HomeMy WebLinkAboutC-3460(D) - Lease Agreement (for Marine Studies Center - Back Bay Science Center "BBSC")STATE OF CALIFORNIA
STANDARD FORM LEASE AGREEMENT
LEASE COVERING PREMISES LOCATED AT
CALIFORNIA DEPARTMENT OF FISH AND GAME
UPPER NEWPORT BAY ECOLOGICAL RESERVE
BACK BAY SCIENCE CENTER
600 SHELLMAKER ROAD
NEWPORT BEACH, CALIFORNIA 92660
AGENCY
DEPARTMENT OF FISH AND GAME
SOUTH COAST REGION
4949 VIEWRIDGE AVENUE
SAN DIEGO, CALIFORNIA 92123
DEPARTMENT OF FISH AND GAME
SOUTH COAST REGION
THIS LEASE, dated for reference purposes only as of 8dOet— 3/ , 2007, is made by and
between the State of California, acting by and through its Department of Fish and Game, hereinafter referred to
as the STATE, and the City of Newport Beach, a charter City and Municipal Corporation, hereinafter referred
to as the LESSEE. STATE and LESSEE are sometimes referred to as the "Parties" to this Lease.
BACKGROUND
A. The STATE is the owner of certain real property located at 600 Shellmaker Road, Newport
Beach, California, commonly known as Shellmaker Island (the `Property"); and
B. The Property is part of the STATE's Upper Newport Bay Ecological Reserve (the "Reserve").
The primary purpose of the Reserve is to protect rare and endangered wildlife, aquatic organisms and critical
habitat, and specifically to preserve and enhance a coastal salt marsh ecosystem; and
C. Pursuant to Fish and Game Code Section 1585, the STATE is authorized to construct facilities
and conduct programs in ecological reserves it selects to provide natural history education and recreation if
those facilities and programs are compatible with the protection of the biological resources of the reserve; and
D. This Lease is entered into pursuant to the Cooperative Agreement dated August 17, 2004 (the
"Cooperative Agreement") among STATE, LESSEE, the County of Orange (the "County") and The Regents of
the University of California on behalf of the University of California at Irvine ("UCI"), regarding the planning,
funding and construction of the Back Bay Science Center project to replace existing facilities for
educationallinterpretive programs, water quality testing, and office staff, and including trails, wetlands
rehabilitation and ancillary parking and utilities on a portion of the Property (the "Project"); and
E. A Negative Declaration for the Project was prepared pursuant to the provisions of the California
Environmental Quality Act. On September 30, 2003, the STATE filed a Notice of Determination for the
Project with the State Clearinghouse; and
F. The Project includes certain facilities and improvements which the Parties refer to as the BBSC
Complex. The "BBSC Complex" consists of an approximate 13,000 square foot permanent enclosed structure
comprised of three new buildings containing a total of four wings located on the Property (the "BBSC
Buildings"); as well as parking areas, common areas and walkways on Shellmaker Island, but excluding planted
berms, interpretive pathways, and the demonstration marsh; and
G. LESSEE has constructed or will construct the BBSC Complex under the Interagency Agreement
for Construction of a Back Bay Science Center at Upper Newport Bay Ecological Reserve, Agreement Number
P0380039, entered into in July 2004, and the BBSC Administrative Wing Construction Contract, Agreement
Number P0650019, commencing February 2007, each between STATE and LESSEE; and
H. LESSEE, the County, the STATE, and UCI are also parties to the Back Bay Science Center
Complex Operating Agreement dated 2007 (the "Operating Agreement"). Among other things,
the Operating Agreement establishes a Facilities Working Group for the BBSC Complex (the "Facilities
Group") to identify facilities needs and plan for property maintenance, capital projects and improvements to the
BBSC Complex and identifies functions and obligations of its respective parties in connection with the BBSC
Complex; and
I. Pursuant to Section 420 of the City Charter of the City of Newport Beach, the City is prohibited
from entering into Leases for a term of more than twenty-five (25) years, or any extension thereof;
J. LESSEE desires to lease from STATE certain space within the BBSC Buildings for the
consideration and upon and subject to the terms, covenants and conditions of this Lease.
NOW, THEREFORE, the Parties hereby mutually agree as follows:
LEASE
PREMISES I . (a) STATE hereby leases to LESSEE and LESSEE hereby leases from STATE for
DESCRIPTION the term of this Lease, in exchange for the consideration and upon all of the other terms,
covenants, and conditions set forth in this Lease, the approximately 4,000 square feet of
rentable area designated as the "Water Quality Lab" located within the "OC Water Quality
Lab/Storage" wing of the BBSC Complex, as shown on the Site Plan attached to this Lease
as Exhibit A (the "Premises"). The Parties agree that the Premises represent approximately
32 percent of the rentable area of the BBSC Complex.
TERM
(b) LESSEE shall also have the non-exclusive right to use, in common with others
entitled to such use, the Common Areas (as defined below) of the BBSC Complex.
(c) LESSEE has inspected the plans for the BBSC Complex, the BBSC Buildings
and the Premises and agrees that the square footage of the BBSC Complex, the BBSC
Buildings and the Premises set forth in this Lease is only approximate and the STATE does
not warrant or guarantee the actual area thereof.
