medicine,
vaccine, bacteria, virus, hazardous waste, toxic, overtly injurious or potentially
injurious material, whether injurious or potentially injurious by itself or in
combination with other materials;
11.2.2 is controlled, referred to, designated in or governed by any Hazardous
Materials Laws;
11.2.3 gives rise to any reporting, notice or publication requirements under any
Hazardous Materials Laws, or
I 1,2.4 is any other material or substance giving rise to any liability, responsibility
or duty upon the CITY ort CLHFP with respect to y thirperson under any
Hazardous Materials Law.
11.3 NCLHFP Represontations and NiVarranties. NCLHFP represents and warrants
that, during the Term or any extension thereof, NCLHFP shall comply with the following
provisions of this Article unless otherwise specifically approved in writing by the CITY,
subject to the terms and conditions of NCLFIFP's maintenance obligations provided
elsewhere in this Agreement:
11.3.1 NCLHFP shall not cause or permit any Hazardous Materials to be
brought, kept or used in or about the Property by NCLHFP, its agents,
employees, assigns, contractors or invitees, except as required by f CLHFP's
permitted use of the Property in the normal course of operations;
11..3.2 Any handling, transportation, storage, treatment or usage by NCLHFP of
Hazardous Materials that is to occur on the Property following the
Commencement Date shall be in compliance with all applicable Hazardous
Materials Laws;
11.3.3 Any leaks, spills, release, discharge, emission or disposal of Hazardous
Materials which may occur on the Property following the Commencement Date
shall be promptly and thoroughly cleaned and removed from the Property by
NCLHFP at its sole expense, and any such discharge shall be promptly reported
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in writing to the CITY, and to any other appropriate governmental regulatory
authorities;
11.3.4 No friable asbestos shall be constructed, placed on, deposited, stored,
disposed of, or located by NCLHFP on the Property;
11.3.5 No underground improvements, including but not limited to treatment or
storage tanks, or water, gas or oil wells shall be located by NCLHFP on the
Property without the CITY's prior written consent;
11.3.6 NCLHFP shall promptly supply the CITY with copies of all notices, reports,
correspondence, and submissions made by NCLHFP to the United States
Environmental Protection Agency, the United Occupational Safety and Health
Administration, and any other local, state or federal authority which requires
submission of any information concerning environmental matters or hazardous
wastes or substances pursuant to applicable Hazardous Materials' Laws; and
11.3.7 NCLHFP shall promptly notify the CITY of any liens threatened or
attached against the Property pursuant to any Hazardous Materials' Law. If such
a lien is filed against the Property, then, within the earlier of (I) twenty 2 days
following such filing, or (ii) before any governmental authority commences
proceedings to sell the Property pursuant to the lien, NCLHFP shall either:
(a) pay the claim and remove the lien from the Property, or
(b) furnish either:
(1) a bond or cash deposit reasonably satisfactory to the CITY in an
amount not less than the claim from which the lien arises, or;
(2) other security satisfactory to the CITY in an amount not less
than that which is sufficient to discharge the claim from which the
lien arises.
11.3.8 At the end of this Agreement, NCLHFP shall s rrrender the Property to the
CITY free of any and all Hazardous Materials and in compliance with all
Hazardous Materials' Laws affecting the Property.
ARTICLE 12
ASSIGNMENT; THIRD PARTY T USE OF PROPERTY
TY
12.1 Assignment; CITY's_C ns nt Required. NCLHFP shall not voluntarily or
involuntarily assign or otherwise transfer all or any portion of its rights and duties under
this Agreement without the CITYs prior written consent. Any attempted assignment or
transfer without the CITY's prior written consent shall be void.
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12.2 Third Party Use of the Property. NCLHFP may engage third party organizations
to provide special services or programming at the Property if:
12.2.1 The City Manager r consents, in writing, to the third party organizations'
proposed use of the Property and;
12.2.2 The third party organiati n obtains policies of insurance acceptable to the
City's Risk Manager and Article 9.2 of this Agreement
ARTICLE 13
DEFAULTS BY NCLHFP OR BY CITY; REMEDIES
13.1 Events of Default; Remedies. The following sub -articles shall apply if either
NCLHFP or the CITY neglects, fails to perform, or fails to observe any . of their
respective obligations under the terms, covenants, or conditions contained in this
Agreement "Default"):
13.1,1 Thirty -Day Correction of Default. If either NCLHFP or the CITY determines
that the other party is in Default, then the non -defaulting party must provide the
defaulting party written notice of the Default and thirty 3 days to correct the default.
