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HomeMy WebLinkAboutC-2637 - Whitecliffs Drive, 1 - Ground Lease, Addendum 1987THE CITY OF NEWPORT BEACH AND NEWPORT AQUATIC CENTER, INC. ADDENDUM TO GROUND LEASE WHEREAS, on March 24, 1987 a Ground Lease was entered into by and between the CITY OF NEWPORT BEACH, ("Lessor") and NEWPORT AQUATIC CENTER, INC., a non profit public benefit corporation, ("Lessee") for a term of twenty-five (25) years; and WHEREAS, Lessor and Lessee desire to extend the original Ground Lease, and WHEREAS, Lessor and Lessee agree that all other terms and conditions are to remain unchanged: IT IS HEREBY agreed by and between the City of Newport Beach, Lessor, and Newport Aquatic Center, Inc., a non profit public benefit corporation, Lessee, that the term of the Ground Lease shall be twenty-five (25) years from the first day of the first full calendar month after each of the following conditions have been satisfied: A. The Lease has been executed by Lessor and Lessee; B. Lessee has submitted construction drawings for the construction of the remainder of the floor area permitted by Use Permit number 3104 and Coastal Development Permit 5-84-786; C. Lessee has applied for a building permit for the construction of the remaining floor area permitted by Use Permit number 3104 and Coastal Development Permit 5-84-786; D. Lessee has complied with all conditions to the approval of Use Permit number 3104 and Coastal Development Permit number 5-84-786, including, but not limited to, permits from other public agencies, and the soils hydrology and related studies; E. Lessee has submitted an agreement, signed by a general contractor licensed as such by the State of California, committing the contractor to complete the remaining floor area of the project; F Lessor has received a bond guaranteeing performance of the contract required by the provisions of subparagraph E. The bond shall guarantee performance of the contract in a timely and workmanlike manner in the event contractor fails or refuses to perform in accordance with the contract; G. Lessee must satisfy each of the conditions precedent to the commencement of the term of the lease within twelve (12) months of the date of the execution of this Addendum. IN WITNESS WHEREOF, the Parties hereto have executed this Addendum to the Ground Lease. Dated: 21- Oc,t °l- Dated: / /S /91 APPROVED AS TO FORM: By: Daniel K. Ohl, Deputy City Attorney for the City of Newport Beach ATTEST: By: LaVonne Harkless, City Clerk for the City of Newport Beach LESSEE: NEWPORT AQUATIC CENTER, INC. By: �=4,Gt r'J LESSOR: CITY OF NEWPORT BEACH By: Debay, ayor for the City of Newport Beach F;\cat\debbie\ag\aquatic\nac25yr.doc 09-15-97 C- 37 THE CITY OF NEWPORT BEACH AND NEWPORT AQUATIC CENTER, INC. GROUND LEASE THIS GROUND LEASE, entered into thisc day of 4-d' L 198 , by and between THE CITY OF NEWPORT BEACH, ("Lessor" and NEWPP RT AQUATIC CENTER, INC., a Non-profit Public Benefit Corporation, organized and existing under and by virtue of the laws of the State of California (referred to as "Lessee") is made with reference to the following facts, the materiality and existence of which is stipulated and agreed by the parties: A. Lessor is the owner, subject to a public trust, of approximately 12 acres of tidelands located in the City of Newport Beach and commonly known as North Star Beach. B. In November, 1982, the qualified electors of .the City of Newport Beach approved a Measure which granted the City Council the authority to lease property on North Star Beach for the construction of facilities to promote sports involving human - powered watercraft. C. The property which is the subject of this lease has been identified as that portion of North Star Beach best suited for the construction of facilities to promote sports involving human -powered watercraft. D. On September 6, 1984, the Planning Commission of the City of Newport Beach approved Lessee's application for a use permit (No. 3104, attached as Exhibit "C") authorizing the construction of an 18,228 square foot structure that would provide facilities for human -powered watercraft, and their owners, including boat storage, and multi -purpose' area and meeting room, a weight training room, small offices for the conduct and operation of facility, locker rooms, and such other facilities as may be incidental to sports involving human -powered watercraft. In addition, permittee proposed to construct a bulkhead along a portion of the beach frontage, build low lying docks to serve only human -powered craft, landscape the property, and provide appropriate public parking, restroom facilities, and access to the beach. E. On February 14, 1985, the California Coastal Commission approved Lessee's application for a Coastal Development Permit authorizing the construction of the Aquatic -1- Center. (See Coastal Development Permit No. 5-84-786-Exhibit „D.„) F. The property is subject to restrictions, including, but not limited to, limitations specified in Chapter 415, Statutes of 1975 the Grant Deed from the County of Orange to the City of Newport Beach and (conveying an undivided one-half interest in the property) and the limitations commonly imposed on public tidelands. Lessor has determined that the proposed Aquatic Center, and the uses to which it will be put, are consistent with the limitations and restrictions imposed on the property; G. The residents of Newport Beach and the County of Orange will derive substantial benefit from the construction of the Aquatic Center in that: 1. Newport Harbor has ideal water conditions for the training and development of world -class rowers, canoers, and kayakers, but no facility currently exists to accommodate these athletes and there is currently no organized public program for these specific water sports outside collegiate programs. 2. Construction of the Aquatic Center will provide a facility for world -class athletes, as well as encourage and provide for public participation in human -powered aquatic sports at all levels of ability; 3. A portion of the Aquatic Center will be available for use by members of the general public on a daily basis and also will be available for use by the City of Newport Beach. H. The County of Orange, pursuant to a joint powers agreement, has given the City of Newport Beach the power to execute this lease on its behalf. NOW, THEREFORE, the parties hereto agree as follows: 1. LEASED PREMISES Lessor hereby leases to Lessee, subject to the terms of this Agreement, the 3.9+/- acre parcel legally described on Exhibit "A," and depicted on the map attached as Exhibit "B" (the "property"). -2- 2. TERM The term of this Lease shall be twenty-five (25) years, unless sooner terminated as provided herein. The term of the lease shall commence on the first day of the first full calendar month after each of the following conditions has been satisfied: A. The Lease has been executed by Lessor and Lessee; B. Lessee has applied for a building permit for the construction of at least 35% of the floor area permitted by Use Permit No. 3104 and for construction of any and all improvements or facilities relating to the construction of phase I (as defined in Paragraph S.A. and required as conditions to Use Permit No. 3104 and conditions 2-6 of Coastal Development Permit 5-84-786; C. Lessee has complied with all conditions to the approval of Use Permit No. 3104 and Coastal Development Permit No. 5-84-786, including, but not limited to, permits from other public agencies, and the soils, hydrology and related studies; D. Lessee has submitted an Agreement, signed by a general contractor licensed as such by the State of California, committing the contractor to complete at least Phase I of the project on or before March 1, 1988. E. Lessor has received a bond guaranteeing performance of the contract required by the provisions of subparagraph D. The bond guaranteeing performance of the contract in a timely and workmanlike manner in the event contractor fails or refuses to perform in accordance with the contract. Lessee must satisfy each of the conditions precedent to the commencement of the term of the lease within twelve months of the date of execution. 3. USE RESTRICTIONS/CONDITIONS This Lease is subject to all of the conditions, covenants, restrictions and limitations of the following: A. City of Newport Beach Use Permit No. 3104; -3- B. Coastal Commission Development Permit No. 5- 84-786; C. The Grant Deed from the County of Orange conveying to the City of Newport Beach an undivided one-half interest in the property and recorded March 13, 1978 in Book 12594, Page 990, Official Records of the County of Orange. D. The provisions of any and all Statutes of the California Legislature granting any portion of the property to the City of Newport Beach or County of Orange. E. The Joint Powers Agreement between the City of Newport Beach and County of Orange (attached as Exhibit "E.") F. Lessee shall permit, and provide for, public access for activities permitted under the Tideland Grants, including fishing, to the extent those activities do not interfere with the activities and programs conducted by Lessee. 4. CONSIDERATION The consideration for this Agreement shall be the construction of an aquatic center by Lessee, at no cost to Lessor, the continued maintenance and operation of this facility for the term of the Lease at no cost to Lessor, the commitment of Lessee to utilize the facility as an aquatic center for the advancement of marine -oriented athletic and recreational programs and activities, and the right of Lessor to utilize the facility. 