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Home My WebLink AboutCS Maria Freitas Park Deed Restrictiona� RECORDING REQUESTED BY: City of San Rafael WHEN RECORDED MAIL TO: Carlene McCart, Director San Rafael Community Services Depar P.O. Box 151520 San Rafael, CA 94915-1560 II I Ilil�llllllll Illllllill IIIII Illlllill III 2013-0058305 Recorded I REC FEE 0.00 Official Records I County of I liar in I RICHARD H. MIMI I Assessor -Recorder I County Clerk I I 01:34PIl 04 -Sep -2013 I Page 1 of 21 THIS SPACE FOR RECORDERS USE ONLY DOCUMENT TITLE Deed Restriction for Maria Freitas Park Resolution 13579of the City Council of the City of San Rafael THIS PAGE IS ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION ADDITIONAL RECORDING FEE APPLIES RECORDING REQUESTED BY: California Department of Parks and Recreation Office of Grants and Local Services Office of Grants and Local Services PO Box 942896 Sacramento, CA 94296-0001 Atten: Mary Baum DEED RESTRICTION I. WHEREAS, the City of San Rafael (herein referred to as "Owner) is recorded owner of the real property described in Exhibit A, attached and incorporated herein by reference (hereinafter referred to as the "Property"); and II. WHEREAS, the City of San Rafael (herein referred to as "Grantee"); and III. WHEREAS, the California Department of Parks and Recreation (hereinafter referred to as "DPR) is a public agency created and existing under the authority of Section 5001 of the California Public Resources Code (hereinafter referred to as the "PRC"); and IV. WHEREAS, Owner applied to DPR for grant funds available pursuant to the 2002 Resources Bond Act, Roberti-Z/berg-Harris -- Block Grant, for improvements on Property; and V. WHEREAS, DPR's Office of Grants and Local Services approved Grant RZ-21-034 (herein after referred to as "Grant") on the Property, subject to, among other conditions, recordation of this Deed Restriction on the Property; and VI. WHEREAS, but for the imposition of the Deed Restriction condition of the Grant, the Grant would not be consistent with the public purposes of the 2002 Resources Bond Act, Per Capita and the funds that are the subject of the Grant could therefore not have been granted; and VII. WHEREAS, Owner has elected to comply with the Deed Restriction of the Grant, as to enable Owner to receive the Grant funds and perform the work described in the Grant; NOW THEREFORE, in consideration of the issuance of the Grant funds by DPR, the undersigned Owner for its and for its assigns and successors - in -interest, hereby irrevocably covenants with DPR that the condition of the Grant (set forth at paragraphs 1-5 and in Exhibit B hereto) shall at all times on and after the date on which this Deed Restriction is recorded constitute for all purposes covenants, conditions and restrictions on the use and enjoyment of the Property that are hereby attached to the Deed to the Property as fully effective components thereof. 1. DURATION. This Deed Restriction shall remain in full force and effect and shall bid the Owner and all its assigns or successors -in -interest for the period running from 7/1/13 through 6/30/33. 2. TAXES AND ASSESMENTS. It is intended that this Deed Restriction is irrevocable and shall constitute an enforceable restriction within the meaning of a) Article XIII, Section 8, of the California Constitution; and b) Section 402.1 of the California Revenue and Taxation Code or successor statue. Furthermore, the Deed Restriction shall be deemed to constitute servitude upon and burden tot the Property within the meaning of Section 3712(d) of the California Revenue and Taxation Code, or successor stature, which survives a sale of tax -deed property. 2 3. RIGHT OF ENTRY. DPR or its agent or employees may enter onto the Property at times reasonably acceptable to Owner to ascertain whether the use restrictions set forth above are being observed. 4. REMEDIES. Any act, conveyance, contract, or authorization by Owner whether written or oral which uses or would cause to be used or would permit use of the Property contrary to the terms of this Deed Restriction will be deemed a violation and a breach hereof. DPR may pursue any and all available legal and/or equitable remedies to enforce the terms and condition of this Deed Restriction. In the event of a breach, and forbearance on the part of DPR to enforce the terms and provisions hereof shall not be deemed a waiver of enforcement rights regarding any subsequent breach. 