HomeMy WebLinkAboutC-8853-1 - Parking Lot Use Agreement (Central Avenue Lot)^� PARKING LOT USE AGREEMENT
This Parking Lot Use Agreement ("Agreement") is entered into this 1st day of April, 2022,
v by and between the City of Newport Beach, a California municipal corporation and charter
city ("City"), and the Newport Harbor Elks Lodge #1767, a non-profit association ("Elks").
RECITALS
A. Elks is the owner of an irregular parcel of land and certain improvements, including
the Elks Lodge #1767 building and facilities ("Elks Lodge"), landscaping and
parking spaces, curb stops and parking meters located at 3456 Via Oporto,
Newport Beach, California [APN 423-123-021 more particularly described and
depicted in Exhibit "A" (the "Elks Property"), attached hereto and incorporated
herein by reference.
B. City is the owner of a parcel of land and certain improvements adjoining the Elks
Property, including a municipal parking lot, parking spaces, curb stops, parking
meters, sidewalks, landscaping and hardscape located at 3458 Via Oporto,
Newport Beach, California [APN 423-123-01], as more particularly described and
depicted in Exhibit "B" (the "City Property") attached hereto and incorporated
herein by reference.
C. The parking spaces and parking meters located on the Elks Property, as more
particularly depicted in Exhibit "C" ("Elks Parking Premises"), attached hereto and
incorporated herein by reference, are compatible both in location and timing with
the operation of the municipal parking lot on the City Property. Elks Parking
Premises and City Property (collectively the "Parking Facility"), have been
cooperatively operated pursuant to a Parking Lease Agreement between the
Parties dated March 16, 2007 (the "2007 Agreement"), which permits each Party
certain exclusive use, control and occupancy of the Parking Facility.
D The Parties find it mutually beneficial to hereby enter into this new Agreement to
be effective upon the expiration of the 2007 Agreement, and to grant each Party
the continued exclusive right to utilize and access the Parking Facility as expressly
set forth under the terms, provisions and conditions of this Agreement.
AGREEMENT
NOW THEREFORE, the Parties agree that.-
1 . PARKING FACILITY USE
1.1 Elks hereby grants to City, and City hereby accepts from Elks, the
temporary, exclusive right to utilize and access the Elks Parking Premises for the
purposes of the Parking Facility. City hereby grants to Elks, and Elks hereby accepts from
City, the temporary, exclusive right to utilize and access the City Property for the purposes
of the Parking Facility. At all times, the Parties' use of the Parking Facility shall be solely
Newport Harbor Elks Lodge #1767 Page 1
for the purpose of vehicular parking, unless otherwise expressly set forth herein, and shall
be subject to the terms, provisions and conditions of this Agreement.
1.2 City shall have use of the Parking Facility from 6:00 a.m. to 6:00 p.m. daily
("Standard Operating Hours").
1.3 Elks shall have use of the Parking Facility as follows:
1.3.1 Elks Daily Use. From 6:00 p.m. to 6:00 a.m. daily ("Non -Standard
Operating Hours"). Should the City modify the Standard Operating Hours, which
shall be in the City's sole and absolute discretion, whereby the modified hours
extend later than 6.-00 p.m. or commence earlier than 6:00 a.m., the Non -Standard
Operating Hours shall be adjusted commensurate with those changes.
1.3.2 Elks Event. In conjunction with special events scheduled at the
Elks Property held by and for the exclusive benefit of Elks (each occurrence an
"Elks Event"), subject to the following:
1.3.2.1 Each Elks Event shall be no longer than a twenty-four
(24) consecutive hour period, not to exceed twelve (12) Elks Events in any
calendar year,
1.3.2.2 No more than six (6) Elks Events may be scheduled
between May 15 through September 15 of each calendar year; and
1.3.2.3 Elks shall provide to City in writing, no later than
October 1st of each calendar year, a proposed schedule of the Elks Events
to be held for the following calendar year, which City may or may not
approve at City's sole and absolute discretion.
1.4 Elks shall not use or permit the use of the Parking Facility in any manner at
any time that: (a) creates a nuisance; (b) violates any law; (c) is not in compliance with all
federal, state, and local laws, permits, use restrictions, and regulations applicable to the
Parking Facility, Elks and/or Elks' use of the Parking Facility; or (d) is for any other use
not otherwise expressly set forth in this Agreement, except with the City's prior written
consent, which shall be at City's sole and absolute discretion.
1.5 Elks assumes the risk of and shall cause all its employees, workmen,
customers, independent contractors, guests and volunteers to also comply with all laws
regarding their activities at the Parking Facility.
1.6 Elks shall post and maintain visible signs at appropriate locations advising
motorists of the times when the Parking Facility is subject to the exclusive control, use,
and occupancy of Elks.
1.7 Elks shall be solely responsible for providing temporary barriers or other
means of controlling access to the Parking Facility, subject to prior written approval by
City pursuant to any Special Event Permit conditions, at all times during any Elks Event.
Newport Harbor Elks Lodge #1767 Page 2
1.8 City shall not enforce parking meters or other parking restrictions during
Non -Standard Operating Hours or during any Elks Event.
1.9 Elks shall not paint, install decorations, or install any signs, lettering or
advertising of any type, or any other type of visual displays, on or about the Parking
Facility without the prior written consent of City.