13.1.2 Extended Correction of Default. If the defaulting party determines that
more than thirty (30) days is required to correct the Default, the defaulting party must
provide the other party written notice of the reasons why additional time is required to
correct such Default. The defaulting party must use diligent efforts to correct a Default
under this Article 13.1.2 and, in any case, must correct such Default within ninety (90)
from the date of the written notice of Default.
13.'1,3 Remedies for Failure to Correct Default. If th.e defaulting party fails to
comply with Article 13.1.1 or 13,1.2, then the non -defaulting party may immediately
terminate this Agreement. The defaulting party shall be liable to the non -defaulting party
for any and all damages sustained by the non -defaulting party as a result of the
defaulting parties' breach.
ARTICLE 14
ABANDONMENT
14.1 Abandonment. NCLHFP shall not vacate r abandon the Property at any time
during the. Termnor permit the Property to remain unoccupied for a period of longer
than five . consecutive days during the term of this Agreement. These provisions shall
not apply if the Property is closed and operation is temporarily discontinued therein on
account of strikes, lockouts, acts of nature, or similar causes beyond the reasonable
control of NCLHFP. Any exceptions must be submitted in writing to the City Manager or
designee for approval.
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ARTICLE 15
DAMAGE OR DESTRUCTION
15.1 NCLHFP'_Duty to. Repair Casualty. NCLHFP shall, as expeditiously as
reasonably possible, repair any damages to the Property caused by fire .earthquake, or
any other identifiable event of a sudden, unexpected, or unusual nature ("Casualty"),
and repair, restore and replace any such damaged or destroyed Fixtures, Improvements
or Personal Property ("Casualty Repairs"). Any Casualty Repairs made under this
Article 15 are:
(a) To be performed at NCLHFP's sole cost and expense;
(b) To be performed except as otherwise provided in this Article 15; and are
Subject to all other terms and conditions of this Agreement.
16.2 Construction Provisions. In the event of any reconstruction of the Property,
Fixtures or Improvements required of NCLHFP pursuant to this Article, NCLHFP shall
repair the Property, and repair or rebuild such Fixtures and Improvements, to
substantially the same condition they were in immediately preceding such Casualty.
15.3 No Abatement. In the event of reconstruction, replacement or repair by NCLHFP
pursuant to this Article, NCLHFP shall continue its operations on the Property during
any such period to the extent reasonably practicable from the standpoint of prudent
business management, and in continuing compliance with applicable laws and
regulations. NCLHFP shall not be entitled to any compensation or damages from CITY
for: loss of use of the whole or any part of the Property; (b) NCLHFP's Personal
Property; or any inconvenience or annoyance occasioned by such damage,
reconstruction or replacement.,
15.4 Maier Destruction. Notwithstanding any of the foregoing rovisions of this Article
to the contrary, if, at any time after the Commencement Date, (a) the Improvements are
damaged or destroyed to the extent of more than twenty-five percent (25%) of their
replacement cost, orb the damage is such that the Improvements cannot be repaired
and restored within one hundred and eighty.180days after the Casualty, then
NCLHFP shall have the right to.{terminate this Agreement upon :thirty 3 days' prior
written notice to the CITY.
ARTICLE 16
EMINENT DOMAIN
16.1 Condemnation. NCLHFP may terminate this Agreement within twenty (20) days
after the date that a condemning authority (by a party other than the CITY) takes
possession of the Property by delivery of written notice of such condemnation if:
(a) If all of the Property is taken under eminent domain proceedings; or
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(b) less than all of the Property is taken under such eminent domain proceeding
and the part taken substantially impairs the ability of NCLHFP to use the
remainder of the Property for the purposes permitted by this Agreement.
In the absence of such written notice from a condemning authority, NCLHFP may
terminate this Agreement within twenty 2 days after the condemning authority shall
have taken possession.
16.2 Continuation of Operating_Acireement After Condemnation. If this Agreement is
not terminated by NCLHFP, it shall remain in full force and effect as to any portion of the
Property remaining, and this Agreement will end as of the date possession of the part
taken by the public entity as to the part of the Property that is taken.
16.3 Award. All. monies awarded. in any condemnation shall belong to the CITY. The
CITY shall have no liability to NCLHFP for any award not provided by the condemning
authority.
ARTICLE 17
SALE OR MORTGAGE GE BY CITY
}
17.1 Sale or Mortgne. The CITY may, pursuant to existing and subsequently
enacted the CITY ordinances and State laws, at any time, and without the consent of
NCLHFP, vacate, sell, purchase, exchange, transfer, assign, lease, encumber or
convey the CITY's interest in whole or in part, in the Property (collectively referred to in
this Article as a "Sale"). The CITY shall provide to NCLHFP written notice of the CITY's
intent to a Sale or discontinuance pursuant to this Article at least ninety (90) days prior
to said proposed transfer.
