HomeMy WebLinkAboutC-3481(F) - Sublease for the Water Qualtiy Lab at the Back bay Science Center BBSCl�
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�-- 1 GA 1254-220
2 HCA/Water Quality Lab
U 3
4 SUBLEASE
5 FOR THE WATER QUALITY LAB
6 AT THE BACK BAY SCIENCE CENTER
7
8 THIS IS A SUBLEASE, hereinafter referred to as "Sublease," made the16 day of FE13RvAAR4
9 2008 ("Execution Date"), by and between the CITY OF NEWPORT BEACH, a municipal corporation
10 and charter city, hereinafter referred to as "CITY," and the COUNTY OF ORANGE, a political
11 subdivision of the state of California, hereinafter referred to as "COUNTY," without regard to number
12 and gender. The term "COUNTY" shall mean the Board of Supervisors of the political body that
13 executed this Sublease or its authorized representative.
14
15 RECITALS
16
17 I. WHEREAS, the State of California is the owner of certain real property known as Shellmaker
18 Island, located at 600 Shellmaker Road in Newport Beach, Orange County, California (the
19 "Property")
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21 II. WHEREAS, the CITY, The Regents of the University of California on behalf of the University of
22 California at Irvine (UCI), the State of California, Department of Fish and Game (STATE), and the
23 COUNTY have entered into the Cooperative Agreement for the Back Bay Science Center
24 ("Cooperative Agreement"), regarding the planning, funding and construction of the Back Bay
25 Science Center ("BBSC"), as defined herein, on Shellmaker Island.
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27 III. WHEREAS, the CITY, UCI, STATE and COUNTY have executed, or are prepared to execute, the
28 Back Bay Science Center Complex Operating Agreement ("Operating Agreement"). The Operating
29 Agreement provides that it shall become effective when construction of the BBSC is complete. The
30 Operating Agreement shall become an exhibit (Exhibit G) to the Cooperative Agreement upon full
31 execution by its parties.
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33 IV. WHEREAS, the COUNTY has committed in the Cooperative Agreement to contribute One Million
34 Two Hundred Thirty Thousand Dollars ($1,230,000.00) toward the construction of the BBSC,
35 contingent upon the approval and execution of this Sublease.
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BBSC City -County Sublease
I V. WHEREAS, CITY has, per the Standard Form Lease Agreement between STATE and the CITY
2 dated October 31, 2007 (the "Master Lease"), leased from STATE the approximately three thousand
3 nine hundred eighty (3,980) square foot portion of the BBSC Complex (as defined in the Master
4 Lease) designated as the "Water Quality Lab" (the "Premises").
5
6 VI. WHEREAS, CITY is willing to sublease the Premises to the COUNTY for the term and upon and
7 subject to the terms, covenants and conditions set forth in this Sublease.
8
9 VII.WHEREAS, CITY has included a reference to an MOU executed between STATE and UCI
10 regarding Academic Collaboration in Recital C (v) of the Operating Agreement. CITY recognizes
11 that the COUNTY is not a party to the MOU and that the COUNTY is not bound by the terms of the
12 MOU or by the inclusion of a reference to it in the Operating Agreement.
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14 AGREEMENT
15
16 NOW THEREFORE, THE RECITALS ARE INCORPORATED HEREIN AND THE PARTIES
17 DO HEREBY AGREE AS FOLLOWS:
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19 1. DEFINITIONS
20
21 "Applicable Laws" means all laws, statutes, regulations, codes, orders and ordinances which relate in
22 any manner to the Premises, the use of the Premises or any activities of CITY or COUNTY on the
23 Property.
24
25 "Auditor -Controller" means the Auditor -Controller, County of Orange, or designee, or upon written
26 notice to CITY, such other person or entity as shall be so designated by the Board of Supervisors.
27
28 "Back Bay Science Center" or "BBSC" consists of an approximate thirteen thousand (13,000) square
29 foot permanent enclosed structure comprised of three new buildings containing a total of four wings
30 located on the Property (the `BBSC Buildings"); as well as parking areas, common areas and walkways
31 on Shellmaker Island, but excluding planted berms, interpretive pathways, and the demonstration marsh.
32 The terms Back Bay Science Center and BBSC, as used in this Sublease, shall have the same meaning as
33 the term `BBSC Complex" in Part F of the Background statements within the Master Lease.
34
35 "Board of Supervisors" means the Board of Supervisors of the County of Orange, a political subdivision
36 of the State of California.
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BBSC City -County Sublease
I "Commencement Date" means November 19, 2007, which is the date upon which CITY's building
2 department issued a certificate of occupancy or temporary certificate of occupancy for the Premises.
3
4 "County Counsel" means the County Counsel, County of Orange, or designee, or upon written notice to
5 CITY, such other person or entity as shall be so designated by the County Executive Officer or the
6 Board of Supervisors.
7
8 "County Executive Officer" means the County Executive Officer, County Executive Office, County of
9 Orange, or designee, or upon written notice to CITY, such other person or entity as shall be so
10 designated by the Board of Supervisors.
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12 "Director of Health Care Agency" means the Director, Health Care Agency, County of Orange, or
13 designee, or upon written notice to CITY, such other person or entity as shall be so designated by the
14 County Executive Officer or the Board of Supervisors.
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16 "Manager, HCA/Facilities Operations" means the Manager, Health Care Agency, Facilities Operations,
17 County of Orange, or designee, or upon written notice to CITY, such other person or entity as shall be so
18 designated by the Director of Health Care Agency.
19
20 "Interim Sublease" means the Sublease between CITY and COUNTY for the Temporary Water Quality
21 Lab dated February 4, 2003.
22
23 "Water Quality Laboratory" means the approximately three thousand nine hundred eighty (3,980)
24 square foot portion of the Back Bay Science Center designated as the "Water Quality Lab" as shown on
25 Exhibit B, attached hereto. As used in this Sublease, "Premises" and "Water Quality Laboratory" are
26 synonymous.
27
28 2. PREMISES
29
30 CITY hereby subleases to COUNTY and COUNTY subleases from CITY the Water Quality Laboratory,
31 together with non-exclusive use of the BBSC's driveways for vehicle ingress and egress, pedestrian
32 walkways, and other Common Areas as defined in the Master Lease. COUNTY's use of the BBSC's
33 driveways, pedestrian walkways and other Common Areas pursuant to this Sublease shall be subject to
34 the rules and regulations which STATE may adopt, modify and amend from time -to -time as set forth in
35 Section 12 (Rules and Regulations) of the Master Lease. Smoking is not allowed in or upon the
36 Premises or any other portion of the BBSC. COUNTY shall comply with, and require compliance with,
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BBSC City -County Sublease
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the smoking prohibition as to COUNTY's employees, agents, contractors, and invitees inside the
Premises and Common Areas, and within twenty (20) feet of a main exit, entrance, or operable window
of the Premises.
3. PARKING
CITY, as Facilities Manager, will use its best efforts to ensure that sufficient parking on site is available
for a total of up to twelve (12) COUNTY staff and Water Quality Lab visitors during COUNTY's
business hours of 7:00 a.m. to 6:00 p.m., Monday through Friday and on those weekends and holidays
that COUNTY staff are required to work at the BBSC Water Quality Lab. COUNTY shall also have the
non-exclusive right to use other parking spaces in the parking Lots adjacent to the Premises, as needed.
CITY shall also provide parking for disabled persons in accordance with the Americans with Disabilities
Act, Section 7102 of the California Uniform Building Code and the applicable codes and/or ordinances
relating to parking for disabled persons as established by the local jurisdiction in which the Premises is
located where the provisions of such local codes and/or ordinances exceed or supersede the State
requirements.
4. USE
COUNTY shall use the Premises only as a County -wide water quality testing and research facility
operating as part of the BBSC project pursuant to the Cooperative Agreement and the Operating
Agreement. COUNTY agrees not to use the Premises for any other purpose without the prior written
consent of CITY, which shall not be unreasonably withheld. However, COUNTY may use the Premises
to conduct water quality testing and research beneficial to the county, region or state, provided that the
testing research does not increase activity levels at the Premises or the BBSC Complex in such a way as
to detract from the BBSC programs.
COUNTY shall not use or permit the use of the Premises in a manner that is unlawful, creates damage,
waste or a nuisance, or that unreasonably annoys or disturbs occupants of, or causes damages to,
neighboring premises or properties.
5. MASTER LEASE
This Sublease is and shall be at all times subject and subordinate to the Master Lease, which is attached
hereto as Exhibit F and incorporated in full by this reference. The terms, conditions and respective
obligations of CITY and COUNTY to each other shall be the terms and conditions of the Master Lease
BBSC City -County Sublease
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I except for those provisions of the Master Lease which are directly contradicted by this Sublease.
2 Therefore, for the purposes of this Sublease, wherever in the Master Lease the word "STATE" is used, it
3 shall be deemed to mean the CITY as sublessor herein and wherever in the Master Lease the word
4 "CITY" is used it shall be deemed to mean the COUNTY as sublessee herein. During the term of this
5 Sublease and for all periods subsequent for obligations which have arisen prior to the termination of this
6 Sublease, COUNTY hereby expressly assumes and agrees to perform and comply with, for the benefit of
7 CITY and STATE as lessor under the Master Lease, each and every obligation of CITY as LESSEE
8 under the Master Lease except for the following: Section 7 (Lessee as Project Facilities Manager);
9 Section 10 (Janitorial Services); and maintenance and repair of BBSC Complex other than the Premises
10 under Section 11 (Maintenance and Repairs). No amendment, modification or other change to this
11 Sublease shall be made without the prior written consent of STATE.
12
13 This Sublease is made solely in furtherance of the cooperative project described in the Cooperative
14 Agreement and the Operating Agreement. Pursuant to Section 17 of the Master Lease, this Sublease
15 shall terminate if COUNTY at any time withdraws from the BBSC project or fails or ceases to perform
16 the BBSC project functions for which COUNTY is responsible under the Cooperative Agreement, the
17 Operating Agreement or this Sublease.
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19 6. TERM
20
21 The term of this Sublease shall run from the Execution Date to the end of the twenty five (25) year term
22 of the Master Lease, unless renewed or sooner terminated pursuant to any provision of this Sublease.
23 COUNTY shall have the option to extend the Sublease term as set forth in Section 8, hereafter.
24
25 7. TERMINATION OF PRIOR AGREEMENTS
26
27 This Sublease will terminate and supersede any prior agreement between the parties hereto covering all
28 or any portion of the Premises, EXCEPT that all personal property and/or equipment (e.g., fixtures,
29 partitions, counters, shelving) attached to and/or placed upon any portion of the Premises (as defined in
30 the Interim Sublease) by COUNTY pursuant to the terms of any prior agreements shall remain the
31 personal property of COUNTY, which shall have the right to remove same.
32
33 8. OPTION TO EXTEND SUBLEASE TERM
34
35 COUNTY may extend the term of the Sublease for up to three (3) successive additional terms of five (5)
36 years each (each an "Option Term") on the same terms and conditions as this Sublease provided that the
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BBSC City -County Sublease
I COUNTY has performed its obligations and is not in breach or default under this Sublease. Any such
2 renewal shall be upon the same terms, covenants, and conditions as this Sublease except that the
3 consideration for the Sublease during the second and third Option Term will be agreed upon as set forth
4 in Section 2(c) of the Master Lease. CITY shall make its best efforts to include COUNTY in any
5 negotiations for establishment of the consideration to be paid during the second and third Option Terms.
6 CITY and STATE shall then amend the Master Lease accordingly and likewise, this Sublease shall also
7 be amended to reflect the agreement of parties. It is anticipated that the COUNTY's consideration to the
8 CITY shall be based on a pro -rata share of the CITY's consideration to the STATE for the
9 corresponding Option Term as amended in the Master Lease, which shall be memorialized in the
10 amendment to this Sublease.
11
12 COUNTY shall provide CITY with written notification that it intends to exercise its option to extend the
13 term of this Sublease at least one hundred eighty (180) days prior to the Sublease termination date.
14
15 9. RENT
16
17 In consideration of the One Million Two Hundred Thirty Thousand Dollars ($1,230,000) to be
18 contributed by COUNTY toward the construction of the Back Bay Science Center and the services to be
19 performed by COUNTY pursuant to the terms of this Sublease, COUNTY's use of the Premises shall be
20 rent-free. In the event that the first of the three (3) five-year options described in Section 8 above is not
21 executed for reasons not due to COUNTY's breach of this Sublease, the COUNTY shall be entitled to
22 payment by the CITY of Two Hundred Nine Thousand One Hundred Dollars ($209,100), which is the
23 share of One Million Two Hundred Thirty Thousand Dollars ($1,230,000) pro -rated to year twenty-five
24 (25) of the thirty (30) year term envisioned by the Cooperative Agreement and for which COUNTY
25 allocated One Million Two Hundred Thirty Thousand Dollars ($1,230,000).
26
27 In the event that this Sublease is terminated due to a default by the CITY under the Master Lease,
28 COUNTY shall be entitled to repayment of a proportional share of the total rent amount based upon the
29 possible forty (40) year term.
