HomeMy WebLinkAboutC-8306-3 - Nonexclusive Parking License AgreementNONEXCLUSIVE PARKING LICENSE AGREEMENT
This NONEXCLUSIVE PARKING LICENSE AGREEMENT ("License") is entered into as of
May 29, 2017 ("Effective Date") by and between HOAG MEMORIAL HOSPITAL
PRESBYTERIAN, a California non-profit public benefit corporation ("Licensor"), and City of
Newport Beach, a municipal corporation and charter city ("Licensee"), with reference to the following
Recitals:
RECITALS:
A. Licensor is the owner of that certain real property commonly known as "Hoag Hospital
Campus" located in Newport Beach, California ("Project'). Within the Project is a Parking Lot
located at Parcel 423-011-28, Newport Beach, California and commonly referred to as the "Sunset
Lot".
B. Licensee desires to obtain permission to use a portion of the Sunset Lot at various dates
and times.
C. The parties agree that Licensee's right to perform certain acts within the Project will be
upon and subject to the terms, covenants and conditions herein set forth, and Licensee covenants as a
material part of the consideration for this License to keep and perform each and all said terms,
covenants and conditions and the parties further agree that this License is made upon condition of such
performance.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises hereinafter set forth, the parties
hereto agree as follows:
1. LICENSE OF PARKING SPACES.
Licensor hereby licenses to Licensee, and Licensee licenses from Licensor, not to exceed 32
unreserved and unassigned parking spaces in the Sunset Parking Lot ("Parking Areas") as
generally shown on the Site Plan attached hereto as Exhibit "A". Licensee shall not be permitted
to park in any other area on the Project without the prior, express written consent of Licensor. The
shuttle buses of Licensee shall only follow the route depicted in Exhibit "A" attached hereto.
2. TERM.
The term of the License ("Term") shall commence on June 17, 2017 ("Commencement Date") and
expire on September 4, 2017 ("Expiration Date") and shall include only the following time periods:
every Saturday from 7 a.m. to the following day (Sunday) at 10 p.m., July 4, 2017 from 7 a.m. to
10 p.m., and September 4, 2017 from 7 a.m, to 10 p.m. All of the above times refer to Pacific
Time. Notwithstanding, Licensor may terminate the License upon thirty (30) days advance written
notice to Licensee.
3. BASE RENT.
Licensee shall pay Licensor as rent the amount of Six Thousand Eighty Dollars and 00/100
($6,080.00) ("Rent") for the Term. All Rent due hereunder shall be due and payable to Licensor
prior to use. All other items of Rent shall be due and payable by Licensee on or before twenty (20)
days after Licensor delivers to Licensee a statement or invoice therefor.
4. HOLDING OVER.
If Licensee holds over after the Expiration Date, with or without the express or implied consent of
Licensor, such tenancy shall be from day-to-day only, and shall not constitute a renewal hereof or
an extension for any further term, and in such case Rent shall be payable at a daily rate equal to
Five Hundred and 00/100 ($500.00) per calendar day.
5. PERMITTED USE.
Licensee shall use the Parking Areas for parking purposes only for its customers and employees
("Licensee's Parkers") using the shuttle only in accordance with the rules and regulations
established by Licensor or its agent from time to time.
6. TAXES.
Licensor shall pay, before delinquency, all real estate taxes and assessments levied or assessed
against the Parking Areas after the Commencement Date. However, Licensee shall pay any and all
governmental fees, taxes, or assessments levied or charged with respect to the use of the parking
spaces, which are the subject matter hereof.
7. UTILITY SERVICES.
Licensor shall provide the lighting necessary for the efficient operation of the Parking Areas
