HomeMy WebLinkAbout1995-11-21; City Council; 13401; AMENDMENT TO LEASE AGUA HEDIONDA LAGOONI i " - - - - - - - - - - - - - """" - -"- ,
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AGUA HEDIONDA LAGOON
CITY DEPT. c s CITY
RECOMMENDED ACTION:
That City Council adopt Resolution No. 95 -32 3 to delete the middle Agua Hedior Lagoon from the lease between San Diego Gas & Electric and the City.
ITEM EXPLANATION:
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On March 4,1957 the City and SDG&E entered into a lease of the Agua Hedionda lagc
In April 1962, this lease was amended by adding the Middle Lagoon to the leased area. July 1962, the City sub-leased the middle lagoon to the YMCA. In December 1991, the ( Council adopted Resolution No. 91-4405 rescinding the November 6, 1980 supplemen the agreement between the City and Dr. Sarkaria to relieve the operators of the obliga not to launch any boat on the lagoon without insurance which names the City as addition
remain the same and staff was directed to initiate steps to amend the lease agreement \ San Diego Gas & Electric (SDG&E) by eliminating the middle portion of the lagoon from lease contingent upon a new lease between SDG&E and the YMCA of San Diego Col (YMCA).
In October 1994, the City Council adopted Resolution No. 94-288 to delete the middle A Hedionda Lagoon from the lease between SDG&E and the City, Council also authori, the Community Services Director or his designee to deliver the amendment to the leas San Diego Gas and Electric for signature only after confirming the signing of a new le for the middle lagoon between SDG&E and the YMCA. Staff proceeded to ob' signatures for these documents. However, SDG&E indicated that the first amendmen lease which was originally presented would have to be identified as a license (Exhibi rather than a lease. It is their belief that the license serves the same purpose as a le
and a change would be required. The YMCA has reviewed this request and has confirr their approval by the September 19, 1995 letter to the City (Exhibit 3). During the past I SDG&E and the YMCA have worked on the terms and conditions of the license and I:
agencies have found this agreement acceptable.
FISCAL IMPACT
Amending the Lease of the middle lagoon with San Diego Gas and Electric will havc direct fiscal impact on the City, but it will eliminate any potential liability of the Cit) activities on the middle lagoon.
insured, It was also recommended that the existing Lagoon Ordinance and regulatil
.. z EXHIBITS:
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I" - 1. Resolution No.9~-327 approving the Second Amendment to Lease - City of Carls
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2 2. License - SDG&E and YMCA a & SDG&E
0 3. September 21, 1995 letter to City Manager z 3 0 0
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RESOLUTION NO. 95-327
RESOLUTION OF THE CITY COUNCIL TO THE CITY 01 CARLSBAD, CALIFORNIA APPROVING THE SECONI AMENDMENT TO THE LEASE BETWEEN THE CITY ANI
SAN DIEGO GAS & ELECTRIC FOR AGUA HEDIONDk LAGOON
WHEREAS, the City Council wishes to amend the lease wil
Diego Gas & Electric to eliminate the middle portion of Agua Hec
Lagoon; and
WHEREAS, the City Council wishes to make the amendn
the lease based upon the successful negotiation of a license bc
SDG&E and the YMCA for the middle portion of the lagoon.
THEREFORE, the City Council of the City of Carlsbad does
resolve as follows:
1. That the above recitations are true and correct.
2. That the Mayor is hereby authorized to sign the
amendment to the lease with SDG&E which is attached to this res
as Exhibit “A”.
PASSED AND ADOPTED at a Regular Meeting of the City (
of the City of Carlsbad on the 21st , day of NOVEMBER
by the following vote, to wit:
AYES: Council Members Kulchin, Finnila, Hall
NOES: None
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ABSENT: Council Members Lewis, Nyg+rd
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idLmE A. LEWIS
ATTEST:
s&*&ANZ, City Clerk
KAREN R. KUNDTZ, Assistant City Clerk
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2ND AMENDMENT TO LEASE
This SECOND AMENDMENT TO LEASE is made and entered into
this 22nd day of NOVEMBER , 1995 by and between SAN DIEGO GAS &
ELECTRIC COMPANY, a California corporation, (“COMPANY”),as lessor and
the CITY OF CARLSBAD, a Municipal Corporation (“CITY”) as lessee,
RECITALS
A. Company and City entered into a lease of the Agua Hedionda Upper
Lagoon, dated March 4, 1957 (“Lease”).
