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HomeMy WebLinkAbout1990-06-18; City Council; 690-2; Agua Hedionda LagoonPARKS & RECREATION COMMISSION - AGENDA BILL DEPT. TITLE: AGUA HEDIONDA LAGOON (ACTION) DEPT. HD. CITY ATTY CITY MGR. RECOMMENDED ACTION: Review and endorse the recommended action identified on the attached agenda bill as prepared for City Council consideration. ITEM EXPLANATION: See the attached draft City Council agenda bill. EXHIBITS; 1. Draft City Council Agenda Bill - Agua Hedionda Lagoon - Response to litigation threat from Department of Boating and Haterways -ts -4 ^ °\ CITY OF CARLSBAD - AGENDA BILL AB# - MTG. DEPT. TITLE: AGUA HEDIONDA LAGOON - RESPONSE TO LITIGATION THREAT FROM DEPARTMENT OF BOATING AND WATERWAYS HFPT HD. CITY ATTY T.ITY MGR. oz3Oo RECOMMENDED ACTION: That the Council adopt Resolution No.rescinding the supplement to the agreement between the City and Dr. Sarkaria for the use of Agua Hedionda Lagoon to relieve the operator of the obligation not to launch any boat without insurance and direct staff to initiate steps to terminate the lease with SDG&E. ITEM EXPLANATION The City Council, on November 4, 1980 adopted Resolution No. 6343 approving a supplement to the agreement between the City of Carlsbad and Dr. Sarkaria, the operator of Snug Harbor Marina, providing that boats launched from his property onto Agua Hedionda Lagoon must have $300,000 of liability insurance naming the City as an additional insured. A copy of the Reso- lution and supplement is attached as Exhibit 1. It has pro- vided a good framework during the last ten years for the public to enjoy the Lagoon at an acceptable level of risk to the City. The liability insurance requirement has protected the City effectively against liability from the power boat and jet ski users of the Lagoon. Insurance companies involved in the Campsie case have recently settled the personal injury action for $24,000 with all of the additional attorneys fees and costs of defense being paid as well. The elimination of insurance will subject the City's Self Insurance Fund to additional liabilities. Unfortunately, the Department of Boating and Waterways has mischaracterized the situation and threatened the City with litigation. A copy of their letter in that regard, dated October 18, 1989, is attached as Exhibit 2. The Department claims the City is indirectly imposing an illegal insurance requirement on its "concessionaire". The fact of the matter is that Dr. Sarkaria has voluntarily required insurance as a condition of allowing people to use his private property. He told the Department that in a letter dated June 1, 1989, a copy of which is attached as Exhibit 3. The Department sought to buttress its position by obtaining the Attorney General's opinion. The City Attorney, in a letter dated June 6, 1989, pointed out the fundamental misunderstand- ing of the situation that underlies the Department's position. A copy is attached as Exhibit 4. The City Attorney believes the Department is improperly attempting to impose its will on a private citizen and that the City could prevail in litigation against the State. However, the matter is complex involving the ownership of the Agua Hedionda Lagoon, tide lands rights Agenda Bill # Page Two and navigable waterways issues and it is not recommended that we enter into extensive litigation with the California Attorney General. A controversy between the City and State would serve no useful purpose since both agencies share a common objective of providing recreation access to the Lagoon. City staff has also had discussion with SDG&E regarding the Lagoon. SDG&E has suggested that the City take no action regarding the Department of Boating and Waterways threatened litigation and continue business as usual. SDG&E has offered to defend the City against the claim by the State. A copy of a letter dated May 17, 1990 is attached to the Agenda Bill. Staff does not recommend that Council accept SDG&E's offer. The issue of ownership of the Lagoon should be settled between SDG&E and the State. The question of ownership of the Lagoon is also an issue in the Encina Powerplant Expansion Proposal and may be clarified during that permit process. It is therefore recommended that Council adopt the attached Resolution which would release Dr. Sarkaria of his obligation under the supplemental agreement, cancel the lease with SDG&E, and leave the existing Lagoon Regulations Program and Ordinance in place. If the Council approves this recommendation, Dr. Sarkaria, as a private property owner, remains free to condi- tion use of his property as he sees fit, however, there would no longer be a requirement that the City be named as an addi- tional insured in