5. CONSTRUCTION BY LESSEE A. Project: Lessee shall have the right, at Lessee's sole cost and expense, to construct a facility consisting of no more than 18,228 square feet, inclusive of boat storage areas, weight training rooms, men's and women's locker rooms, multi -purpose assembly room, facility and public restrooms, and other uses, all as shown on the plans and specifications submitted by Lessee to the City of Newport Beach and California Coastal Commission in conjunction with the approval of Use Permit No. 3104 and Coastal Development Permit No. 5-84-786. Lessee shall construct, at Lessee's sole cost and expense, at least 83 parking spaces, an access road, and other improvements as are shown on the plans for Phase I attached to this lease as Exhibit "F." Lessee may also construct, at Lessee's sole cost and expense, a staging area, dock and bulkhead, to the extent permitted by Use Permit No. -4- 3104, subject to whatever restrictions may be imposed by any agency having jurisdiction over such construction. B. Phasing/Phase I: The project may be constructed in no more than three phases. Phase I shall consist of 8,107 square feet of building area, 64 parking spaces, staging area, ramp, dock and accesss road all as described in, shown on, the plans and specifications attached as Exhibit "F." Construction of subsequent phases shall not commence until Lessor has, with respect to each phase, complied with the provisions of subparagraphs 2.C. through 2.E. C. Construction Schedule: Construction of phase I shall commence within ninety (90) days from the effective date of the lease and shall be diligently pursued to completion in accordance with the schedule submitted by lessee or lessee's contractor, and approved by the Building Director of the City of Newport Beach. The time for completion of any phase of construction may be extended in the event of strikes, acts of God, or other events beyond the control of lessee, but shall not be extended due to financial problems. Failure to timely commence construction, or failure to diligently pursue completion of any phase shall be considered a material breach. D. Permits and Approvals: Lessee shall be required to obtain, prior to commencing any phase of construction, all permits, licenses or approvals that may be required in connection with that particular phase, including, but not limited to, approvals and Permits from the following agencies: (1) The City of Newport Beach; (2) The County of Orange; (3) The California Department of Fish & Game; (4) The California Coastal Commission; (5) The California Regional Water Quality Control Boards; -5- (6) The Army Corps of Engineers; (7) The United States Department of Fish & Wildlife; (8) The United States Bureau of Sports Fisheries. E. Completion Bond/Letter of Credit: In the event the contract performance bond provided pursuant to the provisions of paragraph 2.E. of this lease becomes invalid, or unenforceable, for any reason, Lessee shall provide Lessor with a substitute letter of credit or completion bond within five (5) days from the date on which Lessee becomes aware of the invalidity or unenforceability or the bond or letter of credit or, written notice from Lessor, whichever first occurs. Any substitute bond or letter of credit must comply with the standards specified in paragraph 2.E. of this lease. F. Prior Written Approval: No structure or improvement of any kind shall be erected or maintained on the property unless and until plans, specifications, and proposed location of the structure or improvement have been approved, in writing, by Lessor. G. Notice of Non -Responsibility: Lessor shall have the right, at any time, to post and maintain on the premises, and record, as required by law, any notice or notices of non -responsibility provided for the Mechanics' Lien laws of the State of California. H. Licensed Contractors: All work required in the construction of any phase of the Aquatic Center, including site preparation, work, landscaping, utility installation and similar work shall be performed only by competent contractors duly licensed as such under the laws of the State of California and pursuant to written contract between the contractor and Lessee. Unless otherwise specified by the Building Director and Public Works Director of the City of Newport Beach, each contract with a general contractor shall provide that the final payment under the contract shall be in an amount equalling at least 10% of the full -6- amount payable and shall not be paid to contractor until the following, whichever last occurs: (1) The expiration of 35 days from the notice of recording by Lessee of a notice of completion of the building, with Lessee agreeing to record the notice promptly within the time specified by law; or (2) The settlement and discharge of all liens of record claimed by persons who supplied other labor or materials for the construction of the project. 6. CONSTRUCTION/ALTERATION BY LESSEE (1) Lessor's Consent: No structures, improvements, or facilities other than as provided in phase I, shall be constructed or altered by Lessee without the prior written consent of the Building Director of the City of Newport Beach. Any conditions relating to the manner, method, design and construction of the structures, improvements or facilities imposed by Lessor shall be considered conditions of this Agreement as though originally stated herein. In the event that any construction or alteration of facilities, structures or improvements requires any discretionary approval of any Board or Commission of the City of Newport Beach, any conditions imposed by such Board or Commission relating to the manner, method, design and construction of the structures, improvements or facilities shall also be conditions of this Lease. (2) Strict Compliance: All improvements constructed by Lessee on the property shall be constructed in strict compliance with the plans and specifications approved by the Building Director of the City of Newport Beach. (3) Mechanics Liens or Stop Notices: Lessee shall, at all times, indemnify and hold Lessor harmless from any and all claims for labor or materials in connection with the construction, repair, alteration, or installation of the structures, improvements, equipment or facilities on the property, and from the costs of defending against such claims, including reasonable attorney's fees. In the event any lien or stop notice is imposed or recorded on the property as a result of the construction, repair, -7- alteration of the facility, installation of any equipment, Lessee shall, within thirty (30) days from the filing of the lien or stop notice: i. Record a valid release of lien or stop notice; ii. Deposit sufficient cash with Lessor to cover the amount of the claim or lien or stop notice in question and authorize payment to the extent of said deposit to any person or entity that obtains any judgment with respect to said claim or lien or stop notice; or iii. Procure and record a Bond in accordance with the provisions of Section 3143 CCP, which frees the property from the claim of lien or stop notice and from any action brought to foreclose the lien or stop notice. Lessee's failure to comply with the provisions of this paragraph, shall be considered to be a material breach, and this Lease shall be subject to immediate termination, pursuant to the provisions of Section 23 of this Lease. 7. OWNERSHIP OF IMPROVEMENTS: All buildings, improvements and facilities, exclu- sive of trade fixtures, constructed or placed on the property by Lessee must, upon completion of construction or installation, be free and clear of all liens, claims or liability for labor or material, and shall become property of Lessor and the County of Orange at the expiration of this Lease, or earlier termination thereof. Lessor retains the right to require Lessee, at Lessee's cost, to remove all improvements, placed on the property by Lessee, at the expiration or termination of this Lease subject to the provisions of paragraph 13 of this Lease. 8. UTILITIES Lessee shall be responsible for and pay, prior to the delinquency date, all charges for utilities supplied to the property and structures or improvements thereon. 9. MAINTENANCE OBLIGATIONS OF LESSEE Lessee agrees to maintain the property and all -8- improvements constructed thereon in good order and repair, and to keep said premises in a neat, clean, orderly, safe, and sanitary condition. This includes, but is not limited to, the prevention of accumulation of any refuse or waste materials which might constitute a fire hazard or a public or private nuisance. Failure of Lessee to properly maintain and repair the property and improvements shall constitute a material breach of the terms of this Lease. 10. DAMAGE TO OR DESTRUCTION OF IMPROVEMENTS In the event of damage to or destruction of Lessee's buildings, facilities, or improvements located on the property or in the event buildings, facilities, or improvements located on the property are declared unsafe or unfit for use or occupancy by a public entity with the authority to make and enforce such declaration, Lessee shall, within 120 days, commence and deligently pursue to completion the repair, replacement, or reconstruction of the structure or improvements necessary to per- mit full use and occupancy of the property for the purposes required by this Lease. Repair, replacement, or reconstruction of improvements within the property shall be accomplished in a manner and according to plans approved by Lessor. 