HomeMy WebLinkAboutC-7891-1 - Dover Drive, 100 - Lease Agreement 2020 - Lower Castaways ParkLEASE AGREEMENT
by and between
CITY OF NEWPORT BEACH,
a California municipal corporation and charter city
"City"
and
CASTAWAYS OUTRIGGER
a California nonprofit corporation
"Tenant"
Dated as of TU[Ll 22 2020
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Agreement") is made as of the Vot day of
J ['w" , 2020 ("Effective Date"), by and between THE CITY OF
NEWPORT BEAC%, a California municipal corporation and charter city ("City"), and
CASTAWAYS OUTRIGGER, 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 engages in outrigger canoe
activities in and around Newport Bay and Newport Harbor 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.
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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. In accordance with City Council Policy F-7, whenever an open bid process is not
conducted or fair market value rent is not received, the City shall make specific
findings setting forth the reasons thereof. 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. Additionally as the rent being
charged is less than fair market value, the City finds this use provides a public
benefit to the community by providing marine related services to the public and is
therefore a matter of citywide benefit. These findings by the City are of a citywide
concern in that beneficial uses of the Property might not otherwise be provided
were full market value of the Property required.
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 Date, 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.
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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 - 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 leases from City, the Premises pursuant
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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) calendar 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 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, P.O. Box 1768, Newport Beach,
California 92658, 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.
4.3 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.
4.4 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 California 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
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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 Access, and Maintenance.
5.3.1 Tenant may store up to two (2) outrigger canoes and one (1) low -profile
storage cabinet (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 acknowledges and understands the City will not provide a water
line at the Premises for use by the Tenant. Should Tenant desire access
to water at the Premises to wash and rinse the outrigger canoes, Tenant
must contact other tenants or licensees on the Property to discuss
shared use of water and, if necessary, reimbursement costs for such
use. Tenant may supply its own water hose and/or water spigot. If
Tenant elects to use its own water hose and/or spigot, Tenant must re -
rack the hose when not in use and properly store the hose and spigot in
compliance with Section 5.3.1 set forth above. 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.
5.3.2.1 Tenant shall be responsible for the maintenance, repair, and/or
replacement of any shared water line. If Tenant hires any
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contractors, subcontractors or consultants to perform such work
at the Premises, Tenant shall provide City no less than thirty (30)
calendar days' prior written notice; and Tenant shall, in a form
and scope of coverage satisfactory to the City's Risk Manager,
obtain all insurance required by City from such contractors,
subcontractors, or consultants prior to commencing such work at
the Premises.
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, except for any mutually agreed upon use
of the water line between Tenant and other tenants and licensees.
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; or
Castaways Outrigger Lease Agreement Page 7
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 and commissions, officers, agents, volunteers, and employees,
harmless from and against any and all liability, Claims (as defined in
Section 8. 1), 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 sole 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,
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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 one (1) portable restroom available at the
Property. City will be responsible for all costs associated with the 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)
calendar 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. Further details
and requirements of canoeing classes shall be covered in a separate
agreement. If Tenant fails to agree to the terms of the separate agreement
within seven (7) calendar days of being provided such separate agreement
by the City, City may terminate this Agreement upon five (5) calendar days'
notice by giving Tenant a written notice of Termination with a specified
termination date. All rights and remedies afforded to the City under Section
13.2 of this Agreement shall apply to Termination under Section 5.12 as
well.
6. RESERVED
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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 and commissions, 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, volunteer, 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
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Agreement, Tenant waives all claims against the Indemnified Parties arising for any
reason whatsoever 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 including, without limitation, earthquakes, floods, fire, waves, wind
and tidal flows, or any other natural disaster whatsoever, or any restrictive governmental
laws, regulations, or orders of any kind or duration.
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 in
whole or in part, and this Agreement is not terminated, Tenant shall continue to utilize the
unaffected portion of 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
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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;
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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 (30)
calendar 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
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property. City shall be entitled to recover the following as
damages;
13.2.1.2.1 The 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
13.2.1.2.3At 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.
Castaways Outrigger Lease Agreement Page 14
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: CASTAWAYS OUTRIGGER
Attn: Justin Feesago
18915 Santa Clara Circle
Fountain Valley, CA 92708
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,
Castaways Outrigger Lease Agreement Page 15
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.
Castaways Outrigger Lease Agreement Page 16
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 not seek recourse against the individual directors,
volunteers, employees, officers or members of Tenant or any of their personal assets for
satisfaction of any liability of Tenant in respect to this Agreement unless authorized by
law.
22. INTERPRETATION
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 party 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.
25. 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.