2. (a) The term of this Lease shall be for 25 years, commencing on the
Commencement Date, as defined below, and ending on the day before the 25th anniversary
of the Commencement Date, unless renewed for an additional Option Term(s) (as defined
below) or sooner terminated pursuant to any provision of this Lease.
(b) So long as at the time of exercise and at the time the Option Term commences:
(i) LESSEE is not in breach or default under this Lease, (ii) the Project is actively operating
and expected to continue in active operation, and (iii) LESSEE and each subtenant, if any,
has performed and is continuing to perform all of its functions and obligations in
connection with the BBSC Complex, then LESSEE will have the option to renew the Lease
for up to three successive additional terms of five (5) years each (each an "Option Term").
Any such renewal shall be upon the same terms, covenants and conditions of this Lease,
except that the consideration for the Lease during the Option Term will be determined as
set forth below. LESSEE will exercise each option, if at all, by giving STATE written
notice (the "Option Notice") at least 6 months but not more than 12 months before the
expiration of the initial term of this Lease or the then current Option Tenn, as applicable.
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COMMENCEMENT
DATE
CONSIDERATION
USE
AS -IS LEASE
(c) LESSEE and STATE will have 180 days after STATE receives the Option
Notice within which to agree on the consideration for the Option Term based upon factors
which may include (but shall not be limited to) the condition and projected useful life of the
Premises, its fair rental value and the operational and other needs of the BBSC Complex as
identified by the Facilities Group, and any unamortized value of Lessee's contribution to
the construction or improvement of the BBSC Complex. If STATE and LESSEE agree on
such consideration within the 180-day period, they shall amend this Lease accordingly. If
STATE and LESSEE are unable to so agree, this Lease shall not be renewed and shall
instead expire at the end of the then -current term. The option granted to LESSEE is
personal to LESSEE and may not be exercised or assigned, voluntarily or involuntarily, by
or to any person or entity other than the original LESSEE named in this Lease. The second
renewal option cannot be exercised unless the Lease is renewed for the first Option Term.
3. The Commencement Date of this Lease shall be the date upon which LESSEE's
building department issues a certificate of occupancy or temporary certificate of occupancy
for the Premises. However, if the Commencement Date has not occurred by January 1,
2008 then this Lease shall terminate and be of no further force or effect. LESSEE shall
have no right to occupy the Premises prior to the Commencement Date. Upon the
Commencement Date, the temporary Ground Lease (Shellmaker Island) between STATE
and LESSEE dated December 17, 2002 shall terminate.
4. The STATE is entering into this Lease in consideration of the Cooperative
Agreement, the Operating Agreement, the performance by LESSEE and the County of their
respective duties and obligations under the Cooperative Agreement and the Operating
Agreement, and LESSEE's performance of its obligations (including LESSEE's provision
of janitorial services to the BBSC Complex) as set forth in this Lease.
5. The Premises shall be used and occupied only as a County -wide water quality
testing facility operating as part of the Project pursuant to the Cooperative Agreement and
the Operating Agreement, including any amendment(s) to those Agreements (the
"Permitted Use"), and for no other purpose without the prior written consent of STATE,
which STATE may withhold. LESSEE shall not use or permit the use of the Premises in a
manner that is unlawful, creates damage, waste or a nuisance, or that unreasonably annoys
or disturbs occupants of, or causes damage to, neighboring premises or properties.
6. LESSEE hereby accepts the Premises and the BBSC Complex in its AS -IS
condition existing as of the Commencement Date. LESSEE acknowledges that STATE has
not made any representation or warranty as to the present or future suitability of the
Premises for LESSEE's intended use.
LESSEE AS 7. As part of the consideration for this Lease, LESSEE shall be the Facilities
PROJECT Manager for the BBSC Complex as set forth in the Operating Agreement. Nothing in this
FACILITIES Lease shall limit any right of LESSEE to receive any sum payable by the County or UCI to
MANAGER LESSEE as Facilities Manager under the Operating Agreement, including but not limited to
payment or reimbursement of operating expenses of the Project. However, STATE shall
have no obligation to reimburse LESSEE for maintenance (including janitorial) and repair
expenses for the BBSC Complex, as the payment of such costs by LESSEE is also a part of
the consideration for this Lease.
ACCESS
8. Subject to the other terms and conditions of this Lease and applicable legal
restrictions (including, without limitation, Cal. Code Regs., Title 14, Section 630 et seq.),
STATE will provide LESSEE with reasonable access to the BBSC Complex (other than
STATE work and storage areas) 24 hours a day, 365 days per year, as necessary for
LESSEE to perform its obligations under this Lease, the Operating Agreement and the
Cooperative Agreement.
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UTILITIES AND 9. (a) LESSEE agrees to make all necessary arrangements for, and pay the cost of,
SERVICES all gas, electric, water and other utility services associated with the use of the Premises
during the term of this Lease, including but not limited to connection costs. If any such
services are not separately metered to LESSEE, then LESSEE shall pay a reasonable
proportion of the Premises' utility costs of all charges jointly metered with other portions of
the BBSC Complex, the Project or the Property.
(b) LESSEE shall comply with all reasonable conservation measures, if any,
requested by STATE as a result of any "energy crisis" or any curtailment of gas, electricity,
water or other utilities serving the Premises.