11. INSURANCE Lessee shall maintain insurance, acceptable to Lessor, in full force and effect throughout the term of this Lease. The policy or policies of insurance maintained by Lessee shall provide the following limits and coverages: A. Liability Insurance: Coverage $1,000,000 Bodily injury -property damage combined single limit, which insurance shall be in force on the first day of the term of this Lease. B. Fire & Extended Coverage: Not less than 90% of the cost of replacement of all insurable improvements within the property. Water damage and debris cleanup provisions shall be included. C. Insurance shall be in force the first day of the term of this Lease. D. Each insurance policy required by this Lease shall contain the following three clauses: 1. "This insurance shall not be cancelled, -9- limited in scope of coverage or nonrenewed until after 30 days' written notice has been given to the City Manager of the City of Newport Beach, c/o City Attorney's Office, 3300 Newport Blvd., Newport Beach, California 92663" 2. "It is agreed that any insurance maintained by the County of Orange or the City of Newport Beach will apply in excess of, and not contribute with, insurance provided by this policy." 3. "The County of Orange and the City of Newport Beach are added as additional insureds with respect to all operations or activities of the named insured at or from the property," provided, however, this language shall not be required as a part of any insurance policy carried by a contractor for fire and extended coverage during construction of any phase. E. Lessor shall retain the right, at any time, to review the coverage, form, and amount of the insurance required hereby. If, in the opinion of Lessor, the insurance provisions in this Lease do not provide reasonably adequate protection for Lessor, based upon loss experience and/or the kind and extent of the risks which then exist, Lessor may require Lessee to obtain additional insurance in such amount as necessary. F. Lessor shall notify Lessee, in writing, of changes in the insurance requirements, and if Lessee does not deposit copies of acceptable insurance policies with Lessor, incorporating such changes within thirty days of receipt of such notice, Lessee shall be in default. G. Any and all fire, extended coverage or other insurance proceeds that become payable at any time during the term of this lease because of damage to, or destruction of, any building or improvement on the property, shall be paid to Lessee and applied by Lessee towards cost of repairing and restoring the damage or destroyed buildings or improvements as provided in paragraph 10 of this lease. H. The procuring of such required policy or policies of insurance shall not be construed to limit Lessee's liability hereunder nor to fulfill the indemnification provisions and requirements of this Lease. -10- 12. ASSIGNING, SUBLETTING AND ENCUMBERING PROHIBITED Lessee shall not mortgage, pledge, hypothecate, encumber, transfer, sublease or assign its interest in this lease, the property, or any structure located on the property. The reasons for the prohibitions specified in this paragraph include, but are not necessarily limited to, the following: A. The property consists of tidelands subject to a public trust for specified purposes, and may not be transferred or conveyed by LESSOR. The assignment or transfer of the Aquatic Center's interest in this lease could violate the restriction or transfer. B. Lessor's power to enter into this Lease has been granted by vote of the people and the Joint Powers Agreement, (attached as Exhibit "E"), and Lessor's power to lease the property is limited to non-profit corporations involved in promoting sports involving human -powered watercraft. Any assignment of the Lease or encumbrance of the property could be inconsistent with the authority conveyed by the electorate; C. Lessor, given the purposes for which Lessee was formed, and limitations on its power as specified in its articles of incorporation, has greater assurance that Lessee will comply with the terms and conditions of this Lease and related approvals, than any other entity or organization. 13. EMINENT DOMAIN In the event the whole or part of the property or improvements is condemned by a public entity in the lawful exer- cise of the power of eminent domain, this Lease shall cease as to the part condemned upon the date possession of that part is taken by the public entity. If only a part is condemned and the taking of that part does not substantially impair the capacity of the remainder to be used for the purposes required in this Lease, Lessee shall continue to be bound by the terms, covenants and conditions of this Lease. If only a part is condemned and the taking of that part substantially impairs the capacity of the remainder to be used for the purposes required in this Lease, Lessee shall have .the election of: -11- E. Such other provisions as the Parks, Beaches & Recreation Director considers necessary to ensure that the facility is operated and maintained in accordance with the purpose of this Agreement. F. The right of City to modify the FMP in the event of operation of the Aquatic Center is inconsistent with this lease, Use Permit No. 3104, Coastal Development Permit No. 5-84-786 and other applicable law, rule or regulation. Lessee shall sumbit the proposed FMP to Lessor within 120 days after the effective date of this lease. Lessee is prohibited from using, or permitting others to use, the facility in any manner which is not authorized by, or inconsistent with, the approved FMP. The failure of Lessee to comply with the provisions of this paragraph after written notice by Lessor shall be considered a material breach of this lease. 15. UNLAWFUL USE: Lessee agrees that no improvement shall be erected, constructed or operated on the property, nor any business conducted on the property in violation of the terms of this Lease, or of any regulation, order, law, statute, bylaw, charter provision or ordinance of any Governmental agency having jurisdiction. Lessee shall not construct, maintain, or allow any sign upon the property, or improvements thereon, except as approved by Lessor, and further, such sign must be in compliance with the provisions of Chapter 20.02 of the Newport Beach Municipal Code. Lessee shall not discriminate against any person or class of persons by reason of sex, color, race, creed, national origin or age. Lessee shall make all of its services, programs and facilities available to the public on fair and reasonable terms. 16. INDEMNIFICATION Lessee hereby hereby waives and claims and recourse against Lessor, including the right of contribution, for any loss or damage of or to persons or property in any way related to this agreement and Lessee's activities hereunder, except claims or liability arising from concurrent, active, or sole negligence of Lessor, or its officers, agents, employees or representatives. Neither party shall request a jury apportionment. Lessee agrees to indemnify and hold harmless and -13- (1) Terminating this Lease and being absolved of obligations hereunder which have not accrued at the date possession is taken by the public entity; or (2) Continuing to occupy the remainder of the property and remaining bounds by the terms, covenants and conditions of this Lease. Lessee shall give notice in writing of his election hereunder, within 30 days of the date possession of the part is taken by the public entity. Lessor shall be entitled to receive and shall receive all compensation for the condemnation of all or any por- tion of the property by exercise of eminent domain. Lessee shall beentitled to receive and shall receive all compensation for, the condemnation of all or any portion of the improvements constructed by Lessee on the leased premises by the exercise of eminent domain. 14. FACILITY MANAGEMENT PLAN The purpose of Lessor for entering into this Lease is to promote the development of sports involving human -powered watercraft, as well as facilities, programs and services related thereto, all to satisfy the needs of the general public. In furtherance of that purpose and to ensure that the operation of the facility is in accordance with the intent of the Lessor, Lessee shall submit a Facility Management Plan (FMP) to the Director of Parks, Beaches & Recreation for the City of Newport Beach for approval. The facilities shall be operated and administered in accordance with the approved FMP. The FMP shall, at a minimum, include the following: A. The programs, services and activities to be offered to members of the general public by the facility; B. The nature of any membership program pursuant to which any dues or fees are charged by Lessee; C. The hours of operation of the facility; D. The portions of the facility that are avail- able for use by Lessor for the conduct of public recreation •programs, together with the days and times that such space will be available; -12- defend Lessor, its officers, agents, employees and representatives, from and against any and all claims, demands, losses, damages, costs, legal and investigation expenses, or liability of any kind or nature which Lessor or its officers, agents and employees may sustain or incur or which may be imposed upon them or any of them for injury to or death of persons, or damage to property as a result of, arising out of, or in any manner related to this Lease, or with the occupancy and use of the property or improvements thereon by Lessee, or any of Lessee's activities at or from the property, or its officers, agents, employees, subtenants, licensees, patrons or visitors, except liability arising out of the concurrent, active, or sole negligence or wilful misconduct of Lessor or its officers, agents, or employees. 