B. Company and City entered into an AMENDMENT TO LEASE on
April 1, 1962, which amended the lease by, among other things, adding the Agua
Hedionda Middle Lagoon to the leased area.
C. Company and City now wish to amend the Lease by canceling the
Lease on the Middle Lagoon.
NOW THEREFORE, it is mutually agreed between Lessor and Lessee as
follows:
1. Paragraph 3 of the Amendment to Lease, is hereby amended to
delete any reference to the Middle Lagoon, and shall read as follows:
“The City covenants and agrees to police, regulate, and control the entry
and activities in and upon the premises demised hereunder, described as the Upper
Lagoon, anld the posted picnic areas, and in addition, will protect all company
owned property surrounding the demised premises, exterior to the portions herein
demised, so as to minimize any and all disturbances and damages, including the
possibility of damage to property and injury to persons incident to the use of said
premises by any permittees, licensees, invitees, agents, employees or independent
contractors of the City”
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2. Paragraph 14 of the Amendment to Lease is deleted, and the
following is substituted in its place:
“14. Both parties recognize and agree that due to the operation of the tides,
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 of the Upper
Lagoon, and the City, its agents, servants, employees, permitees, licensees,
invitees, and other persons using and entering upon the Upper Lagoon and any of
the premises herein demised, do so with knowledge and express notice of such
conditions, and do hereby specifically release and hold the Company harmless
from and against any claims, demands, or liabilities for damages or injuries
occasioned by or resulting from such subsurface conditions.”
3. To the extent that the above changes and modifications are at
variance with the provisions of the Lease dated March 4, 1957, as amended, the
provisions of this Lease are modified, altered and amended. All other terms and
conditions of the Lease shall remain and continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to Lease to be executed by their authorized corporate representatives
as of the day and year first above written.
LESSOR: LESSEE:
SAN DIEGO GAS & CITY OF CARLSBAD,
ELECTRIC COMPANY, a Municipal Corporation
a California corporation ‘?
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”/,< i A*&/ /&7+-” an&&
By: Carlenc A. Timm By: Bud Lewis
Real Estate Management & Mayor ofthe City
Planning, Manager of Carlsbad
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LICENSE
THIS License, made and entered into as of this day of 7 19-9 by aI
between Sm DIEGO GAS & ELECTRIC COMPANY, a California corporation, hereinaft
called "LICENSOR," and YOUNG MENS CHRISTIAN ASSOCIATION OF SAN DIEG
COUNTY, a non-profit public benefit corporation hereinafter called "LICENSEE."
In exchange for the payment of consideration by LICENSEEy and performance of the conditio
and covenants herein contained, LICENSOR hereby extends a license to LICENSEE to I
LICENSORS real property as follows:
1. Licensed Premises: The real property which is the subject of thls License (hereinaf
called "Licensed Premises"), is located at County of San Diego, State of California,
further set forth on Exhibit "A", attached hereto and incorporated herein by reference.
2. Standard License Provisions: In addition to the terms set forth in this Licer:
LICENSEE agrees to comply with, and be bound by, the Standard License Provisions
forth in Exhibit "B", attached hereto and incorporated herein by reference.
3. Term of License: This License shall be for a term of thIee (3) year@) commencing
January 1, 1995, and terminating at midnight on December 3 1, 1997 and shall conti
on a year to year basis uless sooner revoked or teminated as herein provided.
4. Consideration for License: LICENSEE shall pay to LICENSOR as the first year's
consideration, without deduction, set-off, prior notice, or demand the sum of $1 .OO.
5. Use of Premises: This License is non-exclusive, personal to the LICENSEE, canno
assigned and is valid for the following uses only:
Youth Recreational & Aquatic Park (Lagoon) with Vehicular Parking
6. R.evocabilitv: LICENSOR or LICENSEE may revoke and thereby terminate this Lic
for any reason, at any time, without cause; by giving either party sixty (60) days' WI
notice.
EXHIBI
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7. Notices: Pursuant to Paragraph 2 of Exhibit "B", notices to be given to LICENSEE sh;
be addressed as follows:
YQUT\7G MENS CHRISTIAN ASSOCIATION OF SAN DIEGO
COUNTY(YMCA)
47 15 Viewridge Avenue
Suite 100
San Diego, CA 92123
8. Paragraphs 1, 16 and 2 1 of the attached Exhibit "B" are hereby deleted in their entirety
IN WITNESS WHEREOF, the parties have executed this License as of the above date f
written.
