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HomeMy WebLinkAboutC-8067-1 - Dover Drive, 100 - Lease "Lower Castaways Park"LEASE AGREEMENT by and between CITY OF NEWPORT BEACH, a California municipal corporation "City" and NEWPORT OUTRIGGER CANOE CLUB a California nonprofit corporation "Tenant" Dated as of - mune 15 , 2016 LEASE AGREEMENT THIS LEASE AGREEMENT ("Agreement") is made as of the ii 5 day of June, 2016 ("Effective Date"), by and between THE CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and NEWPORT OUTRIGGER CANOE CLUB, a California nonprofit corporation ("Tenant"). City and Tenant are at times individually referred to as "Party" and collectively as "Parties" herein. RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City. B. Tenant is a nonprofit, public benefit corporation that has engaged in outrigger canoe activities in and around Newport Bay and Newport Harbor since 1960 without problems or negative impacts to the health, safety, or welfare of those who use, enjoy, or own property near the waters of Newport Bay. Tenant has made diligent good faith efforts to store their canoes and equipment at other sites throughout the City, but to no avail. C. City is the owner of fee title to certain real property located at 100 Dover Drive in the City of Newport Beach, California (A.P.N. 117-801-10), more commonly known as "Lower Castaways Park" ("Property"). The Property is more particularly depicted on Exhibit A, attached hereto and incorporated herein by this reference. D. City was granted the Property by the Irvine Company by a grant deed recorded with the Orange County Recorder's Officer as Document No. 2008000480499 on October 17, 2008 ("Grant Deed"). The Grant Deed contains a deed restriction as Section 5.i.a limiting the use of the Property generally to municipal or municipally - sponsored uses that are either allowed under the Recreation Marine Commercial uses described in the City of Newport Beach General Plan Recreation Element or are in furtherance of the City's Tidelands Trust ("Deed Restriction"). City and Tenant intend for this Agreement to only allow for land uses consistent with the Deed Restriction. E. City and Tenant desire to enter into this Agreement to allow Tenant to use a portion of the Property ("Premises") for the purposes included in this Agreement and subject to the terms and conditions of this Agreement. The Premises are more particularly depicted on Exhibit B attached hereto and incorporated herein by this reference. F. Tenant's use of the Premises includes and is generally limited to: the storage and use of outrigger canoes and other equipment for official Tenant uses and certain City -sponsored canoe classes. G. The City has determined this Agreement is consistent with the Charter of the City of Newport Beach, its General Plan and Zoning Ordinance applicable thereto, and all other applicable state, federal, and local laws. H. Pursuant to City Council Policy F-7, the City did not conduct an open bid process for the leasing of the Premises because redevelopment of the Premises would require excessive time, resources, and costs which would outweigh other financial benefits; use of the Premises as contemplated herein provides an essential or unique service to the community that might not otherwise be provided were full market value of the property be required; and use of the Premises as contemplated herein serves to promote other goals of the City such as marine related services. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties hereto agree as follows: 1. DEFINITIONS 1.1 General Definitions. As used in this Agreement, the following words and phrases shall have the following meanings: 1.1.1 Alteration - any improvements, additions, alterations, changes, or modifications of the Premises made by Tenant including, but not limited to fixtures and signage. 1.1.2 Authorized City Representative - the City Manager or his/her designee. 1.1.3 Delivery Date - the date the City provides Tenant access to the Premises prior to Rent Commencement, in order for Tenant to prepare space for operation. 1.1.4 Expiration - the lapse of the time specified as the Term of this Agreement, including any extension of the Term allowed herein. 1.1.5 Good Condition - neat and broom -clean and in substantially the same condition as of the Delivery Date of the Premises to Tenant, and is equivalent to similar phrases referring to physical adequacy in appearance and for use. 1.1.6 Law - any judicial decision, statute, constitution, ordinance, resolution, regulation, rule, administrative order, or other requirement of any municipal, county, state, federal, or other government agency or authority having jurisdiction over the parties hereto or the Premises. 1.1.7 Maintenance or Maintain - repairs, replacement, maintenance, repainting, and cleaning. 1.1.8 Person - one (1) or more natural persons, or legal entities, including, without limitation, partnerships, corporations, trusts, estates, associations, or a combination of natural persons and legal entities. 1.1.9 Provision - any term, covenant, condition, or clause in this Agreement that defines, establishes, or limits the performance required or permitted by either party. 