5. SEVERABILITY. If any provision of these restrictions is held to be invalid, or for any reason becomes unenforceable, no other provision shall be affected or impaired. CITY OF SAN RAFAEL Signed:�/�i( NANCY MACKLE, City Manager Dated. August 27, , 2013 **NOTARTY ACKNOWLEDGEMENT ON THE NEXT PAGE** State of California County of Marin On Ay�-usr a7 before me, a Notary Public, Personally appeared /0-I ti e `/ "4,' KL & who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on the instrument, the City of San Rafael upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature. `5 - 49U2& -'- (Seal) r E. BEIRNE ge< p .fir ..:... D �.' COMM. #1936401 NOTARYPUBLIC-CALIFORNIA MARIN COUNTY L MY Comm. Expires June 10. 201.9 RESOLUTION NO. 13579 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL AUTHORIZING THE CITY MANAGER TO EXECUTE A DEED RESTRICTION FOR MARIA FREITAS PARK IN COMPLIANCE WITH MANDATES FOR FUNDING UNDER THE CALIFORNIA CLEAN WATER, CLEAN AIR, SAFE NEIGHBORHOOD PARKS, AND COASTAL PROTECTION ACT OF 2002. WHEREAS, the City of San Rafael entered into contract with the State of California to receive grant funding for park and recreation facility improvements under the CALIFORNIA CLEAN WATER, CLEAN AIR SAFE NEIGHBORHOOD PARKS, AND COASTAL PROTECTION ACT OF 2002; and WHEREAS, the City may apply for reimbursement of costs of the Freitas Park Renovation Project, Phase 2 up to $202,339; and WHEREAS, the California State Parks and Recreation Department, Office of Grants and Local Services, in order to ensure that property improved or acquired with grant monies are used for purposes consistent with the grant, the City must record a Deed Restriction.; and WHEREAS, said Deed Restriction must remain in full force and effect, binding the City for twenty years; and WHEREAS, said Deed Restriction shall be irrevocable; and WHEREAS, said deed restriction shall establish a right of entry to State agents or employees; and WHEREAS, said deed restriction provides the State with remedies should the City be in violation; WHEREAS, the City of San Rafael has determined that the restrictions do not impact the status of Freitas Park as a City -owned public recreation facility now or over the term of the deed restriction. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DOES RESOLVE, DETERMINE AND ORDER AS FOLLOWS: To authorize the City Manager to execute a Deed Restriction for Maria Freitas Park in compliance with mandates for funding under the California Clean Water, Clean Air, Safe Neighborhood Parks, and Coastal Protection Act of 2002. I, Esther C. Beirne, Clerk of the City of San Rafael, hereby certify that the foregoing Resolution was duly and regularly introduced and adopted at a regular meeting of the City Council of the City of San Rafael, held on Monday, the 5th of August, 2013, by the following vote, to wit: AYES: Councilmembers: Colin, Connolly & Vice -Mayor Heller NOES: Councilmembers: None ABSENT: Councilmembers: McCullough & Mayor Phillips Esther C. Beirne, City Clerk Exhibit A c n Z x z °'r r Dq ~� o � d a� 0 (D Z p fD w Z H M a n n w> a."(D rN z y oFj to 5 c mI in r CD xt CD z �w''�� Lo w r+ d M::� z co E-4 e -4-L v 4t J GRANT DEED CROCKER CITIZENS NATIONAL 1�ANK ana CARLOS R. F REITAS, as Trustees under tilt' Last Will ar1c+ Testament of MARIE FREITAS CRANE. Deceased. (Probat., NLIMOer 118:;0, Superior Court of the State of California, For the Couor,; of Marin) hereby GRANT to tyle CITY OF SAN RAFAEL. a 11ILMiCii lal. --or.-)oration. an unc ividec, u,u- �eigiall inter cst in anc1 to the iollowin g described real. 7ro,)ert'y in tae Cit:' of Sat-. Rafael., Cou.zty of Marin. State od' Calil'urnia: COMMENCING at gibe .most Pastv.rl%. c•or.her of Lut 1 as the same is show„ on the matj entit:len, ''Map of Terra Linda Unit 15", recorded August 16. 1J60 ii-. Map Boor: 10 at ja. e 72. Marin County Rec•orus, a, --d running Uienee along ti e boundary of said subdiivisio;i South 291 29156'' West 171. 36 feet: thence on a curve to the left wtiose radius is 690 feet and wnose center beams Souto 47° 34139" East torougn an angle of 42° 35121" an. are dista.icE: -af 5W. 88 feet- to the real' lot line betwee,h lots 8 avid 9 as shown orl the above maty (10 Maps 72); thence leavinu said subdivision Uoul,dary (10 Maps 72) Nortil 500 31'3 i' East 515. 