1.10 Elks shall not sell or permit to be kept, used, displayed or sold in or on the
Parking Facility at any time during the Non -Standard Operating Hours or any Elks Event:
(a) pornographic or sexually explicit books, magazines, literature, films or other printed
material, sexual paraphernalia, or other material which would be considered lewd,
obscene or licentious; (b) any article which may be prohibited by standard forms of fire
insurance policies; or (c) any alcoholic beverages, tobacco, vaping products, CBD, and
marijuana. Vending machines, gaming machines or video or arcade games shall not be
used or installed on the Parking Facility unless expressly permitted by this Agreement.
2. TERM
2.1. Initial Term. The initial term of the Agreement granted hereunder shall
commence upon the expiration of the 2007 Agreement and continue for fifteen (15) years
("Initial Term"), unless terminated earlier as set forth herein.
2.2. Option to Extend. Provided Elks are not in default at the time of Elks' notice
of exercise of such Option Term, and upon approval of the City, Elks may extend the term
of this Agreement for two (2) additional successive terms of five (5) years each (the
"Option Term" or "Option Terms") commencing upon expiration of the Initial Term or an
Option Term, on the same terms, conditions and provisions as contained in this
Agreement as it may be amended in writing between the Parties. Elks shall give City
written notice of its intention to exercise an Option Term at least three (3) months prior to
the expiration of the current Term.
2.3. Term and Terms. The "Term" is defined as the Initial Term and each Option
Term(s).
3. INDEPENDENT CONTRACTOR
3.1. No Interest by City. City shall have no interest in the business of Elks, and
no liability for the business operations or sales of Elks, whether or not caused by City's
enforcement of City laws and regulations which apply to the Elks Property and/or Elks.
Nothing in this Agreement shall be deemed to constitute approval for Elks or any of Elks'
employees or agents, to be the agents or employees of City.
4. ADDITIONAL CONSIDERATION
4.1. Usage Fee. Elks shall pay to City an amount of Five Hundred Dollars
($500.00) per each event scheduled at the Elks Lodge during Non -Standard Operating
Hours that may utilize the Parking Facility ("Usage Fee"), excluding the following events:
(a) an Elks Event; (b) an event sponsored, hosted or managed by Elks for the benefit of
Newport Harbor Elks Lodge #1767 Page 3
its members at large; or (c) an event sponsored, hosted or managed by Elks for the direct
benefit of a bona fide nonprofit organization.
4.2. Permit Fee. City agrees to waive the cost or fees associated with any
Special Event Permit required in conjunction with or related to an Elks Event.
4.3. Revenue from Film, Television and/or Advertising. During any time the
Parking Facility is under the exclusive control of Elks, Elks may allow the Parking Facility
to be used for commercial film, television production, advertising production, or other
commercial media vehicle ("Media Use"), subject to written approval from the City, which
approval shall not be unreasonably withheld, conditioned or delayed, and in compliance
with the Newport Beach Municipal Code. Elks shall pay to the City fifty percent (50%) of
all monetary revenue received by Elks as compensation or other payment for such Media
Use.
4.4. Remittance. Usage Fees shall be due and payable to City no later than the
fifteenth (15'h) day of the month following the month in which the Usage Fees were
incurred. Media Use payments are due and payable to City no later than fifteen (15)
calendar days after Elks' receipt of the revenue. Elks' payments shall be made in lawful
money of the United States of America and shall be paid to City in person or by United
States' mail, or overnight service to:
City of Newport Beach
Revenue Division
100 Civic Center Drive
Newport Beach, CA 92660
or at such other place as City may hereafter designate in writing. If requested by City,
Elks shall make payments electronically (at www.newportbeachca.gov) or by wire transfer
(at Elks' cost). Elks assumes all risk of loss and responsibility for late charges and
delinquency rates if payments are not timely received by City regardless of the method of
transmittal.
4.5. Itemized Reports. Each payment of Usage Fees shall be accompanied by
an itemized report of the Third Party Event(s) and include, at minimum, the name(s) of
the third party(ies) and date(s) of the Third Party Events.
4.6. Production of Statement, Records and Audit.
4.6.1. Elks Records and City Audit. Elks shall keep full, complete and
proper books, records and accounts of its Elks Events, Third Party Events, or other events
as may be scheduled and operated at the Elks Lodge utilizing the Parking Facility, or any
Media Use revenue. Elks agrees to make available for inspection by City, or its authorized
designee, at the Elks Lodge, a complete and accurate set of books and records of all Elks
Events, Third Party Events, or other events conducted in, at or from the Elks Lodge from
which Usage Fees and Media Use revenue can be determined. Elks shall also make
available, upon City's written request, all supporting records. Elks shall retain and
preserve for at least three (3) years all records, books, bankbooks or duplicate deposit
Newport Harbor Elks Lodge #1767 Page 4
books and other evidence of Usage Fees and Media Use revenue. City shall have the
right, not more than once each calendar year during the Term, upon reasonable notice,
and within one hundred eighty (180) calendar days after expiration or termination of this
Agreement to inspect and complete an audit of Elks' books and records and to make
transcripts to verify the Usage Fees and Media Use revenue due to City. The audit may
be conducted at any reasonable time during normal business hours in a manner that
minimizes any interference with the conduct of Elks' regular business operations. Elks
shall cooperate with City in making the inspection and conducting the audit. If the audit
concludes that there is a deficiency in the payment of any Usage Fees or Media Use
revenue, the deficiency shall become due and payable within twenty (20) calendar days
and if there is an overpayment, City shall refund the amount of the overpayment within
twenty (20) calendar days. City shall bear its costs of the audit unless the audit shows
that Elks understated the amount of Usage Fees or Media Use revenue due to the City,
in which case Elks shall pay all City's reasonable costs of the audit. City shall not disclose
financial information received in confidence and pursuant to this Agreement except to
carry out the purposes of this Agreement unless disclosure is required by law or court
order. However, City may disclose the results of any audit in connection with any
financing arrangements, pursuant to applicable law, the sale or transfer of City's interest
in the City Property, pursuant to order of a court or administrative tribunal, or to collect
any outstanding Usage Fees or Media Use revenue.
