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1 FOURTH AMENDED AND RESTATED OPERATING AGREEMENT
Living Coast Discovery Center, Chula Vista]
This FOURTH AMENDED AND RESTATED OPERATING AGREEMENT [ Living Coast Discovery Center, Chula Vista] (“ Fourth Agreement”), made to have effect as of the later of ( i) the last date of execution by the Parties hereto, and (ii) the date it is approved as to form by the Chula Vista City Attorney (“ Effective Date”), by and between the CITY OF CHULA VISTA, a chartered municipal corporation (“City”), and LIVING COAST DISCOVERY CENTER, a California non-profit corporation Operator”). Individually, the City and Operator may be referred to herein as “Party” and collectively as Parties.” This Fourth Agreement is made with reference to the following facts:
RECITALS
A. The Chula Vista Nature Center (“CVNC”) is a world- class zoological institution and attraction with hands-on exhibits and live animal displays which emphasize the importance of natural coastal marsh resources and their delicate ecosystem balance. The CVNC is located at 1000 Gunpowder Point Drive, Chula Vista, CA 91910 on approximately 3.3 acres of land (“Nature Center Land”) on Gunpowder Point within the Sweetwater Marsh National Wildlife Refuge on land owned by the U.S. Fish and Wildlife Service (“USFWS”).
B. The 3.3 acresandrelated easementsthat comprise the Nature Center Land aredescribedasParcels A- D in the Easementfor Nature Interpretive Center and a License for Accessand Utility Purposes dated May 28, 1986, and recorded June 30, 1986 as Document No. 1986-267505 in the Official Records of San Diego County attachedhereto as Exhibit A.
C. The CVNC was opened to the public in July of 1987. Initially, the CVNC was operated by the Bayfront ConservancyTrust (“BCT”), a nonprofit corporation formed for that purpose. Thereafter, the City Redevelopment Agency and the BCT oversaw significant improvements to the CVNC.
The City ultimately assumedcontrol of the CVNC, and in 2002 the City createdan official Nature Center department to manageCVNC operations.
D. The Operator was initially formed as The Environmental Legacy Fund, a California nonprofit corporation qualified asa tax-exempt public charity for purposesof assisting with fundraising for CVNC operations and to organize and support volunteer efforts at the facility. On or about June 16, 1997, the Operator changedits name to the Chula Vista Nature Center Foundation, and then in 2012 changedits name, and the name of the CVNC to the Living Coast Discovery Center (the LCDC”).
E. On April 28, 2009, the City Council authorized City staff to pursue a public- private partnership and operating Agreement with the Operator for the operation and management of the LCDC, along with two conceptual funding plans asa basisfor negotiations.
F. After a series of meetings, negotiations and interim agreements, effective February 6, 2010, the Partiesagreedon the terms andconditions for the initial grant by City and RedevelopmentAgency to Operator of a license to manageand control LCDC operations, pursuantto a formal “Operating Agreement.”
G. Since then, the Partieshaveagreedto modify and extend the Operating Agreement asfollows: ( 1) On or about November 23, 2010, the Parties agreedto amend the Operating Agreement in order to extend the term until June 30, 2012; (2) Effective July 1, 2012 the Parties entered into a new 75710495; 6
2 Operating Agreement for a period of 1 year, ending June 30, 2013; ( 3) On June 11, 2013, the Parties entered into that certain First Amendment to extend the Operating Agreement until June 30, 2014; (4) On or about June19, 2014, the City agreedto extend the Operating Agreement until September 30, 2014; (5) On October 1, 2014, the Parties entered into that certain Amended and RestatedOperating Agreement for the term ending December 31, 2015; (6) On February 4, 2016, the City extended the term to June 30, 2017; ( 7) On July 1, 2017, the Parties entered into the SecondAmended and RestatedOperating Agreement for the term ending December 31, 2018, and in June2019 the City extendedthe term to June30, 2020; (8) On July 1, 2020, the Parties entered into the Third Amended and Restated Operating Agreement for the term ending December 31, 2021; (9) In May 2022, the City extendedthe term of the Third Amended and RestatedOperating Agreement to June30, 2023; and the Partiesthen mutually agreedin writing to further extend the Third Amended and RestatedOperating Agreement term until September9, 2025.
H. The Parties now desire to enter into this Fourth Amended and RestatedOperating Agreement to establish a new term and to amend and restatethe Operating Agreement in its entirety.
NOW, THEREFORE, in consideration of the above Recitals, the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which the Parties hereby acknowledge, the Parties hereby agreeasfollows:
ARTICLE I. GRANT OF LICENSE
1.1. Grant of License for LCDC Operations. As of the Effective Date, and subject to the terms and conditions of this Fourth Agreement, City hereby grants to Operator the exclusive license to operatethe LCDC ( the “LCDC License”).
Except as otherwise expressly provided herein or to the extent necessaryfor City to perform and satisfy its obligations under this Fourth Agreement, the LCDC License shall include exclusive accessto, possessionof, and control over the following LCDC assetsand programs:
a. Land and Improvements. Operator shall have exclusive accessto and control over the Nature Center Land describedin Exhibit A and improvements thereon usedin the operation of the LCDC collectively, the “LCDC Land and Improvements”). Operator’s use and control of the LCDC Land and Improvements shall besubject to any and all (1) City- reservedrights expressly provided for in this Fourth Agreement; and (2) leases, covenants, conditions, superior interests, easements, liens, restrictions and requirements existing with respectthereto in effect on or since July 1, 2012 collectively, the “LCDC Requirements”).
b. Management of Day-to-Day Operations.
