SOUTH LAKE LEASE AGREEMENT
by
Vallecitos Water District
as Lessor
and
City of San Marcos, California
:
as Lessee
:
Dated as of: August 29, 2005
TABLE OF CONTENTS
Page
ARTICLE I PREMISES AND TERM 2
1.1 Lease Area
1.2 Restricted Areas 3
1.3 Term of Lease
1.4 Acceptance of Premises 3
ARTICLE II RENT, TAXES AND UTILITIES
2.1 Rent 3
2.2 Taxes and Assessments 4
2.3 Utilities 4
ARTICLE III USE, MAINTENANCE, AND COMPLIANCE WITH LAWS 5
3.1 Limitations on Use 5
3.2 No Liens or Easements 5
3.3 Maintenance of Leased Premises 5
3.4 Maintenance of Dam and Appurtenant Facilities
3.5 Supplemental Reservoir Supply
3.6 Compliance with Laws and Restrictions 7
ARTICLE IV DEVELOPMENT PLAN, FINANCING, CONCESSIONS, AND FEES 8
4.1 Recreational Development Plan and Improvements 8
4.2 Financing and Bonded Indebtedness 8
4.3 Concessions and Subleases
4.4 Fees and Charges 9
4.5 Use of Revenues 10
ARTICLE V. RESTRICTIONS ON USE AND DISTRICT RESERVATIONS 10
5.1 Water Level Fluctuation 10
5.2 Water Quality 11
5.3 Restrictions on Access 11
5.4 District Access and Improvements •11
5.5 Water Treatment 12
ARTICLE VI INSURANCE 12
ARTICLE VII DAMAGE OR DESTRUCTION DURING TERM OF LEASE 16
7.1 Restoration of Leased Premises 16
7.2 Restoration of Dam and/or Appurtenant Facilities 17 ARTICLE VIII CONDEMNATION 17
:
ARTICLE IX DEFAULT AND TERMINATION 17
9.1 Events of Default 17
9.2 Notice and Right to Cure. 18
9.3 Remedies 18
9.4 Termination by Lessee 19
ARTICLE X ENVIRONMENTAL PROTECTION AND HAZARDOUS WASTE 19
10.1 Environmental Protection 19
10.2 Hazardous Materials 20.
ARTICLE XI ADDITIONAL COVENANTS OF LESSEE 21
11.1 Security of Recreation Area 21
. -
11.2 Signage and Displays 21
11.3 Entrance Gate 21
11.4 Boat and Water Contact Restrictions 21
11.5 Annual Reporting 22
:
ARTICLE XII SURRENDER AND DISPOSITION OF PREMISES 22
12.1 Surrender of Leased Premises 22
12.2 Disposition of Lessee's Property upon Termination 22 ARTICLE XIII INDEMNIFICATION : 23
13.1 Indemnification 23
ARTICLE XIV MISCELLANEOUS PROVISIONS : 25
14.1 Governing Law 25
14.2 Invalidity 25
14.3 Notices 26
14.4 Entire Agreement
14.5 Additional Documents
14.6 Venue
14.7 Relationship of Lessor and Lessee 28
14.8 Short Form Agreement 28
EXHIBITS/ATTACHMENTS
:
A. Map & legal description
B. Restricted Area
C. Current dam safety permit
D. Inundation map
SOUTH LAKE LEASE AGREEMENT
This Lease Agreement ("Agreement") is made and dated as of August 29, 2005, by and between the Vallecitos Water District, a County Water District organized and existing pursuant to California Water Code section 3000 et seq ("Lessor" or "District"), and the City of San Marcos, a California Charter City, ("Lessee" or "City"), with reference to the following facts:
RECITALS:
A. District provides water service to portions of north San Diego County that includes the City. District is the owner of a raw water reservoir with a capacity of 75 million gallons located in the southerly portion of the San Marcos Valley in the City known as South Lake Reservoir ("South Lake").
South Lake was part of the District's potable water distribution system, but was " taken out of operational use in 1984 in compliance with the Safe Drinking Water Act. The sole source of water for South Lake is rain and run-off.
B. District maintains South Lake for emergency water use, with the requirement that the water would need to be boiled prior: to human consumption.
District is updating its Water, Sewer and Reclamation Master Plan. The Master:
Plan will address water supply alternatives, which may include the incorporation of South Lake for storage of recycled water, ground water, or imported raw water and the use of an in-line pressure filtration system or some other approved water treatment system.
:
1 South Lake Lease Agrmnt/COSM-VWD//Final 7/11/05
C. City desires to expand public recreational areas within its boundaries by incorporating South Lake into its recreational development plan.
D. District is willing to permit the lease and use of South Lake by City for a public recreation area, provided the City's use does not infringe or interfere with the District's future water supply flexibility and the City assumes the responsibility and liability for operation and maintenance of the reservoir and recreational area.
E. Pursuant to sections 31130 and 31048 of the County Water District Act and after consideration of informal public review and comment, District and • City find that entering into this Agreement will promote the best interests of the communities served by the two parties.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants, and agreements contained in this:
Agreement, the parties hereto agree as follows:
ARTICLE I
PREMISES AND TERM
1.1 Lease Area. Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, on the terms and conditions set forth in this Agreement, the water surface of South Lake and adjacent surrounding property which is more particularly identified and described on the plat and legal description attached as 2 South Lake Lease Agnt/COSM-VWD//Final 7/11/05
.....
Exhibit A hereto. South Lake and the adjacent property are hereinafter referred to as the ("Leased Premises" or "Recreational Area").