1.1.10 Rent - includes Base Rent, taxes, and other similar charges payable by Tenant under the provisions of this Agreement. 1.1.11 Rent Commencement - date Tenant begins paying Rent, commencing thirty (30) calendar days after the Delivery Date. 1.1.12 Successor - assignee, transferee, personal representative, heir, or other Person succeeding lawfully, and pursuant to the provisions of this Agreement, to the rights or obligations of either Party. 1.1.13 Termination - the termination of this Agreement, for any reason, prior to Expiration. 1.1.14 Other Definitions. - The following non -exhaustive list includes additional terms that are defined in the following sections of this Agreement: (a) Base Rent §4.1 (b) Claim or Claims §8.1 (c) Indemnified Parties §8.1 (d) Property Recitals, §§C, D (e) Premises Recitals, §§E. F 2. GRANT OF LEASE In consideration of the covenants to be observed and performed by the Parties, City hereby leases to Tenant, and Tenant hereby hires from City, the Premises pursuant to the terms and conditions herein and subject to the uses enumerated in Section 5 hereof. City reserves all rights to the Property and Premises not expressly leased to Tenant herein, including but not limited to all oil, gas, and mineral rights. Tenant agrees to accept the Premises in an "as is" condition as tendered by City on the Delivery Date. 3. TERM The term of this Agreement ("Term") shall be one (1) year from the Effective Date, unless terminated sooner as provided herein. Thereafter, the Term shall automatically renew on an annual basis upon the anniversary of the Effective Date. Notwithstanding any other provision of this Agreement, either Party shall have the right to terminate this Agreement at any time and for any reason upon thirty (30) days' written notice to the other Party. 4. RENT 4.1 Base Rent. Tenant shall commence payment of Base Rent upon the Rent Commencement Date. The Base Rent shall be Two Hundred Dollars and 00/100 ($200.00) per month. Base Rent shall be paid, in advance, by the first day of each month. Base Rent for any partial month shall be prorated in accordance with the actual number of days in that month and shall be due on the first day of that month that falls within the Term. 4.2 Fee for and Use of Water Line. Within five (5) calendar days following the Effective Date, Tenant shall pay the City One Thousand Five Hundred and 001100 ($1,500.00) as a one (1) time fee to run a new water line for exclusive use by the Tenant. Tenant shall maintain a municipal services account in order to use and pay for the water consumed by Tenant and shall be responsible for payment of all water furnished to or used by Tenant on the Property. Tenant shall be responsible for the maintenance, repair, and/or replacement of the water line. 4.3 Payment Location. All payments due hereunder by Tenant shall be made in lawful money of the United States of America and shall be paid to City online at www.newportbeachca.gov, 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 City may from time -to -time designate in writing to the Tenant. The Tenant assumes all risk of loss and responsibility for late charges and delinquency rates if any payment is not timely received by the City regardless of the method of transmittal. 4.4 No Partnership Created. City and Tenant shall in no event be construed or held to be partners, co-owners, joint ventures or associates of one another in the conduct of Tenant's business on the Premises. The relationship between City and Tenant is and at all times shall remain that of lessor and lessee for all purposes. 4.5 Possessory Interest Tax. Tenant understands that this Agreement may create a possessory interest and shall pay directly to the appropriate taxing authorities all taxes applicable under this Agreement, including but not limited to any real estate tax, levy, or assessment on the Premises. Tenant shall pay before delinquency: (i) all taxes assessed by any taxing authority which are attributable to Tenant's operations, (ii) all personal property taxes assessed on Tenant's fixtures, equipment, and machinery, and (iii) any possessory interest tax, levied pursuant to Califomia Revenue and Taxation Code Section 107.6, which City has advised Tenant may be assessed based on the amount of the Rent payable hereunder. Except as otherwise provided herein, City shall pay before delinquency all taxes and/or assessments assessed by any taxing authority (including sales taxes) which are related to City's occupancy, use or ownership of the Property, including, without limitation: (a) personal property, fixtures or equipment taxes assessed against City's property; (b) franchise taxes assessed against City; (c) taxes on City's gross rents or profits; (d) inheritance, state, gift, income, transfer or excess profit taxes assessed against City; (e) sales taxes payable by City; and (f) real property taxes and assessments, including, but not limited to, any fees, interest and penalties arising from any such tax or assessment, assessed against all or any portion of the land or other improvements located on the Property, including, but not limited to, any such taxes and assessments attributable to the Premises or any portion thereof. 