4.6.2. Elks' Audit. Elks may contest the results of City's audit by performing
a confirming audit, at Elks' expense, within sixty (60) calendar days of receipt of City's
audit results and supporting evidence, using an independent Certified Public Accountant
reasonably acceptable to City in writing.
4.6.3. Reconciliation Audit. If Elks' audit and City's audit vary by greater
than ten percent (10%), and the Parties cannot agree on the results of City's or Elks'
audit, then the Parties shall identify, after good faith negotiations, a nationally recognized
accounting firm acceptable to both Parties, to complete a third audit, which audit shall be
final. The Parties shall equally pay the costs of the third audit.
4.7. Acceptance. The acceptance by City of any money paid to City by Elks
pursuant to this Agreement, as shown by any statement furnished by Elks, shall not be
construed as an admission of the accuracy of said statement, or of the sufficiency of the
amount of the payment Elks owes City.
4.8. Late Payment. Elks hereby acknowledges that the late payment of sums
due hereunder will cause City to incur costs not contemplated by this Agreement, the
exact amount of which is extremely difficult to ascertain. Such costs include, but are not
limited to, processing and accounting charges. Accordingly, any payment of any sum to
be paid by Elks not paid within five (5) calendar days of its due date shall be subject to a
ten percent (10%) late charge. City and Elks agree that this late charge represents a
reasonable estimate of such costs and expenses and is fair compensation to City for its
loss suffered by such late payment by Elks.
Newport Harbor Elks Lodge #1767 Page 5
4.9. Interest on Unpaid Sums. Unpaid sums due to either City or Elks under this
Agreement shall bear interest at the rate of ten percent (10%) per annum on the unpaid
balance, including but not limited to late payment penalties, from the date due until paid.
5. TAXES AND ASSESSMENTS
5.1. Taxes and Assessments. Elks acknowledges that this Agreement may
create a possessory interest subject to property taxation, and that Elks shall pay, prior to
delinquency, any and all possessory interest taxes, property taxes, all taxes assessed
against and levied upon fixtures, furnishings, equipment, or improvements, and all other
personal property of the Elks located on the Parking Facility, real property taxes, and
fees and assessments which may at any time be imposed or levied by any public entity
and attributable to Elks' use of the Parking Facility. The City hereby gives notice to Elks,
pursuant to Revenue and Tax Code Section 107.6, that this Agreement may create a
possessory interest which is the subject of property taxes levied on such interest, the
payment of which taxes shall be the sole obligation of Elks.
5.2. Taxes and Assessments Indemnification. Elks shall indemnify, defend and
hold harmless the City, its council members, boards, commissions, committees, officers,
employees, authorized representatives, agents and volunteers ("Indemnified Parties")
from any and all loss, damage, or liability that may result from the failure of Elks to comply
with the provisions of this Section.
5.3. Challenge to Taxes. Elks shall have the right in good faith, at its sole cost
and expense, to contest the amount or legality of any Taxes on or attributable to this
Agreement, the Parking Facility, Elks' personal property, or Elks' occupation and use of
the Parking Facility, including the right to apply for reduction. If Elks seeks a reduction or
contests such taxes, Elks' failure to pay the Taxes shall not constitute a default as long
as Elks complies with the provisions of this Section. City shall not be required to join in
any proceeding or contest brought by Elks unless the provisions of any law require that
the proceeding or contest be brought by or in the name of City. In that case, City shall
join in the proceeding or contest or permit it to be brought in City's name as long as City
is not required to bear any cost. If requested by Elks, City shall execute any instrument
or document necessary or advisable in connection with the proceeding or contest. Elks,
on final determination of the proceeding or contest, shall immediately pay or discharge
any decision or judgment rendered, together with all related costs, charges, interest and
penalties. Elks shall indemnify, defend and hold harmless the Indemnified Parties from
and against any liability, claim, demand, penalty, cost or expense arising out of or in
connection with any contest by Elks pursuant to this Section.
5.4. No Offset. Any payment under this Section shall not reduce or offset Usage
Fee or Media Use revenue payments. City has no liability for such payments.
6. PERMITS AND LICENSES
6.1. Permits and Licenses Required. Elks, at its sole cost and expense, shall
obtain and maintain during the Term of this Agreement, all appropriate permits, licenses
Newport Harbor Elks Lodge #1767 Page 6
and certificates that may be required by any governmental agency in connection with the
operation of its business, including, but not limited to a City business license as required
by the Newport Beach Municipal Code.
6.2. Special Event Permits. Elks shall obtain a Special Event Permit for each
Elks Event referenced in Section 1.3.2. Failure to obtain a Special Event Permit in
advance of an Elks Event shall constitute a material breach under this Agreement.
7. ACCEPTANCE OF CONDITION OF CITY PROPERTY
Elks shall accept City Property in "as is" condition, with no warranty, express or
implied, from City as to any latent, patent, foreseeable and unforeseeable condition of
City Property.
8. ALTERATIONS OR CONSTRUCTION OF IMPROVEMENTS
Elks shall not alter existing improvements, nor construct new improvements, on
the Elks Parking Premises without prior written approval by City. Any proposed
improvements approved by City may require an amendment to this Agreement, as
determined at City's sole and absolute discretion. Improvements or alterations by Elks to
the City Property is strictly prohibited.