(c) Installation, monthly billing, maintenance, repair, removal and replacement of
any telecommunications equipment, lines or systems in or serving the Premises shall be the
sole responsibility of the LESSEE.
JANITORIAL 10. LESSEE shall, at LESSEE's expense, have or hire janitorial services sufficient to
SERVICES maintain the BBSC Complex, including without limitation, the Teaching Lab Wing, the
Administrative Wing, and the public restrooms in a clean and well maintained condition,
and properly dispose of all trash in the central trash collection area (dumpster area) of the
BBSC Complex. The janitorial services for which LESSEE is responsible shall include
those identified in Exhibit B attached to and made a part of this Lease and such other
services, if any, as the Facilities Group may specify from time -to -time.
MAINTENANCE 11. (a) LESSEE shall, at LESSEE's expense, keep the Premises and the other
AND REPAIRS portions of the BBSC Complex (other than STATE work and storage areas) in good order,
condition and repair, including without limitation, the plumbing, pipes, heating, ventilation,
air conditioning, electrical, lighting facilities, fire protection and/or smoke detection
system, fire sprinkler system, fixtures, walls, ceilings, roof, floors, windows and window
frames, gutters, drains and downspouts, doors, and walkways, except to the extent of UCI's
responsibilities (if any) for any of the foregoing under the Ground Lease with STATE dated
December 15, 2004. LESSEE shall not be responsible for maintaining the trails, walkways
or wetland areas of the Reserve or the Property that are outside of the BBSC Complex.
(b) The new condition of the BBSC Complex at the time of the execution of this
Lease leads the Parties to anticipate that Major Capital Improvements (as defined below) to
the BBSC Complex to replace existing items which have worn out (e.g., roofing and siding)
should not be necessary for approximately 15 to 20 years. However, Major Capital
Improvements could become necessary for other reasons, such as to correct defects in the
construction of the BBSC Complex, comply with any governmental law or regulation that
was not applicable to the BBSC Complex at the time it was constructed, or because of total
or partial destruction of the BBSC Complex or the condemnation of a portion of the BBSC
Complex. "Major Capital Improvements" as used in this Lease shall mean improvements
costing more than S30,000 in Current Dollars (as defined in Section 32) and which under
generally accepted accounting principles and practices are properly classified as capital
improvements. The Parties agree that Major Capital Improvements to replace existing
items, such as the roof, siding, or heating or air conditioning systems, shall be planned,
budgeted and paid for as set forth in the Operating Agreement, and are outside the scope of
the maintenance and repair activities that the City is obligated to perform and pay for under
this Lease.
(c) LESSEE shall, at LESSEE's expense, maintain and keep lighted during BBSC
Complex operational hours the lobbies, reception areas, common meeting rooms, corridors,
and common entrances to, and all public restrooms of, the BBSC Complex.
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(d) LESSEE agrees that in no event shall STATE be required to perform any
maintenance, repairs or improvements in, to or on the Premises pursuant to this Lease, and
LESSEE shall keep the Premises in good order, condition and repair at its own expense.
RULES AND 12. STATE shall have the right from time -to -time to adopt, modify, amend and
REGULATIONS enforce reasonable rules and regulations concerning the Common Areas of the Project. The
"Common Areas" shall be defined to include common entrances, lobbies, corridors, public
restrooms, parking areas, loading and unloading areas, trash areas, and walkways. LESSEE
shall abide by and conform to such rules and regulations and shall cause its agents,
employees, contractors, invitees and sublessees to so abide and conform. STATE shall
provide ninety (90) days' notice of changes to these rules and regulations to LESSEE
unless STATE finds that an emergency exists that requires the rules and regulations to be
enacted earlier.
LESSEE'S 13. Except as otherwise provided in this Lease, LESSEE shall, at LESSEE's
COMPLIANCE expense, comply promptly with all applicable laws, statutes, regulations, codes, orders and
ordinances (collectively "Applicable Laws") which relate in any manner to the Premises,
the use of the Premises, or any activities of LESSEE under this Lease. LESSEE shall,
within 10 days after receipt of written request by STATE, provide STATE with copies of
all permits and other documents and information evidencing LESSEE's compliance with
any Applicable Laws specified by STATE. Immediately upon receipt of any threatened or
actual claim, notice, citation, warning, complaint or report pertaining to or involving the
failure or alleged failure of LESSEE or the Premises to comply with any Applicable Laws,
LESSEE shall notify STATE in writing (with copies of any documents involved).
STATE'S RIGHTS 14. If LESSEE fails to perform any of its obligations under this Lease, STATE may
at its option (but shall not be required to) perform such obligations on LESSEE's behalf,
and the cost of such performance together with interest thereon at the maximum rate then
allowable by law shall become due and payable by LESSEE to STATE within 30 days after
STATE's written request for payment.