5. USE OF PREMISES 5.1 Use of Premises. The Premises are to be used by Tenant only for the purposes enumerated in Section 5 of this Agreement. 5.2 Hours of Use. Tenant shall operate and manage the Premises in a manner comparable to other high quality nonprofit clubs providing similar services as Tenant. Absent written approval from the Authorized City Representative, Tenant shall only use two (2) or more outrigger canoes on the Premises from 4 p.m. to dusk, Monday through Thursday, and 8 a.m. to dusk, Friday through Sunday. 5.3 Storage Water Service, and Maintenance. 5.3.1 Tenant may store up to ten (10) outrigger canoes, two (2) low -profile storage cabinets (approximately 36 inches wide by 72 inches wide by 48 inches tall, painted to blend into the surrounding site) to secure Tenant's equipment and safety gear (i.e. life vests, tow ropes, buckets, etc.) on and within the Premises. Tenant shall not store any trailers, vehicles, equipment or materials on the sand/beach, Premises, or Property other than that specified in this paragraph. Outrigger canoes shall only be stored within the Premises, and are prohibited from being left on the beach or anywhere else at the Property. 5.3.2 Tenant may utilize the newly run metered water line at the Property, consistent with Section 4.2 of this Agreement, to wash and rinse the outrigger canoes. Tenant must re -rack the hose when not in use. All spigots and hoses shall not be allowed to freely or continuously run and shall have shut-off nozzles installed on each of their ends. 5.3.3 Tenant shall use its best efforts to maintain the sand/beach area around the Premises to preserve the park and harbor and to reduce Tenant's impact on the environment. 5.3.4 Tenant's use of the Premises shall not impede public access to the sand/beach from the Property or the work of the City when beach maintenance and restoration work is being performed on the Property. 5.3.5 No boat maintenance shall be performed at the Property. All fiberglass repairs, sanding, painting, sealing, and similar activities shall be done off-site to avoid any adverse environmental impact. 5.4 Other Users of Property. The Premises are a portion of the Property specifically designated for use by Tenant for the operations permitted herein, as shown on Exhibit B. Certain other portions of the Property are not only open to the public, but shared with other tenants or licensees of the City, and consideration shall be given by Tenant to these other tenants and licensees so as not to impede the operation of their respectively designated uses of the Property. 5.5 Prohibited Uses. Other than as expressly otherwise permitted herein, Tenant shall not: 5.5.1 Use or permit the use of the Premises in any manner that (a) creates a nuisance, (b) violates any Law, or (c) violates any term of this Agreement; 5.5.2 Permit any unreasonable noise that would adversely affect the use or enjoyment or public or private property in the vicinity of the Property; 5.5.3 Further change the physical character of the Property or Premises, i.e.: Tenant shall not add any additional trailers, equipment, fencing, landscaping, etc. not otherwise expressly allowed per this Agreement, without prior written approval by the City; 5.5.4 Operate the Premises in a manner that would bring customers or large pieces of equipment onto the Premises; 5.5.5 Post, exhibit, display, or allow to be posted, exhibited, or displayed, any signs, advertising, showbills, lithographs, posters, or cards of any kind pertaining to this Agreement unless prior written approval has been obtained from the Authorized City Representative. 5.6 Equipment. Tenant shall maintain and store, at Tenant's own expense, all of Tenant's equipment permitted under this Agreement. Tenant shall ensure that equipment is stored properly and safely, and is in compliance with all applicable local and state building codes and any applicable state or federal regulations. 5.7 Environmental Requirements. 5.7.1 Tenant shall not use or store any hazardous material upon the Premises in violation of any applicable law, regulation, code or ordinance. Tenant shall, at its expense, comply with all applicable laws, regulations, codes and ordinances relating to any hazardous material or to any hazardous material activities, including obtaining and filing all applicable notices, permits, licenses and similar authorizations. 