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HomeMy WebLinkAboutC-1498(A) - Crown Drive North, 1550 - Lease Agreement with Newport Harbor Lawn Bowling Association for a Portion of San Joaquin Hills Park 2023S LEASE AGREEMENT BY AND BETWEEN j THE CITY OF NEWPORT BEACH AND V NEWPORT HARBOR LAWN BOWLING ASSOCIATION FOR A PORTION OF SAN JOAQUIN HILLS PARK THIS LEASE AGREEMENT ("Lease") is made and entered into this 18 day of 2023 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City" or "Lessor"), and NEWPORT HARBOR LAWN BOWLING ASSOCIATION, a California nonprofit corporation whose address on file with the California Secretary of State is 1550 Crown Dr., Corona del Mar, California 92625 ("Lessee"). Lessor and Lessee may individually be referred to as "Party" and collectively referred to as "Parties" herein. R E C I T A LS A. Lessor holds title to San Joaquin Hills Park, which is approximately 176,783 square feet and located at 1550 Crown Drive North, Corona del Mar, California 92625, Assessor's Parcel Number 458-022-06 ("Property"). The Property is more particularly described as set forth in the legal description in Exhibit "A," and as more particularly depicted in Exhibit "B," both of which are attached hereto and incorporated by reference. B. A portion of the Property is improved with a clubhouse facility, two lawn bowling greens, and two storage sheds consisting of approximately 45,414 square feet (collectively "Premises") as depicted in Exhibit "C" attached hereto and incorporated herein by this reference. C. Lessee is a nonprofit organization that operates the Newport Harbor Lawn Bowling Club, an independently operated member club of the Southwest Division of Bowls USA on the Premises. D. Lessee has continuously operated and maintained the Premises for decades pursuant to agreements with the City, the most of recent of which expires November 30, 2023 ("Existing Lease"). E. The Parties desire to enter into a new lease subject to the terms and conditions contained herein, and intend that execution of this Lease shall concurrently terminate the existing Lease. F. Pursuant to City Council Policy F-7, whenever less than the open market or appraised value is received or when an open bid process is not conducted, the City shall make specific findings setting forth the reasons thereof. The City Council, at a public and open general meeting, has approved this Lease, and made the findings as required by Council Policy F-7. NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, it is agreed as follows: 1. LEASE OF PREMISES Lessor hereby leases the Premises to Lessee, and Lessee leases the Premises from Lessor, for the term specified in this Lease and pursuant to the terms and conditions contained in this Lease. Lessee agrees that no representations with respect to the condition or improvements on the Premises have been made by Lessor except as specifically set forth in this Lease, and that the Premises are otherwise being delivered in an "as -is" condition. Additionally, Lessee shall have non-exclusive use of the shared public parking lot located upon the Property. 2. TERM 2.1 Initial Term. Lessor hereby leases the Premises to Lessee for the purposes only as described in this Lease, and subject to the terms and conditions contained herein, for a term of five (5) years beginning on the Effective Date ("Initial Term"). 2.2 Option Term. Provided Lessee is not then in default beyond applicable notice and cure periods provided herein, the term of this Lease shall extend for an additional consecutive term of two (2) years ("Option Term"), the Option Term commencing on expiration of the Initial Term, on the same terms and conditions as contained in this Lease as it may be amended from time to time. The Option Term shall be subject to Lessor's approval, which shall be deemed approved, unless expressly withheld by Lessor at any time prior to the commencement of the Option Term. 2.3 Annual Extensions. Provided Lessee is not then in default beyond applicable notice and cure periods provided herein, the term of this Lease shall extend annually for an additional consecutive term of one (1) year (each, a "Renewal Term"), the first Renewal Term commencing on expiration of the Option Term, and subsequent Renewal Terms commencing on expiration of the immediately preceding Renewal Term, up to a maximum of three (3) Renewal Terms, each on the same terms and conditions as contained in this Lease as it may be amended from time to time. Each Renewal Term shall be subject to Lessor's approval, which shall be deemed approved, unless expressly withheld by Lessor at any time prior to the commencement of any Renewal Term. 2.4 Term of Lease. The "Term" as used throughout this Lease is defined as the Initial Term and, as applicable, the Option Term and each Renewal Term. 2.5 Maximum Term. The maximum Term of this Lease shall not exceed an aggregate total of ten (10) years. 2.6 Holdover. This Lease shall terminate and become null and void without further notice upon the expiration of the Term. Any holding over by Lessee after the expiration of the Term shall not constitute a renewal or extension and shall not give Lessee any rights in or to the Property, or any part thereof, except as expressly provided NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page 2 in this Lease. Any holding over after the expiration of the Term with the consent of the Lessor shall be construed to be a tenancy from month -to -month on the same terms and conditions set forth in this Lease insofar as such terms and conditions may be applicable to a month -to -month tenancy ("Holdover Term"). The month -to -month tenancy may be terminated without cause by Lessee or Lessor upon thirty (30) calendar days' prior written notice to the other Party. 3. CONSIDERATION 3.1 The consideration for this Lease shall be the payment of rent, Lessee's agreement to provide activities for its membership association and limited recreation classes and events related to lawn bowling, as described in Exhibit "D" attached hereto and incorporated herein by this reference, and perform its duties as required under this Lease. 3.2 In accordance with City Council Policy F-7, whenever an open bid process is not conducted or fair market value rent is not received for the use of City property, the City shall make specific findings setting forth the reasons thereof. The City Council, at a public and open general meeting, has approved this Lease, and has made findings that converting the Property to another use or changing the lessee of the Property would result in excessive vacancy, relocation or severance costs, real estate commissions, tenant improvement allowances, and expenses or rent concessions which would outweigh other financial benefits. Accordingly, the City Council authorized waiving the open bid requirement of Council Policy F-7. Additionally, as the rent being charged is less than fair market value, the City Council finds this use provides a public benefit to the community by providing recreational facilities to the public and is therefore a matter of citywide benefit. These findings by the City are of a citywide concern in that the beneficial uses of the Property might not otherwise be provided were full market value of the Property required. 4. RENT 4.1 Rent. Lessee shall pay to Lessor, and Lessor shall accept as rent for the Premises, the sum of One Dollar and 00/100 ($1.00) per year ("Rent"). Rent for the entire Initial Term shall be due and payable within thirty (30) days of the Effective Date. Rent for the Option Term and each Renewal Term shall be due and payable on the first day of each Term. 4.2 Payment Location. All payments of Rent shall be made in lawful money of the United States of America and shall be paid to Lessor in person or by United States' mail, or overnight mail service, at the Cashier's Office located at 100 Civic Center Drive, Newport Beach, California, 92660, or to such other address as Lessor may from time to time designate in writing to Lessee. If requested by Lessor, Lessee shall make payments electronically (at www.newportbeachca.gov) or by wire transfer (at Lessee's cost). Lessee assumes all risk of loss and responsibility for late charges and delinquency rates if payments are not timely received by Lessor regardless of the method of transmittal. NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page 3 5. USE OF PREMISES 5.1 Lessee shall use the Premises, solely and exclusively, to manage and operate a lawn bowling facility for the benefit of its members, the City and its citizens, the general public, and to provide a public benefit to the residents of the City of Newport Beach by providing recreation classes related to lawn bowling. Lessee shall operate and manage the Premises in a manner which does not violate state or federal discrimination laws. Lessee shall make all services, programs and facilities available to the public. 5.2 Lessee shall not grant any sublease, concession, license, permit or privilege for the conduct of any business or other operation for profit on the Premises without the prior written approval of the City Manager. 5.3 When the Premises are not in use by Lessee, the Premises shall be available for use as a community center by the City's Recreation and Senior Services Department on a first -priority basis, and by youth -based community non-profit organizations in accordance with reasonable rules and regulations to be established by Lessee. Lessee is authorized to charge a reasonable fee to cover maintenance costs to groups and organizations, other than Lessor, for the use of the Premises. 5.4 Lessee may reserve the Premises for private events ("Lessee Events") by submission of a reservation request in advance, in writing, and shall obtain a Special Event Permit ("SEP") from the City in accordance with the Newport Beach Municipal Code ("NBMC") and Council Policy B-7, as amended, and/or any other permits or approvals as may be required for the use of any City public facility. The SEP and any other required approvals shall be obtained prior to the commencement of any Lessee Event. The Lessee Event shall be in compliance with the approved hours of operation of public facilities as set forth in the NBMC. Lessee shall promptly repair any damage and remove any rubbish resulting from a Lessee Event as its sole cost and expense. 