9. PARKING REQUIREMENTS
It is acknowledged by the Parties that the amount of parking for the Elks Lodge is
a lawful existing non-conformance use and that by granting City the temporary, exclusive
use of the Elks Parking Premises, the amount of parking reserved exclusively to Elks is
reduced even further. It is the intention of the Parties that the consideration provided for
under this Agreement is intended, in part, to mitigate this impact. City further agrees that,
in the event Elks apply for a permit in which parking is a factor, City will grant a parking
area credit to Elks in an area equal to the area of the Elks Parking Premises. In the event
City fails to give the credit for such space against the parking requirements of City as
provided herein, Elks may terminate this Agreement as set forth under Section 17 below.
10. UTILITIES AND MAINTENANCE
During the term of this Agreement, City shall pay all utilities required for the
operation of the Parking Facility. Further, City shall maintain, repair, and upkeep the
Parking Facility to the same standard as other municipal parking facilities under control
of City.
11. CITY PAYING CLAIM
Should Elks fail to pay and discharge, when due and payable, any tax or
assessment, or any premium or other charge in connection with any insurance policy
which Elks are obligated to provide, or any lien or claim for labor or material employed or
used in the repair, alteration, construction, or maintenance of improvements, as
applicable, on the Elks Parking Premises, then City may, after ten (10) days written notice
Newport Harbor Elks Lodge #1767 Page 7
to Elks and at its option, pay any such tax, assessment, lien, claim, premium or charge,
or settle or discharge any action, or satisfy and judgment thereon. All costs and expenses
incurred or paid by City pursuant to this paragraph, together with interest at the rate of
ten percent (10%) per annum from the date of payment, shall be paid by Elks within ten
(10) calendar days after written notice that such payment is due. Should Elks fail to pay
following receipt of any written demand for payment by City, City may, in its sole and
absolute discretion, terminate this Agreement pursuant to Section 17 below.
12. STANDARD OF CARE
Elks agree to perform all services required hereunder in a manner commensurate
with community professional standards.
13. INSPECTION
City shall be entitled to inspect the Parking Facility for compliance with the terms
of this Agreement, and for compliance with all applicable Federal, State and local
(including those of the City) government laws, statutes, ordinances, rules and regulations.
City may exercise these inspection rights at any time without notice.
14. ASSIGNMENT/TRANSFERS
Elks shall not transfer or assign this Agreement, or any right or interest created
hereunder, or sublet the Parking Facility or any portion thereof, unless and until Elks has
obtained the prior written consent of City, which City shall not unreasonably withhold.
Should Elks attempt to transfer, assign or sublet Elks' interest in this Agreement or the
Parking Facility, or should any of Elks' rights under this Agreement be sold or otherwise
transferred, then City may, at its option, terminate this Agreement by giving thirty (30)
days written notice. Should City consent to any transfer, assignment, or subletting
attempted without prior approval, that consent shall not constitute a waiver of any of the
restrictions in this Section or the City's right of termination for any subsequent attempt to
transfer, assign or sublet this Agreement or the Parking Facility.
15. NO THIRD -PARTY BENEFICIARIES
City and Elks do not intend, by any provision of this Agreement, to create in any
third party any benefit or right owed by one Party under the terms and conditions of this
Agreement to the other Party.
16. BANKRUPTCY
Elks agree that in the event all, or substantially all, of Elks' assets are placed in the
hands of a receiver or trustee and remain so for a period of thirty (30) calendar days, or
should the Elks make an assignment for the benefit of creditors or be adjudicated
bankrupt, or should the Elks institute any proceedings under the Bankruptcy Act or similar
law wherein the Elks seek to be adjudicated bankrupt or to be discharged of its debts, or
seeks to effect a plan of liquidation or reorganization, or should any involuntary
proceedings be filed against the Elks and not dismissed or stayed within sixty (60)
Newport Harbor Elks Lodge #1767 Page 8
calendar days, then this Agreement or any interest in and to the Parking Facility shall not
become an asset in any such proceeding and, to the extent permitted by law, the City
may declare this Agreement terminated and take full and sole possession of the City
Property.
17. DEFAULT, TERMINATION
17.1. Termination with Cause by Either Party. A Party may terminate this
Agreement on the basis of the other Party's material breach of this Agreement. The
occurrence of any of the following events shall constitute a default under this Agreement:
17.1.1. A Party's failure to perform any of the terms, conditions or
covenants of this Agreement.
17.1.2. Failure by Elks or City to make the Elks Parking Premises or City
Property, respectively, available for the purposes of the Parking Facility, excluding
closures during periods of casualty, condemnation, permitted closures set forth in
this Agreement, or with prior written approval.
Failure to cure a default within thirty (30) calendar days after written notice from the non -
defaulting Party shall constitute a material breach of this Agreement. If the nature of the
default is such that more than thirty (30) calendar days are reasonably required for cure,
then a Party shall not be in material breach if it provides the other Party with a written plan
to cure and commences performance to cure within such thirty (30) calendar day period
and thereafter diligently prosecutes the same to completion.
17.2. Termination by City without Cause. City may terminate this Agreement,
without cause, upon one hundred eighty-two (182) calendar days advance written notice
to Elks.
17.3. Stay of Obligations. Neither Party hereto shall be under any obligation to
perform or comply with its obligations pursuant to this Agreement after the date of any
default by the other Party.