66 feet: thence on a curve to tlhe right whose radius is 100.0 feet a 2c' whose center 'Dears SoUt-il 39° 38136" East t;irou ,-i an angle of 44° 38136" all are uistaaci' of 77, 33 Leet; thence North 30* 17147" East 156. 12 ieeL. t'wiiul-• Novi,t 66' a 7106" West 274. uo feet: t.le.,ce Nort.i •i7° ,11'30" West 39, 90 Leer to the ,:joiot of be-i11111r1 . n l�8 .on.J tah,a,•:� a:: area Oi . , al.•rc.s„ DATED- August �j It1oE. CFLOCE-ER CITIZENS NATIONAL BANK. Trustee 1 i - STATE OF CALIFORNIA, ......County r,f_... On this ..... ....................... rin � n .t f• - 1L:,._ ............................... l/, Ihi't• T. . �uu• onr• lh,nrsnnrl nine hnndrrtl rtxr!......... ........•---••----....�._�-••-----._.._......_.... fare nre, ,. - , .........................l..r,:.,...;.1.:' -..:. lJr.,;al-ri-1.1........................................................ . a Nolory P Stale of California, duly r.,unmic.cu,n d ,rlrr! rr-rsrwnll t Public, , apprnr C :�r . .__..... _2..__._.... RESOLUTION NO. 3674 RESOLUT1014 ACCEPTING A DEED WHEREAS, the heirs of tdanuel T. and Marla Pettencourt Freitas have offered to dedicatee to the City of San R'afaei a park site in Terra Linda; aria WHEREAS, the City of San Rafatil has a need for such a facility and the desire to develop same; and WHEREAS, the location Is desirable because of its accessability. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the Zity of San Rafael do hereby accept said deed with the full knowledge that a one-eighth (1/8) interest held by the Estate of "darle Freltas Crane must be purchased for the fair market value, ;3E IT FURTHER RESOLVED,that the City anroe to name the proposed park, "Manuel T. Freitas Park" in honor of the father of the donors and to maintain In perpetuity a park In Terra Linda bearing such a name. 1, W. C. CORNWELL, Clark of the City of San Rafael, .:alIfornla, hereby certify that the foregolnq resolution was duly and regularly introduced and adopted at a Regular meeting of the Council of sold City hold on Monday the 5th day of August Ig6B. by the following vote, to -wit: AYES., COUNCILMEN Bear, Barbier, Jensen and Miskimen NOES. COUNCILMEN None ABSENT; COUNCILMEN Mayor Be 9 Exhibit B State of California — Natural Resources Agency RE DEC 9 ?01 DEPARTMENT OF PARKS AND RECREATION GRANT CONTRACT 2002 Resources Bond Act GRANTEE City of San Rafael Roberti-Z'berg-Harris - Block Grant THE PROJECT PERFORMANCE PERIOD IS FROM Ju 01 01 thro u e30,20141 CONTRACT PERFORMANCE PERIOD IS FROMJuly 01.2011 ttuouah hrne 30._2031 The Grantee agrees to the terns and conditions of this Contract, and the State of California, acting through its Director of Parks and Recreation pursuant to the Roberti- Z'berg-Harris - Block Grant In the California Clean Water, Clean Air, Safe Neighborhood Parks, and Coastal Protection Act of 2002, agrees to fund the total Project Grant Amount Indicated. THESE FUNDS ARE FOR THE ACQUISITION AND DEVELOPMENT OF NEIGHBORHOOD, COMMUNITY, AND REGIONAL PARKS AND RECREATION LANDS AND FACILITIES, City of San Rafael Grantee B! (5lgnalulofAuthorized Representative) Title: Q Manager Date: /Z—/5--2-0// The General and Special Pmvlelone attached are made a part of and Incorporated into the Conlmct. STA 4 CALIF ' IA DF.P OF�AiRI D R TION By: Date: .� CERTIFICATION OF FUNDING CO231211 - - X000000400400 $ 53,538 1 Clean Water, Cin Air, Csti Protc Fd, CA p 13790-103-6029(1) + 33111- 111 $ 53,538 �Cerbfy vw. cNrtrqu PCA PROJB1091 702 PHAS1.0(005T.B.A NO 1 hey own Personal krwwfedge Dud budgeted funds are m1able for this enm mhmnm 0 1112 GRANT CONTRACT This AGREEMENT is hereby made and agreed upon by the State of California, acting through the California Department of Parks and Recreation (hereinafter referred to as "STATE") and City of San Rafael (hereinafter referred to as "GRANTEE") pursuant to the Roberti-Z'bero-Harris - Block Grant in the California Clean Water, Clean Air, Safe Neighborhood Parks, and Coastal Protection Act of 2002. RECITALS 1. On or about 3/20/2006 the STATE and GRANTEE entered into Grant Contract #CO209663 (hereinafter referred to as "PREVIOUS CONTRACT") for an amount not to exceed 53.536. This grant was funded in accordance with the California Clean Water, Clean Air, Safe Neighborhood Parks, and Coastal Protection Act of 2002, also known as Proposition 40. 2. The completion date set forth in the PREVIOUS CONTRACT was 6/30/2011. The GRANTEE did not complete the grant project(s) or spend its entire allocation prior to the contract liquidation date and, therefore, is not discharged from its obligations under the PREVIOUS CONTRACT. 