LICENSOR: LICENSEE:
SAN DIEGO GAS & ELECTRIC COMPANY YOUNG MENS CHRISTIAN
a California Corporation ASSOCIATION OF SAN DIEGO
COUNTY, a non-profit corporation
BY Qdl1 il llk L- By: /2J&/& - J. G. Larkin, Richard kollato,
Land Services, Director President
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LEGAL DESCRIPTION
PARCEL 1:
That portion of Lot ''HI' of Rancho Agua Hedionda, in the City of Carlsbad, County of Sari
Diego, State of California, according to Map thereof No. 823, filed in the Office of the County
Recorder of said County of San Diego, being more particularly described as follows:
Commencing at Comer No. 1 of said Rancho Agua Hedionda; thence along the Northeasterly line
thereof, South 78" 03' 00'' East, 1014.32 feet; thence leaving said Northeasterly line, South 30"
48' 00" East, 238.36 feet; thence South 76" 46' 00" East, 931.69 feet to a point of intersection
with the Westerly right of way line of the Atchison, Topeka & Santa Fe Railway Company's land,
as said right of way is described in a Deed recorded September 13, 1948 in Book 2944, Page 76
of Official Records of said County of San Diego; thence South 83" 33' 25" East, 167.89 feet to
the TRUE POINT OF BEGINNING; thence North 26" 56' 40" West, 210.40 feet; thence North
62" 39' 20" East, 127.51 feet to a point on the mean high tide line, as established by United States
Geological Survey Datum; thence along said mean high tide line, South 39" 20' 40" East, 134.65
feet and South 44" 25' 10" East, 103.78 feet; thence leaving said mean high tide line, South 53"
40' 50" West, 115.57 feet; thence South 57" 11' 50" West, 73.95 feet; thence North 26" 56' 40''
West, 45.55 feet to the TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM that portion lying within said Atchison, Topeka & Santa Fe
Railroad Company's right of way recorded September 13, 1948 in Book 2944, Page 76 of Official
Records.
PARCEL 2:
That portion of the Agua Hedionda Lagoon generally referred to% the Middle Lagoon
The Middle Lagoon is designated and described for the purposes of this document as that portio]
of the lagoon waters that lie between the Easterly right of way line of the Atchison, Topeka 8
Santa Fe Railway Company land and the Westerly right of way line of the Caliiornia Interstatl
Highway 5.
EXCEPTING THEREFROM any shore lands lying above mean sea level, USGS Datum.
EXHIBIT 'A'
SHEET 2
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. SHEET 3
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. EXHIBIT "B"
STANDARD LICENSE PROVISIONS
TABLE OF CONTENTS
DESCNPTION PAGE
1 . Payment Review ........................................................................................................ 1
2 . Notices ....................................................................................................................... 1
3 . General Restrictions ................................................................................................... 2
5 . Alterations .................................................................................................................. 2
4 . Licensor's Facilities .................................................................................................... 2
6 . Environmental Compliance ...................................................................................... -3 7. Compliance with Law ................................................................................................ 4
8 . Assumption of Risk ................................................................................................... 5
9 . Indemnification .......................................................................................................... 5
10 . Public Liability Insurance .......................................................................................... 6
11 . Obstructions ............................................................................................................... 6
12 . Attorney's Fees ........................................................................................................... 6
1 3 . Condemnation ............................................................................................................ 7
14 . Breach of Conditions ................................................................................................. 7
15 . Time ofthe Essence ................................................................................................... 7
16 . Growing Crops or Tree Stock .................................................................................... 7
17 . General Order 69-C .................................................................................................... 8
18 . Default ........................................................................................................................ 8
19 . Condition of Premises - End of Term ........................................................................ 8
20 . Payment of Service Utilities ...................................................................................... 8
21 . Audit Rights ............................................................................................................... 9
22 . Governing Law .......................................................................................................... 9
23 . Severability ................................................................................................................ 9
24 . Execution of License .................................................................................................. 9
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EXHIBIT "B"
Standard License Provisions
San Diego Gas & Electric, LICENSOR
1. Payment Review: As provided in the License the base annual consideration shall
increased based on the following formula:
The amount of annual consideration due will be computed by using the Consumer Pk
Index Number covering the cost of "all items" of goods and services purchased by
urban consumers in Los Angeles, Anaheim, Riverside, California, published by 1
The annual consideration for each period subsequent to the first year of the License sh
be computed by dividing the annual base consideration by the Index Number for the fi
month of the first year of the License. The amount derived is then multiplied by 1
average Index Number for the third and fourth months immediately preceding 1
anniversary date of each subsequent year of the License to determine the ann
consideration. Notwithstanding the above, the annual consideration shall not be reduc
below the annual consideration for the preceding year.
