HomeMy WebLinkAbout1991-12-17; City Council; 11487; AGUA HEDIONDA LAGOON - RESPONSE TO LITIGATION THREAT FROM DEPARTMENT OF BOATING AND WATERWAYS (D.B.W.)CI~F CARLSBAD - AGE,N@ILL
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I- DEPl TITLE;AGuA HEDIONDA LAGOON - RESPONSE a, MUJ Grn .rl a,
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MTG ; :.i,- ; ':; .- ' 1 i TO LITIGATION THREAT FROM DEPARTMENT CITY
CITY Cd OF BOATING AND WATERWAYS (D.B.W.) DEPiX
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That the Council adopt Resolution No. (I] / - LiC ~5 rescinding the November 6,
1980 supplement to the agreement between the City and Dr. Sarkaria to relieve t
operators of the obligation not to launch any boat on the lagoon without insuranc
which names the City as an additional insured. It is further recommended that th
City leave the existing lagoon ordinance and regulations in place and direct staff t
initiate steps to amend the lease with SDG&E by eliminating the middle portion (
the lagoon and continuing to lease the inner portion only.
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ITEM EXPLANATION:
The Department of Boating and Waterways (D.B.W.) has notified the City that tl
would seek appropriate legal remedies if the City did not remove its imposed
restrictions to waterway access to Agua Hedionda Lagoon which,in the opinion of
the State's Attorney General's Office,is in violation of state law. The D.B.W. is
soliciting the City's cooperation so that both D.B.W. and the City may avoid
potential litigation and its attendant expenses (Exhibit 2).
~ BACKGROUND:
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On November 4, 1980, the City Council 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 properg
onto Agua Hedionda Lagoon must have $300,000 of liability insurance coverage
supplement is attached as Exhibit 1. During the last ten years, it has provided a
good framework for the public to enjoy the Lagoon at an acceptable level of risk .
the City. The liability insurance requirement has effectively protected the City
against potential liability from the power boat and jet ski users of the Lagoon.
The D.B.W. claims that the City is indirectly imposing an illegal insurance
requirement on its "concessionaire". They buttressed their position by obtaining a
concurring opinion from the Attorney General's Office. The fact is that Dr.
Sarkaria has voluntarily required liability insurance as a condition for allowing
people to use his private property. He told that to D.B.W. in a letter dated June
1989, a copy of which is attached as Exhibit 3.
In a letter dated June 6, 1989, the City Attorney pointed out the fundamental
misunderstanding of the situation that underlies the D.B.W. position. A copy is
attempting to impose its will on a private citizen and that the City would prevail il
litigation against the State. However, the matter involving the ownership of the
which names the City as an additional insured. A copy of the Resolution and
attached as Exhibit 4. The City Attorney believes the D,B.W, is improperly
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Page 2, AB # /; ’/-! ! -, m m
Agua Hedionda Lagoon, tide lands rights and navigable waterways issues is complc
and it is not recommended that we enter into extensive litigation with the Californ
Attorney General. A controversy between the City and State would serve no usef
purpose since both agencies share a common objective of providing recreational
access to the Lagoon.
Since the last review of the Lagoon’s operation by Council, the City has joined an
insurance program for catastrophic claims. This program, the California Municipz
for each incident. The pool and it’s carriers will provide up to $10,000,000 in
coverage for each loss in excess of the City’s self insured retention (S.I.R.). of
$500,000.
City staff has also discussed the matter with SDG&E. SDG&E has suggested thai
the City take no action regarding the threatened litigation from D.W.B. and that
business continue as usual. SDG&E has offered to defend the City against any
claim made by the State. A copy of a letter dated May 17, 1990 is attached to thr
Agenda Bill (Exhibit 5). Staff does not recommend that Council accept SDG&E’:
offer. The issue of ownership of the Lagoon should be settled between SDG&E
and the State.
SDG&E has also been asked what they would do if the City were to terminate thc
lease for the use of the inner and middle portions of Agua Hedionda Lagoon.
Their response (Exhibit 7) was that:
Insurance Authority (C.M.I.A.), will reduce the City’s potential liability to $500,0C
A. They would close the lagoon, and/or
B. Keep the lagoon open for passive use only, if the City would reduce
the speed limit and continue its public safety patrol program
(Exhibit 6).
An additional point of interest is that SDG&E has recently indicated their intentic
to proceed with acquiring permits to dredge both the inner and middle lagoon
(Exhibit 8).
OPTIONS:
In evaluating the State’s position on the insurance requirements, the recreational
value for the users of the lagoon, and the recent implementation of the Californiz
Municipal Insurance Authority’s liability program, staff has proposed several optic
for Council consideration:
(1) Continue the current operations and prepare to litigate with the
State.
(2) Restrict the use of the lagoon to passive only.
(3) Eliminate the requirement that the City be named as an additional
insured on user policies.
(4) Terminate all leases and agreements and get out of the lagoon
business.
<* - Page 3, AB +Y 7 f , ’ ? .’ m - OPTION (11: Continue operation and prepare for litigation by the State.