8. LICENSEE INSTALLATIONS. ALTERATIONS AND ADDITIONS.
Licensee shall not make alterations, additions or improvements to the Parking Areas (collectively
referred to as "Alterations") without first obtaining the written consent of Licensor in each
instance, which consent may be withheld in Licensor's sole discretion. Prior to starting work,
Licensee shall furnish Licensor with plans and specifications reasonably acceptable to Licensor;
names of contractors reasonably acceptable to Licensor; copies of contracts; necessary permits and
approvals; evidence of contractor's and subcontractor's insurance in form and amounts reasonably
required by Licensor (it being also understood and agreed that all of such Alterations shall be
insured by Licensee pursuant to this License immediately upon completion thereof); and any
security for performance that is reasonably required by Licensor. Changes to the plans and
specifications must also be submitted to Licensor for its approval. Alterations shall be constructed
in a good and workmanlike manner using materials of a quality that is at least equal to the quality
designated by Licensor as the minimum standard for the Parking Areas. Licensor may designate
reasonable rules, regulations and procedures for the performance of work in the Parking Areas, to
the extent reasonably necessary to avoid disruption to the operations of the hospital and shall have
the right to designate the time when Alterations may be performed. Licensee shall not use (and
upon notice from Licensor shall cease using) contractors, services, workmen, labor, materials or
equipment that, in Licensor's reasonable judgment, would cause or is likely to cause stoppage or
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impairment of work or delivery services or any other services in or about the hospital. If there
shall be any such stoppage or impairment as the result of any such labor dispute or potential labor
dispute, Licensee shall immediately undertake such reasonable action as may be necessary to
eliminate such dispute or potential dispute, including, but not limited to (1) removing all disputants
from the job site until such time as the labor dispute no longer exists, (2) seeking an injunction in
the event of a breach of contract between Licensee and any of Licensee's contractors, and (3) filing
appropriate unfair labor practice charges in the event of a union jurisdictional dispute. Upon
completion, Licensee shall cause of Notice of Completion to be recorded in the Orange County
Recorder's office in accordance with Section 3093 of the California Civil Code or any successor
statue, and Licensee shall famish "as -built" plans completion affidavits, full and final waivers of
lien in recordable form, and receipted bills covering all labor and materials. Licensee shall assure
that the Alterations comply with all insurance requirements and Laws. Licensor's approval of an
Alteration shall not be a representation by Licensor that the Alteration complies with applicable
Laws or will be adequate for Licensee's use. Any Alterations installed in the Parking Areas
including without limitation, all affixed security gates, security cameras and other fixtures, may
remain in the Parking Areas upon the expiration or earlier termination of this License; provided,
however, if upon providing approval of the Alteration, Licensor delivers Licensee written notice
that such Alteration must be removed upon the expiration or earlier termination of this License
then Tenant shall remove such Removal Alterations (and repair any resulting damage) immediately
upon the expiration or earlier termination of this License.
Licensee shall not permit or suffer any mechanics liens or other liens to be placed in connection
with any work or service done or purportedly done by or for benefit of Licensee. At Licensor's
request, Licensee shall provide Licensor with enforceable, conditional and final lien releases (or
other evidence reasonably requested by Licensor to demonstrate protection from Liens), in form
satisfactory to Licensor, from all person's furnishing labor and/or materials at the Parking Areas.
Licensor will have the right at all reasonable times to post on the Parking Areas and record any
notices of non -responsibility which it deems necessary for protection from such liens. If a lien is
so placed, Licensee shall, within ten (10) days of notice from Licensor of the filing of the lien, fully
discharge the lien by settling the claim that resulted in the lien or by bonding or insuring over the
lien in the manner prescribed by applicable lien Law. If Licensee fails to discharge the lien, then,
in addition to any other right or remedy of Licensor, Licensor may bond or insure over the lien or
otherwise discharge the lien. Licensee shall reimburse Licensor for any amount paid by Licensor
to bond or insure over the lien or discharge the lien, including, without limitation, reasonable
attorneys' fees within ten (10) days after receipt of an invoice from Licensor.
9. NO BAILMENT.
THE PARTIES EXPRESSLY AGREE AND ACKNOWLEDGE THAT NO BAILMENT SHALL
BE CREATED BY THIS LICENSE AND LICENSOR SHALL NOT BE RESPONSIBLE FOR
ANY DAMAGE OR LOSS TO THE PERSONAL PROPERTY OF LICENSEE, LICENSEE'S
PARKERS, ITS EMPLOYEES, LICENSEES, OR INVITEES, OR ANY ARTICLE LEFT
THEREIN, WHETHER OR NOT THE CAUSE OF SAME IS DUE TO THE NEGLIGENCE OF
LICENSOR, ITS AGENTS OR EMPLOYEES.
10. INDEMNITY.
Licensee aggress to indemnify, defend, and hold Licensor and Hoag Memorial Hospital
Presbyterian, and each of its subsidiaries, Boards of Directors, Officers, Employees, and Agents
and managers ("Indemnities" and "Indemnified Parties"), harmless from any claim, cause of
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action, damage, liability or costs, including reasonable attorney's fees and costs of defense, arising
from or related to this License or Licensee's use of the Parking Areas and/or property.
