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HomeMy WebLinkAboutC-3357 - Lease (for Portion - Upper Newport Bay Regional Park - Irvine Ave and Monte Vista Avenue)3 4 5 6 7 THIS LEASE is made and entered into this 91at, day of (n-, 2000, by 8 and between the City of Newport Beach, a chartered munic al corporation 9 (Lessor) and the County of Orange, a political subdivision of the State of 10 California, (Tenant). t1 12 RECITALS 13 14 A. Lessor holds in trust as State of California tidelands approximately six 15 acres of property between Irvine Avenue and Upper Newport Bay at 16 Monte Vista Avenue, which property is more particularly described in 17 Exhibit "A" and shown on Exhibit "B" attached hereto and by reference 18 made a part hereof (the "Premises"). 19 20 B. Tenant has acquired approximately 133 acres within the City of Newport 21 Beach which it has improved and which it maintains and operates as 22 Upper Newport Bay Regional Park (the Park) for all the residents of 23 Orange County. 24 25 C. The Premises is located within the Park boundaries and actually causes a 26 division of the Park into two unconnected portions. 27 28 D. Lessor and Tenant wish to include the Premises as part of Park for the 29 benefit of the public. 30 31 E. City is authorized to lease the Premises to Tenant consistent with the 32 provisions of the Charter of the City of Newport Beach and state law. 33 34 NOW, THEREFORE, in consideration of the mutual covenants hereinafter set 35 forth, the parties hereto agree as follows: 36 37 1. DESCRIPTION OF LEASED PREMISES 38 39 Lessor hereby leases the Premises to Tenant and Tenant hereby leases the 40 Premises from Lessor. 41 42 2. TERM 43 44 The term of this Lease shall commence on the date of execution of this Lease by 45 Lessor and Tenant, as written above, and shall run for forty-nine (49) years from 46 that date. LEASE (PORTION - UPPER NEWPORT BAY REGIONAL PARK) 1 1 3. USE 2 3 A. Tenant shall maintain and operate the Premises as an integral portion of 4 the Park only and may improve the Premises for Park or Park related 5 purposes as it deems necessary or appropriate in accordance with all 6 federal and state laws. 7 8 B. All work on all improvements shall be performed in a good and 9 workmanlike manner, and shall comply with all applicable governmental 10 permits and laws. 11 12 C. Tenant shall pay all costs related to the construction of any improvements 13 by Tenant or its agents. Tenant shall keep the Premises free and clear of 14 all labor or materials liens resulting from construction of improvements on 15 the Premises. 16 17 4. CONSIDERATION 18 19 In consideration of the services to the public to be performed by Tenant in 20 maintaining and operating Premises as part of the Park, Lessor hereby leases 21 the Premises to Tenant on a rent-free basis. 23 5. OWNERSHIP OF IMPROVEMENTS 24 25 Upon expiration of this Lease, all improvements shall be free and clear of any 26 liens, claims, or liability for labor or material and, at Lessor's option shall become 27 the property of Lessor. 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 6. INSURANCE Tenant shall provide and maintain at its own expense policies of liability insurance as follows: A. Comprehensive General Liability B. Auto Liability C. Workers Compensation and Employers Liability MINIMUM LIMITS $1,000,000 combined single limit per occurrence for personal injuries, including but not limited to bodily injury, personal injury, property damage liability, contractual liability, products/ completed operations liability, and independent contractors liability. $1,000,000 combined single limit Statutory 1 2 Lessor agrees that Tenant, at Tenant's option, may self -insure the coverages 3 required by this Paragraph 6 (INSURANCE). 4 5 In addition, the Comprehensive General Liability policy shall include: 6 "The City of Newport Beach is added as additional insured as respects 7 operations of the named insured at or from the Premises." 8 9 7. UTILITIES 10 II Tenant shall be responsible for and pay all utilities provided to the Premises. 12 13 8. ASSIGNMENT 14 15 Tenant shall not assign, transfer or sublease any interest in Lease or Premises 16 unless first approved by Lessor. 