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HomeMy WebLinkAbout1984-03-06; City Council; 7659; Lease of Aquatic Park on middle Agua HediondaCi. . JF CARLSBAD - AGENDA JILL AR« 7/D^r? MTft 3/6/84 DEPT. P & R TITLE: LEASE OF AOUATIf PARK ON MIDDI E AGUA HEDIONDA LAGOON nPPT HO. f^ CITY ATTvVfiA CITY MQR<^^ ^ S3 <3 en ,|S ci n<D V -H T3 Q) O 43 toin o-P' M to SQ) -HH ±> -P O -P m -"^m 0) rdrcj w m ••P «j <u <uin (D T3 en 3« ^g£rH IW -rH -H ooI o oo RECOMMENDED ACTION: City Council take a position on the issues addressed by the YMCA for use of Agua Hedionda Lagoon and direct staff to prepare the necessary document to amend the agreement. ITEM EXPLANATION Last summer, the Council discussed the sublease of Agua Hedionda Lagoon by the "Y". At that time, staff was directed to add a 90-day cancellation clause to the contract. The document was finally approved on August 2 and sent to the "Y" for their signature. After reviewing the agreement, the "Y" had several concerns. The issues that need to be resolved are: 1. Exclusive vs. non-exclusive water use The City Parks and Recreation Department has requested non-exclusive use in this area, i.e. City could use it, too. "Y" agrees if City insurance will cover those using lagoon who are not under YMCA supervisi on. 2. Default The "Y" would like this paragraph included in lease: "Should default be made in the performance of any, of the terms or conditions of this sublease and such default shall continue for thirty (30) days after sublessee has received notice in writing from sublessor of such default, sublessor may reenter, take possession of the demised premises, and remove any and all persons and property of sublessee therefrom. Default as hereinabove used shall be limited to sublessee's (a) abandonment and vacation of the property (failure to occupy and operate the property for thiety (30) consecutive days shall be deemed an abandonment and vacation); (b) failure to remove any lien of any kind against the property within thirty (30) days of the lien being recorded against the property; (c) failure to properly provide and maintain sanitary facilities and improvements. Any waiver by sub- lessor of any default committee by sublessee shall not constitute a waiver of any subsequent default." 3. Long term lease The City changed the original agreement as suggested by the "Y" to a 90-day cancellation clause. The YMCA is asking for a long-term lease based on the need for long-range planning with capital improvements and staffing commitments. The lease with SDG&E, however, still super- sedes the sublease. If the agreement is terminated by the City or SDG&E, Page 2 of Agenda Bill # the sublease with the "Y" would also end. This statement will be written into the contract. The City Attorney says these decisions must be made by the Council. The Parks and Recreation Director has no problem with the YMCA proposal. EXHIBIT: 1. Agenda Bill dated August 2, 1984 2. Lease 3. Letter dated November 18, 1983 from the YMCA ! f n I CITf o, CARLSBAD - AGENDA L.LL C / -4S-/ MTG. 8-2-83 P & R UILI; SUBLEASE AGREEMENT BETWEEN THE CITY OF CARLSBAD AND THE YMCA DEPT. HD. CITY ATTY CITY MGR.. ouu§trcu og oz3 Oo RECOMMENDED ACTION: City Council adopt Resolution No. 7270 approving a sublease between the City oiF Carlsbad and the North Coast Family Young Men's Christian Association for use of the middle waters of Agua Hedionda Lagoon to conduct a recreational program. ITEM EXPLANATION: At their meeting on July 5, 1983, the City Council directed staff to add a 90-day cancellation clause to this agreement. This clause has now been included in the sublease. Refer to the attached agenda bill for additional details on the sublease. FISCAL IMPACT: City will incur some expenses when making reservations utilizing the YMCA land and materials. • EXHIBITS: 1. Resolution Mo. 7270 2. Agenda Bill No. 7427 3. Sublease Agreement between the City of Carlsbad and the North Coast Family YMCA. Exhibit 1 RESOLUTION NO. 7270 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING 3 AN AGREEMENT BETWEEN THE CITY OF CARLSBAD AND THE NORTH COAST FAMILY YOUNG MEN'S 4 . CHRISTIAN ASSOCIATION TO CONDUCT A RECREA- TIONAL PROGRAM ON THE MIDDLE PORTION OF 5 AGUA HEDIONDA LAGOON AND AUTHORIZING THE MAYOR TOJLXECUTE SAID AGREEMENT. 6 The City Council of the City of Carlsbad, California does hereby 7 resolve as follows: 8 1. That certain sublease between the City of Carlsbad and the 9 North Coast Family YMCA to conduct a recreational program in the 10 middle portion of Agua Hedionda Lagoon, a copy of which is attached 11 hereto marked "Exhibit A" and made a part hereof is approved. 