5.5 If, at any time during the Term of the Lease, it is found that the use of the Premises is not allowed by deed restrictions, covenants, easements, or other land use restrictions, Lessor has the right to terminate this Lease with thirty (30) calendar days' written notice to Lessee. 6. SHARED USE OF PREMISES 6.1. Lessee shall have non-exclusive access to the shared public parking lot. 6.2. Lessor shall have exclusive access and use of the storage closet on the exterior of the clubhouse facility for maintenance storage. 6.3. Lessor and Lessee shall meet regularly and proactively as needed to mutually agree on any desired classes to be offered at the Premises through the City's Recreation and Senior Services Department ("RSS Department"). NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page 4 6.4. Both Lessor and Lessee shall have access to the Premises including keys, codes, or other means of access (collectively "locks") for entrance into the Premises. 6.5. Lessee and Lessor shall each maintain a list of authorized personnel who have access to or possession of any locks to the Premises. 6.6. City's use of the Premises shall be for use as a community center or recreation center by the RSS Department. However, Lessor agrees not to schedule use by co -sponsored groups with programs that compete with Lessee's club programs without prior written mutual agreement of the Parties. 6.7. The Parties shall communicate and cooperate, acting reasonably and in good faith, in scheduling the use of the Premises in a manner which: 6.7.1. Maximizes the use of the Premises; 6.7.2. Promotes community outreach; 6.7.3. Does not cause any undue noise between the hours of 10:00 p.m. and 7:00 a.m. (i.e., deliveries, facilities or landscape maintenance); and 6.7.4. Does not violate any law. 6.8. Notwithstanding any exclusive access to the Premises reserved to either Party by the terms of this Lease, all conflicts in scheduling for use of the Premises which are not resolved by staff, shall be discussed between Lessor's Recreation and Senior Services Director ("RSS Director") or designee and Lessee's Chief Executive Officer. In the event a conflict in scheduling for use of the Premises cannot be mutually resolved following good faith and reasonable efforts, the decision of the RSS Director or designee shall be final. 7. CAPITAL IMPROVEMENTS 7.1 The improvements on the Premises currently consist of a clubhouse facility, two (2) lawn bowling greens, and two (2) storage sheds ("Improvements"). Lessee shall maintain the Premises and Improvements in compliance with the terms of this Lease. 7.2 Lessee may make additional improvements to the Premises throughout the Term ("Additional Improvements"), with the prior written consent of Lessor. Improvements and Additional Improvements are collectively referred to as "Improvements" herein. Additional Improvements may require revision to the insurance required from Lessee under this Lease. 7.3 Lessee shall be required to obtain, prior to commencing the construction of any improvements, all permits, licenses or approvals that may be required from any local, state or federal entities. NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page 5 7.4 No improvements shall be erected or maintained on the Premises unless and until plans and specifications for the proposed scope of work have first been submitted to and approved, in writing, by Lessor. 7.5 Lessee shall, at all times, indemnify and hold Lessor harmless from any and all claims for labor or materials in connection with the construction, repair, or installation of any structure, capital improvement, equipment or facilities on the Premises and from the costs of defending such claims, including reasonable attorney's fees. Lessee shall not suffer or permit to be enforced against the Premises, or any part thereof, any mechanic's, materialmen's, contractor's or subcontractor's liens arising from, or any claim for damage growing out of, the work of any construction, repair, restoration, replacement or improvement or any other claim or demand arising from Lessee's operations under this Lease. In the event any lien or stop notices imposed or recorded on the Premises as a result of the construction, repair or alteration of the facility, Lessee shall pay or cause to be paid all such liens, claims or demands before any action is brought to enforce the same against the leased Premises. Notwithstanding anything to the contrary contained in this Section, if Lessee shall in good faith contest the validity of such lien, claim or demand, then Lessee shall, at its expense, defend itself and Lessor against the same and shall pay and satisfy any adverse judgment that may be rendered thereon, before the enforcement thereof against Lessor or the Premises upon the condition that if Lessor shall require, Lessee shall furnish to Lessor a surety bond satisfactory to Lessor in an amount equal to such contested lien, claim or demand indemnify Lessor against liability for the same and holding the leased Premises free from the effect of such lien or claim. 7.6 Before the commencement of any work or construction of any building structure or other improvement on the Premises, or of any substantial repairs, alterations, additions, replacement or restoration, in or about the Premises, Lessee shall give Lessor advanced written notice which specifies the nature and location of the intended work. Lessee shall coordinate with Lessor for the scheduling of any work so that the work does not excessively burden Lessor's use of the Premises. 7.7 Lessor reserves the right to require Lessee to obtain performance and/or labor and materials bonds for Improvements. Lessor shall have the right, in its sole discretion, to require Lessee to furnish a surety bond satisfactory to Lessor to fully protect the Premises and Lessor from the effect or enforcement of any lien, claim or demand. 8. OPERATIONS 8.1 Hours of Operation. Lessee shall keep the Premises open for use during the periods of time as may be mutually agreed upon by Lessee and Lessor and shall not close said Premises from use or substantially alter the type of services provided or facilities offered, without first obtaining the written approval of the RSS Director. 8.1.1 Minimum Hours of Operation. Weather permitting, hours of operation of the Premises shall be agreed upon by the Parties each year as part of the annual site walk described in Section 14 below. NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page 6 The hours will include a minimum number of days per week, anda minimum of number of hours per week for "drop in" play. 8.1.2 Notice to Public. Hours of operation of the Premises shall be posted at conspicuous places on the Premises (e.g.: entrances), on Lessee's website, and on Lessee's social media pages, and shall state that the Premises are "Open to the Public." 8.1.3 Notice to Public Temporary Change in Operation. Lessee shall, at least thirty (30) calendar days in advance of any closures for construction, or change in hours of operation, notify City in writing and post notices in and upon the Premises, and to Lessee's website and social media pages, informing the public of the changes. Lessee shall immediately, or whenever reasonable at least forty-eight (48) hours in advance, post notices in and upon the Premises, and to its website and social media pages informing the public of any temporary change in hours of operation due to inclement weather. 8.2 Lighting. Lessee shall ensure that exterior lighting on the Premises, specifically on the lawn bowling greens which allow play after dark, may be used no later than 9:00 p.m. Tuesday through Sunday, and until 9:30 p.m. on Mondays. All lighting shall comply with the NBMC. 8.3 Special Events. Lessee shall comply with the terms of this Lease, the Newport Beach Municipal Code ("NBMC"), and obtain a special event permit for use outside of the Lessee's typical lawn bowling club use, including obtaining the necessary alcohol catering permits, if required. 9. MANAGEMENT Lessee agrees that at all times during the Term, Lessee will be managed by Lessee's Club President and/or a designated liaison and operated by Lessee. Lessee's Club President and/or the designated liaison shall have a good reputation for honesty and integrity and experience in the operation and management of recreational clubs. 10. UTILITIES AND TAXES 10.1 Utilities. Lessee shall make arrangements for and be responsible for payment, prior to the delinquency date, all charges for utilities furnished to or used on the Premises including, without limitation, gas, electricity, sewer, water, refuse collection, telephone service, and cable TV. Satisfactory evidence of such payments shall be delivered to Lessor within seventy-two (72) hours of a written request for such information. Installation or modification of utility facilities shall require prior written approval of Lessor and shall be done in accordance with all applicable law, including but not limited to, City permits where applicable. NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page 7 10.2 Refuse Collection. Refuse collection may occur between 7:00 a.m. and 6:00 p.m. on non -holiday weekdays. 10.3 Payment of Taxes. Lessee shall pay directly to the appropriate taxing authorities all taxes applicable to this Lease, fixtures and Lessee's personal property on the Premises, that are levied or assessed against Lessee during the Term. Taxes shall be paid before delinquency and before any fine, interest or penalty is due or imposed by operation of law. Lessee shall, upon request, promptly furnish to Lessor satisfactory evidence of payment. Lessor hereby gives notice to Lessee, pursuant to Revenue and Tax Code Section 107.6 that this Lease may create a possessory interest that is the subject of property taxes levied on such interest, the payment of which taxes shall be the sole obligation of Lessee. Lessee shall advise in writing any subtenant, licensee, concessionaire or third party using the Premises of the requirements of Section 107.6. Lessee shall pay, before delinquency all taxes, assessments, license fees and other charges ("Taxes") that are levied or assessed against Lessee's interest in the Premises or any personal property installed on the Premises. 10.4 Payment of Obligations. Lessee shall promptly pay, when due, any and all bills, debts, liabilities and obligations incurred by Lessee in connection with Lessee's occupation and use of the Premises including the construction and/or maintenance of the Improvements. 