5.7.2 Tenant shall indemnify, defend, protect and hold City, its City Council, boards, commissions, agents, servants and employees, harmless from and against any and all liability, Claims (as defined herein), actions, and out-of-pocket costs or expenses of an kind or nature, including damage to any property and injury (including death) to any person, arising directly or indirectly from any hazardous material activity of, Tenant or any of Tenant's agents, employees, independent contractors, invitees, licensees, guests, subcontractors, and affiliates during the Term; provided, however, that Tenant shall have no liability under this Section 5.7.2 for any portion of any Claim which arises out of the negligence or willful misconduct of any Party indemnified under this Section 5.7.2. The foregoing indemnity shall include all costs and expenses of removal, remediation of any kind and disposal of any such hazardous material and all reasonable consultants' fees, attorneys' fees and investigation costs and all other reasonable costs, expenses and liabilities incurred by any indemnified party or their counsel from the first notice that any Claim is to be made or may be made. The obligation of Tenant under this Section 5.7.2 shall survive the expiration or earlier termination of the Term. 5.8 Parking. 5.8.1 Tenant may use those areas of the Property, as outlined on Exhibit B, designated as public parking and only during posted hours of operation of Property by City for public park purposes. No overnight parking is permitted. At no time shall Tenant park anywhere else on the Property. Tenant shall use its best efforts to carpool, bike, or walk to the Property, or utilize public transportation to reduce the parking impact at the Property. 5.8.2 At no time shall Tenant drive upon or park upon the sand beyond the bollards south of the Premises. Tenant must carry the outrigger canoes between the water and the Premises. 5.9 Restrooms. City shall make two (2) portable restrooms available at the Property. City will provide Tenant with a key to one (1) of the portable restrooms ("Tenant Restroom) for use by Tenant. Tenant is responsible for securing the Tenant Restroom when it is not in use by Tenant. Tenant will be responsible for all costs associated with the Tenant Restroom, including rental fees, transportation costs, maintenance, cleaning, dumping, and supplies. 5.10 Good Neighbor Policy. Upon the request of any nearby homeowners' association (HOA), the City, or neighboring business, Tenant shall send a representative to attend any meeting called by the HOA or neighboring business to discuss any activity or concern relating to Tenant's presence at the Property. 5.11 Special Events. Tenant shall notify the City in writing at least ninety (90) days before any special event sponsored or supported by Tenant that Tenant believes is permitted by this Agreement and may impact the Property, beach, nearby residents or businesses beyond Tenant's ordinary use of the Premises, and obtain all necessary and required permits for all such events. 5.12 Canoeing Classes. City may use Tenant as a secondary provider of City outrigger canoe fee-based classes for adults, juniors, and children. In such event, Tenant shall use the canoes stored on the Premises for such classes. Additionally, Tenant shall make available up to four (4) times annually at no charge, an opportunity for City -sponsored programs to experience an outrigger outing to provide exposure to the sport and maximize use of the Property for community benefit. City shall notify Tenant in writing not less than four (4) months prior to the date of such classes with any requests to provide City outrigger canoe classes. Upon any such City request, Tenant shall provide the classes, and shall do so according to procedures defined by the City's Recreation and Senior Services Department. 6. RESERVED 7. MAINTENANCE OF PREMISES Tenant agrees that it will keep the Premises in Good Condition. Additionally, Tenant shall be responsible for clearing away trash and debris from the Premises. All furnishings, equipment, facilities, improvements, Alterations, attachments and appurtenances provided by City or installed by Tenant, and required for operations, including all equipment and interior furnishings, including items under warranty, shall be maintained in Good Condition and repair by Tenant at its cost. 8. INDEMNITY AND EXCULPATION 8.1 Hold -Harmless Clause. Tenant agrees to indemnify, defend and hold harmless the City, its City Council, Boards, Commissions, Committees, officers, agents, volunteers, and employees (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 Tenant's possession, occupation or use of the Premises, specifically including, without limitation, any claim, liability, loss, or Damage arising by reason of: (a) The death or injury of any Person or damage to personal property caused or allegedly caused by the condition of the Premises or an act or omission of Tenant or an agent, contractor, subcontractor, supplier, employee, servant, or sublessee of Tenant; (b) Any work performed on the Premises or materials furnished to the Premises at the request of Tenant or any agent or employee of Tenant, with the exception of Maintenance performed by City; and/or (c) Tenant's failure to perform any provision of this Agreement or to comply with any requirement of Law or any requirement imposed on the Premises by any duly authorized governmental agency or political subdivision. Tenant's obligations pursuant to this Subsection shall not extend to any Claim proximately caused by the sole negligence, willful misconduct, or unlawful or fraudulent conduct on the part of the Indemnified Parties. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. 