i. Except as otherwise specifically provided herein, Operator shall have exclusive authority, responsibility and control over the day to day operations of the LCDC including, without limitation, the following matters: (1) Hours of Operation; ( 2) Staffing Levels: ( 3) Hiring, supervision, and termination of employees and volunteers; ( 4) Marketing; ( 5) Admissions Ratesand Policies; (6) Fundraising; (7) Educational Programs; (8) Custodial Maintenance of the LCDC Land and Improvements, and other maintenancenot expressly assumedby City as provided in Section 6.2, below; ( 9) Gift Store Operations; (10) Third- party use of LCDC facilities; ( 11) Food Service; ( 12) Concessions; (13) Third- party contracts for supplies or services; (14) Presentation, standardsof care and disposition of LCDC Wildlife ( as defined in Section 2.1); ( 15) Arrangement, Modification and Construction of Exhibits; and 16) modification of LCDC Permits and Contracts listed in the attachedExhibit B. 75710495; 6
3 ii. Marketing. Any and all marketing, promotional, and advertising content and activities for the Living Coast Discovery Center shall contain an addition to the logo, as either a “Logo Descriptor” or “Tagline,” with the words “at Chula Vista”. c. City Assignment of Use Rights to LCDC Land and Improvements. To the extent necessaryand appropriate for the operation of the LCDC by Operator, City hereby assignsto Operator respective rights to ( 1) use of the LCDC Land and Improvements, ( 2) the LCDC Permits and Contracts Exhibit B), and (3) the LCDC Wildlife ( collectively, the “LCDC Assets”). Notwithstanding the foregoing, City shall retain a reversionary interest in and/or ownership of, asthe casemay be, the underlying rights and title to the LCDC Assets (excluding the LCDC fauna) such that upon the expiration or other termination of this Fourth Agreement, unless otherwise agreed in writing betweenthe parties, total ownership and control of the LCDC Assets (excluding the LCDC fauna) shall revert to the City.
ARTICLE II. TRANSFER OF TITLE OF TANGIBLE ASSETS
2.1 Wildlife ( Flora and Fauna). Operator shall have exclusive possessionand control over any and all flora and fauna ( the ownership of certain fauna has been previously transferred to the Operator, pursuant to the February 6, 2010 Operating Agreement) located at the LCDC as of the Effective Date LCDC Wildlife”); such possessionand control shall include, without limitation, the exclusive right and authority to sell, transfer, trade, loan or otherwise dispose of the LCDC Wildlife in Operator’s sole discretion and consistent with practices of the Association of Zoos and Aquariums as samemay be updatedfrom time to time. Notwithstanding the foregoing, prior to any determination that any of the fauna shall beeuthanizedfor reasonsother than terminal illness or injury, the Operator shall inform the City in writing of its intention to do so and provide the City with the option to refer the care of fauna to another agency. Funds for such disposition and transfer for care to other agency shall be drawn from the Contingency Fund identified in Article IV, Section 4.3.
2.2 Fixtures, Furnishings, Equipment and Supplies. Operator shall have exclusive possession and control over all fixtures, furnishings, inventory, office and maintenance equipment and supplies LCDC FF& E”) that were transferred from the City to the Operator pursuant to the February 6, 2010 Operating Agreement between the City and the Nature Center Foundation.
ARTICLE III. TERM OF AGREEMENT
3.1 Term. The term of this Fourth Agreement (“Initial Term” or “Term”) shall commenceon the Effective Date and shall expire on June 30, 2029 (“Expiration Date”), unless earlier terminated pursuant to ARTICLE X, herein.
3.2 Extension of Term. Intentionally left blank.
ARTICLE IV. FUNDING AND USE OF REVENUE
4.1 LCDC Revenues. Any and all revenues generated through LCDC operations and fundraising LCDC Revenue”) during the Term shall be retained by Operator and solely applied to LCDC operational costsand/or development.
4.2 Operator Management and Funding. During the Initial Term or any extension thereof, the Operator shall manageand finance all of the LCDC operations in a manner consistent with and that fully satisfies Operator’s obligations under the terms of this Fourth Agreement. In the event that 75710495; 6
4 LCDC Revenue is insufficient by itself to cover the operation of the LCDC as required under this Fourth Agreement, the Operator is responsible for funding any operational deficit out of its own funds.
4.3 Operator’ s Special Reserve for Disposition of Fauna. Operator shall maintain throughout the Term of this Fourth Agreement a special contingency reserve account in the minimum amount of 10,000. This account shall be dedicatedexclusively towards funding any and all activities Operator deems necessaryfor the transfer, or other appropriate disposition, of the LCDC fauna to the extent such disposition becomes necessarypursuant to the terms of Article X hereof. Operator shall not withdraw funds from the contingency reserve account for any purpose other than that identified above and shall obtain prior written consent from the City to withdraw such funds.
4.4 Joint Fundraising Efforts. The Parties agreeto exercise their combined best efforts to solicit and secureadditional funding to support LCDC operations and development. Fundraising efforts shall be coordinated through Operator’s Director of Development pursuant to Operator’s approved fundraising plans and policies.
ARTICLE V. ADDITIONAL OPERATOR COVENANTS
5.1 Use Covenant. During the Initial Term and any mutually agreed upon extension thereof, Operator covenantsand agreesfor itself, and its successorsand assigns, that Operator shall operatethe LCDC as a zoological institution and attraction with hands-on exhibits and live animal displays, which emphasize the importance of natural coastal marsh resourcesand their delicate ecosystem balance.
To the extent practical, and to the extent consistent with both the LCDC Requirementsand the LCDC Permits and Contracts, Operator shall also operatethe LCDC consistent with the standardsestablished by the Association of Zoos and Aquariums as same may be updated from time to time ( collectively, the “Nature Center Use”). Without City’s prior written approval, Operator shall not seekentitlements or permits for the operation or redevelopment of the LCDC property for other than the Nature Center Use. Operator shall conduct the Nature Center Use in compliance with any and all applicable federal, state, and local laws and regulations and the LCDC Permits and Contracts and consistent with the purpose of the LCDC License.
5.2 Operator’ s Nonprofit Status and Management Ownership Structure. During the Initial Term of this Fourth Agreement ( and thereafter if extended), unless otherwise approved by the City, the Operator shall continue to operate as a California nonprofit corporation that is qualified as a tax- exempt public charity pursuant to Internal Revenue Code Section 501(c)(3) and California Revenue and Taxation Code Section 23701d. City shall havethe right to appoint one (1) Director to Operator’s Board whenever the Board is comprised of fifteen ( 15) Directors or less, and two ( 2) Directors whenever the Board is comprised of sixteen (16) Directors or more; provided however, City agrees not to exerciseits appointment right( s) hereunderin any manner that triggers application of the Ralph M. Brown Act to Operator’s Board meetings.