If there is no such Consumer Price Index published at the time of any perio'
mathematical computation required by this paragraph, but a comparable Index
published by any agency of the United States Government, such latter Index shall
selected by LICENSOR. If no such comparable Index is then published, the computat
will be made in accordance with the change in the cost of living and, if not arrived at
United States Department of Labor, using the period 1982-84 = 100 as the base peric
agreement of the parties, will be determined by arbitration under the rules and procedu
of the American Arbitration Association.
2. Notices: Notices to be given under the License shall be deemed given when placed
either party in the United States mail, postage prepaid, certified, and addressed to
LICENSEE at the address in the License and to LICENSOR:
San Diego Gas & Electric Company
Attention: Land Services Department
P. 0. Box 183 1
San Diego, CA 921 12
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3. General Restrictions: No trailers or house trailers shall be parked in or on the Licensc
Premises. No storage parking shall be allowed on the Licensed Premises unle:
specifically allowed elsewhere in this License. LICENSEE shall not live or reside on ar
shall not permit anyone, including its agents, servants, employees, contractors or a~
third person whatsoever, to live or reside on the Licensed Premises. LICENSEE shall (
at all times keep the Licensed Premises clean, and free from rubbish, public nuisance
weeds, brush, flammable materials, growth, debris, and waste, and in a conditi
satisfactory to LICENSOR and (b) shall guard against erosion or fires occurring upon 1
Licensed Premises.
4. LICENSOR'S Facilities: LICENSEE'S use of the Licensed Premises shall not interfere
conflict with LICENSOR'S use and ownership of the Licensed Premises, and LICENS(
shall at all times have the right to enter and use the Licensed Premises for any purpo
including, but not limited to installation and maintenance of facilities and equipment
such locations and at such elevations as LICENSOR may or in the hture deem advisat
LICENSEE accepts the Licensed Premises subject to the foregoing and agrees t
LICENSOR shall not be responsible or liable for any injury to or destruction of :
property of LICENSEE or others using the Licensed Premises caused by the installati
maintenance or repair of LICENSORS facilities whether on the Licensed Premises
otherwise. LICENSOR shall have the right to trim any trees, brush, or roots on
Licensed Premises when necessary for the safety of its facilities.
5. Alterations: LICENSEE shall not make or allow to be made any alterations of
Licensed Premises, except as provided in the paragraph entitled "Use of the Premises
the License. For those alterations which are allowed by the License, LICENSEE shall
begin work until prior written consent for specific construction and landscaping plar
obtained from LICENSOR which consent will not be unreasonably witl"
LICENSEE shall keep the Licensed Premises free from any liens arising from such v
performed, material furnished, or obligations incurred by LICENSEE, or arising from
taxes or assessments levied or assessed upon LICENSEE or the Licensed Premise:
reason of the use of, or anything done or permitted by LICENSEE upon such prem
LICENSEE shall obtain appropriate permits and a completion bond, for LICENSC
approval, in the amount of the proposed improvements prior to beginning any alterati
6. Environmental Compliance: LICENSEE shall not engage in, nor shall it permit any
party to engage in, activities upon the Premises, or any portion thereof, for the pup0
or anyway involving the handling, manufacturing, treatment, storage, use, transport;
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spillage, leakage, dumping, discharge or disposal (whether legal or illegal, accidental c
intentional) of any hazardous or toxic substances, materials or wastes, or any waste
regulated under any local, state or federal law. All substancesimaterials to be used b
LICENSEE at this site are set forth on Schedule "A", attached hereto.
LICENSEE shall be, and remain for the term of this License, in full compliance with a
applicable laws governing the use and occupancy of the Premises including, with01
limitation, the handling, manufacturing, treatment, storage, disposal, discharge, use, ar
transportation of hazardous or toxic substances, materials or wastes, and any wast
regulated under any local, state or federal law (hereinafter collectively referred to
"Standards").