17.4. Waiver of Rights. The failure or delay of either Party hereto to exercise any
right or remedy shall not be construed as a waiver of such right or remedy or any default
by the other Party.
18. TERMINATION FOR REDEVELOPMENT
18.1. The Parties understand that City may undertake to include the area
surrounding the Parking Facility in a redevelopment plan and that such a plan may be
mutually beneficial to the Parties. Elks agree to meet in good faith with City or the agents
of City to explore redevelopment options which may include the City Property and other
surrounding City -owned properties. Nothing herein contained, however, shall be
construed as a commitment on the part of Elks to participate in such a plan or to commit
the Elks Property to such a plan.
Newport Harbor Elks Lodge #1767 Page 9
18.2. In the event City adopts a redevelopment plan which includes City Property,
City may elect to terminate this Agreement by providing thirty (30) calendar days' advance
written notice to Elks. Elks' obligation to pay Usage Fees to City shall continue up to the
date of termination.
18.3. In the event City terminates this Agreement as provided in this Section,
neither Party shall have any further liability or obligations to the other Party under this
Agreement.
19. SURRENDER POSSESSION
Upon expiration of the Term of this Agreement, or earlier termination as provided
in Section 16, Elks shall surrender possession of the City Property to the City in good
condition and repair, City shall surrender possession of the Elks Parking Premises to Elks
in good condition and repair, and thereafter neither Party shall have any further liability or
obligations to the other Party under this Agreement.
20. NO DAMAGES
Elks acknowledges that City would not enter into this Agreement if it were to be
liable for damages (including, but not limited to, actual damages, economic damages,
consequential damages, lost profits, loss of rents or other revenues, loss of business
opportunity, loss of goodwill or loss of use) under, or relating to, this Agreement or any of
the matters referred to in this Agreement, including, without limitation, any and all plans,
permits, licenses or regulatory approvals, and CEQA documents. Accordingly, Elks
covenants and agrees on behalf of itself and its successors and assigns, not to sue City
for damages (including, but not limited to, actual damages, economic damages,
consequential damages, lost profits, loss of rents or other revenues, loss of business
opportunity, loss of goodwill or loss of use) or monetary relief for any breach of this
Agreement by City or for any dispute, controversy, or issue between City and Elks arising
out of or connected with this Agreement or any of the matters referred to in this
Agreement, including, without limitation, any and all plans, permits, licenses or regulatory
approvals, CEQA documents, or any future amendments or enactments thereto, the
Parties agreeing that declaratory relief, injunctive relief, mandate and specific
performance shall be Elks' sole and exclusive judicial remedies.
21. HOLD HARMLESS
To the fullest extent permitted by law, Elks hereby agrees to defend, indemnify,
and hold City harmless from and against any and all liability, claims damages, suits,
penalties, actions, demands, judgments, losses, or expenses of any kind or nature,
including damage to any property and injury (including death) to any person (collectively,
"Claims"), arising out of or resulting in any way, in whole or in part, from Elks' use,
maintenance, repair or occupation of the Parking Facility, or any acts or omissions,
intentional or negligent, of Elks or its officers, agents or employees in the performance of
their duties and obligations under this Agreement, except to the extent such claims are
Newport Harbor Elks Lodge #1767 Page 10
caused by the sole negligence or willful misconduct of City, its officers, agents and
employees.
22. INSURANCE
Without limiting Elks' indemnification of City, Elks shall obtain, provide and
maintain at its own expense during the term of this Agreement or for other periods as
specified in this Agreement, policies of insurance in the types, amounts and terms and
conditions described in the Insurance Requirements attached hereto as Exhibit "D," and
incorporated herein by this reference.
23. HAZARDOUS SUBSTANCES
23.1. From the date of execution of this Agreement and throughout the Term, Elks
shall not use, store, manufacture or maintain any Hazardous Substances on the Parking
Facility.
23.2. For purposes of this Agreement, the term "Hazardous Substance" means-
(i) any substance, product, waste or other material of any nature whatsoever which is or
becomes listed, regulated, or addressed pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. ("CERLCA");
the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 et seq.; the
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq. ("RCRA"); the
Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Water Act, 33
U.S.C. Section 1251 et seq.; the California Hazardous Waste Control Act, Health and
Safety Code Section 25100 et seq.; the California Hazardous Substance Account Act,
Health and Safety Code Section 25330 et seq.; the California Safe Drinking Water and
Toxic Enforcement Act, Health and Safety Code Section 25249.5 et seq.; the California
Underground Storage of Hazardous Substances Act, Health and Safety Code Section
25280 et seq.; California Hazardous Materials Response Plans and Inventory, Health and
Safety Code Section 25500 et seq.; or the Porter -Cologne Water Quality Control Act,
Water Code Section 13000 et seq., all as they, from time -to -time may be amended, (the
above -cited statutes are here collectively referred to as "the Hazardous Substances
Laws") or any other Federal, State or local statute, law, ordinance, resolution, code, rule,
regulation, order or decree regulating, relating to, or imposing liability or standards of
conduct concerning, any hazardous, toxic or dangerous waste, substance or material, as
now or at any time hereafter in effect; (ii) any substance, product, waste or other material
of any nature whatsoever which may give rise to liability under any of the above statutes
or under any statutory or common law theory, including but not limited to negligence,
trespass, intentional tort, nuisance, waste or strict liability or under any reported decisions
of a state or federal court; (iii) petroleum or crude oil; and (iv) asbestos.