5.3 City Accessfor Special Events. Operator shall grant City free accessto and useof the LCDC for up to sixteen (16) separateevents (including meetings) per calendaryear. City eventsshall be scheduled in accordancewith Operator’s normal scheduling proceduresso asnot to interfere with normal LCDC operations or other scheduledevents. Events shall be for a maximum of one day each. Operator shall waive its standard facility charges for City events covered by this Section but reservesthe right to chargefor any special services provided or costs incurred (for example, staff overtime or chargesfor extendedbus service hours).
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5 5.4 Admissions. Operator shall provide City with fifty ( 50) admission passesper fiscal year for use by City in any manner consistent with City policies and law.
5.5 No Modifications Without City Approval. Operator shall not make any modifications to the LCDC Land and Improvements without City’s prior written approval, which such approval shall not be unreasonablywithheld or delayed. This shall include even minor modifications ( e.g., sink faucets) as such modifications can raiseissueswith ongoing maintenance. Any modifications to the LCDC Land and Improvements exceeding $10,000 in cost (excluding the installation or removal of temporary exhibits) shall require City' s prior written approval, which such approval may be granted or denied in City' s sole discretion.
5.6 Compliance with Tideland Use and Occupancy Permit; Maintenance and Repair.
Operator understandsthat the City and San Diego Unified Port District (“ Port”) are negotiating an agreement regarding the use of certain tideland property adjacent to the LCDC Land and Improvements (“Port Property”), pursuant to a Tideland Use and Occupancy Permit (“Permit”). The Permit will grant the City the right to use and occupy approximately 78,408 squarefeet of Port land located at 1006 Gunpowder Point Drive, Chula Vista for the purpose of a parking lot and appurtenances, shadestructures, walkways, and landscaping for the benefit of visitors to and affiliates of the LCDC. A copy of the Permit is attachedas Exhibit D and incorporated into the Agreement by this reference. Operator will comply with the Permit terms and conditions of the Permit, as may be modified and agreedto by the City and the Port in the sole discretion of both parties, and will take no action which would causea violation of, or default under, the Permit.
Operator shall beresponsiblefor “Maintenance andRepair” of the Port Property usedunder the Permit during the Term. For purposesof this Fourth Agreement, the term “Maintenance and Repair” means to keep and maintain in sanitary condition and good working order and repair, subject to normal and ordinary wear and tear resulting from the Nature Center Use, including graffiti removal, litter pickup and removal, waste disposal, sweeping, power washing, hardscapecleaning, and landscaping, Operator also agreesto regularly inspect the Port Property for spills or leaks to the ground surface, and ensure observed spills are cleaned promptly and disposed of properly in accordance with the Permit. Operator shall move, cover, or protect any structures or equipment that may be damaged during maintenance, repair, or replacement activities. Operator shall remove from the Port Property all materials, tools, equipment, debris and coverings upon completion of services. Operator shall not permit debris and waste material or wash water generatedfrom any operation to enter into the storm water conveyance system. Operator shall maintain site safety when performing tasks at all times.
Operator shall obtain any required permits to perform theseservices at its sole costsand expense.
ARTICLE VI. ADDITIONAL CITY COVENANTS
6.1 Approvals of Other Agencies. City has obtained any and all approvals from the applicable governing authorities or contracting parties that are necessaryor appropriate to allow Operator’s use of the LCDC Permits and Contracts.
a. City’s Failure to Obtain Approval of RelatedAgencies. In the event that after City’s good faith efforts, the City is unable to obtain approvals of Related Agencies for the transfer of City obligations with respectto the LCDC, which failure would subject the City to financial or other liability, this contract shall be deemed invalid, and the Parties shall reenter good faith negotiations to establish a method to accomplish the goals of this Fourth Agreement. 75710495; 6
6 6.2 City “ In- Kind” Services and Supplies. City agrees to provide certain “in-kind” services and supplies to Operator to assistwith LCDC operations during the Initial Term either at no cost or at an agreedupon rateof reimbursement. A list of suchservicesandsupplies, corresponding reimbursement rate(s), if any, standardsof performance, and schedulesfor delivery, is attachedhereto as Exhibit C.
Additional “ in kind” services not listed may be provided by City on terms to be negotiated.
6.3 Compliance with Permits and Contracts. City shall take no action with respect to the LCDC Permits and Contracts that would cause any violation thereof or default thereunder, or that would cause the LCDC to lose its accreditation with the American Association of Museums. City shall immediately notify Operator in writing of any notice of violation or default under any LCDC permit or contract, with sufficient notice to allow Operator to take the necessarystepsto cure same.
6.4 Deferred Maintenance Items. Parties agree to ongoing discussions regarding the condition of the LCDC improvements, and those items of Deferred Maintenance agreed to by the Parties shall be included in the City’s Capital Improvement Program, assamemay be updatedfrom time to time (the Deferred Maintenance Work”). City intends to implement Deferred Maintenance Work as funding allows and following consideration of City priorities, as determined in City’s sole discretion. Any such work implemented by the City shall be done in accordancewith industry standardsand shall be subject to Operator’s prior reasonableapproval and acceptance.
6.5 Payment of Debt Service on LCDC Improvements. City shall continue to pay debt service to finance amounts loaned to City for construction of certain of the LCDC Improvements, and shall strictly comply with any and all covenantsand agreementsenteredinto in connection therewith. The City’s anticipated payoff date of theseamounts is 2036.
6.6 Payment of Utilities and Shuttle Bus Fuel. Upon receipt of utility bills for electric, water, and telecommunications, City shall remit payment for such utilities directly to the utility operator in the amount of the invoice for the utility services used for the operation and maintenance of the LCDC during the Term of this Agreement. In addition, City shall pay for the cost of fuel for shuttle vehicles related to transit operations provided Operator utilizes City- owned fueling stations. Operator shall be responsible for all other utility costs, including propane gas and water removal. Operator shall remit payment in full to the City, within 30 days of the City submitting its invoice to Operator for such costsand expenses.