1.2 Restricted Areas. District reserves the right to prohibit public access to those areas of the South Lake property that includes the pump station and related facilities. District further reserves the right to coordinate with the City to restrict public access to portions of South Lake for operations, safety and water. quality issues. All such restricted areas are delineated on Exhibit B hereto. The :
District will install a buoy line at District's expense, as well as any and all signs and fencing it deems necessary.
1.3 Term of Lease. The term of this Agreement shall be for fifty (50) years, commencing on the date first written above. The Recreational Area shall be available to the City but not be opened to the public prior to the time the restricted areas are secured by the District. If allowed by law, this Agreement may be extended an additional 25 years by mutual agreement.
1.4 Acceptance of Premises. Lessee accepts the Leased Premises "as- is". A joint pictorial inventory along with a narrative description shall be created for historical baseline reference related to the more significant features and known pre-existing physical conditions.
ARTICLE II
• RENT, TAXES AND UTILITIES :
2.1 Rent. The parties agree that the use of South Lake as a Recreational Area shall benefit the respective communities served by District and City.
South Lake Lease Agrmnt/COSM-VWD//Final 7/11/05
Accordingly, during the term of the Agreement, City covenants and agrees to develop and maintain the Recreation Area, comply with the terms of this lease and pay $1.00 per year as consideration to District.
2.2 Taxes and Assessments. Lessee also agrees to pay all applicable real and personal property taxes, general and special assessments, and other charges of every description levied on or assessed against the Leased Premises, improvements, or personal property located on or in the Leased Premises. If the District decides to actively use the lake, District will then pay to the City the MWD Wholesale Nonfiltered Tier 1 Rate for any water the District may use/take that belongs to the City. In no event shall such District use cause the Reservoir's, safe minimum pool to drop below the 790 foot MSL elevation specified in Section
5.1 hereof.
2.3 Utilities. Lessee further agrees to pay all utilities used upon the Leased Premises, including without limitation water, gas, heat, light, power, telephone service, refuse collection and removal, and all other services supplied to the Leased Premises, excluding any such charges that arise from District facilities or activities. All utilities shall be installed underground unless the prior written. consent of Lessor is obtained. The District staff will meet with City staff to determine, to the extent possible, what undergrounding of existing and future facilities are anticipated in order to optimize coordinated efforts, minimizing future impacts.
South Lake Lease Agrmnt/COSM-VWD//Final 7/11/05
ARTICLE I
USE, MAINTENANCE, AND COMPLIANCE WITH LAWS
3.1 Limitations on Use. The Leased Premises are leased to Lessee for the sole purpose of Lessee operating and maintaining the Leased Premises as a recreational area in accordance with the City's recreational development plan:
which shall be subject to review with reasonable approval by the District. In the event the City ceases to utilize South Lake for recreational purposes, at any time:
during the term of the lease, this Agreement shall terminate and the Leased Premises shall be returned to District in a good, clean, and undamaged condition, ordinary wear and tear excepted.
3.2 No Liens or Easements. Except for permitted encumbrances, easements, and restrictions approved in writing by District beforehand, Lessee agrees and covenants not to place any deed of trust, mortgage or any other type of security lien upon the Leased Premises during the term of this Agreement.
3.3 Maintenance of Leased Premises. Lessee shall, at its sole cost and expense, maintain the Leased Premises in good, clean and undamaged condition and use as a recreational area in accordance with all applicable laws, including without limitation such zoning, safety ordinances and laws, environmental regulations, and such rules and regulations thereunder as may be binding upon Lessee. Lessor shall not have any responsibility to maintain the Leased Premises.
Lessee hereby waives all rights to make repairs to the Leased Premises at Lessor's expense or to deduct the cost thereof from the rent. All rights under California i
South Lake Lease Agrmnt/COSM-VWD//Final 7/11/05
Civil Code sections 1932(1), 1941, and 1942 or any law in replacement thereof are hereby waived and released. The District will work with the City to provide a reasonable amount of technical expertise with supporting documentation related to :
administrative preparation and filing for permits and related charges from! permitting agencies within the historical scope of the District's water supply:
related requirements recognizing that there may be permits and fees outside of the District's knowledge and experience. Notwithstanding anything to the contrary in this Section 3.3 and/or this Agreement, City shall not be responsible for any cost,! liability and/or expense associated with, arising from or connected to, District activities and/or the dam and appurtenant District facilities.
3.4 Maintenance of Dam and Appurtenant Facilities.
(a) Except as provided elsewhere in this Agreement, the City and District agree to share equally the cost of maintaining the dam and appurtenant facilities, to include weed abatement, erosion control, litter removal, fence and sign repair and/or replacement, all necessary permitting and inspection fees in compliance with all applicable laws, including, without limitation, such zoning and safety ordinances and laws, environmental regulations and such rules and regulations that may be binding upon the City or District. Further, throughout the term of this Agreement District shall maintain, at its sole cost and expense, liability insurance coverage for the possibility of failure of the dam and/or its appurtenant facilities at levels sufficient to cover damages to and/or loss of :
Lessee's improvements on the Leased Premises in such event. :
6 South Lake Lease Agrmnt/COSM-VWD//Final 7/11/05
(b) As soon as practicable following adoption of the Development Plan, City an District shall develop a joint maintenance plan which clearly establishes which entity:
will perform required maintenance activities pursuant to Subsection (a), above.
Beginning with the first anniversary of the effective date of this Lease Agreement, the parties shall annually total their costs incurred pursuant to this Section 3.4 and reimburse one another, as necessary, such that neither City's nor District's respective share of the total expenses incurred in any given year exceeds 50%.
3.5 Supplemental Reservoir Supply.
Water for the recreation lake will come from rain event runoff and/or City wells. If well water is unavailable, water from the District, if available, will be sold to City at the then applicable District construction water rate.