17. TAXES AND ASSESSMENTS This Lease may create a possessory interest which is subject to the payment of taxes levied on such interest. It is understood and agreed that all taxes and assessments, includ- ing but not limited to said possessory interest tax, which become due and payable upon the property or improvements thereon or upon fixtures, equipment or other property installed or constructed thereon shall be the full responsibility of Lessee, and Lessee shall cause said taxes and assessments to be paid promptly. 18. INSPECTION Lessor or its authorized representative shall have the right at all reasonable times to inspect the property to determine if Lessee is in compliance withthe terms and conditions of this Lease and Use Permit No. 3104. 19. SUCCESSORS -IN -INTEREST Unless otherwise provided in this Lease, the terms, covenants and conditions contained herein shall apply to and bind the heirs, successors, executors, administrators and assigns of all the parties hereto", all of whom shall be jointly and severally liable hereunder. 20. CIRCUMSTANCES WHICH EXCUSE PERFORMANCE If either party hereto shall be delayed or prevented from the performance of any act required hereunder by reason of acts of God, restrictive Governmental laws or regula- tions, or other cause without fault and beyond the control of the party obligated (financial inability excepted), performance of -14- such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. 21. PARTIAL INVALIDITY If any term, covenant, condition or provision of this Lease is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall, in no way, be affected, impaired or invalidated thereby. 22. WAIVER OF RIGHTS The failure of Lessee or Lessor to insist upon strict performance of any of the terms, covenants or conditions of this Lease shall not be deemed a waiver of any right or remedy that Lessee or Lessee may have, and shall not be deemed a waiver of the right to require strict performance of all of the terms, covenants and conditions of the Lease thereafter, nor a waiver of any remedy for the subsequent breach or default of any term, covenant or condition of the Lease. 23. DEFAULT IN TERMS OF LEASE BY LESSEE Should Lessee default in the performance of any material covenant, condition or agreement contained in this Lease, and such default is not corrected within a reasonable time (as determined by Lessor) after Lessee receives written Notice of Default from Lessor, Lessor may: (A) Terminate this Lease. All rights of Lessee and those who claim under Lessee, stemming from this Lease shall end at the time of such termination; or (B) At Lessor's sole option, cure any such default by performance of any act, reasonably necessary to cure such default. 24. COSTS OF SUSTAINING AN ACTION FOR BREACH OR DEFAULT In the event either Lessor or Lessee commences legal action against the other, claiming a breach or default of this Lease, the prevailing party in such litigation shall be entitled to recover from the other costs of sustaining such 'action, including reasonable attorney's fees as may be determined by the Court. -15- 25. RESERVATIONS TO LESSOR The property is accepted as is and where at by Lessee, subject to any and all existing easements and encumbrances. Lessor reserves the right to install, lay, con- struct, maintain, repair and operate such sanitary sewers, drains, storm water sewers, pipelines, manholes and connections; water, oil and gas pipelines; telephone and telegraph power lines and the appliances and appurtenances necessary or convenient in connection therewith in, over, upon, through, across and along the property or any part thereof, and to enter the property for any and all such purposes. Lessor also reserves the right to grant franchises, easements, rights -of -way and per- mits in, over, upon, through, across and along any and all por- tions of the property. No right reserved by Lessor in this clause shall be so exercised as to interfere unreasonably with Lessee's operations hereunder or to impair the security of any secured creditor of Lessee. 26. QUITCLAIM OF LESSEE'S INTEREST UPON TERMINATION Upon termination of this Lease, including but not limited to, termination because of default by Lessee, Lessee shall execute, acknowledge and deliver to Lessor, within 30 days after receipt of written demand therefor, a good and sufficient Deed, whereby all right, title and interest of Lessor in the property is quitclaimed to Lessor. Should Lessee fail or refuse to deliver the required Deed to Lessor, Lessor may prepare and record a Notice, reciting the failure of Lessee to execute, acknowledge and deliver such Deed and said Notice shall be conclusive evidence of the termination of this Lease and of all right of Lessee or those claiming under Lessee in and to the property. • 27. LESSOR'S RIGHT TO REENTER Lessee agrees to yield and peaceably deliver possession of the property to Lessor on the date of termination of this Lease, whatsoever the reason for such termination. Upon giving written notice of termination to Lessee, Lessor shall have the right to reenter and take posses- sion of the property on the date such termination becomes effec- tive without further notice of any kind and without institution of summary or regular legal proceedings. Termination of the 'Lease and reentry of the property by Lessor shall, in no way, alter or diminish any obligation of Lessee under the Lease terms, and shall not constitute an acceptance or surrender. -16- 28. NOTICES All notices required by this lease shall be deemed to have been given when deposited in the United States mail, first class, postage prepaid, and addressed as follows: LESSOR City Manager City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 LESSEE Newport Beach Aquatic Center 200 Newport Center Drive Suite 301 Newport Beach, CA 92660 IN WITNESS WHEREOF, the parties hereto have executed this Ground Lease, the day and year first above written. APPROVED AS TO FORM obert H. Burnham ity Attorney ATTEST /0Y/bilk_ Wanda Raggio City Clerk !/ LESSEE NEWPORT AQUATIC CENTER, INC. LESSO sfD&---41\ -17- 2 :W 'o N, • •o CV .,o N 117 ; .a.'n i ay.4 M -O,R.IT.594/990 �1 N r+ N H M in 0 r�; 0 01 - 18" S 55p.0p'- TRACT N.o O J 242' t " CJ1 2O 07 '8 i 13.54, y o AREA .3.987 ACRES. '1 N 81°:.19' 46" W 181.58' $ 69°,41' 00" W 1x5:33' UPPER NEWPORT BAY S 40° 42' 44" W 2.10' S 30° 28' 39" W 140.46' N7!•07' 18" W 333.97 S 4 ° 38' 20" W 38.33' 5 g :�.�._. . B Mod 0;146 .• N • 41.°' `2v,. ,40„ W 859.94' LIQI$i 40' 14" W 135;00' W'LY LINE O.R. 11688/1455 NOR TN STAA' LANE .N 44° 38' 20" E ' 43' BASIS OF BEARINGS PLAN PREPARED TO ILLUSTRATE LEGAL DESCRIPTION OF LEASE AREA FOR NEWPORT AQUATIC CENTER AT NORTH STAR BEACH CITY OF NEWPORT BEACH COUNTY ORANGE, CAL;IFORNIA:- EXHIBIT DOUG 0. STER .S. 4599 DATE ICHK.:1T; r.CAL I rem II xorrI-T 18 I 101 " a .2, 00 — • 1 <7- Y — • I ,r-os o.0 s mo OAA?lLt'OUNT" etlt/tROI GT!, t .1 r. f -CI Eta At GE, sit. STAR BEACH 0 ILO Ito < c0 :3 • t 11•15.11 a 111 g i 333 'COMMISSIONERS 1 0 It 5�=; ROLL CALL 1 -1 1 I O j September 6, 1984 EXHIBIT NO. ' A PL1 A 1. i 1 5- City of Newport Beach R. mac,• � 7d Y"y CJs+• Corral :.P/ of the City, and further that the proposed project in terms of use, height, building floor area and setbacks isconsistent with the legislative intent of Title 20 of the Municipal Code. • 3. Adequate off-street parking and related vehicular circulation are being provided in conjunction with the proposed development. 4. The development ent will provide for both public physical and visual access to the bay. • 5. That the height of the structure is consistent with the proposed use and will not.. adversely affect any public view. 6. That the project is generally consistent with the ballot measure.approved by the electors•in Jcne, 1982 allowing the lease of North Star Beach for an Aquatic Center. 7. 'that the design of the subdivision or the proposed improvements will not conflict with any easements acquired by the public at large for access through or use of property within the proposed subdivi- sion. 8. That the size and use of the Aquatic Center as approved by this Use Permit represents the full extent of the authority granted to the City pursuant to the approval of Proposition 0 in 1182. CONDITIONS 1. That development shall be in substantial confor- mance with the approved plot plan, floor plan, and elevations except as noted below. 2. That all improvements be constructed as required by Ordinance and the Public Works Department. 3. That a standard use permit agreement and accompa- nying surety be provided if it is desired to obtain a building permit prior to completion of the public improvements. - A 4. That the on -site parking, vehicular circulation and pedestrian circulation systems be subject to further review by the Traffic Engineer. 