11. INSURANCE.
During the term of this agreement, Licensee shall secure and maintain at all times during the term
of this agreement, at Licensee's sole expense, the insurance coverage required herein, with
insurance companies rated A by the A.M. Best Company, Occurrence coverage is preferred but if
claims made coverage is provided, it shall be maintained for a minimum of three (3) years after the
date of termination of this agreement.
Insurance required under this Agreement shall be
Commercial General Liability (bodily injury, property damage, personal injury, and vehicle
liability) insurance, with a single limit of not less than One Million and 00/100 ($1,000,000) per
Occurrence, or current limit carried, whichever is greater, and Two Million and 00/100
($2,000,000) in the Aggregate, or current limits carried, whichever is greater. Coverage shall
include, without limitation, coverage for bodily injury, including death; contractual liability
specifically covering the indemnity obligations stated herein and elsewhere in the Agreement, and
personal injury including coverage for suits brought by employees of Licensee.
Automobile Liability insurance to cover, without limitation, claims based on automobile liability
(bodily injury and property damage) including coverage for all owned, hired and non -owned
automobiles with minimum limits of Two Million Dollars and 00/100 ($2,000,000) Combined
Single Limit.
General Liability and Automobile Liability Insurance shall include the following provisions,
coverage, and endorsements:
The Indemnified Parties, Hoag Memorial Hospital Presbyterian shall be included as additional
insured's ("Additional Insured's").
Licensee and Licensee's insurance companies waive their rights to subrogation against the above
Additional Insured's.
The insurance carried by the Licensee shall include contractual liability endorsements insuring the
indemnity clause of this Agreement.
Licensee's insurance shall be primary coverage, and any insurance or self-insurance carried by
Indemnified Parties and Additional Insured's shall be excess and noncontributory.
Thirty (30) days prior written notice of cancellation or material change in the insurance must be
given to Licensee.
Licensee shall provide the Licensor with a certificate of insurance and endorsements evidencing
the required coverage. Failure to secure and/or maintain insurance coverage under this Agreement
shall be considered a material breach of this Agreement. Nothing contained in this subsection shall
be read to limit Licensee's indemnity responsibility under this Agreement.
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The failure to secure and maintain or add by endorsement any Indemnified Parry shall not act as a
defense to the enforcement of the terms of the Agreement. Any such insurance policy shall apply
separately to each insured against whom claim is made or suit is brought and shall contain no
provision, which excludes coverage of a claim made, by one insured under the policy against
another insured under the policy.
12. ASSIGNMENT/SUBLETTING.
Licensees may only assign, sublet, mortgage, or otherwise transfer or encumber its interest in this
License or the parking spaces Licensed hereunder with the prior written consent of Licensor.
13. DEFAULT.
It is agreed between the parties hereto that if any rent shall be due hereunder and unpaid, or if a
receiver be appointed to take possession of substantially all of Licensee's assets or of Licensee's
interest in this License, or if Licensee shall make a general assignment or arrangement for the
benefit of creditors, or if Licensee shall take any action under the insolvency or Bankruptcy act, or
if Licensee shall default and breach any other covenant or provision of this License, then the
Licensor, after giving the proper notice required by law, may remove any property and any and all
persons from the Parking Areas in the manner allowed by law. The Licensor may, at his option,
either terminate this License or maintain this License in full force and effect and recover the rent
and other charges as they become due, in which case Licensor shall have all of the rights and
remedies provided in California Civil Code Section 1751.4. In addition, the Licensor may recover
all rentals and any other damages and pursue any other rights and remedies which the Licensor
may have against the Licensee by reason of such default as provided by law.
14. NOTICES.
Whenever under the License provision is made for notice or demand, it shall be in writing and
signed by or on behalf of the party giving the notice or making the demand; it shall be served either
personally or by registered or certified mail; if served personally, service shall be conclusively
deemed made upon delivery; if served by registered or certified mail, service shall be conclusively
deemed made seventy-two (72) hours after the deposit thereof in the United States mail, postage
prepaid, with return -receipt requested. Any notice or demand to either party shall be given at the
addresses appearing below:
Licensor:
Hoag Memorial Hospital
Presbyterian
510 Superior Avenue, Suite 290
Newport Beach, CA 92663
Attn: Director, Real Estate
Licensee:
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92663
Attn: Public Works Director
Either party may change its address for purposes of this paragraph by notifying the other party of
such change by the methods herein provided.
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15. TRASH PICK-UP.