3.6 Compliance with Laws and Restrictions. Lessee agrees to use the Leased Premises in material compliance with all laws now in force or which may hereafter be in force relative to its use as a recreational area, including without limitation compliance with all building requirements and regulations, appropriation of water rights/usage, as well as all covenants, conditions, and. restrictions contained in this Agreement. During extreme wet years, the City, with District's assistance, will provide necessary water level control so as not to spill uncontrolled water.
7 South Lake Lease A grmn/COSM-VWD//Final 7/11/05
ARTICLE IV
DEVELOPMENT PLAN, FINANCING, CONCESSIONS, AND FEES
4.1 Recreational Development Plan and Improvements. Within i eighteen (18) months of the effective date of this Agreement, City shall provide :
District with a draft recreational development plan ("Development Plan"). The Development Plan shall show the location of proposed roads, bicycle paths, entrance gate, hiking trails, nature study areas, boat ramps, mooring facilities, buildings, water and sanitary facilities, a water course from both the clam outlet and spillway to the San Marcos Creek and any other proposed recreational improvements. All improvements associated with the Development Plan shall be compatible with existing features and shall be of a type and quality that enhances the recreation atmosphere of the area. District shall furnish City with comments on, or shall approve, the Development Plan within sixty (60) days of receipt, and District's approval of same shall not be unreasonably withheld. City also agrees to submit to District the construction plans for all improvements associated with the Development Plan for comment or approval by District within 60 days of receipt.
All improvements shall be subject to inspection by District and any changes or revisions shall require the prior written approval of District, which approval shall not be unreasonably withheld. City agrees to have the Recreational Area operational not later than December 31, 2010.
4.2 Financing and Bonded Indebtedness. City may enter into bonded indebtedness or other types of permitted public financing to pay for the cost of 8 South Lake Lease Agrmnt/COSM-VWD//Final 7/11/05
improvements constructed at the recreational area. This is provided, however, that such financing shall not interfere with, or restrict, the District's future water supply flexibility and that the term of such financing shall not exceed the term of:
this Agreement.
Concessions and Subleases. City may enter into concession agreements and subleases for the purpose of providing recreational facilities and services at South Lake for the general public. All such agreements and subleases shall be subject to review and approval by District, which shall not be unreasonably withheld, with no financial interest or claim therein, prior to issuance and shall be expressly subject to the terms and restrictions of this Agreement and shall in no event conflict with the water service flexibility or operational responsibilities of District. All such agreements shall contain. provisions necessary to protect District, its officers, employees, successors, and assigns from any liability arising out of the construction, operation, and/or maintenance of any improvements and concessions. The term of any permit, concession, sublease, or other agreement entered into by City affecting, or related ! to, the Recreational Area shall not exceed the term of this Agreement.
4.4 Fees and Charges. City may charge reasonable entry fees to the.
Recreation Area consistent with City's investment and costs. In addition, City. shall have authority to charge, or allow its concessionaires or Sublessees:
(hereinafter collectively referred to as "Sublessees") to charge, reasonable fees for services or use of the recreation facilities. The schedule of entry and user fees !
9 South Lake Lease Agrmnt/COSM-VWD//Final 7/11/05
shall be submitted to District for review and comment, and District residents shall have the same rights and privileges, and be subject to the same entry and user fees, as City residents.
4.5 Use of Revenues. All revenues received by City including entry" fees, user fees, and rent payments shall be used to defray the costs and expenses:
for development, operation, administration, and maintenance of the Recreational Area. If at the termination of this Agreement the City has surplus funds derived from revenues received in operating the Recreational Area, such funds shall be remitted to the District. City shall maintain books and records relating to the costs and expenses relating to the operation of the Recreational Area which shall be:
available for District inspection and audit.
ARTICLE V
RESTRICTIONS ON USE AND DISTRICT RESERVATIONS
5.1 Water Level Fluctuation. During the lease term, District shall have:
the right as it deems necessary to fluctuate the water level in South Lake related to water production and delivery without liability for damage to any improvements or operations of City and its Sublessees. This is provided, however, that, in consideration of City's recreational needs, the Reservoir pool shall, at all times, be maintained at a surface elevation of not less than 790 feet MSL and not more than 820 feet MSL. If the District determines that South Lake will become an active distribution reservoir for potable or non-potable purposes, a detailed addendum 10 South Lake Lease Agrmnt/COSM-VWD//Final 7/11/05
will be developed that will refine the fluctuations and public use related to lake access and spatial distances for purposes of optimum safety.
If for any reason the District, at its sole discretion, decides to put the lake back into service for reclamation, emergency service or other purposes, then the cost will be District's.
5.2 Water Quality. The City shall not input, cause of allow water to be drained into South Lake which may adversely affect water quality and/or District use of the water as determined in the sole discretion of District.
5.3 Restrictions on Access. District may close or otherwise restrict public access to the Recreational Area, or any portion thereof, whenever District determines in its reasonable discretion that such closure is necessary in the interest of water operations, public safety, or national security. District will take reasonable actions to promptly notify City in the event of a closure or restriction on access to the Recreational Area.
5.4 District Access and Improvements. District, its officers, agents, and employees shall at all times have the right to access the Recreational Area including the right of ingress and egress, for any purpose recognizing that if time allows, there shall be reasonable notice and understanding with the City. District may also construct, operate, and maintain any facilities or improvements in the Recreational Area it deems necessary, including the removal or relocation of facilities constructed by City or its Sublessees, who shall have no claim for South Lake Lease Agrt/COSM-VWD//Final 7/11/05
damages or compensation from District, other than actual costs of relocation or :
reconstruction as reasonably determined by District and City.