10 EXHIBIT C COM MISSIO IRS September 6, 1984 MINUTES v 7 oS 0 City of Newport Beach RC )l L CALI INDEX . That the design of the private .drives conform with the City's Private Street Policy (L-4), except as approved by the Public Works Department. The location, width, configuration, and concept of the private drive system shall be subject to further review and approval by the City Traffic Engineer. ▪ That the intersection of the public street and proposed drive be designed to provide sight distance for a speed of 25 miles per hour. Slopes, landscaping, walls and other obstructions shall be considered in the sight distance require- ments. Landscaping within the sight distance line shall not exceed twenty-four (24) inches in height. The sight distance requirements may be approximately modified at non -critical locations, subject to approval of the Traffic Engineer. . Handicap parking shall be provided to meet code and shall be marked in a manner acceptable to the Traffic Engineer. . That a hydrology and hydraulic study be prepared and approved by the.Publi Works Department, along with a masthr'plan of water, sewer and storm drain facilities for the on -site improvements prior to issuance of any grading or building permits. Any modifications or extensions to the existing storm drain, water and sewer systems shown to be required shall be the responsibilityof the developer. 9. That a legal description be prepared and approved ment, Building Department meat prior to issuance of permit. of the subject property by the Planning Depart - and Public Works Depart - any grading or building 10. That all proposed signs shall be in conformance with the provision of Chapter 20.06 of the Newport Beach Municipal Code and shall be approved by the City Traffic Engineer if located adjacent to the vehicular ingress and egress. 11. A landscape and irrigation plan for the project shall be prepared by a licensed landscape archi- tect. The landscape plan shall integrate and phase the installation of landscaping with the proposed construction schedule. Prior to o1/ 11 COMMISSIONERS -1 O F. 4111 � 1 September 6, 1984 City of Newport Beach MINUTES ROLL CALL INDEX occupancy, a licensed landscape architect shall certify to the Planning Department that the landscaping has been installed in accordance with the approved plan. 12. The landscape plan shall be subject to the review of the Public Works Department, the Parks, Beaches and Recreation Department, and the approval of the Planning Department. 13. The landscape plan shall include a maintenance program which controls the use of fertilizers and pesticides. 14. The landscape plan shall place heavy emphasis on the use of drought -resistant native vegetation, and be irrigated with a system designed to avoid surface runoff and overwatering. 15. That a minimum of 63 parking spaces be provided for the proposed development. These parking spaces shall be secured by. a chain or gate at the entrance on North.Star Lane in accordance with the operating hours of the A1tic Center. 1 16. That all employees shall park their vehicles on -site. 17. If a parking area for the storage of boat trailers " is provided, this parking s51111 be in addition to the 63 parking spaces required by the project. 18. That the maximum height of the building not exceed 20. feet. That the specific use and function of the facility be subject to further review and approval of the City as part of the ground lease and required Facilities Management Plan. 20. The hours of'operation will be limited to 6:00 a.m. to 10:00 p.m. daily, and that no outdoor programs will be offered after the hour of 7:00 p.m. Only advanced training activities are permitted between 6:00 a.m. and 7:00 a.m. 21. That no new boat fabrication will occur on -site. i 12 7* COAA AAISSIO`'LRS September 6, 1984 MINUTES ffl ei x i 1 + 1 ROLL CALL • City of Newport Beach INDEX 22. Trailering of boats to or from the site shall occur only between the hours of 9:00 a.m. and 4:00 p.m. 23. No overnight accommodations will be provided on -site, other than the coordinator apartment. 24. The on -site coordinator staff shall be subject to the approval of the Parks, Beaches and Recreation Department. A member of the on -site coordinator staff shall be on the premises at all tires. The coordinator shall have the authority to restrict use of thefacility to individuals with motor vehicles which are in conformance withthe Motor Vehicle Code. 25. The weight training facilities will be used by aquatic program participants; and will not be,._ available for independent weight training pro- grams. 26. i?utdoor boat storage shall be limited to seasonal_ storage of outrigger canoes. 27. Parking1lot lng ightishah be designed in such a manner as to conceal the light source and to minimize light spillage and glare to the adjacent residential uses. The plans shall be prepared by a licensed Electrical Engineer; with a letter from the Engineer stating that, in his opinion this requirement has been met. 28. That the parking lot shall be secured by gates as shown on the approved site plan. The gates shall 4 be lockedno later than 10:30 p.m. 29. The parking lot lighting shall be turned off no later than 10:30 p.m. on any day, and tiring devices shall be installed and maintained to ensure that the lights are turned of at 10:30 p.m. 30. No outdoor public address system shall be permitted. 31. Restrooms shall be made available to members of the general public during the center's hours of operation. 13 03 COMMISSIONERS September 6, 1984 MINUTES • f ei A • • ✓ ! o , c c • - n oo z City of Ne'&port Beach ROLL CALL 32.' This use permit shall expire unless exercised within 36 months from the date of approval. 33. Construction of the project may be phased so long as no part of the facility is constructed prior to the boat storage facility, 34. That the Planning Commission may add/or modify conditions of approval to this use permit, or recommend to the City Council the revocation.of this use• permit, upon a determination that the operation which is the subject of this use permit causes 'injury, or is detrimental -to the health, safety, peace, morals; comfort, or general welfare •of the community.. •• • 35. Construction of the bulkhead is subject to ap- proval of a Harbor Permit, and is also subject to the approval of the County of Orange, Harbor, -.- Beaches and Parks Department. 36. Tiat an engineering study be prepared to determine• the appropriate design for the bay frontage.' Bulkheads, rock revetments, or other facilities recommendedtbd the 'study; shall be constructed to adequately protect the onsite improvements. Newport Aquatic Center shall agree to construct, maintain, and repair the bayside facilities. The . City or other public agencies shall have no responsibility to provide repairs to facilities flooded or damaged by erosion from the bay and adjacent drainage course, or to otherwise protect the improvements constructed on the site. 37.. The projec• t shall comply with the Uniform Building Code and all local Amendments, and the City's seismic design standards. 38. The project shall comply with the State regu- lations.for the handicapped. 39. Construction shall meet the requirements of Title 19 and 24 of the C.A.C. . 40. Access to the service road circling the equatic complex shall be controlled by the means of a gate or other features to prevent use by the general public. 14 INDEX L./ CC)MMISSIONERS September 6, 1984 MINUTES • 4▪ • City of Ne ?port. Beach ROLL CALL INDEX 41. Prior to the issuance of Building Permits, 'a National Pollutant Discharge Elimination (NPDES) Permit shall be obtained from the Santa Ana Regional Water Quality Control Board 'if any discharges to the Bay are. anticipated. either during construction or subsequent operation of the facility. 42. Prior to'issuance of Building Permits, an Army Corps of. Engineers Permit shall be obtained to allow construction of the proposed •bulkhead and docking facilities. 43. Residents should be provided with' a point of contact with the Newport Aquatic Center manage- ment, to handle complaints of noisy vehicles in the parking lot or on local streets. 44. All mechanical equipment and trash areas shall be screened from public streets, -alleys, or adjoining properties. 45. Exterior lighting shall be approved by the Plan- ning Departmen. t PI 46. Development of the site may be subject to a grading permit to be approved by the Building and Planning Department. 47. A grading.plan will include a complete plan for temporary and permanent drainage facilities, to minimize any potential impacts from silt, debris, and other water pollutants. 48. The grading permit will include a description of haul routes, access points to the site, and watering and sweeping programs designed to mini- mize impacts of grading and haul operations. 49. An erosion, siltation, and dust control plan shall be submitted and be subject to approval by the Building Department and a copy will be forwarded to the California Regional wAter Quality Control Board, Santa Ana Region. 50. Grading shall be conducted in accordancewith plans prepared by a civil engineer and based on recommendations of a soils engineer and an engi- neering geologist subsequent to completion of a 15 • a5" COM MISSION£ RS September 6, 1984 MINUTES v c a • O E o 3 - a City of Newport Beach ROI I (AI 1 INDEX comprehensive soils and geologic investigation of the site. Permanent reproduction copies of the "Approved as Built" grading plans on standard -size sheets shall be furnished to the Building Depart- ment. 51. The Fire Department shall review design plans to ensure adequate access and emergency exists. 