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HomeMy WebLinkAbout1995-11-21; City Council; 13401; AMENDMENT TO LEASE AGUA HEDIONDA LAGOONI i " - - - - - - - - - - - - - """" - -"- , .AI- IL - AB#- MTG. ]/2& - q5 LLEo DEPl 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: a i'U :'3 8% .2 :e>. :.!- & ,":a < 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: 0 I" - 1. Resolution No.9~-327 approving the Second Amendment to Lease - City of Carls 0 2 2. License - SDG&E and YMCA a & SDG&E 0 3. September 21, 1995 letter to City Manager z 3 0 0 u f & 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 I 20 21 22 23 24 25 26 27 28 I m e 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 / ABSENT: Council Members Lewis, Nyg+rd p; ,-I /@dc { idLmE A. LEWIS ATTEST: s&*&ANZ, City Clerk KAREN R. KUNDTZ, Assistant City Clerk A 0 e e 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” 1 .4 0 ’* 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 ‘? // 7 ; ”/,< i A*&/ /&7+-” an&& By: Carlenc A. Timm By: Bud Lewis Real Estate Management & Mayor ofthe City Planning, Manager of Carlsbad d e 0 t 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 A 0 c 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 .. -A- i e rr . +:.< .,",. ...:: *.>'^."-.LL."r. '7 *'.2a* . "4 .-.L .L. -. 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I I ! 1 i i I I I I 1- \ ...... 3UI1031VM 038 ovan~m am 4 0 e - 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 - .' I LC;\IILUI a . SHEET 3 . ..- -.- m. ._ 0 0 . 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 .- 0 0 Y 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 B-1 .. 0 0 7 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; B-2 1 0 0 " 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. EL3 c 0 e 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 B -4 .e 0 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. B-5 _I .- W e 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 B-6 0 0 -r 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 B-7 L 0 0 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 B-8 L a 0 ,- 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 <- B-9 ,- 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