The City Attorney believes the D.B.W. is wrong and that the City may prevail in
litigation against the State. The matter is very complex because it involves
ownership, tide land rights and navigable water way issues. All would require
extensive time and expense. It is felt that a confrontation between the City and ti
State would serve no useful purpose since both agencies share common recreation
objectives for the general public.
OPTION (2): Restrict the lagoon to passive use only
Over the years, the primary cause of accidents has been either jet skis or ski boat:
The City may impose a 5 mph speed limit or otherwise restrict the uses permitted
on the Lagoon. Since sl boats and jet skis would effectively be eliminated from
the lagoon, revenues would be reduced. The patrol program could be discontinue
and the insurance issue with the State would be resolved.
Although this option is attractive, from a safety and liability stand point, there
would be negative impacts on the various concessionaires, the boating public and
the residents of Bristol Cove.
OPTION (3): Continue the current safety program and eliminate the requiremer
that the City be named as an additional insured on user policies.
Under this option, the City would (1) release Dr. Sarkaria of his obligation as
outlined under the November 6, 1980 supplemental agreement, (2) modify the le:
with SDG&E to include only the inner portion of the lagoon (drop the middle
portion which is subsequently subleased to the Y.M.C.A.), and (3) leave the existi
lagoon regulations and ordinance in place. This option would satisfy the State’s
issue regarding insurance and keep the lagoon open for various uses under our
current special use area program.
Dr. Sarkaria would remain free to condition the use of his property as he choose:
There would no longer be a requirement that the City be named as an additional
insured on user insurance policies. The City would still have some liability expos
since it would continue to exercise regulatory control over the lagoon. However,
the City’s risk of loss has been reduced by the implementation of the C.M.I.A.
program.
Option (3) may have merit if the City’s intention is to provide a public benefit or
the lagoon which cannot be achieved without City involvement. It is a policy
question as to whether or not the benefit received is worth continuing the Lngoo
program and assuming the liability exposure.
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It is staffs feeling that accepting this liability is a prudent risk for two reasons: (1)
the present program has an outstanding record, reduced conflicts among the users
and increased safety awareness on the lagoon, and (2) the City has liability covera
through its municipal insurance pool.
OPTION 4: Get out of the Lagoon Business
Under this option, the Council may direct staff to terminate the lease with SDG&
and repeal all lagoon regulations and ordinances and/or turn the operation of the
Lagoon over to someone else.
The D.B.W. and the Attorney General's office have concluded that the Lagoon is
navigable waterway, which means that the public has a right to access and use of
the water surface. If that is the case, there may be no benefit to a lease with
SDG&E, a lease that may burden the City with substantial liability exposure.
If this option is selected, it is recommended that the D.B.W. be put on notice tha
they should be responsible for establishing safety regulations for the lagoon. Dr.
Sarkaria would remain free to operate his business as he considers appropriate.
The City would eliminate its liability exposure by terminating the lease with
SDG&E and repealing the Lagoon ordinance and regulations.
As stated earlier, SDG&E has indicated that if the City chooses this option,
SDG&E officials would either close the lagoon to public use or keep the lagoon
open for passive use only, contingent upon the City continuing to provide its safe
patrol program.
RECOMMENDATION:
Staffs analysis of the City's current lagoon program indicates that, to date, it has
been very successful. Accepting the increased liability exposure and keeping the
program in place may be a viable option on a trial basis.
Therefore, if the Council concurs, it is recommended that they consider Option (,
and adopt the attached resolution which would release Dr. Sarkaria of the
obligation outlined in the November 6, 1980 supplement to the original agreeme]
It is further recommended that the existing lagoon regulations be left in place an
that staff be directed to initiate steps to amend the lease with SDG&E by
eliminating the middle portion of the lagoon and continuing to lease the inner
portion only.
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PARKS AND RECREATION COMMISSION ACTION
At the Parks and Recreation Commission meeting on November 18, 1991, the
Commission unanimously (6-0) voted to support the recommended action outlinec
in the face of the Council agenda bill.
FISCAL IMPACT:
Currently, on an annual basis, it costs the City approximately $40,000 to operate t
Lagoon Safety Patrol Program and $10,000 for administrative expenses. Revenue
generated from the lagoon program is expected to range between $17,000 and
$20,000 for FY 1991/92.
Although the direct fiscal impact of each of the various options outlined above m:
range from zero to $50,000, the recommended action may expose the City to
additional expenses for the defense and settlement of claims filed as the result of
future incidents on the lagoon. Although the City may be found to be free of
liability in most or all of those instances, it may still experience an increase in the
number of claims filed because of the absence of insurance coverage on the part 1
lagoon users. The costs of that potential additional expense is unknown.
Additionally, even though the City has acquired liability coverage through its
participation in a municipal insurance pool, it still retains a financial exposure of
$500,000 on every claim.