52. The provision of adequate fire reviewed by the Fire Department. 53. Structures shall be equipped with systems as required by Code. 54. Final design of the project shall provide for the incorporation of water -saving devices for lavatories and other water -using facilities. 55. All onsite drainage shall be approved by the City Public Works Department. 56. A weekly cleanup program around the project site shall by c?nducted:en irregular basis. During construction. ' basins or -other devices shall be installed to prevent waste from entering Newport Bay. flow shall be fire suppression d.• 57. Prior to the issuance of„building permits, a. comprehensive soils and foundation study will be prepared and approved by the Planning and Building Departments of the City of Newport Beach. 58. Should any archaeological resources be uncovered during .excavation/construction, a qualified archaeologist or paleontologist shall evaluate the site prior to completion of construction activ- ities, and all work on the site shall be done in accordance with the City Council Policies and K-5 and R-6. 59. Any mechanical equipment and emergency power generators shall be screened from view, and noise associated with said structures shall be sound attenuated so as not to exceed 55 dBA at the property lines. The latter shall be based upon the recommendations of the qualified acoustical engineer and approved by the Building Department. .26 16 a. • - ••• COMMISSIONERS :OIL CALL -4 . September 6, 1984 • MINUTES 00 City of Newport Beach INDEX 60. All construction activities will be limited to the hours of 7:00 a.m. to 7:00 p.m. Monday through Friday, and 8:00 a.m. to 5:00 p.m. Saturday and Sunday. 61. Use of the site shall be limited to a maximum of 2250 persons per day. 62. The Dover Shores Community Association shall be allowed to elect a representative to the Aquatic Center Board of Directors: 63. The applicant shall record & 'restrictive covenant limiting use of the facility to that -allowed by the terms of the lease'as executed by City Council. • • • -the--Planning—Commission—mete seed —a E—.95—p.:a��an \{econvened at 9:30 p.m. �f • • • Use Permit No. 3108 (Continued,Public Hearing) Item No.2 I! Request to permit the establishment of a retail art Use Permit gallery/studio on property located in the M-1 District. No. 3108 LOCATION: Lots 6 and 7, Block 328, Lancaster's Addition, located" Aoozoved at "2912 Layfayette Avenue, on the Condition_ easterly side of Layfayette Avenue, ally, between'29th Street and 30th Street, in Cannery Village. ZONE: M-1 APPLICANT: Paul Blain Henrie,\ Newport Beach OWNER: Loma Linda University,.Loma Linda Mr. William Laycock, Current Planning Administrator, advised that the Planning Staff has recommended that the following two conditions be added if the'P1auning Commission desires to approve this Use Permit. Condition No. 5: "That the second floor areas shall only be used by the artist or the gallery manager fo a studio, office, or storage purposes", and Condition No. ,27 17 State of California, George Deukmejian, California Coastal Commission SOUTH COAST DISTRICT 245 West Broadway, Suite 380 P.O. Box 1450 Long Beach, California 90801-1450 (213) 590-5071 PILED: 1/10/85 49th DAY: 3/ 1/85 180th DAY: 7/10/85 STAFF: 4y T. Henry:do STAFF REPORT: 1/30/85 HEARING DATE:2/13-15/85 REGULAR CALENDAR STAFF REPORT AND RECOMMENDATION Application: 5-84-786 Applicant: City of Newport Beach/Newport Aquatic Center Department of Parks 170 E. 17th St., Suite 204 & Recreation Costa Mesa, CA 92627 P..O. Box 1768 Newport Beach, CA 92658-8915 Agent: Sanchez Talarico.Associates (Fred Talarico) Description: Site: "Summary: Construction of an 18,228 square -foot aquatic training and recreational facility to include a multi -purpose meeting room and a .two -bedroom aparttnent on the second level to be located on North.Star Beach in the City of Newport Beach. North Star Beach adjacent to Upper Newport Bay located at the terminus of North Star Lane in the Dover Shores residential area of Newport Beach, Orange County APN: 117-381-006 Staff recommends approval with conditions pertaining to bead improvement, parking, and public health. Substantive File Documents: 1. Initial Study for the Newport Aquatic Center, North Star Beach,'Newport Beach, CA,•dated July 9, 1984, by Marie E. Gilliam/Associates. 2. Management Plan for Upper Newport Bay Ecological Reserve the California Department of Fish and Game. EXHIBIT 5-84-786 Page 2 3. City of Newport Beach'Certified Land Use Plan, May 19, 1982. STAFF RECOMMENDATION Staff recommends the Commission adopt the following resolution: I. Approval with Conditions The Commission hereby grants, subject to the conditions below, a permit for the proposed development on the grounds that the development, as conditioned, will be in conformity with the provisions of Chapter 3 of the California Coastal Act of 1976, will not prejudice the ability of the local government having jurisdiction over the area to prepare a Local Coastal Program conforming to the provisions of Chapter 3 of the Coastal Act, is located between the sea and the first public roadnearest the shoreline and is in -conformance with the public access and public recrea- tion policies of Chapter 3 of the Coastal Act, and will not have any significant adverse impacts on the environment within the meaning of the California Environmental Quality Act. II. Standard Conditio1s: See Attachment X. III. Special Conditions: 1. Beach Improvement Program. The applicant shall submit a written agreement, for aNorth StarBeachImpro subject the review v ement approval ofheExecutive Director, Program. A. The agreement shall provide that by the end of the second year of operation of the facility that a Beach Improvement Plan to improve the quality of and access to the; beach shall be submitted. The Plan shall specify whether the applicant will convert the dredge spoil beach to a sandy beach @y will.provide_picnic tables, shaded viewing areas, and a public fishing dock with a sink and cleaning facili- ties. The Plan shall also include the provision of addi tional on -site public parking. B. By the end of the fourth year of operation of the facility the applicant shall commence construction of beach improvements as outlined in the above beach improvement plan. The improvements shall be completed by the end of the fifth year of operation of the facility. 2. Prior to transmittal of permit the applicant shall submit revised plans that show a total of 83 on -site parking spaces. o?5 5-84-786 Page 3 3. The applicant shall submit the final facilities operation plan() for Executive Director's review and approval. 4. Prior to transmittal of permit applicant shall submit a written I agreement, the form and content subject to the review and approval of the Executive Director, that reserves 20 percent of the maximum allowable daily use of the facility for general public walk-in use of the boat launching facilities. The agreement shall also specify that the boat • launching facilities,. public restrooms and public parking be available to the general public during the hours of operation of the facility. Indoor boat storage shall also be made available for members of the general public without requiring them to. enroll into any facility program. 5. The applicant shall submit final bulkhead plans for the review '" and approval of the Executive Director. 6. The applicant shall obtain and submit written certification. _/ from the California Department of Health that the water quality of the !/ Upper Newport Bay poses no threat to public health in conjunction with the proposed use. IV. FINDINGS AND DECLARATIONS. The Commission finds and declares as follows: A. Project Description and Location. The proposed two-story, 18,228 square -foot Newport Aquatic Center includes indoor boat storage area, weight -training room, men's and women's locker rooms, multi- purpose assembly room, facility and public restrooms, boat repair and workshop space with a covered service yard, all on the ground level. A 1,440 square -foot, two -bedroom coordinator's residence is located on the second level. A 15,000 square -foot staging area, dock and bulkhead are also proposed. Sixty-three parking spaces are provided on -site (see Exhibit 1 - Site Plan). The project site is located on the 12-acre North Star Beach at the terminus of North Star Lane in the Dover Shores Residential Community of Newport Beach (see Exhibit 2 - Vicinity Map). The facility will ee adjacent to the Upper Newport Bay Ecological Reserve. Additionally, a portion of the site has been designated as an Environmentally Sensitive Habitat area in the City's Certified Land Use Plan. B. Background. The proposed Newport Aquatic Center will provide training in kayak and outrigger canoe rowing in addition to related in- door instruction. The 2 existing rowing facilities in the area, the Orange Coast College and University of California,Irvine facilities provide instruction at the collegiate level. The principal goal of the proposed facility, according to the applicant, is to introduce aquatic sports to school age children. The primary users of the facility train- ing programs will include children from the various girls' and boys' civic clubs, youth day camps and sports camps, as well as boat clubs,ac- complished athletes training for international competition and enrollees of the City's aquatic -rcreation programs. 