30
31 10. CONSTRUCTION
32
33 The BBSC Complex's construction is deemed complete as of November 19, 2007. Tenant
34 Improvements to the Premises to be conducted by COUNTY, CITY, or their contractors shall be done in
35 accordance with the terms of the Master Lease including, without limitation, the Work Letter attached as
36 Exhibit C to the Master Lease.
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BBSC City -County Sublease
I 11. PAYMENT OF COUNTY'S CONTRIBUTION
2
3 Immediately following the Execution Date, CITY shall provide accurate "as built" construction plans
4 and documents for the BBSC Complex, including the Premises, to the Manager, HCA/Facilities
5 Operations. Upon acceptance of the as -built plans by Manager, HCA/Facilities Operations, COUNTY
6 agrees to pay to CITY the sum of One Million Two Hundred Thirty Thousand Dollars ($1,230,000). In
7 no event shall the COUNTY's funding commitment for the proposed construction exceed One Million
8 Two Hundred Thirty Thousand Dollars ($1,230,000) without the express written consent of the Board of
9 Supervisors.
10
11 To obtain payment, CITY (or CITY's designee) shall submit to COUNTY's Manager, HCA/Facilities
12 Operations, in a form acceptable to said Manager, HCA/Facilities Operations, a written claim or invoice
13 for this payment.
14
15 12. REPAIR AND MAINTENANCE
16
17 COUNTY shall be responsible for, at its own cost and expense, all maintenance, repair and/or
18 replacement services for the interior portions of the Premises to include but not be limited to the
19 following items: (a) janitorial service and supplies; (b) lighting service and supplies; (c) heating, air
20 conditioning and ventilation systems; (d) entry doors, roll up doors and windows; (e) fire extinguishers;
21 (f) interior painting and flooring; (g) locks, keys, access control systems and security service; (h) and any
22 other services as needed to support its operations and keep the Premises in good order, condition and
23 repair.
24
25 CITY shall provide, subject to the provisions of Clause 13 entitled REIMBURSEMENT FOR COST OF
26 CITY SERVICES, hereafter, all maintenance, repair and/or replacement services for the building
27 structure and the exterior portion of the Premises, including but not limited to the exterior surfaces, roof,
28 fire sprinkler system, and utility connections to the building, as well as the parking lot, sidewalks, curbs,
29 gutters, drains, and site related signage which are appurtenant to the building. When calculating the cost
30 of CITY Services the parties shall refer to Clause 13 (REIMBURSEMENT FOR COST OF CITY
31 SERVICES) of this Sublease.
32
33 13. REIMBURSEMENT FOR COST OF CITY SERVICES
34
35 A. For the purpose of this clause, the cost of services provided by CITY for the COUNTY ("CITY
36 Services") shall include only the following:
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BBSC City -County Sublease
1
2 1. Trash, Water and Sewer Services.
3 2. Landscape Maintenance Services.
4 3. Maintenance and Repair Services (including preventative maintenance).
5 4. Cost for major repairs and/or replacements to the building and parking area that constitutes
6 capital improvements or replacements (such as roof replacement, parking lot resurfacing
7 and/or replacement).
8
9 The above stated CITY Services shall only be applicable to and determined based on the "Premises Used
10 to Determine County's Proportionate Share of Cost of City Services for the BBSC" as described in
11 "Exhibit Al - Premises Used to Determine County's Proportionate Share of Cost of City Services for the
12 BBSC" and shown in "Exhibit Bl - Premises Used to Determine County's Proportionate Share of Cost
13 of City Services for the BBSC" of this Sublease.
14
15 For the purpose of making payments pursuant to this section, the cost of CITY Services allocable to
16 COUNTY and payable to CITY shall not exceed thirty-two percent (32%) of the rentable area of the
17 Back Bay Science Center within which the Premises resides. This percentage is calculated by dividing
18 the size of the Premises (3,980 square feet) by the rentable area of the Back Bay Science Center (12,409
19 square feet). Consequently, COUNTY shall only be responsible for thirty-two percent (32%) of the
20 costs of CITY's Services.
21
22 B. Parking Lot Maintenance. With respect to parking lot maintenance, as defined herein,
23 COUNTY shall pay its proportionate share of such costs, based on the average number of parking spaces
24 it uses for its employees and invitees. For instance, if the average number of parking spaces used by the
25 COUNTY is twelve (12) per month, then its proportionate share of parking lot maintenance costs per
26 year is eighteen percent (18%). This percentage is calculated by dividing the number of spaces (12) by
27 the total number of spaces (67) available. Parking lot maintenance costs, as referred to in this
28 Paragraph, shall include only resurfacing, restripping and oil sealant costs. General maintenance costs,
29 such as sweeping and trash pickup, are difficult to segregate, so these costs shall be handled pursuant to
30 Paragraph 13(A).
31
32 C. Within one hundred twenty (120) days following each anniversary date of the Execution Date of
33 the term of the Sublease, CITY shall furnish COUNTY with the following information applicable to the
34 Premises:
35
36 1. Summary Statement: CITY shall furnish a written Summary Statement ("Summary Statement")
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BBSC City -County Sublease
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that includes in detail the cost of each category of CITY Services for the previous year.
2. Supporting Data: CITY shall provide Supporting Data ("Supporting Data") that includes copies
of invoices and/or work orders and proof of payment for each, neatly separated and
organized by CITY Service categories and date of service.
3. Budget: CITY shall furnish a written Budget ("Budget") that includes in detail the estimated
cost of each category of CITY Services to be provided by CITY for the next fiscal year,
which begins on July 1.
COUNTY shall have the right to audit any Supporting Data provided by CITY and used in the
preparation of said claim. In the event COUNTY questions the adequacy of any portion of the
Supporting Data provided by CITY, and COUNTY requests additional Supporting Data, the due date for
payment of the adjustment shall be ninety (90) days from the date COUNTY receives the additional data
required to substantiate CITY's claim. In the event payment is due, said payment shall be made in a
lump sum within ninety (90) days following receipt of said Summary Statement and Supporting Data.
Should CITY fail to provide said Summary Statement and supporting documentation within one
hundred twenty (120) days from said anniversary date, any claim for reimbursement pursuant to this
clause shall be deemed waived by the CITY. Notwithstanding the foregoing, CITY Services shall not
include expenses for the cost of correcting building defects (latent or otherwise).
14. ALTERATIONS
Subject to the applicable limitations and requirements set forth in the Master Lease, including but not
limited to Section 20, COUNTY may make improvements and changes in the Premises, including but
not limited to the installation of fixtures, partitions, counters, shelving, equipment, seismic bracing,
access and alarm systems, telephone and computer network systems, and modifications to the utility
services as necessary or appropriate. It is agreed that any such fixtures, partitions, counters, shelving, or
equipment attached to or placed upon the Premises by COUNTY shall be considered as personal
property of COUNTY, who shall have the right to remove same, subject to the applicable limitations and
requirements set forth in the Master Lease. Upon vacating, COUNTY agrees that the Premises shall be
left in as good condition as when received, reasonable wear and tear excepted.
15. UTILITIES
COUNTY agrees to make all necessary arrangements for, and pay the cost of, all gas, electric, water and
BBSC City -County Sublease
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I other utility services associated with the use of the Premises during the term of this Sublease, including,
2 but not limited to, connection costs. If any such services are not separately metered to COUNTY, then
3 COUNTY shall pay its proportionate share of the utility costs of all charges jointly metered with other
4 portions of the BBSC Complex, the Project or the Property, as outlined in the provisions of the Clause
5 13 entitled "REIMBURSEMENT FOR COST OF CITY SERVICES."
6
7 COUNTY shall make every effort to comply with all reasonable conservation measures, if any,
8 requested by STATE as a result of any "energy crisis" or any curtailment of water or other utilities
9 serving the Premises.
10
11 Installation, monthly billing, maintenance, repair, removal, replacement of any telecommunications
12 equipment, lines or systems exclusively in or exclusively serving the Premises shall be the sole
13 responsibility of the COUNTY.
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15 16. INSURANCE
16
17 Property/Fire Insurance: CITY shall obtain and keep in force during the term of this Sublease, and at
18 no cost or expense to COUNTY except as may be agreed upon pursuant to the "meet and confer"
19 provisions of this Clause, a policy or policies of property and fire insurance with extended coverage,
20 covering, to the same extent as other CITY -owned buildings, damage to the Premises and improvements
21 located on the Premises (including the full value of any improvements and fixtures owned by CITY)
22 against all perils included within the classification of fire, extended coverage, vandalism, malicious
23 mischief, special extended perils ("all risk" as such term is used in the insurance industry, including
24 earthquake and flood).
25
26 Included in the policy or policies of property and fire insurance shall be a standard waiver of right of
27 subrogation against COUNTY by the insurance company issuing said policy or policies. CITY shall
28 provide COUNTY with evidence of compliance with these requirements.
29
30 CITY'S insurance (a) shall be in a form satisfactory to COUNTY and carried with a company (or
31 companies) acceptable to COUNTY and licensed to do business in the State of California, (b) shall
32 provide that such policies shall not be subject to material alteration or cancellation without at least thirty
33 (30) days prior written notice to COUNTY, and (c) shall be primary, and any insurance carried by
34 COUNTY shall be non-contributing. CITY'S policy or policies, or duly executed certificates for them,
35 shall be deposited with COUNTY prior to the Commencement Date of this Sublease, and prior to
36 renewal of such policies.
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BBSC City -County Sublease
I In the event that insurance premiums for the coverage described in this Clause increase by an amount in
2 excess of thirty percent (30%) during any five (5) year period during the term of this Sublease,
3 COUNTY and CITY shall meet and confer in good faith in attempt to reach an agreement as to an
4 amendment of this Sublease that would establish the amount of any COUNTY contribution to the cost
5 of insurance, if any, or the extent to which the insurance requirements in this Clause should be modified.
6
7 17. INDEMNIFICATION
8
9 COUNTY shall indemnify, defend (with counsel approved by the CITY) and hold harmless the CITY,
10 its officers, directors, employees and agents, from and against any and all liability, losses, costs,
11 expenses (including attorneys' fees), claims, damages (collectively, "Claims") by reason of any injury
12 (including death) to any person or persons, including COUNTY, or loss of or damage to property of any
13 kind whatsoever and to whomsoever belonging, including COUNTY, arising out of or in connection
14 with this Sublease, the use or occupancy of the Premises, or COUNTY's presence or activities on or
15 about the BBSC Complex, the BBSC Buildings or the Premises, except those arising out of the sole
16 negligence or willful misconduct of the CITY.
17
18 Likewise, CITY shall indemnify, defend (with counsel approved by the COUNTY) and hold harmless
19 the COUNTY, its officers, directors, employees and agents, from and against any and all liability, losses,
20 costs, expenses (including attorneys' fees), claims, damages (collectively, "Claims") by reason of any
21 injury (including death) to any person or persons, including CITY, or loss of or damage to property of
22 any kind whatsoever and to whomsoever belonging, including CITY, arising out of or in connection
23 with this Sublease, the use or occupancy of the Premises, or CITY's presence or activities of officers or
24 employees of the CITY on or about the BBSC Complex, the BBSC Buildings or the Premises, except
25 those arising out of the sole negligence or willful misconduct of the COUNTY.
26
27 18. TAXES AND ASSESSMENTS
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29 All taxes and assessments which become due and payable upon the Premises shall be the full
30 responsibility of CITY, and CITY shall cause said taxes and assessments to be paid prior to the due date.
31
32 19. BUILDING AND SAFETY REQUIREMENTS
33
34 During the full term of this Sublease, CITY, at CITY's sole cost, agrees to maintain the Premises in
35 compliance with all applicable laws, rules, regulations, building codes, statutes, and orders as they are
36 applicable on the date of this Sublease, and as they may be subsequently amended.
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BBSC City -County Sublease
I Included in this provision is compliance with the Americans with Disabilities Act (ADA) and all other
2 federal, state, and local codes, statutes, and orders relating to disabled access as they are applicable on
3 the date of this Sublease, and as they may be subsequently amended.
4
5 CITY further agrees to maintain the Premises as a "safe place of employment," as defined in the
6 California Occupational Safety and Health Act (California Labor Code, Division 5, Part 1, Chapter 3,
7 beginning with Section 6400) and the Federal Occupational Safety and Health Act, where the provisions
8 of such Act exceed, or supersede, the California Act, as the provisions of such Act are applicable on the
9 date of this Sublease, and as they may be subsequently amended.
10
11 Notwithstanding the foregoing, the COUNTY shall, as to the interior of the Premises, be solely
12 responsible for the compliance with the laws referenced above, and all other relevant laws, ordinances,
13 rules or regulations pertaining to workplace safety or security.
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15 20. HAZARDOUS SUBSTANCES
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17 The term "Hazardous Substance" as used in this Sublease shall mean any product, substance or waste
18 the presence, use, manufacture, disposal, transportation or release (either by itself or in combination with
19 other materials) is either: (a) potentially injurious to public health, safety or welfare, the environment or
20 the Premises; (b) regulated or monitored by any governmental authority; or (c) a basis for potential
21 liability of CITY or STATE under any applicable statute or common law theory. Hazardous Substance
22 includes, without limitation, hydrocarbons, petroleum, gasoline, and/or crude oil or any products, by -
23 products or fractions thereof.