EXHIBITS:
;:; , I [I .!- ” 1. Resolution No. 2 : - d
2. Resolution No. 6343
3. Department of Boating and Waterways letter dated 10/18/89
4. Dr. Sarkaria letter dated 6/1/89
5. City Attorney letter dated 6/6/89
6. SDG&E letter dated 5/17/90
7. SDG&E letter dated 4/09/91
8. SDG&E letter dated 9/24/91
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RESOLUTION NO. 91-405
A RESOLUTION OF THE CITY COUNCIL OF THE
RIGHTS AND RELIEVING DR. SARKARIA OF HIS
OBLIGATIONS UNDER THE NOVEMBER 6, 1980,
OF CARLSBAD FOR USE OF AGUA HEDIONDA
3 CITY OF CARLSBAD, CALIFORNIA, WAIVING ITS
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5 SUPPLEMENT TO HIS AGREEMENT WITH THE CITY
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LAGOON
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The City Council of the City of Carlsbad, California does hereby resolve as
-~ollows:
10 11 1. Ttie November 6, 1980, supplement to the agreement between the
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agoon approved by Resolution No. 6343 is rescinded. The City Council hereb) 12
ity of Carlsbad and Snug Harbor Marina owner for the use of Agua Hediond:
aives the City’s rights under that supplement and relieves Dr. Sarkaria of hi: l3 I I* P bligations to co~~ply with the provisions of the supplement.
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2. That all the terms and conditions of the July 1, 1980, agreemen
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l7 ib etween the City and marina operator on file with the City Clerk shall remain in fu
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Iounci1 of the City of Carlsbad on the 17th day of December1 991, by the followin 2o
lorce and effect.
19 ~ PASSED, APPROVED AND ADOPTED at a regular meeting of the Cit
21 ilote, to wit:
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AYES: Council Members Kulchin, Larson, and Nygaard
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NOES: Council Member Lewis
ABSENT: None
ABSTAIN: Council Member Stan
ATTEST: .
0~- ALETHA L. RAUTENKF&NZ, City Clerk 1
(SEAL)
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- A RESOLUTION OF THE CITY COIJNCIL OF THE 2
RESOLUTION NO. 6343
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1. That that certain Supplement, to ~c~reement between thE
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The City Council of the City of Carlsbad, California, does 7
OWNER FOR USE OF AGUA HEDIOMDA LAGOON
4 A SUPPLEMENT TO AGREEMENT BEThTEN THE
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CITY OF CARLSEAD, CALIFORNIA, APPROVING
CITY OF CARLSBAD AND SNUG HELMOR MARINA
WHEREBY THE OPERATOR AGREES NOT m LAUNCH ANY BOAT WITHOUT INSURANCE AND AUTHORIZING 5
6 THE I4AYOR TO EXECUTE SAID AGtRJZEMENT.
8 hereby resolve as follows:
10 City and Marina Operator dated July 1, 1980,, whereby Marina
12.
I is hereby approved, 13
of which is attached hereto as Exhibit A and made a part hereof, Operator agrees not to launch any boat without insurance, a copy 12
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2. That the Mayor of the City of Carlsbad is hereby
15 authorized and directed to execute said agreement for and on
1611 I behalf of the City of Carlsbad.
PASSED, APPROVED AND ADOPTED at a regular meeting of the
18 '.i I City Council of the City of Carlsbad, Califg]:nia, held on the
19;) 4th day ofaer , 1980 by the following vote, to wit:
201) AYES: Council Members Packard, Casler, Anear, Lewis and Kulchin '
1;
21 i! NOES : !i None
22 /i ABSENT: None /- /?
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23 ii .- RONALD C. PACKAN, Mayor 24 i;
I ATTEST:
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28 /i (SEAL)
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EXHIBIT
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EXHIBI I 'ro CITY COUNCIL
RESOLUTION NO. 6 343
- SUPPLEMENT TO AGREEMENT
BETWEEN THE CITY CF CARLSBAO
AND SNUG HARBOR MARINA OWNER
FOR USE OF AGUA HEDIONDA LAGOON
This agreement is made this (A* t' day of - ~ovimB~+ 1980
between the CITY OF CARLSBm, a municipal corporation of the State of
califomid (hereinafter referred to as "City") and Dr. Daljit Sarkaria
(hereinafter referred to as "Marina Operator") .
RECITALS:
I. The City and Marina Operator entered into an agreement, dated
July 1, 1980, whereby the City granted Marina Operator non-exclusive
rights to provide launching and marina facilities for boats on the
surface of the Aqua Hedionda 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 foz
boating purposes are aware of the need to observe safety rules and are
responsible people financially and otherwise, who will conform their
conduct to the 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 1s
not incured. t? YJlJ
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NOW, THEREFORE, ir. consideration of their mutual covenants
and conditions,-the parties hereto sore? as follows:
1. The agreement between City en3 Plcr!.r~a Opcrator, dated
July 1, 1963, on file with the City Clerk and incorporated by
reference herein is hereby supplemented and mended to add the
following Frovision as a part of said agreement:
I - I (8) The Marina Operator will not launch or allow to
be launched any boat onto the surface of the Agua Hedionda Lagocn
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 executsd this
agreemnt on the day and year first above written.