5.5 Water Treatment. During the term of this Agreement, District may require that City chemically treat the water in South Lake or remove vegetation along the shoreline to protect and preserve water quality characteristics and standards determined by District and will provide consultation upon request by the City. All costs of chemical treatment and removal of vegetation shall be paid by:
City.
ARTICLE VI
INSURANCE
The City, as a self-insured entity within its comparative insurance coverage, and its Sublessees shall provide and maintain the following commercial general. liability and automobile liability insurance:
6.1 Coverage for commercial general liability and automobile liability insurance shall be at least as broad as the following:
(a): Insurance Services Office (ISO) Commercial General Liability Coverage (Occurrence Form CG 0001).
(b) Insurance Services Office (ISO) Business Auto Coverage:
(Form CA 0001), covering Symbol 1 (any auto).
6.2 Limits shall be no less than the following amounts:
(a) General Liability - Three million dollars ($3,000,000) per occurrence for bodily injury, personal injury, and property damage. If commercial 12 South Lake Lease Agrmnt/COSM-VWD//Final 7/11/05
:
general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply to premises leased (with the ISO CG 2503, or ISO CG 2504, or insurer's equivalent endorsement provided to District) :
or the general aggregate limit shall be twice the required occurrence limit. (b) Automobile Liability - One million dollars ($1,000,000) for :
bodily injury and property damage each accident limit.
6.3 The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:
(a) District, its directors, officers, employees, and authorized volunteers are to be given insured status (via ISO endorsement CG 2011, CG 2024 (if land only), or insurer's equivalent for general liability coverage) as respects:
liability arising out of premises leased by the City and its Sublessees; and automobiles owned, leased, hired or borrowed by the City and its Sublessees. The coverage shall contain no special limitations on the scope of protection afforded to! District, its directors, officers, employees, or authorized volunteers. (b) For any claims related to this lease, City and its Sublessees' insurance shall be primary insurance with respects to District, its directors, • - - officers, employees, or authorized volunteers. Any insurance, self-insurance or other coverage maintained by District, its directors, officers, employees or authorized volunteers shall not contribute to it. :
13 South Lake Lease Agrmnt/COSM-VWD//Final 7/11/05
(c) Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to:
District, its directors, officers, employees, or authorized volunteers. (d) City and its Sublessees' insurance shall apply separately to:
each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
(e) Each insurance policy required by this agreement shall state! or be endorsed to state that coverage shall not be canceled by the insurance carrier. or the City and its Sublessees, except after thirty (30) days (10 days for nonpayment of premium) prior written notice by U.S. mail has been given to District.
6.4 Such liability insurance shall indemnify the District against loss; from liability imposed by law upon, or assumed under contract by, the City and its Sublessees or their contractors for damages on account of such bodily injury:
(including death), property damage, and personal injury that may arise from, concern or be related to the use of the Leased Premises as a public recreational. facility, together with its appurtenant facilities. Notwithstanding the foregoing; nothing in this Article VI shall require such liability insurance to indemnify the.
City, its Sublessees and their contractors, and/or the District against loss from liability for damages and/or injuries that arise from, concern or are related to District's activities and/or its facilities except to the extent that the same are 14 South Lake Lease Agrmn/COSM-VWD//Final 7/11/05
coextensive with the use of the Leased Premises as a public recreational facility with appurtenant facilities.
6.5 The general liability policy shall cover bodily injury and property damage liability, owned and non-owned equipment, and blanket contractual' liability.
6.6 The automobile liability policy shall cover all owned, non-owned, and hired automobiles. • -
6.7 All of the insurance shall be provided on policy forms and through companies satisfactory to District.
6.8 Any deductible or self-insured retention must be declared to and approved by District. At the option of District, the insurer shall either reduce or eliminate such deductibles or self-insured retentions.
6.9 Insurance is to be placed with insurers having a current A.M. Best rating of not less than A-:VII or equivalent or as otherwise approved by District.
6.10 Prior to execution of the agreement, the City and its Sublessees shall file with District a certificate of insurance (Acord Form 25-S or equivalent) signed. by the insurer's representative evidencing the coverage required by this agreement. Such evidence shall include an additional insured endorsement signed by the insurer's representative and evidence of waiver of rights of subrogation against District. Such evidence shall also include confirmation that coverage includes or has been modified. City and its Sublessees shall, upon demand by, 15 South Lake Lease Agrmn/COSM-VWD//Final 7/11/05
District, deliver to District such policy or policies of insurance and the receipts for payment of premiums thereon.
6.11 If any of the required coverages expire during the term of this ' Agreement, City and its Sublessees shall deliver the renewal certificate(s) including the general liability additional insured endorsement and evidence of waiver of rights of subrogation against District to District at least ten (10) days i
prior to the expiration date.
6.12 City and its Sublessees and/or contractors shall comply with all California Worker's Compensation and Insurance Act laws and shall provide employer's liability insurance with minimum limits of $1,000,000 for each :
accident, a $1,000,000 disease policy, and $1,000,000 for each employee.
6.13 Dam failure liability insurance shall be carried by District at its, expense.
ARTICLE VII
DAMAGE OR DESTRUCTION DURING TERM OF LEASE
7.1 Restoration of Leased Premises. If during the term of this Agreement, the Leased Premises are damaged, whether or not from a risk covered by insurance, and subject to the other provisions of this Agreement regarding termination, Lessee shall promptly and expeditiously make the repairs necessary to restore the Leased Premises to a condition for occupancy or use comparable to:
the condition thereof before such damage, to the limit of insurance funds available. 16 South Lake Lease Agrmnt/COSM-VWD//Final 7/11/05
7.2 Restoration of Dam and/or Appurtenant Facilities. In the event :
of partial or complete destruction of the dam and/or its appurtenant facilities from any cause, neither the District nor the City, shall have any obligation to repair or replace or participate in any repair or replacement of the same. Should either:
party voluntarily elect to repair or replace the dam and/or appurtenant facilities in the event of such a loss, it shall do so at its sole cost. Should the parties jointly elect to repair or replace the dam and/or the appurtenant facilities, the costs ofi doing so shall be apportioned equally among them.