24
25 COUNTY shall comply with all Applicable Laws, federal, state and local, pertaining to the presence,
26 generation, possession, storage, use, disposal, transportation or release of any Hazardous Substance in,
27 on or from the Premises, the BBSC Buildings or the BBSC project. If COUNTY knows or has
28 reasonable cause to believe that a Hazardous Substance has come to be located in, on, under or about the
29 Premises, the BBSC Buildings or the BBSC project, other than in full compliance with Applicable
30 Laws, COUNTY shall immediately give verbal and written notice of such fact to CITY and STATE, and
31 provide CITY and STATE with a copy of any report, notice, claim or other information which
32 COUNTY has concerning such Hazardous Substance. Verbal notice to CITY or STATE pursuant to this
33 Section may be given to any on-site employee of CITY or STATE at the Back Bay Science Center.
34
35 COUNTY shall not cause or permit any Hazardous Substance, except those allowed by law, to be spilled
36 or released in, on, under or about the Premises, the BBSC Buildings or the BBSC project (including
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through the plumbing or sanitary sewer system) and shall promptly, at COUNTY's expense, comply
with all Applicable Laws and take all investigatory and/or remedial action reasonably recommended for
the cleanup of any contamination and for the maintenance, security and/or monitoring of the Premises,
the BBSC Buildings, the Property, or other property in the vicinity of the Premises, that was caused or
materially contributed to by COUNTY or involving any Hazardous Substance brought onto the Property
during the COUNTY's occupancy under this Sublease, by or for the COUNTY or any third party acting
with the consent or under the direction or control of COUNTY.
COUNTY shall be responsible for and shall defend, indemnify and hold CITY and STATE, and their
respective officers, directors, employees, agents, and representatives, free and harmless from and against
all claims, losses, costs, expenses, damages, judgments, fines, penalties and liabilities, including
attorneys' fees and costs arising out of or in connection with the storage, use, or disposal of Hazardous
Substances on the Premises by COUNTY. If the storage, use, or disposal of Hazardous Substances on
the Premises by COUNTY results in contamination or deterioration of water or soil resulting in a level
of contamination greater than maximum allowable levels established by any governmental agency
having jurisdiction over such contamination, COUNTY shall promptly take any and all action necessary
to clean up such contamination.
CITY hereby warrants and represents that CITY has in the past and will hereafter comply with all laws
and regulations relating to the storage, use and disposal of Hazardous Substances. CITY shall be
responsible for and shall defend, indemnify and hold COUNTY, its officers, directors, employees,
agents, and representatives, harmless from and against all claims, costs and liabilities, including
attorneys' fees and costs arising out of or in connection with the previous, current and future storage, use
and disposal of Hazardous Substances on the Premises (or building if the Premises comprises only a
portion of said building) by CITY. If the previous, current and future storage, use, and disposal of
Hazardous Substances on the Premises by CITY results in contamination or deterioration of water or soil
resulting in a level of contamination greater than maximum allowable levels established by any
governmental agency having jurisdiction over such contamination, CITY shall promptly take any and all
action necessary to clean up such contamination.
21. LABOR CODE COMPLIANCE
CITY acknowledges and agrees that all work on physical modifications required to be performed as a
condition precedent to the Execution Date or any such future work performed by CITY at the request of
COUNTY shall be governed by, and performed in accordance with, the provisions of Article 2 of
Chapter 1, Part 7, Division 2 of the Labor Code of the State of California (Sections 1770, et seq.). These
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provisions are applicable to modifications costing more than One Thousand Dollars ($1,000.00).
Pursuant to the provisions of Section 1773 of the Labor Code of the State of California, the Board of
Supervisors has obtained the general prevailing rate of per diem wages and the general prevailing rate
for holiday and overtime work in the locality applicable to this Sublease for each craft, classification, or
type of workman needed to execute the aforesaid structural modifications from the Director of the State
Department of Industrial Relations. CITY herein agrees that CITY shall post, or cause to be posted, a
copy of such wage rates at the job site and shall pay the adopted prevailing wage rates. Copies of said
prevailing wage rates may be obtained from COUNTY's Manager, HCA/Facilities Operations. In
addition, CITY shall provide continuously updated certified payroll records to COUNTY.
Except as expressly set forth in this Sublease, nothing herein is intended to grant authority for CITY to
perform construction work on the Premises as subleased to COUNTY without the express written
permission of COUNTY.
22. RIGHT TO WORK AND MINIMUM WAGE LAWS
In accordance with the United States Immigration Reform and Control Act of 1986, CITY shall require
its employees that directly or indirectly service the Premises or terms and conditions of this Sublease, in
any manner whatsoever, to verify their identity and eligibility for employment in the United States.
CITY shall also require and verify that its contractors or any other persons servicing the Premises or
terms and conditions of this Sublease, in any manner whatsoever, verify the identity of their employees
and their eligibility for employment in the United States.
Pursuant to the United States of America Fair Labor Standard Act of 1938, as amended, and State of
California Labor Code, Section 1178.5, CITY shall pay no less than the greater of the Federal or
California Minimum Wage to all its employees that directly or indirectly service the Premises, in any
manner whatsoever. CITY shall require and verify that all its contractors or other persons servicing the
Premises on behalf of the CITY also pay their employees no less than the greater of the Federal or
California Minimum Wage.
CITY shall comply and verify that its contractors comply with all other Federal and State of California
laws for minimum wage, overtime pay, record keeping, and child labor standards pursuant to the
servicing of the Premises or terms and conditions of this Sublease.
Notwithstanding the minimum wage requirements provided for in this clause, CITY, where applicable,
BBSC City -County Sublease
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shall comply with the prevailing wage and related requirements, as provided for in Clause 21 entitled
"LABOR CODE COMPLIANCE" of this Sublease.
23. DEFAULTS AND REMEDIES
The occurrence of any of the following shall constitute an event of default:
• Failure to pay any installment of any monetary amount due and payable hereunder; or
• Failure to perform any obligation, agreement or covenant under this Sublease.
In the event of any non -monetary breach of this Sublease by COUNTY, CITY shall notify COUNTY in
writing of such breach, and COUNTY shall have fifteen (15) days in which to initiate action to cure said
breach.
In the event of any non -monetary breach of this Sublease by CITY, COUNTY shall notify CITY in
writing of such breach and CITY shall have fifteen (15) days in which to initiate action to cure said
breach.
In the event of any monetary breach of this Sublease by COUNTY, CITY shall notify COUNTY in
writing of such breach, and COUNTY shall have fifteen (15) days in which to cure said breach, unless
specified otherwise within this Sublease.
In the event of any monetary breach of this Sublease by CITY, COUNTY shall notify CITY in writing of
such breach, and CITY shall have fifteen (15) days in which to cure said breach, unless specified
otherwise within this Sublease.
In the event of a default by COUNTY, the CITY may elect to terminate this Sublease by any lawful
means and pursue any other remedy now or hereinafter available at law or in equity. In the event of
termination of this Sublease, CITY shall have the right to reenter the Premises and every part thereof and
to remove and store at COUNTY's expense all property therefrom and to repossess and occupy the
Premises. In the event that CITY terminates this Sublease pursuant to this paragraph, the CITY shall not
be required to pay COUNTY any sum or sums whatsoever.
In the event CITY is in default of the Master Lease, as set forth in to Section 15 of the Master Lease,
COUNTY shall have the ability to cure any such default in accordance with the Master Lease. CITY
hereby authorizes COUNTY to rely upon any written notice from STATE stating that a default exists in
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the performance of CITY's obligations under the Master Lease. Should COUNTY forward any monies
in any form, direct or indirect, to cure said default by the CITY, said monies will become immediately
due and payable by CITY. If CITY does not reimburse COUNTY within ninety (90) days from said
advance, then any outstanding balance will accrue at ten percent (10%) interest per annum. CITY agrees
to pay any and all attorney fees to collect balance of monies forwarded on its behalf.
24. CONDEMNATION
In the event of any whole or partial taking or condemnation of the Premises, for any reason, by any
public, quasi -public authority, entity or corporation having the power of eminent domain, the appropriate
laws of the State of California and applicable provisions of the Master Lease shall apply.
25. NOTICES
All written notices pursuant to this Sublease shall be addressed as set forth below or as either party may
hereafter designate by written notice given in accordance with this Clause 25. Notices shall be deemed
delivered upon personal delivery, delivery by facsimile machine, or seventy-two (72) hours after deposit
in the United States Mail.
TO: CITY
City of Newport Beach
City Manager's Office
3360 Newport Boulevard
P.O. Box 1768
Newport Beach, CA 92658-8915
Attention: Assistant City Manager
TO: COUNTY
County of Orange
Health Care Agency
HCA/Facilities Operations
405 W.5th Street, Suite 610
Santa Ana, California 92701
Attention: Manager
Notices to STATE shall be given in accordance with Section 18 of the Master Lease.
26. ASSIGNMENT AND SUBLETTING
This Sublease is made solely in furtherance of the cooperative Project described in the Cooperative
Agreement and the Operating Agreement. COUNTY shall not assign this Sublease in any event and
shall not sublease the Premises or any part thereof and will not permit the use of the Premises by anyone
other than the COUNTY.
BBSC City -County Sublease
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27.
ATTACHMENTS
2
3
This
Sublease includes the following, which are attached hereto and made a part hereof -
4
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I. GENERAL CONDITIONS
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Il. EXHIBITS
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A. Exhibit A: Description - Premises
9
B. Exhibit B: Plot Plan — Premises
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C. Exhibit C: Plans and Specifications
11
D. Exhibit A-1: Description — Premises used to determine County's proportionate share of cost
12
of City Services for the BBSC.
13
E. Exhibit B-1: Plot Plan — Premises used to determine County's proportionate share of cost of
14
City Services for the BBSC.
15
F. Master Lease
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IN WITNESS WHEREOF, the parties have executed this Sublease the day and year first above
I written.
APPROVED AS TO FORM:
CITY OF NEWPORT BEACH
BY: _..
City Attorney
DATE: 1 IN l u
CIT`
Edward D. Selich, Mayor
DATE: % L a. -IJ O r
RECOMMENDED FOR APPROVAL:
Resources & Development Management Department
APPROVED AS TO FORM
OFFICE OF THE COUNTY COUNSEL
BY:)'w�/� -
Deputy
SIGNED AND CERTIFIED THAT A
COPY OF THIS DOCUMENT HAS BEEN
DELIVERED TO THE CHAIRMAN OF
THE B ARD.
1J1
I)- RLENE J. BLOOM
Clerk of the Board of Supervisors
of Orange County, California
BBSC City -County Sublease
City Clerk
COUNTY
' V COUNTY OF ORANGE
CAI
BY: _
Chairman, Board of Supervise s
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GENERAL CONDITION(S)
1. SUBLEASE ORGANIZATION
The various headings in this Sublease, the numbers thereof, and the organization of the Sublease into
separate sections and paragraphs are for purposes of convenience only and shall not be considered
otherwise.
2. INSPECTION
CITY or its authorized representative shall have the right at all reasonable times and upon reasonable
advance notice to COUNTY to inspect the Premises to determine, if COUNTY is complying with all the
provisions of this Sublease.
3. SUCCESSORS IN INTEREST
Unless otherwise provided in this Sublease, the terms, covenants, and conditions contained herein shall
apply to and bind the heirs, successors, executors, administrators, and assigns of all the parties hereto,
all of whom shall be jointly and severally liable hereunder.
4. DESTRUCTION OF OR DAMAGE TO PREMISES
The provisions of the Master Lease (Section 34) shall govern CITY's and STATE's management of the
Premises in the event of destruction of or damage to Premises.
5. AMENDMENT
This Sublease sets forth the entire agreement between CITY and COUNTY and any modification must
be in the form of a written amendment signed by the CITY and COUNTY, and approved by the STATE.
6. PARTIAL INVALIDITY
If any term, covenant, condition, or provision of this Sublease is held by a court of competent
jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions hereof shall remain in
full force and effect and shall in no way be affected, impaired, or invalidated thereby.
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CONDITIONS
1 7. CIRCUMSTANCES WHICH EXCUSE PERFORMANCE
2
3 If either party hereto shall be delayed or prevented from the performance of any act required hereunder
4 by reason of acts of God, performance of such act shall be excused for the period of the delay; and the
5 period for the performance of any such act shall be extended for a period equivalent to the period of
6 such delay. Financial inability shall not be considered a circumstance excusing performance under this
7 Sublease.
8
9 8. STATE AUDIT
10
11 Pursuant to and in accordance with Section 8546.7 of the California Government Code, in the event that
12 this Sublease involves expenditures and/or potential expenditures of State funds aggregating in excess of
13 ten thousand dollars ($10,000), CITY shall be subject to the examination and audit of the Auditor
14 General of the State of California for a period of three years after final payment by COUNTY to CITY
15 under this Sublease. The examination and audit shall be confined to those matters connected with the
16 performance of the contract, including, but not limited to, the costs of administering the contract.
17
18 9. WAIVER OF RIGHTS
19
20 The failure of CITY or COUNTY to insist upon strict performance of any of the terms, conditions, and
21 covenants in this Sublease shall not be deemed a waiver of any right or remedy that CITY or COUNTY
22 may have, and shall not be deemed a waiver of any right or remedy for a subsequent breach or default of
23 the terms, conditions, and covenants herein contained.