8.2 Exculpation of City. Except as otherwise expressly provided in this Agreement, City shall not be liable to Tenant for any damage to Tenant or Tenant's property or equipment from any cause other than the sole negligence, intentional or willful acts of the Indemnified Parties. Except as otherwise expressly provided in this Agreement, Tenant waives all claims against the Indemnified Parties arising for any reason other than the sole negligence, intentional or willful acts of the Indemnified Parties. City shall not be liable to Tenant for any damage to the Premises, Tenant's property, Tenant's goodwill, or Tenant's business income, caused in whole or in part by acts of nature such as earthquakes, floods, fire or other natural disaster. 9. INSURANCE Without limiting Tenant's indemnification of City, Tenant shall obtain, provide and maintain at its own expense during the Term of this Agreement, a policy or policies of insurance of the type, amounts and form acceptable to City. The policy or policies shall provide, at a minimum, those items described in Exhibit C attached hereto and incorporated herein by this reference. 10. RESERVED 11. ABATEMENT OF RENT 11.1 General Rule. In the event of damage or destruction of the Premises and this Agreement is not terminated, Tenant shall continue to utilize the Premises for the operations permitted herein to the extent it may be practicable and commercially reasonable. Rent shall abate only in proportion to the area of the Premises that is rendered unusable. The abatement of Rent shall commence on the date that use of the Premises is impacted and continue until the completion of those repairs necessary to restore full use of the Premises and Tenant's re -opening of the Premises. Tenant's obligation to pay Taxes pursuant to this Agreement shall not be abated or reduced. Rent shall not abate if the damage or destruction to the Premises is the result of the negligence or willful conduct of Tenant or its employees, officers or agents. Tenant's right to abatement of Rent is contingent on payment of insurance proceeds, if any, equal to the amount of Rent pursuant to coverage required by Exhibit C. 11.2 Abatement/Maintenance. Tenant shall not be entitled to any abatement of Rent for Maintenance that occurs during the Maintenance period. 12. PROHIBITION AGAINST VOLUNTARY ASSIGNMENT, SUBLETTING AND ENCUMBERING 12.1 Prohibition of Assignment. City and Tenant acknowledge that City is entering into this Agreement in reliance upon the experience and abilities of Tenant. Consequently, Tenant shall not voluntarily assign or encumber its interest in this Agreement or in the Premises, or assign substantially all or any part of the Premises, or allow any other person or entity (except Tenant's authorized representatives) to occupy or use all or any part of the Premises without the prior written consent of City, which shall not be unreasonably withheld. Any assignment or transfer made without the City's written consent is null and void. Except as otherwise expressly provided herein, any dissolution, merger, consolidation, reorganization of Tenant, or the sale or other transfer resulting in a transfer of a controlling percentage of the capital stock of Tenant, shall be deemed a voluntary assignment; provided, however, that the sale or transfer of a controlling percentage of the capital stock of Tenant pursuant to a public offering(s) of equity or debt instruments issued by Tenant, or other transfers of publicly traded capital stock or debt instruments shall not constitute a voluntary assignment and shall not require City's consent or approval. The phrase "controlling percentage" means the ownership of, or the right to vote, stock possession of at least fifty percent (50%) of the total combined voting power of all classes of Tenant's capital stock issued, outstanding, and entitled to vote for the election of directors, except for ownership of publicly traded shares, warrants or similar equity interests in Tenant traded on a national exchange or over-the-counter markets. 12.2 Continuing Effect. City's consent to any assignment or encumbrance shall not relieve Tenant from its obligations or liabilities under this Agreement nor act as a waiver of the requirement that such consent be obtained to any subsequent assignment or encumbrance. 13. DEFAULT AND REMEDIES 13.1 Default by Tenant. The occurrence of any one (1) or more of the following events shall constitute a default and material breach of this Agreement by Tenant: 13.1.1 The vacating or abandonment of the Premises by Tenant for a period of thirty (30) successive calendar days, without the prior permission of the Authorized City Representative, excluding closures during periods of casualty, condemnation or permitted closures set forth in this Agreement; 13.1.2 The failure by Tenant to make any payment of Rent or any other payment required by this Agreement, as and when due, when such failure shall continue for a period of ten (10) calendar days after written notice of default from City to Tenant; 13.1.3 Except as specified in Subsection 13.1.2, the failure of Tenant to observe or perform any of the material covenants, conditions or provisions of this