boaters insurance policies. The City also would no longer have an obligation to defend and indemnify SDG&E and the Company would have to defend itself from claims. However, the City would still have a liability exposure since it would be exercising regulatory control over the Lagoon. If the Council is able to identify public benefits which cannot otherwise be achieved without City involvement, then it is a policy question whether or not to continue the program and assume the liability as a General Fund obligation. The Risk Manager reports that insurance is not currently available although the Attorney General suggests we could solve the problem by increasing the permit fee and using the proceeds to fund insurance. That, to our knowledge, is not a viable alternative. Staff feels that accepting this liability is a prudent risk to take since the present regulations have been effective by reducing conflicts among users and increasing safety at the Lagoon. City staff has also considered other alternatives. The most viable alternatives the Council may want to consider are as follows: 1. Get Out of Lagoon Business Terminate the Lease with SDG&E and repeal lagoon regulations. The City is presently responsible for lagoon 013 Agenda Bill # Page Three liability because we impose regulations on the users and assumed all of SDG&E's responsibility in the lease which is renewable from year to year. The City agreed to enter into the lease and accepted the liability because it was believed the Lagoon was private property and that was the only way the public could use it. The facts have changed since then. The reason for the lease is no longer true. The Department and the Attorney General have concluded that the Lagoon is navigable waterways. That means the public has a right to use it. The lease, therefore, is of no benefit to the City or the public and burdens the City with a substantial liability, not only for the inner Lagoon, but for all of the SDG&E lagoon properties. There does not appear to be any reason why the City's General Fund should be at risk for SDG&E's liabilities. If this alternative is selected by the Council, it is recommended that the Department of Boating and Waterways be put on notice that they are now responsible for establishing any necessary safety regulations on the Lagoon. Dr. Sarkaria remains free to take such risk management, safety regulation or other insurance actions as he considers appropriate to protect his own interests. The City would eliminate it's liability by terminating its lease with SDG&E and repealing the Lagoon regulations. If Council concurs, staff will return with the necessary documents. 2. Restrict Use of the Lagoon Minimize the risk by additional use restrictions. The primary source of accidents over the years has resulted from either jet skis or ski boats. The City may impose a 5 mph speed limit or otherwise restrict the uses allowed on the Lagoon. That would eliminate most of the permit revenue but also eliminate most of the need for the patrol boat and other City regulations since ski boats and jet skis would likely no longer use the Lagoon. FISCAL IMPACT It currently costs the City approximately $47,000 per year to operate the Lagoon Program with revenues projected for fiscal year 1989-90 at $17,000. The recommended alternative would reduce the City's cost by approximately $15,000 a year since the City would no longer need a part-time clerk to monitor the insurance requirement. A slight increase in permit revenue could occur since boaters who previously were unable to provide 014 Agenda Bill # _ Page Four evidence of insurance may now be able to purchase a permit. However, the City would have a higher risk exposure since there would no longer be any assurance the boaters using the Lagoon would have insurance. The fiscal impact for the two alternatives are as follows: 1. Terminating the SDG&E lease and discontinuing the Lagoon Regulatory Program would result in savings between $34,000 - $47,000 per year in direct costs plus eliminate a substantial contingent liability which has not been quantified although the City Attorney reports one case was settled this year for $24,000 although the extent of City liability, if any, is not known. 2. Adoption of new regulations would also save the $15,000 described in the recommended alternative. This savings would be offset by projected revenue loss of approximately $13,500 from lost permit sales for power boats and jet skis. Resolution No. Exhibit #1 - Resolution No. 6343 Exhibit #2 - Department of Boating and Waterways letter dated 10/18/89 Exhibit #3 - Dr. Sarkaria letter dated 6/1/89 Exhibit #4 - City Attorney letter dated 6/6/89 Exhibit #5 - SDG&E letter dated 5/17/90 - 015 RESOLUTION NO. 1 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF 2 | CARLSBAD, CALIFORNIA WAIVING ITS RIGHTS AND RELIEVING DR. SARKARIA OF HIS OBLIGATIONS UNDER 3 THE NOVEMBER 6, 1980 SUPPLEMENT TO HIS AGREEMENT WITH THE CITY OF CARLSBAD FOR USE OF AGUA HEDIONDA 4 LAGOON. 