Licensor will be responsible to arrange for the clean-up of any trash left in the Parking Areas
attributable to Licensee's use and will submit an invoice to Licensee for the service. Minimally
clean-up will occur on a weekly basis and more frequently if warranted in the sole discretion of
Licensor. Licensee will reimburse Licensor for the cost of the service within twenty (20) days of
receipt of the invoice.
16. DAMAGE.
Licensee shall be responsible to repair any damage to the Parking Areas that is attributable to
Licensee in Licensor's sole and absolute discretion. If Licensee fails to make any repairs to the
Parking Areas for more than fifteen (15) days after notice from Licensor (although notice shall not
be required if there is an emergency), Licensor may make the repairs, and Licensee shall pay the
reasonable cost of the repairs to Licensor within thirty (30) days after receipt of an invoice,
together with an administrative charge in an amount equal to ten percent (10%) of the cost of the
repairs.
17. SIGNAGE.
Licensee shall be entitled to identification signage, at Licensee's expense. The location, quality,
design, style, lighting and size of all signage contemplated in this Section 17 shall be subject to
Licensor's prior written approval, in its sole discretion. Licensee shall be responsible, at its sole
cost and expense, for any requested revised signage that has been approved by Licensor. Upon the
expiration or earlier termination of this License, Licensee shall be responsible, at its sole cost and
expense, for the removal of all such signage and the repair of all damage to the Sunset Lot caused
by such removal. Any signs, notices, logos, pictures, names or advertisements which are installed
and that have not been individually approved by Licensor may be removed without notice by
Licensor at the sole expense of Licensee.
18. SECURITY.
If deemed necessary by Licensor in Licensor's sole and absolute discretion, Licensor may
implement additional security measures at Licensee's expense, including but not limited to posting
a security guard on site during Licensee's use or installing security cameras.
19. LICENSOR DEVELOPMENT RIGHTS.
Licensor has the right to make such changes to the Parking Areas as Licensor deems appropriate,
provided the changes do not, except temporarily during construction, materially affect Licensee's
ability to use the Parking Areas for the Permitted Use. Licensor shall also have the right (but not
the obligation) to temporarily close the Parking Areas if Licensor reasonably determines that there
is an imminent danger of significant damage to the Parking Areas or of personal injury to
Licensor's employees. The circumstances under which Licensor may temporarily close the Parking
Areas shall include, without limitation, electrical interruptions, hurricanes, civil disturbances, or an
internal or regional disaster. Licensor shall use commercially reasonable efforts to re -open the
Parking Areas following such temporary closure as soon as reasonably practicable. Licensor
hereby waives any and all rent offsets, damage claims or claims of constructive eviction which may
arise in connection with such activities.
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20. SURRENDER.
At the expiration or earlier termination of this License, Licensee shall remove Licensee's Property,
including but not limited to signage, benches, and awnings from the Parking Areas. If Licensee
fails to remove any of Licensee's Property within two (2) business days after the termination of this
License, Licensor, at Licensee's sole cost and expense, shall be entitled (but not obligated) to
remove and store Licensee's Property. Licensor shall not be responsible for the value, preservation
or safekeeping of Licensee's Property. Licensee shall pay Licensor, upon demand, the actual
expenses and storage charges incurred for Licensee's Property. In addition, if Licensee fails to
remove Licensee's Property from the Parking Areas or storage, as the case may be, within ten (10)
business days after written notice, Licensor may deem all or any part of Licensee's Property to be
abandoned, and title to Licensee's Property shall be deemed to be immediately vested in Licensor.
21. RELOCATION.
Licensor, at its expense, at any time before or during the Term, may relocate Licensee to
reasonably comparable space ("Relocation Space") within the Sunset Lot upon not less than sixty
(60) days' prior written notice to Licensee. Licensor shall pay Licensee's reasonable costs for
moving Licensee's Property and revising Licensee's signage located within the Parking Areas, if
required.
22. DEVELOPMENT AGREEMENT.
The Parking Areas are subject to The Development Agreement between Licensor and the Lessee
("Development Agreement"). Licensee will not undertake any activities that do not comply with
the Development Agreement. Licensee agrees to protect, defend, indemnify and hold harmless
Licensor against and from any and all claims from Villa Balboa arising from or relating to (i)
Licensee's use of the Parking Areas and its related improvements and the installation, operation,
maintenance and repair thereof. For the purposes hereof, "claims" is defined to include, without
limitation, obligations, liabilities, claims, liens, encumbrances, actions, causes of action, losses,
damages, costs, expenses and attorneys' fees and costs; and in case any action or proceeding is
brought against Licensor by reason of any such claim, Licensee, upon notice from Licensor, agrees
to defend the same at Licensee's sole cost and expense by counsel reasonably satisfactory to
Licensor.