LICENSEE shall not create nor permit to be created nor permit to exist upon the Premis
any non-compliance with Standards or any condition which could be alleged to creatc
nuisance, public, private or mixed, or to otherwise present a threat to health or prope.
by any unhealthful, hazardous or dangerous condition (herein collectively referred to
"Harmful Conditions"). LICENSEE shall contain any Harmful condition to prevent
from deteriorating, LICENSEE shall notify LICENSOR immediately of any Harm
Condition or non-compliance with any Standard and LICENSEE shall notify
responsible local, state or federal agencies as required by local, state or fede
regulations.
In the event LICENSEE fails to be in fill compliance with the obligations assumed
LICENSEE herein and LICENSEE does not correct such non-compliance within three '
days of written notice of such failure given by LICENSOR, LICENSOR may, but sh
not be obligated to, take whatever action is necessary to bring the Premises il
compliance. If, however, LICENSEE has begun compliance within three (3) days
written notice, but such compliance cannot be accomplished within the allowed ti
frame, LICENSOR shall not interfere with LICENSEES good faith efforts. If complia
has not been accomplished within fifteen (15) days, LICENSOR may, but shall not
obligated to, take whatever action is necessary.
LICENSEE shall reimburse LICENS0.R for all costs (including, but not limited
consulting, engineering, clean up, contain-ment, disposal, and Iegal costs) incurred
LICENSOR as a result of LICENSEE'S failure to comply with the foregoing obligati
assumed by LICENSEE, and also such costs as may be incurred by LICENSOR
abating or protecting against Harmful Conditions and/or a violation of Standards.
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LICENSEE shall indemnify, defend, and hold LICENSOR, its employees and agent!
harmless from and against any claim or lawsuit, local, state, or federal enforcemer
action, or civil or criminal claims, which arise from or relate to any actual or allege
Harmful Conditions, actual or alleged violation of Standards, or actual or alleged injuric
$0 or death of any persons and loss of or damages to property, includinb (J with01
limitation, employees and property of LICENSOR and LICENSEE, which arise durir
LICENSEE'S presence on, or use of, the Premises.
LICENSEE expressly agrees that the indemnification, and hold harmless obligations 1
this Article are assumed by LICENSEE regardless of the nature of the claim or tl
authority or person asserting such claim, and regardless of whether such claim arises
whole or in part from the negligence or alleged negligence of LICENSOR or othenvis
Those obligations include the obligation to pay all costs, including, but not limited t
attorneys fees, judgments, expert witness fees, and costs on appeal. Further, LICENSE
expressly agrees that the indemnification, and hold harmless obligations assumed 1
LICENSEE with regard to abatement of Harmhl Conditions and violations of Standar
in this Article, shall survive expiration or termination of this License.
7. ComDliance with Law: LICENSEE shall comply with all laws: ordinances, codes, zoni:
ordinances, and regulations of any Federal, State, Local or other public body or agen
exercising jurisdiction over the Licensed Premises. LICENSEE shall maintain t
Licensed Premises and any improvements according to zoning, and other standarc
including, but not limited to, water, air and noise standards, set by such bodies
agencies. LICENSEE shall notify LICENSOR immediately of any non-compliance w'
any laws, ordinances, codes, zoning ordinances, and regulations of any Federal, Sta
Local or other public body or agency exercising jurisdiction over the Licensed Premis
The failure of LICENSEE to maintain the Licensed Premises and any improvemel
according to such standards, shall be construed as a default of this License. LICENS(
may, after giving ten (10) days written notice of such failure to LICENSEE, do any a
necessary to bring the Licensed Premises and improvements into compliance with SL
standards. If, however, LICENSEE has begun compliance within ten (10) days of wri'c
notice, but such compliance cannot be accomplished within the allowed time frar
LICENSOR shall not interfere with LICENSEE'S good faith efforts. If compliance 1
not been accomplished within thirty (30) days, LICENSOR may, but shall not
obligated to, take whatever action is necessary. LICENSEE asrees to repay LICENS(
for all costs, including but not limited to consulting, engineering, construction and le
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costs Lcurred by LICENNIR in abating a v;oLt;on o€ such standards, proteci;ng again5
a threatened violation of such standards and paying any fine or assessment levied as
result of violation of such standards. LICENSEE shall fudher indemnifv and hol
harmless LICENSOR from any claim, loss, damage or injury, including any fines c
penalties assessed by any agency, body or court, resulting from any violation of SUC
standards in connection with LICENSEES use of the Licensed Premises an
improvements, whether such claim, loss, damage or injury arises in whole or in part fro1
the negligence of LICENSEE. LICENSEE shall, at its cost, undertake to respond to a
such claims.