3. Pursuant to the PREVIOUS CONTRACT, STATE disbursed grant funds to GRANTEE in the total amount of 53.536, leaving a balance in the amount of 53,536 for use by GRANTEE. 13. On or about June 30, 2011, Chapter 33 of the Statutes of 2011 (hereinafter "Budget Bill of 2011/12") was enacted. Item 3790-401 stated that all grant funds previously appropriated from Proposition 40 that have not been expended by grant recipients prior to June 30, 2011 shall revert to the funds from which the appropriations were made. This provisions effectively terminated STATE's authority to pay out further grant funds under the PREVIOUS CONTRACT. Pursuant to section 3790-103-6029 of the Budget Bill of 2011/12, the Legislature appropriated an amount equivalent to the balance remaining on June 30, 2011 in the 2002 California Clean Water, Clean Air, Safe Neighborhood Parks, and Coastal Protection Bond Fund. The Legislature made these funds available for grants previously appropriated from Proposition 40 funds which are deemed to have the highest priority statewide consistent with Section 5096.633 of the Public Resources Code. These funds are available for encumbrance on or before June 30, 2013. Per Government Code section 16304, the liquidation period of these funds is extended to on or before June 30, 2015. 5. Pursuant to the Budget Bill of 2011/12, item number 3790-103-6029 and 3790-401, STATE and GRANTEE agree to enter into this Agreement (hereinafter referred to as "CONTRACT"). which establishes terms and conditions that allow the expenditure of the newly appropriated grant funds established by Senate Bill 87 to complete the project(s) set forth in the CONTRACT. STATE and GRANTEE agree to cancel the PREVIOUS CONTRACT and agree to be bound by the terms and conditions of this CONTRACT. TERMS AND CONDITIONS The STATE, pursuant to the Per Capita in the California Clean Water, Clean Air, Safe Neighborhood Parks, and Coastal Protection Act of 2002, and through authority granted by section 3790-103-6029 of the Budget Bill of 2011/12, hereby grants to GRANTEE a sum (hereinafter referred to as "GRANT MONIES") not to exceed 148,803 subject to the terms and conditions of this CONTRACT, the GUIDES, any legislation applicable to the ACT, and the APPLICATION. In consideration thereof GRANTEE agrees to abide by the terms and conditions of this CONTRACT as well as the provisions of the ACT. GRANTEE acknowledges that the GRANT MONIES are not a gift or a donation. In addition to the terms and conditions of this CONTRACT, the parties agree that the terms and conditions contained in the documents set forth below are hereby incorporated into and made part of this CONTRACT. a. The PROCEDURAL GUIDE; b. The submitted APPLICATION(S). I. GENERAL PROVISIONS A. Definitions As used in this CONTRACT, the following words shall have the following meanings: 1. The term "ACQUISITION" means to obtain fee title of real property or a permanent easement which provides the recipient permanent rights to use the property for the purposes of the project. Leases or rentals do not constitute ACQUISITION. 2. The term "ACT" means the statutory basis for these grant programs. 3. The term "APPLICATION" means the individual project application packet(s) for a grant(s) pursuant to the enabling legislation and/or grant program process guide requirements. 4. The term "COMPETITIVE GRANT PROGRAM" means the Urban Park Act of 2001, the Murray Hayden Urban Youth Services Program, the State Urban Parks and Healthy Communities Act, the Roberti-Z'berg-Harris Nonurban Needs Basis, Roberti- Z'berg-Hams Urban Needs Basis or California Youth Soccer and Recreation Development program. 5. The term "CONTRACT PERFORMANCE PERIOD" means the period of time described in Section 1 of this CONTRACT. The "CONTRACT PERFORMANCE PERIOD" means the period of time during which the GRANTEE must use the property acquired or developed with the grant for purposes consistent with the grant. 2 6. The term "DEVELOPMENT" means capital improvements to real property by means of construction of permanent or fixed features of the property. 7. The term "GRANT PERFORMANCE PERIOD" means the period of time described in the Section I of this contract during which eligible costs can be charged to the grant and which begins on the date of appropriation and ends on the fund liquidation date. 8. The term "GRANT SCOPE" means the items listed in the GRANT SCOPE/Cost Estimate Form(s) found in the APPLICATION(s). 