23. LICENSEE'S WORK.
a) Slurry (Seal -Coat) and Strinins of Parkin¢ Area. Prior to the Commencement Date,
Licensee will be required to slurry (seal -coat) and restripe (as depicted in Exhibit A) the
Parking Area that will be used for parking. Work will be in compliance with Section 8
above.
b) Relocation of Three Containers. Licensee and Licensor acknowledge that there are
currently three containers parked in the Parking Area. Prior to the commencement of the
slurry seal -coat and striping of the Parking Area, Licensor will arrange for the re -location of
the containers, ensure that such containers are relocated, and Licensee will reimburse
Licensor Two Thousand Seven Hundred Seventy-five Dollars and 00/100 ($2,775.00)
for the cost of such re -location. This amount is in addition to the Rent.
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24. MISCELLANEOUS.
a) Waiver of Default. The waiver of either party of any default in the performance by the
other party of any covenant contained herein shall not be construed to be a waiver of any preceding
or subsequent default of the same or any other covenant contained herein.
b) Successors. Subject to any restrictions or assignment set forth herein, each and every
covenant and condition of this License shall bind and inure to the benefit of the parties hereto and
their respective heirs, legal representatives, successors, and assigns.
c) Interpretation. The captions for each of the paragraphs of this License are inserted for
convenience only and shall have no effect upon the interpretation of this License. If either party
consists of more than one person, each person shall be jointly and severally liable hereunder. No
provisions of this License shall be interpreted for or against either parry because that party or that
party's legal representative drafted such provision.
d) Request for Consent of Approval. Whenever under the terms of this License either
Licensor's or Licensee's consent or approval is required as a condition to action by the other party,
the request for such consent or approval shall be in writing.
e) No Benefit to Third Parties. The parties acknowledge and agree that the provisions of
this License are for the sole benefit of Licensor and Licensee and not for the benefit, directly, or
indirectly, of any other person entity, except as otherwise expressly provided herein.
f) No Brokers. Licensor and Licensee each represents and covenants to the other that
there are no brokerage commissions or finder's fees payable with respect to the transactions
contemplated by this License. Each party agrees to indemnify, defend, and hold the other parry
harmless from and against all demands, claims, losses, liabilities, actions, causes of action or costs
and expenses, including, without limitation, attorney's fees, of any kind arising out of a contention
by any person or entity that any real estate commission or finder's fee is payable because of the
acts of such indemnifying parry. If such claim for a real estate commission or finder's fee is
claimed by reason of the actions of both parties, the party whose actions first gave rise to such
claims shall be responsible therefore.
g) Entire Instrument. This License contains the parties entire agreement with respect to
subject matter hereof and the parties agree and acknowledge that any and all agreements and
discussions heretofore or contemporaneously made by the parties with respect to the subject matter
hereof are set forth in this License. This License cannot be modified in any respect, except by a
writing executed by both of the parties hereto.
h) Use of Language. Words of any gender used in this License shall be held and construed
to include any other gender, and words in the singular shall be held to include the plural, unless the
context requires otherwise.
i) Severability. In the event that any provision of this License is found to be invalid,
unenforceable, or illegal, it shall be deemed deleted from the License, and the balance of the
provisions of this License shall be valid and enforceable as to the parties as if the deleted portion
were never a party hereof.
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LICENSOR: Hoag Memorial Hospital Presbyterian
By:
Name: Sanford Smit
Title: Sr. Vice President
By: "
Name: Karen Torres
Title: Director, Real Estate
LICENSEE: CITY OF NEWPORT BEACH,
a California municipal corporation
Date: 51 3 b) l'-?
By:
Name: Dave Kiff
Title: City Manager
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 5-d6 A ?
4Aaron C. Harp VN
•= �.
City Attorney
Exhibit "A"
Location Maps and Shuttle Route
NOTES: •,.
PARK*4e WACES = 26
r-9 U-1
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HOAG HOSPITAL TROLLEY SLURRY & STRIPING CITY OF NEWPORT BEACH
LOCATION MAP PUBLIC WORKS DEPARTMENT
C-8273-1 1 04/25/2017
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