8. Assumption of Risk: LICENSEE acknowledges and expressly agrees that there are (
may be high voltage lines, towers, poles, underground electric ducts, cables, wires, ar
high pressure gas or oil pipelines, valves and facilities, situated on, in, or near tl
Licensed Premises which are used by LICENSOR in its regular course of busine:
LICENSEE for itself, its agents, employees, independent contractors, invitees, license€
permittees, and the agents and employees of each hereby assumes all risks, includi~
those of an extra-hazardous nature, of injury to persons and damage to property arisi~
out of the use of the Licensed Premises. LICENSEE for itself and for each of the abo.
described persons hereby waives and releases LICENSOR from all liability as set for
above.
If agricultural or horticultural use is being made of the Licensed Premises, LICENSE
further agrees to periodically warn and remind all of the above described persons, at le:
on a weekly basis during picking or harvesting, of such risk. LICENSEE also agrees
adopt any existing work methods or procedures and to use any existing equipment whi
will measurably reduce the amount of such risk.
9. Indemnification: LICENSEE agrees to indemnify and hold LICENSOR, its office
employees, agents or Licensees harmless from and against any and all demands, clair
suits, costs of defense, attorneys' fees, witness fees, including expert witness fe
liability, loss, costs, obligations or other expenses for damage to property or for injurq
or death of any persons in any manner arising from (a) LICENSEE'S use, maintenan
presence on or occupation of the Licensed Premises, (b) the presence of LICENSE:
facilities upon the Licensed Premises, or (c) any act or omission of LICENSEE,
employees, agents or Licensees, or of any employees, agents or Licensees of
contractors, subcontractors or independent contractors.
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10. Public Liabilitv Insurance: LICENSEE shall, at its own expense secure and maintain
effect during the entire life of this License insurance coverages as described herein,
amounts not less than the minimum limits specified, to protect LICENSOR a
LICENSEE from claims or liabilities in any way arising out of the ownersh
maintenance or use of the License Premises: (a) Workers' Compensation Insurance a
Employer's Liability Insurance in accordance with stntutory requirements and lim
including U.S. Longshoremen's and Harbor Workers' Compensation Act coverage, wh
applicable, (b) Comprehensive General Liability Insurance to include products-cornple
operations and contractual liability coverage for liability assumed by LICENSEE un
this License, and automobile liability insurance, with limits of not less than $5,000,(
each occurrence for bodily injury and property damage combined. Such liabi
insurance shall name LICENSOR as additional insured, shall contain a severability
interest or cross liability clause and shall be primary for all purposes. Certificates
insurance evidencing the coverages and provisions required in (a) and (b) above shall
furnished to LICENSOR prior to any use of the Licensed Premises by LICENSEE ,
shall provide that written notice be given to LICENSOR at least thirty (30) days prio
cancellation or reduction of any coverage. LICENSEE agrees, at request of LICENS(
to increase the limits of insurance to meet the limits then required by LICENSOR
similar licenses of this type. The provisions of this paragraph shall not in any way li
any of LICENSEE'S other obligations or liabilities under ths License.
11. Obstructions: Except as permitted by this License, LICENSEE shall not place, ins
maintain, or allow any combustible materials, buildings, structures, or 0'
improvements upon the Licensed Premises and shall not cause or allow the surl
elevation therein to be changed in any way whatsoever, without LICENSORS I:
written approval.
12. Attorney's Fees: If either party hereto commences any legal action or proceeding aga
the other by reason of the alleged failure of the other to perform under this License,
party prevailing in said action or proceeding shall be entitled to recover, in additio
court costs, a reasonable attorney's fee to be fixed by the court. Such recovery s
include court costs and attorney's fees on appeal, if any. As used herein, "the I:
prevailing" means the party in whose favor final judgement is rendered.