Agreement to be observed or performed by Tenant where such failure shall continue for a period of thirty (30) calendar days after written notice thereof from City to Tenant; provided, however, that if the nature of Tenant's default is such that more than thirty (30) calendar days are reasonably required for its cure, then Tenant shall not be deemed to be in default if Tenant commences such cure within said thirty (30) calendar day period and thereafter diligently prosecutes such cure to completion; 13.1.4 The making by Tenant of any general arrangement or assignment for the benefit of creditors; 13.1.5 Tenant becomes a "debtor" as defined in 11 U.S.C. Section 101 or any successor statute thereto (unless, in the case of a petition filed against Tenant, the same is dismissed within sixty (60) calendar days); 13.1.6 The appointment of a trustee or receiver to take possession of substantially all of Tenant's assets located at the Premises or of Tenant's interest in this Agreement, where such appointment is not discharged within sixty (60) calendar days; and 13.1.7 The attachment, execution or the judicial seizure of substantially all of Tenant's assets located at the Premises or of Tenant's interest in this Agreement, where such seizure is not discharged within sixty (60) calendar days. 13.2 City Remedies for Tenant Default. 13.2.1 Cumulative Nature of Remedies. If any default by Tenant shall continue without cure as required by this Agreement, City shall have the remedies described in this Section in addition to all other rights and remedies provided by law or equity, to which City may resort cumulatively or in the alternative. 13.2.1.1 Re-entry without Termination. City may re-enter the Premises, and, without terminating this Agreement, re -let all or a portion of the Premises. City may execute any agreements made under this provision in City's name and shall be entitled to all rents from the use, operation, or occupancy of the Premises. Tenant shall nevertheless pay to City on the dates specified in this Agreement the equivalent of all sums required of Tenant under this Agreement, plus City's expenses in conjunction with re- letting, less the proceeds of any re -letting or atonement. No act by or on behalf of City under this provision shall constitute a Termination of this Agreement unless City gives Tenant specific written notice of Termination. 13.2.1.2 Damages to City upon Termination by City. Upon thirty days' notice, City may terminate this Agreement by giving Tenant written notice of Termination with a specified termination date. In the event City terminates this Agreement, City may recover possession of the Premises (which Tenant shall surrender and vacate upon demand) and remove all Persons and property. City shall be entitled to recover the following as damages; 13.2.1.2.1The value of any unpaid Rent or other charges that are unpaid at the time of Termination; 13.2.1.2.2Any other amount necessary to reasonably compensate City for the detriment proximately caused by Tenant's failure to perform its obligations under this Agreement; and 13.2.12.3At City's election, such other amounts in addition to or in lieu of the foregoing as may be permitted from time -to -time by applicable California law. City shall be entitled to interest at the rate of ten percent (10%) per annum on all Rent and other charges from the date due or the date they would have accrued. City shall also be entitled to an award of the costs and expenses incurred by City in maintaining or preserving the Premises after default, preparing the Premises for re- letting, or repairing any damage caused by an act or omission of Tenant. 13.2.2 City's Right to Cure Tenant's Default. Upon continuance of any material default beyond applicable notice and cure periods, City may, but is not obligated to, cure the default at Tenant's cost. If City pays any money or performs any act required of, but not paid or performed by, Tenant after notice, the payment and/or the reasonable cost of performance shall be due as additional Rent not later than five (5) calendar days after service of a written demand accompanied by supporting documentation. No such payment or act shall constitute a waiver of default or of any remedy for default or render City liable for any loss or damage resulting from performance. 13.3 Default by City and Tenant's Remedy. City shall be in default if it fails to perform, or commence performance if the obligation requires more than ten (10) calendar days to complete, any material obligation within ten (10) calendar days after receipt of written notice by Tenant to City specifying the nature of such default. City shall also be in default if it commences performance within ten (10) calendar days but fails to diligently complete performance. In the event of City's default, Tenant may terminate this Agreement if City's default materially interferes with Tenant's use of the Premises for its intended purpose and City fails to cure such default within ten (10) calendar days after a second written demand by Tenant in which case Tenant shall have no further or continuing obligations. 