9. The term 'PROCEDURAL GUIDE" means the document identified as the "Procedural Guide for the 2002 Resources Bond Act [subprogram name]. The GUIDE provides the procedures and policies controlling the administration of the grant. 10. The term "PROJECT TERMINATION" refers to the non -completion of a GRANT SCOPE. 11. The term "REASONABLE HOURS OF OPERATION" means that the facility is available to the public during days and times consistent with the type of property, the amount of the STATE GRANT MONIES invested in the project, the time of year, and the operating hours of similar facilities in nearby communities. 12. The term "STATE" refers to the State of California acting by and through the California Department of Parks and Recreation. B. Project Execution 1. Subject to the availability of GRANT MONIES in the ACT, the STATE hereby grants to the GRANTEE a sum of money not to exceed the amount stated in Section I of this CONTRACT, in consideration of, and on condition that, the sum be expended in carrying out the purposes set forth in the GRANT SCOPE(S), and under the terms and conditions set forth in this CONTRACT. The GRANTEE shall assume the obligation to furnish any additional funds that may be necessary to complete the GRANT SCOPE(S). 2. All changes and alterations to the GRANT SCOPE must be approved in writing by the STATE. GRANTEE'S failure to comply with this provision may be construed as a breach of the terms of the CONTRACT and result in the enforcement of the Project Termination provision section E. found in this CONTRACT. If the contract was funded under a COMPETITIVE GRANT PROGRAM, the GRANTEE agrees that any other project changes or alterations which deviate from the project selection criteria responses provided by the GRANTEE in the original competitive APPLICATION must be submitted in writing to the STATE for prior approval. This requirement is necessary to maintain the integrity of the competitive grant process. 3 3. The GRANTEE shall complete the GRANT SCOPE in accordance with the time of the GRANT PERFORMANCE PERIOD set forth on page one of this CONTRACT, and under the terms and conditions of this CONTRACT. 4. The GRANTEE shall comply with the California Environmental Quality Act (Public Resources Code, Section 21000, et. seq., Title 14, California Code of Regulations, Section 15000 et. seq.). 5. The GRANTEE shall at all times comply with. all applicable current laws and regulations affecting ACQUISITION and DEVELOPMENT projects, including, but not limited to, legal requirements for construction contracts, building codes, health and safety codes, and laws and codes pertaining to individuals with disabilities, including but not limited to the Americans With Disabilities Act of 1990 (42 U.S.C. §12101 et.seq.) and the California Unruh Act (California Civil Code §51 et seq.) 6. If the GRANT SCOPE includes ACQUISITION of real property, the GRANTEE agrees to comply at all times with all applicable State and local laws or ordinances affecting relocation and real property ACQUISITION. 7. GRANTEE agrees that lands acquired with GRANT MONIES shall not be acquired through the use of eminent domain. C. Project Costs 1. GRANTEE agrees to abide by the GUIDES. 2. GRANTEE acknowledges that the STATE may make reasonable changes to its procedures as set forth in the GUIDES. If the STATE makes any changes to its procedures and guidelines, STATE agrees to notify GRANTEE within a reasonable time. D. Project Administration 1. If GRANT MONIES are advanced for ACQUISITION projects, the GRANT MONIES shall be placed in an escrow account by GRANTEE. If GRANT MONIES are advanced and not expended, GRANTEE shall return the unused portion of the advanced funds to the STATE within 60 days after the close of escrow. 2. If GRANT MONIES are advanced for DEVELOPMENT projects, the advanced funds shall be placed in an interest bearing account by GRANTEE until expended. Advanced funds must be spent within six months from the date of receipt, unless the STATE provides GRANTEE with a written waiver of this requirement. Interest earned on the advanced funds shall be used on the project as approved by the STATE. If GRANT MONIES are advanced and not expended, the unused portion of the grant and any interest earned shall be returned to the STATE within 60 days after project completion or the end of the GRANT PERFORMANCE PERIOD whichever is earlier. 