10.5 No Rent Offset. Any payments under this Section 10 shall not reduce or offset Rent payments. Lessor has no liability for such payments. 11. INSURANCE Without limiting Lessee's indemnification of Lessor, Lessee shall provide and maintain at its own expense during the term of this Lease policies of liability insurance of the type and amounts described in Exhibit "E," which is attached hereto and incorporated herein by reference. 12. HOLD HARMLESS 12.1 Lessee agrees to indemnify, defend and hold harmless District, and Lessor and its elected and appointed officers, agents, officials, volunteers, employees and any person or entity owning or otherwise in legal control of the Property (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a "Claim;" collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to Lessee's, Lessee's employees, contractor, subcontractor, agents, guests, invitees, sublessee's possession, occupation or use of the Premises, specifically including, without limitation, any claim, liability, loss, or damage arising by reason of: NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page 8 12.1.1 The death or injury of any person or damage to personal property related to a condition of the Premises or an act or omission of Lessee or an agent, contractor, subcontractor, supplier, employee, servant, or sublessee of Lessee; 12.1.2 Any work performed on the Premises including the construction and/or maintenance of the Improvements, or materials furnished to the Premises at the request of Lessee or any agent or employee of Lessee; and/or 12.1.3 Lessee's failure to perform any provision of this Lease or to comply with any requirement of law or any requirement imposed on the Premises by any duly authorized governmental agency or political subdivision. 12.2 Lessor shall not be liable to Lessee for any Damage to Lessee or Lessee's property, goodwill, increased Lessee operating costs, or loss of business or income by Lessee from any cause other than the gross negligent, intentional or willful acts of City or its elected and appointed officers, agents, officials, volunteers, employees. Except as otherwise expressly provided in this Lease, the Lessee releases and also waives all claims against City for damages arising for any reason other than the gross negligent, intentional or willful acts of City or its elected and appointed officers, agents, officials, volunteers, employees. City shall not be liable to Lessee for any damage to the Premises, Lessee's property, Lessee's goodwill, or Lessee's business income, caused in whole or in part by acts of nature including, without limitation, waves, wind and tidal flows. 12.3 This defense and indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. 13. HAZARDOUS SUBSTANCE 13.1 Hazardous Substance means: (i) any substance, product, waste or other material of any nature whatsoever which is or becomes listed, regulated, or addressed pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. ("CERLCA"); the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; the Resource Conversation and Recovery Act, 42 U.S.C. Section 6901 et seq. "RCRA"); the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et seq.; the California Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq.; the California Hazardous Substance Account Act, Health and Safety Code Sections 25330 et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety Code Sections 25249.5 et seq.; California Health and Safety Code Sections 25280 et seq. (Underground Storage of Hazardous Substances); the California Hazardous Waste of Concern and Public Safety Act, Health and Safety Code Sections 25169.5 et seq.; California Health and Safety Code Sections 25501 et seq. (Hazardous Materials Response Plans and Inventory); or the Porter -Cologne Water Quality Control Act, Water Code Sections 13000 et seq., all as they, from time -to -time may be amended or re - codified, (the above -cited statutes are here collectively referred to as the "Hazardous NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page 9 Substances Laws") or any other Federal, State or local statute, law, ordinance, resolution, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect; (ii) any substance, product, waste or other material of any nature whatsoever which may give rise to liability under any of the above statutes or under any statutory or common law theory, including but not limited to negligence, trespass, intentional tort, nuisance, waste or strict liability or under any reported decisions of a state or federal court; (iii) petroleum or crude oil; and (iv) asbestos. 13.2 From the Effective Date and throughout the Term, Lessee shall not use, occupy, or permit any portion of the Premises to be used or occupied in violation of any Hazardous Substance laws. 13.3 Notwithstanding any contrary provision of this Lease, and in addition to the indemnification duties of Lessee set forth elsewhere in this Lease, Lessee indemnifies, defends with counsel reasonably acceptable to Lessor, protects, and holds harmless Lessor and its elected officials, officers, employees, agents, attorneys, volunteers and representatives from and against any and all losses, fines, penalties, claims, demands, obligations, actions, causes of action, suits, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs), damages, judgments, or liabilities, including, but not limited to, any repair, cleanup, detoxification, or preparation and implementation of any remedial, response, closure or other plan of any kind or nature which the Lessor and its officials, officers, employees, agents, attorneys, volunteers or assigns may sustain or incur, or which may be imposed upon them, in connection with any breach of Lessee's obligations or representations in this Lease or the use of the Premises under this Lease, arising from or attributable to the Lessee Parties (defined below) storage or deposit of Hazardous Substances in violation of applicable laws. This section is intended to operate as an agreement pursuant to Section 107(e) of CERCLA, 42 USC Section 9607(e), and California Health and Safety Code Section 25364, to insure, protect, hold harmless, and indemnify Lessor for any claim pursuant to the Hazardous Substance laws or the common law. 13.4 Lessee does not, and shall not, authorize any third party to use, generate, manufacture, maintain, permit, store, or dispose of any Hazardous Substances in violation of applicable laws on, under, about or within the Premises. 13.5 Upon expiration or earlier termination of this Lease, Lessee shall deliver possession of the Premises in compliance with Hazardous Substance laws subject to the last sentence of Section 13.2 above. 13.6 If during the Term of this Lease, Lessee becomes aware of (i) any actual or threatened release of any Hazardous Substances on, in, under, from, or about the Premises in violation of Hazardous Substance laws; or (ii) any inquiry, investigation, proceeding, or claim by any government agency or other person regarding the presence of any Hazardous Substances in violation of Hazardous Substance laws on, in, under, from or about the Premises, Lessee shall give Lessor written notice of the release or inquiry within five (5) calendar days after Lessee becomes aware or first has reason to NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page 10 believe there has been a release or inquiry and shall simultaneously furnish to Lessor copies of any claims, notices of violation, reports, warning or other writings received by Lessee that concern the release or inquiry. 13.7 If the presence of any Hazardous Substances brought onto the Premises by Lessee or Lessee's employees, agents, sublessees, licensees, concessionaires, contractors, or invitees ("Lessee Parties"), or generated by same during the Term of this Lease, results in contamination of the Premises or adjacent properties in violation of Hazardous Substance laws, Lessee shall promptly take all necessary actions, at Lessee's sole expense, to remove or remediate such Hazardous Substances in full compliance with applicable laws. Lessee shall provide notice to Lessor prior to performing any removal or remedial action. Lessee shall not propose nor agree to any covenant of use restriction as part of any removal or remediation required as a result of this provision without Lessor's written consent. Lessee shall pay any costs Lessor incurs in performing Lessee's obligation to clean-up contamination resulting from Lessee's operations or use of the Premises. 13.8 Should any clean-up of Hazardous Substances for which Lessee is responsible not be completed prior to the expiration or sooner termination of the Lease, including any extensions thereof, then Lessee shall transfer the amounts required to complete clean-up into an escrow account, together with Lessor -approved instructions for the disbursement of such amount in payment of the costs of any remaining clean-up as it is completed, and (ii) if the nature of the contamination or clean-up required of Lessee is of such a nature as to make the Premises untenable or unleasable, then Lessee shall be liable to Lessor as a holdover lessee until the clean-up has been sufficiently completed to make the Premises suitable for lease to third parties. The estimated cost of the clean- up shall require approval of the Lessor. 13.9 If Lessor determines, in its reasonable discretion, that Lessee does not have insurance or other financial resources sufficient to enable Lessee to fulfill its obligations under this provision, whether or not accrued, liquidated, conditional, or contingent, then Lessee shall, at the request of Lessor, procure and thereafter maintain in full force and effect such environmental impairment liability and/or pollution liability insurance policies and endorsements, or shall otherwise provide such collateral or security reasonably acceptable to Lessor as is appropriate to assure that Lessee will be able to perform its duties and obligations hereunder. 13.10 Lessee's obligations in this Section 13 shall survive the expiration or earlier termination of this Lease. 14. MAINTENANCE OF LANDSCAPING, BUILDINGS AND IMPROVEMENTS 14.1 Maintenance. Lessee to maintain all landscaping, buildings and Improvements on the Premises. NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page 11 14.2 Standard of Care. Lessee covenants and agrees that during the Term of this Lease it will, at its sole cost and expense, maintain the Improvements, in good order and repair and in clean, orderly, safe and sanitary condition. 