5-84-786 Page 4 The concept of a rowing and aquatic sports center was approved by the people of Newport Beach in a 1982 referendum. Initially the facility was to be nearly three times the proposed size and included a 2,800 square -foot sports medicine clinic, pool, pro shop, laundry, and a "training hostel" to provide up to 14-day's lodging for 25 to 50 people. The facility -would have accommodated 850 daily users. The scaled down facility approved by the City has been conditioned to limit the total maximum daily use to 250. The City added 62 more conditions largely as a result of the concerns expressed by the Dover Shores Residential Community through which is the only overland access to the project site (see Exhibit 3 - List of City Conditions). C. Public Use of Tidelands. North Star Beach is a public tide- lands held in trust jointly by the County of Orange and the City of Newport Beach for the People of.the State of California. As such the use of the.site•is governed by a Legislative 'Tideland Grant which dic- tates that the general public must be allowed maximum use'of the beach. North Star Beach is currently under-utilized by the public due to its limited access and poor beach and water quality. Overland access to the site is through a residential community via winding roads. Addition- ally, the beach is below a 100-foot high bluff. The lack of use of the beach is also due to the fact that it is not a sandy beach but a...dredge spoil site. However, the City has plans to make the 12-acre site a high quality beach as indicated in their Certified. Land Use Plan. While replacing the dredge material with high quality sand will improve the beach the water quality of the adjacent Upper Newport Bay State. Ecologic Reserve must also be improved if the public is to achieve maxi- mum enjoyment of this coastal area. The poor water quality of the Upper Bay area is due primarily to extensive sedimentation which has resulted in a loss of tidal flushing. However, contamination from coliform, land- scaping and agricultural nutrient -rich runoff and heavy metals has led to the restriction of water contact activities and the collection of shell- fish for human consumption throughout the Upper Bay. The California Department of Fish and Game, County of Orange, City of Newport Beach, City of Irvine, and the Southern California Association of Governments are working together on 208 planning studies to improve the water quality of the Upper Newport Bay. Presently the beach is used for fishing, bird - watching, jogging and open space. Staff feels that the proposed project is not inconsistent with the City's plans for the site to make it a high quality beach. The aquatic facility will occupy approximately one-fourth of the beach and will be sited so that the portion of the beach left undeveloped is that adjacent to the public road. A deed restriction will limit development to approxi- mately 3 acres."of the 12-acre beach. However, if the proposed project were not built the entire beach would remain in open space and be avail- able for improvement to a high quality sandy beach to provide for swim- ming; fishing, picnicking, and other passive recreational uses. It is staff's contention that the use of proposed facility is quasi -public in that the primary users will be various boat clubs, youth day camps, sports camps, various civic organizations, and elite athletes through memberships. The City of Newport Beach Department of Parks, Beaches and Recreation will also offer programs through the facility with 3/ 5-84-786 Page 5 enrollment on a user fee basis, but the City programs will constitute less than 20 percent of the total daily allowable use of the facility. Further general public use of the recreational facility is restricted since the project has been conditioned to restrict total daily use of the facility_to 250. Staff finds that only as conditioned to implement a beach improvement plan to include public on -site parking, to reserve a percentage of the allowable daily use for walk-in use of the boat launch- ing facilities by members of the general public who own human -powered: watercraft and to allow them to use the indoor boat storage facilities and to provide public restrooms and on -site public parking, can a deter- mination be made that the project allows maximum public use of the tide- lands. D. Public Recreational Opportunities. Sections 30220, 30224 and 30255 of the Coastal Act address the use of coastal areas for public recreation as follows: Section 30220. Coastal areas suited for water -oriented recreational activities that cannot readily be provided at inland water areas shall be protected for such uses. Section 30224. Increased recreational boating use of coastal waters shall be encouraged, in accordance with this division, by developing dry.storage areas, increasing public launching facilities, providing additional berthing space in existing harbors, limiting non -water -dependent land uses that congest access corridors and preclude boating support facilities, providing harbors of refuge, and by, providing for new boating facilities in natural harbors, new protected water areas, and in areas dredged from dry land. Section 30255. Coastal -dependent developments shall have priority over other developments on or near the shoreline. Except as provided elsewhere in this division, coastal -dependent developments shall not be sited in a wetland. When ( appropriate, coastal -related developments should be accommodated within reasonable proximity to the coastal -dependent uses they support.. (',mended by Ch. 1090, Stats. 1979.) The proposed aquatic training and recreational facility is a water dependent use that will increase recreational boating use'of coastal waters. As conditioned to allow general public use of the boat launching facilities and indoor boat storage areas without requiring participation in the facility programs, the project is consistent with Sections 30224 of the Coastal Act. 3•7 ? 5-8,4-786 Page 6 E. Public Access. Section 30252(4) of the Coastal Act states that,' "The location and amount of new development should maintain public access to the coast by (4) providing'adequate parking facilities or pro- viding substitute means of serving the development with public trans- portation." The project will provide 63 on -site parking spaces. Using Commission adopted parking Guidelines, parking should be provided at the rate of one space for each 4 persons based upon maximum capacity of all programs of the facility capable of simultaneous use, plus one space for each 2 employees. The project has been conditioned to restrict total daily use of the facility to 250 for all programs. This number of visitors would require 63 parking spaces under the Guidelines. The number of employees will fluctuate with the time of day, day of the week and with the season. During summer weekday afternoons the facility pro- grams will be at maximum capacity and thus more employees will be re- quired. Also during most of the day 4 to 5 programs (excluding the advanced individually monitored rowing and recreational program), will be running simultaneously. The facility will be least used and require less employees on winter weekends. • Though the project site, North Star Beach is currently under- utilized, development of the proposed aquatic training and recreational facility will attract curiosity and increase the use of the beach. The availability of a public boat launching facility at the site will also attract more useSof the beach and thus increase public parking demand. The Commission finds that only as conditioned to provide 20 additional on -site employee and public parking spaces for a total of 83 spaces, can the project be determined to be consistent with Section 30252(4) of the Coastal Act. F. Environmentally Sensitive Habitat Areas. Section 30240 of the Coastal Act states: Section 30240. (a) Environmentally sensitive habitat areas shall be protected aga nst any significant disruption of habitat values, and only uses dependent on such resources shall be allowed within such areas. (b) development in areas adjacent to environmentally sensitive habitat areas and parks and recreation areas shall be sited and designed to prevent impacts which would significantly degrade such areas, and shall be compatible with the continuance of such habitat areas. A=portion of North Star Beach is designated as an Envirorunentally Sensitive Habitat area in the City's Certified Land Use Plan because there is a small freshwater stream. The stream supports a riparian area which includes some volunteer arroyo willows. The source of the stream is a drain pipe at the base of the 100-foot high cliff which borders the beach on the northwest (see Exhibit 1 - Site Plan). The 33 5-84-786 Page 7 proposed facility is setback 60 feet from the riparian area,:aiid..no activities will take place in the riparian area which is located above tt facility. Additionally the public beach to be improved is at the southern end of the site and, therefore, the project will not encourage human activity in this wetland area adjacent to the Ecological Reserve. Therefore the Commission finds that the proposed project is consistent with Sections 30240 of the Coastal Act. G. Land Use Plan Consistency. On May 19, 1982, the Commission certified the City of Newport Beach Land Use Plan. The Land Use desig- nation of the project location is "Recreational and Ehvironmental Open Space." The permitted uses of this use designation are as follows: Recreational and Environmental Open Space. This subcategory includes parks, wildlife refuges, golf courses,bluffs, canyons,' and beaches. Uses periitted in areas shown -for Recreational and Environmental Open Space on the sites listed on Page 17 of 'the LUP and defined as environmentally sensitive areas (Page 20) are passive recreation uses compatible with the sensitive resource nature of these sites; and include hiking, picnicking and nature study. North Star Beach listed on Page 17 of the LUP as a portion of the site is defined as al environmentally sensitive area. However, because the project has been sited and designed to prevent any adverse impacts to the riparian area and is compatible with the continuance of the habitat area, staff finds it is consistent with the permitted uses of the Land Use designation as stated in the City of Newport Beach Certified Land Use Plan. 3 Pi..)