14. NOTICES Any notice, demand, request, consent, approval or communication that either party desires or is required to give shall be in writing and shall be deemed given three (3) calendar days after deposit into the United States registered mail, postage prepaid, by registered or certified mail, return receipt requested. Unless notice of a different address has been given in accordance with this Section, all notices shall be addressed as follows: If to City, to: CITY OF NEWPORT BEACH Attn: Real Property Administrator 100 Civic Center Drive P.O. Box 1768 Newport Beach, CA 92660 If to Tenant, to: NEWPORT OUTRIGGER CANOE CLUB Attn: Tim Ohno 63 Barbados Drive Aliso Viejo, CA 92656 15. SURRENDER OF PREMISES At the Expiration or earlier Termination of this Agreement, Tenant shall surrender to City the possession of the Premises. Tenant shall leave the surrendered Premises, required personal property, equipment, and fixtures in Good Condition, reasonable wear and tear excepted. All property that Tenant is not required to surrender, but that Tenant does abandon, shall, at City's election, become City's property at such Expiration or Termination. City shall owe no compensation to Tenant for any personal property, equipment or fixtures left at the Premises by Tenant at the Expiration or Termination of this Agreement. 16. COMPLIANCE WITH ALL LAWS Tenant 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 Tenant 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 his/her designee. 17. WAIVERS The waiver by either party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 18. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 19. APPLICABLE LAW This Agreement shall be construed in accordance with the laws of the State of California in effect at the time of the execution of this Agreement. Any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, California. 20. ENTIRE AGREEMENT; AMENDMENTS 20.1 The recitals to the Agreement, which the Parties acknowledge to be true and correct and incorporated into the Agreement by this reference, and the terms and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire agreement of the parties with respect to the subject matter of this Agreement. 20.2 This Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between Tenant and City. 20.3 No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. 20.4 The terms and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by Tenant and the City Manager or his/her designee. 20.5 If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. 20.6 Any obligation of the parties relating to monies owed, as well as those provisions relating to limitations on liability and actions, shall survive termination or expiration of this Agreement. 20.7 Each party has relied on its own inspection of the Premises and examination of this Agreement, the counsel of its own advisors, and the warranties, representations, and covenants in this Agreement. The failure or refusal of either party to inspect the Premises, to read this Agreement or other documents, or to obtain legal or other advice relevant to this transaction constitutes a waiver of any objection, contention, or claim that might have been based on such reading, inspection, or advice. 21. SUCCESSORS Subject to the provisions of this Agreement on assignment and subletting, each and all of the covenants and conditions of this Agreement shall be binding on and shall inure to the benefit of the heirs, successors, executors, administrators, assigns, and personal representatives of the respective parties. It is expressly understood and agreed that, notwithstanding anything to the contrary in this Agreement, and notwithstanding any applicable Law to the contrary, the obligations of Tenant under this Agreement do not constitute personal obligations of the directors, volunteers, employees, officers or members of Tenant, and City will individual directors, volunteers, employees, officers or their personal assets for satisfaction of any liability Agreement unless authorized by law. 22. INTERPRETATION not seek recourse against the members of Tenant or any of of Tenant in respect to this The terms of this Agreement 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 Agreement or any other rule of construction which might otherwise apply. 23. EXHIBITS All exhibits to which reference is made in this Agreement are incorporated by reference. Any reference to "this Agreement" includes matters incorporated by reference. 