DEFAULT AND 15. LESSEE shall be in default of this Lease if LESSEE fails to observe or perform
REMEDIES any of the provisions of this Lease or the Operating Agreement on the part of LESSEE to
be kept and performed and if such failure continues for a period of 30 days after receipt of
written notice from STATE to LESSEE. Provided, however, that if the nature of
LESSEE's breach is such that more than 30 days is reasonably required for its cure, then it
shall not be deemed to be a default if LESSEE commences the cure within said 30-day
period and thereafter diligently pursues the cure to completion. In the event of a default by
LESSEE, the STATE shall endeavor to provide County notice of such default at the address
provided in the County Sublease (as defined in Section 17), if the County Sublease is then
in effect. Without limiting the obligations of LESSEE, the County shall have the ability to
cure any such default upon the same terns and conditions as the LESSEE under this
section, and any such cure by the County shall be deemed a cure by the LESSEE. In the
event of a default by LESSEE, the STATE may elect to terminate this Lease by any lawful
means and pursue any other remedy now or hereafter available at law or in equity. In the
event of termination of this Lease, STATE shall have the right to reenter the Premises and
every part thereof and to remove and store at LESSEE's expense all property therefrom and
to repossess and occupy the Premises. In the event STATE terminates this Lease pursuant
to this paragraph, the STATE shall not be required to pay LESSEE any sum or sums
whatsoever.
HOLDING OVER
16. Any holding over after the expiration of the term of this Lease or any renewal
period with the consent of the STATE, express or implied, shall be deemed to be a tenancy
only from month -to -month. Any such month -to -month tenancy shall be upon and subject to
all the terms and conditions of this Lease insofar as applicable.
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ASSIGNMENT AND
SUBLETTING
NOTICES
17. This Lease is made solely in furtherance of the cooperative Project described in
the Cooperative Agreement and the Operating Agreement. LESSEE shall not assign this
Lease in any event and shall not sublease the Premises or any part thereof and will not
permit the use of the Premises by anyone other than the LESSEE. Provided, however, that
LESSEE may sublease the Premises to the County for a term not to exceed the term of this
Lease, pursuant to a sublease in form and substance reasonably acceptable to the STATE
("County Sublease"), and upon the express condition that such sublease shall terminate if
the County at any time withdraws from the Project or fails or ceases to perform the Project
functions for which the County is responsible under the Cooperative Agreement, the
Operating Agreement or the County Sublease.
Regardless of STATE's consent, no subletting or assignment shall release LESSEE of
LESSEE's obligation or alter the primary duty of LESSEE to observe and perform all of the
obligations of LESSEE under this Lease. Consent to one assignment or subletting shall not
be deemed consent to any subsequent assignment or subletting. In the event of a breach by
any assignee or successor of LESSEE, in the performance of any of the terms of this Lease,
STATE may proceed directly against LESSEE without the necessity of exhausting remedies
against said assignee or successor.
18. All notices, requests, consents, and other communications (each a "Notice")
required, provided for or given under this Lease shall be in writing, and (a) personally
delivered (including by means of professional messenger service), (b) sent by recognized
overnight courier, (c) deposited in the United States mail, postage prepaid, return receipt
requested, or (d) transmitted by receipt -confirmed facsimile, to the intended recipient at the
address(es) or facsimile number(s) set forth below.
Notice shall be deemed received upon the earlier of (i) if personally delivered or sent
by overnight courier, the date of delivery, (ii) if mailed as provided above, on the date of
receipt or rejection as shown on the return receipt, or (iii) if transmitted by facsimile, when
received by the other party if received Monday through Friday between 9:00 a.m. and
5:00 p.m. Pacific Time, so long as such day is not a state or federal holiday, and otherwise
on the next business day. A copy of any Notice transmitted by facsimile shall be mailed to
the intended recipient on the same date as the facsimile transmission.
Notices shall be addressed as follows:
To the LESSEE:
City of Newport Beach
City Manager
3300 Newport Boulevard
Newport Beach, CA 92658-8915
Telephone: (949) 644-3000
Facsimile: (949) 644-3020
With a Copy to:
City of Newport Beach
City Attorney
3300 Newport Boulevard
Newport Beach, CA 92658-8915
Telephone: (949) 644-3131
Facsimile: (949) 644-3139
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TENANT
IMPROVEMENTS
ALTERATIONS
AND
IMPROVEMENTS
To the STATE:
Depathuent of Fish and Game
South Coast Region
Regional Manager
4949 Viewridge Avenue
San Diego, CA 92123
Telephone: (858)467-4201
Facsimile: (858) 467-4239
With a Copv to:
Depa tment of Fish and Game
Office of the General Counsel
General Counsel
1416 Ninth Street, 12`h Floor
Sacramento, CA 95814
Telephone: (916) 654-3821
Facsimile: (916) 654-3805
Notice of change of address or facsimile number shall be given by written notice in the
manner described in this section.
19. Tenant improvements to the Premises shall be the responsibility of LESSEE and
shall be completed by November 1, 2008 at no cost to STATE, pursuant to the Work Letter
Agreement attached to this Lease as Exhibit C and incorporated herein by this reference.
20. (a) Except as provided in Section 19, LESSEE shall not, without the prior written
consent of STATE, make any alterations, improvements, additions or Utility Installations
(as defined below) in, on or about the Premises, except for non-structural interior
alterations not visible from the exterior of the Premises and not exceeding $10,000 in total
costs during any 12-month period or $100,000 in cumulative costs over the term of this
Lease.