ARTICLE VIII
CONDEMNATION
In the event that the Leased Premises or any portion thereof are taken by:
eminent domain, or by inverse condemnation, or the reservoir water appropriated, District shall be entitled to entire award, including, but not limited to compensation, damages and interest, if any, provided that City shall be entitled to that portion of the award, if any which is attributable to improvements constructed. by City or its Sublessees, and, in the case of the appropriation of the reservoir:
:
water, any portion of such award attributable to water belonging to the City.
ARTICLE IX
DEFAULT AND TERMINATION
:
9.1 Events of Default. Subject to the notice and cure provisions of paragraphs 9.2 and 9.3 below, and the expiration of the cure period set forth :
!
17 South Lake Lease Agrmn/COSM-VWD//Final 7/11/05
therein, the following events shall constitute a default by Lessee and a breach of this Agreement:
(a) Failure of Lessee to maintain the Leased Premises in good condition as a recreational area or a material breach of any term or condition of :
this Agreement.
(b) The subjection of any material right or interest of Lessee to attachment, execution, or other levy, or to seizure under legal process which would materially interfere with Lessee's ability to operate the Leased Premises as a recreational area.
(c) An assignment by Lessee for the benefit of creditors or the filing of a voluntary or involuntary petition by or against Lessee under any law for- the purpose of adjudicating Lessee bankrupt.
(d) In the event the Leased Premises becomes a public nuisance, or otherwise unreasonably disturbs the peace and tranquility of the surrounding:
residents.
9.2 Notice and Right to Cure. Prior to pursuing any remedy for an:
alleged default of Lessee, Lessor shall provide written notice of default to Lessee.
Each notice of default shall specify in detail the alleged event of default and the intended remedy. Lessee shall have one hundred and eighty (180) days after notice is given to cure the alleged default.
9.3 Remedies. In the event a material default by Lessee continues uncured for a period of one hundred and eighty (180) days, following written! 18 South Lake Lease Agrmnt/COSM-VWD//Final 7/11/05
notice, then, in addition to the rights and remedies provided by law or equity, Lessor may at its election terminate this Agreement by giving Lessee written notice of termination. On the giving of notice, all Lessee's rights in the Leased Premises and improvements shall terminate. Promptly after notice of termination, Lessee shall surrender and vacate the Leased Premises and all improvements in good and clean condition.
9.4 Termination by Lessee. Lessee may terminate this Agreement at. any time by giving written notice to Lessor at least six (6) months prior to the effective date of such termination: Upon such termination, Lessee must surrender:
the Leased Premises and all improvements in a good, clean, and undamaged condition, ordinary wear and tear excepted.
ARTICLE X
ENVIRONMENTAL PROTECTION AND HAZARDOUS WASTE
10.1 Environmental Protection. City and its Sublessees shall implement and maintain storm-water BMP's to comply with all applicable environmental regulations. These regulations shall include a prohibition on the discharge, disposal, or escape of, any drainage water, non-point source runoff, raw sewage, sewage plant effluent, fuel, or waste of any kind, within or outside the Recreation Area which could result in destruction of habitat or the contamination or pollution of South Lake, as determined by District. City and its Sublessees shall at all times comply with all applicable federal, state, and local laws, orders, and regulations, as may be amended, concerning the pollution of streams, canals, :
19 South Lake Lease Agrmnt/COSM-VWD//Final 7/11/05
reservoirs, groundwater or water courses, with respect to the proper discharge of refuse, garbage, sewage plant effluent, wastes, and other pollutants, including soil sediments, and shall cause all members of the public to comply fully with such laws, orders, and regulations.
10.2 Hazardous Materials. City and its Sublessees shall not use or allow anyone else to use the premises to generate, manufacture, refine, transport,. treat, store, handle, recycle, release or dispose of any hazardous material, other than as reasonably necessary for the operation of the Leased Premises by City and:
its Sublessees' activities as contemplated under this agreement. The term' "hazardous material" means any hazardous substance, material, or waste, including but not limited to those listed in 49 CFR 172.101 (U.S. Department of Transportation), the Cal/EPA Chemical Lists, or petroleum products and their derivatives. However, this shall not apply to the use of petroleum products and related substances incidental to operation of motorized equipment and vehicles whose operation on the premises is contemplated by this agreement. City and its Sublessees shall immediately notify District in writing in the event of any release of hazardous material, violation of any environmental law, or actions brought by:
third parties against the City and its Sublessees alleging environmental damage.
City shall indemnify and hold District harmless from any and all damages of any nature (including payment of attorney fees) related to or arising out of the discharge or release of hazardous materials.
20 South Lake Lease Agrmnt/COSM-VWD//Final 7/11/05
ARTICLE XI
ADDITIONAL COVENANTS OF LESSEE
11.1 Security of Recreation Area. City shall be responsible for providing adequate security in the Recreation Area and shall ensure that the.
Recreation Area is patrolled by the Sheriff's Department or their successor. City. shall install and maintain such security fencing around the Recreation Area as is necessary to prevent unauthorized entry, to the maximum extent possible. City shall also construct roads and gates within the Recreation Area as necessary for patrolling and surveillance. City, at its sole expense, shall maintain, in a condition satisfactory to District, all of the security fencing and all of those sections of the patrol road that are regularly used by City or by the public. The public shall not be permitted to operate any vehicle in the Recreation Area except on specifically designated roads, parking lots or trails.