23.3. Notwithstanding any contrary provision of this Agreement, and in addition
to the indemnification duties of Elks set forth in Section 21 in this Agreement, Elks agree
to indemnify, defend with counsel reasonably acceptable to City, protect, and hold
harmless City, its officials, officers, employees, agents, and assigns from and against any
and all losses, fines, penalties, claims, damages, judgments, or liabilities, including, but
Newport Harbor Elks Lodge #1767 Page 11
not limited to, any repair, cleanup, detoxification, or preparation and implementation of
any remedial, response, closure or other plan of any kind or nature which City, its officials,
officers, employees, agents, or assigns may sustain or incur or which may be imposed
upon them in connection with the use of the Parking Facility provided under this
Agreement, arising from or attributable to the storage or deposit of Hazardous
Substances. This Section is intended to operate as an agreement pursuant to Section
107(e) of CERCLA, 42 U.S.C. Section 9607(e), and California Health and Safety Code
Section 25364, to insure, protect, hold harmless, and indemnify City for any claim
pursuant to the Hazardous Substance Laws or the common law.
23.4. City agrees that City will not, and will not authorize any third party to, use,
generate, store, or dispose of any Hazardous Substances on, under, about or within the
Parking Facility in violation of any law or regulation. Upon expiration or earlier termination
of this Agreement, Elks shall surrender and vacate the City Property and deliver
possession thereof to City on or before the termination date free of any Hazardous
Substances released into the environment at, on or under the City Property that are
directly attributable to Elks.
24. NOTICES
24.1. All notices and other communications required or permitted to be given
under this Agreement, including any notice of change of address, shall be in writing and
given by personal delivery, or deposited with the United States Postal Service, postage
prepaid, addressed to the Parties intended to be notified. Notice shall be given as follows:
To City: City of Newport Beach
Attention: Real Property
100 Civic Center Drive
Newport Beach, CA, 92660
To Elks: Newport Harbor Elks Lodge 1767
3456 Via Oporto
Newport Beach, CA 92663
Attn: Exalted Ruler/Parking Manager
Either Party may specify a different address for the giving of notices hereunder by
written notice to the other Party.
24.2. Any notice sent by registered or certified mail, return receipt requested shall
be deemed given on the date of delivery shown on the receipt card, or if no delivery date
is shown, the postmark thereon. If sent by regular mail the notice shall be deemed given
forty-eight (48) hours after the same is addressed as required herein and mailed with
postage prepaid. Notices delivered by U.S. Postal Service Express Mail or overnight
courier that guarantees next day delivery shall be deemed given twenty-four (24) hours
after delivery to the U.S. Postal Service or courier. If notice is transmitted by facsimile
transmission or similar means, the same shall be deemed served or delivered upon
telephone confirmation or receipt of the transmission thereof, provided a copy is also
Newport Harbor Elks Lodge #1767 Page 12
delivered via delivery or mail. If a notice is received on a Sunday or legal holiday, it shall
be deemed received on the next business day.
25. STANDARD PROVISIONS
25.1. Entire Agreement. The terms and conditions of this Agreement, all exhibits
attached hereto, and all documents expressly incorporated by reference, represent the
entire Agreement of the parties with respect to the subject matter of this Agreement.
25.2. Recitals. City and Elks acknowledge that the above Recitals are true and
correct and are hereby incorporated by reference into this Agreement.
25.3. Compliance with all Laws. Elks 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.
25.4. Waiver. A waiver by either Party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a different character.
25.5. Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the Parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
25.6. Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and any other attachments attached hereto, the
terms of this Agreement shall govern.
25.7. 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 the Agreement or any other rule of
construction which might otherwise apply.
25.8. Amendments. This Agreement may be modified or amended only by a
written document executed by both Elks and City and approved as to form by the City
Attorney.
25.9. 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.
25.10. Controllinq Law and Venue. The laws of the State of California shall
govern this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
Newport Harbor Elks Lodge #1767 Page 13
25.11. Equal Opportunity Employment. Elks represents that it is an equal
opportunity employer and it shall not discriminate against any contractor or subcontractor,
employee or applicant for employment because of race, religious creed, color, national
origin, ancestry, physical handicap, medical condition, marital status, sex, sexual
orientation, age or any other impermissible basis under law.
25.12. No Attorney's Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing party shall not be entitled to attorneys' fees.
25.13. 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 and the same instrument.
[SIGNATURES ON THE FOLLOWING PAGE]
Newport Harbor Elks Lodge #1767 Page 14
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
in duplicate on the date and year first written herein.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date-.3 - ?"� - ?2
By: 7�
aro C. Harp W •L3
C Attorne
ATTEST:
Date -.—
By.
Leilani I. Brown
City Clerk
CgCIFORa
CITY OF NEWPORT BEACH,
a California municipal corporation and
charter city
Date:
By:
Grace . Leung
City Hager
NEWPORT HARBOR ELKS LODGE
#1767, a non-profit association
Date:
Signed in Counterpart
By:
Richard "RX Green
Chairman, Board of Trustees
Date:
Signed in Counterpart
By. -
Dennis Yosanovich
Exalted Ruler (President)
Attachments: Exhibit "A" - Elks Property
Exhibit "B" - City Property
Exhibit "C" - Elks Parking Premises
Exhibit "D" - Insurance Requirements
Newport Harbor Elks Lodge #1767 Page 15
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
in duplicate on the date and year first written herein.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 3 - 23 - ?,lz-
CITY OF NEWPORT BEACH,
a California municipal corporation and
charter city
Date:
By: rp 7;v By:
ro C. Ha•L3 "�
Grace K. Leung
C Attorne City Manager
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
NEWPORT HARBOR ELKS LODGE
#1767, a nQn-profit association
Date: 3 ( "Z `l I Z z.