24
25 10. HOLDING OVER
26
27 In the event COUNTY shall continue in possession of the Premises after the term of this Sublease, such
28 possession shall not be considered a renewal of this Sublease but a tenancy from month to month and
29 shall be governed by the conditions and covenants contained in this Sublease.
30
31 11. HAZARDOUS MATERIALS
32
33 CITY warrants that, to its knowledge, the Premises are free and clear of all hazardous materials or
34 substances. COUNTY acknowledges that CITY has never been in possession of the Premises and has
35 never conducted any survey or test of the Premises to determine if any hazardous materials or
36 substances are present.
37
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12. EARTHQUAKE SAFETY
CITY warrants that the Premises are in compliance with all applicable seismic safety regulations
and building codes. COUNTY has been informed and acknowledges that the BBSC Complex and the
Premises is on an island, and is subject to hazards from liquefaction. The BBSC Buildings are designed
to move freely in an earthquake. COUNTY assumes the risks of injury and damage from earthquake,
including liquefaction and movement, in connection with this Sublease, the Operating Agreement and the
Cooperative Agreement. COUNTY unconditionally waives any claim of damage or liability against
CITY and STATE, their officers, agents and employees for injury or damage from such hazards.
COUNTY further indemnifies and holds harmless the CITY and STATE, their officers, agents and
employees against any and all liability, claims, demands, damages, costs (including costs and fees
incurred in defense of such claims) expenses, and amounts paid in settlement arising from any injury or
damage to any persons or property in or about the Premises due to such hazards.
(b) COUNTY is encouraged to plan and prepare for earthquakes and to take appropriate steps
to secure and anchor furniture, equipment, machines, containers and other objects in the Premises. The
California Seismic Safety Commission publication, The Commercial Property Owner's Guide to
Earthquake Safety (available on the internet at http://www.seismic.ca.gov/pub/CSSC 1998-
01_COG.pdf) contains information and recommendations regarding pre -earthquake planning. The Guide
suggests precautions such as, but not limited to, the following: writing down evacuation, fire response,
search -and rescue, and first aid procedures and training employees to follow them; listing and acquiring
basic emergency supplies, including fire extinguishers, crescent and pipe wrenches to turn off gas and
water supplies, first-aid kits and handbooks, flashlights with extra bulbs and batteries, and portable radios
with extra batteries; setting up an ongoing program to reduce earthquake weaknesses in the Premises; and
training employees by holding drills, establishing responsibilities for carrying out the emergency
response plan and teaching them to act immediately to put out fires.
13. QUIET ENJOYMENT
CITY agrees that, subject to the terms, covenants and conditions of this Sublease, COUNTY may, upon
observing and complying with all terms, covenants and conditions of this Sublease, peaceably and
quietly occupy the Premises.
14. WAIVER OF JURY TRIAL
Each party acknowledges that it is aware of and has had the advice by Counsel of its choice with respect
to its rights to trial by jury, and each party, for itself and its successors and assigns, does hereby
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I expressly and knowingly waive and release all such rights to trial by jury in any action, proceeding or
2 counterclaim brought by any party hereto against the other (and/or against its officers, directors,
3 employees, agents, or subsidiary or affiliated entities) on or with regard to any matters whatsoever
4 arising out of or in any way connected with this agreement and/or any claim of injury or damage.
5
6 15. GOVERNING LAW AND VENUE
7
g This Sublease has been negotiated and executed in the State of California and shall be governed by and
9 construed under the laws of the State of California. In the event of any legal action to enforce or
10 interpret this agreement, the sole and exclusive venue shall be a court of competent jurisdiction located
11 in Orange County, California, and the parties hereto agree to and do hereby submit to the jurisdiction of
12 such court, notwithstanding Code of Civil Procedure section 394.
13
14 16. TIME
15
16 Time is of the essence of this Sublease.
17
18 17. FORCE MAJEURE
19
20 If either CITY or COUNTY shall be delayed or prevented from the performance of any act required
21 hereunder by reason of the acts of God, governmental restrictions, regulations or controls (except those
22 reasonably foreseeable in connection with the uses and activities contemplated by this Sublease) or other
23 cause without fault and beyond the control of the party obliged (except financial inability), performance
24 of such act shall be excused for the period of the delay and the period for the performance of any such
25 act shall be extended for a period equivalent to the period of such delay. Nothing in this clause shall
26 excuse COUNTY from prompt payment of any sums due or any other charge required of COUNTY,
27 except as may be expressly provided in this Sublease.
28
29
30 //
31 //
32 //
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CONDITIONS
Exhibit A
LEASE DESCRIPTION
Project No.: GA 1254-220
Project: Water Quality Laboratory at
Back Bay Science Center
Date: January 17, 2008
Written By: Ronald Inouye
All the Premises shown crosshatched on a plot plan marked Exhibit B, attached hereto
and made a part hereof, comprising of 3,980 square feet of the first floor of the Back Bay
Science Center, located at 600 Shellmaker Road, Newport Beach, County of Orange,
State of California, together with the City, as Facilities Manager, providing its best efforts
to ensure the County of sufficient parking on site for a total of up to twelve (12) parking
spaces.
NOT TO BE RECORDED
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PREMISES
Plot Plan 220 Prepared By: COUNTY OF ORANGE
Water Quality Laboratory Ronald Inouye RDMD/REAL ESTATE
Back Bay Science Center
600 Shellmaker Road
Newport Beach, CA Date: 11/14/2006
EXHIBIT B
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600 ShetIntaker We,*:
Newport Bemth, CA
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Exhibit C - Plans & Specifications
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BACH BAY SCIENCE CENTER
SOO Shelling/ow Island
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r11Y Og NEAPOR BEACH
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39 of 59
Exhibit C - Plans & Specifications
4. tAt Mew
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40 of 59
Exhibit C - Plans & Specifications
4
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PARTIAL PLAN AT ROOF INTERSECTION
BACK SAY SCIENCE CENTER
SOO Shelmaker Miami
Nem:on Beach. CA
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S5.5
41 of 59
Exhibit C - Plans & Specifications
(6)
4477 774 ,47 47.7 71
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SOON.ponShetrio1c8eacher IlascAnd
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44 of 59
Exhibit C - Plans & Specifications
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Exhibit C - Plans & Specifications
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Exhibit C - Plans & Specifications
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Exhibit C - Plans & Specifications
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50 of 59
Exhibit C - Plans & Specifications
FLOOR PLAN
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Exhibit Al
Description — Premises Used to Determine County's Proportionate Share of Cost of
City Services for the Back Bay Science Center
Project No.: 220
Date: November 14, 2006
Project: Water Quality Laboratory at Written By: Ronald Inouye
Back Bay Science Center
For purposes of paragraph 13, entitled, "REIMBURSEMENT FOR COST OF CITY
SERVICES (N)," Premises shall also include the sixty-seven (67) stall parking lot, all
three (3) buildings consisting of four (4) wings, surrounding berm, cobble ground,
colored and textured concrete and simulated wood boardwalk, all constructed in Phase
One of the Back Bay Science Center and shown on Exhibit Bl.
NOT TO BE RECORDED
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Exhibit 8-1
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Plot Plan 220
HCA/PH/Water Quality Lab
600 Shellmaker Road
Newport Beach, CA
Prepared By:
Ronald Inouye
Date: 12/1912006
COUNTY OF ORANGE
RDMD/REAL ESTATE
STATE OF CALIFORNiA
STANDARD FORM LEASE AGREEMENT
LEASE CO\'ERilvG PREMISES LOCATED AT
( \I.IFORN A DEP:\RT\iE\T OF FISH AND (:Ai\iE
I'I'1'ER NE.WPORT 13:\\' F('OLOGI(:11, RESERVE
BACK i3;\\ SCIENCE CENTER
600 Si-IEI_I.\i:\kER ROAD
N E\\'PORT BE.1CH. (':\i.1FOR\I:1 92660
•GENC'
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S \\ DIE(:(. ( \i.lEOR\i4 92123
DEPARTMENT OF FISH AND GAME
SOUTH COAST REGION
THiS LEASE, dated for reference purposes only as of , 2007, is made by and
hetween the State of California.. acting by and through its Department of Fish and Game, hereinafter referred to
as the STATE, and the City of Newport Beach, a charter City and Municipal Corporation, hereinafter referred
to as the LESSEE. STATE 1 and LESSEE are sometimes referred to as the "Parties" to this Lease.
BAC'KGROUN D
A. The STATE is the owner of certain real property located at 600 Shellmaker Roacl. Newport
Beach. California. commonly known as Shellmaker island (the "Property"); and
B. The Property is part of the STATE's Upper Newport Bay Ecological Reserve (the "Reserve").
'File primary purpose of the Reserve is to protect rare and endangered wildlife, aquatic organisms and critical
habitat. and specifically to preserve and enhance a coastal salt marsh ecosystem; and
C. Pursuant to Fish and Game Code Section 1585, the -STATE is authorized to construct facilities
and conduct programs in ecological reserves it selects to provide natural history education and recreation if
those facilities and programs are compatible \with the protection of the biological resources of the reserve:. and
D. This Lease is entered into pursuant to the Cooperative Agreement dated August 1 7. 2004 (the
•-Cooperative Agreement") among S l'AI E, LESSEE, the County of Orange (the "County") and The Regents. Of
the University of California on behalf of the University of California at Irvine ("UCI"). regarding the planning.
funding and construction of the Back Ra\, Science ('enter project to replace existing facilities Ior
educational interpretive programs. water quality testing, and office staff, and including trails, \vctland.s
rehabilitation and ancillary parking and utilities on a portion of the Property (the "Project"): and
F. -\ Negative Declaration for the Project was prepared pursuant to the provisions of they California
Environmental Quality Aci. On September 30. 2003, the STATE filed a Notice of Determination tom the
Project with the State Clearinghouse: and
l . The Project includes certain Facilities and improvements which the Parties refer to as the EMS(
Complex. The "13BSC Complex" consists of an approximate 13,000 square foot permanent enclosed structure
comprised of three new buildings containing a total of four wings located on the Property (the "BBSC'
(Buildings..): as well as parking areas. common areas and walkways on Shellmaker Island, but excluding planted
berms. interpretive pathways. and the demonstration marsh; and
G. LESSEE has constructed or will construct the BBSC Complex under the hiteragency Agreement
for Construction of a Back Bay Science Center at Upper Newport Bay Ecological Reserve, Agreement Number
P0380039, entered into in July 2004, and the BBSC Administrative Wing Construction Contract, Agreement
Number P0650019, commencing February 2007, each between STATE and LESSEE; and
H. LESSEE, the County, the STATE, and UCI are also parties to the Back Bay Science Center
Complex Operating Agreement dated , 2007 (the "Operating Agreement"). Among other things,
the Operating Agreement establishes a Facilities Working Group for the BBSC Complex (the "Facilities
Group") to identify facilities needs and plan for property maintenance, capital projects and improvements to the
BBSC Complex and identifies functions and obligations of its respective parties in connection with the BBSC
Complex; and
1. Pursuant to Section 420 of the City Charter of the City of Newport Beach, the City is prohibited
from entering into Leases for a term of more than twenty-five (25) years, or any extension thereof;
J. LESSEE desires to lease from STATE certain space within the BBSC Buildings for the
consideration and upon and subject to the terms, covenants and conditions of this Lease.
NOW, THEREFORE, the Parties hereby mutually agree as follows:
LEASE
PREMISES 1. (a) STATE hereby leases to LESSEE and LESSEE hereby leases from STATE for
DESCRIPTION the term of this Lease, in exchange for the consideration and upon all of the other terms,
covenants, and conditions set forth in this Lease, the approximately 4,000 square feet of
rentable area designated as the "Water Quality Lab" located within the "OC Water Quality
Lab/Storage" wing of the BBSC Complex, as shown on the Site Plan attached to this Lease
as Exhibit A (the "Premises"). The Parties agree that the Premises represent approximately
32 percent of the rentable area of the BBSC Complex.
(b) LESSEE shall also have the non-exclusive right to use, in common with others
entitled to such use, the Common Areas (as defined below) of the BBSC Complex.
(c) LESSEE has inspected the plans for the BBSC Complex, the BBSC Buildings
and the Premises and agrees that the square footage of the BBSC Complex, the BBSC
Buildings and the Premises set forth in this Lease is only approximate and the STATE does
not warrant or guarantee the actual area thereof.
TERM 2. (a) The term of this Lease shall be for 25 years, commencing on the
Commencement Date, as defined below, and ending on the day before the 25'x' anniversary
of the Commencement Date, unless renewed for an additional Option Term(s) (as defined
below) or sooner terminated pursuant to any provision of this Lease.
(b) So long as at the time of exercise and at the time the Option Term commences:
(i) LESSEE is not in breach or default under this Lease, (ii) the Project is actively operating
and expected to continue in active operation, and (iii) LESSEE and each subtenant, if any,
has performed and is continuing to perform all of its functions and obligations in
connection with the BBSC Complex, then LESSEE will have the option to renew the Lease
for up to three successive additional terms of five (5) years each (each an "Option Term").
Any such renewal shall be upon the same teens, covenants and conditions of this Lease,
except that the consideration for the Lease during the Option Tern will be determined as
set forth below. LESSEE will exercise each option, if at all, by giving STATE written
notice (the "Option Notice") at least 6 months but not more than 12 months before the
expiration of the initial term of this Lease or the then current Option Tenn, as applicable.