11.2 Signage and Displays. District and City shall work cooperatively to develop appropriate signs and displays describing the multi-purpose functions of the Recreational Area and acknowledging the contributions of the District and.
City.
11.3 Entrance Gate. City shall construct and operate an entrance gate. through which all members of the visiting public shall be required to pass in order to gain access to the Recreation Area.
11.4 Boat and Water Contact Restrictions. City and its Sublessees shall have the right to provide for the rental of boats without gas/petroleum motors 21 South Lake Lease Agrmn/COSM-VWD//Final 7/11/05
and to launch and retrieve boats on that portion of South Lake open to the public.
All boats must be moored or taken out of the water at night and no boats shall be permitted outside the mooring area from one-half hour after sunset until one-half hour before sunrise.
Fishing shall be a specifically authorized activity within the Leased Premises and City shall have the right, but not the obligation, to stock and periodically restock, the Reservoir with fish species appropriate to the Reservoir. environment.
No water body contact sports shall be permitted in South Lake unless specifically authorized by the State Health Department.
11.5 Annual Reporting. City shall provide to District an annual report, in a form acceptable to District, on the operations of the Recreation Area.
ARTICLE XII
SURRENDER AND DISPOSITION OF PREMISES
12.1 Surrender of Leased Premises. Upon the expiration or earlier termination of this Agreement, City shall surrender the Leased Premises to District and all improvements in a good, clean, and undamaged condition, ordinary wear and tear excepted.
12.2 Disposition of Lessee's Property upon Termination. Upon the expiration or earlier termination of this Agreement, all equipment or personal property and all facilities or improvements constructed by City shall become the 22 South Lake Lease Agrmnt/COSM-VWD//Final 7/11/05
!
property of District. Portable and personal property may be removed prior to the termination date or they shall become the property of the District.
ARTICLE XI
INDEMNIFICATION
13.1 Indemnification. Lessee shall defend, indemnify, and hold Lessor:
harmless from, and reimburse Lessor for, any loss, cost, expense, liability, or:
damages of every kind or nature, including but not limited to injury to or death of. any person or destruction of property in connection with or in any way related to, the use by the City, its Sublessees, or any third party (including officers, directors, and employees of District) of the Leased Premises or any appurtenant facilities located thereon. In addition Lessee shall defend, indemnify, and hold Lessor:
harmless from any breach or default in the performance of any obligation, to be, performed by Lessee under this Agreement; any violation of governmental law or:
regulation; or any intentional misconduct or negligence of Lessee, or any officer, agent, employee, guest, or invitee of Lessee or its Sublessees, regardless of whether such intentional misconduct or negligence was active or passive.
Notwithstanding the foregoing, Lessee shall not be obligated to indemnify the District, its officers, directors, employees and/or agents, against loss from liability for damages and/or injuries that arise from, concern or are related to District's" activities and/or its facilities except to the extent that the same are coextensive with the use of the Recreation Area as a public recreational facility with appurtenant facilities. Lessor shall defend, indemnify, and hold Lessee and its 23 South Lake Lease Agrmnt/COSM-VWD//Final 7/11/05
officers, agents, employees and Sublessees harmless from, and reimburse the same :
for, any loss, cost, expense, liability, or damages of every kind or nature, including but not limited to injury to or death of any person or destruction of property in connection with or in any way related to, District's activities and/or its facilities, except to the extent that the same are coextensive with the use of the Leased Premises as a public recreational facility with appurtenant facilities. Further, Lessor shall defend, indemnify and hold Lessee and its officers, agents, employees and Sublessees harmless from, and reimburse the same for any loss, cost, expense, liability, or damages of every kind or nature, including but not limited to injury to or death of any person or destruction of property in connection with or in any way related to any intentional misconduct or negligence of Lessor, or any officer, agent, employee, quest or invitee of Lessor, regardless of whether such intentional misconduct or negligence was active or passive.
In the event of the occurrence of any event which is an indemnifiable event pursuant to this section, the party seeking indemnification ("Indemnified Party") shall notify the other party ("Indemnifying Party") promptly, and, if such event involves the claim of any third person, the Indemnifying Party shall assume all expenses with respect to, the defense, :
settlement, adjustment, or compromise of any claim, provided that the Indemnified :
Party may, if it so desires, employ counsel at its own expense to assisi in the ! handling of such claim. The Indemnifying Party shall obtain the prior written approval of the Indemnified Party, which approval shall not be unreasonably 24 South Lake Lease Agrmnt/COSM-VWD//Final 7/11/05
-
withheld, before entering into any settlement, adjustment or compromise of such claim. The Indemnifying Party shall reimburse the Indemnified Party or any third party Indemnified Party identified above for any legal expenses and costs incurred in connection with or in enforcing the indemnity herein provided. All indemnification obligations hereunder shall survive the expiration or earlier termination of this Agreement for the time period associated with all applicable causes of action.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 Governing Law. This Agreement shall be governed by and:
construed in accordance with the laws of the State of California.
14.2 Invalidity. In the event that any one or more of the provisions! contained in this Agreement shall be invalid, illegal or unenforceable in any:
respect, the validity, legality, and enforceability of the remaining provisions contained in this Agreement shall not in any way be affected or impaired thereby.
To the extent permitted by applicable law, each party to this Agreement waives any provision of law that renders any provision of this Agreement invalid, illegal, or unenforceable in any respect. In the event any provision of this Agreement shall be held invalid, illegal, or unenforceable, the parties shall use all reasonable efforts to substitute a valid, legal, and enforceable provision that implements the purposes and intents of this Agreement.