24. COSTS AND ATTORNEYS FEES The prevailing parry in any action brought to enforce the terms and conditions of this Agreement, or arising out of the performance of this Agreement, shall not be entitled to recover its attorneys' fees. 26. NONDISCRIMINATION Tenant represents that it is an equal opportunity employer and agrees that in the performance under this Agreement, it shall not, discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, age or any other impermissible basis under law. 26. COUNTERPARTS This Agreement 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] IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date. APPROVED AS TO FORM: THE CITY ATTORNEY'S OFFICE Date: OI Aaron C. Harp City Attorney ATTEST: �r I I Date: ' a, Leilani I. Brown` City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: (o) r3l lL, By: Dave-Kiff City Manager TENANT: NEWPORT OUTRIGGER CANOE CLUB, a California nonprofit corporation Date: Lal# By: Peter eng, S Vice President Date: BY: imo y Ohno Treasurer Attachments: Exhibit A — Property Description Exhibit B — Premises Depiction Exhibit C — Insurance Requirements Exhibit D — Memorandum of Lease [END OF SIGNATURES] EXHIBIT A PROPERTY DEPICTION [Attached behind this page] EXHIBIT A PROPERTY EXHIBIT B PREMISES DEPICTION [Attached behind this page] EXHIBIT B 4A! wao� , A\N`( WEST EXHIBIT C INSURANCE REQUIREMENTS 1. Provision of Insurance. Without limiting Tenant's indemnification of City, and prior to the Effective Date, Tenant shall obtain, provide and maintain 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 City. Tenant agrees to provide insurance in accordance with requirements set forth here. If Tenant uses existing coverage to comply and that coverage does not meet these requirements, Tenant agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. 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 Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. General Liability Insurance. Tenant shall maintain commercial general liability insurance with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its City Council, boards and commissions, officers, agents, volunteers, and employees or shall specifically allow Tenant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Tenant hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its agents. B. Additional Insured Status. Liability policy shall provide or be endorsed to provide that City, its City Council, boards and commissions, officers, agents, volunteers, and employees shall be included as insureds under such policies. C. Primary and Non Contributory. Coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days' notice of cancellation (except for nonpayment for which ten (10) calendar days' notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Tenant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Tenant sixty (60) calendar days advance written notice of such change. If such change results in substantial additional cost to Tenant, City and Tenant may renegotiate monies owed by Tenant per the Agreement. C. Enforcement of Agreement Provisions. Tenant acknowledges and agrees that any actual or alleged failure on the part of City to inform Tenant of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. D. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Tenant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Tenant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. E. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. F. City Remedies for Non -Compliance. If Tenant or any of its agents fail to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Tenant's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Tenant's or reimbursed by Tenant upon demand. G. Timely Notice of Claims. Tenant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Tenant's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. H. Tenant's Insurance. Tenant 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. EXHIBIT D MEMORANDUM OF LEASE RECORDING REQUESTED AND WHEN RECORDED RETURN TO: Office of the City Clerk City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 [Exempt from Recordation Fee - Govt. Code Sec. 6103] MEMORANDUM OF LEASE AGREEMENT This MEMORANDUM OF LEASE Agreement ("Memorandum") is dated 20_, and is made between City of Newport Beach, a California municipal corporation and charter city ("Lessor' or "City") and Newport Outrigger Canoe Club, a California nonprofit corporation ('Tenant"), concerning the Property described in Exhibit 'A," and the Premises depicted in Exhibit "B," attached hereto and by this reference made a part hereof. The term of the Lease is one (1) year, commencing 2016 and subject to automatic renewal on an annual basis thereafter. 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. [SIGNATURES ON NEXT PAGE] IN WITNESS WHEREOF, the parties hereto have executed this Memorandum as of the date first written above. APPROVED AS TO FORM: THE CITY ATTORNEY'S OFFICE Date: Aaron C. Harp City Attorney ATTEST: Date: By: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Dave Kiff City Manager TENANT: NEWPORT OUTRIGGER CANOE CLUB, a California nonprofit corporation Date: By: Peter R. Teng, DDS Vice President By: Timothy Ohno Treasurer Attachments: Exhibit A — Property Description Exhibit B — Premises Depiction 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 ORANGE ) On before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity(ies), and that by his signature on the instrument the person, 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 (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 ORANGE On before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that s/he executed the same in his/her authorized capacity(ies), and that by his/her signature on the instrument the person, 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 (seal) Signature