HomeMy WebLinkAbout09 - Lease Agreement with the Balboa Angling Club0
ITEM 9
TO: Members of the Newport Beach City Council
FROM: Dave Kiff, Assistant to the City Manager
SUBJECT: Lease Agreement with the Balboa Angling Club
RECOMMENDED
ACTION:
Approve proposed lease with the Balboa Angling Club.
BACKGROUND The City currently leases the land and clubhouse at 200 A Street on the Balboa
Peninsula to the Balboa Angling Club. The Club, founded in 1926, was created
to "further the sport of rod and reel fishing' and for the "conservation of fish and
the good will of fishermen."
Today, the Club's 439 members pay $100 per month (or $135 per family) to
support the Club's endeavors, which include:
• Youth activities, including an annual fishing trip for 50 youth, fishing lessons
from the beach area, and a junior fishing tournament
• Marine conservation programs, including a juvenile white sea bass pen
• Sportfishing events, including the annual Master Angler Billfish Tournament,
the Lily Call Tournament, and more.
Current Lease The current lease began in April 1947. Later amendments extended the Lease to
1967, then to 1977, and then to January 31, 1999. The Lease expired on that date -
the Club has since operated on a month -to -month basis.
The current lease does not require the Club to pay rent for the premises.
"Consideration" has been that the Club maintain the clubhouse and pier in good
condition and that the Club use the premises for "civic, educational, and
recreational purposes ..."
Proposed Lease The proposed lease does not significantly change the terms of the current lease.
It retains a similar " consideration" clause (where the Club pays no rent in
exchange for maintaining the premises) but updates language relating to the
Club's insurance and the requirement that the Club hold the City harmless for
actions on the premises. It proposes a 25 -year term for the new lease, causing an
expiration date of May 10, 2024.
Newport Beach City Council
COMPARISON -
CURREWLEASEAND
PROPOSEDLEASE
Page 2
Comparing the Current and Proposed Leases
Lease
Premises
Term
Rent
Insurance
No rent. Club must
GL = $1 MN
Current
Pier and Clubhouse
25 years
(expired in
maintain pier & building
in good condition and
PI = $1 MN
Lease
at 200 A Street, Balboa
January 1999)
provide educational, civic,
Fire = $100K
and recreational events
No rent. Club must
$lMN combined single
maintain pier & building
limit for bodily injury,
Proposed
P
Pier and Clubhouse
25 ears
Y
in good condition and
personal injury, and
Lease
at 200 A Street, Balboa
(to May 2024)
provide educational, civic,
property damage. 9076
and recreational events
fire coverage+ hold
harmless provision.
ATTACBNERVIR Attachment A: Map showing Lease premises
Attachment B: Proposed Lease Agreement
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Attachment A
• Depiction of Leased Premises
BALBOA ANGLING CLUB
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Attachment B
Proposed Lease Agreement
BALBOA ANGLING CLUB
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LEASE
Balboa Angling Club
• This Balboa Angling Club Lease ( "Lease ") is made and entered into this 10'^ day of
May, 1999, by and between the CITY OF NEWPORT BEACH, a chartered municipal
corporation ( "Lessor'), and the BALBOA ANGLING CLUB, a California corporation
( "Lessee ").
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RECITALS
A.
The City of Newport Beach holds in trust certain real property located at the foot
of A Street and the Bayfront on the Balboa Peninsula "200 A street site," as
shown on Exhibit "A" which is attached hereto and incorporated herein by
reference).
B.
Lessee is a non - profit corporation organized for the purposes of furthering the
sport of rod and reel fishing, the conservation of fish, and the goodwill of persons
in the fishing industry.
C.
Lessee and Lessor entered into a long -term lease on April 1, 1947. The 1947
•
Lease was later extended until January 31, 1999. Lessee held over under the
terms of the 1947 Lease on a month -to -month basis since the 1947 Lease
expired.
D.