5n The City Council of the City of Carlsbad, California i does hereby resolve as follows: 1. The November 6, 1980 supplement to the agreement 8 between the City of Carlsbad and Snug Harbor Marina owner for 9 the use of Agua Hedionda Lagoon approved by Resolution No. 6343 10 is rescinded. The City Council hereby waives the City's rights under that supplement and relieves Dr. Sarkaria of his 12 obligations to comply with the provisions of the supplement. 13 2. That all the terms and conditions of the July 14 1, 1980 agreement between the City and marina operator on file 15 with the City Clerk shall remain in full force and effect. 16 PASSED, APPROVED AND ADOPTED at a Regular Meeting of 17 the City Council of the City of Carlsbad on the day of 18 19 1990, by the following vote, to wit: 20 AYES 21 NOES 22 ABSENT: 23 24 25 CLAUDE A. LEWIS, Mayor 26 ATTEST: 27 28 016 p \ E 5 <" v ^ H- £ £ 3 r. p 8? 6 7 8 9 10 11 12 13 »!! 161! 17 il 13 19 20 21 22 23 24 25 26 27 28 A RESOLUTION OF j\ii: CITY COUNCIL 07 TRi: CITY OF CAF.L?E?'.», CALIFORuIA, .VrPn-JVIUG A SiTi'LE^UNT TO f.GilEEMh'.-I'L' BFTV.'f'cN 'r!'E CITV OF CARLf'D-.U A^D SLUG HrKIlC? V^T-Jl'iA OWNT.R FOR UHV, OJ-1 AGUA HEDIONDA LAGOON v.iiLREBy rr.E OVEHATOK AGREES XOT TO LAUNCH ANY BOAT WITHOUT II!SUR?.NCE ?Nu AljTHORlZIKG THE MAYOR TO EXErUTi" SAID AGrEEMEMT. The City Council of the City of Carlsbad, California, does hereby resolve as fellows: 1. That that certain Supplement, to Agreement between the City and Marina Operator dated July 1, 1980, whereby Marina Operator agrees not to launch any boat without insurance, a copy of which is attached hereto as Exhibit A and made a part hersof, is hereby approved. 2. That the Mayor of the City of Carlsbad is hereby authorized and directed to execute said agreement for and on behalf of the City of Carlsbad. PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad, California, held on the 4th day of Novr-irAer , 1980 by the following vote, to wit: AYES: Council Members Packard, Casler, Anear, Lewis end Kulchin NOES: None ABSENT: "^ ATTEST: RONALD C. PACKARD, Mayor ALETHA L. RAUTENKRANZ, City Clcrld (SEAL)017 EXHIBIT TO CITY COL":VII UT^il :;c. 5343 SUPPLEMENT TO AGREEMENT BETWEEN THE CITY OF CARLSEAD AND SNUG HARBOR MARINA OWNER FOR USE OF AGUA HEDIOMDA LAGOON This agreement is made this /j ^ day of /J o v£n\ ft f/ft 1980 between the CITY OF CARLSBAD, a municipal corporation of the State of California (hereinafter rsferred to as "City") and Dr. Daljit Sarkaria (hereinafter referred to as "Marina Operator"). RECITALS; .• 1. The City and Marina Operator entered into an agreement, dated July 1, 193O/ whereby the City granted Marina Operator non-exclusive rights to provide launching and marina facilities for boats on the surface of the Agua Hadionda Lagoon. 2. Marina Operator in return for such rights agreed to certain * obligations regarding the use of the Lagoon. 3. City wants to be assured that the people using the Lagoon for boating purposes are aware of the need to observe safety rules and are responsible people financially and otherwise, who will conform their conduct to th* rules in order to insure a safe Lagoon. To help accom- plish that purpose, both City and Marina Operator agree that liability insurance should be required as a condition of launching a boat on the Lagoon. 4. City and Marina Operator wish to supplement their agreement whereby the Marina Operator will agree not to launch any boat that is not insured. - 018 NOW, THEREFORE, in consideration of their mutual covenants and conditions, the parties hereto agree as follows: 1. The agreement between City and Marina Operator, dated July 1, 1930, on file with the City Clerk and incorporated by reference herein is hereby supplemented and amended to add the following provision as a part of said agreement: (8) The Marina Operator will not launch or allow to be launched any boat onto the surface of the Agua Hedionda Lagoon without first insuring that at least a $300,000 liability insurance policy exists on the boat, naming the City as an additional insured, which cannot be cancelled without notice to the City. IN WITNESS WHEREOF, the parties hereto have executed this « agreement on the day and year first above written. CITY OF CARLSBAD, a municipal corporation of the State of California ATTEST: "V By RONALD C. PACKARD, Mayor ///y^gxA ALETHA L. RAUTENKRANZ, City Clerk SNUG HARB APPROVED AS TO FORM: x"lVINCENT .F. By--- City Attorney DANIEL S.