(b) Except as otherwise provided in Section 20 (a), above, LESSEE shall make no
change or alteration (including Utility Installation) to any portion(s) of the Premises, the
BBSC Buildings, or the BBSC Complex without the prior written consent of STATE. No
such alterations or improvements shall be permitted to begin until the STATE has approved
the complete plans and specifications for the project, the plans to be prepared by an
architect licensed to practice architecture in the State of California. LESSEE shall submit
the complete plans and specifications for the project to the STATE for review and approval,
which approval shall not be unreasonably withheld. STATE shall respond with its approval
or denial within 60 days of submittal, unless a longer period is reasonably necessary for the
STATE to comply with its obligations under the California Environmental Quality Act
(CEQA) with respect to the proposed project. As used in this Lease, "Utility Installation"
shall mean carpeting, window coverings, air lines, power panels, electrical distribution
systems, lighting fixtures, space heaters, air conditioning and plumbing. STATE may
require that LESSEE remove any or all alterations, improvements, additions or Utility
Installations to the Premises at the expiration of the term and restore the Premises to their
prior condition. Should LESSEE make any alterations, improvements, additions or Utility
Installations for which the consent of STATE is required without first obtaining such
consent, STATE may require LESSEE to immediately remove any or all of the same and
restore the BBSC Complex, the BBSC Buildings and the Premises to their prior condition.
7
SIGNAGE
(c) Any alterations, improvements, additions or Utility Installations that LESSEE
shall desire to make and which require the consent of STATE shall be presented to STATE
in writing with proposed detailed plans. If STATE shall give its consent, the consent shall
be deemed conditioned upon LESSEE acquiring all proper permits to do so from
appropriate governmental agencies, the furnishing of a copy of each permit to STATE
prior to the commencement of the work, and LESSEE's compliance with all terms and
conditions of such permits in a prompt and expeditious manner.
(d) Unless STATE requires their removal under Section 20 (b), all alterations,
improvements, additions and Utility Installations which may be made on the Premises shall
at the expiration or termination of the term become the property of STATE and remain
upon and be surrendered with the Premises. Despite the contrary provisions of Section
20 (b), LESSEE's machinery and equipment, other than that which is affixed to the
Premises so that it cannot be removed without material damage to the Premises, shall
remain the property of LESSEE and may be removed by LESSEE subject to the provisions
of Section 24.
21. LESSEE shall not place any sign upon the Premises, the BBSC Buildings or the
Project without the prior written consent of STATE. STATE hereby agrees that LESSEE
may develop and submit for approval kiosk -type signage and monument -style recognition
signage for the Project and Parking Lot. LESSEE shall submit plans for any proposed
signage to the STATE for review and approval, which approval shall not be unreasonably
withheld. STATE shall respond with its approval or denial within 60 days of submittal.
RIGHT TO ENTER 22. STATE shall have the right to enter the Premises at any time, in the case of an
emergency, and otherwise at reasonable times with reasonable advance verbal or written
notice to LESSEE (except in case of an emergency, when advance notice shall be
unnecessary), for the purpose of inspecting the condition of the Premises, verifying
compliance with this Lease, performing obligations of LESSEE which LESSEE fails to
perform in accordance with this Lease, or any other lawful STATE purpose.
SECURITY 23. Neither STATE nor LESSEE shall have any obligation to provide guard service or
MEASURES any other security measures to the BBSC Complex. LESSEE shall be responsible for the
protection of the Premises, LESSEE, its agents, employees, contractors, invitees, sublessees
and their property from the acts of third parties. In addition, should the Facilities Group
determine that guard service or other security measures are necessary or appropriate, then
LESSEE shall provide such guard service or security measures.
REMOVAL OF 24. All articles of personal property and all business and trade fixtures, machinery and
PROPERTY equipment owned and installed by LESSEE, at LESSEE's expense, on the Premises, shall
be and remain the property of LESSEE, and may be removed by LESSEE at any time
during the term of the Lease, provided that any and all wires, conduits, or pipe leading to
any fixtures may be left in place on said Premises at the option of LESSEE, provided the
same shall be insulated, plugged or otherwise treated in accordance with applicable
standard practices and Applicable Laws. Any such property of LESSEE not removed on or
before the last day of the term or any earlier termination of this Lease shall be deemed to
have been abandoned by LESSEE and may be disposed of or retained by STATE as
STATE may choose.
SURRENDER
25. On the last day of the term or any earlier termination of this Lease, LESSEE shall
surrender the Premises to STATE, with any appurtenances or improvements therein, clean
and free of debris, in good operating order, condition and repair, reasonable use and wear
thereof excepted. LESSEE shall remove any and al] personal property, trade fixtures,
machinery and equipment and repair any damage to the Premises, the BBSC Buildings or
the BBSC Complex occasioned by the installation or removal of those items.
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COMPLIANCE
WITH LAWS;
AMERICANS WITH
DISABILITIES ACT
DEBT LIABILITY
DISCLAIMER
RELATIONSHIP OF
PARTIES
TAXES AND
.ASSESSMENTS
HOLD
HARMLESS AND
INDEMNIFICA-
TION
ABANDONMENT
OF' PREMISES
INSURANCE
26. LESSEE shall, at its sole cost and expense, comply promptly with all Applicable
Laws, covenants and restrictions of record, and requirements in effect during the Term,
pertaining to the Premises or LESSEE's use of or activities in, on, or about the BBSC
Buildings and the Project. Since compliance with the Americans with Disabilities Act
("ADA") is dependent upon the specific use of the Premises, STATE specifically disclaims
any representation or warranty as to whether or not the Premises comply with ADA or any
similar legislation. If the use of the Premises requires modifications or additions to the
Premises in order to comply with ADA, LESSEE shall perform any such necessary work at
LESSEE's expense.