\ (.):,_ [EXHIBIT NO. / 1 �r) � a z r 1 35 • 1 D D D 1 1 1 '.I • NEWPORT AQUATIC CENTER /o A C: AZ: z 1113 (trimi ci,;;Iessi'iiit • 0 re —0- 10011 010331 • • q • . ; 12, qv ' 4. 4. — 1 1 t> t> t> t> 1 1' 1 1 NEWPORT AQUATIC CENTER • b - S4 -'d �b T • Ulf ft••w.r Protect Site of otrCe: EDI • • 4 VICINITY MAP NEWPORT AQUATIC CENTER 37 • a • • 1.46 Covet lighwer rd EXHIBIT NO. Z APPLICATION NO. ` J-n7— 7g4 V CM/7 /7T NORTH STAR BEACH - JOINT POWER AGREEMENT PRELIMINARY DRAFT THIS JOINT AGREEMENT, made and entered into this 2VZJii day of - ia,,L01"' , 1987, between the COUNTY OF ORANGE, a political subdivision of the State of California, hereinafter referred to as "COUNTY," and the CITY OF NEWPORT BEACH, a municipal corporation, hereinafter referred to as "CITY;" RECI T A L S: A. COUNTY and CITY are each owners of an undivided one-half interest in 12+/- acres of tidelands located in the City of Newport Beach ("Property"). The Property more specifically described and depicted in Exhibits "A" and "B" to this Agreement. B. COUNTY holds the Property in trust under express condition of Legislative Tidelands Grant, Chapter 526, Statutes of 1919, as amended, and COUNTY has granted to CITY one-half interest in said land by deed recorded March 13, 1978 for development of mutually beneficial public recreation facility. C. All development and use of the Property shall be subject to and in conformance with restrictions on use of the property, which restrictions are set forth in said Tidelands Grant, Chapter 526, Statutes of 1919, as amended, and the Grant Deed by which COUNTY granted to CITY an undivided one-half interest in the property. D. CITY and COUNTY have approved, in concept, a proposal submitted by Newport Beach Aquatic Center, a non-profit corporation, which calls for the construction, at no cost to CITY or COUNTY, of an Aquatic Center on North Star Beach. E. The construction of an Aquatic Center on North Star Beach would constitute a significant benefit to both CITY and COUNTY in that the facility would be available for use by members of the general public to serve the needs of the large number of persons who own human -powered watercraft and provide additional facilities to serve the general public for activities such as public fishing access. -1- EXHIBIT C F. The City Council of Newport Beach submitted the Aquatic Center proposal to the voters of the City of Newport Beach, pursuant to the provisions of Section 1402 of the City Charter of the City of Newport Beach, and voters approved said proposal on November 4, 1982. G. The legislative bodies of the CITY and COUNTY believe that a Joint Powers Agreement would be the most efficient means of supervising the development, construction, and operation of the facility. H. On September 21, 1982, COUNTY's Board of Supervisors authorized preparation by EMA of Joint Powers Agreement with CITY to implement proposed development of Aquatic Center. I. CITY and COUNTY deem it to be to the mutual advantage of the parties hereto and in the public interest to treat the above -described tracts of land as a single parcel and designate the City to administer the development and operation of proposed Aquatic Center on North Star Beach. PARTIES, THEREFORE, IN CONSIDERATION OF MUTUAL INTERESTS TO PROVIDE PUBLIC AQUATIC RECREATION FACILITIES, CITY AND COUNTY AGREE AS FOLLOWS: 1. The property commonly known as North Star Beach, which is legally described in Exhibit "A," and depicted in Exhibit "B" shall, for purposes of this Agreement, be considered as a single parcel. 2. CITY shall have the power to bind County to a 25 year ground lease, consistent with the terms of the Tidelands Grant, of a portion of the Property provided: A. The property is leased to a non-profit corporation for development and use solely as a facility to promote sports involving human -powered watercraft; B. The lease has been submitted to the Director of the Environmental Management Agency of the County of Orange for review and approval, and the lease is in substantially the same form as the document attached to this Agreement as Exhibit "C " 3 C. The use of the leased premises shall be limited to those specified in City of Newport Beach Use Permit -2- No. 3104 and Coastal Development Permit No. 5-84-786 (see Exhibits "C" and "D" respectively.) D. CITY shall be the "lead agency" with respect to any environmental documentation required by any project (as that term is defined in the CEQA Guidelines) undertaken by the Aquatic Center or the City on or around the leased property. 3. CITY shall review and approve schematic and final construction plans and specifications for construction of proposed Aquatic Center, perform all inspections, and issue final certificates of occupancy. Copies of approved plans and specifications shall be provided to the Director of the Environmental Management Agency of the County of Orange. 4. All development, construction, operation, and maintenance of Aquatic Center shall be at no cost to CITY or COUNTY, provided that CITY staff shall be responsible for administering the operation of the facility to insure it is being used in conformance with this agreement, Use Permit No. 3104 and the long term lease. 5. Use of Aquatic Center and all its facilities shall be granted to all residents of COUNTY on an equal basis as residents of CITY. No person shall, on the grounds of race, color, creed, national origin, sex, or any other constitutionally -impermissible criteria, be excluded from participation in, be denied benefits of, or be subjected to discrimination under, any program or activity conducted by Aquatic Center or within facilities constructed on said parcel of land. 6. CITY shall ensure that the public shall have access to the Aquatic Center facilities, including rest rooms and public parking, and that development and operation of the Aquatic Center promote public access to the beach. 7. The long term ground lease shall require Lessee to provide adequate assurance that the Aquatic Center shall be constructed in a timely manner. 8. CITY shall, to the extent permitted by law, indemnify, defend and hold harmless the COUNTY, and its officers, agents and employees, from and against any claim, demand, loss, or liability arising out of the negligence or wrongful act or omission of CITY, or its officers, agents or employees, in approving the long-term ground lease, approving final construction plans, specifications, and building inspections. -3- The long term ground lease shall contain a provision requiring Lessee to name the COUNTY as an additional insured with respect to any and all operations or activities conducted by Lessee from or at the leased premises. 9. All land and improvements shall remain the joint property of CITY and COUNTY, and shall be maintained and operated for public park and recreation purposes consistent with the terms of the grant deed by which COUNTY conveyed a one-half interest in the property to CITY. 10. In the event CITY does not approve a long term ground lease for the construction of the Aquatic Center within six (6) months from the date of approval of this Agreement, this Agreement shall become null and void and cease to govern any actions of either the CITY or COUNTY regarding the property. 11. Notices All notices pursuant to this agreement shall be addressed as set forth below or as either party may hereafter designate by written notice and shall be sent through the U.S. Mail. COUNTY: CITY: County of Orange City Manager Director City of Newport Beach Environmental Management 3300 Newport Boulevard Agency Newport Beach, CA 92663 P.O. Box 4048 Santa Ana, CA 92702-4048 IN WITNESS WHEREOF, the parties hereto have caused this Joint Powers Agreement to be executed by their respective governing bodies on the dates set forth opposite their signatures. Dated: _3--76-1'7 -4- Newport Beach APPROVED/AS TO FORM: By: C'ty Attorne , Newport Beach Dated: MAR 2 J. 1987 RECOMMENDED FOR APPROVAL: ATTEST: //) By: '(127lia_ Ci Clerk, Newport %'ach liPCOUN •F ORANGE By: art/ Cha an, Board o Su'' visors, County of Orange ATTEST: By: ��� %�/�-•� By: Director Environmental Management Agency -5- inda D. 'ob= is Clerk, Board of Supervisors APPROVED AS TO FORM: ADRIAN KUYPER, COUNTY COUNSEL By: 3// 7 Deputy