14.3 Damage. Lessee shall be responsible for the repair of any damage caused by its members or their invitees. 14.4 Costs. Lessee shall be responsible for all costs for repairs and maintenance, including replacement as necessary, of: 14.4.1 the interior and exterior of the clubhouse building; 14.4.2 the bowling greens; and 14.4.3 all other improvements within the fenced area, including but not limited to, benches, tables, chairs, and storage shed. 14.5 Exceptions. The City shall maintain and service the public restroom adjacent to the Premises, as depicted within Exhibit C. 14.6 Lessor May Elect to Repair and Maintain at Expense of Lessee. If, in the judgment of the Lessor, such standards of maintenance and repair are not being maintained, it may at its option, after not less than thirty (30) calendar days prior written notice thereof to the Lessee and Lessee's failure to commence in good faith to remedy the same within the time herein provided and thereafter diligently prosecute the same to completion, elect to correct any deficiency, whether it be in reference to grounds, landscaping, building or improvements. Lessee covenants and agrees to pay to Lessor on demand any and all sums expended by it in correcting any such deficiency, together with interest at the legal rate. If, in the judgment of Lessor, the disrepair or lack of maintenance constitutes an emergency, the notice herein provided shall be a 24-hour notice to remedy. 14.7 Lessor's Right of Inspection. In addition to Lessor's rights to use the Premises as provided in this Lease, Lessor reserves the right by its authorized agents, employees or representatives to enter the Premises at any time, without notice, to inspect the Premises in order to attend to or protect the Lessor's interest under this Lease. 14.8 Compliance with Laws, Ordinances and Regulations. Lessor and Lessee covenant and agree to comply with all rules, regulations, statutes, ordinances and laws of the State of California, County of Orange, the City of Newport Beach, or any other governmental body or agency having lawful jurisdiction over the Premises or the business, enterprises, or activities conducted thereon. 14.9 Site Walk/inspection. Lessor and Lessee shall annually perform a joint inspection of the Premises between January 20th and March 20th, or as may be mutually agreed to by the Parties, each year to determine what repairs and maintenance are needed and shall be scheduled for the following year. NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page 12 14.10 Annual Report. Lessee shall provide a written report to Lessor on or before January 31 st of every calendar year during the Term, a list of any and all maintenance, repairs, or other work completed, including the costs incurred thereof, for the prior calendar year. Additionally, said annual report shall include Lessee's total membership (resident and non-resident), program statistics, and most recently filed federal and state tax returns, as applicable. 14.11 Audit. City shall, once per year and at its cost, be entitled to conduct an audit of all records and books of account required to be maintained pursuant to this Lease or State law, and shall include the following: 14.11.1 The nature of any membership program pursuant to which any dues or fees are charged by Lessee; and 14.11.2 Attendance and registration data for recreation classes, programs, tournaments and special events held on the premises. 15. ASSIGNMENT Lessee shall not assign, transfer, sublease, mortgage, hypothecate or give any grant of control of this Lease or the Premises, or any part hereof, either voluntarily or involuntarily, unless first approved by the City Council. 16. RESTORATION If during the Term the Premises are totally or partially destroyed, rendering the Premises or any portion thereof totally or partially inaccessible or unusable, Lessee shall, at its sole cost and expense, repair or restore the Premises to substantially the same condition as immediately prior to such destruction (including all trade fixtures, personal property, improvements and alterations as are installed by Lessee, which shall be replaced by Lessee at its expense). Any such work of repair, restoration or replacement shall be commenced within one hundred and eighty (180) days after the damage or loss occurs and shall be completed with due diligence, but not longer than one (1) year after such work is commenced unless delay is caused by events beyond the control of Lessee. Alternatively, Lessee may elect to terminate this Lease by giving written notice of such election to Lessor within sixty (60) calendar days after the date of the occurrence of any casualty if the cost of the restoration exceeds the amount of any available insurance proceeds, if the damage has been caused by an uninsured casualty or event, or if Lessee reasonably estimates that repairs of the Premises will take more than six (6) months. Upon such termination, insurance proceeds applicable to reconstruction of the Premises (excluding Lessee's personal property therein) shall be paid to Lessor, and Lessee shall have no further liability or obligations under this Lease. 17. DEFAULT AND TERMINATION OF LEASE 17.1 Material Conditions. Material terms of this Lease shall include, but are not limited to: NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page 13 17.1.1 Failure of Lessee to keep current on all payments; 17.1.2 Failure of Lessee to keep the Premises or Improvements in good order and repair, and in a neat, clean, orderly, safe and sanitary condition; 17.1.3 Failure of Lessee to maintain the Premises or Improvements in compliance with any applicable provisions of the City's charter, municipal code and zoning code, state or federal law; 17.1.4 Failure of Lessee to make payment of Rent at the time and in the amount herein required; 17.1.5 Violation of the shared use provisions, management provisions, maintenance provisions, restoration duties, or unlawful use provisions of this lease; and 17.1.6 Failure to provide and maintain valid proof of insurance coverage as required by this Lease. 17.2 Default and Termination for Cause. Lessor may, at its option and without further notice or demand, terminate this Lease and enter upon the Premises and take possession thereof and remove any and all persons therefrom in the appropriate manner provided by law, if Lessee fails to: (1) within fourteen (14) calendar days after service of a written notice from Lessor to do so, remedy any default if the default may be cured by the payment of money; (2) within fourteen (14) calendar days, remedy any default of the terms of this Lease regarding surrender of possession upon expiration or termination that presents a life safety issue; (3) within thirty (30) calendar days, commence in good faith to remedy any other default and thereafter diligently prosecute the same to completion; or, (4) without prior approval of Lessor, if Lessee shall abandon or vacate the Premises for more than thirty (30) calendar days other than for periods of repair or remodel. 17.3 Surrender of Possession upon Expiration or Termination. Lessee covenants and agrees that upon the expiration or sooner termination of this Lease, the Lessee will peaceably surrender the Premises with all buildings and improvements, in the same condition as when received or constructed, excepting reasonable use and wear thereof, and damage by fire, act of God, or by the elements. The Recreation Facilities and all other improvements built, constructed or placed upon the Premises by the Lessee (excluding Lessee's fixtures, equipment, furniture, and moveable decorations), or anyone holding by, under, or through it, shall remain on the Premises and become the property of the Lessor without any cost to Lessor upon the expiration or termination of this Lease, whether by lapse of time or by reason of default, unless, at its sole and absolute discretion, Lessor requires Lessee to remove some or all improvements on the Premises within sixty (60) days following the expiration or termination of this Lease. The provisions of this section shall be effective upon expiration or termination of this Lease regardless of whether Lessee holds over under the provisions this Lease. NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page 14 17.4 Remedies Cumulative. The rights, powers, elections and remedies of the Lessor contained in this Lease shall be construed as cumulative and no one of them shall be considered exclusive of the other or exclusive of any rights or remedies allowed by law, and the exercise of one or more rights, powers, elections or remedies shall not impair or be deemed a waiver of Lessor's right to exercise any other. 17.5 No Waiver 17.5.1 No delay or omission of the Lessor to exercise any right or power arising from any omission, neglect or default of the Lessee shall impair any such right: or power or shall be construed as a waiver of any such omission, neglect or default on the part of the Lessee or any acquiescence therein. 17.5.2 No waiver of any breach of any of the terms, covenants, agreements, restrictions or conditions of this Lease shall be construed as a waiver of any succeeding breach of the same or of any of the terms, covenants, agreements, restrictions or conditions of this Lease. 18. EMINENT DOMAIN 18.1 In the event the whole or part of the Premises or improvements is condemned by a public entity in the lawful exercise of the power of eminent domain, this Lease shall cease as to the part -condemned upon the date possession of that part is taken by the public entity. 18.2 If only apart is condemned and the taking of that part does not substantially impair the capacity of the remainder to be used for the purposes required in this Lease, Lessee shall continue to be bound by the terms, covenants and conditions of this Lease. 18.3 If only a part is condemned and the taking of that part substantially impairs the capacity of the remainder to be used for the purposes required in this Lease, Lessee shall have the election of: 18.3.1 Terminating this Lease and being absolved of obligations hereunder which have not accrued at the date possession is taken by the public entity; or 18.3.2 Continuing to occupy the remainder of the Premises and remaining bound by the terms, covenants and conditions of this Lease. 