(c) LESSEE and STATE will have 180 days after STATE receives the Option
Notice within which to agree on the consideration for the Option Term based upon factors
which may include (but shall not be limited to) the condition and projected useful life of the
Premises, its fair rental value and the operational and other needs of the BBSC Complex as
identified by the Facilities Group, and any unamortized value of Lessee's contribution to
the construction or improvement of the BBSC Complex. If STATE and LESSEE agree on
such consideration within the 180 -day period, they shall amend this Lease accordingly. If
STATE and LESSEE are unable to so agree, this Lease shall not be renewed and shall
instead expire at the end of the then -current term. The option granted to LESSEE is
personal to LESSEE and may not be exercised or assigned, voluntarily or involuntarily, by
or to any person or entity other than the original LESSEE named in this Lease. The second
renewal option cannot be exercised unless the Lease is renewed for the first Option Term.
COMMENCEMENT 3. The Commencement Date of this Lease shall be the date upon which LESSEE's
DATE building department issues a certificate of occupancy or temporary certificate of occupancy
for the Premises. However, if the Commencement Date has not occurred by .Ianuary 1,
2008 then this Lease shall terminate and be of no further force or effect. LESSEE shall
have no right to occupy the Premises prior to the Commencement Date. Upon the
Commencement Date, the temporary Ground Lease (Shellmaker Island) between STATE
and LESSEE dated December 17, 2002 shall terminate.
CONSIDERATION 4. The STATE is entering into this Lease in consideration of the Cooperative
Agreement, the Operating Agreement, the performance by LESSEE and the County of their
respective duties and obligations under the Cooperative Agreement and the Operating
Agreement, and LESSEE's performance of its obligations (including LESSEE's provision
of janitorial services to the BBSC Complex) as set forth in this Lease.
USE 5. The Premises shall be used and occupied only as a County -wide water quality
testing facility operating as part of the Project pursuant to the Cooperative Agreement and
the Operating Agreement, including any amendment(s) to those Agreements (the
"Pennitted Use"), and for no other purpose without the prior written consent of STATE,
which STATE may withhold. LESSEE shall not use or permit the use of the Premises in a
manner that is unlawful, creates damage, waste or a nuisance, or that unreasonably annoys
or disturbs occupants of, or causes damage to, neighboring premises or properties.
AS -IS LEASE 6. LESSEE hereby accepts the Premises and the BBSC Complex in its AS -IS
condition existing as of the Commencement Date. LESSEE acknowledges that STATE has
not made any representation or warranty as to the present or future suitability of the
Premises for LESSEE's intended use.
LESSEE AS 7. As part of the consideration for this Lease, LESSEE shall be the Facilities
PROJECT Manager for the BBSC Complex as set forth in the Operating Agreement. Nothing in this
FACILITIES Lease shall limit any right of LESSEE to receive any sum payable by the County or UCI to
MANAGER LESSEE as Facilities Manager under the Operating Agreement, including but not ]invited to
payment or reimbursement of operating expenses of the Project. However, STATE shall
have no obligation to reimburse LESSEE for maintenance (including janitorial) and repair
expenses for the BBSC Complex, as the payment of such costs by LESSEE is also a part of
the consideration for this Lease.
ACCESS 8. Subject to the other terms and conditions of this Lease and applicable legal
restrictions (including, without limitation, Cal. Code Regs., Title 14, Section 630 et sec/.),
STATE will provide LESSEE with reasonable access to the BBSC Complex (other than
STATE work and storage areas) 24 hours a day, 365 days per year, as necessary for
LESSEE to perform its obligations under this Lease, the Operating Agreement and the
Cooperative Agreement.
UTILITIES AND 9. (a) LESSEE agrees to make all necessary arrangements for, and pay the cost of,
SERVICES all gas, electric, water and other utility services associated with the use of the Premises
during the term of this Lease, including but not limited to connection costs. If any such
services are not separately metered to LESSEE, then LESSEE shall pay a reasonable
proportion of the Premises' utility costs of all charges jointly metered with other portions of
the BBSC Complex, the Project or the Property.
(b) LESSEE shall comply with all reasonable conservation measures, if any,
requested by STATE as a result of any "energy crisis" or any curtailment of gas, electricity,
water or other utilities serving the Premises.
(c) Installation, monthly billing, maintenance, repair, removal and replacement of
any telecommunications equipment, lines or systems in or serving the Premises shall be the
sole responsibility of the LESSEE.
JANITORIAL 10. LESSEE shall, at LESSEE's expense, have or hire janitorial services sufficient to
SERVICES maintain the BBSC Complex, including without limitation, the Teaching Lab Wing, the
Administrative Wing, and the public restrooms in a clean and well maintained condition,
and properly dispose of all trash in the central trash collection area (dumpster area) of the
BBSC Complex. The janitorial services for which LESSEE is responsible shall include
those identified in Exhibit B attached to and made a part of this Lease and such other
services, if any, as the Facilities Group may specify from time -to -time.
MAINTENANCE 11. (a) LESSEE shall, at LESSEE's expense, keep the Premises and the other
AND REPAIRS portions of the BBSC Complex (other than STATE work and storage areas) in good order,
condition and repair, including without limitation, the plumbing, pipes, heating, ventilation,
air conditioning, electrical, lighting facilities, fire protection and/or smoke detection
system, fire sprinkler system, fixtures, walls, ceilings, roof, floors, windows and window
frames, gutters, drains and downspouts, doors, and walkways, except to the extent of UCI's
responsibilities (if any) for any of the foregoing under the Ground Lease with STATE dated
December 15, 2004. LESSEE shall not be responsible for maintaining the trails, walkways
or wetland areas of the Reserve or the Property that are outside of the BBSC Complex.
(b) The new condition of the BBSC Complex at the time of the execution of this
Lease leads the Parties to anticipate that Major Capital Improvements (as defined below) to
the BBSC Complex to replace existing items which have worn out (e.g., roofing and siding)
should not be necessary for approximately 15 to 20 years. However, Major Capital
Improvements could become necessary for other reasons, such as to correct defects in the
construction of the BBSC Complex, comply with any governmental law or regulation that
was not applicable to the BBSC Complex at the time it was constructed, or because of total
or partial destruction of the BBSC Complex or the condemnation of a portion of the BBSC
Complex. "Major Capital Improvements" as used in this Lease shall mean improvements
costing more than $30,000 in Current Dollars (as defined in Section 32) and which under
generally accepted accounting principles and practices are properly classified as capital
improvements. The Parties agree that Major Capital Improvements to replace existing
items, such as the roof, siding, or heating or air conditioning systems, shall be planned,
budgeted and paid for as set forth in the Operating Agreement, and are outside the scope of
the maintenance and repair activities that the City is obligated to perform and pay for under
this Lease.
(c) LESSEE shall, at LESSEE's expense, maintain and keep lighted during BBSC
Complex operational hours the lobbies, reception areas, common meeting rooms, corridors,
and common entrances to, and all public restrooms of, the BBSC Complex.
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(d) LESSEE agrees that in no event shall STATE be required to perform any
maintenance, repairs or improvements in, to or on the Premises pursuant to this Lease, and
LESSEE shall keep the Premises in good order, condition and repair at its own expense.
RULES AND 12. STATE shall have the right from time -to -tune to adopt, modify, amend and
REGULATIONS enforce reasonable rules and regulations concerning the Conunon Areas of the Project. The
"Common Areas" shall be defined to include common entrances, lobbies, corridors, public
restrooms, parking areas, loading and unloading areas, trash areas, and walkways. LESSEE
shall abide by and conform to such rules and regulations and shall cause its agents,
employees, contractors, invitees and sublessees to so abide and conform. STATE shall
provide ninety (90) days' notice of changes to these rules and regulations to LESSEE
unless STATE finds that an emergency exists that requires the rules and regulations to be
enacted earlier.
LESSEE'S 13. Except as otherwise provided in this Lease, LESSEE shall, at LESSEE's
COMPLIANCE expense, comply promptly with all applicable laws, statutes, regulations, codes, orders and
ordinances (collectively, "Applicable Laws") which relate in any manner to the Premises,
the use of the Premises, or any activities of LESSEE under this Lease. LESSEE shall,
within 10 days after receipt of written request by STATE, provide STATE with copies of
all permits and other documents and information evidencing LESSEE's compliance with
any Applicable Laws specified by STATE. Immediately upon receipt of any threatened or
actual claim, notice, citation, warning, complaint or report pertaining to or involving the
failure or alleged failure of LESSEE or the Premises to comply with any Applicable Laws,
LESSEE shall notify STATE in writing (with copies of any documents involved).
STATE'S RIGHTS 14. If LESSEE fails to perform any of its obligations under this Lease, STATE may
at its option (but shall not be required to) perform such obligations on LESSEE's behalf,
and the cost of such perfonnance together with interest thereon at the maximum rate then
allowable by law shall become due and payable by LESSEE to STATE within 30 days after
STATE's written request for payment.
DEFAULT AND 15. LESSEE shall be in default of this Lease if LESSEE fails to observe or perform
REMEDIES any of the provisions of this Lease or the Operating Agreement on the part of LESSEE to
be kept and performed and if such failure continues for a period of 30 days after receipt of
written notice from STATE to LESSEE. Provided, however, that if the nature of
LESSEE's breach is such that more than 30 days is reasonably required for its cure, then it
shall not be deemed to be a default if LESSEE commences the cure within said 30 -day
period and thereafter diligently pursues the cure to completion. In the event of a default by
LESSEE, the STATE shall endeavor to provide County notice of such default at the address
provided in the County Sublease (as defined in Section 17), if the County Sublease is then
in effect. Without limiting the obligations of LESSEE, the County shall have the ability to
cure any such default upon the same terms and conditions as the LESSEE under this
section, and any such cure by the County shall be deemed a cure by the LESSEE. In the
event of a default by LESSEE, the STATE may elect to terminate this Lease by any lawful
means and pursue any other remedy now or hereafter available at law or in equity. In the
event of termination of this Lease, STATE shall have the right to reenter the Premises and
every part thereof and to remove and store at LESSEE's expense all property therefrom and
to repossess and occupy the Premises. In the event STATE terminates this Lease pursuant
to this paragraph, the STATE shall not be required to pay LESSEE any sum or sums
whatsoever.
HOLDING OVER 16. Any holding over after the expiration of the tens of this Lease or any renewal
period with the consent of the STATE, express or implied, shall be deemed to be a tenancy
only from month-to-month. Any such month-to-month tenancy shall be upon and subject to
all the terns and conditions of this Lease insofar as applicable.
ASSIGNMENT AND
SUBLETTING
NOTICES
17. This Lease is made solely in furtherance of the cooperative Project described in
the Cooperative Agreement and the Operating Agreement. LESSEE shall not assign this
Lease in any event and shall not sublease the Premises or any part thereof and will not
permit the use of the Premises by anyone other than the LESSEE. Provided, however, that
LESSEE may sublease the Premises to the County for a term not to exceed the teen of this
Lease, pursuant to a sublease in form and substance reasonably acceptable to the STATE
("County Sublease"), and upon the express condition that such sublease shall terminate if
the County at any time withdraws from the Project or fails or ceases to perform the Project
functions for which the County is responsible under the Cooperative Agreement, the
Operating Agreement or the County Sublease.
Regardless of STATE's consent, no subletting or assignment shall release LESSEE of
LESSEE's obligation or alter the primary duty of LESSEE to observe and perform all of the
obligations of LESSEE under this Lease. Consent to one assignment or subletting shall not
be deemed consent to any subsequent assignment or subletting. In the event of a breach by
any assignee or successor of LESSEE, in the performance of any of the terms of this Lease,
STATE may proceed directly against LESSEE without the necessity of exhausting remedies
against said assignee or successor.
18. All notices, requests, consents, and other communications (each a "Notice")
required, provided for or given under this Lease shall be in writing, and (a) personally
delivered (including by means of professional messenger service), (b) sent by recognized
overnight courier, (c) deposited in the United States mail, postage prepaid, return receipt
requested, or (d) transmitted by receipt -confirmed facsimile, to the intended recipient at the
address(es) or facsimile number(s) set forth below.
Notice shall be deemed received upon the earlier of (i) if personally delivered or sent
by overnight courier, the date of delivery, (ii) if mailed as provided above, on the date of
receipt or rejection as shown on the return receipt, or (iii) if transmitted by facsimile, when
received by the other party if received Monday through Friday between 9:00 a.m. and
5:00 p.m. Pacific Time, so long as such day is not a state or federal holiday, and otherwise
on the next business day. A copy of any Notice transmitted by facsimile shall be mailed to
the intended recipient on the same date as the facsimile transmission.
Notices shall be addressed as follows:
To the LESSEE:
City of Newport Beach
City Manager
3300 Newport Boulevard
Newport Beach, CA 92658-8915
Telephone: (949) 644-3000
Facsimile: (949) 644-3020
With a Copy to:
City of Newport Beach
City Attorney
3300 Newport Boulevard
Newport Beach, CA 92658-8915
Telephone: (949) 644-3131
Facsimile: (949) 644-3139
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To the STATE:
Department of Fish and Game
South Coast Region
Regional Manager
4949 Viewridge Avenue
San Diego, CA 92123
Telephone: (858) 467-4201
Facsimile: (858) 467-4239
With a Copy to:
Department of Fish and Game
Office of the General Counsel
General Counsel
1416 Ninth Street, 12`x' Floor
Sacramento, CA 95814
Telephone: (91.6) 654-3821
Facsimile: (916) 654-3805
Notice of change of address or facsimile number shall be given by written notice in the
manner described in this section.
