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.
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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.
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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