18.4 Lessee shall give notice in writing of his election hereunder, within thirty (30) days of the date possession of the part is taken by the public entity. 18.5 Lessor shall be entitled to receive and shall receive all compensation for the condemnation of all or any portion of the Premises by exercise of eminent domain. NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page 15 18.6 Lessee shall be entitled to receive and shall receive all compensation for the condemnation of all or any portion of the improvements constructed by Lessee on the Premises by the exercise of eminent domain. 19. UNLAWFUL USE Lessee agrees that no improvement shall be erected, constructed or operated on the Premises, nor any business conducted on the Premises, in violation of the terms of this Lease or of any regulation, order, law, statute, bylaw, charter provision, or ordinance of any governmental agency having jurisdiction. Lessee shall not construct, maintain, or allow any sign upon the Premises or Property, or improvements thereon, except as approved in writing by Lessor, and further, such sign must be in compliance with the provisions of the Newport Beach Municipal Code. Lessee shall not discriminate against any person or class of persons by reason of race, religious creed, color, national origin, ancestry, age, physical disability, mental disability, medical condition, including the medical condition of Acquired Immune Deficiency Syndrome (AIDS) or any condition related thereto, marital status, sex, sexual orientation or any other impermissible basis under the law. Lessee shall make all of its services, programs and facilities available to the public on fair and reasonable terms. 20. TERMINATION OF EXISTING LEASE Concurrently with execution of this Lease by the Parties, the Existing Lease is hereby terminated. 21. NOTICES All notices pursuant to this Lease shall be deemed given when personally delivered or deposited in the United States mail, first class postage prepaid, and addressed as follows: Lessor: City of Newport Beach Attention: Real Property Administrator 100 Civic Center Drive Newport Beach, CA 92660 Lessee: Newport Harbor Lawn Bowling Association Attn: Board President 1550 Crown Drive North Corona del Mar, CA 92625 22. MEMORANDUM OF LEASE A Memorandum of Lease Agreement ("Memorandum"), in a form and content similar to that contained in Exhibit "F," which is attached hereto and incorporated by reference, shall be recorded by the parties promptly upon execution of this Lease. Upon execution by both Parties, the Memorandum shall be recorded against the Property in the NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page 16 office of the Orange County Clerk -Recorder, as required by Government Code Section 37393. 23. COMPLIANCE WITH ALL LAWS Lessee shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Lessee shall conform to applicable city, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the City Manager or their designee. 24. WAIVER The waiver by Lessor or Lessee of any breach of this Lease by the other shall not be deemed to be a waiver of any term, covenant, or condition or any subsequent breach. The acceptance of Rent by Lessor shall not be deemed a waiver of any breach by Lessee other than the failure to pay the particular rent accepted. 25. PARTIAL INVALIDITY If any term or provision of this Lease is declared invalid or unenforceable, the remainder of this Lease shall not be affected. 26. GOVERNING LAW The laws of the State of California shall govern this Lease and all matters relating to it and any action brought relating to this Lease shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. Neither Lessor's execution of this Lease nor any consent or approval given by the City of Newport Beach in its capacity as landlord shall affect the City of Newport Beach's powers and duties as a governmental body. Any consent or approval Lessee is required to obtain from Lessor pursuant to this Lease is in addition to any permits or approvals Lessee is required to obtain pursuant to law or ordinance. However, Lessor shall attempt to coordinate its procedures for giving contractual and governmental approvals so that Lessee's requests and applications are not unreasonable denied or delayed. 27. ENTIRE AGREEMENT; MODIFICATION This Lease contains the entire agreement between the Parties. No verbal agreement or implied covenant shall be held to vary the provisions of this Lease. Each Party has relied on its own investigation of the Premises and examination of this Lease, the counsel of its own attorney or other advisors, and has a complete understanding of the overall warranties, representations, and covenants in this Lease. The failure or refusal of either Party to inspect the Premises, to read this Lease or other documents, or to obtain legal or other advice relevant to this transaction shall not be the basis for later claim that all or part of this Lease is not enforceable or was not understood by a Party when this NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page 17 Lease was signed. No provision of this Lease may be amended or varied except by an agreement in writing signed by the Parties or their respective successors. 28. TIME IS OF THE ESSENCE Time is of the essence with respect to the performance of every provision of this Lease in which time of performance is a factor. All time deadlines are meant to be strictly construed. A "day" means a calendar day, with extension if a deadline occurs on a weekend or day when banks are not open in California. 29. SUCCESSORS Subject to the provisions of this Lease on assignment and subletting, each and all of the covenants and conditions of this Lease shall be binding on and shall inure to the benefit of the heirs, successors, executors, administrators, assigns, and personal representatives of the respective parties. 30. INTERPRETATION The terms of this Lease shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Lease or any other rule of construction which might otherwise apply. 31. HEADINGS The captions of the various sections of this Lease are for convenience and ease of reference only and do not define, limit augment, or describe the scope, content, or intent of this Lease. 32. NO BROKERS Each party warrants to and for the benefit of the other than it has had no dealings with any real estate broker or other agent (attorneys excepted) in connection with the negotiation or making of this Lease, and that no commission, fee or other compensation is owed regarding this Lease by such other Party. 33. GENDER; NUMBER The neuter gender includes the feminine and masculine, the masculine includes the feminine and neuter, and the feminine includes the neuter, and each includes corporation, partnership, or other legal entity whenever the context requires. The singular number includes the plural whenever the context so requires. 34. EXHIBITS All exhibits to which reference is made in this Lease are incorporated by reference. Any reference to "this Lease" includes matters incorporated by reference. NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page 18 35. CITY BUSINESS LICENSE Lessee shall obtain and maintain during the duration of this Lease, a City business license as required by the Newport Beach Municipal Code 36. NO ATTORNEY'S FEES The prevailing party in any action brought to enforce the terms and conditions of this Lease, or arising out of the performance of this Lease, shall not be entitled to recover its attorneys' fees. 37. NONDISCRIMINATION Lessee, for itself and its successors, agrees that in the performance under this Lease, Lessee shall not discriminate against any person because of the marital status or ancestry of that person or any characteristic listed or defined in Section 11135 of the Government Code. 38. NO THIRD -PARTY BENEFICIARIES City of Newport Beach (both as a lessor and as the City of Newport Beach) and Lessee do not intend, by any provision of this Lease, to create in any third party, any benefit or right owed by one party, under the terms and conditions of this Lease, to the other party. 39. CALIFORNIA LABOR LAWS It shall be the obligation of Lessee to comply with all laws, including, but not limited to, State of California labor laws, rules and regulations and the Parties agree that the Lessor shall not be liable for any violation by Lessee (or Lessee's agent, sublessee or any party affiliated with Lessee) thereof. 40. NO DAMAGES Lessee acknowledges that Lessor would not enter this Lease if it were to be liable for damages (including, but not limited to, actual damages, economic damages, consequential damages, lost profits, loss of rents or other revenues, loss of business opportunity, loss of goodwill or loss of use) under, or relating to, this Lease or any of the matters referred to in this Lease, including, without limitation, any and all plans, permits, licenses or regulatory approvals, and CEQA documents. Accordingly, Lessee covenants and agrees on behalf of itself and its successors and assigns, not to sue the City of Newport Beach (either in its capacity as lessor in this Lease or in its capacity as the City of Newport Beach) for damages (including, but not limited to, actual damages, economic damages, consequential damages, lost profits, loss of rents or other revenues, loss of business opportunity, loss of goodwill or loss of use) or monetary relief for any breach of this Lease by Lessor or for any dispute, controversy, or issue between Lessor and Lessee NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page 19 arising out of or connected with this Lease or any of the matters referred to in this Lease, including, without limitation, any and all plans, permits, licenses or regulatory approvals, CEQA documents, or any future amendments or enactments thereto, the parties agreeing that declaratory relief, injunctive relief, mandate and specific performance shall be Lessee's sole and exclusive judicial remedies. 41. GOVERNMENT CLAIMS ACT Lessee and Lessor agree that in addition to any claims filing or notice requirements in this Lease, Lessee shall file any claim that Lessee may have against Lessor in strict conformance with the Government Claims Act (Government Code sections 900 et seq.), or any successor statute. 42. COUNTERPARTS This Lease may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page 20 IN WITNESS WHEREOF, we have executed this Lease as of the day and year written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: Ak By: 7 Pit ron C. Harpy Attorney ATTEST: Date: i ZUZ - Z�� " 4 By: `t. Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: 1211L41102-3 By: e ui . Leung Manager LESSEE: NEWPORT HARBOR LAWN BOWLING ASSOCIATION, a California nonprofit corporation Date: Signed in Counterpart By: Andrew Dufresne President Date: Signed in Counterpart By: Norma Goodhart Treasurer [END OF SIGNATURES] Attachments: Exhibit A: Legal Description of Property Exhibit B: Depiction of Property Exhibit C: Depiction of Premises Exhibit D: Scope and Schedule of Public Activities Exhibit E: Insurance Requirements Exhibit F: Memorandum of Lease NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page 21 IN WITNESS WHEREOF, we have executed this Lease as of the day and year written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: 1i l /Z3 By: { ) ron C. Harp ty Attorney ATTEST: Date: By: Leilani I. Brown City Clerk Attachments CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Grace K. Leung City Manager LESSEE: NEWPORT HARBOR LAWN BOWLING ASSOCIATION, a California nonprofit corporation Date: // L-& /Z to z �- B - �_�� Andrew Dufresne President Date: a aa23 By: No Goodhart Treasurer [END OF SIGNATURES] Exhibit A: Legal Description of Property Exhibit B: Depiction of Property Exhibit C: Depiction of Premises Exhibit D: Scope and Schedule of Public Activities Exhibit E: Insurance Requirements Exhibit F: Memorandum of Lease NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page 21 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY That portion of Block 93, Irvine's Subdivision, in the City of Newport Beach, County of Orange, State of California, as per map filed in Book 1, page 88, Miscellaneous Record Maps in the office of the County Recorder of said County, described as follows: Beginning at the most Northerly corner of the Land described in a deed to the Southern California Edison Company recorded in Book 8186, page 163, Official Records of said County; thence South 490 26' 1" East 380.90 feet along the Northeasterly line of said land; thence East 151.35 feet; thence North 40 33' 01" East 284.02 feet to a point on the Southwesterly line of San Joaquin Hills Road as described in a deed recorded in Book 8187, page 566, said Official Records, said point being on a curve concave Northeasterly having a radius of 2264.00 feet, a radial to said point bears South 420 37' 04" West; thence Northwesterly 380.20 feet along said curve through an angle of 90 37' 18" to an angle point in the boundary of Tract No. 6113, as per map filed in Book 226, pages 20 through 22, Miscellaneous Maps in the office of said County Recorder, said point being the beginning of a reverse curve concave Southerly having a radius of 25.00 feet; thence, Westerly 38.60 feet along said curve and boundary through an angle of 880 28' 06"; thence South 530 46' 17" West 258.75 feet along said boundary to the beginning of a curve therein concave Southeasterly having a radius of 1970.00 feet; thence Southwesterly 146.75 feet along said curve through an angle of 40 16' 05"; thence South 490 30' 12" West 13.43 feet along said boundary to the point of beginning. SUBJECT TO easements, rights of way, and other matters of record or apparent. 1. Reserving to Grantor, its successors and assigns, all oil, gas, petroleum and other hydrocarbon substances in and under the hereinabove described property, together with all necessary and convenient rights to explore for, develop, produce and extract and take the same, subject to the express limitation that any and all operations for the exploration, development, production, extraction, and taking of any of said substances shall be carried on at levels below the depth of five hundred (500) feet from the surface of said land by means of wells, derrick and/or other equipment from surface locations on adjoining or neighboring land, and subject further to the express limitation that the foregoing reservation shall in no way be interpreted to include any right of entry in and upon the surface of the land hereinabove described. It is understood by the parties that the above stated reservation is expressly subject to all restrictions and regulations concerning the drilling for and production of oil, gas, petroleum and other hydro -carbon substances, which are contained in the City Charter or the municipal ordinances of the City of Newport Beach. 2. Grantor, its successors and assigns, for a period of fifty (50) years from the date of the Deed shall have the right to approve the exterior design of all improvements to be constructed upon the premises. Grantee shall supply to Grantor for its approval two NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page A-1 complete sets of construction plans and specifications for the exterior of said improvements and adjoining areas to be landscaped, prepared by a licensed architect or licensed engineer, including but not limited to grading and drainage plans and soils report, a plot plan showing the proposed location of said improvements, all utilities and service connections and all places of ingress and egress to public streets and roads and plans for outdoor signs and lighting. Grantor shall approve said plans within thirty (30) days from the receipt thereof by returning one set of plans to Grantee with its approval indicated thereon, or shall notify Grantor within thirty (30) days from receipt of said plans of the reasons for its disapproval. However, Grantor shall not unreasonably withhold its consent. Upon completion said improvements and within one hundred eighty (180) days from the final inspection by the local municipality, all landscaping proposed with the approved construction plans must be completed. During said fifty (50) year period no structure or other improvement, the plans, specifications and proposed location of which have not first received the written approval of Grantor or which does not comply with such plans, specifications and locations, shall be constructed and maintained on the land. No material addition to or alteration of any building or structure erected on the premises shall be commenced unless and until plans and specifications covering the exterior of the proposed addition or alteration shall have been first submitted to and approved by Grantor in the manner above provided. The approval of Grantor of any plans and specifications refers only to the conformity of such plans and specifications to the general architectural plan for the premises and the neighboring lands. Approval of plans and specifications assumes no liability or responsibility therefor or for any defect in any structure constructed from such plans and specifications. 3. Should Grantee not have completed construction of a public park as delineated on Exhibit "B" within a period of five (5) years from the date Grantee shall record title to the premises, or should the Grantee or its successors and assigns at any time within fifty (50) years from the date Grantee shall record title to the premises cease to use said property or any part thereof for a public park and uses reasonably associated therewith, or should attempt to use said property or any part thereof for any other purpose except by and with the prior written consent and approval of the Grantor or its successors and assigns, then said property and the whole thereof shall revert to the Grantor, its successors and assigns, each and any of whom shall have the right in any such event to reenter and take possession of said property and the whole thereof, and oust all persons therefrom. The foregoing condition shall operate as a condition subsequent and shall apply to and bind the Grantee and its successors and assigns and all other persons acquiring any interest in said property. NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page A-2 EXHIBIT B DEPICTION OF PROPERTY NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page B-1 EXHIBIT C DEPICTION OF PREMISES NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page C-1 W-M Approximate Area .f Agreement — 45,414 sqFt A is San Joaquin Hills Park & Lawn Bowling Center Lease Agreement Areal Assessment MOW-1 "W a. N E 'it, of Newport Beach GIS Division June 06, 2023 I, I EXHIBIT D ASSOCIATION MEMBERSHIP SCOPE AND SCHEDULE OF ACTIVITIES The Newport Harbor Lawn Bowling Association is a membership -based association whose purpose is to promote the game of lawn bowling within the City of Newport Beach and its environs. Membership is open to the public. Annual dues are required for membership into the association and allow for voting rights within the association. Listed activities are open to the association's members to participate in: • Drop -in play • Member Social Bowls • Member Tournaments • Professional and semi-professionally sanctioned tournaments (e.g.: Bowls USA) including but not limited to the US Open, National Championship SCOPE AND SCHEDULE OF PUBLIC ACTIVITIES The following is a list of possible offerings to the Newport Beach community to enhance the public benefit of the Newport Harbor Lawn Bowling Club. The primary focus of each scheduled activity should be to allow individuals and groups the opportunity to participate in the sport of lawn bowling. Newport Harbor Lawn Bowling Association membership shall not be required to participate in the list of scheduled activities. Non-members and Newport Beach residents should be the majority of participants for scheduled activities to broaden the public benefit of the facility and promote open access. Any offering by Newport Harbor Lawn Bowling Club that has a primary function to generate new members, serves current members and/or requires other affiliated memberships to participate (e.g., BowlsUSA) is not considered a benefit to Newport Beach residents. Listed activities may limit capacity and charge a fee to participate or be free to participate and open to the general public: • Instructional classes • Open House events • Skill demonstration events i.e., Lawn Bowling 101 • Private events for Newport Beach schools, youth serving organizations, non-profit organizations, Homeowners Associations and other community -based organizations • Instructional classes • Private, semi -private and group lessons • Drop -in Play accompanied by member(s)Competitive play for non-members i.e., leagues and tournament • Other activities approved by the Recreation and Senior Services Director deemed to provide a benefit to the general public. NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page D-1 EXHIBIT E INSURANCE REQUIREMENTS Without limiting Lessee's indemnification of Lessor, Lessee will obtain, provide and maintain at its own expense during the Term of this Lease, a policy or policies of insurance of the type, amounts and form acceptable to Lessor. The policy or policies shall provide, at a minimum, those items described below. 