13. Condemnation: If the whole or any part of the Licensed Premises shall be taken by
public or quasi-public authority under the power of eminent domain, this License !
cease as to that part so taken from the day possession of that part shall be required for
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public purpose. On or before that day, LICENSEE shall elect in writing either to can(
this License or to continue as to the remainder of the Licensed Premises under the ten
herein provided. If LICENSEE elects to continue, the consideration paid by LICENSI
for all subsequent years of this License shall be reduced by a percentage equivalent to 1
percentage the Licensed Premises was reduced in area by the taking. All damag
awarded for such taking shall belong to and be the property of LICENSOR, with 1
exception that in the event LICENSEE should not be allowed to remove any fixtures
other personal property as provided by the terms of this License, then LICENSEE sh
receive that portion of the award, paid to LICENSOR, which shall represent the value
LICENSEE'S property so retained.
14. Breach of Conditions: LICENSORS waiver of any one or more of the covenar
conditions, or agreements of this License shall not be cclnstrued to be a waiver of s
subsequent or other breach of the same or any other covemant, conditions, or agree-m
of this License. LICENSORS failure to require or exact full complete compliance m
any of the covenants, conditions, or agreements of this License shall not be construed
changing the terms hereof, and such failure shall not stop LICENSOR from enforcing
full provisions hereof. The terms of this License shall be amended only in writing
LICENSOR and LICENSEE.
15. Time of the Essence: It is mutually agreed that time is of the essence of each and all
the terms and provisions of this License.
16. Growine Crous or Tree Stock: If, at the revocation or termination of this License, th
are growing crops or tree stock on Licensed Premises in which LICENSEE has
interest, LICENSEE shall nonetheless leave the Licensed Premises and LICENSOR SI
have the right to do with or dispose of said crops or stocks as LICENSOR sees fit with
compensation, remuneration or liability to LICENSEE on account thereof. However
the event that said crops or stock will mature within one month after the date
termination of this License, and if during the term hereof LICENSEE shall h
requested extension of this License as herein provided, which extension was denied
LICENSOR, LICENSOR shall extend the term of this License for forty (40) days fi
the date of said termination for additional consideration based on a pro-rata amount of
consideration in effect at such time.
17. General Order 69-C: Notwithstanding any other provisions to the contrary, this Licc
is expressly conditioned upon the right of LICENSOR to commence or resume the us
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the property whenever in the interest of its service to its patrons or consumers it sh
appear necessary or desirable to do so, as provided by General Order 69-C or any revisi
thereof or amendment thereto, of the Public Utilities Commission of the State
California.
18. Default: In the event of default by LICENSEE in the performance of any of 1
covenants, conditions or agreements hereof, LICENSOR shall give LICENSEE writr
notice as provided herein of the default. If the default is not cured or corrected to 1
satisfaction of LICENSOR within ten (10) days of said written notice LICENSOR IT
immediately revoke and terminate this License and LICENSEE shall forfeit
consideration paid.
19. Condition of Premises - End of Term: Upon termination or revocation of this Licen
LICENSEE shall surrender the Licensed Premises to Licensor in a condition satisfactc
to LICENSOR, clean and free of debris. At LICENSORS option, and at no cost
LICENSOR, LICENSEE shall, within ten (10) days, remove from the Licensed Premi
all buildings, structures, facilities, equipment and personal property of whatever nat
belonging to LICENSEE and return the LIcensed Premises to the condition in whicl
was in immediately prior to commencement of this License. If, within ten (10) da
LICENSEE has failed to remove its property andor return the Licensed Premises to
original condition, LICENSOR may, at its option, remove LICENSEE'S property I
restore the Licensed Premises to its original condition, and LICENSEE hereby agrees ;
covenants that it shall pay to LICENSOR all expenses of LICENSOR including, but
limited to, labor costs, including overhead expenses, rental of storage space, equipu
rental, materials and fuel costs of machinery.
20. Payment of Service Utilities: LICENSEE shall pay for all utilities furnished to
Licensed Premises during the term of this License or any renewal thereof, including
not limited to electricity, gas, water and telephone service.
21. Audit Rights:
(A) LICENSOR reserves the right to audit any books, records, receipts, purc€
orders, settlements and other documentation and supporting information rela
to this Agreement. Any such audit (s) shall be undertaken by an employe1
LICENSOR or its contracted representative (s) from a Certified Pu
Accounting Firm at reasonable business hours and in conformance with gene1
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abb@gd audjtisg standards, LICENSEE agrees to fully cooperate with any suc
audit (s).