Castaways Outrigger Lease Agreement Page 17
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]
Castaways Outrigger Lease Agreement Page 18
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: S&7Lj0
By:
Aaron C. Harp
City Attorney
ATTEST: �Z rJV�
Date: ooVVJJ
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
GracPana
eung
Cityger
TENANT: CASTAWAYS OUTRIGGER, a
California nonprofit corporation
Date:
W a'
W114M
00,61I ,l
Signed in Counterpart
Leilani I. Brown Justin Feesago
City Clerk President
Attachments: Exhibit A
Exhibit B
Exhibit C
Exhibit D
Date:
Timothy R. Rupp
Treasurer
- Property Depiction
- Premises Depiction
- Insurance Requirements
- Memorandum of Lease
[END OF SIGNATURES]
Castaways Outrigger Lease Agreement Page 19
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: S- Z2 7'(.) .10
By:
Aaron C. Harp
City Attorney
ATTEST:
Date:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Grace K. Leung
City Manager
TENANT: CASTAWAYS OUTRIGGER, a
California nonprofit corporation
Date:
By: By:
Leilani I. Brown stin Fe
City Clerk resident
Attachments: Exhibit A
Exhibit B
Exhibit C
Exhibit D
J
Iso
z loto
By:
Timothy R
Treasurer
— Property Depiction
— Premises Depiction
— Insurance Requirements
— Memorandum of Lease
[END OF SIGNATURES]
Castaways Outrigger Lease Agreement Page 19
IN WUNESS WHEREOF, the parties hereto have executed this Agreement as of
the Effective Date.
APPROVED AS TO FORM.
THE CUY ATTORNEY'S OFFS CE
Date:- ,4270 -0
By:
Aaron C. Harp
City Attorney
ATTEST -
Date:
=Y OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Grace K. Leung
City Manager
TENANT. CASTAWAYS OUTRGG ER, a
California nonprofit corporation
Date:
By: By:
Leilani I. Brown Justin Feesago
City Clerk President
Date: zo
By:
Timothy R. RU41
Treasurer
Attachments: Exhibit A — Property Depiction
Exhibit B — Premises Depiction
Exhibit C — Insurance Requirements
r�
Exhibit D — Memorandum of Lease
)JEND OF S�GNATURESJ
Castaways Outrigger Lease Agreement Page, 19
EXHIBIT A
PROPERTY DEPICTION
[Attached behind this page]
Castaways Outrigger Lease Agreement Page A-1
EXHIBIT B
PREMISES DEPICTION
[Attached behind this page]
Castaways Outrigger Lease Agreement Page B-1
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EXHIBIT C
INSURANCE REQUIREMENTS
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.
Castaways Outrigger Lease Agreement Page C-1
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
Castaways Outrigger Lease Agreement Page C-2
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.
Castaways Outrigger Lease Agreement Page C-3
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 and 273831
MEMORANDUM OF LEASE AGREEMENT
This MEMORANDUM OF LEASE Agreement ("Memorandum") is dated
, 2020, and is made between City of Newport Beach, a California municipal
corporation and charter city ("Lessor" or "City") and Castaways Outrigger, a California
nonprofit corporation ("Tenant"), concerning the Property depicted in Attachment "A," and
the Premises depicted in Attachment "B," attached hereto and by this reference made a
part hereof.
The term of the Lease is one (1) year, commencing 2020 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 of the Agreement shall control. Execution hereof constitutes execution of the
Agreement itself.
[SIGNATURES ON NEXT PAGE]
Castaways Outrigger Lease Agreement Page D-1
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:
By:
Aaron C. Harp
City Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
Attachments
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Grace K. Leung
City Manager
TENANT: CASTAWAYS OUTRIGGER, a
California nonprofit corporation
Date:
By:
Justin Feesago
President
Date:
Timothy R. Rupp
Treasurer
Attachment A — Property Depiction
Attachment B — Premises Depiction
Castaways Outrigger Lease Agreement Page D-2
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies
only the identity of the individual who signed the document to
which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California )
County of 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
Signature
(seal)
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
Castaways Outrigger Lease Agreement Page D-3
ATTACHMENT A
PROPERTY DEPICTION
[Attached behind this page]
Castaways Outrigger Lease Agreement Page A-1
1 f A I `�' , NE
ATTACHMENT B
PREMISES DEPICTION
[Attached behind this page]
Castaways Outrigger Lease Agreement Page B-1
remi
S
0
From: Wooding, Lauren
To: ProRertyinsurance; Shrago, Fauna
Subject: FW: Compliance Alert -Vendor Number FV00000142
Date: Friday, August 21, 2020 5:33:10 PM
From: Customer Service
Sent: Friday, August 21, 2020 5:32:59 PM (UTC -08:00) Pacific Time (US & Canada)
To: Wooding, Lauren; Insurance
Cc: sagar@ebix.com
Subject: Compliance Alert -Vendor Number FV00000142
[EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content
is safe.
This Account has moved from non-compliant to COMPLIANT status and is currently in compliance for certificate
of insurance requirements. FV00000142 Castaways Outrigger
Sent by Ebix, designated insurance certificate reviewer for the City of Newport Beach.