TENANT 1.9. Tenant improvements to the Premises shall be the responsibility of LESSEE and
IMPROVEMENTS shall be completed by November 1, 2008 at no cost to STATE, pursuant to the Work Letter
Agreement attached to this Lease as Exhibit C and incorporated herein by this reference.
ALTERATIONS 20. (a) Except as provided in Section 19, LESSEE shall not, without the prior written
AND consent of STATE, make any alterations, improvements, additions or Utility Installations
IMPROVEMENTS (as defined below) in, on or about the Premises, except for non-structural interior
alterations not visible from the exterior of the Premises and not exceeding $10,000 in total
costs during any 12 -month period or $100,000 in cumulative costs over the term of this
Lease.
(b) Except as otherwise provided in Section 20 (a), above, LESSEE shall make no
change or alteration (including Utility Installation) to any portion(s) of the Premises, the
BBSC Buildings, or the BBSC Complex without the prior written consent of STATE. No
such alterations or improvements shall be permitted to begin until the STATE has approved
the complete plans and specifications for the project, the plans to be prepared by an
architect licensed to practice architecture in the State of California. LESSEE shall submit
the complete plans and specifications for the project to the STATE for review and approval,
which approval shall not be unreasonably withheld. STATE shall respond with its approval
or denial within 60 days of submittal, unless a longer period is reasonably necessary for the
STATE to comply with its obligations under the California Environmental Quality Act
(CEQA) with respect to the proposed project. As used in this Lease, "Utility Installation"
shall mean carpeting, window coverings, air lines, power panels, electrical distribution
systems, lighting fixtures, space heaters, air conditioning and plumbing. STATE may
require that LESSEE remove any or all alterations, improvements, additions or Utility
Installations to the Premises at the expiration of the term and restore the Premises to their
prior condition. Should LESSEE make any alterations, improvements, additions or Utility
Installations for which the consent of STATE is required without first obtaining such
consent, STATE may require LESSEE to immediately remove any or all of the same and
restore the BBSC Complex, the BBSC Buildings and the Premises to their prior condition.
SIGNAGE
(c) Any alterations, improvements, additions or Utility Installations that LESSEE
shall desire to make and which require the consent of STATE shall be presented to STATE
in writing with proposed detailed plans. If STATE shall give its consent, the consent shall
be deemed conditioned upon LESSEE acquiring all proper permits to do so from
appropriate governmental agencies, the furnishing of a copy of each permit to STATE
prior to the commencement of the work, and LESSEE's compliance with all terms and
conditions of such permits in a prompt and expeditious manner.
(d) Unless STATE requires their removal under Section 20 (b), all alterations,
improvements, additions and Utility hnstallations which may be made on the Premises shall
at the expiration or termination of the term become the property of STATE and remain
upon and be surrendered with the Premises. Despite the contrary provisions of Section
20 (b), LESSEE's machinery and equipment, other than that which is affixed to the
Premises so that it cannot be removed without material damage to the Premises, shall
remain the property of LESSEE and may be removed by LESSEE subject to the provisions
of Section 24.
21. LESSEE shall not place any sign upon the Premises, the BBSC Buildings or the
Project without the prior written consent of STATE. STATE hereby agrees that LESSEE
may develop and submit for approval kiosk -type signage and monument -style recognition
signage for the Project and Parking Lot. LESSEE shall submit plans for any proposed
signage to the STATE for review and approval, which approval shall not be unreasonably
withheld. STATE shall respond with its approval or denial within 60 days of submittal.
RIGHT TO ENTER 22. STATE shall have the right to enter the Premises at any time, in the case of an
emergency, and otherwise at reasonable times with reasonable advance verbal or written
notice to LESSEE (except in case of an emergency, when advance notice shall be
unnecessary), for the purpose of inspecting the condition of the Premises, verifying
compliance with this Lease, performing obligations of LESSEE which LESSEE fails to
perform in accordance with this Lease, or any other lawful STATE purpose.
SECURITY 23. Neither STATE nor LESSEE shall have any obligation to provide guard service or
MEASURES any other security measures to the BBSC Complex. LESSEE shall be responsible for the
protection of the Premises, LESSEE, its agents, employees, contractors, invitees, sublessees
and their property from the acts of third parties. In addition, should the Facilities Group
determine that guard service or other security measures are necessary or appropriate, then
LESSEE shall provide such guard service or security measures.
REMOVAL OF 24. All articles of personal property and all business and trade fixtures, machinery and
PROPERTY equipment owned and installed by LESSEE, at LESSEE's expense, on the Premises, shall
be and remain the property of LESSEE, and may be removed by LESSEE at any time
during the term of the Lease, provided that any and all wires, conduits, or pipe leading to
any fixtures may be left in place on said Premises at the option of LESSEE, provided the
same shall be insulated, plugged or otherwise treated in accordance with applicable
standard practices and Applicable Laws. Any such property of LESSEE not removed on or
before the last day of the term or any earlier termination of this Lease shall be deemed to
have been abandoned by LESSEE and may be disposed of or retained by STATE as
STATE may choose.
SURRENDER
25. On the last day of the term or any earlier termination of this Lease, LESSEE shall
surrender the Premises to STATE, with any appurtenances or improvements therein, clean
and free of debris, in good operating order, condition and repair, reasonable use and wear
thereof excepted. LESSEE shall remove any and all personal property, trade fixtures,
machinery and equipment and repair any damage to the Premises, the BBSC Buildings or
the BBSC Complex occasioned by the installation or removal of those items.
8
COMPLIANCE 26. LESSEE shall, at its sole cost and expense, comply promptly with all Applicable
WITH LAWS; Laws, covenants and restrictions of record, and requirements in effect during the Term,
AMERICANS WITH pertaining to the Premises or LESSEE's use of or activities in, on, or about the BBSC
DISABILITIES ACT Buildings and the Project. Since compliance with the Americans with Disabilities Act
("ADA") is dependent upon the specific use of the Premises, STATE specifically disclaims
any representation or warranty as to whether or not the Premises comply with ADA or any
similar legislation. If the use of the Premises requires modifications or additions to the
Premises in order to comply with ADA, LESSEE shall perform any such necessary work at
LESSEE's expense.
DEBT LIABILITY 27. STATE will not be liable for any debts, claims, liens, or encumbrances that arise
DISCLAIMER from the operation of this Lease.
RELATIONSHIP OF 28. LESSEE and any and all agents, employees, contractors, invitees and sublessees of
PARTIES LESSEE shall act in an independent capacity and not as officers, agents or employees of
STATE. The relationship of LESSEE and STATE is that of tenant and landlord: Nothing
in this Lease is intended, or shall be construed or interpreted, to create a partnership or
relationship other than that of tenant and landlord between LESSEE and STATE.
TAXES AND 29. LESSEE agrees to pay all lawful taxes, assessments or charges which at any time
ASSESSMENTS may be levied upon this Lease or any interest of LESSEE in the Premises. STATE
specifically calls to the attention of LESSEE the fact that this Lease may create a
possessory interest subject to property taxation and LESSEE may be subject to the payment
of property taxes levied on such interest. LESSEE alone shall pay any such tax.
HOLD 30. LESSEE shall indemnify, defend and hold harmless the STATE, its officers,
HARMLESS AND directors, employees and agents, from and against any and all liability, losses, costs,
INDEMNIFICA- expenses (including attorneys' fees), claims and damages (collectively, "Claims") by reason
TION of any injury (including death) to any person or persons, including LESSEE and any
subtenant(s), or toss of or damage to property of any kind whatsoever and to whomsoever
belonging, including LESSEE and any subtenant(s), arising out of or in connection with
this Lease, the use or occupancy of the Premises, or LESSEE's presence or activities on or
about the BBSC Complex, the BBSC Buildings or the Premises, except those arising out of
the sole negligence or willful misconduct of the STATE.
To the extent allowed by law, STATE shall inderrinify, defend and hold harmless
LESSEE, its officers, directors, employees and agents, from and against any and all Claims
against LESSEE arising out of the sole negligence or willful misconduct of STATE in
connection with, or arising out of this Lease or the presence or activities of officers or
employees of the STATE on or about the BBSC Complex, the BBSC Buildings or the
Premises.
ABANDONMENT 31. If the LESSEE abandons, vacates or surrenders the Premises, or is dispossessed by
OF PREMISES process of law, any personal property, trade fixtures, machinery and equipment belonging
to the LESSEE and left on the Premises shall be deemed to be abandoned, at the option of
the STATE. Failure by LESSEE to occupy and/or use the .Premises for a period of thirty
(30) days or longer shall constitute abandonment by LESSEE.
INSURANCE 32. LESSEE, at its sole cost and expense, shall Insure its activities In connection With
this Lease and obtain and keep in force at least the following insurance:
(a) Commercial General Liability insurance protecting LESSEE and STATE
against claims for bodily injury, personal injury and property damage based upon or arising
out of the use, occupancy, maintenance or improvement of the Premises or the BBSC
Complex. Such insurance shall be on an occurrence basis providing single limit coverage
in an amount not less than Two Million Dollars ($2,000,000) per occurrence. The policy
shall not contain any intra -insured exclusions as between insured persons or organizations
but shall include "contractual liability" coverage for the performance of LESSEE's
indenuzity obligations under this Lease.
(b) Property, fire and extended coverage insurance covering all risks of direct
physical loss or damage to the Premises, including the perils of flood and earthquake,
including coverage for demolition and debris removal and the enforcement of Applicable
Laws requiring the upgrading, demolition, reconstruction or replacement of any portion of
the Premises as the result of a covered loss. Such insurance shall be in an amount equal to
the full insurable replacement cost of the Premises, as the same shall exist from time-to-
time, and shall contain an agreed valuation provision in lieu of any coinsurance clause and
inflation guard protection causing an. increase in the annual property insurance coverage
amount by a factor of not less than the adjusted Index (as defined below).
(c) Automobile liability insurance covering owned, non-owned, hired or
scheduled vehicles with a combined single limit of not less than Two Million Dollars
($2,000,000) per occurrence.
(d) Worker's compensation and/or employer's liability insurance in form and
amount covering LESSEE's full liability as required under federal and state law, if
applicable.
Each policy of insurance shall be issued by a reputable insurer admitted to transact
business in the State of California and maintaining during the policy term a General
Policyholder's Rating of at least A- VII, as set forth in the most current issue of "Best's
Insurance Guide". All sums set forth in this Section 32 shall be maintained in Current
Dollars (as defined below). LESSEE's obligation to carry the insurance required by this
Lease may be brought within the coverage of a so-called blanket policy or policies of
insurance carried and maintained by LESSEE, so long as the coverage afforded to STATE
will not be reduced or diminished by reason of the use of such policy or policies and all
requirements set forth in this Section 32 are otherwise satisfied.
LESSEE shall, prior to the Commencement Date, deliver to STATE copies, or other
evidence acceptable to STATE, of the existence and amounts of the required insurance.
The policies referred to under subsections (a), (b) and (c) above shall name STATE, its
directors, officers, employees and agents as additional insureds by endorsement. No such
policy shall be cancelable, non-renewable, or subject to material modification except after
at least 30 days prior written notice by the insurer to STATE. LESSEE shall, at least 30
days prior to the expiration of any such policy, deliver to STATE evidence of renewal or a
new policy of insurance which meets the requirements of this Lease.
"Current Dollars" as used in this Lease shall mean a dollar amount calculated by
multiplying a dollar amount specified in this Lease by a fraction, the numerator of which is
the Index (as defined below) last published prior to the anniversary of the Commencement
Date and the denominator of which is the Index last published prior to the Commencement
Date. "Index" as used herein shall mean the Los Angeles/Riverside/Orange County
Metropolitan Area Consumer Price Index (all items) for All Urban Consumers (Base Year
1982 — 1984 = 100) as published by the United States Department of Labor, Bureau of
Labor Statistics.
STATE shall not be liable for the payment of any premiums or assessments on the
insurance coverage required by this Section 32. LESSEE agrees that the insurance herein
provided for shall be in effect at all times during the term of this .Lease, all renewals
thereof, and any holdover periods.
The proceeds from the insurance referred to under subsection (b) above shall be applied
toward demolition, repair and reconstruction of the Premises or the BBSC Complex, as
applicable. All insurance carried by LESSEE shall be primary to and not contributory with
insurance carried by STATE, if any. STATE makes no representation or warranty that the
H
limits or forms of coverage of insurance specified in this Lease are adequate to cover
LESSEE or its property or the operations or obligations of LESSEE under this Lease. The
limits of insurance carried by LESSEE or required under this Lease shall not limit the
liability of LESSEE or relieve LESSEE of any obligation under this Lease.
Without affecting any other rights or remedies, LESSEE releases STATE and waives
LESSEE's entire right to recover damages against the STATE for loss of or damage to
property arising out of or incident to the perils required to be insured against in this Lease.
The effect of such release and waiver is not limited by the amount of insurance carried or
required, or by any deductible amounts applicable thereto. LESSEE agrees to have its
property damage insurance carrier waive any right to subrogation that it may have against
STATE, so long as the insurance coverage is not invalidated by such waiver.