12 2. That the mayor of the City of Carlsbad is hereby authorized 13 and directed to create said agreement for and on behalf of the City of 14 Carlsbad. 15 PASSED, APPROVED AND ADOPTED at regular meeting of the City 16 Council of the City of Carlsbad, California, held on the 2nd day 17 of August , 1983, by the following vote, to wit: 18 AYES: Council Members Casler, Lewis, Kulchin, Chick and Prescott 19 NOES: None 20 ABSENT: None * sL-\_^&^^.^ (—^^aJ^Q^ 27 28 22 MARY CASLER,; Mayor 23 ATTEST: 25 ALE™ L. RAUTENXRA^T City J?erk KAREN R. KUNDTZ, Deputy City Clerk 26 (SEAL) SUBLEASE THIS SUBLEASE, made and entered into as of by and between- CITY OF CARLSBAD, a municipal corporation ("Sublessor") and North Coast Family YOUNG MEN'S CHRISTIAN ASSOCIATION, a non-profit corporation ("Sublessee"). WITNESSETH: WHEREAS, Sublessor is the lessee of that certain real property of Rancho Aqua Hedionda Middle Lagoon Waters which is hereinafter described and is willing to sublease the same to Sublessee; and WHEREAS, Sublessee is desirous of hiring and subleasing the said described property from Sublessor for certain recreational purposes; NOW, THEREFORE, in consideration of the performance of the terms and conditions hereof, the parties mutually agree as follows: 1. Demised Premises. For and in consideration of the payment of the rents and performance by Sublessee of the covenants hereinafter contained, Sublessor hereby lets and Sublessee hereby hires and leases from Sublessor those certain premises more particularly described in Exhibit "A" attached hereto and incorporated herein by reference (the "Property"). 2. Use. The Property shall be used by Sublessee for the general purposes of recreation, sporting, fishing, and other purposes connected with Sublessee's recreational camping program, which use shall at all times be under the competent and effective supervision of agents, servants, and employees of Sublessee. Sublessee shall not use the Property for any commercial or business venture. Sublessee's use of the water, shall be non-exclusive. /!/ Exhibit 2 3. Term. The initial term of this Sublease sh?ll be for a period of ten (10) years commencing on the ' day of , 1983, and ending on the day of , 1993, This Sublease shall automatically be renewed for'three (3) successive five (5) year terms unless either party gives the other written notice at least sixty (60) days prior to the end of the initial term or any successive term that the Sublease is to terminate at the end of such term. Notwithstanding anything to the contrary in this paragraph, either party may terminate this agreement at any time by giving ninety (90) days prior notice to the other. 4. Rent. Sublessee agrees to pay to Sublessor the sum of ONE DOLLAR ($1.00) per year for the use and occupancy of the Property, receipt of which rent for the first (1st) year of the initial term of this Sublease is hereby acknowledged. 5. Improvements. Sublessee shall have the right, subject to the approval of San Diego Gas & Electric Company and City of Carlsbad, to construct and repair any recrea- tionally related improvement upon the Property, including, but not limited to, a combined boat and fishing pier. Sublessee agrees to keep the Property free and clear of any and all liens at all times. Upon the termination of this Sublease, either by its expiration or upon notice, Sublessee agrees, upon receipt of written request from Sublessor, to remove, at Sublessee's own expense, any and all structural or other improvements which may have theretofore been erected or constructed on the Property by Sublessee. The removal thereof shall be accomplished within sixty (60) days from and after the date of expiration or termination of this Sublease. 6. Subordination. This Sublease is subordinate to that certain written lease between Sublessor and San Diego Gas & Electric Company, dated March 4, 1957, a copy of which is attached hereto, marked Exhibit "B" and incorporated herein by reference, as amended April 1, 1962, a copy of which Amendment is attached hereto, marked Exhibit "C" and incorporated herein by reference. 7. Waste. Sublessee shall not commit, suffer, or permit any waste, nuisances, or unlawful acts on the Property and shall at all times maintain the same in a clean and sanitary condition in compliance with all applicable laws, rules, regulations, and ordinances respecting health and safety of the City of Carlsbad, the County of San Diego, and the State of California. 