ARTICLE VII. INSURANCE
7.1 Insurance. Operator’ s Obligation. Prior to the execution of this Fourth Agreement, Operator shall i) obtain, and upon the City’s request provide to the City, insurance certificates reflecting evidence of all insurance required in Section 7.1(a); (ii) obtain City approval of each company or companies; and (iii) confirm that all policies contain the specific provisions required by section 7.1 a. Types of Insurance. At all times during the Term of this Fourth Agreement, Operator shall maintain insurance coverageasfollows:
i. Commercial General Liability. Operator shall provide at its expensea policy or policies of Commercial General Liability [ CGL] Insurance written on an ISO Occurrence form CG 00 01 07 98 or an equivalent form providing coverage at least as broad and which shall cover liability including, personal injury and advertising injury, bodily injury, property damage, and liability assumed under an insured’s contract ( including the tort liability of another assumedin a businesscontract). There shall be no endorsementor modification of the CGL Insurance limiting the scope of coverage for either “ insured vs. insured” claims or 75710495; 6
7 contractual liability. Operator shall maintain the same or equivalent CGL Insurance as described herein for at least ten (10) years following termination of this Fourth Agreement.
All costsof defenseshall be outside the policy limits. The Policy shall provide for coverage in amounts not less than three million dollars ($ 3,000,000) general aggregate limit, one million ($ 1,000,000) per occurrencefor Bodily Injury, PersonalInjury, or Property Damage, and five hundred thousand ($500,000) sublimit for “ Damage to Rented Premises,” one million ($ 1,000,000) of liquor liability coverage, and a $4 million excessliability policy. ii. Commercial Automobile Liability. For all of Operator's automobiles used in conjunction with the Project including owned, hired and non-owned automobiles, Operator shall keep in full force and effect, a policy or policies of Commercial Automobile Liabilit y Insurance written on an ISO form CA 00 01 12 90 or a later version of this form or equivalent form providing coverage at least as broad in the amount of one million dollars ($ 1,000,000) combined single limit per occurrence, covering bodily injury and property damagefor owned, non-owned and hired automobiles [“Any Auto”]. All costs of defenseshall be outside the policy.
iii. Excess Liability. Operator shall provide Excess Liability Insurance affording four million dollars ($ 4,000,000) or any other amount agreed to and approved by the City’s Risk Management Department, in excess of General Liability and Employer’s Liability limits afforded on primary policies. The coverage will be subject to the same terms, conditions, and exclusions found in the primary policies.
iii. Worker’s Compensation. For all of Operator's employees who are subject to this Fourth Agreement and to the extent required by the State of California, Operator shall keep in full force and effect, a Workers’ Compensation Insurance and Employers’ Liability Insurance to protect Operator against all claims under applicable stateworkers’ compensation laws. The City, its elected officials, and employees will not be responsible for any claims in law or equity occasioned by the failure of the Operator to comply with the requirements of this section. That policy shall provide at least the statutory minimums of one million dollars 1,000,000) for Bodily Injury by Accident for each accident, one million dollars 1,000,000) for Bodily Injury by Disease each employee, and a one million dollars 1,000,000) for Bodily Injury by Diseasepolicy limit.
A. Prior to the execution of the Fourth Agreement by the City, the Operator shall file the following signed certification:
I am aware of the provisions of Section 3700 of the Labor Code which requires every employer to be insured against liability for worker’s compensation or to undertake self- insurance, in accordancewith the provisions of that code, and I will comply with such provisions before commencing the performance of the work of the Contract.” b. Rating Requirements. Except for StateCompensation Insurance Fund, all insurancerequired by express provision of this Fourth Agreement shall be carried only by responsible insurance companies (1) that havebeengiven at least an “A” or “A-” and “V” rating by AM BEST, (2) that are authorized by the California InsuranceCommissioner to do businessin the Stateof California, and (3) that have beenapproved by the City.
i. Non-Admitted Carriers. The City will acceptinsurance provided by non-admitted, “surplus lines” carriers only if the carrier is authorized to do businessin the Stateof California and is 75710495; 6
8 included on the List of Eligible Surplus Lines Insurers [LESLI list] with a current AM BEST rating of no less than A:X.
c. EndorsementsRequired. Each policy required under Section 7.3 of this Fourth Agreement shall expressly provide, and an endorsementshall be submitted to the City, that:
i. Additional Insureds. Except asto Workers Compensation, the City and its respective elected officials, officers, employees, agents, and representatives shall be named as additional insureds.
ii. Primary and Non-Contributory. The policies are primary and non-contributing to any insuranceor self-insurancethat may becarried by the City of Chula Vista, its electedofficials, officers, employees, agents, and representatives with respect to operations, including the completed operations if appropriate, of the Named Insured. Any insurance maintained by the City of Chula Vista and its elected officials, officers, employees, agents, and representativesshall be in excessof Operator’s insurance and shall not contribute to it. iii. Waiver of Subrogation. Operator’s insurer will provide a Waiver of Subrogation in favor of the City for each required policy providing coverage for the Term required by this Fourth Agreement.
iv. Written Notice. Except asprovided for under California law, the policies cannot becanceled, non-renewedor materially changedexcept after thirty ( 30) calendardaysprior written notice by Operator to the City by certified mail, as reflected in an endorsement which shall be submitted to the City, except for non-payment of premium, in which caseten (10) Calendar Days’ notice shall be provided.
A. The words “ will endeavor” and “but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents, or representatives” shall be deleted from all certificates.
d. Additional Insurance. Operator may obtain additional insurance not required by this Fourth Agreement. If the contractor maintains higher limits than the minimums shown above, the City requires and shall be entitled to coveragefor the higher limits maintained by Operator.