17 18 9. HOLD HARMLESS 19 20 Tenant hereby waives all claims and recourse against Lessor including the right 21 of contribution for loss or damage of persons or property arising from, growing 22 out of or in any way connected with or related to this Lease except claims arising 23 from the concurrent active or sole negligence of Lessor, its officers, agents, and 24 employees. Tenant hereby agrees to indemnify, hold harmless, and defend 25 Lessor, its officers, agents, and employees against any and all claims, loss, 26 demands, damages, cost, expenses or liability costs arising out of the operation 27 or maintenance of the Premises and/or Tenant's exercise of the rights under this 28 Lease, except for liability arising out of the concurrent active or sole negligence 29 of Lessor, its officers, agents, or employees, including the cost of defense of any 30 lawsuit arising therefrom. In the event Lessor is named as co-defendant, Tenant 31 shall notify Lessor of such fact and shall represent Lessor in such legal action 32 unless Lessor undertakes to represent itself as co-defendant in such legal action, 33 in which event Tenant shall pay to Lessor its litigation costs, expenses and 34 attorney's fees. In the event judgment is entered against Lessor and Tenant 35 because of the concurrent active negligence of Tenant and Lessor, their officers, 36 agents, or employees, an apportionment of liability to pay such judgment shall be 37 made by a court of competent jurisdiction. Neither party shall request a jury 38 apportionment. 39 40 10. AMENDMENTS 41 42 This Lease is the sole and only agreement between the parties regarding the 43 subject matter hereof. Any changes to this Lease shall be in writing and shall be 44 properly executed by both parties. 45 46 3 11. NOTICES All notices pursuant to this Lease shall be addressed as set forth below or as either party may hereafter designate by written notice and shall be sent through the United States mail in the State of California, duly registered or certified, return receipt requested, with postage prepaid. If any notice is sent by registered or certified mail, as aforesaid, the same shall be deemed to have been served or delivered twenty-four (24) hours after mailing thereof as above provided. Notwithstanding the above, Lessor may also provide notices to Tenant by personal delivery or by regular mail and any such notice so given shall be deemed to have been given upon receipt. TO: LESSOR TO: TENANT City of Newport Beach City Manager 3300 Newport Boulevard Newport Beach, CA 92663 11.ATTACHMENT TO LEASE County of Orange PFRD/Real Property Attn: Real Property Manager 300 N. Flower Street, 6th Floor Santa Ana, CA 92702-410 This Lease includes the following, which are attached hereto and made a part hereof: I. General Conditions II. Exhibit A — Legal Description III. Exhibit B — Map // // // // // // // // // // // // // // // // // 4 t IN WITNESS WHEREOF, the parties have executed this Lease the day and year 2 first above written. 3 4 5 6 APPROVED AS TO FORM: 7 Laurence M. Watson s County C•unsel 9 10 11 By 12 13 14 0(1 1s SIGNED AND CERTIFIED THAT A COPY 16 OF THIS DOCUMENT HAS BEEN 17 DELIVERED TO THE CHAIRMAN 0 is THE BOARD 19 20 21 By 22 Darlene J. Bloom, 23 Clerk of the Board of Supervisors 24 County of Orange 25 26 27 28 29 CONTF�t�IT 30 31 32 By 33 Robin L Clauson, 34 Assistant City Attorney 35 36 37 ATTEST: 38 40 By 0)1/Y1-e--i /O. 0449 39 41 42 43 44 45 46 47 48 49 50 APPROVED AS TO FORM AND: LaVonne Harkless, City Clerk TENANT COUNTY OF ORANGE By Chairman, Board of Supervisors LESSOR CITY OF NE PORT BEACH 5 1 2 3 GENERAL CONDITIONS 4 5 6 7 1. TIME (PMGE1.2 S) 8 9 Time is of the essence of this Lease. Failure to comply with any time requirement 10 of this Lease shall constitute a material breach of this Lease. 11 12 2. PERMITS AND LICENSES (PMGE3.2 S) 13 14 Tenant shall be required to obtain any and all approvals, permits and/or licenses 15 which may be required by law in connection with the operation of the Premises as 16 set out herein. No permit, approval, or consent given hereunder by Lessor, in its 17 governmental capacity, shall affect or limit Tenant's obligations hereunder, nor shall 18 any approvals or consents given by Lessor, as a party to this Lease, be deemed 19 approval as to compliance or conformance with applicable governmental codes, 20 laws, rules, or regulations. 21 22 3. LEASE ORGANIZATION (PMGE5.2 S) 23 24 The various headings and numbers herein, the grouping of provisions of this Lease 25 into separate clauses and paragraphs, and the organization hereof, are for the 26 purpose of convenience only and shall not be considered otherwise. 27 28 4. AMENDMENTS (PMGE6.2 S) 29 30 This Lease is the sole and only agreement between the parties regarding the 31 subject matter hereof. Any changes to this Lease shall be in writing and shall be 32 properly executed by both parties. 