27. STATE will not be liable for any debts, claims, liens, or encumbrances that arise
from the operation of this Lease.
28. LESSEE and any and all agents, employees, contractors, invitees and sublessees of'
LESSEE shall act in an independent capacity and not as officers, agents or employees of
STATE. The relationship of LESSEE and STATE is that of tenant and landlord. Nothing
in this Lease is intended, or shall be construed or interpreted, to create a partnership or
relationship other than that of tenant and landlord between LESSEE and STATE.
29. LESSEE agrees to pay all lawful taxes, assessments or charges which at any time
may be levied upon this Lease or any interest of LESSEE in the Premises. STATE
specifically calls to the attention of LESSEE the fact that this Lease may create a
possessory interest subject to property taxation and LESSEE may be subject to the payment
of property taxes levied on such interest. LESSEE alone shall pay any such tax.
30. LESSEE shall indemnify, defend and hold harmless the STATE, its officers,
directors, employees and agents, from and against any and all liability, losses, costs,
expenses (including attorneys' fees), claims and damages (collectively, "Claims") by reason
of any injury (including death) to any person or persons, including LESSEE and any
subtenant(s), or loss of or damage to property of any kind whatsoever and to whomsoever
belonging, including LESSEE and any subtenant(s), arising out of or in connection with
this Lease, the use or occupancy of the Premises, or LESSEE's presence or activities on or
about the BBSC Complex, the BBSC Buildings or the Premises, except those arising out of
the sole negligence or willful misconduct of the STATE.
To the extent allowed by law, STATE shall indemnify, defend and hold harmless
LESSEE, its officers, directors, employees and agents, from and against any and all Claims
against LESSEE arising out of the sole negligence or willful misconduct of STATE in
connection with, or arising out of this Lease or the presence or activities of officers or
employees of the STATE on or about the BBSC Complex, the BBSC Buildings or the
Premises.
31. If the LESSEE abandons, vacates or surrenders the Premises, or is dispossessed by
process of law, any personal property, trade fixtures, machinery and equipment belonging
to the LESSEE and left on the Premises shall be deemed to be abandoned, at the option of
the STATE. Failure by LESSEE to occupy and/or use the Premises for a period of thirty
(30) days or longer shall constitute abandonment by LESSEE.
32. LESSEE, at its sole cost and expense, shall insure its activities in connection with
this Lease and obtain and keep in force at least the following insurance:
(a) Commercial General Liability insurance protecting LESSEE and STATE
against claims for bodily injury, personal injury and property damage based upon or arising
out of the use, occupancy, maintenance or improvement of the Premises or the BBSC
Complex. Such insurance shall be on an occurrence basis providing single limit coverage
in an amount not Less than Two Million Dollars ($2,000,000) per occurrence. The policy
shall not contain any intra-insured exclusions as between insured persons or organizations
but shall include "contractual liability" coverage for the performance of LESSEE'S
9
indemnity obligations under this Lease.
(b) Property, fire and extended coverage insurance covering all risks of direct
physical loss or damage to the Premises, including the perils of flood and earthquake,
including coverage for demolition and debris removal and the enforcement of Applicable
Laws requiring the upgrading, demolition, reconstruction or replacement of any portion of
the Premises as the result of a covered loss. Such insurance shall be in an amount equal to
the full insurable replacement cost of the Premises, as the same shall exist from time -to -
time, and shall contain an agreed valuation provision in lieu of any coinsurance clause and
inflation guard protection causing an increase in the annual property insurance coverage
amount by a factor of not less than the adjusted Index (as defined below).
(c) Automobile liability insurance covering owned, non -owned, hired or
scheduled vehicles with a combined single limit of not less than Two Million Dollars
($2,000,000) per occurrence.
(d) Worker's compensation and/or employer's liability insurance in form and
amount covering LESSEE's full liability as required under federal and state law, if
applicable.
Each policy of insurance shall be issued by a reputable insurer admitted to transact
business in the State of California and maintaining during the policy term a General
Policyholder's Rating of at least A- V II, as set forth in the most current issue of "Best's
Insurance Guide". All sums set forth in this Section 32 shall be maintained in Current
Dollars (as defined below). LESSEE's obligation to carry the insurance required by this
Lease may be brought within the coverage of a so-called blanket policy or policies of
insurance carried and maintained by LESSEE, so long as the coverage afforded to STATE
will not be reduced or diminished by reason of the use of such policy or policies and al]
requirements set forth in this Section 32 are otherwise satisfied.
LESSEE shall, prior to the Commencement Date, deliver to STATE copies, or other
evidence acceptable to STATE, of the existence and amounts of the required insurance.
The policies referred to under subsections (a), (b) and (c) above shall name STATE, its
directors, officers, employees and agents as additional insureds by endorsement. No such
policy shall be cancelable, non-renewable, or subject to material modification except after
at least 30 days prior written notice by the insurer to STATE. LESSEE shall, at least 30
days prior to the expiration of any such policy, deliver to STATE evidence of renewal or a
new policy of insurance which meets the requirements of this Lease.