Deductibles/Self Insured Retentions. All deductibles and self-insuranceretentions on any policy shall be the responsibility of Operator. Deductibles and self-insurance retentions shall be disclosed to and approved by the City at the time the evidence of insurance is provided. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self -insured retentions as respectsthe City, its officers, officials, employees and volunteers; or the Operator shall provide a financial guaranteesatisfactory to the City guaranteeing payment of lossesand related investigations, claim administration and defenseexpenses. e. Policy Changes. Operator shall not modify any policy or endorsementthereto which increases the City' s exposureto loss for the duration of this Fourth Agreement. f. Reservation of Rights. The City reservesthe right, from time to time, to review the Operator's insurance coverage, limits, and deductible and self-insured retentions to determine if they are acceptableto the City.
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9 g. Not a Limitation of Other Obligations. Insurance provisions under this section shall not be construed to limit the Operator’s obligations under this Fourth Agreement, including Indemnity. h. Material Breach. Failure to maintain, renew, or provide evidence of renewal during the Term of this Fourth Agreement may be treated by the City asa material breachof contract.
7.2 Insurance – City’s Obligation.
a. The City participates as a member of an ExcessInsuranceAuthority and will provide evidence to the extent requestedby the Operator.
ARTICLE VIII. INDEMNITY
8.1 Indemnity Defense and Hold Harmless. To the maximum extent allowed by law, Operator shall defend, indemnify, protect and hold harmlessthe City its elected and appointed officers, employees, volunteers, contractors, and agents (collectively “ Indemnified Parties”), from and againstany and all claims, demands, causesof action, costs, expenses, liability, loss, damageor injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions, negligence, or willful misconduct of Operator, its officials, officers, employees, agents, and contractors, arising out of or in connection with this Fourth Agreement or the use, occupancy, possession, or operation of LCDC. The obligations of Operator under this Section
8.1 shall apply to any and all claims, demands, causes of action, costs, expenses, liability, loss, damageor injury arising from, connected with, causedby or claimed to be causedby the active or passive negligent acts or omissions of the Indemnified Parties, whi ch may be in combination with the active or passivenegligent actsor omissions of the Operator, its employees, agentsor officers, or any third party. This indemnity provision doesnot include any claims, damages, liability, costs and expenses (including without limitations, attorneys’ fees) arising from the sole negligence or sole willful misconduct of one or more of the Indemnified Parties.
8.2 Costs of Defense and Award. Included in the obligations in Section 8.1 is the Operator’s obligation to defend, at Operator’s own cost, expenseand risk, any and all aforesaid suits, actions or other legal proceedingsof every kind that may be brought or instituted againstthe Indemnified Parties. Operator shall pay and satisfy any judgment, award or decree that may be rendered against the Indemnified Parties, for any and all legal expenseand cost incurred by eachof them in connection therewith.
8.3 Insurance Proceeds. Operator’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the Indemnified Parties.
8.4 Enforcement Costs. Operator agreesto pay any and all costs Indemnified Parties incur enforcing the indemnity and defenseprovisions set forth in this Article VIII.
8.5 City’s Indemnity Obligation. City shall have reciprocal obligations to defend, indemnify and hold Operator, its officers, employees, andagentsharmlesswith respectto claims, damages, liability, costs and expenses (including without limitation, attorneys’ fees) arising from the sole negligence or sole willful misconduct of the Indemnified Parties, including the related obligations contained in Sections
8.2 through 8.4.
8.6 Survival. A Party’s obligations under this Article VIII shall survive the termination of this Fourth Agreement.
ARTICLE IX. REPORTING, ACCOUNTING, AND EXPENSE REIMBURSEMENT 75710495; 6
10 9.1 Periodic Reports and Meetings. Operator shall provide City with quarterly periodic financial reports and shall meet and confer with City staff from time to time to review operational issuesnot specifically addressedby this Fourth Agreement. In the event that Operator anticipates an operating deficit that may affect the continued operation of the LCDC, Operator shall immediately arrangeto meet and confer with the City to determine how such deficits may be appropriately addressed.
9.2 Accounting Requirements and Financial Reports.
a. Books and Records. At all times during the Term, Operator shall maintain full and adequate records and accountsfor any and all LCDC revenuesand expenditures in a manner that complies with Generally Accepted Accounting Principles. Such records, and any and all related ledgers, books of accounts, invoices, vouchers, cancelled checks, and other records or documents shall be made available to the City, or its designees, upon five ( 5) days prior written notice. City to keep all donors and grant information confidential, in compliance with the California Public Records Act. Operator shall provide such assistanceas may be reasonably required in the course of such inspection. The City further reservesthe right to examine and re-examine said books, records and data during the four (4) year period following termination of this Fourth Agreement or completion of all work hereunder, and Operator shall in no event dispose of, destroy, alter, or mutilate said books, records, accounts, and data in any manner whatsoever during that time period. b. Financial Reports. Operator shall provide City with a quarterly report of its financial condition in a form reasonably satisfactory to the City’s Director of Finance. Each report shall include a Profit and Loss Statement, Balance Sheetand Statement of Cash Flows. The quarterly financial reports should include year-to-date information for the quarters ending on September 30, December 31, March 31 and June30 of eachfiscal year. The reports shall be due by the first day of the third month following each quarter (i.e., December 1st, March 1st, June 1st, and September 1stof eachyear), In addition, Operator shall notify the City Manager within thirty ( 30) days of the occurrence of any event that has or is expectedto have a material impact on LCDC operations or Operator’s financial condition.
c. Required Audits. Every other fiscal year, Operator shall engage an independent, licensed, certified public accountant, reasonablyapprovedby City to conduct a financial audit of Operator’s books and records. The audit shall be preparedat Operator’s cost and provided to City by no later than November 1 of the audit year.
d. Performance Audit. The City is entitled to engage an independent auditor to complete one performance audit at the City’s expenseduring calendar year 2028. Operator shall cooperate in all respectswith the audit, including providing the auditor with accessto all documents necessary to complete the audit.