25 South Lake Lease Agrmnt/COSM-VWD//Final 7/11/05
14.3 Notices. All notices, requests, demands, waivers, consents, and other communications hereunder shall be in writing, shall be delivered either in person, by telegraphic, facsimile, or other electronic means, by overnight air:
courier, or by mail and shall be deemed to have been duly given and to have; become effective (a) upon receipt if delivered in person or by telegraphic,:
facsimile, or other electronic means calculated to arrive on any business day prior:
to 5:00 p.m. local time at the address of the addressee, or on the next succeeding business day if delivered on a non-business day or after 5:00 p.m. local time, (b) one business day after having been delivered to an air courier for overnight delivery, or (c) three business days after having been deposited in the mail as certified or registered mail, return receipt requested, all fees prepaid, directed to the parties or their assignees at the following addresses (or at such other address as shall be given in writing by a party hereto):
If to Lessee, addressed to:
CITY OF SAN MARCOS
1 Civic Center Drive,
San Marcos, CA 92069
Attn: City Manager
Facsimile: (760) 744-7543
with a copy to counsel for Lessee:
Lounsbery Ferguson Altona & Peak, LLP
960 Canterbury Place, Suite 300
Escondido, CA 92025
Attn: Helen Holmes Peak
Facsimile: (760) 743-9926
26 South Lake Lease Agrnt/COSM-VWD//Final 7/11/05
If to Lessor, addressed to:
VALLECITOS WATER DISTRICT
201 Vallecitos de Oro
San Marcos, CA 92069
Attn: General Manager
Facsimile: (760) 744-2738
with a copy to counsel for Lessor:
Jeffrey G. Scott, Esq.
16935 W. Bernardo Drive, Suite 170
San Diego, CA 92127
Facsimile: (858) 675-9897
14.4 Entire Agreement. This Agreement (including any exhibits and related agreements): (i) constitutes the entire agreement, supersedes all other prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter of this Agreement; (ii) is not intended to. confer upon any person other than the parties to this Agreement any rights or remedies under this Agreement; and (iii) shall not be assignable.
14.5 Additional Documents. In addition to the documents and instruments to be delivered as provided in this Agreement, each of the parties shall, from time to time at the request of the other party, execute and deliver to the other party such other documents and shall take such other actions as may be reasonably required to carry out more effectively the terms of this Agreement.
14.6 Venue. In the event any action or proceeding in commenced to. enforce or interpret this Agreement, venue shall lie in the state or federal courts in : or nearest the North County Judicial District of the County of San Diego. 27 South Lake Lease Agrmnt/COSM-VWD//Final 7/11/05
14.7 Relationship of Lessor and Lessee. Nothing contained herein shall be deemed or construed as creating the relationship of principal and agent or of partnership or of joint venture by the parties hereto, it being understood and agreed that no provision contained in this Agreement nor any acts of the :
parties hereto shall be deemed to create any relationship other than the relationship of Lessor and Lessee.
14.8 Short Form Agreement. This Agreement shall not be recorded, but the parties agree, at the request of either of them, to execute a short form agreement for recording, containing the names of the parties, a description of the Leased Premises and the lease term.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above.
VALLECITOS WATER DISTRICT
Vallecitos Water District
CITY OF SAN MARCOS.
By:
City Council
City of San Marcos
28 South Lake Lease Agmn/COSM-VWD//Final 7/11/05
EXHIBIT A -- MAP
VALLEY RD
S'TWIN OAKS
SOUTH LAKE RESEN/OIR PROPERTY SOUTH LAKE
EXHIBIT A -- LEGAL
7 SOUTH LAKE OPEN RESERVOR
APN's: 222-190-02406
N9/'w (Ros) S89"1741*E(PM) CEN SEC 23
N89"41 13"™ (LS 510) N88°3/'40" w0d)
211.98 741.15 PM 18890
11.04 3357.375
0.5 POR PAR 2
1.31 2729- N
9.- 14
41.50 N$A4811E 7.08 AC
382,54: 2 182.68
17Ч0E $89*1041 E
'AR 2
230.74 N00•3242 E 1291) 37599S7120'n 180.61 900°0237°E
SEE 0" N
714.30
; AC N/ 2352(02)
N234715€ 500 03235 281.36
711.06 2
112.82 (KOs) 190 $ 39"12
36.92 AC *36'55'€
1310,91% 539*163 138.95 555
-$55°20'25"₴
339.41 53
N67:0829E 102.57
124,34 138.98
3151 5›'
71039 403658E „S0º1135"H 44.90
369,14 51°29 25'm 50,51
N813140W 538 31 45°€ 39.48
5'. 23310 197.83 539
N61 51057 81.06 More: So 710=31 45% 84.10 CRI
N09 2333°E 96.17. W81642W 189 08 12" mi. 85.83
236.22 539.74 360.85
.28
539°a5'(0"m H45°,2'48 112.19 114,55 (ROS) 358,18 (R05) 56'4"W S00•3705W (963)
(50.15 3I9A0 No 27'51' 1,47 7'W(R05)
(RAs) N23*34'48% N60°79'40"₴ 325.
7.61 AC 5
559'50'4'1 85.7₴
874, 61 CROS) 34 10"E
196,32 7.76 AC
15°11 14"W (ROs) 378.45 N7645 55"0
50:02'o7 SS° 10'26"E 677°20'0°g
CROS) 317,80
585800+W
153,24. NE6 36'5K 1345
184.28
1310.91 5598031= 113.23
17.23 AC 1577039121'6 N78*(6'W (RAS) {ROS) N66°FI'23'w 566º 14'46"E SS4*25'45"E 57eéz6'$5"8 S0º2150"W(LS510)
20.86 AC
"2-2.75
792.75 1292.75
589º 36'37" [ |15 510)
EXHIBIT B
South Lake Restricted Area
No member of the public will be allowed within the fenced in area in front of the dam or within the buoyed off area in the lake or on the up stream or down stream face of the dam. No one shall be allowed in any other area designated by either the District or the City.
State of Calif
The Resources.._
DEPARTMENT OF WATER RESOURCES
Division of Safety of Dams
Certificate of Approval
This Is To Certify That, pursuant to Part I of Division 3 of the California Water Code, the Department of Water Resources of the State of California has found that the .. _San Marcos Dam and Reservoir, State Application Number. 854 located in Sec. 23, Ip. 12E, R. 34, 5.B. B. &M., San Diego. County, State of California, are safe to impound water; and the use of said dam and reservoir to impound water in accordance with and subject to the following terms and conditions is hereby authorized: 1 Hater may be impounded to Elevation 820:00, (Padford Associates Sucvey 10/10/70) dati.
This certificate of approval supersedes every previous certificate of approval or written consent for use issued by the State of California relative to said dam and reservoir.
Witness my hand and the Seal of the Department
of Water Resources of the State of California
this 28th day of. February 19 72
Division Engineer Reg. C. E. No. 7L13
D E C EIV E
State of California
The Resources Agency
DEPARTMENT OF WATER RESOURCES
FEB 28 2005
DIVISION OF SAFETY OF DAMS
INSPECTION OF DAM AND RESERVOIR IN CERTIFIED STATU LECITOS WATER DISTRICT Name of dam San Marcos Dam _Dam No._ 854 _County San Diego Type of dam _earth. _Type of Spillway.... _unlined channel Water is 40' feet below spillway crest and 50' below dam crest, Weather conditions moderate
Contacts made Mr. Jon Sherwood with Vallecitos Water District Reason for inspection Periodic Maintenance Inspéction
Important Observations, Recommendations or Actions Taken •Conclusions •
•From the known information and the visual inspection, the dam, reservoir, and the appurtenances are judged satisfactory for continued use.
Item No.* Item Name and Obseryation and Comment
A1-A4 Embankment - The embankment material was wet from previous rains. The crest was level. The downstream face and upstream face of the dam embankment were in good condition: The natural vegetation was trimmed on both the upstream and downstream slopes. The groins and downstream toe showed no signs of seepage and were in satisfactory condition. 8 Spillway - The control and approach were clear and in satisfactory condition.
The earth channel was also in satisfactory condition. Due t recent rains, there were a couple areas of minor. Sloughing of the spiliway walls. Mr. Sherwood will have the sloughed material removed/cleaned from the spillway channel area.
•14 Outlet -The downstream valve is in good operating condition and the valve was operated (cycled 15%). The upstream gate remains inoperable and the owner will need to repair it to keep pressure off the downstream gate. Mr.
Sherwood said that a plan for repair was currently in the works.. 17 Seepage - The embankment material was wet from previous rains and it was difficult to detect if there was seepage at the downstream toe or groins. It was reported that the dam is functioning; well.
:.!
18 Instrumentation -The latest instrumentation data received for this dam was in January 2004. The data included piezometer, rainfall, and seepage information. Piezometer data Inclüded information for the 4 piezometers located on the dam for the time period January 2003 through December 2003.
Typed by _ ALL . *Use Field Sheet Standard Inspected by Andrea Lobato Date 2/14/05 Numbers and Items Date of Inspeation _ 2/7/2005 ce for Jad Sherwood (See Reverse Side) Date of Report 2/14/05 Photos taken? Ye... _ No X
DWR 1261 (sub) (02/17/98) Page 1 Sheel 1 or 2 shacts...
FIELD SHEETIKEY ITEMS
No. Stem
Al Embankment Dam-Upstream Face
A2 Embankment Dam-Downstream Face
A3 Embankment Dam-Abutment
A4 Embankment Dam-Crest
AS Embankment Dam-Galleries
BI Concrele Dam-Upstream Face
Concrete Dam-Downstream; Fac
B3 Concrete Dam-Abutment
B4 Concrete Dam-Crest |
B5 Concrete Dam-Galleries
6 Approach Channel
Stoplogs
Control Structure of Spillway
9 Spillway Gates and Controls
10 Spillway Chute or Tunnels
11 Spillway Energy Dissipator
12 Intake-of Outlet
13 • Outlet Conduit
14 Control Facilities of Outlet
15 Outlet Energy Dissipator
16 Outlet Channel
17 Seepage and Drainage
18 Instrumentation
19 Reseryoir
20 Access Roads :
21 Other
List deficiencies and what will be or has been done to correct them - Refer to letters, on-going studies:
Make a statement as to Safety. If the dam has unsafe condition, restriction of storage should be recommended.
OWE: 261 Is001 12/23/951 page 2
INSPECTION OF DAM AND RESERVOIR IN CERTIFIED STATUS
Name of Dam San Marcos Dam Dam No 854
Date of Inspection _2/7/05
Observations and Comments (Continued)
Item No." Item Name and Observation and Comment
There were no unusual readings during this time period. Seepage data showed no unusual readings. Previously I requested for the owner to submit a 'long term' 10 year plot of all piezometer and seepage data to present date to show trends. Jon Sherwood agreed and showed me a copy of the data requested. The updated instrumentation data will be submitted to DSOD in the next instrumentation submittal.
Author/Typist ALL/ALL Sheet 2 or 2 Sheets
DWR 1261 (sub) (02/17/98) Page 3
EXHIBIT D
San Marcos Dam inundation area map
T12S R3W section 23
ited 7-14-05 750 1,500 3,000 4,500 6,000
Feet
N:1VWDArc8lMap Layouts|WaterDam inundation area.mxd † inch equals 2,000 feet