Richard " J" Green
Chairman, Board of Trustees
Date- .3 / -2-,Y tz z
DePisYoanovich
Exalted Ruler (President)
Attachments: Exhibit "A" - Elks Property
Exhibit "B" - City Property
Exhibit "C" - Elks Parking Premises
Exhibit "D" - Insurance Requirements
Newport Harbor Elks Lodge #1767 Page 15
EXHIBIT "A"
ELKS PROPERTY
Newport Harbor Elks Lodge #1767 Exhibit A-1
EXHIBIT A
EXHIBIT "B"
CITY PROPERTY
Newport Harbor Elks Lodge #1767 Exhibit B-1
EXHIBIT B
EXHIBIT "C"
ELKS PARKING PREMISES
Newport Harbor Elks Lodge #1767 Exhibit C-1
EXHIBIT C
N
N E W P O R T B E A C H
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21
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Disclaimer:
Every reasonable effort has been made to assure the
accuracy of the data provided, however, The City of
Newport Beach and its employees and agents
disclaim any and all responsibility from or relating to
any results obtained in its use.
9/23/2021
Exhibit "D"
Insurance Requirements
Provision of Insurance. Without limiting Elks' indemnification of City, Elks will obtain,
provide and maintain at its own expense during the Term of this Agreement, a policy or
policies of insurance of the type and amounts described below and in a form satisfactory
to the City. Elks agrees to provide insurance in accordance with the requirements set forth
herein. If Elks uses existing coverage to comply and that coverage does not meet these
requirements, Elks agrees to amend, supplement or endorse the existing coverage.
A. 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 City's Risk Manager.
B. Coverage Requirements.
1. Workers' Compensation Coverage. The Elks and Elks' agents, representatives,
consultants, contractors, and/or subcontractors shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability Insurance
with limits of at least One Million Dollars ($1,000,000) each accident for bodily
injury by accident and each employee for bodily injury by disease in accordance
with the laws of the State of California, Section 3700 of the Labor Code.
Elks and Elks' agents, representatives, consultants, contractors, and/or
subcontractors, shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its City Council, boards
and commissions, officers, agents, volunteers, and employees.
2. General Liability Coverage. Elks and Elks' agents, representatives,
consultants, contractors, and/or subcontractors shall maintain commercial
general liability insurance, and if necessary umbrella 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 for all activities of Elks arising out of or in connection
with the activities under this Agreement, operations, personal and advertising
injury, and liability assumed under an insured contract (including the tort liability
of another assumed in a business contract) with no endorsement or
modification limiting the scope of coverage for liability assumed under a
contract.
3. Automobile Liability Coverage. Elks and Elks' agents, representatives,
consultants, contractors and/or subcontractors shall maintain automobile
insurance at least as broad as Insurance Services Office Form CA 00 01
covering bodily injury and property damage for all activities of Elks arising out
Newport Harbor Elks Lodge #1767 Exhibit D-1
of or in connection with the activities under this Agreement, including coverage
for any owned, hired, non -owned or rented vehicles, in an amount not less than
One Million Dollars ($1,000,000) combined single limit for each occurrence.
4. Fire and Extended Coverage. Elks shall maintain fire and extended coverage
insurance, together with insurance against vandalism, theft and malicious
mischief, on the improvements and fixtures, alterations, trade fixtures, signs,
equipment, personal property and inventory on or upon the Parking Facility
from loss or damage to the extent of their full replacement value.
C. Other Insurance Requirements. Policies shall contain or be endorsed to contain
the following provisions:
1. Additional Insured Status. All liability policies shall provide, or be endorsed to
provide, that the City, its City Council, boards and commissions, officers,
agents, volunteers and employees shall be covered as additional insured under
such policies with respect to liability arising out of Elks activities related to this
Agreement and with respect to use or occupancy of the Parking Facility.
2. Primary and Non -Contributory. Policies shall apply on a primary basis and shall
not require contribution from any insurance or self-insurance maintained by
City.
3. Liability Insurance. Liability insurance shall act for each insured and additional
insured as though a separate policy had been written for each, except with
respect to the limits of liability of the insuring company.
4. 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 Elks or others providing insurance
evidence in compliance with these requirements to waive their right of recovery
prior to a loss. Elks hereby waives its own right of recovery against City, and
shall require similar written express waivers from each of its consultants,
contractors or subcontractors.
5. Reporting Provisions. Any failure to comply with reporting provisions of the
policies shall not affect coverage provided to City, its elected or appointed
officers, officials, employees, agents or volunteers.
6. Notice of Cancellation. The insurance required by this Agreement shall not be
suspended, voided, canceled, or reduced in coverage or in limits except after
thirty (30) calendar days (ten (10) calendar days written notice of non-payment
of premium) written notice has been received by City. It is Elks' obligation to
ensure that provisions for such notice have been established.
Newport Harbor Elks Lodge #1767 Exhibit D-2
D. Additional Requirements.
1. City's Rights to Revise Requirements. In the event City's Risk Manager
determines that (i) Elks' activities in the Parking Facility creates an increased
or decreased risk of loss to the City, (ii) greater insurance coverage is required
due to the passage of time, or (iii) changes in the industry require different
coverages be obtained, Elks agree that the minimum limits of any insurance
policy required to be obtained by Elks or Elks' consultants, contractors and/or
subcontractors may be changed accordingly upon receipt of written notice from
City; provided that Elks shall have the right to appeal a determination of
increased coverage by City to the City Council within ten (10) days of receipt
of notice from City.