ARTICLE X. TERMINATION
10.1 Termination for Breach. Either party may terminate this Fourth Agreement earlier than the natural expiration date if the other party hasmaterially defaulted in its obligations and the terminating party has provided the defaulting party with written notification of such determination, and the defaulting party hasrefused to cure the default within thirty ( 30) days of such notice. If the default is such that the cure will require longer than 30 days, the time for cure will be extended for the period of time reasonably necessaryto complete the required work, provided, however, the defaulting party must promptly begin the required cure and diligently prosecutessameto completion. 75710495; 6
11 10.2 Natural Termination of this Agreement. In the event that either party elects not to extend this Fourth Agreement past the Initial Term, upon sixty ( 60) days written notice from City, Operator, at its sole cost, shall immediately take all necessaryand appropriate stepsto transfer LCDC fauna to another qualified institution for continued care and maintenance. LCDC fauna that Operator determines cannot reasonably be transferred shall be otherwise disposed of as Operator deems appropriate and in a mannerthat is consistentwith industry standards, provided, however, in no event shall Operator euthanize any animals, unlessand until the Operator hasinformed the City in writing at least 60 days in advanceof its intention to do so and provided the City with the option of taking control of the care thereof. Upon expiration or earlier termination of this Fourth Agreement, title to LCDC FF& E transferred from the City to Operator pursuant to the February 6, 2010 Operating Agreement shall automatically revert and transfer back to the City. Operator shall fully cooperatein effectuating such transfer.
10.3 Injunctive Relief. If the Operator commits a breachor actions that constitute anticipatory breachof any of the covenants or conditions contained in this Fourth Agreement, and such occurrence or actions remain uncorrected for a period of thirty ( 30) days or more following written notice describing such breach, City and its successorsand assigns, without regard to whether City or its successorsand assignsare an owner of any land or interest therein to which thesecovenants relate, may institute and prosecuteany proceedings at law or in equity to abate, prevent or enjoin any such violation or attempted violation or to compel specific performance by Operator of its obligations hereunder. No delay in enforcing the provisions hereof as to any breach or violation shall impair, damage or waive the right of any party entitled to enforce the provisions hereof or to obtain relief againstor recover for the continuation or repetition of such breachor violations or any similar breach or violation hereof at any later time.
a. Additional Time for Cure. In the event that the breach cannot be cured within the 30-day timeframe identified above, Operator shall immediately notify City in writing of its inability to cure, describing the reasonfor the inability to cure, and provide a date by which the cure shall be accomplished. If the City, in its sole and absolute discretion, deemssuch explanation of the delay reasonable, it shall provide Operator with additional time to cure suchbreachanda second notice with the date by which the cure shall be accomplished.
10.4 Additional Remedies. In addition to the termination rights contained in Sections 10.1, 10.2, and
10.3 hereof, City and Operator shall each have any other remedies available at law, equity, or other proper proceedings.
ARTICLE XI. NOTICE
11.1 Notices. Unless otherwise specifically permitted by this Fourth Agreement, all notices or other communications required or permitted under this Fourth Agreement shall be in writing, and shall be personally delivered; or sentby registeredor certified mail, postageprepaid, return receipt requested, and shall be deemedreceived: (a) if personally delivered, upon the date of delivery to the addressof the person to receive such notice, (b) if mailed in accordancewith the provisions of this paragraph, two ( 2) businessdays after the date placed in the United Statesmail, or (c) if mailed other than in accordancewith the provisions of this paragraphor mailed from outside the United States, upon the date of delivery to the addressof the person to receive such notice. Notices shall be given at the following addresses:
If to City: The City of Chula Vista
Attn: City Manager
276 Fourth Avenue
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12 Chula Vista, CA 91910
With a copy to: City Attorney [ sameaddress]
Director of Finance [sameaddress]
If to OPERATOR: Living Coast Discovery Center
Attn: Executive Director
1000 Gunpowder Point Drive
Chula Vista, CA 91910-1201
With copy to: Mishell ParrenoTaylor
Akerman LLP
633 West Fifth Street, Suite 6400
Los Angeles, CA 90071
ARTICLE XII. MISCELLANEOUS PROVISIONS
12.1 Headings. All article headingsare for convenience only and shall not affect the interpretation of this Fourth Agreement.
12.2 Gender & Number. Whenever the context requires, the useherein of (i) the neuter gender includes the masculine and the feminine gendersand (ii) the singular number includes the plural number.
12.3 Reference to Paragraphs. Each reference in this Fourth Agreement to a section refers, unless otherwise stated, to a section in this Fourth Agreement.
12.4 Incorporation of Recitals. All recitals herein are incorporated into this Fourth Agreement and are made a part hereof ascontractual terms.
12.5 Covenants and Conditions. All provisions of this Fourth Agreement expressedaseither covenants or conditions on the part of the City or the Operator, shall be deemed to be both covenants and conditions.
12.6 Integration. This Fourth Agreement and the Exhibits and referencesincorporated into this Fourth Agreement fully express all understandings of the Parties concerning the matters covered in this Fourth Agreement. No change, alteration, or modification of the terms or conditions of this Fourth Agreement, and no verbal understanding of the Parties, their officers, agents, or employees shall be valid unless made in the form of a written change agreed to in writing by both Parties or an amendment to this Fourth Agreement agreed to by both Parties. All prior negotiations and agreementsare merged into this Fourth Agreement.
12.7 Severability. If any portion of this Fourth Agreement shall be held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, the remaining provisions shall remain enforceableto the fullest extent permitted by law if enforcement would not frustrate the overall intent of the parties (assuch intent is manifested by all provisions of the Fourth Agreement, including such invalid, void or otherwise unenforceable portion).
12.8 Drafting Ambiguities. The Parties agreethat they are aware that they have the right to be advised by counsel with respectto the negotiations, terms and conditions of this Fourth Agreement, and the decision of whether or not to seek advice of counsel with respect to this Fourth Agreement is a decision which is the sole responsibility of eachParty. This Fourth Agreement shall not be construed 75710495; 6
13 in favor of or against either Party by reason of the extent to which each Party participated in the drafting of the Fourth Agreement.
12.9 Conflicts Between Terms. If an apparentconflict or inconsistency exists betweenthe main body of this Fourth Agreement and the Exhibits, the main body of this Fourth Agreement shall control. If a conflict exists between an applicable federal, state, or local law, rule, regulation, order, or code and this Fourth Agreement, the law, rule, regulation, order, or code shall control. Varying degrees of stringency among the main body of this Fourth Agreement, the Exhibits, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other immediately upon the identification of any apparent conflict or inconsistency concerning this Fourth Agreement.