3. The GRANTEE shall submit written project status reports within 30 calendar days after the STATE has made such a request. In any event, the GRANTEE shall provide the 4 STATE a report showing total final project expenditures within 60 days of project completion or the end of the GRANT PERFORMANCE PERIOD, whichever is earlier. The GRANT PERFORMANCE PERIOD is identified on page one of this CONTRACT. 4. The STATE shall have the right to inspect all property or facilities acquired and/or developed pursuant to this CONTRACT and the GRANTEE shall make such property or facilities available for inspection upon 24 hours notice from the STATE. 5. The GRANTEE and the STATE agree that if the GRANT SCOPE includes DEVELOPMENT, final payment may not be made until the work described in the GRANT SCOPE is complete. 6. Any grant funds that have not been expended by the GRANTEE shall revert to the STATE. E. Deed Restriction 1. In order to ensure that property improved or acquired with GRANT MONIES are used for purposes consistent with the grant, if the property acquired or developed with GRANT MONIES is owned by the GRANTEE, the GRANTEE must record a deed restriction on the title to property prior to receiving payments for any purpose other than acquisition. The Deed Restriction shall include the following elements: a. DURATION. (a) This Deed Restriction shall remain in full force and effect and shall bind Owner(s) and all his/her/their assigns or successors -in -interest during the CONTRACT PERFORMANCE PERIOD. b. TAXES AND ASSESMENTS. The Deed Restriction shall be irrevocable and shall constitute an enforceable restriction within the meaning of a) Article XIII, section 8, of the Califomia Constitution; and b) section 402.1 of the California Revenue and Taxation Code or successor statue. Furthermore, the Deed Restriction shall be deemed to constitute a servitude upon and burden to the Property within the meaning of section 3712(d) of the California Revenue and Taxation Code, or successor statue, which survives a sale of tax -deeded property. c. RIGHT OF ENTRY. STATE or its agent or employees may enter onto the Property at times reasonably acceptable to Owner(s) to ascertain whether the use restrictions set forth above are being observed. d. REMEDIES. Any act, conveyance, contract, or authorization by Owner(s) whether written or oral which uses or would cause to be used or would permit use of the Property contrary to the terms of the Deed Restriction will be deemed a violation and a breach hereof. STATE may pursue any and all available legal and/or equitable remedies to enforce the terms and conditions of the Deed Restriction. In the event of a breach, any forbearance on the part of STATE to enforce the terms and provisions hereof shall not be deemed a waiver of enforcement rights regarding any subsequent breach. F. Project Termination 1. In the event of non -completion of a GRANT SCOPE, the GRANTEE shall return all GRANT MONIES to the STATE. 5 2. This CONTRACT may be rescinded, modified or amended only by mutual written CONTRACT between the GRANTEE and the STATE, unless the provisions of this CONTRACT provide that mutual CONTRACT is not required for a rescission, modification or CONTRACT. 3. Failure by the GRANTEE to comply with the terms of this CONTRACT, as well as any other grant contracts or other CONTRACTs that GRANTEE has entered into with STATE, may be cause for suspension of all obligations of the STATE under this CONTRACT unless the STATE determines that such failure was due to no fault of the GRANTEE. In such case, STATE may reimburse GRANTEE for eligible costs properly incurred in performance of this CONTRACT despite non-performance of the GRANTEE. To qualify for such reimbursement, GRANTEE agrees to mitigate its losses to the best of its ability. 