Over the term of the 1947 Lease, and pursuant to its terms, improvements were
constructed on the site including a pier and clubhouse at 200 A Street, Balboa.
Lessee desires to enter into a twenty -five (25) year lease with Lessor for the 200
A Street site and the pier and clubhouse (collectively referred to herein as "the
Premises "), and Lessee is willing to lease the Premises on the terms and
conditions set forth in this Lease agreement.
E.
It is the intention of Lessee to continue to operate the Premises as an angling
club to be used for educational, civic, and recreational purposes, and that will
generally be offered to the public for recreational, civic and educational
programs.
F.
In consideration of the Lease, Lessee will maintain the Premises in good
condition and repair throughout the term of this Lease, ensure adequate fire and
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other public safety equipment as determined by the Newport Beach Fire Marshal
or designee, and insure the Premises to the extent described in this Lease.
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NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS
hereinafter set forth, it is agreed as follows:
1. DESCRIPTION OF LEASED PREMISES •
Lessor hereby leases, and Lessee does hereby accept a Lease of the Premises legally
described.as:
All land within the northerly prolongation of A Street, as shown on a
map of Balboa Tract, recorded in Map Book 4, Page 11, records of
Orange County, California, and lying between the northerly line of
Bay Avenue, as shown upon said map and the pierhead line as
established by United States Government Engineers.
2. TERM
The term of this Lease shall be for a period of twenty -five (25) years, commencing on
the 10th day of May, 1999 and terminating on May 10, 2024 unless terminated sooner
as provided for in this Lease.
3. CONSIDERATION
In lieu of rent, the consideration for this Lease shall be Lessee's agreement to maintain
and operate the Premises in good condition and repair for the term of the Lease at no
cost to Lessor; the commitment of Lessee to operate the facility as recreational, civic,
and educational facility open to the public as provided in section four.
4. USE
Lessee shall use the Premises to manage and operate an Angling Club ( "Club ") to
further the purpose of rod and reel fishing, the conservation of fish, and the goodwill of
persons in the fishing industry, including the hosting and promoting of civic, recreational,
and educational programs. Lessee shall operate and manage the Club in a manner that
does not violate State or Federal discrimination laws. Lessee shall make all services,
programs and facilities available to the public at a cost that does not exceed the cost to
provide the services, program or facility.
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5. CAPITAL IMPROVEMENTS
. A. All improvements constructed during the term of this Lease shall become the
property of Lessor upon expiration of the Lease.
B. Lessee shall be required to obtain, prior to commencing the construction of any
improvements, all permits, licenses or approvals that may be required by Lessor
acting in its governmental capacity.
C. Lessee shall obtain the written approval of Lessor prior to the construction or
installation of any improvements with an estimated cost of five thousand dollars
($5,000.00) or more.
D. Lessee shall indemnify, defend and hold Lessor harmless from any and all claims
for labor or materials in connection with the construction, repair, restoration,
replace, alteration, installation or improvement of any structure, capital
improvement, equipment or facilities on the Premises and from the costs of
defending such claims, including reasonable attorney's fees. Lessee shall not
suffer or permit to be enforced against all or a portion of the Premises any
mechanic's, materialmen's, contractor's or subcontractor's liens, or claim for
• damage that is in any way related to any construction, repair, restoration,
replace, alteration, installation or improvement on the Premises. Lessee shall pay
any lien, claim or demand related to any construction, repair, restoration, replace,
alteration, installation or improvement of the Premises that is imposed or
recorded on the Premises before any action is brought to enforce the same
against the Premises. However, the provisions of this Subsection shall not
prevent Lessee from contesting the validity of such lien, claim or demand,
provided that in such event, Lessee shall, at its expense, defend itself and Lessor
against the same and shall pay and satisfy any adverse judgment that may be
rendered before enforcement against Lessor or the Premises. Lessor shall have
the right, in its sole discretion, to require, Lessee to furnish a surety bond
satisfactory to Lessor to fully protect the Premises and Lessor from the effect or
enforcement of any lien, claim or demand.