8. Sanitary Facilities. As further consideration for this Sublease, Sublessee agrees, at its own expense, to erect, provide, maintain, and service such suitable sanitary facilities as may be required for the comfort and needs of the persons entering upon or using the Property. 9. Hazards. Both parties recognize and agree that due to the operation of the tides, the flow of waters, and other causes not under the control of either party, certain subsurface obstructions, shoals, bars, and other potentially dangerous conditions may develop from time to time in and under the surface of the waters contiguous to the Property and Sublessee, its agents, servants, employees, permittees, licensees, invitees, and other persons using and entering upon said waters do so with specific knowledge and express notice, which notice Sublessee undertakes to give to all such persons of such conditions, and Sublessee and such persons specifically release and hold Sublessor harmless from and against any and all claims, demands, and liabilities for damages or injuries occasioned by or resulting from such subsurface conditions. This release is in addition to such other release _, (c) Reservations. Parks and Parks' groups have the right to reserve dates for use of the Property up to one (1) year prior to the date of the actual use. 13. Waiver. Any waiver by Sublessor of any breach of one or more of the terms, covenants, and conditions of this Sublease shall not be a waiver of any subsequent other breach of the same or of any other term or condition hereof. 14. Indemnity. Sublessee hereby agrees to indemnify, save, and hold Sublessor harmless from any and all loss, damage, injury, and claims resulting from any act or omission of Sublessee, its employees, agents, licensees, permittees, invitees, or other persons upon the Property with or without the consent of Sublessee, to the person or persons, or property or properties of any person, including injury to or death of any person in any way arising from use and occupancy of the Property by Sublessee, its agents, servants, employees, and other persons. Notwithstanding any of the above to the contrary, Sublessee shall not be responsible for and does not hold Sublessor harmless from any act or omission, which act or omission constitutes active negligence (whether direct, vicarious, or imputed) on behalf of Sublessor, its employees, or its agents. 15. Attorneys' Fees. In the event either party shall be required to commence any action or proceeding against the other by reason of any breach or claimed breach of any provision of this Sublease, to commence any action in any way connected with this Sublease, or to seek a judicial declaration of rights hereunder, the person pre- vailing in such action or proceeding shall be entitled to recover from the other person or to be reimbused the prevailing person's actual attorneys' fees and costs including, but not limited to, expert witness fees, witness fees, and any and all other fees and costs, whether or not the proceeding or action proceeds to judgment. 16. Construction. Whenever used in this Sublease, as the context requires, the singular number shall include the plural, the plural number shall include the singular, the masculine gender shall include the feminine and neuter, the feminine gender shall include the masculine and neuter, and the neuter gender shall include the masculine and feminine. 17. Headings and Captions. The headings and captions at the beginning of the various paragraphs and subparagraphs of this Sublease shall not be construed to be a substantive part of this Sublease and shall not in any way define, limit, expand, or affect any provision of this Sublease. 