17.2 Release on Sale. From and after a Sale or discontinuance of the CITY's entire
interest in the Property, the CITY shall be released from all liability to NCLHFP and
NCLHFP successors and assigns arising from this Agreement because of any act,
occurrence or omission of the CITY occurring after such Sale.
ARTICLE 18
CITY'S RIGHT OF ACCESS
18.1 Right of Entry. CITY, its agents, employees, and contractors may enter the
Property at any time with or without notice to I CLFIFP to:
(a) respond to health and safety concerns;
(b) inspect the Property and Improvements;
(c) determine whether NCLHFP is complying with its obligations in this
Agreement (including its obligations with respect to compliance with
Hazardous. Materials Laws);
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(d) post notices of non -responsibility or similar notices;
(e) inspect the progress of construction of any improvement; or
(f) make repairs that this Agreement requires or allows CITY to make, or
make repairs to any adjoining space or utility services, or make repairs,
alterations, or improvements to any other portion of the Property.
All work enumerated in this Article 18.1 must be done as promptly as reasonably
possible and so as to cause as little interference to NCLHFP as reasonably possible.
ARTICLE 19
NOTICES
19.1 Notices. Whenever .in this Agreement it shall be required or permitted that notice
or demand be given or served by either party to this Agreement to or on the other, such
notice or demand shall be in writing, mailed or personally delivered to the other party at
the addresses specified below. Mailed notices shall be sent by United States Postal
Service, postage prepaid and shall be deemed to have been given, delivered and
received three 3 business days after the date such notice or other communication is
posted by the United States Postal Service. All other such notices or other
communications shall be deemed given, delivered and received upon actual receipt.
Either party may, by written notice delivered pursuant to this provision, at any time
designate a different address to whieh notices shalt be sent.
CITY: CITY OF NATIONAL CITY
City Manager
City of National City
1243 National City Boulevard
National City, CA 91 0-4301
With a copy to:.
City of National City
Library & Community Services Director
1401 National City Boulevard
National City, CA 919g-33 9
NCLHF.P: National City Living History Farm Preserve, Inc.
Executive Director
1808 F Avenue
National City, CA 91950
ARTICLE 20
NONDISCRIMINATION
INATION
20.'1 Nondiscrimination. NCLHFP hereby covenants by and for itself, its successors,
assigns and all persons claiming under or through it, that this Agreement is made and
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accepted upon and subject to the condition that there shall be no discrimination against,
or segregation of, any person or group of persons on account of race, age, color, creed,
religion, sex, sexual orientation, marital status, national origin, physical handicap,
medical condition or ancestry in the use, operation, or enjoyment of the Property.
ARTICLE 21
RECORDS, ACCOUNTS AND AUDITS
21 A CLI-1F '_ uty to Keep Records. NCLHFP shall, at all times during the Terra,.
and for a period of five 5 years following expiration or earlier termination of this
Agreement, keep or cause to be kept, true and complete books, records and accounts
of ail (a) construction undertaken pursuant to the rights conferred on NCLHFP under
this Agreement, and (b) financial transactions in the operation of all business activities,
of whatever nature, conducted pursuant to the rights granted by this Agreement. Such
records shallalso include the source and disposition of all trash and other waste
collected and disposed of by NCLHFP in the operation of its business. Said records
must be supported by source documents such as receipts, invoices, sales slips, cash
register tapes, purchase invoices or other pertinent documents.
21.2 CIT 's Right to Audit. All NCLHFP books, accounts and records shall be kept
and made available at one location within the limits of the County of San Diego. The
CITY shall have the right at any reasonable time to examine and perform audits of
NCLHFP's records pertaining to (a) construction undertaken pursuant to the rights
conferred on NCLHFP under this Agreement, and its operations on the Property,
including, without limitation, any records pertaining to NCLHFP's use of utilities on the
Property. The cost of said audits shall be borne by the CITY; however, NCLHFP shall
provide to the CITY at NCLHFP's expense, necessary data to enable the CITY to fully
comply with each and every requirement of the State of California or by the United
States of America for information or reports relating to this Agreement and to NCL.FIFP's
use of the Property.
ARTICLE 22
ADMINISTRATIVE PROVISIONS
22.1 . Authority. NCLHFP represents and warrants that it has full power and authority
to execute and fully perform its obligations under this Agreement pursuant to its
governing instruments, without the need for any further action, and that the person
executing this Agreement on behalf of NCLHFP is the duly designated agent of
NCLHFP and is authorized to do so.
22.2 Captions. The captions and headings appearing in this Operating Agreement are
inserted for convenience only and in no way define, limit, construe, or describe the
scope or intent of the provisions of this Agreement.
22.3 CITY Approval. Except where stated in the Agreement to the contrary, the
phrases "CITY approval," and "CITY's written approval" or such similar phrases shall
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mean approval of the City Manager or designee, which approval shall not be
unreasonably withheld.
22 Cumulative Remedies. edies. In the event of a default under this Agreement, each
party's remedies shall be limited to those remedies set forth in this Agreement. Any
such remedies are cumulative and not. exclusive of any other remedies under this
Agreement to which the non -defaulting party may be entitled.
22.5 Entire Agreement. This Agreement, together with all addenda and exhibits
attached hereto, constitutes the entire agreement between the parties with respect to
the subject matter hereof, and all prior or contemporaneous neous agreements,
understandings and representations, oral or written, are superseded.
22.6 Exhibits. All exhibits referred to herein are attached hereto and incorporated by
reference:
Exhibit A: Legal description of the Property
22.7 Force Ma[eure. If either party is prevented or delayed from performing any act or
discharging any obligation hereunder, because of any and all causes beyond either
party"s reasonable control, including unusual delays in deliveries, abnormally adverse
weather conditions, unavoidable casualties, strikes, labor disputes, inability to obtain
labor, materials or equipment, acts of God', govermmntal restrictions, regulations or
controls, any hostile government actions, acts of terrorism, civil commotion and fire or
other casualty, legal actions attacking ing the validity of this Agreement or the CITY or
NCLFIFP's operations of the Property, or any other casualties beyond the reasonable
control of either party "Force Majeure" , performance of such act shall be excused for
the periodof such delay, and the period for performance of such act shall be extended
for a period equivalent to the period of such delay. Force Majeure shall not include any
bankruptcy, insolvency, or other financial inability on the part of either party .hereto.
22.8 Governing Law. This Agreement shall be governed, construed and enforced in
accordance with the laws of the state of California.
22.9 IndepenOnt_Contraptor. NCLHFP acknowledges that it is an independent
contractor; that it alone 'retains control of the manner of conducting its activities in
furtherance of this Agreement; and that it, as well as any persons, contractors or agents
it may employ, are not employees of CITY for any. purpose.
22.10 Interpretation. The provisions of this Agreement shall be liberally construed to
effectuate its purpose. The language of all parts of this Agreement shall be construed
simply according to its plain meaning and shall not be construed for or against either
party.
22.11 NCLHFP's Agreement Administration. NCLHFP confirms that NCLHFP's
Agreement Administrator has been given full operational responsibility for compliance
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with the terms of this Agreement. NCLHFP shall provide the CITY with a written
schedule of its normal hours of business operation on the Property, and NCLHFP's
Agreement Administrator or a representative designated thereby shall be available to
the CITY during NCLHFP's normal business hours, to resolve problems or answer
questions pertaining to this Agreement and NLHFP's operations on the Property.
22.12 Modification. The provisions of this Agreement may not be modified, except by a
written amendment signed by both parties.
22.13 Partial invalidity. If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement
shall not be affected thereby. Each provision shall be valid and enforceable to the
fullest extent permitted by law.
22.14 Successors & Assigns. This Agreement ent shall be binding on and inure to the
benefit of the parties and their successors and assigns, except as may otherwise be
provided herein. NCLHFP shall not assign this agreement to any other party unless
approved in writing by the CITY.
22.15 Time of Essence. Time is of the essence of each and every provision of this
Agreement.
22.16 Waiver. No provision of this Operating Agreement or the breach thereof shall be
deemed waived, except by written consent of the party against whom the waiver is
claimed.
IN WITNESS WHEREOF, the CITY and NCLHFP have duly executed this
Agreement as of the day and year first above written.
CITY OF NATIONAL CI
411
AM"'
4telo-Solis, Mayor
(CITY)
By:
Al jand
APPROVED AS TO FORM:
NATIONAL CITY LIVING HISTORY
PRESERVE, a California non-
profit corporation (NCLHFP)
FARM
By: %cru,uJY�vv
(Name)
(Pant)
t del&
(Title)
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March 1, 2022
Gabriela M. Torres By:
Deputy City Attorney
ame
Ar-;,/zylte)
(Print)
t
id, C1CP, r
(Title)
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EXHIBIT A
STEIN FAMILY FARM