With respect to changes in insurance requirements that are available from Elks'
then -existing insurance carrier, Elks shall deposit certificates evidencing
acceptable insurance policies with City incorporating such changes within thirty
(30) calendar days of receipt of such notice. With respect to changes in
insurance requirements that are not available from Elks' then -existing
insurance carrier, Elks shall deposit certificates evidencing acceptable
insurance policies with City, incorporating such changes, within ninety (90)
calendar days of receipt of such notice.
2. Self -Insured Retentions. Any self -insured retentions must be declared and
approved by City. City reserves the right to required that self -insured retentions
be eliminated lowered or replaced by deductible. Self-insurance will not be
considered to comply with these requirements unless approved by City.
Contractors and Subcontractors. Elks and Elks' consultants, contractors and/or
subcontractors shall be subject to the insurance requirements contained herein
unless otherwise specified in the provisions above or written approval is
granted by the City. Elks shall verify that all consultants, contractors and/or
subcontractors maintain insurance meeting all the requirements stated herein,
and Elks shall ensure that City is an additional insured on insurance required
from contractors. consultants and/or subcontractors.
3. Excess Limits. If Elks maintains higher limits than the minimums shown above,
the City requires and shall be entitled to coverage for the 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.
4. Timely Notice of Claims. Elks shall give City prompt and timely notice of any
claim made or suit instituted arising out of or resulting from Elks or Elks' agents,
representatives, consultants, contractors or subcontractors 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.
Newport Harbor Elks Lodge #1767 Exhibit D-3
5. Evidence of Insurance. Elks shall provide certificates of insurance, with original
endorsements as required above, to City as evidence of the insurance
coverage required herein. Insurance certificates must be approved by City's
Risk Manager, prior to commencement of work or issuance of any permit.
Current certification of insurance shall be kept on file with City at all times during
the term of this Agreement. The certificates and endorsements for each
insurance policy shall be signed by a person authorized by that insurer to bind
coverage on its behalf. At least fifteen (15) days prior to expiration of any such
policy, evidence of insurance showing that such insurance coverage has been
renewed or extended shall be filed with the City. If such coverage is cancelled
or reduced, Elks shall, within ten (10) days after receipt of written notice of such
cancellation or reduction of coverage, file with the City evidence of insurance
showing that the required insurance has been reinstated or has been provided
through another insurance company or companies. City reserves the right to
require complete, certified copies of all insurance policies, at any time.
6. Effective Date. All required insurance shall be in force on the Effective Date,
and shall be maintained continuously throughout the term of this Agreement.
In addition, the cost of all required insurance shall be borne by Elks or by Elks'
consultants, contractors or subcontractors.
7. Default. If Elks or Elks' consultants, contractors or subcontractors fail or refuse
to maintain insurance as required in this Agreement, or fail to provide proof of
insurance, City has the right to declare this Agreement in default without further
notice to Elks, and City shall be entitled to exercise all available remedies.
8. Prohibited Activity. Elks agrees not to use the Parking Facility in any manner,
even if use is for purposes stated herein, that will result in the cancellation of
any insurance City may have on the Parking Facility or on adjacent property,
or that will cause cancellation of any other insurance coverage for the Parking
Facility or adjoining property. Elks further agrees not to keep on the Parking
Facility or permit to be kept, used, or sold thereon, anything prohibited by any
fire or other insurance policy covering the Parking Facility. Elks shall, at its sole
expense, comply with all reasonable requirements for maintaining fire and other
insurance coverage on the Parking Facility.
Newport Harbor Elks Lodge #1767 Exhibit D-4
Q 2 147 L'1+ 16
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7= Deficiencies
Name:
Account Number:
Address:
Status:
Newport Harbor Elks Lodge #1767
•
n
FV00000767
3456 Via Oporto, Newport Beach,
CA, 92663
Referral
Compliant with Waived
Deficiencies.
The following deficiencies are according to last validation on
:02/23/2023
Deficiencies Information
Date Policy Coverage Deficiency Waived
Waiver Crea
Reason By
Auto Liability_
- Additional
Insured
Endorsement
is non
compliant for
Auto following
Business
03/31 /2022 Yes
Kfear
Liability reason(s): *
Decision
*We have not
received a
required
Additional
Insured
Endorsement.
Auto Liability_
- Waiver of
Subrogation
Endorsement
is non
U3/31 /2U22
Liability
reason(s): *
Yes
*We have not
received the
required
waiver of
subrogation
endorsement.
Auto Liability
- Primary/Non
Contributory_
Endorsement
is non
compliant for
following
03/31/2022
AutoLiability reason(s): *
Yes
*We have not
received a
required
Primary &
Non -
Contributor _
Endorsement.
Professional
Liability_
Missing
Professional
03/31/2022
Required
Yes
Liability
Professional
Liability_
Coverage.
Professional
Liability=
Professional
Missing
08/15/2022
Required
Yes
Liability
Professional
Liability_
Coverage.
Professional
Liability=
Professional
Missing
11/17/2022
Required
Yes
Liability
r
•r_
Coverage.
Major deficiencies are
displayed in red.
Minor deficiencies are
displayed in black.
Waived deficiencies are
displayed in blue.
Fi iti ira wnivarl
Decision Kfear
Business
Kfear
Decision
Business
Kfear'
Decision
Business
Kfear
Decision
Business
Kfear
Decision