4. The GRANTEE agrees that in the event of a breach of this CONTRACT, the STATE may seek, in addition to all remedies provided by law, specific performance of the CONTRACT in accordance with the purpose of the CONTRACT to preserve, protect and increase the quantity and quality of parks, public recreation facilities, opportunities and/or historic resources available to the people of the State of California. G. Budget Contingency Clause For purposes of this program, if funding for any fiscal year is reduced or deleted by the budget act, executive order, the legislature, or by any other provision of statute, the STATE shall have the option to either cancel this contract with no liability occurring to the STATE, or offer a CONTRACT to GRANTEE to reflect a reduced grant amount. This paragraph shall not require the mutual CONTRACT as addressed in Paragraph E, subsection 2, of this CONTRACT. H. Indemnity 1. The GRANTEE shall waive all claims and recourse against the STATE including the right to contribution for loss or damage to persons or property arising from, growing out of or in any way connected with or incident to this CONTRACT except valid legal claims arising from the concurrent or sole negligence of the STATE, its officers, agents, and employees. 2. To the fullest extent of the law, the GRANTEE shall indemnify, hold harmless and defend the STATE, its officers, agents and employees against any and all claims, demands, damages, costs, expenses or liability costs arising out of the ACQUISITION, DEVELOPMENT, construction, operation or maintenance of the property described as the project which claims, demands or causes of action arise under California Government Code Section 895.2 or otherwise except for liability arising out of the concurrent or sole negligence of the STATE, its officers, agents, or employees. 3. The GRANTEE agrees that in the event the STATE is named as codefendant under the provisions of California Government Code Section 895 et. seq., the GRANTEE R shall notify the STATE of such fact and shall represent the STATE in the legal action unless the STATE undertakes to represent itself as codefendant in such legal action in which event the STATE shall bear its own litigation costs, expenses, and attomey's fees. 4. The GRANTEE and the STATE agree that in the event of judgment entered against the STATE and the GRANTEE because of the concurrent negligence of the STATE and the GRANTEE, their officers, agents, or employees, an apportionment of liability to pay such judgment shall be made by a court of competent jurisdiction. 5. The GRANTEE shall indemnify, hold harmless and defend the STATE, its officers, agents and employees against any and all claims, demands, costs, expenses or liability costs arising out of legal actions pursuant to items to which the GRANTEE has certified. The GRANTEE acknowledges that it is solely responsible for compliance with items to which it has certified. 1. Financial Records 1. The GRANTEE shall maintain satisfactory financial accounts, documents and records for the project and make them available to the STATE for auditing at reasonable times. The GRANTEE also agrees to retain such financial accounts, documents and records for five years following project termination or final payment, whichever is later. 2. The GRANTEE shall keep such records as the STATE shall prescribe, including records which fully disclose (a) the disposition of the proceeds of GRANT MONIES, (b) the total cost of the project; (c) the amount and nature of project funds provided by other sources, and (d) any other records that will facilitate an effective audit of use of the GRANT MONIES. 3. The GRANTEE agrees that the STATE shall have the right to inspect and make copies of any books, records or reports pertaining to this CONTRACT or matters related thereto during regular office hours. The GRANTEE shall maintain and make available for inspection by the STATE accurate records of all of its costs, disbursements and receipts with respect to its activities under this CONTRACT. Such accounts, documents, and records shall be retained by the GRANTEE for 5 years following final payment of GRANT MONIES. 4. The GRANTEE shall use a generally accepted accounting system. J. Use of Facilities 1. The GRANTEE agrees to operate and maintain any property acquired or developed with the GRANT MONIES for the duration of the CONTRACT PERFORMANCE PERIOD. 2. The GRANTEE agrees that during the CONTRACT PERFORMANCE PERIOD, any Income earned by the GRANTEE from a STATE approved non -recreational use of 7 the project shall be used for recreational purposes at the project, or, if approved by the STATE, for recreational purposes within the GRANTEE'S jurisdiction. 3. If the APPLICATION does not specify the days and hours of operation, the facility will have REASONABLE OPERATING HOURS. The GRANTEE shall request the STATE'S approval before making any changes to the hours of operation. 