"Current Dollars" as used in this Lease shall mean a dollar amount calculated by
multiplying a dollar amount specified in this Lease by a fraction, the numerator of which is
the Index (as defined below) last published prior to the anniversary of the Commencement
Date and the denominator of which is the Index last published prior to the Commencement
Date. "Index" as used herein shall mean the Los Angeles/Riverside/Orange County
Metropolitan Area Consumer Price Index (all items) for All Urban Consumers (Base Year
1982 — 1984 = 100) as published by the United States Department of Labor, Bureau of
Labor Statistics.
STATE shall not be liable for the payment of any premiums or assessments on the
insurance coverage required by this Section 32. LESSEE agrees that the insurance herein
provided for shall be in effect at all times during the term of this Lease, all renewals
thereof, and any holdover periods.
The proceeds from the insurance referred to under subsection (b) above shall be applied
toward demolition, repair and reconstruction of the Premises or the BBSC Complex, as
applicable. All insurance carried by LESSEE shall be primary to and not contributory with
insurance carried by STATE, if any. STATE makes no representation or warranty that the
10
limits or forms of coverage of insurance specified in this Lease are adequate to cover
LESSEE or its property or the operations or obligations of LESSEE under this Lease. The
limits of insurance carried by LESSEE or required under this Lease shall not limit the
liability of LESSEE or relieve LESSEE of any obligation under this Lease.
Without affecting any other rights or remedies, LESSEE releases STATE and waives
LESSEE's entire right to recover damages against the STATE for loss of or damage to
property arising out of or incident to the perils required to be insured against in this Lease.
The effect of such release and waiver is not limited by the amount of insurance carried or
required, or by any deductible amounts applicable thereto LESSEE agrees to have its
property damage insurance carrier waive any right to subrogation that it may have against
STATE, so long as the insurance coverage is not invalidated by such waiver.
STATE shall not be liable for injury to LESSEE or damage to the property of LESSEE,
LESSEE's employees, agents, invitees, subtenants, contractors, or any other person in or
about the Premises, nor shall STATE be liable for any injury to LESSEE's employees,
agents, invitees, subtenants or contractors, as a result of any condition of the Premises or
the BBSC Complex, from any cause, whether such damage or injury is caused by or results
from conditions arising in the Premises, any other portion of the BBSC Complex, or other
sources or places. Further, STA IL shall not be liable for any damages arising from any act
or neglect of any other tenant or occupant of the Premises, the BBSC Complex, or the
Property, including but not limited to UCI.
NO STATE 33. STATE shall not be required to (and anticipates that it shall not) keep the
INSURANCE Premises, the BBSC Complex or any other portion of the Project or the Property insured
(including, without limitation, against fire, flood, earthquake or other casualty), and
LESSEE will make no claim of any nature against STATE by reason of any damage to the
Premises or the property of LESSEE in the event of damage or destruction by fire or other
cause, arising other than from or out of the sole negligence or willful misconduct of agents
or employees of the STATE in the course of their employment.
DAMAGE OR 34. (a) If the Premises are damaged by a risk required to be covered by the insurance
DESTRUCTION described in this Lease, then LESSEE shall repair or restore such damage as soon as
reasonably possible at LESSEE's expense and this Lease shall remain in full force and
effect.
(b) If the Premises are damaged by a risk not required to be covered by the
insurance described in this Lease, then LESSEE shall have the option to either (i) repair or
restore such damage as soon as reasonably possible at LESSEE's expense, this Lease
continuing in full force and effect, or (ii) give notice to STATE at any time within 45 days
after the date of such damage terminating this Lease as of the date of, or such later date as
LESSEE may specify in, such notice. If notice of termination is given, STATE shall have
the right within 45 days after the receipt of such notice to give written notice to LESSEE of
STATE's election to repair such damage, in which event this Lease shall continue in full
force and effect. If STATE does not elect to repair, this Lease shall expire and any interest
of LESSEE in the Premises shall terminate on the date of, or such later date specified in,
the notice of termination by LESSEE.
(c) If in STATE's judgment the Premises cannot be restored as required herein
under Applicable Laws, notwithstanding the availability of insurance proceeds, this Lease
shall be terminated effective as of the date of the damage.
(d) Any repair or restoration by LESSEE pursuant to subsection (a) or (b) above
shall be commenced as soon as reasonably possible after the date of damage and prosecuted
diligently to completion at the earliest possible date. STATE shall not be required to carry
insurance of any kind on LESSEE'S property and shall not be required to repair any injury
or damage thereto by fire, flood, earthquake or other causes, or to make any restoration or
11
• •
replacement of any paneling, decorations, partitions, ceilings, floor coverings, office
fixtures, machinery, equipment or any other improvements or property installed in the
Premises by or for LESSEE, and in case of damage LESSEE, shall be required to restore or
replace the same at LESSEE's expense. LESSEE shall have no claim against STATE for
any loss suffered by reason of any such damage, destruction, repair or restoration.