18. Notices. Notices to be given hereunder from one party to the other may be served in person or sent by certified mail to; SUBLESSOR: 1200 Elm Avenue Carlsbad, California 92008 SUBLESSEE: 200 Saxony Road Encinitas, California 92024 or such other place as the parties may designate. IN WITNESS WHEREOF, the parties hereto have caused this Sublease to be executed for and on behalf of each by and through their respectively authorized corporate officers as of the day and year first above written. SUBLESSOR: CITY OF CARLSBAD, a municipal corporation By ' , Mayor Attest: Clerk SUBLESSEE: NORTH COAST FAMILY YOUNG MEN'S CHRISTIAN ASSOCIATION, a non-profit corporation BY. Attest: Secretary The undersigned hereby consents to the foregoing Sublease. SAN DIEGO GAS & ELECTRIC COMPANY, a corporation By , President Attest: Secretary ni RECORDING REQUESTED BY: Mr. David Kulchin WHEN RECORDED, RETURN TO: Mr. David Kulchin North Coast Family YMCA 200 Saxony Road Encinitas, California 92024 MEMORANDUM OF SUBLEASE This Memorandum of Sublease is made as of 1983, by an between CITY OF CARLSBAD, a municipal corporation ("Sublessor") and NORTH COAST FAMILY YOUNG MEN'S CHRISTIAN ASSOCIATION ("Sublessee"), concerning that certain real property (the "Property" located in the City of Carlsbad, State of California, and more particularly described on Exhibit "A" attached hereto and incorporated herein by this reference. For good and adequate consideration, Sublessor subleases the Property To Sublessee, and Sublessee hires the Property from Sublessor, for the term and on the provisions contained in the Sublease, which is incorporated in this Memorandum by this reference. The term of said Sublease is ten (10) years, commencing , 1983, and terminating on ,1993, subject to three (3) successive five (5) year extensions, unless either party gives the other written notice at least sixty (60) days prior to the end of the initial term or any successive term that the Sublease is to terminate at the end of such term. Notwithstanding anything to the contrary in this paragraph, either party may terminate this agreement at any time by giving ninety (90) days prior notice to the other. This memorandum is not a complete summary of the Sublease. Provisions in this Memorandum shall not be used in interpreting the Sublease provisions. In the event of conflict between this Memorandum and other parts of the Sublease, the other parts of the Sublease shall control. Executed on the date first written above. SUBLESSOR; CITY OF CARLSBAD, a municipal corporation By_ , Mayor Attest: Clerk Attest: Secretary STATE OF CALIFORNIA COUNTY OF On ) ss, SUBLESSEE: NORTH COAST FAMILY YOUNG MEN'S CHRISTIAN ASSOCIATION, a non-profit corporation By , before me, the undersigned, a Notary Public in and for said State, personally appeared , known to me to be the Mayor of the City of Carlsbad, and known to me to be the person whose name is subscribed to the within instrument and acknowledged that _he executed the same on behalf of the City of Carlsbad, known to me to be the person who executed the within instrument on behalf of the corporation therin named and acknowledged that such corporation executed the within instrument pursuant to its charter. WITNESS my hand and official seal. NOTARY PUBLIC STATE OF CALIFORNIA ) ) ss. , COUNTY OF ) On , before me, the undersigned, a Notary Public in and for said State, personally appeared , known to me to be the of the corporation that executed the within instrument, and known to me to be the person who executed the within instrument on behalf of the corporation therein named, and acknowledged to me that such corporation executed the within instrument pursuant to its bylaws or a resolution of its board of directors. WITNESS my hand and official seal. NOTARY PUBLIC LEGAL DESCRIPTION OF MIDDLE LAGOON WATERS OWNED BY SAN DIEGO GAS & ELECTRIC COMPANY TO BE SUBLEASED BY CITY OF CARLSBAD TO THE Y.M.C.A. The certain portion of Lot "H" of Rancho Aqua Hedionda, according to the Map thereof No. 823, filed in the Office of the County Recorder of San Diego County described as follows: Commencing at Corner No. 1 of said Rancho Agua Hedionda; thence South 78 03' East along the Northeasterly line of said Lot "H" of Rancho Agua Hedionda, a distance of 1014.32 feet; thence leaving said Northeasterly line of Lot "H", South 30 48' East, a distance of 238.36 feet; thence South 76 46' East, a distance of 931,69 feet to a point of intersection with the Westerly right of way line of the Atchison, Topeka & Santa Fe Railway Company as said right of way is described in a Deed recorded September 13, 1948, in Book 2944 at Page 76 of said Official Records; thence South 83 33' 25" East, a distance of 167.89 feet to the TRUE POINT OF BEGINNING; thence from said TRUE POINT OF BEGINNING, North 26° 56' 40" West, a distance of 210.40 feet; thence North 62° 39' 20" East, a distance of 327,51 feet; thence South 26° 56' 40" East, a distance of 208.78 feet; thence South 53 40' 50" West, a distance of 257.37 feet; thence South 57 11' 50" West, a