^HENTSCHKE, Assistant City Attorney -2- 019 ST».-| 2>. CMI>C*NI* —n*( ((SOURCES DEPARTMENT OF BOATING AND WATERWAYS -«9 S STUHT CA 93114.77?! 9141 « OCT 18\19)9 lTr 0|ieA.. CITY ATTO« City Council Cicy of Carlsbad 1200 Elm Avenue Carlsbad, California 92008-1989 Dear Council Members: I am writing to you directly'to bring to your attention a long- standing problem of concern to the Department of Boating and Waterways. For the past eight years, the Department has attempted to resolve issues of boating., access at Agua Hedionda Lagoon. As a statutory responsibility/ the Department of Boating and Waterways reviews state and local ordinances/ rules or regulations relating to vessels for conformity with State law. Section 660 of the Harbors and Navigation Code limits local agencies to regulation of boating in four specified areas: special use areas (defined in Section 651), time-of-day restrictions/ speed zones/ and sanitation/pollution control. In 1980, the City of Carlsbad enacted a boating ordinance imposing a $300/000 liability insurance requirement on boaters as a precondition to use of a navigable waterway/ Agua Kedionda Lagoon. Boaters were also required to list the City of Carlsbad on their liability policies. ''This requirement had the effect of closing the Lagoon to all boaters outside of the City of Carlsbad/ i.e./ boaters who were uninformed of the insurance requirement/ boaters who chose not to insure their craft/ boaters who are insured under general provisions of homeowner's policies (under 25 horse power) but did not show the City as an additional insured in such policy/ and boaters who were already insured with companies which would not list the City of Carlsbad as an additional insured at any cost. After lengthy/ but unsuccessful, negotiations with the City to remove this requirement/ a formal opinion was sought from the Attorney General to address this issue. The Opinion (Mo. 80-901) found the precondition of liability insurance to be in violation of State law. 020 TYUTRTT Carlscaci Ciry Council -2- np- Memoers ^' ' '"••:* Subsequent co than opinion, t-e City recealeci the oor-'on ~* --« ordinance imposing an insurance requirement. " "* ~~ Recently, we received complaints from the public -aaa~^ na an insurance requirement imposed by a concessionaire who "oVa-ar-a the boat launching facility. We found that the City, fi-ouoh t'-e concessionaire, was imposing an insurance r^qui^-eme-- * as "a precondition to use of the launching facility, i «" Che concessionaire is required to checlc that boaters have 'a 'pe-nT- - before launching their boats on the Lagoon. To obtain a per-nl- from the City, a. boater must produce an insurance policy wn'''<-h names the City as an additional insured. In investigating this complaint, we attempted to launch a state- owned vessel on this navigable waterway and were denied access solely on the basis of the insurance/permit requirement. We have returned to the Office of the Attorney General to ask for a supplemental opinion concerning the legality of the restrictive access procedure currently in place. The opinion, attached, reaffirms our findings ttiat the City may not impose such requirement. We are prepared at this time, to seek appropriate legal remedies to remove locally imposed restrictions to waterway access which are in conflict with State law. This letter is to solicit your cooperation proactively so that both the Department and the City of Carlsbad may avoid litigation and the attendant expenses. We ask that the objectionable restrictions be removed, and that a copy of your resolution or minute order so directing be forwarded to the Department. If you have any questions on this matter or the Opinion of the Attorney General, please feel free to contact us. Sincerely, WILLIAM H. IVERS Director Copy: Honorable Robert Frazee, Assemblyman, Seventy Fourth Assembly District Vincent Biondo, Jr., City of Carlsbad i--**' Jeremiah Blair, Office of the Attorney General Jack Rump, State Lands Commission Enclosure 021 DALJIT S. SARKARIA Real Estate • Investments « Developements • Management # C <L\June 1, 1989 £s \ -•^** ^x ^V Vincent F. Biondo, Jr. City Attorney City of Carlsbad 1200 Elm Avenue Carlsbad, CA 92008 Dear Mr. Biondo: Thank you for letting me know that the Department of Boating and Waterways has raised an issue with the attorney general regarding the legality of my requirement that any boat owner wishing to use my property in the City of Carlsbad to launch a boat onto Agua Hedionda Lagoon must be insured. Please see that the deputy attorney general who is writing the opinion gets a copy of this letter so he understands my position. I own property in the City of Carlsbad generally located on the