33 34 5. UNLAWFUL USE (PMGE7.2 S) 35 36 Tenant agrees no improvements shall be erected, placed upon, operated, nor 37 maintained within the Premises, nor any business conducted or carried on therein 38 or therefrom, in violation of the terms of this Lease, or of any regulation, order of 39 law, statute, bylaw, or ordinance of a governmental agency having jurisdiction. 40 41 6. NONDISCRIMINATION (PMGE8.2 S) 42 43 Tenant agrees not to discriminate against any person or class of persons by 44 reason of sex, age, race, color, creed, physical handicap, or national origin in 45 employment practices and in the activities conducted pursuant to this Lease. 2 1 Tenant shall make its accommodations and services available to the public on fair 2 and reasonable terms. 3 4 7. INSPECTION (PMGE9.2 S) 5 6 Lessor or its authorized representative shall have the right at all reasonable times 7 to inspect the Premises to determine if the provisions of this Lease are being 8 complied with. 9 10 8. TAXES AND ASSESSMENTS (PMGEII.2 N) 11 12 It is understood and agreed that all taxes and assessments which become due and 13 payable upon the Premises shall be the full responsibility of Tenant, and Tenant 14 shall cause said taxes and assessments to be paid promptly. 15 16 9. SUCCESSORS IN INTEREST (PMGE12.2 S) 17 18 Unless otherwise provided in this Lease, the terms, covenants, and conditions 19 contained herein shall apply to and bind the heirs, successors, executors, 20 administrators, and assigns of all the parties hereto, all of whom shall be jointly and 21 severally liable hereunder. 22 23 10. CIRCUMSTANCES WHICH EXCUSE PERFORMANCE (PMGE13.2 S) 24 25 If either party shall be delayed or prevented from the performance of any act 26 required hereunder by reason of Acts of God, restrictive governmental laws or 27 regulations, or other cause without fault and beyond the control of the party 28 obligated (financial inability excepted), performance of such act shall be excused 29 for the period of the delay and the period for the performance of any such act shall 30 be extended for a period equivalent to the period of such delay. 31 32 11. PARTIAL INVALIDITY (PMGE14.2 S) 33 34 If any term, covenant, condition, or provision of this Lease is held by a court of 35 competent jurisdiction to be invalid, void, or unenforceable, the remainder of the 36 provisions hereof shall remain in full force and effect and shall in no way be 37 affected, impaired, or invalidated thereby. 38 39 12. WAIVER OF RIGHTS (PMGE15.2 S) 40 41 The failure of Lessor or Tenant to insist upon strict performance of any of the 42 terms, covenants, or conditions of this Lease shall not be deemed a waiver of any 43 right or remedy that Lessor or Tenant may have, and shall not be deemed a waiver 44 of the right to require strict performance of all the terms, covenants, and conditions 45 of the Lease thereafter, nor a waiver of any remedy for the subsequent breach or 3 1 default of any term, covenant, or condition of the Lease. Any waiver, in order to be 2 effective, must be signed by the party whose right or remedy is being waived. 3 4 13. DEFAULT IN TERMS OF THE LEASE BY TENANT (PMGE16.2 N) 5 6 The occurrence of any one or more of the following events shall constitute a default 7 hereunder by Tenant: 8 9 (a) The abandonment or vacation of the Premises by Tenant. 10 11 (b) The failure or inability by Tenant to observe or perform any of the provisions 12 of this Lease to be observed or performed by Tenant, other than specified in (a) 13 above, where such failure shall continue for a period of thirty (30) days after 14 written notice thereof from Lessor to Tenant; provided, however, that any such 15 notice shall be in lieu of, and not in addition to, any notice required under 16 California Code of Civil Procedure Section 1161 et seq.; provided, further, that if 17 the nature of such failure is such that it can be cured by Tenant but that more 18 than thirty (30) days are reasonably required for its cure (for any reason other 19 than financial inability), then Tenant shall not be deemed to be in default if 20 Tenant shall commence such cure within said thirty (30) days, and thereafter 21 diligently prosecutes such cure to completion. 22 23 In the event of any default by Tenant, then, in addition to any other remedies 24 available to Lessor at law or in equity, Lessor may exercise the following 25 remedies: 26 27 (A) Lessor may terminate this Lease and all rights of Tenant hereunder by giving 28 written notice of such termination to Tenant. 