1. Provision of Insurance. Without limiting Lessee's indemnification of Lessor, and prior to the Effective Date and commencement of any activities or work on Property by Lessee or Lessee's agents, representatives, consultants, contractors and/or subcontractors pursuant to this Lease, Lessee shall obtain, provide and maintain at its own expense during the Term of this Lease policies of insurance of the type and amounts described below and in a form satisfactory to Lessor. Lessee agrees to provide insurance in accordance with requirements set forth herein. If Lessee uses existing coverage to comply and that coverage does not meet these requirements, Lessee agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the insurance commissioner to transact business of insurance in the State of California, with an assigned policyholders' rating of A - (or higher) and financial size category class VII (or larger) in accordance with the latest edition of best's key rating guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Lessee and Lessee's agents, representatives, consultants, contractors and/or subcontractors, shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California. Lessee and Lessee's agents, representatives, consultants, contractors and/or subcontractors, shall submit to Lessor, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of Lessor, its officers, agents, employees and volunteers. B. General Liability Insurance. Lessee and Lessee's agents, representatives, consultants, contractors and/or subcontractors, shall maintain commercial general liability insurance, and if necessary excess/umbrella liability insurance in an amount not less than five million dollars ($5,000,000) per NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page E-1 occurrence, six million dollars ($6,000,000) in the general aggregate for bodily injury, personal and advertising injury, property damage, and completed operations which amount shall be subject to periodic adjustment in accordance with Subsection 5 (A) below. Coverage shall be at least as broad as that provided by Insurance Services Office form CG 00 01 and may be arranged through any combination of primary and excess insurance as required to achieve the limits specified provided that any excess liability policy does not restrict coverage provided in the primary policy. Other policy forms may be acceptable if more appropriate to the exposures. None of the policies required herein shall be in compliance with these requirements if they include any limiting endorsement that has not been first submitted to Lessor and approved in writing. C. Automobile Liability Insurance. Lessee and Lessee's agents, representatives, consultants, contractors and/or subcontractors, shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than two million dollars ($2,000,000) combined single limit each accident. 4. Endorsements: Policies shall contain or be endorsed to contain the following provisions: A. Additional Insured Status. Lessor, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as an additional insured under all liability policies, including excess/umbrella liability policies with respect to liability arising out of Lessee's activities related to this Lease and use or occupancy of the Premises. B. Primary and Non Contributory. Policies shall be considered primary insurance as respects to Lessor, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from Lessee's operations. Any insurance maintained by Lessor, including any self -insured retention Lessor may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. C. Liability Insurance. Liability insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. D. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Lease shall be endorsed to waive subrogation against Lessor, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Lessee or others providing insurance NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page E-2 evidence in compliance with these requirements to waive their right of recovery prior to a loss. Lessee hereby waives its own right of recovery against Lessor, and shall require similar written express waivers from each of its consultants, contractors or subcontractors. This provision applies regardless of whether the Landlord has received a waiver of subrogation endorsement from the insurer. E. Reporting Provisions. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to Lessor, its elected or appointed officers, officials, employees, agents or volunteers. F. Notice of Cancellation. The insurance required by this Lease shall not be suspended, voided, canceled, or reduced in coverage or in limits except after thirty (30) calendar days (ten (10) calendar days written notice of non- payment of premium) written notice has been received by Lessor. It is Lessee's obligation to ensure that provisions for such notice have been established. 5. Additional Requirements. A. In the event Lessor determines that (i) the Lessee's activities on the Property creates an increased or decreased risk of loss to the Lessor, (ii) greater insurance coverage is required due to the passage of time, or (iii) changes in the industry require different coverage be obtained, Lessee agrees that the minimum limits of any insurance policy required to be obtained by Lessee or Lessee's consultants, contractors or subcontractors, may be changed accordingly upon receipt of written notice from Lessor. With respect to changes in insurance requirements that are available from Lessee's then -existing insurance carrier, Lessee shall deposit certificates and endorsements evidencing acceptable insurance policies with Lessor incorporating such changes within thirty (30) calendar days of receipt of such notice. With respect to changes in insurance requirements that are not available from Lessee's then- existing insurance carrier, Lessee shall deposit certificates and endorsements evidencing acceptable insurance policies with Lessor, incorporating such changes, within ninety (90) calendar days of receipt of such notice. B. Any self -insured retention must be approved in writing by the Lessor and shall protect the indemnified parties in the same manner and to the same extent as they would have been protected had the policy or policies not contained a self -insured retention. The Lessor may require the Lessee to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self -insured retention may be satisfied by either the Lessee or the Lessor. NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page E-3 C. Lessee and Lessee's consultants, contractors and/or subcontractors shall be subject to the insurance requirements contained herein unless otherwise specified in the provisions above or written approval is granted by Lessor. Lessee shall be responsible for causing all consultants, contractors and/or subcontractors purchase the same types and limits of insurance in compliance with the terms of this Lease, including adding the Lessor as an Additional Insured, providing Primary and Non -Contributory coverage and Waiver of Subrogation to applicable policies. D. For general liability coverage, contractors, consultants and/or subcontractors shall provide coverage with a format at least as broad as provided by Insurance Services Office form CG 20 38 04 13. Unless written approval is granted by Lessor, contractors and/or subcontractors shall also provide an additional insured endorsement at least as broad as ISO Form CG 20 37. E. Lessee's insurance obligations under this Lease shall be: (1) all the insurance coverage and/or limits carried by or available to Lessee; or (2) the minimum insurance coverage requirements and/or limits shown in this Lease; whichever is greater. Any insurance proceeds in excess of or broader than the minimum required coverage and/or minimum required limits, which are applicable to a given loss, shall be available to the Lessor. No representation is made that the minimum insurance requirements of this Lease are sufficient to cover the obligations of the Lessee under this Lease. F. Lessee shall give Lessor prompt and timely notice of any claim made or suit instituted arising out of or resulting from Lessee or Lessee's agents, representatives, consultants, contractors or subcontractors performance under this Lease. G. Lessee shall provide certificates of insurance, with original endorsements as required above, to Lessor as evidence of the insurance coverage required herein. Insurance certificates must be approved by Lessor prior to commencement of work or issuance of any permit. Current certification of insurance shall be kept on file with Lessor at all times during the term of this Lease. H. All required insurance shall be in force on the Effective Date, and shall be maintained continuously in force throughout the term of this Lease. In addition, the cost of all required insurance shall be borne by Lessee or by Lessee's consultants, contractors or subcontractors. If Lessee or Lessee's consultants, contractors or subcontractors fail or refuse to maintain insurance as required in this Lease, or fail to provide proof of insurance, Lessor has the right to declare this Lease in default NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page E-4 without further notice to Lessee, and Lessor shall be entitled to exercise all available remedies. Lessee agrees not to use the Property in any manner, even if use is for purposes stated herein, that will result in the cancellation of any insurance Lessor may have on the Property or on adjacent Property, or that will cause cancellation of any other insurance coverage for the Property or adjoining Property. Lessee further agrees not to keep on the Property or permit to be kept, used, or sold thereon, anything prohibited by any fire or other insurance policy covering the Property. Lessee shall, at its sole expense, comply with all reasonable requirements for maintaining fire and other insurance coverage on the Property. NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page E-5 EXHIBIT F MEMORANDUM OF LEASE RECORDING REQUESTED AND WHEN RECORDED RETURN TO: City Clerk's Office City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 [Exempt from Recordation Fee - Govt. Code §§ 6103 & 27383] Assessor's Parcel Number 458-022-06. MEMORANDUM OF LEASE AGREEMENT This Memorandum of Lease Agreement ("Memorandum") is dated , 2023, and is made between City of Newport Beach, a California municipal corporation and charter city ("Lessor" or "City") and Newport Harbor Lawn Bowling Association, a California nonprofit corporation ("Lessee"), concerning the real property as legally described in Exhibit 'A," attached hereto and incorporated herein by this reference ("Property"), for the lease of that portion of the Property as depicted in Exhibit "B," attached hereto and incorporated herein by this reference ("Premises"). For good and adequate consideration, Lessor leases the Premises to Lessee, and Lessee hires them from Lessor, for the term and on the provisions contained in the Lease Agreement dated , 2023 ("Agreement"), including without limitation provisions prohibiting assignment, subleasing, and encumbering said leasehold without the express written consent of Lessor in each instance, all as more specifically set forth in said Agreement, which said Agreement is incorporated in this Memorandum by this reference. The initial term is five (5) years, beginning , 2023, and ending , 2028 ("Initial Term"), followed by a two (2) year "Option Term", and three (3) annual consecutive one (1) year extensions (each a "Renewal Term"), subject to approval of Lessor, on the same terms and conditions contained in the Agreement as it may be amended from time to time, with the total term in the aggregate including the Initial Term, Option Term, and all Renewal Terms not to exceed ten (10) years. This Memorandum is not a complete summary of the Agreement. Provisions in this Memorandum shall not be used in interpreting the Agreement's provisions. In the event of conflict between this Memorandum and other parts of the Agreement, the other parts shall control. Execution hereof constitutes execution of the Agreement itself. [SIGNATURES ON THE NEXT PAGE] IN WITNESS WHEREOF, the Parties hereto have executed this Memorandum as of the date first written above. LESSOR City of Newport Beach, a California municipal corporation Grace K. Leung City Manager ATTEST: Leilani I. Brown City Clerk APPROVED AS TO FORM: Aaron C. Harp City Attorney ATTACHMENTS LESSEE Newport Harbor Lawn Bowling Association, a California nonprofit corporation Andrew Dufresne President Norma Goodhart Treasurer [END OF SIGNATURES] Exhibit A - Legal Description of Premises Exhibit B - Depiction of Premises NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page F-2 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of } ss. On 20 before me, , Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of ) ss. (seal) On 20 before me, , Notary Public, personally appeared , proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page F-3 EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY That portion of Block 93, Irvine's Subdivision, in the City of Newport Beach, County of Orange, State of California, as per map filed in Book 1, page 88, Miscellaneous Record Maps in the office of the County Recorder of said County, described as follows: Beginning at the most Northerly corner of the Land described in a deed to the Southern California Edison Company recorded in Book 8186, page 163, Official Records of said County; thence South 490 26' 1" East 380.90 feet along the Northeasterly line of said land; thence East 151.35 feet; thence North 4° 33' 01" East 284.02 feet to a point on the Southwesterly line of San Joaquin Hills Road as described in a deed recorded in Book 8187, page 566, said Official Records, said point being on a curve concave Northeasterly having a radius of 2264.00 feet, a radial to said point bears South 420 37' 04" West; thence Northwesterly 380.20 feet along said curve through an angle of 90 37' 18" to an angle point in the boundary of Tract No. 6113, as per map filed in Book 226, pages 20 through 22, Miscellaneous Maps in the office of said County Recorder, said point being the beginning of a reverse curve concave Southerly having a radius of 25.00 feet; thence, Westerly 38.60 feet along said curve and boundary through an angle of 88' 28' 06"; thence South 530 46' 17" West 258.75 feet along said boundary to the beginning of a curve therein concave Southeasterly having a radius of 1970.00 feet; thence Southwesterly 146.75 feet along said curve through an angle of 40 16' 05"; thence South 490 30' 12" West 13.43 feet along said boundary to the point of beginning. SUBJECT TO easements, rights of way, and other matters of record or apparent. 1. Reserving to Grantor, its successors and assigns, all oil, gas, petroleum and other hydrocarbon substances in and under the hereinabove described property, together with all necessary and convenient rights to explore for, develop, produce and extract and take the same, subject to the express limitation that any and all operations for the exploration, development, production, extraction, and taking of any of said substances shall be carried on at levels below the depth of five hundred (500) feet from the surface of said land by means of wells, derrick and/or other equipment from surface locations on adjoining or neighboring land, and subject further to the express limitation that the foregoing reservation shall in no way be interpreted to include any right of entry in and upon the surface of the land hereinabove described. It is understood by the parties that the above stated reservation is expressly subject to all restrictions and regulations concerning the drilling for and production of oil, gas, petroleum and other hydro -carbon substances, which are contained in the City Charter or the municipal ordinances of the City of Newport Beach. 2. Grantor, its successors and assigns, for a period of fifty (50) years from the date of the Deed shall have the right to approve the exterior design of all improvements to be constructed upon the premises. Grantee shall supply to Grantor for its approval two complete sets of construction plans and specifications for the exterior of said NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page F-4 improvements and adjoining areas to be landscaped, prepared by a licensed architect or licensed engineer, including but not limited to grading and drainage plans and soils report, a plot plan showing the proposed location of said improvements, all utilities and service connections and all places of ingress and egress to public streets and roads and plans for outdoor signs and lighting. Grantor shall approve said plans within thirty (30) days from the receipt thereof by returning one set of plans to Grantee with its approval indicated thereon, or shall notify Grantor within thirty (30) days from receipt of said plans of the reasons for its disapproval. However, Grantor shall not unreasonably withhold its consent. Upon completion said improvements and within one hundred eighty (180) days from the final inspection by the local municipality, all landscaping proposed with the approved construction plans must be completed. During said fifty (50) year period no structure or other improvement, the plans, specifications and proposed location of which have not first received the written approval of Grantor or which does not comply with such plans, specifications and locations, shall be constructed and maintained on the land. No material addition to or alteration of any building or structure erected on the premises shall be commenced unless and until plans and specifications covering the exterior of the proposed addition or alteration shall have been first submitted to and approved by Grantor in the manner above provided. The approval of Grantor of any plans and specifications refers only to the conformity of such plans and specifications to the general architectural plan for the premises and the neighboring lands. Approval of plans and specifications assumes no liability or responsibility therefor or for any defect in any structure constructed from such plans and specifications. 3. Should Grantee not have completed construction of a public park as delineated on Exhibit "B" within a period of five (5) years from the date Grantee shall record title to the premises, or should the Grantee or its successors and assigns at any time within fifty (50) years from the date Grantee shall record title to the premises cease to use said property or any part thereof for a public park and uses reasonably associated therewith, or should attempt to use said property or any part thereof for any other purpose except by and with the prior written consent and approval of the Grantor or its successors and assigns, then said property and the whole thereof shall revert to the Grantor, its successors and assigns, each and any of whom shall have the right in any such event to reenter and take possession of said property and the whole thereof, and oust all persons therefrom. The foregoing condition shall operate as a condition subsequent and shall apply to and bind the Grantee and its successors and assigns and all other persons acquiring any interest in said property. NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page F-5 EXHIBIT "B" DEPICTION OF PREMISES NEWPORT HARBOR LAWN BOWLING ASSOCIATION Page F-6 {= Approximate Area of Agreement — 45,41 4 sgFtu -t, San Joaquin Hills Park & Lawn Bowling Center Lease Agreement Areal Assessment X- N ,e nEwp... City of Newport Beach CIS Division June 06, 2023 Law�Bow11ng5qua.eFoo�ageE.F�bii.apr� "` 2 248 D. 76 ® L qSearch Insured Name �Newwpport Harbor Lawn Bowling Associatior � 1 Newport Harbor Lawn Bowling Active Records Only Advance Search Insured Tasks Admin Tools View sti Insured Notes History 7= Deficiencies Coverages Requirements Add Edit Help Video Tutorials -t& Insured Name: Account Number: Address: Status: Newport Harbor Lawn Bowling Association A W11111III111111 0 1550 Crown Drive, Newport Beach, CA, USA, 92625 Compliant with Waived Deficiencies. Insured Business Unit(sj Print Insured Info Account Information Account Number: FV00001025 Risk Type: Professional Services Agreement Do Not Call: Address Information Address Updated: Mailing Address Physical Address Insured: Newport Harbor Lawn Bowling Association Address 1: 1550 Crown Drive Address 2: City: Newport Raanh