(B) If such audit shows a deficiency in any percentage payment for the peric
covered, the amount thereof shall be paid within fifteen (1 5) days by LICENSE
If such audit shall show percentage payments to have been overpaid, the excc
shall be applied to any amounts there due to LICENSEE. If any deficiency
percentage varies by more than three percent (3%) over figures submitted
LICENSEE, LICENSEE shall pay for the audit; if audit verifies LICENSE€
figures within three percent (3%), expense of audit shall be borne by LICENSO:
22. Governing Law: This License shall be governed by and construed in accordance with
laws of the State of California.
23. Severability: If any part, paragraph or provision of this Agreement should be inva
then all the remaining parts, paragraphs and provisions shall continue to be fi
effective.
24. Execution of License: Execution of this Ehbit "B" as part of this License
LICENSEE and its return to LICENSOR shall not be binding on LICENSEE u
LICENSEE has in fact signed and delivered this Exhibit "B" to LICENSOR.
I have read and accept the foregoing Exhibit "B" to the License Agreement.
LICENSEE:
YOUNG MENS CHRISTIAN ASSOCIATION OF SAN .DIEGO COUNTY(YMCA)
" n
By: ,//&&( ,e td k$g$ /(&&(&J-
'/
Date: 312 / 4 <-
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a e
K*
r
r
e
SCHEDULE "A"
LICENSEE may use, only so long as LICENSEE is in full conformance and compliance with e
State, Federal, and Local rules, regulations, and laws, the following substances for the followin
specified purposes:
--NONE--
The use, storage, disposal, or handling of any material or sub-stances not identified above, or a
misuse of the material or substances identified above, shall be considered a material breach an(
default of this License.
'r *
.. ... i* .b . - - yma
.. .~ . ,.... .-..; - .. EvERyBolly
" ,- . .. YMCA of San Diego County
RICHARD A. COLLATO
President
Chief Executive Officer
September 21, 1995
c 4715 Viewridne Avt San Diego, Ci921:
Telephone (619) 2!
FAX (619) 2!
Dear Mr. Patchett:
Please be advised that the YMCA of San Diego County .
in full agreement with the terms and conditions in tl
License granted for the YMCA Aquatic Park by SDG&E.
The License serves the same fundamental purpose as a Lease would, and we therefore request that the Licen;
be approved in place of a Lease.
Very truly yours,
/2d//l%&-
cc: John Hernandez, SDGbE
Kathy Riggins, Ecke YMCA
Mr. Ray Patchett
City Manager City of Carlsbad i200 Carisbad Village Drive
Carlsbad, CA 92008
EXHIBI
v xr-Ltl-m IHU IO;W
I; '. ur L;HKL>DHU L;U~I~I ut PHA NU, 430~. .Y m r, us
City of Carlsbad
September 6, 1995
Mr. Bill Dyson Consrmction hojecr Adminisrraror
SAN DIEGO GAS & ELECTRIC
4600 Carlsbad Boulevard
Carlsbad Ca 92008 V v
1W5/96 DREDGING PROGRAM FOR THE AGUA HEDIONDA LAGOON
Dear Mr. Dyson;
Pursuant to the requirements of Special Use Permit 92-04 and based upon dkcussions with the Carlsbad
Beach Erosion Committee, rhe following is your approved 199996 dredgng program for the outer basin Qf the AW Hedionda hgWK
* Upon commencement of SDG&Es dredging pmpm, place &e tht 150,000 u&ic yx& of
dredge material beginning at the northerly limits of the permit area (Oak Street) d deposit the
rmeriai in a southerly direcrion building a beach profile of 150 feet from the foe of rhe seawall.
y Deposir the next 200,000 cubic yards of dredge material between the inlet and outlet jcttics of -s ." .. .- ._. . - A .. the Agua Hedionda Lagoon western basin.
b Place the remaining material (approximately 50,000 cubic yards) south of the outlet jeq.
Failure to comply with the above program will consrime a violation of your Special Use Ptnnit and
SDG&E wouid be subject to the provision of the Municipal Code.
If you haw any qucstions, pIease contact mc at 438-1161 extension 4391.
very truly yours.
City Engincn
C; Beach Erosion Cornmitux
City Manager
City Anomey
Community D~~clopmtnt Direnor
Associare Engrneer Jam
Coastal Commission
Army Corps of Engineers