29 30 (B) Continue this Lease in effect without terminating Tenant's right to possession 31 even though Tenant has breached this Lease and abandoned the Premises and 32 to enforce all of Lessor's rights and remedies under this Lease, at law or in 33 equity. 34 35 (C) Nothing in this Section shall be deemed to affect Tenant's indemnity of 36 Lessor liability or liabilities based upon occurrences prior to the termination of 37 this Lease for personal injuries or property damage under the indemnification 38 clause or clauses contained in this Lease. 39 40 No delay or omission of Lessor to exercise any right or remedy shall be construed 41 as a waiver of such right or remedy or any default by Tenant hereunder. No act or 42 thing done by Lessor or Lessor's agents during the term of this Lease shall be 43 deemed an acceptance of a surrender of the Premises, and no agreement to 44 accept a surrender shall be valid unless in writing and signed by Lessor. 45 4 1 All covenants and agreements to be performed by Tenant under any of the terms 2 of this Lease shall be performed by Tenant at Tenant's sole cost and expenses. If 3 Tenant shall fail to pay any sum of money or shall fail to perform any other act on 4 its part to be performed hereunder, or to provide any insurance or evidence of 5 insurance to be provided by Tenant, then in addition to any other remedies 6 provided herein, Lessor may, but shall not be obligated to do so, and without 7 waiving or releasing Tenant from any obligations of Tenant, make any such 8 payment or perform any such act on Tenant's part to be made or performed as 9 provided in this Lease or to provide such insurance. Any payment or performance 10 of any act or the provision of any such insurance by Lessor on Tenant's behalf shall 11 not give rise to any responsibility of Lessor to continue making the same or similar 12 payments or performing the same or similar acts. All costs, expenses, and other 13 sums incurred or paid by Lessor in connection therewith, together with interest at 14 the maximum rate permitted by law from the date incurred or paid by Lessor shall 15 be deemed to be additional rent hereunder and shall be paid by Tenant with and at 16 the same time as the next monthly installment of rent hereunder, and any default 17 therein shall constitute a breach of the covenants and conditions of this Lease. 18 19 20 14. HOLDING OVER (PMGE19.2 S) 21 22 In the event Tenant shall continue in possession of the Premises after the term of 23 this Lease, such possession shall not be considered a renewal of this Lease but a 24 tenancy from month to month and shall be governed by the conditions and 25 covenants contained in this Lease. 26 27 15. CONDITION OF DEMISED PREMISES UPON TERMINATION (PMGE20.2 S) 28 29 Except as otherwise agreed to herein, upon termination of this Lease, Tenant shall 30 re -deliver possession of said Premises to Lessor in substantially the same 31 condition that existed immediately prior to Tenant's entry thereon, reasonable wear 32 and tear, flood, earthquakes, war, and any act of war, excepted. References to the 33 "Termination of the Lease" in this Lease shall include termination by reason of the 34 expiration of the Lease term. 35 36 17. DISPOSITION OF ABANDONED PERSONAL PROPERTY (PMGE21.2 S) 37 38 If Tenant abandons or quits the Premises or is dispossessed thereof by process of 39 law or otherwise, title to any personal property belonging to and left on the 40 Premises fifteen (15) days after such event shall, at Lessor's option, be deemed to 41 have been transferred to Lessor. Lessor shall have the right to remove and to 42 dispose of such property without liability therefor to Tenant or to any person 43 claiming under Tenant, and shall have no need to account therefor. 44 45 5 1 18. QUITCLAIM OF TENANT'S INTEREST UPON TERMINATION (PMGE22.2 S) 2 3 Upon termination of this Lease for any reason, including but not limited to 4 termination because of default by Tenant, Tenant shall execute, acknowledge, and 5 deliver to Lessor, within thirty (30) days after receipt of written demand therefor, a 6 good and sufficient deed whereby all right, title, and interest of Tenant in the 7 Premises is quitclaimed to Lessor. Should Tenant fail or refuse to deliver the 8 required deed to Lessor, Lessor may prepare and record a notice reciting the 9 failure of Tenant to execute, acknowledge, and deliver such deed and said notice 10 shall be conclusive evidence of the termination of this Lease and of all rights of 11 Tenant or those claiming under Tenant in and to the Premises. 