HomeMy WebLinkAbout1984-03-06; City Council; 7659; Lease of Aquatic Park on middle Agua HediondaCi. . JF CARLSBAD - AGENDA JILL
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DEPT. P & R
TITLE:
LEASE OF AOUATIf PARK ON MIDDI E
AGUA HEDIONDA LAGOON
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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
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I CITf o, CARLSBAD - AGENDA L.LL C /
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MTG. 8-2-83
P & R
UILI; SUBLEASE AGREEMENT BETWEEN THE
CITY OF CARLSBAD AND THE YMCA
DEPT. HD.
CITY ATTY
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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 *
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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
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