E. Lessee shall give Lessor five (5) days prior written notice of any construction,
repair, restoration, replace, alteration, installation or improvement on the
0 Premises that is estimated to cost more than five thousand dollars ($5,000.00).
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Lessee shall coordinate the scheduling of any work with any project of Lessor to
minimize inconvenience and cost.
6. BUSINESS ACTIVITIES is
Lessee shall not grant any concession, license, permit or privilege for the conduct of
any business or other operation for profit on the Premises without the prior amendment
of this Lease, approved by the CityCouncil.
7. UTILITIES AND TAXES
Lessee shall promptly pay all charges for water, sewer, electricity, refuse collection and
other municipal or utility services provided to the Premises. Lessee shall also pay, prior
to delinquency, any general and special taxes or assessments or other governmental
charges, if any, which may be levied on the Premises, improvements, Lessee's use of
the Premises or any possessory interest created by this Lease. Satisfactory evidence
of such payments shall be delivered to Lessor within seventy -two (72) hours of a written
request for such information.
8. INSURANCE •
In addition to Lessee's obligations pursuant to Section 9, Lessee shall provide and
maintain, at its own expense, policies of liability insurance as follows:
A. All required policies shall be signed by a person authorized by that insurer to bind
coverage on its behalf and must be filed with Lessor prior to execution of this
Lease. Current certification of coverage shall be provided throughout the term of
this Lease. Except for workers'compensation, all insurance policies shall include
Lessor and its elected officials, officers, agents, representatives and employees
as additional insureds.
B. All insurance policies shall be issued by an insurance company currently
authorized by the Insurance Commissioner to transact business of insurance in
the State of California, with an assigned policyholders' Rating of A (or higher)
and Financial Size Category Class VII (or larger) in accordance with the latest
edition of Bests Key Rating Guide unless otherwise approved by the City's Risk
Manager.
C. Lessee shall provide workers' compensation insurance covering all employees of
Lessee, per the laws of the State of California.
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D. Lessee shall provide commercial general liability insurance covering third party
liability risks, including without limitation, contractual liability, in a minimum
• amount of one million dollars ($1,000.000.00) combined single limit per
occurrence for bodily injury, personal injury and property damage. If commercial
general liability insurance or other form with a general aggregate is used, either
the general aggregate shall apply separately to this Lease, or the general
aggregate limit shall be twice the occurrence limit.
E. Lessee shall provide fire and extended coverage for not less than ninety percent
(90 %) of the cost of replacement of all insurable improvements on the Premises.
F. Except for workers' compensation, the policy or policies shall be endorsed to
state that coverage shall not be canceled by either party, except after thirty (30)
days prior notice has been given in writing to Lessor. Lessee shall give Lessor
prompt and timely notice of claim made or suit instituted arising out of Lessee's
operation hereunder. Lessee shall also procure and maintain, at its own cost
and expense, any additional kinds of insurance, which in its own judgment may
be necessary for its proper protection and prosecution of the work.
G. Lessee agrees that, in the event of loss due to any of the perils for which it has
. agreed to provide comprehensive general liability insurance, Lessee shall look
solely to its insurance for recovery. Lessee hereby grants to Lessor, on behalf of
any insurer providing comprehensive general and automotive liability insurance
to either Lessee or Lessor with respect to the services of Lessee herein, a waiver
of any right of subrogation which any such insurer of said Lessee may acquire
against Lessor by virtue of the payment of any loss under such insurance.
L.
9. HOLD HARMLESS
Lessee shall indemnify, defend, save and hold harmless Lessor, its City Council, boards
and commissions, officers and employees from and against any and all loss, damages,
liability, claims, allegations of liability, suits, costs and expenses for damages of any
nature whatsoever, including, but not limited to, bodily injury, death, personal injury,
property damages, or any other claims arising from any and all negligent acts or
omissions of Lessee, its employees, agents or subcontractors in the use and
maintenance of the Premises pursuant to this Lease.
10. MAINTENANCE OF IMPROVEMENTS
A.
Maintainance of Improvements. Lessee shall, at its own cost and expense,
Premises in
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maintain the good order and repair and in clean, orderly, safe and
sanitary condition. Lessee shall be responsible for the repair of any damage to
the Premises or any improvement on the Premises.
B.
Lessor May Elect to Repair and Maintain at Expense of Lessee. If, in the
judgment of the Lessor, the standards of maintenance and repair required by this
Lease are not being maintained, Lessor may elect to correct any deficiency after
written notice thereof to the Lessee and Lessee's failure to cure the default.
Lessee shall pay to the Lessor on demand any and all sums expended by Lessor
in correcting any such deficiency together with interest at the legal rate. If, in the
judgment of the Lessor, the disrepair or lack of maintenance constitutes an
emergency, the notice shall be a twenty -four (24)hour notice to remedy; in all
other cases it shall be a five (5) day notice.
C.
Lessor's Right of Inspection. Lessor reserves the right by its authorized agents,
employees or representatives to enter the Premises upon forty -eight (48) hours
advance notice, for purposes of inspection to attend to or protect the Lessor's
interest under this Lease.
D.
Compliance with Laws. Ordinances and Regulations. Lessee agrees to comply
with all rules, regulations, statutes, ordinances and laws of the State of California,
County of Orange, and the City of Newport Beach, or any other governmental
body or agency having lawful jurisdiction over the Premises or the use and
operation of the Premises.
11. ASSIGNMENT
Lessee shall not assign, transfer, sublease, mortgage, hypothecate or give any grant of
control of this Lease or the Premises, or any part hereof, either voluntarily or
involuntarily, unless first approved by the City Council.
12. RESTORATION
If during the term of this Lease, any building or improvement erected by Lessee on the
Premises is damaged or destroyed by fire or other casualty, Lessee shall, at its cost and
expense, repair or restore the same according to the pre - casualty condition or, at
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Lessee's option, Lessee may elect to replace the building or improvement. In the event
that Lessee elects to replace the building or improvement, Lessee shall obtain Lessor's
. approval of the proposed plans and specifications pursuant to this Lease. Any
construction, repair, restoration, replace, alteration, installation or improvement shall be
commenced within one hundred and eighty (180) days after the damage or loss occurs
and shall be completed with due diligence, but not longer than one (1) year after such
work is commenced unless delay is caused by events beyond the control of Lessee. If
Lessee elects not to repair or rebuild the improvements, it may terminate this Lease by
giving Lessor written notice of termination and by assigning all insurance proceeds
relating to the casualty to Lessor. If Lessee elects to terminate the Lease it shall be
obligated to completely clear and restore the building site to its original condition, and all
proceeds from insurance received due to the fire or casualty shall become property of
Lessor.
13. DEFAULT AND TERMINATION OF LEASE
A. Default. Time and each of the terms, covenants and conditions hereof are
expressly made the essence of this Lease. If the Lessee shall fail to comply with
any of the terms, covenants, or conditions of this Lease, including, but are not
limited to:
1. Failure of Lessee to keep current on all utility payments for the Premises;
2. Failure of Lessee to keep the Premises in state of repair and operation
dictated by Section 3 of this Lease ( "Consideration ") and to keep it in a neat,
clean, orderly, safe and sanitary condition;
3. Failure of Lessee to maintain insurance or comply with the obligations to
defend, indemnify and hold Lessor harmless; or subject to the provisions of
Section 10(B), Lessor may terminate this Lease if Lessee fails to remedy
any default related to the payment of money within thirty (30) days after
service of a written notice from Lessor to do so, or fails to commence the
cure of any other default within thirty (30) days and diligently prosecute the
same to completion. Lessee may also terminate this Lease if Lessee
abandons or vacates the Premises.
4. Failure to operate the Premises as a recreational, civic and education facility
open to the public.
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B.
Surrender of Possession upon Termination. Lessee shall, upon the expiration or
termination of this Lease, peaceably surrender the Premises with all buildings
and improvements, in the same condition as when received or constructed,
excepting reasonable use and wear thereof, and damage by fire, act of God, or
by the elements. The provisions of this subsection shall be effective upon
expiration or termination of this Lease regardless of whether Lessee holds over
under the provisions of Subsection E.
C.
Remedies Cumulative. The rights, powers, elections and remedies of Lessor are
cumulative and no one of them shall be considered exclusive of the other or
exclusive of any rights or remedies allowed by law. Lessor's exercise of one or
more rights, powers, elections or remedies shall not impair or be deemed a
waiver of Lessor's right to exercise any other.
D.
No Waiver. No failure of Lessor to exercise any right or power arising from any
omission, neglect or default of the Lessee shall impair any such right or power or
shall be construed as a waiver.
E.
Holdina Over. If the Lessee remains in possession after the expiration of this
Lease for any cause, Lessee's possession shall be deemed a tenancy from
month -to -month upon the same terms, conditions, and provisions of this Lease.
14.EMINENT DOMAIN
In the event the whole or part of the Premises is condemned by a public entity in the
lawful exercise of the power or eminent domain, this Lease shall cease as to the part
condemned upon the date possession of that part is taken by the public entity. If only a
part is condemned and the taking of does not substantially impair the capacity of the
remainder to be used for the purposes required in this Lease, Lessee shall continue to
be bound by the terms, covenants and conditions of this Lease. If only a part is
condemned and the taking of that part substantially impairs the capacity of the
remainder to be used for the purposes required in this Lease, Lessee shall have the
election of:
A. Terminating this Lease and being absolved of obligations hereunder which have
not accrued at the date possession is taken by the public entity; or
B. Continuing to occupy the remainder of the property and remaining bound by the
terms, covenants and conditions of this Lease. Lessee shall give notice in writing
of this election hereunder, within thirty (30) days of the date possession of the
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part is taken by the public entity. Lessor shall be entitled to receive and shall
receive all compensation for the condemnation of all or any portion of the
. property by exercise of eminent domain. Lessee shall be entitled to receive and
shall receive all compensation for the condemnation of all or any portion of the
improvements constructed by Lessee on the Premises by the exercise of
eminent domain.
15.NOTICES
Any notice or notices provided for by this Lease or by law, to be given or served upon
the Lessee, may be given or served by mail, registered or certified, with postage
prepaid, and if intended for the:
City of Newport Beach
City Manager
Post Office Box 1768
Newport Beach, California 92659, '
or at such other address as may be hereafter furnished to the Lessee in writing, and if
intended for the Lessee, addressed to the:
Balboa Angling Club President
200 A Street
. Balboa, California, 92661
or at such other address as may be hereinafter furnished to the Lessor in writing. In the
alternative, notice may be served personally upon any corporate officer of Lessee. Any
notice or notices provided by this Lease or by law to be served upon Lessor may be
served personally upon the Mayor of the City of Newport Beach or the City Clerk of the
City of Newport Beach. Notice pursuant to this section shall be deemed given forty -
eight (48) hours from and after the deposit in the United States mail.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day
and year first above written.
LESSOR:
CITY OF NEWPORT BEACH
By:
Dennis D. O'Neil,
Mayor
Dated:
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LESSEE:
BALBOA ANGLING CLUB
m
Greg Stotesbury,
President
Dated: •
APPROVED AS TO FORM AND CONTENT:
By:
Robin L. Clauson,
Assistant City Attorney
ATTEST:
LaVonne Harkless,
City Clerk
F:\ users \cat\shared \Ag \BalboaAngling \043099.doc
Dated:
M:
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•
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Exhibit A
Depiction of Leased Premises
BALBOA ANGLING CLUB
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200 A Street, Balboa
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