HomeMy WebLinkAbout13 - Back Bay Science Center SubleaseCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 13
January 22, 2008
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: City Manager's Office
Dave Kiff, Assistant City Manager
949 - 644 -3002 or dkiff@ city. newport-beach.ca. us
SUBJECT: Update: City-County Sublease for Water Quality Lab Wing of the
Back Bay Science Center
ISSUE:
Should the City Council enter into a Sublease with the County of Orange to allow the
County to equip, staff, and run the Water Quality Lab Wing of the BBSC?
RECOMMENDATION:
Authorize the Mayor to execute a Sublease with the County of Orange for the Water
Quality Lab wing of the Back Bay Science Center, such Sublease to become effective
upon approval by the Orange County Board of Supervisors.
BACKGROUND:
The Back Bay Science Center (BBSC) on Shellmaker Island in the Upper Newport Bay
Ecological Reserve is a multi - partnered project that is open, but the "grand opening"
has not yet occurred. The planning and funding partners include:
• The California Department of Fish and Game (DFG);
• The County of Orange Health Care Agency (County);
• The University of California at Irvine (UCI);
• The City of Newport Beach (City);
• The California Coastal Commission (CCC);
• The State Coastal Conservancy (SCC);
• The Irvine Company;
• The Miocean Foundation and Pacific Life; and
• The Newport Bay Naturalists & Friends (NBNF).
There are several documents associated with the BBSC, but the main one is the
"Cooperative Agreement." This Agreement describes the relationship between and
the roles of four of the major users of the BBSC (County, City, DFG, and UCI). It also
describes the overall goals of the BBSC in terms of water quality research and the
teaching lab. The Cooperative Agreement refers to two documents called the "City
Lease" (a lease of the Water Quality Lab Wing between the City and DFG) and the
"County Sublease" (a lease of the same premises — the Water Quality Lab Wing —
between the City and the County) as follows:
BBSC — City- County Sublease
January 2$ 2008
Page 2
CITY LEASE:
The City Lease shall require the City to maintain and repair the BBSC structures (other
than minor capital improvements such as roof replacement), improvements and site
(except for the Parking Common Area maintenance for which UCI is responsible under
the UCI Lease) at all times in good condition and repair, to maintain the insurance set
forth in Exhibit F and shall include such other terms and conditions as the City and DFG
agree. The City Lease shall grant the City during the lease term reasonable access to,
and non - exclusive use of, those portions of Shellmaker (other than DFG work stations
and storage areas) that are part of the BBSC Project and to which access is necessary
for the City to perform its obligations under this Agreement or the City Lease.
COUNTY SUBLEASE:
Disbursement of these (County Tobacco Tax) funds ($1.23 million) will be governed by
the provisions of this Agreement and the County Sublease (as defined below) with the
understanding that the City will advance, for a period up to 180 days, any funds that the
County is required to pay pursuant to this Agreement. The County's commitment is
contingent on the approval and execution of a sublease with the City (County Sublease)
for the approximate 3,980 square foot OC Water Quality Lab wing (Lab ling) of the OC
Water Quality Lab /Stor Building.
On January 23, 2007, the City Council reviewed a detailed staff report about the BBSC.
Readers should review that report for additional detail about the Project. A later item on
March 13, 2007, authorized the Mayor to execute the City Lease and the County
Sublease. Council approved these actions unanimously. The City Lease was
executed, but the County Sublease was not executed pending an additional review by
the State of California.
As a result of that review, the City and the County have proposed a few changes to the
Sublease that the Council approved last March. These changes primarily reflect the
wishes of the State of California AND the fact that the Newport Beach City Charter
prohibits leases of more than 25 years without direct voter approval.
The most significant changes in the Sublease (from the version Council saw in March
2007) are as follows:
• If the County is forced to leave the Premises early due to a default by the City of its
obligations under the City Lease (from DFG), the City must repay, on a pro -rated basis, a
portion of the County's $1.23 million (in non - inflated dollars).
BBSC — City- County Sublease
January 22, 2008
Page 3
• If the City and the State are unable to agree to enter into the option periods described in the
City Lease, then the City must repay, on a pro -rated basis, a portion of the County's $1.23
million (in non - inflated dollars) reflecting the amount of years that the County was or is
unable to remain in the Water Quality Lab wing.