north shore of Agua Hedionda Lagoon immediately to the east of Interstate 5. My property extends into the water. The property is developed with a boat launching facility in- cluding a snack bar and rest rooms and is leased to an operator. I strongly disagree with the position taken by the Department of Boating and Waterways. As a private property owner and prudent businessman I have the right, independent of any city ordinance or state law of which I am aware, to set reasonable conditions on people who wish to use my private property. The launching of power boats is a high risk activity and I think it's important that I protect myself from foreseeable liability. The City did not impose any insurance requirement on me. It was something I deemed necessary. Liability insurance is getting very expensive and difficult to get. When the state forced the City to give up its own insurance requirement I determined it was important to impose one myself. I won't operate without it and would be forced to close the facility in the absence of adequate proof of insurance by facility users. Having made that decision I can't see any reason why I shouldn't also ask that the City be named as an additional insured. In almost all cases, that can be done at no additional cost to the people and it doesn't do me any good to require insurance if the individuals are free to sue an uninsured city who can then cross-complain against me for indemnity. Unless the City and POTT OFFICE BOX B7M • OHAMGC CALIFORNIA 022 EXHIBIT^ myself are covered there is no protection quirement has been imposed since November of any complaints and the level of people about the same as it has always been. I service to the public at a fair price and my property numerous power boaters would the lagoon. I believe my policies are in of all concerned and I intend to continue of action. The insurance re- 1980. I am unaware using the lagoon is provide a valuable without access to not be able to enjoy the best interests my present course Please do what you can to convince the attorney general that the Department is just not correct in trying to make an issue of this matter. tru-ly *£'<*.//Calji't^S/. 023 CITY OF CARLSBAD 1200 CARLSBAD VILLAGE DRIVE CARLSBAD. CALIFORNIA 92008-1989 VINCENT F. BIONDO. JR. (619) 434-2891 CITY ATTORNEY RONALD R. BALL ASSISTANT CITY ATTORNEY June 6, 1989 Rodney O. Lilyquist Deputy Attorney General Department of Justice 110 West A Street Suite 700 San Diego, California 92101 RE: OPINION NO. 89-503 - AGUA HEDIONDA LAGOON Dear Mr. Lilyquist:* • Thank you very much for your letter of Nay 5, 1989 soliciting the city's views of the above referenced opinion request. Mr. Ivers1 letter to you April 27, 1989 requesting an opinion reflects the views of an over zealous member of his department who has chosen to view Dr. .Sarkaria's efforts to protect himself as a personal affront. It is apparent this individual had substantial input into Mr. Ivers' letter because it does not accurately reflect the facts of our situation. The true facts with comments on the April 27 letter are as follows: 1. Mr. Ivers asserts the Aqua Hedionda Lagoon is a navigable waterway. I don't think that has ever been determined. The property underlying the lagoon is private property owned by the San Diego Gas and Electric Company (SDGiE). The lagoon was created by SDGiE's substantial dredging of a mud flat. The lagoon closest to the ocean (outer lagoon) remains under the control of SDGiE and the public is not allowed to use it. The outer lagoon has direct access to the ocean. If any portion of the lagoon can be considered navigable waterways it is the outer lagoon. Nevertheless, the San Diego Gas i Electric Company excludes the public entirely. Chained log booms are maintained at the ocean entrance and the railroad bridge which divides the outer and middle lagoons. Any individual attempting to operate a boat or otherwise use the surface of the water is arrested for trespassing. The Department of Boating and Waterways has historically acquiesced in SDG&E's exercises of dominion and control over the outer lagoon and, in effect, agreed that it is not navigable water. I don't think they should be allowed to take a contrary position with the lagoon west of 1-5 (inner lagoon). v 0r>4 mTVUiniT 2. Mr. Ivers states that th« City's insurance requirement which we repealed at the insistence of the Department and your office, "had the effect of closing the lagoon to all boaters outside of the City of Carlsbad." That is false. it has always been true and it is true today that a substantial majority of people utilizing the lagoon for power boating purposes are from outside the City of Carlsbad. Use of the lagoon has not been affected since Or. Sarfcaria has been enforcing his insurance requirement. (The permit figures from the department are enclosed). Boat coverage is generally and readily available either separately or as a part of people's homeowner's policies and the City can be included as an additional insured at no extra cost. It has been suggested that Dr. SarJcaria (or the City) buy an insurance policy and recover the cost from increased launch fees. Such insurance is not available to the City. Dr. Sarkaria reports it is only available to a limited extent and then only at a very high price. Imposing that cost is uneconomic compared to the minimal cost to the public under his present system. It also does not meet his need of limiting the use of his property to financially responsible operators. He doesn't want people who can't get insurance or who won't on his land. If there is any burden on boating it is minor when compared to a loss of a public use which will result unless you can persuade the department to be reasonable. 3. Mr. Ivers claims that his department has "received complaints from the public." I don't believe the department has received "complaints" from power boaters. The city has not received any complaints. Our information is that the general reaction from the boating public is extremely favorable and they appreciate that the City allows public use of the lagoon. 4. Mr. Ivers states that Dr. Sarkaria's property is the only trailer boat access on the lagoon. That is not correct. Boats are launched from Whitey's Landing and Bristol Cove oracross the beach from the City's publicly maintained access easement. 5. The City, under pressure from the Department, repealed its ordinance requiring insurance in 1980. Although it was ay opinion (with respect your opinion notwithstanding) that our insurance ordinance was legal, the council decided to avoid litigation. That does not mean it is settled that the Citycannot impose the requirement. However that is beside the point since the City is not imposing an insurance requirement. Mr. Ivers states that the City is attempting to indirectly do what it could not do directly by imposing the condition on the "concessionaires business permit." That is not true. When I conveyed your inquiry to Dr. Sarkaria he was surprised. Itis his opinion that he was imposing the insurance requirement on us and not vice versa. Re is not a concessionaire of the city and we have not conditioned his business permit. Dr. Sarkaria is a private property owner. He has a nonexclusivelicense with the City to operate his business which he has voluntarily agreed to do with us in a societally responsible manner. Enclosed for your information is a copy of the agreement between the City and Dr. Sarkaria and the supplement from November 1980. His consent was freely given. Dr Sarkaria doesn't even need his "license" from us to operate. The launching that occurs at White's and Bristol Cove have no license. We have an agreement because we are both involved in a high risk activity and it is only "common sense" to "write down" our relationship to avoid litigating with each other over a duty of care when accidents on the lagoon result as they inevitably do in litigation. 6. The only reason the public gets to use the inner lagoon is because SDG&E has leased the surface area to the City of Carlsbad on a year to year basis for public recreation purposes. That lease requires the City to take all necessary steps to protect and indemnify SDG&E from any possible liability. Thanks to Or. Sarkaria, to date, we have been able to do that. It is ironic that the Department is objecting to Dr. Sarkaria's insurance requirement in the name of boaters. Without it the public won't be able to use the lagoon at all. The City will not stay in the lagoon business unless we can continue to benefit from Dr. Sarkaria's insurance requirement. My clients will simply return the lagoon to SDG&E. Enclosed is a copy of a letter dated June 27, 1988 stating SDG&E's position if that were to occur SDG&E would close the inner lagoon to the public. 