distance of 73.95 feet; thence North 26° 56' 40" West, a distance of 45.55 feet to the TRUE POINT OF BEGINNING: excepting from the above described property that certain portion thereof lying above Mean Sea level, United States Geological Survey Datum. EXHIBIT "A" ,/s March 4, 1957, lease between San Diego Gas & Electric Company (as Lessor) and City of Carlsbad (as Lessee) to be provided by Sublessor. EXHIBIT "BIIDH April 1, 1962, Amendment to Lease between San Diego Gas & Electric Company (as Lessor) and City of Carlsbad (as Lessee) to be provided by Sublessor. EXHIBIT "C" NORTH COAST FAMIL 200 Saxony Road P.O. Box 907 Encinitas, California 92024 Telephone: (619) 942-YMCA November 18, 1983 RECEIVED NOV 21 Ms. Marcia Backlund Carlsbad Parks & Recreation 1200 Elm Avenue Carlsbad, California 92008 Dear Marcia: As I explained to you, our legal counsel has reviewed the Aquatic Park sublease for approval from our YMCA Board of Management. At our October YMCA Board meeting the sublease was unanimously passed with three amendments. The first is a clarification of the "non-exclusive use" of the water. As you know, the YMCA had offered to take all the responsibility and liability for safe control of the water areas if exclusive use was designed in the lease. When the city made the decision to have non-exclusive use, our legal counsel felt it necessary for the liability issue and responsible parties to be more clearly indentified in the sublease as follows: A. Page 1. Section 2 -- new paragraph Sublessor acknowledges that since Sublessee's use of the property will be non-exclusive Sublessor shall be fully and solely responsible for any and all liabilities arising out of or in any way connected with any acts, occurrences, or activities conducted or occurring in or on the property which have not been authorized by sublessee and which are not under the direct supervision and control of the sublessee. Sublessor, for itself and behalf of its legal representatives, successors, assigns, officers, agents, employ- ees, attorneys, partners, and co-venturers, and each of them, shall and hereby does indemnify and hold harmless sublessee and its legal representatives, successors, assigns, officers, directors, shareholders, agents, employees, attorneys, partners and co-venturers and each of them from and against any and all claims, demands, liabilities, actions, causes of action, costs, expenses, attorney fees, and obligations arising out of or in any way connected with any acts, occurrances, SERVING OVER 8,000 FAMILIES IN THE COMMUNITIES OF DEL MAR, SOLANA BEACH, CARDIFF, ENCINITAS, LEUCADIA, OLIVENHAIN, RANCHO SANTA FE, LA COSTA AND CARLSBAD Ms. Marcia Backlund, Carlsbad Parks & Recreation Page 2 events, or activities which are conducted or occur in or on the property which are not authorized by subleasee and which are not under the direct supervision or control of sublessee. The second ammendment was a new section identifying the process in the event of "default" of either party with the addition of: B. Add Section Default Should default be made in the performance of any of the terms or conditions of this Sublease and such default shall continue for thirty (30) days after Sublessee has received notice in writing from Sublessor of such default, Sublessor may re-enter, take posses- sion of the demised premises, and remove any and all persons and property of Sublessee therefrom. "Default" as hereinabove used shall be limited to Sublessee's (a) abandonment and vacation of the Property (failure to occupy and operate the Property for thirty (30) consecutive days shall be deemed an abandonment and vacation; (b) failure to remove any lien of any kind against the Property within thirty (30) days of the lien being recorded against the Property; (c) failure to properly provide and maintain sanitary facilities and improvements. Any waiver by Sub- lessor of any default committed by Sublessee shall not constitute a waiver of any subsequent default. The final amendment was that the Board did not approve the addition of the sentence, ".,. .terminate this agreement at any time giving ninety (90) days prior notice to the other." The Board felt the sublease would now be a 90 day lease agreement rather than a five (5) year agreement. The concern, of course, is future planning of the site with only a 90 day commitment. Please contact me at the YMCA if you have any questions or concerns. Cordially, Kathy |tiggins, Executive Director KR:lcr