These two items attempt to protect the County's dedication of $1.23 million to the BBSC
in exchange for a 30 -year stay at the BBSC. If the County leaves early on its own, no
repayment is required.
The City Attorney and the City's Risk Manager have reviewed and approved the
attached version of the Sublease. Staff is confident in recommending Council's
approval of this item.
Environmental Review: A Mitigated Negative Declaration was prepared and processed
to assess the environmental impact associated with constructing the Back Bay Science
Center. Identified mitigation measures have been included in the project design. The
California Department of Fish and Game was the lead agency for the environmental
review and the documentation was completed in September 2003.
Submitted by:
l
Da%,WKiff
Assistant City Manager
Attachments: County Sublease
3
U
I GA 1254 -220
2 HCA/Water Quality Lab
3
4 SUBLEASE
5 FOR THE WATER QUALITY LAB
6 AT THE BACK BAY SCIENCE CENTER
7
g THIS IS A SUBLEASE, hereinafter referred to as "Sublease," made the _ day of
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 1. 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").
20
21 11. 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.
26
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.
32
33 rV. 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.
36
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BBSC City-County Sublease 5
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 parry 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.
13
14 AGREEMENT
15
16 NOW THEREFORE, THE RECITALS ARE INCORPORATED HEREIN AND THE PARTIES
17 DO HEREBY AGREE AS FOLLOWS:
18
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 1 6
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.
11
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.
15
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 7
I the smoking prohibition as to COUNTY's employees, agents, contractors, and invitees inside the
2 Premises and Common Areas, and within twenty (20) feet of a main exit, entrance, or operable window
3 of the Premises.
4
5 3. PARKING
6
7 CITY, as Facilities Manager, will use its best efforts to ensure that sufficient parking on site is available
8 for a total of up to twelve (12) COUNTY staff and Water Quality Lab visitors during COUNTY's
9 business hours of 7:00 am. to 6:00 p.m., Monday through Friday and on those weekends and holidays
10 that COUNTY staff are required to work at the BBSC Water Quality Lab. COUNTY shall also have the
11 non - exclusive right to use other parking spaces in the parking Lots adjacent to the Premises, as needed.
12 CITY shall also provide parking for disabled persons in accordance with the Americans with Disabilities
13 Act, Section 7102 of the California Uniform Building Code and the applicable codes and/or ordinances
14 relating to parking for disabled persons as established by the local jurisdiction in which the Premises is
15 located where the provisions of such local codes and/or ordinances exceed or supersede. the State
16 requirements.
17
18 4. USE
19
20 COUNTY shall use the Premises only as a County -wide water quality testing and research facility
21 operating as part of the BBSC project pursuant to the Cooperative Agreement and the Operating
22 Agreement. COUNTY agrees not to use the Premises for any other purpose without the prior written
23 consent of CITY, which shall not be unreasonably withheld. However, COUNTY may use the Premises
24 to conduct water quality testing and research beneficial to the county, region or state, provided that the
25 testing research does not increase activity levels at the Premises or the BBSC Complex in such a way as
26 to detract from the BBSC programs.
27
28 COUNTY shall not use or permit the use of the Premises in a manner that is unlawful, creates damage,
29 waste or a nuisance, or that unreasonably annoys or disturbs occupants of, or causes damages to,
30 neighboring premises or properties.
31
32 5. MASTER LEASE
33
34 This Sublease is and shall be at all times subject and subordinate to the Master Lease, which is attached
35 hereto as Exhibit F and incorporated in full by this reference. The terms, conditions and respective
36 obligations of CITY and COUNTY to each other shall be the terms and conditions of the Master Lease
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except for those provisions of the Master Lease which are directly contradicted by this Sublease.
Therefore, for the purposes of this Sublease, wherever in the Master Lease the word "STATE" is used, it
shall be deemed to mean the CITY as sublessor herein and wherever in the Master Lease the word
"CITY" is used it shall be deemed to mean the COUNTY as sublessee herein. During the term of this
Sublease and for all periods subsequent for obligations which have arisen prior to the termination of this
Sublease, COUNTY hereby expressly assumes and agrees to perform and comply with, for the benefit of
CITY and STATE as lessor under the Master Lease, each and every obligation of CITY as LESSEE
under the Master Lease except for the following: Section 7 (Lessee as Project Facilities Manager);
Section 10 (Janitorial Services); and maintenance and repair of BBSC Complex other than the Premises
under Section 11 (Maintenance and Repairs). No amendment, modification or other change to this
Sublease shall be made without the prior written consent of STATE.
This Sublease is made solely in furtherance of the cooperative project described in the Cooperative
Agreement and the Operating Agreement. Pursuant to Section 17 of the Master Lease, this Sublease
shall terminate if COUNTY at any time withdraws from the BBSC project or fails or ceases to perform
the BBSC project functions for which COUNTY is responsible under the Cooperative Agreement, the
Operating Agreement or this Sublease.
3: 0:1 i•i
The term of this Sublease shall run from the Execution Date to the end of the twenty five (25) year term
of the Master Lease, unless renewed or sooner terminated pursuant to any provision of this Sublease.
COUNTY shall have the option to extend the Sublease term as set forth in Section S, hereafter.
7. TERMINATION OF PRIOR AGREEMENTS
This Sublease will terminate and supersede any prior agreement between the parties hereto covering all
or any portion of the Premises, EXCEPT that all personal property and/or equipment (e.g., fixtures,
partitions, counters, shelving) attached to and/or placed upon any portion of the Premises (as defined in
the Interim Sublease) by COUNTY pursuant to the terms of any prior agreements shall remain the
personal property of COUNTY, which shall have the right to remove same.
8. OPTION TO EXTEND SUBLEASE TERM
COUNTY may extend the term of the Sublease for up to three (3) successive additional terns of five (5)
years each (each an "Option Term's on the same terms and conditions as this Sublease provided that the
BBSC City-County Sublease
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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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11. PAYMENT OF COUNTY'S CONTRIBUTION
Immediately following the Execution Date, CITY shall provide accurate "as built" construction plans
and documents for the BBSC Complex, including. the Premises, to the Manager, HCA/Facilities
Operations. Upon acceptance of the as-built plans by Manager, HCA/Facilities Operations, COUNTY
agrees to pay to CITY the sum of One Million Two Hundred Thirty Thousand Dollars ($1,230,000). In
no event shall the COUNTY'S funding commitment for the proposed construction exceed One Million
Two Hundred Thirty Thousand Dollars ($1,230,000) without the express written consent of the Board of
Supervisors.
To obtain payment, CITY (or CITY's designee) shall submit to COUNTY's Manager, HCA/Facilities
Operations, in a form acceptable to said Manager, HCA/Facilities Operations, a written claim or invoice
for this payment.
COUNTY shall be responsible for, at its own cost and expense, all maintenance, repair and/or
replacement services for the interior portions of the Premises to include but not be limited to the
following items: (a) janitorial service and supplies; (b) lighting service and supplies; (c) heating, air
conditioning and ventilation systems; (d) entry doors, roll up doors and windows; (e) fire extinguishers;
(f) interior painting and flooring; (g) locks, keys, access control systems and security service; (h) and any
other services as needed to support its operations and keep the Premises in good order, condition and
repair.
CITY shall provide, subject to the provisions of Clause 13 entitled REIMBURSEMENT FOR COST OF
CITY SERVICES, hereafter, all maintenance, repair and/or replacement services for the building
structure and the exterior portion of the Premises, including but not limited to the exterior surfaces, roof,
fire sprinkler system, and utility connections to the building, as well as the parking lot, sidewalks, curbs,
gutters, drains, and site related signage which are appurtenant to the building. When calculating the cost
of CITY Services the parties shall refer to Clause 13 (REIMBURSEMENT FOR COST OF CITY
SERVICES) of this Sublease.
13. REIMBURSEMENT FOR COST OF CITY SERVICES
A. For the purpose of this clause, the cost of services provided by CITY for the COUNTY ( "CITY
Services ") shall include only the following:
BBSC City-County Sublease
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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 B1 - 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 (321/o) of the
20 costs of CITY's Services.
21
22 B. Parkins 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 ��
I that includes in detail the cost of each category of CITY Services for the previous year.
2 2. Supporting Data: CITY shall provide Supporting Data ( "Supporting Data ") that includes copies
3 of invoices and/or work orders and proof of payment for each, neatly separated and
4 organized by CITY Service categories and date of service.
5
6 3. Bum: CITY shall furnish a written Budget ( "Budget ") that includes in detail the estimated
7 cost of each category of CITY Services to be provided by CITY for the next fiscal year,
8 which begins on July 1.
9
10 COUNTY shall have the right to audit any Supporting Data provided by CITY and used in the
11 preparation of said claim. In the event COUNTY questions the adequacy of any portion of the
12 Supporting Data provided by CITY, and COUNTY requests additional Supporting Data, the due date for
13 payment of the adjustment shall be ninety (90) days from the date COUNTY receives the additional data
14 required to substantiate CITY's claim. In the event payment is due, said payment shall be made in a
15 lump sum within ninety (90) days following receipt of said Summary Statement and Supporting Data.
16
17 Should CITY fail to provide said Summary Statement and supporting documentation within one
18 hundred twenty (120) days from said anniversary date, any claim for reimbursement pursuant to this
19 clause shall be deemed waived by the CITY. Notwithstanding the foregoing, CITY Services shall not
20 include expenses for the cost of correcting building defects (latent or otherwise).
21
22 14. ALTERATIONS
23
24 Subject to the applicable limitations and requirements set forth in the Master Lease, including but not
25 limited to Section 20, COUNTY may make improvements and changes in the Premises, including but
26 not limited to the installation of fixtures, partitions, counters, shelving, equipment, seismic bracing,.
27 access and alarm systems, telephone and computer network systems, and modifications to the utility
28 services as necessary or appropriate. It is agreed that any such fixtures, partitions, counters, shelving, or
29 equipment attached to or placed upon the Premises by COUNTY shall be considered as personal
30 property of COUNTY, who shall have the right to remove same, subject to the applicable limitations and
31 requirements set forth in the Master Lease. Upon vacating, COUNTY agrees that the Premises shall be
32 left in as good condition as when received, reasonable wear and tear excepted.
33
34 15. UTILITIES
35
36 COUNTY agrees to make all necessary arrangements for, and pay the cost of, all gas, electric, water and
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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.
14
15 16. INSURANCE
16
17 PronertyMire 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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In the event that insurance premiums for the coverage described in this Clause increase by an amount in
excess of thirty percent (30 %) during any five (5) year period during the term of this Sublease,
COUNTY and CITY shall meet and confer in good faith in attempt to reach an agreement as to an
amendment of this Sublease that would establish the amount of any COUNTY contribution to the cost
of insurance, if any, or the extent to which the insurance requirements in this Clause should be modified.
17. INDEMNIFICATION
COUNTY shall indemnify, defend (with counsel approved by the CITY) and hold harmless the CITY,
its officers, directors, employees and agents, from and against any and all liability, losses, costs,
expenses (including attorneys' fees), claims, damages (collectively, "Claims ") by reason of any injury
(including death) to any person or persons, including COUNTY, or loss of or damage to property of any
kind whatsoever and to whomsoever belonging, including COUNTY, arising out of or in connection
with this Sublease, the use or occupancy of the Premises, or COUNTY'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 CITY.
Likewise, CITY shall indemnify, defend (with counsel approved by the COUNTY) and hold harmless
the COUNTY, its officers, directors, employees and agents, from and against any and all liability, losses,
costs, expenses (including attorneys' fees), claims, damages (collectively, "Claims ") by reason of any
injury (including death) to any person or persons, including CITY, or loss of or damage to property of
any kind whatsoever and to whomsoever belonging, including CITY, arising out of or in connection
with this Sublease, the use or occupancy of the Premises, or CITY's presence or activities of officers or
employees of the CITY 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 COUNTY.
118. TAXES AND ASSESSMENTS
All taxes and assessments which become due and payable upon the Premises shall be the full
responsibility of CITY, and CITY shall cause said taxes and assessments to be paid prior to the due date.
19. BUILDING AND SAFETY REQUIREMENTS
During the full term of this Sublease, CITY, at CITY's sole cost, agrees to maintain the Premises in
compliance with all applicable laws, rules, regulations, building codes, statutes, and orders as they are
applicable on the date of this Sublease, and as they may be subsequently amended.
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Included in this provision is compliance with the Americans with Disabilities Act (ADA) and all other
federal, state, and local codes, statutes, and orders relating to disabled access as they are applicable on
the date of this Sublease, and as they may be subsequently amended.
CITY further agrees to maintain the Premises as a "safe place of employment," as defined in the
California Occupational Safety and Health Act (California Labor Code, Division 5, Part 1, Chapter 3,
beginning with Section 6400) and the Federal Occupational Safety and Health Act, where the provisions
of such Act exceed, or supersede, the California Act, as the provisions of such Act are applicable on the
date of this Sublease, and as they may be subsequently amended.
Notwithstanding the foregoing, the COUNTY shall, as to the interior of the Premises, be solely
responsible for the compliance with the laws referenced above, and all other relevant laws, ordinances,
rules or regulations pertaining to workplace safety or security.
20. HAZARDOUS SUBSTANCES
The term "Hazardous Substance" as used in this Sublease shall mean any product, 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 CITY or 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.
COUNTY 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 BBSC project. If COUNTY 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 BBSC project, other than in full compliance with Applicable
Laws, COUNTY shall immediately give verbal and written notice of such fact to CITY and STATE, and
provide CITY and STATE with a copy of any report, notice, claim or other information which
COUNTY has concerning such Hazardous Substance. Verbal notice to CITY or STATE pursuant to this
Section may be given to any on -site employee of CITY or STATE at the Back Bay Science Center. .
COUNTY shall not cause or permit any Hazardous Substance, except those allowed by law, to be spilled
or released in, on, under or about the Premises, the BBSC Buildings or the BBSC project (including
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I through the plumbing or sanitary sewer system) and shall promptly, at COUNTY's expense, comply
2 with all Applicable Laws and take all investigatory and/or remedial action reasonably recommended for
3 the cleanup of any contamination and for the maintenance, security and/or monitoring of the Premises,
4 the BBSC Buildings, the Property, or other property in the vicinity of the Premises, that was caused or
5 materially contributed to by COUNTY or involving any Hazardous Substance brought onto the Property
6 during the COUNTY's occupancy under this Sublease, by or for the COUNTY or any third party acting
7 with the consent or under the direction or control of COUNTY.
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9 COUNTY shall be responsible for and shall defend, indemnify and hold CITY and STATE, and their
10 respective officers, directors, employees, agents, and representatives, free and harmless from and against
11 all claims, losses, costs, expenses, damages, judgments, fines, penalties and liabilities, including
12 attorneys' fees and costs arising out of or in connection with the storage, use, or disposal of Hazardous
13 Substances on the Premises by COUNTY. If the storage, use, or disposal of Hazardous Substances on
14 the Premises by COUNTY results in contamination or deterioration of water or soil resulting in a level
15 of contamination greater than maximum allowable levels established by any governmental agency
16 having jurisdiction over such contamination, COUNTY shall promptly take any and all action necessary
17 to clean up such contamination.
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19 CITY hereby warrants and represents that CITY has in the past and will hereafter comply with all laws
20 and regulations relating to the storage, use and disposal of Hazardous Substances. CITY shall be
21 responsible for and shall defend, indemnify and hold COUNTY, its officers, directors, employees,
22 agents, and representatives, harmless from and against all claims, costs and liabilities, including
23 attorneys' fees and costs arising out of or in connection with the previous, current and future storage, use
24 and disposal of Hazardous Substances on the Premises (or building if the Premises comprises only a
25 portion of said building) by CITY. If the previous, current and future storage, use, and disposal of
26 Hazardous Substances on the Premises by CITY results in contamination or deterioration of water or soil
27 resulting in a level of contamination greater than maximum allowable levels established by any
28 governmental agency having jurisdiction over such contamination, CITY shall promptly take any and all
29 action necessary to clean up such contamination.
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31 21. LABOR CODE COMPLIANCE
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33 CITY acknowledges and agrees that all work on physical modifications required to be performed as a
34 condition precedent to the Execution Date or any such future work performed by CITY at the request of
35 COUNTY shall be governed by, and performed in accordance with, the provisions of Article 2 of
36 Chapter 1, Part 7, Division 2 of the Labor Code of the State of California (Sections 1770, et seq.). These
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I provisions are applicable to modifications costing more than One Thousand Dollars ($1,000.00).
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3 Pursuant to the provisions of Section 1773 of the Labor Code of the State of California, the Board of
4 Supervisors has obtained the general prevailing rate of per diem wages and the general prevailing rate
5 for holiday and overtime work in the locality applicable to this Sublease for each craft, classification, or
6 type of workman needed to execute the aforesaid structural modifications from the Director of the State
7 Department of Industrial Relations. CITY herein agrees that CITY shall post, or cause to be posted, a
8 copy of such wage rates at the job site and shall pay the adopted prevailing wage rates. Copies of said
9 prevailing wage rates may be obtained from COUNTY's Manager, HCA/Facilities Operations. In
10 addition, CITY shall provide continuously updated certified payroll records to COUNTY.
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12 Except as expressly set forth in this Sublease, nothing herein is intended to grant authority for CITY to
13 perform construction work on the Premises as subleased to COUNTY without the express written
14 permission of COUNTY.
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16 22• RIGHT TO WORK AND MINIMUM WAGE LAWS
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18 In accordance with the United States Immigration Reform and Control Act of 1986, CITY shall require
19 its employees that directly or indirectly service the Premises or terms and conditions of this Sublease, in
20 any manner whatsoever, to verify their identity and eligibility for employment in the United States.
21 CITY shall also require and verify that its contractors or any other persons servicing the Premises or
22 terms and conditions of this Sublease, in any manner whatsoever, verify the identity of their employees
23 and their eligibility for employment in the United States.
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25 Pursuant to the United States of America Fair Labor Standard Act of 1938, as amended, and State of
26 California Labor Code, Section 1178.5, CITY shall pay no less than the greater of the Federal or
27 California Minimum Wage to all its employees that directly or indirectly service the Premises, in any
28 manner whatsoever. CITY shall require and verify that all its contractors or other persons servicing the
29 1 Premises on behalf of the CITY also pay their employees no less than the greater of the Federal or
30 California Minimum Wage.
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32 CITY shall comply and verify that its contractors comply with all other Federal and State of California
33 laws for minimum wage, overtime pay, record keeping, and child labor standards pursuant to the
34 servicing of the Premises or terms and conditions of this Sublease.
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36 Notwithstanding the minimum wage requirements provided for in this clause, CITY, where applicable,
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I shall comply with the prevailing wage and related requirements, as provided for in Clause 21 entitled
2 "LABOR CODE COMPLIANCE" of this Sublease.
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4 23. DEFAULTS AND REMEDIES
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6 The occurrence of any of the following shall constitute an event of default:
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8 • Failure to pay any installment of any monetary amount due and payable hereunder; or
9 • Failure to perform any obligation, agreement or covenant under this Sublease. .
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11 In the event of any non - monetary breach of this Sublease by COUNTY, CITY shall notify COUNTY m
12 writing of such breach, and COUNTY shall have fifteen (15) days in which to initiate action to cure said
13 breach.
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15 In the event of any non - monetary breach of this Sublease by CITY, COUNTY shall notify CITY in
16 writing of such breach and CITY shall have fifteen (15) days in which to initiate action to cure said
17 breach.
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19 In the event of any monetary breach of this Sublease by COUNTY, CITY shall notify COUNTY in
20 writing of such breach, and COUNTY shall have fifteen (15) days in which to cure said breach, unless
21 specified otherwise within this Sublease.
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23 In the event of any monetary breach of this Sublease by CITY, COUNTY shall notify CITY in writing of
24 such breach, and CITY shall have fifteen (15) days in which to cure said breach, unless specified
25 otherwise within this Sublease.
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27 In the event of a default by COUNTY, the CITY may elect to terminate this Sublease by any lawful
28 means and pursue any other remedy now or hereinafter available at law or in equity. In the event of
29 termination of this Sublease, CITY shall have the right to reenter the Premises and every part thereof and
30 to remove and store at COUNTY's expense all property therefrom and to repossess and occupy the
31 Premises. In the event that CITY terminates this Sublease pursuant to this paragraph, the CITY shall not
32 be required to pay COUNTY any sum or sums whatsoever.
33
34 In the event CITY is in default of the Master Lease, as set forth in to Section 15 of the Master Lease,
35 COUNTY shall have the ability to cure any such default in accordance with the Master Lease. CITY
36 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
I in the United States Mail.
TO: CITY
City of Newport Beach
City Managers 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.
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27. ATTACHMENTS
This Sublease includes the following, which are attached hereto and made a part hereof:
I. GENERAL CONDITIONS
11. EXHIBITS
A. Exhibit A: Description - Premises
B. Exhibit B: Plot Plan — Premises
C. Exhibit C: Plans and Specifications
D. Exhibit A -1: Description — Premises used to determine County's proportionate share of cost
of City Services for the BBSC.
E. Exhibit B -1: Plot Plan — Premises used to determine County's proportionate share of cost of
City Services for the BBSC.
F. Master Lease
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IN WITNESS WHEREOF, the parties have executed this Sublease the day and year first above
written.
APPROVED AS TO FORM:
CITY OF NEWPORT BEACH
M
City Attorney
CITY
IM
Edward D. Selich, Mayor
DATE: DATE:
RECOMMENDED FOR APPROVAL:
Resources & Development Management Department
M
RM
APPROVED AS TO FORM
OFFICE OF THE COUNTY COUNSEL
1 -rd
Deputy
SIGNED AND CERTIFIED THAT A
COPY OF THIS DOCUMENT HAS BEEN
DELIVERED TO THE CHAIRMAN OF
THE BOARD.
DARLENE J. BLOOM
Clerk of the Board of Supervisors
of Orange County, California
BBSC City - County Sublease
COUNTY
COUNTY OF ORANGE
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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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7. CIRCUMSTANCES WHICH EXCUSE PERFORMANCE
If either party hereto shall be delayed or prevented from the performance of any act required hereunder
by reason of acts of God, 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. Financial inability shall not be considered a circumstance excusing performance under this
Sublease.
8. STATE AUDIT
Pursuant to and in accordance with Section 8546.7 of the California Government Code, in the event that
this Sublease involves expenditures and/or potential expenditures of State funds aggregating in excess of
ten thousand dollars ($10,000), CITY shall be subject to the examination and audit of the Auditor
General of the State of California for a period of three years after final payment by COUNTY to CITY
under this Sublease. The examination and audit shall be confined to those matters connected with the
performance of the contract, including, but not limited to, the costs of administering the contract.
9. WAIVER OF RIGHTS
The failure of CITY or COUNTY to insist upon strict performance of any of the terms, conditions, and
covenants in this Sublease shall not be deemed a waiver of any right or remedy that CITY or COUNTY
may have, and shall not be deemed a waiver of any right or remedy for a subsequent breach or default of
the terms, conditions, and covenants herein contained.
10. HOLDING OVER
In the event COUNTY shall continue in possession of the Premises after the term of this Sublease, such
possession shall not be considered a renewal of this Sublease but a tenancy from month to month and
shall be governed by the conditions and covenants contained in this Sublease.
11. HAZARDOUS MATERIALS
CITY warrants that, to its knowledge, the Premises are free and clear of all hazardous materials or
substances. COUNTY acknowledges that CITY has never been in possession of the Premises and has
never conducted any survey or test of the Premises to determine if any hazardous materials or
substances are present.
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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 bttv,//www.seismic.mgov/pub/CSSC 1998-
01 COG.p 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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expressly and knowingly waive and release all such rights to trial by jury in any action, proceeding or
counterclaim brought by any party hereto against the other (and/or against its officers, directors,
employees, agents, or subsidiary or affiliated entities) on or with regard to any matters whatsoever
arising out of or in any way connected with this agreement and/or any claim of injury or damage.
15. GOVERNING LAW AND VENUE
This Sublease has been negotiated and executed in the State of California and shall be governed by and
construed under the laws of the State of California. In the event of any legal action to enforce or
interpret this agreement, the sole and exclusive venue shall be a court of competent jurisdiction located
in Orange County, California, and the parties hereto agree to and do hereby submit to the jurisdiction of
such court, notwithstanding Code of Civil Procedure section 394.
16. THE
Time is of the essence of this Sublease.
17. FORCE MAJEURE
If either CITY or COUNTY shall be delayed or prevented from the performance of any act required
hereunder by reason of the acts of God, governmental restrictions, regulations or controls (except those
reasonably foreseeable in connection with the uses and activities contemplated by this Sublease) or other
cause without fault and beyond the control of the party obliged (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 COUNTY from prompt payment of any sums due or any other charge required of COUNTY,
except as may be expressly provided in this Sublease.
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Exhibits A & B
not attached.
(available for review in Dave Kiff's office)
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