12 13 19. LESSOR'S RIGHT TO RE-ENTER (PMGE23.2 S) 14 15 Tenant agrees to yield and peaceably deliver possession of the Premises to Lessor 16 on the date of termination of this Lease, whatsoever the reason for such 17 termination. 18 19 Upon giving written notice of termination to Tenant, Lessor shall have the right to 20 re-enter and take possession of the Premises on the date such termination 21 becomes effective without further notice of any kind and without institution of 22 summary or regular legal proceedings. Termination of the Lease and re-entry of 23 the Premises by Lessor shall in no way alter or diminish any obligation of Tenant 24 under the lease terms and shall not constitute an acceptance or surrender. 25 26 Tenant waives any and all right of redemption under any existing or future law or 27 statute in the event of eviction from or dispossession of the Premises for any lawful 28 reason or in the event Lessor re-enters and takes possession of the Premises in a 29 lawful manner. 30 31 20. GOVERNING LAW AND VENUE (9.16 S) 32 33 This agreement has been negotiated and executed in the State of California and 34 shall be governed by and construed under the laws of the State of California. In 35 the event of any legal action to enforce or interpret this agreement, the sole and 36 exclusive venue shall be a court of competent jurisdiction located in Orange 37 County, California, and the parties hereto agree to and do hereby submit to the 38 jurisdiction of such court, notwithstanding Code of Civil Procedure Section 394. 39 // 40 // 41 // 42 // 43 // 44 // 45 // EXHIBIT A WEST BAY PARK SITE That certain parcel of land in the City of Newport Beach, County of Orange, State of California described in a Deed to the City of Newport Beach filed in Book 13905, Pages 1436 through 1439 of Official Records in the office of the County Recorder of said County, said certain parcel being more particularly described as follows: All that portion of Blocks 4, 5 and 51 of irvine's Subdivision filed in Book 1, Page 88 of Miscellaneous Maps in the office of said County Recorder described as follows: Beginning at the southwesterly terminus of that certain course in the southeasterly right-of-way line of Irvine Avenue shown as N 40°38'10" E 333.39 feet on Record of Survey Map No. 80-1102 filed in Book 105, Page 5 of Records of Survey in the office of the County Surveyor of said County; thence along said right-of-way line N 40°38'10" E 303.39 feet; thence S 49°22'09" E 160.00 feet to the beginning of a tangent curve concave to the north and having a radius of 260.00 feet; thence easterly along said curve through a central angle of 64°14'30" a distance of 291.52 feet; thence non - tangent to said curve S 19°22'51" W 349.97 feet; thence S 70°37'09" E 31.97 feet to that certain course having a bearing and length of S 53°22'27" W 442.40 feet in the northerly boundary of that certain parcel of land described in deed to the State of California recorded in Book 11382, Page 1876 of said Official Records; thence along said boundary S 53°24'17" W 338.26 feet; thence N 36235'43" W 95.87 feet to a point on a non -tangent 175.00-foot radius curve that is concave to the northeast, a radial line to said point bears S 1°18'21" E; thence northwesterly along said last mentioned curve, through a central angle of 72°11'59", a distance of 220.52 feet to the beginning of a reverse curve concave to the southwest and having a radius of 175.00 feet; thence northwesterly along said last mentioned curve, through a central angle of 44°45'00", a distance of 136.68 feet; thence N 63251'22" W 23.07 feet to a point in the southeasterly right-of-way line of said Irvine Avenue, said point being in a 725.00-foot radius curve concave to the southeast, a radial to said point bears N 63°51'22" W; thence northeasterly along said last mentioned curve, through a central angle of 14°29'32", a distance of 183.38 feet to the Point of Beginning. f:\users\pbw\pmedina\easement\westbay.doc EXHIBIT "B" N NORTH R = 725.00' = 14° 29'32" L = 183.38' R = 175.00' = 44° 45'00" = 6 / 700 BLOCK E WEST BAY PARK SITE PER O.R.13905/1436 R = 17.5.00' = 72 ° 11' ;.9" 52' N 36 ° 35'4.3" YV' O� Q71 sioN R = 26 00' 64014'30" \ L = 2 9 ; 5 - ' • Ne.port infor41 .on Sy.tO' Puoiic Work Deportment January 1998