12.10 Prompt Performance. Time is of the essenceof each covenant and condition set forth in this Fourth Agreement.
12.11 Good Faith Performance. The parties shall cooperate with each other in good faith, and assist eachother in the performance of the provisions of this Fourth Agreement.
12.12 Further Assurances. City and Operator each agree to execute and deliver such additional documents asmay be required to effectuate the purposesof this Fourth Agreement.
12.13 Exhibits. Eachof the following Exhibits is attachedhereto andincorporated herein by this reference:
Exhibit A – Nature Center Land
Exhibit B – Permits and Contracts
Exhibit C – City In-Kind Services
Exhibit D – Port Property Tideland Use and Occupancy Permit
12.14 Conflict of Interest.
a. No member, official or employee of City or Operator shall have any personal interest, direct or indirect, in this Fourth Agreement, nor shall any such member, official or employee participate in any decision relating to the Fourth Agreement which affects his or her personal interests, thoseof his/her immediate family, or the interestsof any corporation, partnership or association in which he or she is, directly or indirectly, interested. b. Operator warrants that it hasnot paid or given, and will not pay or give, any third personany money or other consideration for obtaining this Fourth Agreement.
12.15 Non- liability of City Officials and Employees. No member, official or employee of City shall be personally liable to Operator or any successorin interest in the event of any default or breach by City or for any promise which may become due to Operator or successoror on any obligation under the terms of this Fourth Agreement.
12.16 Compliance with Law. City and Operator agreeto comply with all the requirements now in force, or which may hereafter be in force, of all municipal, county, stateand federal authorities pertaining to the ownership and operation of the LCDC, all improvements constructed thereon, and all operations conducted thereon.
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14 12.17 Jurisdiction and Venue. The venue for any suit or proceeding concerning this Fourth Agreement, the interpretation or application of any of its terms, or any related disputes shall be in the County of San Diego, Stateof California.
12.18 Municipal Powers. Nothing contained in this Fourth Agreement shall be construedasa limitation upon the powers of the City as a chartered city of the State of California.
12.19 Attorneys’ Fees. Should any litigation ( including any proceedings in a bankruptcy) or arbitration be commencedbetweenthe parties hereto or their representativesconcerning any provision of this Fourth Agreement or the rights and duties of any person or entity hereunder, the party or parties prevailing in such litigation or arbitration shall be entitled, in addition to such other relief as may be granted, to the attorneys’ fees and court or arbitration costsincurred by reasonof such litigation or arbitration, including attorneys’ feesandexperts’ feesincurred in preparation for or investigation of any matter relating to such litigation or arbitration.
12.20 Administrative Claims Requirements and Procedures. No suit or arbitration shall be brought arising out of this Fourth Agreement, against the City unless a claim has first been presentedin writing and filed with the City and acted upon by the City in accordancewith the proceduresset forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which areincorporated by this referenceasif fully setforth herein, and such policies and procedures used by the City in the implementation of same. Upon request by City, Operator shall meetandconfer in good faith with City for the purposeof resolving any dispute over the terms of this Fourth Agreement.
12.21 No Third- Party Beneficiaries. The parties to this Fourth Agreement acknowledge and agreethat the provisions of this Fourth Agreement are for the sole benefit of City and Operator and not for the benefit, directly or indirectly, of any other person or entity, except as otherwise expressly provided herein.
12.22 Successors in Interest. This Fourth Agreement and all rights and obligations created by this Fourth Agreement shall be in force and effect whether or not any Parties to the Fourth Agreement have been succeededby another entity, and all rights and obligations created by this Agreement shall be vestedand binding on any Party's successorin interest.
12.23 No Partnership. Nothing contained in this Fourth Agreement shall be deemed or construed to create a partnership, joint venture or any other similar relationship between the parties hereto or causeCity to be responsiblein any way for the debtsor obligations of Operator or any other person.
12.24 Approval. Except as otherwise expressly provided in this Fourth Agreement, where the consent or approval of aParty is required or necessaryunder this Fourth Agreement, the consentor approval shall not be unreasonably withheld, conditioned, or delayed.
12.25 Assignments.
a. City Approval Required. The qualifications and identity of the Operator are of particular concern to City. Operator recognizesthat it is becauseof such qualifications and identity that City is entering into this Fourth Agreement with Operator. Therefore, no voluntary or involuntary successorin interest of Operator shall acquire any rights or powers under this Fourth Agreement except with the prior written approval of City in its sole discretion. Any purported assignmentin violation of this Section shall be void. 75710495; 6
15 b. Permitted Transfers. Notwithstanding anything in this Fourth Agreement to the contrary, Operator may, without the prior written approval of City, but upon 30 days advance written notice, assign or otherwise transfer its interest in this Fourth Agreement and its rights and powers under this Fourth Agreement ( a “ Permitted Transfer”) to any holding company, corporation, association or entity which is or becomes a parent, subsidiary or affiliate of Operator provided that Operator retains substantial managementand control thereof, or to any successorof Operator by reason of change of name, merger, consolidation, reorganization, dissolution, lender acquisition or sale of Operator interests or assets, provided that, the transfereeassumesthe rights and powers of Operator under this Fourth Agreement.
12.26 Condition Precedent. It is understood that as a condition precedentto any action to approve this Fourth Agreement, City must consider and adopt the appropriate resolution. Said resolution must contain the findings required by law. City agreesto use due diligence in processing the matter to hearing before the City Council.
12.27 No Waiver. No failure of either Party to insist upon the strict performance by the other of any covenant, term or condition of this Fourth Agreement, nor any failure to exercise any right or remedy consequentupon a breach of any covenant, term, or condition of thi s Fourth Agreement, shall constitute a waiver of any such breachof such covenant, term or condition. No waiver of any breach shall affect or alter this Fourth Agreement, and each and every covenant, condition, and term hereof shall continue in full force and effect to any existing or subsequentbreach.