4. If the APPLICATION specifies the hours of operation, the facility shall have operating hours consistent with the times proposed in the APPLICATION and be open to members of the public in accordance with the project selection criteria in the APPLICATION, unless otherwise granted permission by the STATE and except as noted under the special provisions of this CONTRACT or under provisions of the enabling legislation and/or grant program. 5. The GRANTEE agrees that for the duration of the CONTRACT PERFORMANCE PERIOD, any property acquired or developed with GRANT MONIES under this CONTRACT shall be used only for the purposes of the grant and consistent with the GRANT SCOPE referenced in the APPLICATION unless prior written approval is given by the STATE. 6. The GRANTEE agrees to use any property acquired or developed with GRANT MONIES under this CONTRACT only for the purposes of the grant and no other use, sale, or other disposition shall be permitted except as authorized by a specific act of the legislature in which event the property shall be replaced by the GRANTEE with property of equivalent value and usefulness as determined by STATE. 7. The property acquired or developed with GRANT MONIES may be transferred to another eligible entity only if the successor entity assumes the obligations imposed under this CONTRACT and with written approval of the STATE. 8. Any real property acquired or developed with GRANT MONIES (including any portion of it or any interest in it) may not be used as security for any debt or mitigation, without the written approval of the STATE provided that such approval shall not be unreasonably withheld as long as the purposes for which the GRANT MONIES were awarded are maintained. Any such permission that is granted does not make the STATE a guarantor or a surety for any debt or mitigation, nor does it waive the STATE'S rights to enforce performance under this CONTRACT. 8. All real property, or rights thereto, acquired with GRANT MONIES shall be subject to an appropriate form of restrictive title, rights, or covenants required and approved by the STATE. If the project property is taken by use of eminent domain, GRANTEE shall reimburse the STATE an amount at least equal to the amount of GRANT MONIES received from the STATE or the pro rated full market value of the real property, including improvements, at the time of sale, whichever is higher. 9. If eminent domain proceedings are initiated against GRANTEE, GRANTEE shall notify STATE within 10 days of receiving the complaint. T K. Nondiscrimination 1 The GRANTEE shall not discriminate against any person on the basis of sex, race, creed, color, national origin, age, religion, ancestry, sexual orientation, disability, medical condition, or marital status in the use of property or a specific facility included in the GRANT SCOPE(S). 2. The GRANTEE shall not discriminate against any person on the basis of residence, and shall not apply differences in admission or other fees on the basis of residence. Fees shall be reasonable and not unduly prevent use by economically disadvantaged members of the public. L. Severability If any provision of this CONTRACT or the application thereof is held invalid, that invalidity shall not affect other provisions or applications of the CONTRACT which can be given effect without the invalid provision or application, and to this end the provisions of this contract are severable. M. Liability STATE assumes no responsibility for assuring the safety of construction, site improvements or programs related to the GRANT SCOPE. The STATE'S rights under this CONTRACT to review, inspect and approve the GRANT SCOPE and any final plans of implementation shall not give rise to any warranty or representation that the GRANT SCOPE and any plans or improvements are free from hazards or defects. N. Assignability Without the written consent of the STATE, the GRANTEE'S interest in and responsibilities under this CONTRACT shall not be assignable by the GRANTEE either in whole or in part. O. Section Headings The headings and captions of the various sections of this CONTRACT have been inserted only for the purpose of convenience and are not a part of this CONTRACT and shall not be deemed in any manner to modify, explain, or restrict any of the provisions of this CONTRACT. 7 State of California County of Marin On Personally appeared before me, a Notary Public, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on the instrument, the City of San Rafael upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal)