HomeMy WebLinkAboutC-1609(A) - A Street, 200 - Lease Agreement 2024CT'
AM
LEASE AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND
BALBOA ANGLING CLUB
THIS LEASE AGREEMENT ("Lease") is made and entered into this 2-1 day of
AuGy5-r 2024 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a
California municipal corporation and charter city ("Lessor" also referred to herein as
"City"), and BALBOA ANGLING CLUB, a California nonprofit corporation ("Lessee").
Lessor and Lessee may individually be referred to as "Party" and collectively referred to
as "Parties" herein.
R E C I T A LS
A. Lessor holds title to certain real property, part of which is in fee and another part
in trust on behalf of the State of California, located at the foot of A Street and the
bayfront on the Balboa Peninsula, at 200 A Street Newport Beach, California
92661, Assessor's Parcel Number 048-133-16 ("Property"). The Property is legally
described in Exhibit "A" and depicted in Exhibit "B," both of which are attached
hereto and incorporated herein by reference.
B. Lessee is a nonprofit 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 has operated the Balboa Angling Club on said Property since the first lease
with the City was entered into on April 1, 1947 ("1947 Lease").
D. Over the term of the 1947 Lease and pursuant to its terms, improvements were
constructed on a portion of the Property including a pier, a clubhouse, and parking
stalls ("Premises"). The Premises are legally described and depicted in Exhibit "C,"
which is attached hereto and incorporated herein by reference.
E. On May 10, 1999, City and Lessee entered into the currently existing lease
agreement 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 ("Existing Lease").
F. The Existing Lease expires on August 30, 2024, and the Parties desire to enter
into this Lease for a new term subject to the terms and conditions contained herein
as of the Effective Date. Execution of this Lease shall concurrently terminate the
Existing Lease.
G. A portion of the Premises includes state tidelands ("Tidelands") and is thus subject
to restrictions, including, but not limited to, limitations specified in Chapter 415 of
the California State Statutes of 1975 and Chapter 74 of the California State
Statutes of 1978, as amended ("Tidelands Grant").
H. The Tidelands Grant requires the Tidelands to be used to promote the public's
interest in water -dependent or water -oriented activities, as described more fully
therein. The Tidelands Grant provides that the Tidelands shall not, at any time, be
granted, conveyed, given, or alienated to any individual, firm or corporation for any
purpose whatever except pursuant to Lessor's grant of either a franchise or lease.
The Tidelands Grant authorizes Lessor to enter into leases of the Tidelands for a
period not exceeding fifty (50) years so long as such leases are consistent with
Lessor's obligations to hold the Tidelands in trust for the uses and purposes
contained in the Tidelands Grant.
Lessor has determined that the continued operation of an angling club and the
educational, civic, and recreational uses in which Lessee actively engages in are
consistent with the limitations and restrictions imposed on the Property by, but not
limited to, the Tidelands Grant and Council Policy F-7.
J. In accordance with City Council Policy F-7, the City Council has determined that
Lessee has continuously used the Premises to provide recreational, marine -
related, and other non -financial benefits to the public since 1947 which are unique
services to the community. These services enjoy substantial support in the
community and might not otherwise be provided were full market value of the
Premises be required.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS
hereinafter set forth, it is agreed as follows:
1. LEASED PREMISES
1.1 Lessor hereby leases the Premises to Lessee and Lessee leases the
Premises from Lessor for the term specified in Section 2 and on the conditions contained
in this Lease. Lessee agrees that no representations with respect to the condition or
improvements on the Premises have been made by Lessor except as specifically set forth
in this Lease, and are otherwise being delivered in an "as -is" condition by Lessor.
1.2 The Premises are located on property that is the subject to the Tidelands
Grant, administered by the State of California. Lessee shall not take any action that would
cause the City to be in violation of any provisions of the Tidelands Grant. If the State
terminates the Tidelands Grant for any reason or prevents the Premises from being
operated and used as set forth under this Lease, this Lease shall terminate as a result
and the Parties shall be released from all liabilities and obligations under this Lease.
2. TERM
2.1 Initial Term. Lessor hereby leases the Premises to Lessee for the purposes
only as described in this Lease, and subject to the terms and conditions contained herein,
for a term of twenty (20) years beginning on the Effective Date ("Initial Term").
BALBOA ANGLING CLUB Page 2
2.2 Option to Extend. Provided Lessee is not then in default beyond applicable
notice and cure periods provided herein, upon Lessee's request and Lessor's approval of
such request, Lessee may extend the term of this Lease fortwo (2) additional consecutive
terms of five (5) years (each an "Option Term"), on the same terms and conditions as
contained in this Lease as it may be amended from time to time. Lessee must give Lessor
written notice of its intention to extend the Term for the Option Term at least one hundred
eighty (180) days prior to expiration of the Term.
2.3 Terms of Lease. The "Term" as used herein is defined as the Initial Term
and, as exercised, the Option Term(s).
2.4 Holdover. This Lease shall terminate and become null and void without
further notice upon the expiration of the Term of this Lease. Any holding over by Lessee
after the expiration of the Term shall not constitute a renewal or extension and shall not
give Lessee any rights in or to the Property, or any part thereof, except as expressly
provided in this Lease. Any holding over after the expiration of the Term with the consent
of the Lessor shall be construed to be a tenancy from month -to -month on the same terms
and conditions set forth in this Lease insofar as such terms and conditions may be
applicable to a month -to -month tenancy ("Holdover Term"). The month -to -month tenancy
may be terminated without cause by Lessee or Lessor upon thirty (30) days' prior written
notice to the other Party.
3. CONSIDERATION
3.1 The consideration for this Lease shall be the payment of Rent as defined
below, Lessee's obligation to complete any Improvements as defined below as required
under this Lease, the continued maintenance and operation of the Premises for the Term
of the Lease at no cost to Lessor, the commitment of Lessee to operate the Premises as
an angling club as provided in Section 5 and shared use with the City as provided in
Section 6.
3.2 In accordance with City Council Policy F-7, whenever an open bid process
is not conducted or fair market value rent is not received for the use of City property, the
City shall make specific findings setting forth the reasons thereof. The City finds that
Lessee provides an essential or unique service to the community that might not otherwise
be provided were full market value of the property required. Moreover, converting the
property to another use or changing the operator or lessee of the property would result in
excessive vacancy, expenses, or other negative impacts which would outweigh other
financial benefits. Additionally, as the rent being charged is less than fair market value,
the City Council finds this use provides a public benefit to the community by providing
recreational facilities to the public and is therefore a matter of citywide benefit.
4. RENT
4.1 Lessee shall pay to Lessor, and Lessor shall accept as rent for the
Premises, the sum of One Dollar and 00/100 ($1.00) per year ("Rent"). Rent for the entire
BALBOA ANGLING CLUB Page 3
Initial Term shall be due and payable within thirty (30) days of the Effective Date. Rent for
each Option Term(s) shall be due and payable on the first day of the Option Term.
4.2 Payment Location. All payments of Rent shall be made in lawful money of
the United States of America and shall be paid to Lessor in person or by United States'
mail, or overnight mail service, at the Cashier's Office located at 100 Civic Center Drive,
Newport Beach, California, 92660, or to such other address as Lessor may from time to
time designate in writing to Lessee. If requested by Lessor, Lessee shall make payments
electronically (at www.newportbeachca.gov) or by wire transfer (at Lessee's cost).
Lessee assumes all risk of loss and responsibility for late charges and delinquency rates
if payments are not timely received by Lessor regardless of the method of transmittal.
5. USE OF PREMISES
5.1 Lessee shall use the Premises, solely and exclusively, to manage and
operate an angling club, which will, among other things, instruct and promote adults and
children in the sport of catch or release fishing, sponsor Southern California fishing
tournaments, encourage marine conservation and operate White Seabass grow -out pens
in the Newport Harbor. The Premises will be available to the public, to provide an
International Game Fish Association ("IGFA")-certified weigh station and line tester.
Lessee shall operate and manage the Premises in a manner which does not violate
state or federal discrimination laws. Lessee shall make all services, programs and
facilities available to the public on fair and reasonable terms.
5.2 Lessee shall not grant any sublease, concession, license, permit or
privilege for the conduct of any business or other operation for profit on the Premises
without the prior written approval of the City Manager.
6. SHARED USE OF PREMISES
Lessor and Lessee shall meet regularly and proactively as needed to agree on any
desired classes to be offered at the Premises by Lessee in cooperation with the City's
Recreation and Senior Services Department ("RSS Department"). Lessee shall endeavor
to expand its community outreach and engagement to sustain its membership. Lessee
shall have exclusive access and use of the clubhouse, and any access and use of the
Premises by Lessor shall be only to: i) ensure compliance with the terms of this Lease,
or ii) as mutually agreed upon by the Parties to utilize the Premises for classes through
the RSS Department.
7. IMPROVEMENTS
7.1 Subject to compliance with all applicable laws, Lessee may make
improvements to the Premises ("Improvements") at no cost to Lessor which are intended
to maintain Lessee's business operations at the Premises. All Improvements shall be
submitted for review of improvement plans and permitting, and construction, and shall be
subject to the prior written approval of the City Manager or his/her designee, which
approval shall not be unreasonably delayed or withheld. For proposed Improvements
BALBOA ANGLING CLUB Page 4
estimated to cost more than Fifteen Thousand Dollars ($15,000.00), approval by the City
Manager shall be based upon considering the impact on public views of adjacent property
owners, compliance with City codes, and the impact on space available for public use of
the Premises. As a condition of approval, the City Manager may require that Lessee agree
to amendments to this Lease, including increases in the amount of Rent payable, if the
proposed Improvements would materially increase the floor area or size of the building
structures on the Premises. The City Manager may also require Lessee to provide, at
Lessee's expense, appropriate engineering and feasibility studies regarding the structural
integrity of the Premises.
7.2 Lessee shall maintain the Improvements as part of the Premises in
compliance with the terms of this Lease, and more specifically as set forth under Section
13.
7.3 No Improvements shall be erected or maintained on the Premises unless
and until plans and specifications for the proposed scope of work have first been
submitted to and approved, in writing, by Lessor. Lessee shall obtain, prior to
commencing the construction of any Improvements, all permits, licenses or approvals that
may be required from any local, state or federal entities and all work shall be performed
by qualified and licensed contractors. If applicable, Lessee shall be responsible, at its
sole cost and expense, for compliance with the California Environmental Quality Act
("CEQA") and the California Coastal Act in connection with Lessee's operation and use
of the Premises.
7.4 Prevailing Wages. Pursuant to the applicable provisions of the California
Labor Code, not less than the general prevailing rate of per diem wages including legal
holidays and overtime work for each craft or type of workman needed to execute the work
contemplated under this Section 7 shall be paid to all workmen employed on the work to
be done according to this Section 7 by the Lessee's contractors and any subcontractor.
In accordance with the California Labor Code (Sections 1770 et seq.), the Director of
Industrial Relations has ascertained the general prevailing rate of per diem wages in the
locality in which the work is to be performed for each craft, classification, or type of
workman or mechanic needed to execute the Improvements. A copy of said
determination is available by calling the prevailing wage hotline number (415) 703-4774,
and requesting one from the Department of Industrial Relations. Lessee's contractors
and subcontractors are required to obtain the wage determinations from the Department
of Industrial Relations and post at the job site the prevailing rate or per diem wages. It
shall be the obligation of Lessee's contractors or any subcontractor under him/her to
comply with all State of California labor laws, rules and regulations and the parties agree
that the City shall not be liable for any violation thereof.
7.5 Quality of Work Performed. All Improvements shall be performed in a good
and workmanlike manner, shall comply with the plans and specifications submitted to
City, and shall comply with all applicable governmental permit requirements and laws in
force at the time permits are issued.
BALBOA ANGLING CLUB Page 5
7.6 Payment of Costs. Lessee, shall bear all costs and expenses associated
with any Improvements, including any fees assessed on the Premises by any
governmental, or quasi -governmental agency or authority in connection with any regional
transportation or other public improvements and school district taxes, development fees
and assessments.
7.7 Disposition of Improvements at Expiration or Lease Termination. Any
Improvements to the Premises shall remain on and be surrendered at no cost to Lessor
on expiration or termination of this Lease, wear and tear excepted excluding Lessee's
fixtures, equipment, furniture, and movable decorations (which Lessee can remove),
subject to the right by Lessor to require Lessee to remove the Improvements. Lessee, at
its sole cost, shall remove any such items from the Premises before the last day of the
Term or within thirty (30) days after notice is given, whichever is earlier. Lessee shall
repair any damage to the Premises caused by such removal, ensure that the structural
future of the foundation and bulkhead areas of the Premises are not thereby worsened
by such removal, and leave the Premises in broom clean and good condition. "Good
Condition" shall mean the Premises and each portion thereof is in clean and safe physical
condition and suitable for use by a subsequent tenant. Any items left at the Premises after
the removal deadline shall be considered abandoned by Lessee and can be disposed by
Lessor in its sole discretion and without compensation to or other obligation to Lessee,
but also subject to any rights of lien holders to such items under an existing non -
disturbance agreement between such lien holder and Lessor.
7.8 In addition to the prior notice and approval requirements set forth above,
before Lessee commences any other alterations, work, Improvements or construction of
any building structure on the Premises, or of any substantial repairs, alterations,
additions, replacement or restoration, in or about the Premises, Lessee shall provide
Lessor with thirty (30) days' advanced written notice of the nature and location of the
intended work which may only be performed between 7:00 a.m. and 6:00 p.m. on non -
holiday weekdays. Lessor may, in its sole discretion, require Lessee to modify the dates
and times that the work will be performed.
7.9 Lessee shall, at all times, indemnify and hold Lessor harmless from any and
all claims for labor or materials in connection with the construction, repair, or installation
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 the Premises, or any part thereof, any mechanic's,
materialmen's, contractor's or subcontractor's liens arising from, or any claim for damage
growing out of, the work of any construction, repair, restoration, replacement or
improvement, or any other claim or demand arising from Lessee's operations under this
Lease. In the event any lien or stop notices imposed or recorded on the Premises as a
result of the construction, repair or alteration of the facility, Lessee shall pay or cause to
be paid all such liens, claims or demands before any action is brought to enforce the
same against the Premises. Notwithstanding anything to the contrary contained in this
Section 7.8, if Lessee shall in good faith contest the validity of such lien, claim or demand,
then Lessee shall, at its expense, defend itself and Lessor against the same and shall
pay and satisfy any adverse judgment that may be rendered thereon before the
BALBOA ANGLING CLUB Page 6
enforcement thereof against Lessor or the Premises upon the condition that upon
Lessor's request Lessee shall furnish to Lessor a surety bond satisfactory to Lessor in an
amount equal to such contested lien, claim or demand and shall indemnify Lessor against
liability for the same and hold the leased Premises free from the effect of such lien or
claim.
7.10 Lessor reserves the right to require Lessee to obtain performance and/or
labor and materials bonds for Improvements. 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.
7.11 Any damage or destruction to the Premises or to Lessee's equipment
located thereupon as a result of Lessee's Improvements or any other alteration by Lessee
to the Premises shall not reduce or excuse Lessee's obligation to pay Rent in full and on
time.
8. MANAGEMENT
Lessee agrees that at all times during the Term, Lessee will be managed by
Lessee's Club President and/or a designated liaison and operated by Lessee. Lessee's
Club President and/or the designated liaison shall have a good reputation for honesty and
integrity and experience in the operation and management of recreational clubs. Lessee's
Club President or designated liaison shall have the financial ability to perform its
obligations under a management agreement for the management of Lessee.
9. UTILITIES AND TAXES
9.1 Utilities. Lessee shall make arrangements for and be responsible for
payment, prior to the delinquency date, all charges for utilities furnished to or used on the
Premises including, without limitation, gas, electricity, sewer, water, refuse collection,
telephone service, internet, and cable TV. Satisfactory evidence of such payments shall
be delivered to Lessor within seventy-two (72) hours of a written request for such
information.
9.2 Refuse Collection. Refuse collection shall be limited to the hours between
7:00 a.m. and 6:00 p.m. on non -holiday weekdays.
9.3 Payment of Taxes. Lessee shall pay directly to the appropriate taxing
authorities all taxes, assessments, license fees and other charges ("Taxes") that are
levied or assessed against Lessee's interest in the Premises or any personal property
installed on the Premises. Taxes shall be paid before delinquency and before any fine,
interest or penalty is due or imposed by operation of law. Lessee shall, upon request,
promptly furnish to Lessor satisfactory evidence of payment. Lessor hereby gives notice
to Lessee, pursuant to California Revenue and Tax Code ("RTC") Section 107.6 that this
Lease may create a possessory interest that is the subject of property taxes levied on
such interest, the payment of which taxes shall be the sole obligation of Lessee. Lessee
BALBOA ANGLING CLUB Page 7
shall advise in writing any subtenant, licensee, concessionaire or third party approved by
Lessor that is using the Premises of the requirements of RTC Section 107.6.
9.4 Payment of Obligations. Lessee shall promptly pay, when due, any and all
bills, debts, liabilities and obligations incurred by Lessee in connection with Lessee's
occupation and use of the Premises including the construction and/or maintenance of the
Improvements.
9.5 No Rent Offset. Any payments under this Section 9 shall not reduce or offset
Rent payments. Lessor has no liability for such payments.
10. INSURANCE
Without limiting Lessee's indemnification of Lessor, Lessee shall provide and
maintain at its own expense during the term of this Lease policies of liability insurance
of the type and amounts described in Exhibit "D," which is attached hereto and
incorporated herein by reference.
11. HOLD HARMLESS
11.1 Lessee agrees to indemnify, defend and hold harmless Lessor and its
elected and appointed officers, agents, officials, volunteers, employees and any person
or entity owning or otherwise in legal control of the Premises (collectively, the "Indemnified
Parties") from and against any and all claims (including, without limitation, claims for
bodily injury, death or damage to property), demands, obligations, damages, actions,
causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses
(including, without limitation, attorney's fees, disbursements and court costs) of every kind
and nature whatsoever (individually, a "Claim;" collectively, "Claims"), which may arise
from or in any manner relate (directly or indirectly) to Lessee's, Lessee's employees,
contractor, subcontractor, agents, guests, invitees, subtenant's, concessionaire's,
licensee's possession, occupation or use of the Premises, specifically including, without
limitation, any claim, liability, loss, or damage arising by reason of:
11.1.1 The death or injury of any person or damage to personal property
related to a condition of the Premises or an act or omission of Lessee or an agent,
contractor, subcontractor, supplier, employee, servant, or sublessee of Lessee;
11.1.2 Any work performed on the Premises including the construction
and/or maintenance of the Premises and/or Improvements, or materials furnished to the
Premises at the request of Lessee or any agent or employee of Lessee; and/or
11.1.3 Lessee's failure to perform any provision of this Lease or to comply
with any requirement of law or any requirement imposed on the Premises by any duly
authorized governmental agency or political subdivision.
11.2 Indemnified Parties shall not be liable to Lessee for any damage to Lessee
or Lessee's property, goodwill, increased Lessee operating costs, or loss of business or
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income by Lessee from any cause other than the gross negligent, intentional or willful
acts of Indemnified Parties. Except as otherwise expressly provided in this Agreement,
Lessee releases and also waives all claims against Indemnified Parties for damages
arising for any reason other than the gross negligent, intentional or willful acts of
Indemnified Parties. Indemnified Parties shall not be liable to Lessee for any damage to
the Premises, Lessee's property, Lessee's goodwill, or Lessee's business income,
caused in whole or in part by acts of nature including, without limitation, waves, wind and
tidal flows.
11.3 This indemnity section shall apply to all claims and liability regardless of
whether any insurance policies are applicable.
12. HAZARDOUS SUBSTANCE
12.1 Hazardous Substance means: (i) any substance, product, waste or other
material of any nature whatsoever which is or becomes listed, regulated, or addressed
pursuant to the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. Section 9601 et seq. ("CERLCA"); the Hazardous Materials Transportation
Act, 49 U.S.C. Section 1801, et seq.; the Resource Conversation and Recovery Act, 42
U.S.C. Section 6901 et seq. ("RCRA"); the Toxic Substances Control Act, 15 U.S.C.
Section 2601 et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et seq.; the California
Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq.; the
California Hazardous Substance Account Act, Health and Safety Code Section 25330
et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety
Code Section 25249.5 et seq.; California Health and Safety Code Section 25280 et seq.
(Underground Storage of Hazardous Substances); the California Hazardous Waste of
Concern and Public Safety Act, Health and Safety Code Section 25169.5 et seq.;
California Health and Safety Code Sections 25501 et seq. (Hazardous Materials
Response Plans and Inventory); or the Porter -Cologne Water Quality Control Act,
California Water Code Section 13000 et seq., all as they, from time -to -time may be
amended or re -codified, (the above -cited statutes are here collectively referred to as the
"Hazardous Substance Laws") or any other Federal, State or local statute, law, ordinance,
resolution, code, rule, regulation, order or decree regulating, relating to, or imposing
liability or standards of conduct concerning any hazardous, toxic or dangerous waste,
substance or material, as now or at any time hereafter in effect; (ii) any substance,
product, waste or other material of any nature whatsoever which may give rise to liability
under any of the above statutes or under any statutory or common law theory, including
but not limited to negligence, trespass, intentional tort, nuisance, waste or strict liability or
under any reported decisions of a state or federal court; (iii) petroleum or crude oil; and
(iv) asbestos.
12.2 From the Effective Date and throughout the Term, Lessee shall not use,
occupy, or permit any portion of the Premises or the surrounding area to be used or
occupied in violation of any Hazardous Substance Laws.
12.3 Notwithstanding any contrary provision of this Lease, and in addition to the
indemnification duties of Lessee set forth elsewhere in this Lease, Lessee shall indemnify,
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defend with counsel reasonably acceptable to Lessor, protect, and hold harmless Lessor
and its elected officials, officers, employees, agents, attorneys, volunteers and
representatives from and against any and all losses, fines, penalties, claims, demands,
obligations, actions, causes of action, suits, costs and expenses (including, without
limitation, attorneys' fees, disbursements and court costs), damages, judgments, or
liabilities, including, but not limited to, any repair, cleanup, detoxification, or preparation
and implementation of any remedial, response, closure or other plan of any kind or nature
which the Lessor and its officials, officers, employees, agents, attorneys, volunteers or
assigns may sustain or incur, or which may be imposed upon them, in connection with
any breach of Lessee's obligations or representations in this Lease or the use of the
Premises under this Lease, arising from or attributable to the Lessee Parties (defined
below) storage or deposit of Hazardous Substances in violation of applicable laws. This
section is intended to operate as an agreement pursuant to Section 107(e) of CERCLA,
42 USC Section 9607(e), and California Health and Safety Code Section 25364, to
insure, protect, hold harmless, and indemnify Lessor for any claim pursuant to the
Hazardous Substance Laws or the common law.
12.4 Lessee does not, and shall not, authorize any third party to use, generate,
manufacture, maintain, permit, store, or dispose of any Hazardous Substances in
violation of applicable laws on, under, about or within the Premises.
12.5 Upon expiration or earlier termination of this Lease, Lessee shall deliver
possession of the Premises in compliance with Hazardous Substance Laws.
12.6 If during the Term of this Lease, Lessee becomes aware of (i) any actual or
threatened release of any Hazardous Substances on, in, under, from, or about the
Premises in violation of Hazardous Substance Laws; or (ii) any inquiry, investigation,
proceeding, or claim by any government agency or other person regarding the presence
of any Hazardous Substances in violation of Hazardous Substance Laws on, in, under,
from or about the Premises, Lessee shall give Lessor written notice of the release or
inquiry within five (5) days after Lessee becomes aware or first has reason to believe
there has been a release or inquiry and shall simultaneously furnish to Lessor copies of
any claims, notices of violation, reports, warning or other writings received by Lessee that
concern the release or inquiry.
12.7 If the presence of any Hazardous Substances brought onto the Premises
by Lessee or Lessee's employees, agents, subtenant, licensees, concessionaires,
contractors, or invitees ("Lessee Parties"), or generated by same during the Term of this
Lease, results in contamination of the Premises or adjacent properties in violation of
Hazardous Substance Laws, Lessee shall promptly take all necessary actions, at
Lessee's sole expense, to remove or remediate such Hazardous Substances in full
compliance with applicable laws. Lessee shall provide notice to Lessor prior to
performing any removal or remedial action. Lessee shall not propose nor agree to any
covenant of use restriction as part of any removal or remediation required as a result of
this provision without Lessor's written consent. Lessee shall pay any costs Lessor incurs
in performing Lessee's obligation to clean-up contamination resulting from Lessee's
operations or use of the Premises.
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12.8 Should any clean-up of Hazardous Substances for which Lessee is
responsible not be completed prior to the expiration or sooner termination of the Lease,
including any extensions thereof, then Lessee shall transfer the amounts required to
complete clean-up into an escrow account, together with Lessor -approved instructions
for the disbursement of such amount in payment of the costs of any remaining clean-up
as it is completed, and (ii) if the nature of the contamination or clean-up required of Lessee
is of such a nature as to make the Premises untenable or unleasable, then Lessee shall
be liable to Lessor as a holdover lessee until the clean-up has been sufficiently completed
to make the Premises suitable for lease to third parties. The estimated cost of the clean-
up shall require approval of the Lessor.
12.9 If Lessor determines, in its reasonable discretion, that Lessee does not have
insurance or other financial resources sufficient to enable Lessee to fulfill its obligations
under this provision, whether or not accrued, liquidated, conditional, or contingent, then
Lessee shall, at the request of Lessor, procure and thereafter maintain in full force and
effect such environmental impairment liability and/or pollution liability insurance policies
and endorsements, or shall otherwise provide such collateral or security reasonably
acceptable to Lessor as is appropriate to assure that Lessee will be able to perform its
duties and obligations hereunder.
12.10 Lessee's obligations in this Section 12 shall survive the expiration or earlier
termination of this Lease.
13. MAINTENANCE
13.1 Lessee Maintenance. Lessee shall maintain and repair all landscaping,
buildings and Improvements on the Premises at its sole cost and without expense to
Lessor or the State of California. Lessee agrees to maintain the Premises and all
improvements constructed thereon in good order and repair, and to keep the Premises in
a neat, clean, orderly, safe, and sanitary condition. Lessee's maintenance responsibility
includes, but is not limited to, the prevention of accumulation of any refuse or waste
materials that might constitute a fire hazard or a public or private nuisance.
13.1.1 Lessee further agrees to (a) repair or replace the outside stringer on
the pier platform, immediately east of the gangway, and (b) repair or replace one section
of floatation under the finger float that is missing an outer casing that prevents foam from
splintering into the water.
13.1.2 Lessee shall be responsible for the repair of any damage caused by
Lessee's, Lessee's employees, members, contractors, subcontractors, agents, guests,
invitees, subtenants, concessionaires, or licensees.
13.2 Lessor May Elect to Repair and Maintain at Lessee's Expense. If Lessee
fails to uphold its maintenance and repair obligations under Section 13, Lessor may
perform such maintenance and repairs after giving Lessee written notice and Lessee fails
to remedy the deficiency within thirty (30) days, or within 24 hours if the deficiency
BALBOA ANGLING CLUB Page 11
constitutes an emergency. Lessee shall pay on demand any and all sums expended by
Lessor in performing such work, together with interest at the legal rate.
13.3 Lessor's Right of Inspection. In addition to Lessor's rights to use the
Premises as provided in this Lease, Lessor reserves the right by its authorized agents,
employees or representatives to enter the Premises at any time, without notice, to inspect
the Premises in order to attend to or protect the Lessor's interest under this Lease.
13.4 Site Walk. Lessor and Lessee shall annually perform a joint inspection of
the Premises by July 15th of every year to determine what repairs and maintenance shall
be scheduled for the following year.
13.5 Annual Report. Lessee shall provide a written report to Lessor on or before
January 30th of every year, providing the following information:
13.5.1 All maintenance, repairs, or other work completed, including the
costs incurred thereof, for the prior year.
13.5.2 Both short- and long-term capital improvement project plans and a
capital repair and replacement schedule for the Premises.
13.5.3 All programs and services provided, including the number of people
served, membership (resident and non-resident), events, classes, certifications with
IGFA, revenues and expenses, and any successes or accomplishments of Lessee's
programs, for the prior year.
14. 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.
15. RESTORATION
15.1 If during the Term the Premises are totally or partially destroyed, rendering
the Premises or any portion thereof totally or partially inaccessible, unusable or are
declared unsafe or unfit for use or occupancy by a public entity with the authority to make
and enforce such declaration, Lessee shall, at its sole cost and expense, repair, restore,
or replace the Premises to substantially the same condition as immediately prior to such
destruction, including all trade fixtures, personal property, Improvements and alterations
as are installed by Lessee. Any such work of repair, restoration or replacement shall be
commenced within one hundred and eighty (180) days after the damage or loss occurs
and shall be completed with due diligence, but no later than one (1) year after such work
is commenced unless delay is caused by events beyond the control of Lessee.
15.2 Alternatively, Lessee may elect to terminate this Lease by giving written
notice of such election to Lessor within sixty (60) days after the date of the occurrence of
any casualty if (i) the cost of the restoration exceeds the amount of any insurance
BALBOA ANGLING CLUB Page 12
proceeds available to Lessee, (ii) the damage has been caused by an uninsured casualty
or event, or (iii) Lessee reasonably estimates that repairs of the Premises will take more
than one hundred and eighty (180) days. Upon such termination, insurance proceeds
applicable to the repair, restoration, or replacement of the Premises (excluding Lessee's
personal property therein) shall be paid to Lessor, and Lessee shall have no further
liability or obligations under this Lease.
16. RESERVED.
17. FORCE MAJEURE; EXTENSIONS OF TIME OF PERFORMANCE
17.1 Force Majeure. Neither Party shall be liable for any failure or delay in
performing an obligation under this Lease that is due to any of the following causes: acts
of God, war, terrorist act, government -mandated quarantine restrictions, riot, natural
catastrophes, Federal or state governmental acts or omissions, national strikes, fire, or
explosion (hereinafter each defined as "Force Majeure"), provided that the Force Majeure
is unforeseeable, beyond the control of, and not due to the fault or negligence of the Party
claiming the Force Majeure. For the avoidance of doubt, Force Majeure shall not include
(a) any epidemic, pandemic, or government mandated quarantine restriction; (b) financial
distress or the inability of either Party to make a profit or avoid a financial loss, (c) changes
in the market prices or conditions, (d) a Party's financial inability to perform its obligations
hereunder, (e) maintenance and repair of the Premises as required by Lessee under
this Lease; (f) disruption of utilities; (g) limited or no bay access to the Premises not
caused by Lessee; and (h) other causes beyond the control of Lessee that prevents
Lessee from operating the Premises totally or materially. Lessee shall be prevented from
operating the Premises totally or "materially" (which is defined as causing Lessee's
revenue dropping by more than fifty percent (50%) over a twelve (12) month period as
compared to club revenue prior to such event during such same time span.
17.2. Notice; Excuse or Delay in Performance. A Party claiming Force Majeure
shall promptly notify the other Party in writing, no later than fifteen (15) calendar days
after the commencement of delay or inability to perform, and the Party shall continue with
reasonable diligence in an effort to limit the period of such Force Majeure nonperformance
or delay. A Party's excuse from failure or delay in performing an obligation under this
Lease due to Force Majeure shall only be to the extent caused by the Force Majeure and
shall not be any longer than the period commencing from when the requisite written notice
is given and ending when the Party is no longer delayed or prevented from performing on
account of the Force Majeure. Time of performance under this Lease may also be
extended in writing by City and Lessee.
18. DEFAULT AND TERMINATION OF LEASE
18.1. Default; Material Breach. The occurrence of any one (1) or more of the
following events shall constitute a default and material breach of this Lease by Lessee
(each defined as a "Lessee Default"):
BALBOA ANGLING CLUB Page 13
18.1.1. Keeping the Premises in good order and repair, and in a neat, clean,
orderly, safe and sanitary condition;
18.1.2. Maintaining the Premises in compliance with any applicable
provisions of the City's charter, municipal code and zoning code,
state or federal law;
18.1.3. Payment of Rent at the time and in the amount herein required;
18.1.4. Section 8, Section 13, Section 15, or Section 20;
18.1.5. The vacating or abandonment of the Premises by Lessee for a period
of thirty (30) successive days, without the prior written approval of
Lessor or its authorized representative, excluding closures during
periods of casualty, condemnation or permitted closures set forth in
this Lease;
18.1.6. The appointment of a trustee or receiver to take possession of
substantially all of Lessee's assets located at the Premises or of
Lessee's interest in this Lease, where such appointment is not
discharged within sixty (60) days; or
18.1.7. Providing and maintaining valid proof of insurance coverage as
required in Section 10.
18.2 Remedies. Lessee's failure to comply with any of the foregoing terms,
covenants, or conditions and subsequent failure to (i) remedy such default within fourteen
(14) days of a written notice from Lessor to do so, if the default may be cured by the
payment of money, (ii) remedy any default of Section 18.1.1 that presents a life safety
issue within fourteen (14) days of Lessor's written notice, or (iii) commence in good faith
to remedy any other default within thirty (30) days of Lessor's written notice and thereafter
diligently prosecute the same to completion shall constitute a material breach of this
Lease. Lessee's abandonment or vacating of the Premises for more than thirty (30) days
other than for periods of repair or remodel that have been approved in advance by Lessor
shall also constitute a material breach. Upon a material breach by Lessee, Lessor may,
without further notice or demand, terminate this Lease and enter upon the Premises and
take possession thereof, and remove any and all persons therefrom in the appropriate
manner provided by law.
18.2.1 Re-entry Without Termination. Lessor may re-enter the Premises,
and, without terminating this Lease, re -let all or a portion of the
Premises. Lessor may execute any agreements made under this
provision in Lessor's name and shall be entitled to all rents from the
use, operation, or occupancy of the Premises. Lessee shall
nevertheless pay to Lessor on the dates specified in this Lease the
equivalent of all sums required of Lessee under this Lease, plus
Lessor's expenses in conjunction with re -letting, less the proceeds
of any re -letting or attornment. No act by or on behalf of Lessor under
BALBOA ANGLING CLUB Page 14
this provision shall constitute a termination of this Lease unless
Lessor gives Lessee specific written notice of termination.
18.2.2 Termination. Lessor may terminate this Lease by giving Lessee
written notice of termination with a specified termination date.
18.2.3 Lessor's Right to Cure Lessee's Default. Upon continuance of any
Lessee Default beyond applicable notice and cure periods, Lessor
may, but is not obligated to, cure such Lessee Default at Lessee's
cost. If Lessor pays any money or performs any act required of, but
not paid or performed by, Lessee after notice, the payment and/or
the reasonable cost of performance shall be due as Additional Rent
not later than ten (10) days after service of a written demand
accompanied by supporting documentation upon Lessee. No such
payment or act shall constitute a Lessor waiver of such Lessee
Default or of any remedy for such Lessee Default or render Lessor
liable for any loss or damage resulting from such Lessor
performance.
18.2.4 Use of Lessee's Personal Property. In the event of Lessee Default
past applicable notice and cure periods, subject to the right of lien
holders and the owners of boats then on the Premises to each
remove such lien items and boats, as applicable, Lessor may use
Lessee's personal property and trade fixtures in which Lessee has
an ownership interest located on the Premises and subject also to
the rights of any Lessee lien holder with a non -disturbance
agreement with Lessor regarding Lessee personal property, or any
of such property and fixtures without compensation or liability to
Lessee for use or damage. In the alternative Lessor may store the
property and fixtures at the cost of Lessee. Lessor shall not operate,
or allow any other person or entity to operate under the same or
similar trade name as the Lessee.
18.3 Surrender of Possession upon Expiration or Termination. Lessee
covenants and agrees that upon the expiration or sooner termination of this Lease, the
Lessee will peaceably surrender the Premises with all buildings and improvements, in the
same condition as when received or constructed, excepting reasonable use and wear
thereof or the ordinary effects of the elements. Any improvements built, constructed or
placed upon the Premises by the Lessee (excluding Lessee's fixtures, equipment,
furniture, and moveable decorations), or anyone holding by, under, or through it, shall
remain on the Premises and become the property of the Lessor without any cost to Lessor
upon the expiration or termination of this Lease, whether by lapse of time or by reason of
default, unless, at its sole and absolute discretion, Lessor requires Lessee to remove
some or all improvements on the Premises within sixty (60) days following the expiration
or termination of this Lease. The provisions of this section shall be effective upon
expiration or termination of this Lease regardless of whether Lessee holds over under the
provisions of Section 2.4.
BALBOA ANGLING CLUB Page 15
18.4 Remedies Cumulative. The rights, powers, elections and remedies of
the Lessor contained in this Lease shall be construed as cumulative and no one of
them shall be considered exclusive of the other or exclusive of any rights or remedies
allowed by law, and the 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.
18.5 Waiver of Rights. Lessee waives any right of redemption or relief from
forfeiture under California Code of Civil Procedure Sections 1174 or 1179, or under
any other present or future law, in the event Lessee is evicted or Lessor takes
possession of the Premises by reason of any Lessee Default.
19. EMINENT DOMAIN
19.1 In the event the whole or part of the Premises is condemned by a public
entity in the lawful exercise of the power of eminent domain, this Lease shall cease as to
the part condemned upon the date possession of that part is taken by the public entity.
19.2 If only a part is condemned and the taking of that part 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
with respect to the remainder of the Premises.
19.3 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
may terminate the Lease and be absolved of obligations hereunder which have not
accrued as the date possession is taken by the public entity. If Lessee fails to give notice
of its intent to terminate hereunder, within thirty (30) days of the date possession of the
part is taken by the public entity, then Lessee shall continue to occupy the remainder of
the Premises and remain bound by the terms, covenants and conditions of this Lease.
19.4 Lessor shall be entitled to receive and shall receive all compensation for the
condemnation of all or any portion of the Premises by exercise of eminent domain.
19.5 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.
20. UNLAWFUL USE
20.1 Lessee agrees that no improvement shall be erected, constructed or
operated on the Premises, nor any business conducted on the Premises, in violation of
the terms of this Lease or of any regulation, order, law, statute, bylaw, charter provision,
or ordinance of any governmental agency having jurisdiction.
20.2 Lessee shall not construct, maintain, or allow any sign upon the Premises
or Property, or improvements thereon, except as approved in writing by Lessor, and
further, such sign must be in compliance with the provisions of the Newport Beach
Municipal Code.
BALBOA ANGLING CLUB Page 16
20.3 Lessee shall not discriminate against any person or class of persons by
reason of race, religious creed, color, national origin, ancestry, age, physical disability,
mental disability, medical condition, including the medical condition of Acquired Immune
Deficiency Syndrome (AIDS) or any condition related thereto, marital status, sex, sexual
orientation or any other impermissible basis under the law. Lessee shall make all of its
services, programs and facilities available to the public on fair and reasonable terms.
20.4 The Premises is accepted "as is, where is" by Lessee, subject to any and
all existing easements and encumbrances. Lessor reserves the right to install, lay,
construct, maintain, repair and operate such sanitary sewers, drains, storm water sewers,
pipelines, manholes and connections; water, oil and gas pipelines; telephone and
telegraph power lines and the appliances and appurtenances necessary or convenient in
connection therewith in, over, upon, through, across and along the Premises or any part
thereof, and to enter the Premises for any and all such purposes. Lessor also reserves
the right to grant franchises, easements, rights -of -way and permits in, over, upon,
through, across and along any and all portions of the Premises. No right reserved by
Lessor in this clause shall be so exercised as to interfere unreasonably with Lessee's
operations hereunder or to impair the security of any secured creditor of Lessee.
21. TERMINATION OF EXISTING LEASE
Concurrently with execution of this Lease by the Parties, the Existing Lease is
hereby terminated.
22. NOTICES
All notices pursuant to this Lease shall be deemed given when personally delivered
or deposited in the United States mail, first class postage prepaid, and addressed as
follows:
Lessor: City of Newport Beach
Attention: Real Property Administrator
100 Civic Center Drive
Newport Beach, CA 92660
Lessee: Balboa Angling Club
Attention: President
200 A Street
Newport Beach, CA 92661
23. MEMORANDUM OF LEASE
A Memorandum of Lease Agreement ("Memorandum"), in a form and content
similar to that contained in Exhibit "E," which is attached hereto and incorporated herein
by reference, shall be recorded by the parties promptly upon execution of this Lease in
the Office of the Orange County Clerk -Recorder, as required by Government Code
Section 37393.
BALBOA ANGLING CLUB Page 17
24. COMPLIANCE WITH ALL LAWS
Lessee shall at its own cost and expense comply with all statutes, ordinances,
regulations and requirements of all governmental entities, including federal, state, county
or municipal, whether now in force or hereinafter enacted. In addition, all work prepared
by Lessee shall conform to applicable city, county, state and federal laws, rules,
regulations and permit requirements and be subject to approval of the City Manager or
their designee.
25. WAIVER
The waiver by Lessor or Lessee of any breach of this Lease by the other shall not
be deemed to be a waiver of any term, covenant, or condition or any subsequent breach.
The acceptance of Rent by Lessor shall not be deemed a waiver of any breach by Lessee
other than the failure to pay the particular rent accepted.
26. PARTIAL INVALIDITY
If any term or provision of this Lease is declared invalid or unenforceable, the
remainder of this Lease shall not be affected.
27. GOVERNING LAW
The laws of the State of California shall govern this Lease and all matters relating
to it and any action brought relating to this Lease shall be adjudicated in a court of
competent jurisdiction in the County of Orange, State of California. Neither Lessor's
execution of this Lease nor any consent or approval given by the City of Newport Beach
in its capacity as landlord shall affect the City of Newport Beach's powers and duties as
a governmental body. Any consent or approval Lessee is required to obtain from Lessor
pursuant to this Lease is in addition to any permits or approvals Lessee is required to
obtain pursuant to law or ordinance. However, Lessor shall attempt to coordinate its
procedures for giving contractual and governmental approvals so that Lessee's requests
and applications are not unreasonably denied or delayed.
28. ENTIRE AGREEMENT; MODIFICATION
This Lease contains the entire agreement between the Parties. No oral agreement
or implied covenant shall be held to vary the provisions of this Lease. Each Party has
relied on its own investigation of the Premises and examination of this Lease, the counsel
of its own attorney or other advisors, and has a complete understanding of the overall
warranties, representations, and covenants in this Lease. The failure or refusal of either
Party to inspect the Premises, to read this Lease or other documents, or to obtain legal
or other advice relevant to this transaction shall not be the basis for later claim that all or
part of this Lease is not enforceable or was not understood by a Party when this Lease
was signed. No provision of this Lease may be amended or varied except by an
agreement in writing signed by the Parties or their respective successors.
BALBOA ANGLING CLUB Page 18
29. TIME IS OF THE ESSENCE
Time is of the essence with respect to the performance of every provision of this
Lease in which time of performance is a factor. All time deadlines are meant to be strictly
construed. A "day" as used in this Lease means a calendar day, and any deadline that
occurs on a weekend or day when banks are not open in California shall be extended to
the next calendar day.
30. SUCCESSORS
Subject to the provisions of this Lease on assignment and subletting, each and all
of the covenants and conditions of this Lease shall be binding on and shall inure to the
benefit of the heirs, successors, executors, administrators, assigns, and personal
representatives of the respective parties.
31. INTERPRETATION
The terms of this Lease shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either party by reason of the
authorship of this Lease or any other rule of construction which might otherwise apply.
32. HEADINGS
The captions of the various sections of this Lease are for convenience and ease
of reference only and do not define, limit augment, or describe the scope, content, or
intent of this Lease.
33. NO BROKERS
Each party warrants to and for the benefit of the other than it has had no dealings
with any real estate broker or other agent (attorneys excepted) in connection with the
negotiation or making of this Lease, and that no commission, fee or other compensation
is owed regarding this Lease by such other Party.
34. GENDER; NUMBER
The neuter gender includes the feminine and masculine, the masculine includes
the feminine and neuter, and the feminine includes the neuter, and each includes
corporation, partnership, or other legal entity whenever the context requires. The singular
number includes the plural whenever the context so requires.
35. EXHIBITS
All exhibits to which reference is made in this Lease are incorporated by reference.
Any reference to "this Lease" includes matters incorporated by reference.
BALBOA ANGLING CLUB Page 19
36. CITY BUSINESS LICENSE
Lessee shall obtain and maintain during the duration of this Lease, a City
business license as required by the Newport Beach Municipal Code.
37. NO ATTORNEY'S FEES
The prevailing party in any action brought to enforce the terms and conditions of
this Lease, or arising out of the performance of this Lease, shall not be entitled to recover
its attorney's fees.
38. NONDISCRIMINATION
Lessee, for itself and its successors, agrees that in the performance under this
Lease, Lessee shall not discriminate against any person because of the marital status or
ancestry of that person or any characteristic listed or defined in Section 11135 of the
California Government Code.
39. NO THIRD -PARTY BENEFICIARIES
City of Newport Beach (both as a Lessor and as the City of Newport Beach) and
Lessee do not intend, by any provision of this Lease, to create in any third party, any
benefit or right owed by one party, under the terms and conditions of this Lease, to the
other party.
40. NO DAMAGES
Lessee acknowledges that Lessor would not enter this Lease if it were to be liable
for damages (including, but not limited to, actual damages, economic damages,
consequential damages, lost profits, loss of rents or other revenues, loss of business
opportunity, loss of goodwill or loss of use) under, or relating to, this Lease or any of the
matters referred to in this Lease, including, without limitation, any and all plans, permits,
licenses or regulatory approvals, and CEQA documents. Accordingly, Lessee covenants
and agrees on behalf of itself and its successors and assigns, not to sue the City of
Newport Beach (either in its capacity as lessor in this Lease or in its capacity as the City
of Newport Beach) for damages (including, but not limited to, actual damages, economic
damages, consequential damages, lost profits, loss of rents or other revenues, loss of
business opportunity, loss of goodwill or loss of use) or monetary relief for any breach of
this Lease by Lessor or for any dispute, controversy, or issue between Lessor and Lessee
arising out of or connected with this Lease or any of the matters referred to in this Lease,
including, without limitation, any and all plans, permits, licenses or regulatory approvals,
CEQA documents, or any future amendments or enactments thereto, the parties agreeing
that declaratory relief, injunctive relief, mandate and specific performance shall be
Lessee's sole and exclusive judicial remedies.
BALBOA ANGLING CLUB Page 20
41. GOVERNMENT CLAIMS ACT
Lessee and Lessor agree that in addition to any claims filing or notice requirements
in this Lease, Lessee shall file any claim that Lessee may have against Lessor in strict
conformance with the Government Claims Act (California Government Code sections 900
et seq.), or any successor statute.
42. COUNTERPARTS
This Lease may be executed in two (2) or more counterparts, each of which shall
be deemed an original and all of which together shall constitute one (1) and the same
instrument.
[SIGNATURES ON NEXT PAGE]
BALBOA ANGLING CLUB Page 21
IN WITNESS WHEREOF, we have executed this Lease as of the day and year
written below.
APPROVED AS TO FORM:
CITY ATTORNEYS OFFICE
Date: 'i4 5
By:
Aaro Harp �s��D�
City J.
ATTEST:
Date: q,apt
Leilani I. Brown
City Clerk
0
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Attachments: Exhibit A:
Exhibit B:
Exhibit C:
Exhibit D:
Exhibit E:
LESSOR: CITY OF NEWPORT BEACH,
a Californi m nicipal corporation
Date:
By: 15-L— L--��
G K. Leung
Manager
LESSEE: BALBOA ANGLING CLUB, a
California nonprofit corporation
Date:
Signed in Counterpart
By:
Jimmy Decker
Chief Executive Officer
Date:
Signed in Counterpart
Bv:
David DuBois
Chief Financial Officer
[END OF SIGNATURES]
Legal Description of Property
Depiction of Property
Depiction of Premises
Insurance Requirements
Memorandum of Lease
BALBOA ANGLING CLUB Page 22
IN WITNESS WHEREOF, we have executed this Lease as of the day and year
written below,
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: seI5 ��-�-
By:
Aaro , -Harp (sjawn� -
City orney
ATTEST:
LESSOR: CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Grace K. Leung
City Manager
LESSEE: BALBOA ANGLING CLUB, a
California nonprofit corporation
Date:
Date:
By: B. 03 .�,
Leilani I, Brown Jimmy G r
City Clerk Chief Ex cutive Officer
Attachments: Exhibit A:
Exhibit B:
Exhibit C:
Exhibit D:
Exhibit E:
Dater
By: %s•
David DuBois
Chief Financial Officer
[END OF SIGNATURES]
Legal Description of Property
Depiction of Property
Depiction of Premises
Insurance Requirements
Memorandum of Lease
r--
BALBOA ANGLING CLUB Page 22
fy:1:11:11r_1
LEGAL DESCRIPTION OF PROPERTY
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, APN 048-133-16
BALBOA ANGLING CLUB Page A-1
EXHIBIT B
DEPICTION OF PROPERTY
BALBOA ANGLING CLUB Page B-1
EXHIBIT C
DEPICTION OF PREMISES
BALBOA ANGLING CLUB Page C-1
EXHIBIT D
INSURANCE REQUIREMENTS
Without limiting the Lessee's indemnification of Lessor, Lessee shall procure and
maintain in full force and effect at its own expense during the term of this Agreement,
policies of insurance of the type and amounts described below and, in a form
satisfactory to Lessor. Lessor reserves the right to modify these requirements,
including limits, based on the nature of the risk, prior experience, insurer, coverage,
passage of time, or other special circumstances. If the existing policies do not meet
the insurance requirements set forth herein, Lessee agrees to amend, supplement, or
endorse the policies to do so.
1. Minimum Scope and Limit of Insurance.
A. Workers' Compensation Insurance with statutory limits and Employer's
Liability Insurance with a limit of at least one million dollars ($1,000,000)
each accident for bodily injury and each employee for disease. U.S.
Longshoremen's and Harbor Workers' Act (USL&H) shall be required for
employees performing services covered by said Act.
Lessee shall submit to Lessor, along with a certificate of insurance, a waiver
of subrogation endorsement in favor of the Lessee, City of Newport Beach,
its City Council, boards and commissions, officers, agents, volunteers,
employees.
B. Commercial General Liability/Marine General Liability at least as broad as
Insurance Services Office "occurrence" form CG 00 01 covering land and
waterborne exposures including but not limited to coverage for bodily injury
and property damage, products and completed operations, contractual
liability, personal and advertising injury, independent contractors, and
defense costs, in an amount not less than three million dollars ($3,000,000)
per occurrence and five million dollars ($5,000,000) general aggregate.
Lessee shall procure, maintain, and submit to Lessor evidence of Products -
Completed Operations coverage for a period of three (3) years from the time
the Agreement is terminated.
If Lessee offers programs for children and such programs are operated by
Lessee's staff and/or volunteers without parental or guardian attendance or
supervision, the policy shall be endorsed to include affirmative coverage for
Sexual Abuse/Molestation, or a separate policy shall be obtained with a limit
of not less than one million dollars ($1,000,000) per occurrence and three
million dollars ($3,000,000) general aggregate.
Lessee shall submit to Lessor, along with a certificate of insurance,
additional coverage as stated in Section 2. Endorsements.
BALBOA ANGLING CLUB Page D-1
C. Automobile Liability Insurance with coverage at least as broad as Insurance
Services Office Form CA 00 01 covering any auto (Code 1), or if Lessee
has no owned autos, coverage for hired autos (Code 8) and non -owned
autos (Code 9) with limit no less than one million dollars ($1,000,000) each
accident for bodily injury and property damage.
Lessee shall submit to Lessor, along with a certificate of insurance,
additional coverage as stated in Section 2. Endorsements.
D. Watercraft Liability including Protection and Indemnity with minimum limits
of five million dollars ($5,000,000) each occurrence and in the aggregate,
Jones Act for employees performing services under said Act, and Water
Pollution Liability. Water Pollution Liability shall be provided for both sudden
and accidental and gradual and continuous pollution events with limits no
less than five million dollars ($5,000,000) each loss and in the aggregate.
The policy shall not exclude any hazardous materials for which there is
exposure.
Lessee shall submit to Lessor, along with a certificate of insurance,
additional coverage as stated in Section 2. Endorsements.
E. Property Insurance coverage shall be maintained on an "All Risk" basis
equal to the full replacement cost of Premises, including docks and piers
with no coinsurance clause. Lessee shall be solely responsible for the
payment of any deductible.
Lessee shall submit to Lessor, along with a certificate of insurance,
additional coverage as stated in Section 2. Endorsements.
F. Builder's Risk Insurance during construction, alteration or any
improvements on Premises, Lessee shall maintain Builder's Risk insurance
with no coinsurance clause to cover "All Risk" of physical loss including
coverage for loss or damage from collapse and all property stored off -site
or in transit. The value insured shall cover 100% of the completed contract
cost and include Boiler & Machinery and soft costs and shall be maintained
until full acceptance of completed work. Lessee shall be solely responsible
for the payment of any deductible.
G. Excess/Umbrella Liability Insurance shall be "following form" of the
underlying policy coverage, terms, conditions, and provisions and shall
meet all the insurance requirements stated in this Agreement, including, but
not limited to the additional insured, primary & non-contributory and waiver
of subrogation insurance requirements stated herein. No insurance policies
or self-insurance maintained by the Lessor, whether primary, reinsurance
or excess, and which also apply to a loss covered hereunder, shall be called
BALBOA ANGLING CLUB Page D-2
upon to contribute to a loss until Lessee's primary and excess/umbrella
liability policies are exhausted.
Lessor requires and shall be entitled to Lessee's broader coverage and/or the higher
limits if Lessee maintains broader coverage and/or higher limits than the minimums
shown above. Any available insurance proceeds excess of the specified minimum
limits of insurance and coverage shall be available to the Lessor.
2. Endorsements. Policies shall not comply if they include any limiting provision or
endorsement contrary to this Agreement, including but not limited to restricting
coverage to the sole liability of Lessee or excluding contractual liability. Policies
shall contain or be endorsed to contain the following provisions:
A. Additional Insured. The Lessor, City of Newport Beach, its City Council, boards
and commissions, officers, agents, volunteers, and employees shall be
covered as additional insureds with regard to liability and defense of suits or
claims arising out of the activities, work or operations performed by or on behalf
of the Lessee including materials, parts or equipment furnished in connection
with such work or operations on all liability policies.
Additional insured endorsements shall be at least as broad as ISO Form(s) CG
20 10 11 85; or both CG 20 10 or CG 20 26, and CG 20 37.
B. Primary and Non -Contributory. All liability policies shall be primary to and will
not seek contribution from any other insurance whether primary, excess,
umbrella, or contingent insurance, including deductible, or self-insurance
available to the Lessor, City of Newport Beach, its City Council, boards and
commissions, officers, agents, volunteers, and employees for all liability
policies.
The primary endorsements shall be at least as broad as ISO CG 20 01 04 13.
C. Waiver of Subrogation. All insurance policies shall contain or be endorsed to
waive subrogation against Lessor, City of Newport Beach, its City Council,
boards and commissions, officers, agents, volunteers, and employees. Lessee
hereby waives its own right of recovery against Lessor and shall require similar
written express waivers from each of its consultants, contractors, or
subcontractors. This provision applies regardless of whether the City has
received a waiver of subrogation endorsement from the insurer.
D. Loss Payee. Losses payable under the Property and Builder's Risk Insurance
policies shall be paid to the Lessor as its interests may appear.
3. Additional Agreements Between the Parties.
BALBOA ANGLING CLUB Page D-3
A. General Obligations. In the event Lessor determines that (i) the Lessee's
activities on the Premises creates an increased or decreased risk of loss to
the Lessor, (ii) greater insurance coverage is required due to the passage
of time, or (iii) changes in the industry require different coverage be
obtained, Lessee agrees that the minimum types and limits of any insurance
policy required to be obtained by Lessee or Lessee's consultants,
contractors, or subcontractors, may be changed accordingly upon receipt
of written notice from Lessor. With respect to changes in insurance
requirements that are available from Lessee's then -existing insurance
carrier, Lessee shall deposit certificates and endorsements evidencing
acceptable insurance policies with Lessor incorporating such changes
within thirty (30) calendar days of receipt of such notice. With respect to
changes in insurance requirements that are not available from Lessee's
then existing insurance carrier, Lessee shall deposit certificates evidencing
acceptable insurance policies with Lessor, incorporating such changes,
within ninety (90) calendar days of receipt of such notice.
B. Use of Premises. Lessee agrees not to use the Premises in any manner,
even if use is for purposes stated herein, that will result in the cancellation
of any insurance coverage for the Premises or adjoining property. Lessee
further agrees not to keep on the Premises or permit to be kept, used, or
sold thereon, anything prohibited by any insurance policy covering the
Premises. Lessee shall, at its sole expense, comply with all reasonable
requirements for maintaining the required insurance coverage on the
Premises.
C. Evidence of Insurance. All policies, endorsements, certificates, and/or
binders shall be subject to approval by the Lessor as to form and content.
These requirements are subject to amendment or waiver only if approved
in writing by the Lessor. The Lessor reserves the right to require complete,
certified copies of all required insurance policies, including endorsements
required by these specifications, at any time. The certificates and
endorsements for each insurance policy shall be signed by a person
authorized by that insurer to bind coverage on its behalf. At least fifteen (15)
days prior to the expiration of any such policy, evidence of insurance
showing that such insurance coverage has been renewed or extended shall
be filed with the Lessor. If such coverage is cancelled or reduced, Lessee
shall, within ten (10) days after receipt of written notice of such cancellation
or reduction of coverage, file with the Lessor evidence of insurance showing
that the required insurance has been reinstated or has been provided
through another insurance company or companies.
D. Acceptability of Insurers. Each such policy shall be from a company or
companies with a current A.M. Best's rating of no less than A-:VII and
authorized to do business in the State of California, or otherwise allowed to
place insurance through surplus line brokers under applicable provisions of
BALBOA ANGLING CLUB Page D-4
the California Insurance Code or any federal law or otherwise or approved
by the Lessor's Risk Manager.
E. Notice of Cancellation. All insurance policies shall contain or be endorsed
to provide that the insurance required by this Agreement shall not be
suspended, voided, canceled, or reduced in coverage or in limits until thirty
(30) days written notice has been served upon the Lessor, except ten (10)
days for non-payment of premium. It is Lessee's obligation to ensure that
provisions for such notice have been established.
F. Self -Insured Retentions. Self -insured retentions (SIR's) must be declared
to and approved by Lessor. Lessor may require Lessee to purchase
coverage with a lower retention or provide proof of ability to pay losses and
related investigations, claim administration, and defense expenses within
the SIR. The policy language shall provide, or be endorsed to provide, that
the SIR may be satisfied by either the named insured or Lessor. Self -
insured retentions shall be the sole responsibility of Lessee, or
subcontractor who procured such insurance. Lessor may deduct from any
amounts otherwise due Lessee to fund the SIR. The policy must also
provide that defense costs, including the allocated loss adjustment
expenses, will satisfy the SIR.
G. Contractual Liability. The policy shall cover liability assumed under an
insured contract, including the tort liability of another assumed in a business
contract, with no endorsement or modification limiting the scope of coverage
for liability assumed under contract.
H. Reporting Requirements. Lessee shall give Lessor prompt and timely
notice of any claim made or suit instituted arising out of or resulting from
Lessee or Lessee's agents, representatives, consultants, contractors, or
subcontractors' performance under this Agreement.
Subcontractors. Lessee shall be responsible for causing consultants,
contractors and/or subcontractors to purchase the same types and limits of
insurance in compliance with the terms of this Agreement, including adding
the City as an additional insured, providing primary and non-contributory
coverage and waiver of subrogation to the subcontractor's policies, and
meeting the following requirements:
1. Commercial General Liability/Marine Liability Endorsements. For
Commercial General Liability/Marine General Liability coverages,
contractors, consultants and/or subcontractors shall provide
coverage with a format at least as broad as provided by Insurance
Services Office form CG 20 38 04 13. Unless written approval is
granted by Lessor, contractors and/or subcontractors shall also
BALBOA ANGLING CLUB Page D-5
provide an additional insured endorsement at least as broad as ISO
Form CG 40 12 19.
2. Completed Operations. Lessee shall require and verify that Lessee's
construction contractors and subcontractors maintain commercial
general liability insurance, including products -completed operations,
for a period of at least five (5) years from the time that all work is
completed.
3. Design Professionals. Lessee shall require that Lessee's
consultants, contractors and/or subcontractors providing any design,
engineering, surveying, or architectural services for the Premises
maintain professional liability insurance that covers the services to
be performed, in the minimum amount of two million dollars
($2,000,000) each claim and four million dollars ($4,000,000) in the
aggregate. Any policy inception date, continuity date, or retroactive
date and all subsequent insurance shall coincide or be effective on
the first Agreement for Lease of Premises. Lessee shall require that
Lessee's consultants, contractors and/or subcontractors agree to
maintain continuous coverage through a period of no less than five
(5) years after completion of the services performed.
4. Failure to Maintain Insurance. If Lessee or Lessee's consultants,
contractors or subcontractors fail or refuse to maintain insurance as
required in this Agreement, or fail to provide proof of insurance,
Lessor has the right to declare this Agreement in default without
further notice to Lessee, and Lessor shall be entitled to exercise all
available remedies.
BALBOA ANGLING CLUB Page D-6
EXHIBIT E
MEMORANDUM OF LEASE
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
City Clerk's Office
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
[Exempt from Recordation Fee - Govt. Code §§ 6103 & 27383]
MEMORANDUM OF LEASE AGREEMENT
This Memorandum of Lease Agreement ("Memorandum") is dated , 2024,
and is made between City of Newport Beach, a California municipal corporation and charter city
("Lessor" or "City") and Balboa Angling Club, a California non-profit corporation ("Lessee"),
concerning the premises described and depicted in Exhibit 1," attached hereto and by this
reference made a part hereof ("Premises").
For good and adequate consideration, Lessor leases the Premises to Lessee, and Lessee hires
them from Lessor, for the term and on the provisions contained in the Lease Agreement
dated , 2024 ("Agreement"), including without limitation provisions
prohibiting assignment, subleasing, and encumbering said leasehold without the express written
consent of Lessor in each instance, all as more specifically set forth in said Agreement, which
said Agreement is incorporated in this Memorandum by this reference.
The term is twenty (20) years, beginning 2024, and
ending , 2044, and two (2) additional successive "Option Terms" of five (5)
years each, on the same terms and conditions contained in the Agreement as it may be amended
from time to time.
This Memorandum is not a complete summary of the Agreement. Provisions in this Memorandum
shall not be used in interpreting the Agreement's provisions. In the event of conflict between this
Memorandum and other parts of the Agreement, the other parts shall control. Execution hereof
constitutes execution of the Agreement itself.
Assessor's Parcel Number 048-133-16
[Signatures on the next page]
BALBOA ANGLING CLUB Page E-1
LESSOR
CITY OF NEWPORT BEACH,
a California municipal corporation and
charter city
Grace K. Leung
City Manager
ATTEST:
Leilani I. Brown
City Clerk
APPROVED AS TO FORM:
Aaron C. Harp
City Attorney
LESSEE
BALBOA ANGLING CLUB,
a California non-profit corporation
Jimmy Decker
Chief Executive Officer
David DuBois
Chief Financial Officer
Attachment(s): Exhibit 1 — Property Legal Description and Depiction
BALBOA ANGLING CLUB Page E-2
ACKNOWLEDGMENT
A notary public or other officer completing this certificate
verifies only the identity of the individual who signed the
document to which this certificate is attached, and not
the truthfulness, accuracy, or validity of that document.
State of California
County of } ss.
On , 20 before me,
Notary Public, personally appeared who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
ACKNOWLEDGMENT
A notary public or other officer completing this certificate
verifies only the identity of the individual who signed the
document to which this certificate is attached, and not
the truthfulness, accuracy, or validity of that document.
State of California
County of } ss.
(seal)
On , 20 before me,
Notary Public, personally appeared
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (seal)
BALBOA ANGLING CLUB Page E-3
EXHIBIT "1"
DESCRIPTION AND DEPICTION OF PREMISES
BALBOA ANGLING CLUB Page E-4
LEGAL DESCRIPTION OF PROPERTY
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. APN 048-133-16
Depiction of Premises
"` 2 242 P+ 71 ® L
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Balboa Angling Club A
FV00001072
200 A Street, Newport Beach, CA,
USA, 92661
Compliant with Waived
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FV00001072
Commercial
Tidelands
Lease
Address Updated:
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Balboa
Angling Club
200 A Street 200 A Street
Newport Newport Beach
Beach
CA CA
92661 92661