12.28 Signing Authority. Each Party representsthat the personsexecuting this Fourth Agreement on behalf thereof havefull authority to do so and to bind such parties to perform pursuant to the terms and conditions of this Fourth Agreement. Concurrently with Operator’s submission of this Fourth Agreement to the City for execution, Operator will submit to City a copy of documentsevidencing the due formation and nature of Operator and the signatory’s authority to sign on behalf of Operator.
12.29 Counterparts. This Fourth Agreement may besigned in multiple counterpartswith the sameforce andeffect asif all original signaturesappearedon onecopy; and in the event this Fourth Agreement is signed in counterparts, eachcounterpart shall be deemedan original and all of the counterparts shall be deemedto be one agreement.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK. NEXT PAGE IS SIGNATURE PAGE.]
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16 SIGNATURE PAGE
TO
FOURTH AMENDED AND RESTATED OPERATING AGREEMENT
Living Coast Discovery Center, Chula Vista]
IN WITNESS WHEREOF, the parties have executedthis Fourth Agreement asof the date set forth below their signature.
CITY:
THE CITY OF CHULA VISTA
By: ___________________________
John McCann, Mayor
Date: _______________________
Attest: APPROVED AS TO FORM:
Kerry Bigelow, City Clerk MARCO A. VERDUGO
City Attorney
Date: Date: _______________________
OPERATOR:
LIVING COAST DISCOVERY CENTER
By: _________________________
Risa Baron, Board Chair
Date: ________________________
By: _________________________
Ben Vallejos, Executive Director
Date: ________________________
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Exhibit A
Nature Center Land
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Exhibit B
Permitsand Contracts
State of California Coastal Conservancy
Grant/ Funding Agreements:
Grant Agreement #84-67
Grant Agreement # 84- 83
Grant Agreement #87-035
Grant Agreement # 95- 012
Grant Agreement #05-073
United States Fish and Wildlife Service
Easements
Grant/ Funding Agreements:
Agreement #801817M292
Agreement # 816806J219
Agreement #816807G1060
Agreement # 816807G1094
Agreement #816809J031
San Diego Unified Port District
Grant/Funding Agreements:
Agreement - Document 53847
Agreement - Document 53889
State of California – Department of Parks and Recreation Grant/ Funding Agreements:
Project #GF-37-018; Contract #50-13-016
Project # WC- 37- 001; Contract # C2009415
Project #UC-37-003; Contract # C2011022
Project # GF- 37-084; Contract # C5028015
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Exhibit C
City “ In- Kind” Services
Maintenance of Facilities
City, through its Public Works Department, at its sole cost, shall provide maintenance services and materials for LCDC facilities, infrastructure, built- in exhibits, and life support equipment in order to keep such items in operating condition in a manner commensuratewith the provision of such services and materials to other City facilities, with a target of maintaining the LCDC in accordancewith industry standardsfor similar facilities or better (“Routine Maintenance”). City’s obligations hereunder shall exclude the maintenanceand repair work required for (a) temporary exhibits, (b) custodial maintenance and repair of any and all exhibit exteriors, and exhibit contents; (c) the coded entrancegate; and (d) any new improvements or facilities installed by Operator during the term except where Operator’s installation and City’s obligation for maintenance thereof is approved in writing by City in advancein accordancewith Section 5.5 of the Fourth Agreement.
In addition to Routine Maintenance, City’s obligations hereunder shall include the obligation to repair or replace, as necessary, any failed infrastructure or life support equipment item necessaryfor the full and lawful operation of the LCDC and the preservation and exhibit of LCDC Wildlife (“ Key Facility Repair or Replacement”). City commits to expending up to $40,000 annually in labor and materials toward Key Facility Repair or Replacement during the Term of the Fourth Agreement, with any additional City funding subject to City approval in its sole discretion. Operator shall be responsible, subject to City' s prior reasonableapproval, for any Key Facility Repair or Replacementwork it decides is necessaryabove and beyond City’s commitment hereunder.
With the exception of the Key Facility Repair or Replacementobligation, the above described services and standardsmay be subject to modification in the event City budget related issuesmaterially affect the standardsupon which such services are delivered to City’s other facilities. Prior to implementing any such modifications in services, including any initial modification of service required below the standardof servicesexisting asof the Effective Date, City agreesto provide Operator reasonablenotice of such changeand to reasonably consider Operator’s input regarding same, with the sharedobjective of maintaining the highest possible LCDC physical appearance, condition, and functionality.
IT Services
City, through its ITS Department, at its sole cost, shall provide Operator hardware, software, andsupport services for LCDC telecommunications and computing systems ( including telephone and data transmission services) at level of quality similar to other City facilities for all currently installed IT related systemsat the LCDC. Any additional hardware/software needs (upgrades/replacement) will be chargedto the LCDC at the cost to acquire such hardware/software and shall require the prior approval of the ITS Department.
Additionally, the City shall provide the following support services:
PersonnelIT account support
Desktop support
Internet access
Intranet services
Backup and data recovery
Cyber Security Protection services and response
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The Operator shall reimburse the City for:
Microsoft 365 Accounts/Licenses, which include:
o MS Office Applications
o Email Account
o One Drive Cloud Storage
o SharePoint accountsand departmental file storage
As of the Effective Date, the approximate cost is $39 per month for each full- time employee with a dedicated workstation, and $ 7 per month for each part time or maintenance employee sharing a workstation. Theserates are subject to changeat any time.
City will not provide support for non-Microsoft approved applications.
The Operator’s staff will abide by all City IT Policies, including Internet Web filtering, and shall not modify or alter any City IT hardware, software, or systems.
The above-described services may be subject to modification in the event City budget related issues materially affect the standardsupon which such services are delivered to City’s other facilities. Prior to implementing any modifications in services, including any initial modification of service required below the standardof services asthe Effective Date, City agreesto provide Operator reasonablenotice of such change.
CPR Training
City shall continue to offer CPR training to LCDC employees and volunteers at the same rate the City pays for each trainee. As of January 2024, this rate is $21 per trainee. This rate is subject to change at any time.
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Exhibit D
Port Property Tideland Use and Occupancy Permit
Attached when negotiations complete]