7. Mr. Ivers' letter requests your opinion on whether or not the City can "impose a liability insurance requirement." That assumes a fact not in evidence. The City has imposed nothing. Mr. Ivers has absolutely no evidence in support of his position. Dr. Sarkaria has a right to require insurance of people who use his private property. Dr. Sarkaria has determined for his own protection that it is necessary to limit the use of him property to financially responsible individuals with insurance and we appreciate hie willingness to include the City in his risk management program. Enclosed with this letter is a letter from Dr. Sarkaria dated June l, 1989 which sets forth his understanding of the matter. Again, am im the case with the gee and electric company, if a reasonable risk management program cannot be provided Dr. Sarkaria will cloee his launch ramp with substantial adverse effect on the ability of the boating public to enjoy the lagoon. Mr. Ivers ham asked you to communicate with Mr. Bleir of your office regarding this matter. We strongly object. Mr. Ivers and Mr. Blair have been threatening to litigate with the City on this issue. I am confident we could persuade a court our position is correct both on the facts and the lav. This is a classic example of "burning down the village in order to save it." This Department nno which claims to be acting in the beet interests of the boating v&v public ie in effect attempting to destroy one of the few remaining places in Southern California where people can water ski. Dr. Sarkaria«s business is financially marginal at best and the citv's lagoon program which primarily benefits nonresidents is in effect subsidizing a state recreational program at th« expense of citv taxpayers. The Departaent should be supporting the city in its efforts to aaxiaize the opportunity for th« boating public to use the lagoon. Instead, they are pursuing their own perverted bureaucratic interests which, if successful, can only have one result and that is denying the public any use of the lagoon. I don't think the Department's position will stand scrutiny in any reasonable public forum either the court or the legislature. And, frankly, I an at a lose to understand why they continue to pursue it. In any case, having been threatened with litigation, I think Mr. Ivers is attempting to secure an advisory opinion which will buttress their interests in the subsequent litigation. That is the worst kind of interdepartmental bootstrapping. We object. If an opinion were written adverse to the City's interests we would object strongly to any use of it as authority in court. Mr. Ivers seems to me to be inviting the worst kind of self serving self dealing. I trust you will have no communications with Mr. Blair on this matter and will put out of your mind the fact that he is apparently given Mr. Ivers some encouragement on his particular "March of Folly.* (See, Barbara Tuckman. Pursuit of a course of conduct directly contrary to your own best interests despite the fact that the folly of that has b«en explained to you). The true facts of the situation on the lagoon can b« verified with SDGtE, Dr. Sarkaria, or our Parks and Recreation Department. The fact that Dr. Sarkaria has voluntarily chosen to impose an insurance requirement and given the City the benefit of that is no concern of the Department. Substantial numbers of people have enjoyed the lagoon under the present system for over eight years. The Department has no legitimate interest in and no right to regulate private consensual conduct. If they are truly interested in the right of the boating public to use the lagoon they ought to build, improve, operate and maintain their own public launch ramp. Or, otherwise, take over responsibility for the lagoon. We would be happy to assign our lease with SDG&I to the state. Otherwise, I don't think there is any doubt that the boating public would best be served by the state just leaving us alone. VT City Attorney rah enclosures c: Mayor and City Council city Manager Parks and Recreation Commission Parka and Recreation Director 027 San Diego Gas & Electric NORTH COAST DISTRICT OFFICE 5315 AVENIOA ENCINAS • CARLSBAD, CA 92008 OCEANSIDE BRANCH OFFICE 1816 OCEANSIDE BOULEVARD • SUITE C • OCEANSIDE, CA 92054 May 17, 1990 FILE NO. Mr. Frank Mannen Assistant City Manager City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, California 92008-1989 Dear Mr. Mannen: Your letter dated May 1st asked me to clarify further our offer to the City of Carlsbad relating to the Agua Hedionda Lagoon. San Diego Gas & Electric will defend the City of Carlsbad against the claim by the State of California that the Agua Hedionda Lagoon is subject to the public trust, including, but not limited to any claim by the State that insurance cannot be required by users of the Agua Hedionda Lagoon based on the imposition of the public trust doctrine. San Diego Gas & Electric is willing to enter into a written agreement with the City of Carlsbad to that effect. Also, San Diego Gas & Electric is willing to amend the existing lease agreement to delete the middle lagoon from the lease. When you have had a chance to review your position, why don't we set up a meeting date to discuss this matter further. Very truly yours, Paul O'Neal Senior Governmental Representative POibha cc: Mr. Claude Lewis, Mayor Mr. Raymond Patchett, City Manager 028