STATE shall not be liable for injury to LESSEE or damage to the property of LESSEE,
LESSEE's employees, agents, invitees, subtenants, contractors, or any other person in or
about the Premises, nor shall STATE be liable for any injury to LESSEE's employees,
agents, invitees, subtenants or contractors, as a result of any condition of the Premises or
the BBSC Complex, from any cause, whether such damage or injury is caused by or results
from conditions arising in the Premises, any other portion of the BBSC Complex, or other
sources or places. Further, STATE shall not be liable for any damages arising from any act
or neglect of any other tenant or occupant of the Premises, the BBSC Complex, or the
Property, including but not limited to UCI.
NO STATE 33. STATE shall not be required to (and anticipates that it shall not) keep the
INSURANCE Premises, the BBSC Complex or any other portion of the Project or the Property insured
(including, without limitation, against fire, flood, earthquake or other casualty), and
LESSEE will make no claim of any nature against STATE by reason of any damage to the
Premises or the property of LESSEE in the event of damage or destruction by fire or other
cause, arising other than from or out of the sole negligence or willful misconduct of agents
or employees of the STATE in the course of their employment.
DAMAGE OR 34. (a) If the Premises are damaged by a risk required to be covered by the insurance
DESTRUCTION described in this Lease, then LESSEE shall repair or restore such damage as soon as
reasonably possible at LESSEE's expense and this Lease shall remain in full force and
effect.
(b) If the Premises are damaged by a risk not required to be covered by the
insurance described in this Lease, then LESSEE shall have the option to either (i) repair or
restore such damage as soon as reasonably possible at LESSEE's expense, this Lease
continuing in full force and effect, or (ii) give notice to STATE at any time within 45 days
after the date of such damage tenninating this Lease as of the date of, or such later date as
LESSEE may specify in, such notice. If notice of termination is given, STATE shall have
the right within 45 days after the receipt of such notice to give written notice to LESSEE of
STATE's election to repair such damage, in which event this Lease shall continue in full
force and effect. If STATE does not elect to repair, this Lease shall expire and any interest
of LESSEE in the Premises shall tenninate on the date of, or such later date specified in,
the notice of termination by LESSEE.
(c) If in STATE's judgment the Premises cannot be restored as required herein
under Applicable Laws, notwithstanding the availability of insurance proceeds, this Lease
shall be tenninated effective as of the date of the damage.
(d) Any repair or restoration by LESSEE pursuant to subsection (a) or (b) above
shall be commenced as soon as reasonably possible after the date of damage and prosecuted
diligently to completion at the earliest possible date. STATE shall not be required to carry
insurance of any kind on LESSEE'S property and shall not be required to repair any injury
or damage thereto by fire, flood, earthquake or other causes, or to make any restoration or
replacement of any paneling, decorations, partitions, ceilings, floor coverings, office
fixtures, machinery, equipment or any other improvements or property installed in the
Premises by or for LESSEE, and in case of damage LESSEE shall be required to restore or
replace the same at LESSEE's expense. LESSEE shall have no claim against STATE for
any loss suffered by reason of any such damage, destruction, repair or restoration.
(e) LESSEE shall have no right to terminate this Lease as a result of any
statutory provisions now or hereafter in effect pertaining to damage or destruction of the
Premises or the BBSC Complex, except as expressly provided herein, and LESSEE
expressly waives the provisions of California Civil Code Section 1932(2) and 1933(4) with
respect to any damage or destruction of the Premises.
CONDEMNATION 35. If the Premises or any portion thereof are taken under the power of eminent
domain or sold under the threat of the exercise of such power (all of which are referred to
in this Lease as "Condemnation"), then this Lease shall terminate as to the part so taken as
of the date the condemning authority takes title or possession, whichever first occurs. Any
award for the taking of all or any part of the Premises under the power of eminent domain
or any payment made under the threat of the exercise of such power shall be the property of
STATE, whether such award or payment shall be made as compensation for diminution in
value of the leasehold or the taking of the fee, or as severance damages. Provided,
however, that LESSEE shall be entitled to any award or payment for loss of.or damage to
LESSEE's trade fixtures and removable personal property. If this Lease remains in effect
after such Condemnation then STATE shall, to the extent of severance damages it receives
in connection with such Condemnation, repair or cause to be repaired any damage to the
Premises caused by the Condenunation except to the extent that LESSEE has been
reimbursed therefor by the condemning authority. LESSEE shall pay any amount in excess
of such severance damages required to complete the repair.
HAZARDOUS 36. The term "Hazardous Substance" as used in this Lease shall mean any product,
SUBSTANCES substance or waste the presence, use, manufacture, disposal, transportation or release
(either by itself or in combination with other materials) is either: (a) potentially injurious to
public health, safety or welfare, the environment or the Premises; (b) regulated or
monitored by any governmental authority; or (c) a basis for potential liability of STATE
under any applicable statute or common law theory. Hazardous Substance includes,
without limitation, hydrocarbons, petroleum, gasoline, and/or crude oil or any products, by-
products or fractions thereof.
LESSEE shall comply with all Applicable Laws, federal, state and local, pertaining to
the presence, generation, possession, storage, use, disposal, transportation or release of any
Hazardous Substance in, on or from the Premises, the BBSC Buildings or the Project. If
LESSEE knows or has reasonable cause to believe that a Hazardous Substance has come to
be located in, on, under or about the Premises, the BBSC Buildings or the Project, other
than in full compliance with Applicable Law, LESSEE shall immediately give verbal and
written notice of such fact to STATE, and provide STATE with a copy of any report,
notice, claim or other information which LESSEE has concerning such Hazardous
Substance. Verbal notice to STATE pursuant to this Section 36 may be given to any on-site
employee of STATE at the Back Bay Science Center.
LESSEE shall not cause or permit any Hazardous Substance to be spilled or released
in, on, under or about the Premises, the BBSC Buildings or the Project (including through
the plumbing or sanitary sewer system) and shall promptly, at LESSEE's expense, comply
with all Applicable Laws and take all investigatory and/or remedial action reasonably
recommended for the cleanup of any contamination and for the maintenance, security
and/or monitoring of the Premises, the BBSC Buildings, the Property, or other property in
the vicinity of the Premises, that was caused or materially contributed to by LESSEE or
involving any Hazardous Substance brought onto the Property during the term of this
Lease, by or for LESSEE or any third party acting with the consent, or under the direction
12
or control, of LESSEE.
LESSEE shall indemnify, defend, and hold harmless STATE, its officers, directors,
agents, and employees from and against any and all claims, liabilities, losses, costs,
expenses, damages, judgments, fines, and penalties arising out of or involving any
Hazardous Substance brought onto the Property or any portion thereof (including the
Premises or the BBSC Buildings) by or for LESSEE or any third party acting with the
consent, or under the direction or control, of LESSEE. The obligations of LESSEE shall
include, but not be limited to, the effects of any contamination or injury to person, property
or the environment created or suffered by LESSEE, and the cost of investigation, removal,
remediation, restoration and/or abatement, and shall survive the expiration or termination of
this Lease.
EASEMENTS, 37. This Lease is subject to all existing covenants, conditions, restrictions, contracts,
RIGHTS AND liens, encumbrances, leases, licenses, easements, rights of way and other interests. STATE
DEDICATIONS reserves the right to convey, lease or encumber the Project, in whole or in part, and to grant
such additional easements, rights and dedications as the STATE may deem necessary or
desirable, so long as they do not unreasonably interfere with the rights of LESSEE under
this Lease.
NON- 38. In the performance of this Lease, the LESSEE shall not discriminate, harass, or
DISCRIMINATION allow harassment against any employee or applicant for employment because of race,
religious creed, color, national origin, ancestry, physical disability (including HIV and
AIDS), mental disability, medical condition, age (over 40), marital status, sex, sexual
orientation, or use of family care leave. LESSEE shall insure that the evaluation and
treatment of its employees and applicants for employment are free from such discrimination
and harassment. Such action shall include, but not be limited to, the following:
employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff
or termination; rates of pay or other forms of compensation; and selection for training,
including apprenticeship.
LESSEE shall comply with the provisions of the Fair Employment and Housing Act
(Government Code Section 12990 (a -f) et seq.) and the applicable regulations promulgated
thereunder (California Code of Regulations, Title 2, Section 7285 et, seq.). The applicable
regulations of the Fair Employment and Housing Commission implementing Government
Code Section 12990 (a -f), set forth in Chapter 5 of Division 4 of Title 2 of the California
Code of Regulations, are incorporated into this Lease by reference and mance a part hereof
as if set forth in full. LESSEE shall give written notice of its obligations under this clause
to any labor organizations with which LESSEE has a collective bargaining or other
agreement. Further, LESSEE shall post in conspicuous places available to employees and
applicants for employment, notice setting forth the provisions of this section.
FORCE MAJEURE 39. If either LESSEE or STATE shall be delayed or prevented from the performance
of any act required hereunder by reason of acts of God, governmental restrictions,
regulations or controls (except those reasonably foreseeable in connection with the uses and
activities contemplated by this Lease) or other cause without fault and beyond the control
of the party obligated (except financial inability), performance of such act shall be excused
for the period of the delay and the period for the performance of any such act shall be
extended for a period equivalent to the period of such delay. Nothing in this clause shall
excuse LESSEE from prompt payment of any sums, taxes, insurance or any other charge
required of LESSEE, except as may be expressly provided in this Lease.
AUTHORITY 40. Each individual executing this Lease on behalf of LESSEE represents and
warrants that he/she is duly authorized to execute and deliver this Lease on behalf of
LESSEE in accordance with a duly adopted resolution of the City Council of LESSEE, and
that this Lease is binding upon LESSEE in accordance with its terms. LESSEE shall,
within 30 days after execution of this Lease, deliver to the STATE a certified copy of
13
resolution of LESSEE's City Council authorizing or ratifying the execution of this Lease.
NO LIENS 41. LESSEE shall pay when due all claims for labor or materials furnished or alleged
to have been furnished to or for LESSEE at or for use in the Premises, the BBSC Buildings
or the Project. LESSEE shall keep the Premises, the BBSC Buildings, the Project and the
Property free and clear of all liens resulting from work done by or for LESSEE.
AMENDMENTS 42. This Lease may be altered, changed, or amended only by written agreement
signed by the Parties.
SMOKING 43. Smoking is not allowed in or upon the Project. LESSEE will enforce the
RESTRICTIONS smoking prohibition as to LESSEE's employees, agents, contractors, invitees and
sublessees, inside the Premises and Conunon Areas, and within 20 feet of a main exit,
entrance, or operable window of the BBSC Buildings.
SECTION 44. All captions and section headings contained in this Lease are for convenience of
HEADINGS; reference only and are not intended to define or limit the scope of any term or provision of
INTERPRETATION this Lease. This Lease shall not be construed as if prepared by one of the Parties, but rather
according to its fair meaning as a whole, as if both Parties had prepared it.
SUCCESSORS 45. The terms and provisions of this Lease shall extend to and be binding upon and
BOUND inure to the benefit of the Parties and their respective heirs, executors, administrators,
successors, and assigns, subject to the limitations on assignment and subletting set forth
above.
TERMINATION; 46. The voluntary or other surrender of this Lease by LESSEE, the mutual
MERGER termination or cancellation hereof, or a termination of this Lease by STATE for a default by
LESSEE shall automatically terminate any sublease or lesser estate in the Premises;
provided, however, that STATE may elect to continue any one or all existing subtenancies.
STATE's failure within 30 days following such event to elect to the contrary by written
notice to the holder of any such lesser interest shall constitute STATE's election to have
such event constitute the termination of such interest.
REMEDIES 47. No remedy or election under this Lease shall be deemed exclusive but shall,
CUMULATIVE wherever possible, be cumulative with all other remedies at law or in equity.
TIME OF ESSENCE 48. Time is of the essence of each and all of the provisions of this Lease.
WAIVER 49. If the STATE waives the performance of any term, covenant or condition
contained in this Lease, such waiver shall not be deemed to be a waiver of any other
provision of this Lease or of any subsequent breach of the same or any other term, covenant
or condition. The acceptance of performance by STATE shall not constitute a waiver of
any preceding breach by LESSEE of any term, covenant or condition of this Lease
regardless of STATE's knowledge of the breach. Failure by STATE to enforce any term,
covenant or condition of this Lease for any length of time shall not be deemed to waive or
decrease the STATE's right to insist thereafter upon strict performance by LESSEE.
Waiver of any terns, covenant or condition contained in this Lease affecting the STATE
may only be made by a written Notice signed by an authorized STATE representative.
SEVERABILITY 50. If any provision of this Lease is determined by a court of competent jurisdiction
to be invalid, illegal or unenforceable, this determination shall not affect any other
provision of this Lease, and all other provisions shall remain in full force and effect.
CONFLICT 51. Any conflict between this Lease and the Operating Agreement shall be controlled
by this Lease.
N
F:xtimas 55. The following exhibits are attached to this Lease and incorporated herein bv his
reference:
Exhibit A - Site Plan
Exhibit B - Janitorial Services
Exhibit C - Tenant Improvement -Work Letter. with Attachment 1
IN WITNESS WHEREOF. this Lease has been executed by the Parties as of the date of the last signature
STATE: LESSEE:
State of Cali forni4. h'y and through its
Department oft- ftjh,And Game
B
•
Name ; ;•1?, , 7'
Title ; j ,A ;-1
Date.
. 2007
City or Newport-I:leach, a charter City
By
Name Steven Rosansky
Title
Mayor
Date: October 29
Approved as to Form:
, 2007
Robin Cialison, City Attorney
Attest:
LaVonne Harldess, City C'i-rk
ANTI -DEFICIENCY Any duty of STATE to carry out obligations under this Lease that require
STATE to expend funds shall be subject to the availability of appropriated funds
therefor.
LIQUEFACTION; 53. (a) LESSEE has been informed and acknowledges that the BBSC Complex
SEISMIC is on an island, and is subject to hazards from liquefaction. The BBSC Buildings are
HAZARDS; designed to move freely in an earthquake. LESSEE assumes the risks of injury and
ASSUMPTION OF damage from earthquake, including liquefaction and movement, in connection with
RISK this Lease, the Operating Agreement and the Cooperative Agreement. LESSEE
unconditionally waives any claim of damage or liability against the STATE, its
officers, agents and employees for injury or damage from such hazards. LESSEE
further indemnifies and holds harmless the STATE, its officers, agents and employees
against any and all liability, claims, demands, damages, costs (including costs and fees
incurred in defense of such claims) expenses, and amounts paid in settlement arising
from any injury or damage to any persons or property in or about the Premises due to
such hazards.
(b) LESSEE is encouraged to plan and prepare for earthquakes and to take
appropriate steps to secure and anchor furniture, equipment, machines, containers
and other objects in the Premises. The California Seismic Safety Commission
publication, The Commercial Property Owner's Guide to Earthquake Safety (available
on the internet at http://www.seismic.ca.gov/pub/CSSC 1998-01 COG.pdf) contains
information and recommendations regarding pre -earthquake planning. The Guide
suggests precautions such as, but not limited to, the following: writing down
evacuation, fire response, search -and rescue, and first aid procedures and training
employees to follow them; listing and acquiring basic emergency supplies, including
fire extinguishers, crescent and pipe wrenches to turn off gas and water supplies, first-
aid kits and handbooks, flashlights with extra bulbs and batteries, and portable radios
with extra batteries; setting up an ongoing program to reduce earthquake weaknesses
in the Premises; and training employees by holding drills, establishing responsibilities
for carrying out the emergency response plan and teaching them to act immediately to
put out fires.
LESSEE INITIALS LESSEE INITIALS
ENTIRE 54. This Lease, together with its exhibits, and the Operating Agreement entered into
AGREEMENT concurrently with this Lease, together contain all agreements of the Parties and supersedes
any prior negotiations, agreements and understandings with respect to any matter
mentioned in this Lease or the Operating Agreement.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
[E
4
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ai
Exhibit B
Janitorial Services
Janitorial services shall be provided to the BBSC Complex by LESSEE. Services are:
1— Restroom maintenance:
Nightly Monday -Saturday (includes cleaning and disinfection of fixtures and floor, removal of
trash, restocking of soap and paper products).
Available within 4 hours for emergency cleaning.
2 — Trash collection:
Inside waste cans to be emptied to the dumpsters by staff within each individual building.
1 x a week commercial dumping of outside trash dumpsters.
3x a week dumping of outside trash cans (cans placed around building and on parking lot).
3 — Floor cleaning:
Cement and the .floors in the Teaching Lab swept or vacuumed weekly.
Cement and tile floors in the Teaching Lab washed 2x a year or more frequently if needed.
Carpets in the Administrative Wing vacuumed 2x a week.
Carpets in the Administrative Wing shampooed 2x a year.
4 — Window washing:
All windows in Teaching Lab and Administrative Wing washed inside and out 2x a year.
5 — Outside Common Areas and Parking Lot (subject to the limitations in Paragraph #11(B)
in the Lease Agreement):
Trex decking, gravel areas, and entryway painted concrete swept or hosed down as needed.
Steam cleaning of Trex decking and concrete 2x a year or more frequently as needed.
Restriping of parking lot as needed.
Repair of kiosks and signage as needed.
Repair of storm drain catch basin and retention facility as needed.
6 - Compliance with Condition #8 of the Coastal Development Permit for the Project (CDP
No. 5-03-451):
• Sweep the parking lot weekly (#8-2-B)
• When physically cleaning the parking lot, avoid using detergents or cleaning components that
have phosphates. The components must be biodegradable and non-toxic to marine wildlife.
Amounts used shall be minimized to the maximum extent practicable. No fluids containing
ammonia, sodium hypochlorite, chlorinated solvents, petroleum distillates, or lye shall be
used (48-2-C).
• Avoid spraying down or washing down the parking lot unless the water used is directed
through a filtered drain, the sanitary sewer system, or recovered into a tank that later is
dumped into the sanitary sewer (0-2-D).
• Operate all Best Management Practices (BMP's) associated with the Parking Lot for the life
of the project, and, at a minimum, inspect, clean out, and where necessary, repair structural
BMP's (such as the filtration system): (1) prior to October 15th each year; (2) during each
month between October 15th and April 15' of each year; and (3) at least twice during the dry
season (#8-2-E).
• Dispose of debris and other water pollutants removed from Structural BMP's during clean -
outs in a proper manner (0-2-17)
• Maintain the drainage system and associated structures and BMP's in accordance with
manufacturer's specifications (#8-2-G).
7 — Native -Landscaped Berms:
Weeding (quarterly), trash removal as needed, trimming of plants (quarterly), monitoring and
repair of any irrigation systems as needed.
EXHIBIT C
Tenant Improvement Work Letter
This Tenant Improvement Work Letter ("Work Letter") is incorporated by reference into the
Standard Form Lease Agreement ("Lease") dated as of , 2007, between the State of
California, acting by and through its Department of Fish and Game (the "State") and the City of
Newport Beach, a charter City and Municipal Corporation ("Lessee"), covering Premises within the
BBSC Complex on Shellmaker Island within the State's Upper Newport Bay Ecological Reserve in
Newport Beach, California.
1. Definitions. Initial -capitalized terms used in this Work Letter and not otherwise defined herein
shall be defined as set forth in the Lease.
2. Lessee's Work. Lessee, at Lessee's sole cost and expense, shall construct and complete (or
cause to be constructed and completed) all leasehold improvements required for Lessee's use and
occupancy of the Premises (the "Lessee's Work") in accordance with this Work Letter. This Work
Letter and the Lease are intended to be consistent with one another and shall be interpreted as such to
the fullest extent possible. However, if any provision of this Work Letter as so interpreted should
conflict with any provision of the Lease, this Work Letter shall govern the rights and obligations of the
State and Lessee regarding the construction of Lessee's Work.
3. Plans. Within 30 days after the date the Lease has been fully executed by Lessee and the State,
Lessee shall deliver to the State for its approval proposed plans, drawings and specifications for the
completion of the Premises including, without limitation, Lessee's proposed layout, finish and
decoration and any communications or special utility facilities for the Premises ("Plans"). The State
shall not unreasonably withhold its approval of the Plans. A copy of the Plans, as approved, shall be
dated and initialed by both Lessee and the State.
4. Required Approvals. Lessee shall obtain, at Lessee's sole cost, all necessary approvals of the
Plans from governmental authorities with jurisdiction, and all permits, licenses and inspections
required in connection with the construction of Lessee's Work (such approvals, permits, licenses and
inspections are individually and collectively referred to as the "Required Approvals"). The Required
Approvals shall include, without limitation, requirements of the State Fire Marshal and the
Handicapped Compliance Officer of the Department of General Services, Division of the State
Architect.
5. Quality of Work. Lessee shall cause Lessee's Work to be constructed in a good and
workmanlike manner with new materials of good quality in accordance with the approved Plans,
Applicable Laws, and all Required Approvals. Lessee shall not make any changes or substitution of
materials without first obtaining the written approval of the State. Lessee's Work shall not (a) affect
the structural aspects of the Premises, (b) cause substantial modification to any of the building systems
in or serving the BBSC Complex, or (c) be visible from or alter the exterior appearance of the
Premises.
6. Pre -Construction Notice. Lessee shall notify the State at least 10 working days before the date
Lessee intends to commence Lessee's Work of the date on which construction will begin, the
construction schedule, and the names, addresses, and contractor's license numbers of each contractor
and subcontractor that Lessee intends to engage for the Lessee's Work. The State shall have the right
to approve the contractors and subcontractors selected by Lessee, and only contractors and
subcontractors approved by the State shall perform work in the Premises. The State shall not
unreasonably withhold its approval. Lessee shall cause the Lessee's Work to be prosecuted diligently
to completion in accordance with the construction schedule Lessee provides to the State pursuant to
this paragraph.
7. Costs of Construction. Lessee shall pay when due all costs to construct and complete Lessee's
Work, and shall indemnify, protect, defend and hold the State free and harmless of and from any and
19
all claims, liability, losses, costs, damages and expenses of any kind or nature (including attorneys'
fees) arising from or connected with Lessee's Work.
8. Supervision; Inspections. Lessee shall supervise and direct the construction of Lessee's Work,
using Lessee's best skill and attention. The State shall have'the right, but not the obligation, to inspect
Lessee's Work as it progresses to determine if it is being performed in accordance with this Work
Letter. If the State determines that Lessee's Work is not being performed in accordance with this Work
Letter or, when completed, will not be in accordance with the requirements hereof, then the State shall
give Lessee written notice of its objections. If the State shall give such notice, Lessee agrees to make
corrections promptly. Neither the ability to make inspections nor the making of any inspections by the
State shall operate as a waiver of the right of the State to require good and workmanlike construction in
accordance with the approved Plans, Applicable Laws, and all Required Approvals.
9. Manner of Performance. Lessee shall be responsible to perform, or have Lessee's Work
performed, in such a manner as to not: (a) obstruct access to the BBSC Buildings or common areas, (b)
interfere with the business or activities of the State or other occupants of the BBSC Complex, or (c)
interfere with the labor force working at the BBSC Complex. Lessee shall repair any damage to State-
owned buildings, improvements, infrastructure and property caused by or arising from the construction
of Lessee's Work.
10. Insurance. Lessee shall require Lessee's contractors and subcontractors to procure and maintain
insurance on all of their operations during the progress of the Lessee's Work for the minimum
coverages set forth in Attachment 1 which is incorporated by reference in this Work Letter. If any
contractor or subcontractor of Lessee shall fail to obtain the required insurance and a claim is made or
suffered, then Lessee shall indemnify, defend and hold harmless the State, its officers, directors,
employees and agents, from and against any and all Claims for which the required insurance would
have provided coverage. This indemnity obligation is in addition to any other indemnification
contained in the Lease. Lessee hereby releases, and shall cause its contractors and subcontractors to
release, the State, its officers, directors, employees and agents from any and all Claims which the
releasing party might otherwise possess resulting from or in any way connected with any loss covered,
or which should have been covered, by insurance maintained or caused to be maintained under this
Work Letter. Each insurance policy shall provide that the insurer waives all right of recovery by way
of subrogation against the State, its officers, directors, employees and agents in connection with any
loss or damage covered by any policy.
1.1. Storage and Removal. All construction materials, tools, equipment, and debris shall be stored
only within the Premises. The State shall not insure or be responsible for any loss or damage to
property of any kind owned, used, rented or leased by Lessee, its contractors or subcontractors. Lessee
shall cause its contractors and subcontractors to remove all waste materials, rubbish, tools, equipment
and surplus materials on completion of Lessee's Work.
12. Notices. Notices under this Work Letter shall be given in accordance with Section 18 of the
Lease.
IN WITNESS WHEREOF, this Work Letter has been executed by Lessee and the State as of the date
of the Lease.
STATE: LESSEE:
State of California, by and through its City of Newport Beach, a
Department of Fish and Game charter City and Municipal Corporation
ME
Name:
Title:
By:_
Name:
Title:
20
ATTACHMENT 1 TO
EXHIBIT C
A. Worker's Compensation insurance and occupational disease coverage as required by California
law and employer's liability insurance with a minimum limit of $1 million each occurrence.
B. Broad form commercial. general liability insurance with a combined single limit of not less than
$2 million each occurrence for bodily injury, death, personal injury and property damage resulting from
any one occurrence, including coverage for: a) premises, operations and mobile equipment liability; b)
completed operations and products liability; c) blanket contractual liability covering the contractual
obligations assumed by the contractor or subcontractor under the construction contract; d) independent
contractors; e) broad form property damage liability coverage; and f) personal injury liability.
C. Comprehensive automobile liability insurance, including all. owned, hired and non -owned
vehicles, with a combined single limit of not less than $2 million each occurrence.
D. Excess and/or umbrella liability insurance with limits of not less than $2 million with coverage
at least as broad as the primary coverage in A, B and C above, with any excess umbrella layers written
on a strict following form basis over the primary umbrella.
All policies of insurance required under this Exhibit C shall be endorsed to include the State as
additional insured. Lessee shall fiurnish evidence of insurance to the State, together with satisfactory
evidence of payment of premiums thereon, before any of Lessee's Work is commenced. The policies
shall provide that there shall be no cancellation, reduction or material modification of coverage without
at least 30 days' prior written notice to the State.
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