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ATTEST:
City Clerk r
CITY OF CARLSBAD, a municil;al corporal of ::he State of California
BY ./f./f&Fgz2.J RONALD m C. SACKARD, - Mayor
APPROVED AS TO FORM: - /
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VIW’~NT ~ .:y;”Lzf&::ty ,P. Attorney
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DANIEL S.’L %C KE, Assistant City Attorney r‘ &S/&\.\ r‘ &S/&\.\
0- 1 // VIW’~NT ~ .:y;”Lzf&::ty ,P. Attorney
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DANIEL S.’L %C KE, Assistant City Attorney
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DEPARTMENT OF mamcRo WATERWAYS -
. 429 5 STREET
SACRAMtNrO. CA 9S814.7291
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cicy Council ci~y of Carlsbad
1200 Elm Avenue ZarLskad, Zalifarnia 92008-i989
Cesr Council Members:
1 am writing to you directly to bring to your attention a
scanding problen of concern to the Department of Eoatin watsrways. For the past eight years, the Deparcment has atti
t3 resolve issues of boating access at Aqua Hedionda Lagoon
AS a statutory responsibility, the Departnent of 3oatin
Waterways reviews state and local ordinances, rule regulations relatizg to vessels for conformity with State
Seccion 660 of tke Harbors and Navigation Code limics aqencies to regulation of boating in four specified a
special use areas (defined in Section 651), tine-c rescricEions, speed zones, and sanitation/pollution conczal
13 1980, the City of Carlsbad enacted a boating ordi iaposing a 5300,000 liability insurance requirement on boat( a precondition to use of a navigable waterway, Ayua Hec
Lagaan. Boaters were also required to list the City Qf Ca;
on their liability policies. dThis requirement had the eff4 closing the Lagoon to all boaters outside of the Ci Carisbad, i.e., boacers who were uninformed of the ins1 requirement, boaters who chose not to insure their craft, bl wno are insured under general provisions of homeowner's po (under 25 horse power) but did not show the City
addicional insured in such policy, and boaters who were a insured with companies which would not list the City of Ca
as an additional insured at any cost.
Afcer lengthy, but unsuccessful, negotiations with the Cj renrove this requirement, a foraal opinion was soughr fr:
Accsrney Ganeral to address this issue. The Opinion (No. 8
fsund the precondition of liability insurance to be in vi0
of State law. m, u OQ EXHIBI'
e 0 C3rlszas CLZy Csunc,i
Yeacers
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~ucs2cuenc t3 that opiaicn, c?.e City ze9ea;ed t3.e por=izr, 2: -". "--- ?,ar.c= imposing an Lr;szra.nce recuirone~.~,
- Fe=ln~:y, we received czrnplai?.cs frsm :>.e. 7ublic rsq2rd!lnc
L.-,S;;Z~F.CS requlreaent i.r,posed by a car,cesslcr.al=e who c-,ezd ;,-,e ccac Launc?.Li?5 faciliiy. Ne found t.i,,af G:,e City, E'?,;;;;~';~~,
rnr ,,,,c~~s~s~a:ze, was inposing an insurance rsquire3ep.E 2
~Z~C;F,CLZL;~ ta use of the Launching facriity, i .2. ~
c~~.cessisr.aFze is required to check that boatszs have 3 ;e
c;ez3ze Launching therr boats on the Lagoon. To obtai3 a ?e frzm che CiLy, a boater must produce an insurance poiicy w
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names ;?.e City as an aciditional insured,
IT. LnvescLTatLng this complaint, we attempted to launch a ST:
owned vessal on this navigable waterway and were denied ac seisly on ciie basis of the insurance/permit requirenent.
we 3ave retgrned to the Office of the Attorzey Ganeral t3 as; a sucpleaental opinion concerning the legalicy of tAe restric
aCCess pracedure currently in place. The opinion, acta( reazfiras our findings that the City may not iapose
reqc 1 rsnent .
we are prepared at this time, to seek appropriate legzl ren
t3 remove locally imposed restrictions to waterway access are in canflict with State law. This letter is to soliciz
caoperac~on proactively so that both the Departrne.?t and :>.e af c~rLs5ad may avoid litigation and the attendant exgenses
as:c Ehat the o5;ectionable restrictions be rsnoved, and ti
cspy C: your tesalution or rninute order so directing be farw
;a r5.e 3epartnent.
-; __ YOU have any questions on this matter or the Oginion o
>-~=:r?.ey Gsneral, please feel free to contact US.
Sincerely,
&A JK& WfLLIAt4 H. IVERS Director
Cesy : Honorable Robert Frazee, Assemblyman, Sevency :
Vincent Biondo, Jr., City of CarlsbadA Jeremiah Blair, Office of the Attorney General Jack Rump, State Lands Commission
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Assembly District
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1.. B DALJIT S. SARKARIA 9 . -.,
Re ;rate lnucsrmenn 9 Lkvclopcmcnrs .Ua, gemenr 2 -x- d3-y 3.
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June 1, 1989
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Vincent F. Biondo, Jr.
City Attorney
City of Carlsbad
1200 Elm Avenue
Carlsbad, CA 92008
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Dear Mr. Biondo:
Thank you for lettiag ale know that the Department of Boatir and Waterways has raised an issue with the attorney genera]
regarding the legality of my requirement that any boat Own€ wishing to use my property in the City of Carlsbad to lauric
a boat onto Aqua Hedionda Lagoon must be insured. Please see that the deputy attorney general who is writing the op:
gets a copy of this letter so he understands my position.
I own property in the City of Carlsbad generally located 01
the north shore of Aqua Hedionda Lagoon immediately to the east of Interstate 5. My property extends into the water. The property is developed with a boat launching facility il
cluding a snack bar and rest rooms and is leased to an ope I strongly disagree with the position taken by the Departmr
of Boating and Waterways. As a private property owner and prudent businessman I have the right, independent of any c ordinance or state law of which I am awarep to set reasona 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 foreseeabl liability.
The City did not impose any insurance requirement on me. was something I deemed necessary. Liability insurance is getting very expensive and difficult to get. When the sta 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 facili in the absence of adequate proof of insurance by facility users.
Having made that decision I can't see any reason why I shc also ask that the City be named as an additional insured. almost all cases, that can be done at no additional cost t people and it doesn't do me any good to require insurance
the individuals are free to sue an uninsured city who can cross-complain against me for indemnity. Unless the City -
POST OFFICE aox sm ORANGE. CAUFORNI EXHIB
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myself are covered there is no protectlon. The insurance
quirement has been imposed slnce November 1980. I am unat
of any complaints and the level of people usrng the lagoor
about the same dS it has alWayS been. I provide a valuabl
servlce to the puQLiC 4L a fair price and without access t
my property numerous power boaters would not be able to er
the lagoon. I believe my policies are in the best intere2
of all concerned and I intend to continue my present cour:
of action.
please do what you can to convince the attorney general tk
the Department is just not Correct in trying to make an i:
of this matter. .1
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CITY OF CARLSBAD
1200 CARLS8AO VILLAGE DRIVE
CARLS8AD. CALIFORNIA 92~8,1989 wmr F g1maa. JCI. - 1619) 43-289t cln AnCRNEv
FICNALO R BALL
ASSISTANT CITY A-SnNEv
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June 6, 1989
Rodney 0. Lilyquist
Department of Justice
110 West A Street
Suite 700 San Diago, California 92101
Deputy Attorney General
RE: OPINION NO. 89-503 - AGUA HEDIONDA LAGOON
Dear Mr. Lilyquist:
Thank you very much for your letter of Hay 5, 1989 aoliciting City's views of the above referenced opinion raqueut.
Mr. Ivers' lettar to you April 27, 1989 raquosting an opin; reflects the view8 of an ovmr Z8alOU8 omba bar of hi8 department i
has choeen to view Dr. Sarkaria'8 e'ffortm to protect himsalt a3 personal affront. It 18 apparent thi8 individual had subutantl
input into Mr. Ivat8' lottor bacauso it d0@8 not accurately ref14
the facts of our situation. Tho tNa tact8 with CommmtS On t
April 27 latter are as follov8:
1. Mr. IverU a88rrt8 the Agua Hadionda Lagoon iu a navigak watetway. I don't think that ha8 evar bean determined. 1 property undatlying the lagoon is privata proporty omed the San Diago Ca8 and Elactric Company (SWIE) e Tha lagc
wa8 creatad by SDGL1'8 sub8tantial dradging of a mud fla Tho lagoon clooeot to the ocoan (outor lagoon) remains unc
tha contra1 of SWCE and thm public is not allowed to use 1 Tha outor lagoon ha8 direct acceas to the ocaan. If c portion of tho lagoon can be conaidered navigabla waterwa
it i8 tho Outer lagoon. N.V8flhdO88, tho San Diego Gas Electric Company axcludas tha public antiraly. Chained 1 boom8 are maintainad at the ocaan entrancm and tha rdilrc
bridge vhich divide. the outer and middle lagoons. A
surfacr of tho vutar is arrarted for trarparaing. 7
Department of Boating and Watarvay8 ha8 hi8torfcal acquie8ced in s~IG&~'. exorcisam of dominion and control ov the outer lagoon and, in effact, agroed that it fs n
navigable water. X don't think thay 8hould bo allowed to ta
a contrary podtion vith the lagoon wmst of 1-5 (inr:
lagoon) .
individual attoapting to oparata a boat or otnanira UII t
EXHIBIT
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2
2, Mre IWrS Stat03 that the city's insurance requirement, w
wa repealed at the insistenca of tha Dapaemcnt and office, "had the effect Of closing the lagoon to all boa outsida Of the City of Carlsbad. I That is false. ~t
always been true and it is true today that a substan majority of People Utilizing the lagoon for power boa
lagoon has not been aff-cted since Dr. Sarkaria has
enforcing his insurance rquiremcnt. (The penit figures
the department are enclosed) Boat coverage is general11 readily available either separately or as a part of peoF homeowner's pOliCi81B and the City can be included a additional inaur8d at no extra cost, It has been suggc that Dr. Sarkaria (or the City) buy an insurance poliq recover the cost from increased launch fees. Such ingul is not availabla to tha City. Dr. Sarkaria reports it is
available to a limited extant and than only at a vary price. Imposing that Cost is uneconomic compared ta minimal cost to the public under his present system. It does not maat his need of limiting the us8 of his proper
financially responsible operators. Ha doesn't want peopl can't get insurance or who Won't on his land. If there i burden on boating it is lainor vhen compared to a loas public U8a which Vi11 r88Ult unlarr you can parsuadc
3. Mr. Ivers claims that his dapartment ha8 "r.c8ived compl from the publicoa : I don't baliave tho department has rec "complaintsa from power boater8. Tha City has not roc any complaints. Our information i8 that tha general rea from the boating public i8 axtrelaaly favorablo and appreciate that the City allow8 public use of tha lagoo
4. Mr. Iver8 mtatas that Dr. Sarkaria'8 property i8 the trailer boat access on tha lagoon. That is not cor Boats arm launchad from whitey's Landing and Bristol Co across the beach from tha City'. publicly maintainad a
eaaement .
5. ma city, undar prassura from the -partarant, rapeale ordinanca raquiring insurance in 1980. Although it W opinion (with rarpact your opinion notvithrtanding) tha inrurrnca ordinanca war legal, the Council decided to litigation. That d-8 not maan it im settled that -4
cannot inpora tha raquirament. However that is beaid point rinca the city is not imposing an insurance require Mr. 1v.r~ 8tat.8 that the city ia attempting to indfracl
what it could not do diractly by imporing th. condition ' mconcer8ionairo8 businass permit." That is not trua. I conveyed your inquiry to Dr. Sarkaria ha va8 8urprf,8eq is his opinion that ha was impoaing tha insurance rami: on US and not vica varsa. H. is not a concasdonaire
city and we hava not conditionad hi8 bU8in.s. Pomitq Sarkaria is a privata property 0wn.r. He has a nonexc licenso with the City to operata hi8 busin... which 1
purposes are from outside the city of carlsbad, Use ot
depar+ment to br rearonablr.
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3
voluntarily agreed to do with ua in a socfatnlly reapona:
mannor. Enclosd for your information is a copy of
agreanant-batwran th@ city and Dr. Sarksria and tha supple1 from November 1980. His consent was freely given, Sarkaria dO83n't even need his mlicansrm from us to oper;
The launching that occurs at White's and Bcistol Cove hav,
license. We have an agreement because we are both invo in a high risk activity and it i8 only mcomon sense" "writ. downn our ralationship to avoid litigating with l other ovar a duty of car. whan accidents on the lagoon re
as they inovitably do in litigation.
6. The only rea8on th8 public g8t8 to Us0 th8 inn8r lagoo becaura SDGLE ha8 lear8d th8 8urfacr araa to th8 cit. Carlsbad on a yaar to yaar bad8 for public rmcraa purposes. That lm88 raquira8 tha City to taka all neces steps to protect and indemnify SWCE from any posa liability. Thank8 to Dr. Sarkaria, to date, we hav8 bean
Dr. Sarkaria's inmuranc. rquiremmt in tho namo of boat Without it th8 public won't bo ab18 to u80. tho lagoon at Tho City will not 8tay in th8 lagoon bU8in.88 Unl.88 wd continua to ban8fit from Dr. Sarkaria'a inmuranca raquirer MY cliants will aimply rmturn tha lagoon to SDCLL. Encl ia a copy of a l8tt.r dat8d Juna 27, 1988 8tating SIX
position if that w8ra to occur SDG&E would clo88 the :
lagoon to tha public.
to do that. It ir ironic that thr Doprflmant ir objactlr
7. Mr. IV8r8' lattar'raquasts your opinion on wh8th.r or no city can mimp~sa a liability insuranca r~quirammt.~
asaumes a fact not in avidonca. Tha City ha8 imposed not Mr. 1v.r. ha8 ab8olutaly no avidonca in support of
po8ition. Dr. Sarkaria ha8 a right to raquira insuran, poopla who ura hir privata proparty. Dr. Sarkaria
limit tho uaa of hi8 proparty to financially rmpon
individualr vith inauranco and we appraciatr hh willin
to includr tha City in hi8 risk aanagamont program. Enc with thia 1att.r is a latter from Dr. Sarkaria dat8d Ju
1989 vhich #at8 forth hi8 undrrutanding of tha matter. A as im tha cam with tha gas and 8lactric company, raasonabla risk managament program cannot br provide(
Sark.ria vi11 Cl08. his launch ramp vith substantial ai offact on tha ability of tha boating public to 8njc
1 agoon .
d8t8min.d' for hi8 OYn PrOtOCtiOn that it f8 n8C888a:
Mr. War8 ha8 askad you to communicata with Xr. Blair 01 Offica ragarding thi8 nattar. Wa strongly objact. Hr. Iva: Mr. Blair havo bean thraataning to litigato with tha City 0' ism.. I aa confidant wa could p8r8UadO a court our posit correct both on tha facts and tha lav. Thfa ir a classic a
of "burning down tha villaga in ord8r to aavo it." Thi8 Dopa which claim. to ba acting in tha bast intmrasts of th8 b
placer in Sautharn California whora paop~a can wr+rr mki<
public ir in rffrct attrnptinq to da8troy onr of the fw ma
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Sarkaria's business is financially marginal at bast and the ci lagoon program which Primarily banofits nonresidents La in el subsidizing a stat@ racUMtiOna1 Peagram at thr emensa at
taxpayer.. Thr hpadment should bo supporting the city ir efforts to maximi20 tho opportunity for thr boating public tc
the lagoon, Instead, they are pursuing thmir OY~ parvc bureaucratic interests which, if successful, can only have
result and that is denying the public any US. of tho lagoon don't think the Department's position will stand scrutiny ir reasonable public fonm either the court or tha legislature. frankly, I am at a 1088 to understand why they continue to pt
it. ~n any cam, having b8an threatened with litigation, I t Mr. Ivers is attempting to secure an advisory opinion which buttresa thoir interests in the 8ubSe~pnt litigation, That 1: worst kind of intardepartmanta1 bootstrapping. We object. : opinion were writtan adversa to tho city'. intoro8ts w* 1 object strongly to any uaa of it a8 authority in court. Hr. : seems to ma to ba inviting the vorrt kind of self serving dealing. I trust you will havo no communication8 with Hr. E on this mattor and will put out Of your rind tho fact that k apparently given Hr. Ivar8 80810 oncouragement on hi8 partic "March of polly.~ (Sa., Barbara Tuckman. Purauit of a tour: conduct diroctly contrary to your om bo8t intore8ta daspitc
fact that tho folly of that ha8 been explainad to you).
The trua facts of the aituation on tho lagoon can b* vmrified
SDGLE, Dr. Sarkaria, or our Parka and ReCr8atiOn Dopartmmt. fact that Dr. Sarkarla ha8 Voluntarily chosen to impost insurance requirement and given tho City th. benafit of that j concam of the thpartment. Substantiaf numbor8 of people enjoyed tho lagoon undar the praaont sy8tu for OWL: might YB Tha MpaRmant ha8 no lagitiratr intarart in and ne righa regulate privata conrenrual conduct. If they are truly inters in tho right of tho boating public to U8. th. lagoon they OUgk build, improve, oprato and raintain thoir own public launch X
bo happy to assign our lea80 with SOGLB to tho atat.. 0th.n I: don't think mor. im any doubt that tho boating public vould
Or, otha-i.., take OVOE re8pon8ibility for tho lagoon* We b
bo sawad by tho atat0 jU8t 1.avlng US alone*
V. -1 Y I
VI I mi City Attornoy
rmh
enclorurrr
c: Mayor and City Council
City Mamagar Parka and ~ecreation Coumiasion Park8 and Racreation Diroctor
* .. 0 - SOGZ San Diego Gas & Eiectric
NORTH COAST OISTRICT OFFICE
%It¶ AVENIM tNCiNW U%SSAO. U 0-
OCEANSIDE BRANCH OFFICE
1010 OCEANSIDE BOULEVARO * SUITE C . OCEANSIOE, U 930% -
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 Hay 1st asked me to clarify further our
offer to the City of Carlsbad relating to the Aqua Hedionda Lagoon.
San Diego Gas & Electric will defend the City of Carlsbad
against the claim by the State of California that the Ama Hedionda
Lagoon is subject to the public trust, including, but not limited to i
claim by the State that insurance cannot be required by users of the
Aqua Hedionda Lagoon based on the imposition of the public trust
doctrine. San Diego Gas & Electric is willing to enter into a writte;
agreement with the City of Carlsbad to that effect.
Also, San Dieqo 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 ~,
we set up a meeting date to discuss this matter further.
Very truly yours,
.. fdW Paul O’Neal
Senior Governmental Representativ
PO : bha
cc: Mr. Claude Lewis, Mayor
Mr. Raymond Patchett, City Manager
- 028’ EXHIF
w e - SRGE San DiaDe GB& & Elecrr;C
NORTH COAST DlSTRlCr OFFICE
-75 AVMIM ENCIHU * URuMQ U 8Xm
OCEANSIDE BRANCH OFFICE lam OCUNSIOE nouLEvAao SUITE c OCEANSIDE. o e~ -
April 9, 1991 FILE NO
Mr. Frank Mannen Assistant City Manager City of Carlsbad
1200 Carlsbad Village Drive Carlsbad, CA 9266fi
Dear Frank:
YOU asked me what San Dieqo Gas & Electric would do if the tit! of Carlsbad were to no longer lease the Agua Hedionda Lagoon from the Company.
Unless the Company was successful in finding another lessee fo:
the lagoon, we would have two options:
1. Close the lagoon to public use.
2. Keep the lagoon open for passive use only. The Company would consider this option if the
city of Carlsbad were to pass an ordinance
establishing a boating speed limit on the lagoon, and if the City were to agree to
continue it's public safety patrol program.
Frank, I appreciate your patience in this matter, If you have
any questions or would like to discuss this further, please let
me know.
sincerely,
I/ &l
Paul O'Neal
Senior Governmental Representativ,.
Governmental Affairs \'
/k
CC: Claude Lewis - Mayor, City of Carlsbad
Julie Nygaard - Councilwoman, City of Carlsbad
EXHIBIT :
.. @ a - soq San Diego Gas & Electric
5315 AVENIM UCINAS CARLSBAQ CA 92008
NORTH COAST DISTRICT OFFICE
OCEANSIDE BRANCH OFFICE
1a18 OCEANSIDE BOULEVARD - SUITE c . OCEANSIDE. CA 920s
September 24, 1991 FILE NO.
Mr. Frank Mannen
Assistant City Manager
CITY OF CARLSBAD
1200 Carlsbad Village Drive Carlsbad, CA 92008
Dear Frank:
You asked me to advise you what San Diego Gas & Electric intentions were as to the dredging of the Agua Hedionda Lagoon
Company representative Jay Barnett and I met recently with Llc
Hubbs and Dave Hauser to discuss the scope of our dredging nee(
Mr. Barnett is preparing a letter to Mr. Hubbs that will descr. in detail our plans relating to the outer lagoon. It is our intc
to have this project become an annual occurrence and encompass 1 only the dredge, but maintenance of the periphery of the lagc
itself.
At the meeting, we also discussed the inner lagoon. We advised 1 Hubbs that it is the Company's intention to proceed with acquir
permits to dredge both the inner and middle lagoons. At this PO our effort is one of discovery. We are aware that permitizinc
dredge ~f the inner lagoons will not be as simple a process as tl
of the outer lagoon. At this point, it appears that 7 OL
agencies will become a part of the process. Mr. Barnett
preparing to meet on an informal basis with these agencies
determine the scope of their needs relating to the project.
Frank, it is our intent to move.forward on the two inner lagoo The only problems that I can foresee would be ones created if
environmental barriers placed upon us create too severe operating constraint. If the cost of mitigation becomes too gre we would need to reconsider our goal. At this time, we are hope
of getting the dredge accomplished.
4
EVUTDTl
0 0
December 16, 1991
Honorable Mayor and Members of the City Council City of Carlsbad
1200 Carlsbad Village Dr. Carlsbad, CA 92008
Dear Mayor Lewis and Council Members:
I am a frequent powerboat user of the Lagoon and generally
support the efforts lay the City to manage Lagoon activities. In fact, I serve on a subcommittee on Lagoon issues established by the City Parks and Recreation Department. The matter before you tonight is very important to two
groups that I am affiliated with, the Bristol Cove Property
Owners Association (I serve on the Board of Directors) and
the Bristol Cove Boat And Ski Club (I am the President) e
Both of these groups favor continued use of the Lagoon by
powerboats.
I support the Parks and Recreation Commission and staff recommendations to llcontinue the current program and eliminate the requirement that the City be named as an additional insured on user policiest1. While I have no problem with naming the City as an additional insured on my
insurance policy, I believe that dropping the requirement
may be the only way to avoid expensive litigation with the
State, which would, in my opinion, be a waste of taxpayers
money. Thus, I could not support Option 1.
Further, I believe that Options 2 and 3 I which would both
result in limiting the Lagoon to passive use, would have a
negative fiscal impact on the City that was not noted in the
staff report. North shore properties with water access have
an increased assessed value because of the opportunity provided for powerboat use on the Lagoon. Elimination of that use would reduce the value of those properties, thus reducing property tax revenues to the City. It is my belief that the increased property tax revenues generated from the properties with water access offset both the expenses associated with Lagoon operation and the City’s increased
liability exposure resulting from Lagoon operation.
In closing, I would like to point out that the use of the
inner Lagoon for powerboating is a unique recreational
opportunity that the City of Carlsbad should be proud to
provide. I hope that you will join me in supporting the
Parks and Recreation Commission and staff recommendations.
Sincerely,
i.. /2 c 4 ?.A, >pY ,,g.,z/&”-----
Richard K. Mahler
DIJTeI8 y 7&~ /9~ 12 J17/? I cr, Y dcl~
M (=,-T!NG .
W 0
'
I hope that this_ answers your questions.
Very truly yours, &
Paul O'Neal
Senior Governmental Representativ
PO: tt
cc: Claude Lewis, City of Carlsbad Ray Patchett, City of Carlsbad .
Gary Nessim, Beach Erosion Committee