(e) LESSEE shall have no right to terminate this Lease as a result of any
statutory provisions now or hereafter in effect pertaining to damage or destruction of the
Premises or the BBSC Complex, except as expressly provided herein, and LESSEE
expressly waives the provisions of California Civil Code Section 1932(2) and 1933(4) with
respect to any damage or destruction of the Premises.
CONDEMNATION 35. If the Premises or any portion thereof are taken under the power of eminent
domain or sold under the threat of the exercise of such power (all of which are referred to
in this Lease as "Condemnation"), then this Lease shall terminate as to the part so taken as
of the date the condemning authority takes title or possession, whichever first occurs. Any
award for the taking of all or any part of the Premises under the power of eminent domain
or any payment made under the threat of the exercise of such power shall be the property of
STATE, whether such award or payment shall be made as compensation for diminution in
value of the leasehold or the taking of the fee, or as severance damages. Provided,
however, that LESSEE shall be entitled to any award or payment for loss of or damage to
LESSEE's trade fixtures and removable personal property. If this Lease remains in effect
after such Condenmation then STATE shall, to the extent of severance damages it receives
in connection with such Condemnation, repair or cause to be repaired any damage to the
Premises caused by the Condemnation except to the extent that LESSEE has been
reimbursed therefor by the condemning authority. LESSEE shall pay any amount in excess
of such severance damages required to complete the repair.
HAZARDOUS 36. The term "Hazardous Substance" as used in this Lease shall mean any product,
SUBSTANCES substance or waste the presence, use, manufacture, disposal, transportation or release
(either by itself or in combination with other materials) is either: (a) potentially injurious to
public health, safety or welfare, the environment or the Premises; (b) regulated or
monitored by any governmental authority; or (c) a basis for potential liability of STATE
under any applicable statute or common law theory. Hazardous Substance includes,
without limitation, hydrocarbons, petroleum, gasoline, and/or crude oil or any products, by-
products or fractions thereof.
LESSEE shall comply with all Applicable Laws, federal, state and local, pertaining to
the presence, generation, possession, storage, use, disposal, transportation or release of any
Hazardous Substance in, on or from the Premises, the BBSC Buildings or the Project. If
LESSEE knows or has reasonable cause to believe that a Hazardous Substance has come to
be located in, on, under or about the Premises, the BBSC Buildings or the Project, other
than in full compliance with Applicable Law, LESSEE shall immediately give verbal and
written notice of such fact to STATE, and provide STATE with a copy of any report,
notice, claim or other information which LESSEE has concerning such Hazardous
Substance. Verbal notice to STATE pursuant to this Section 36 may be given to any on -site
employee of STATE at the Back Bay Science Center.
LESSEE shall not cause or permit any Hazardous Substance to be spilled or released
in, on, under or about the Premises, the BBSC Buildings or the Project (including through
the plumbing or sanitary sewer system) and shall promptly, at LESSEE's expense, comply
with all Applicable Laws and take all investigatory and/or remedial action reasonably
recommended for the cleanup of any contamination and for the maintenance, security
and/or monitoring of the Premises, the BBSC Buildings, the Property, or other property in
the vicinity of the Premises, that was caused or materially contributed to by LESSEE or
involving any Hazardous Substance brought onto the Property during the term of this
Lease, by or for LESSEE or any third party acting with the consent, or under the direction
12
• •
or control, of LESSEE.
LESSEE shall indemnify, defend, and hold harmless STATE, its officers, directors,
agents, and employees from and against any and all claims, liabilities, losses, costs,
expenses, damages, judgments, fines, and penalties arising out of or involving any
Hazardous Substance brought onto the Property or any portion thereof (including the
Premises or the BBSC Buildings) by or for LESSEE or any third party acting with the
consent, or under the direction or control, of LESSEE. The obligations of LESSEE shall
include, but not be limited to, the effects of any contamination or injury to person, property
or the environment created or suffered by LESSEE, and the cost of investigation, removal,
remediation, restoration and/or abatement, and shall survive the expiration or termination of
this Lease.
EASEMENTS, 37. This Lease is subject to all existing covenants, conditions, restrictions, contracts,
RIGHTS AND liens, encumbrances, leases, licenses, easements, rights of way and other interests. STATE
DEDICATIONS reserves the right to convey, lease or encumber the Project, in whole or in part, and to grant
such additional easements, rights and dedications as the STATE may deem necessary or
desirable, so long as they do not unreasonably interfere with the rights of LESSEE under
this Lease.
NON- 38. In the performance of this Lease, the LESSEE shall not discriminate, harass, or
DISCRIMINATION allow harassment against any employee or applicant for employment because of race,
religious creed, color, national origin, ancestry, physical disability (including HIV and
AIDS), mental disability, medical condition, age (over 40), marital status, sex, sexual
orientation, or use of family care leave. LESSEE shall insure that the evaluation and
treatment of its employees and applicants for employment are free from such discrimination
and harassment. Such action shall include, but not be limited to, the following:
employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff
or termination; rates of pay or other forms of compensation; and selection for training,
including apprenticeship.
FORCE MAJEURE
Al ITHORTTY
LESSEE shall comply with the provisions of the Fair Employment and Housing Act
(Government Code Section 12990 (a-f) el seq.) and the applicable regulations promulgated
thereunder (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable
regulations of the Fair Employment and Housing Commission implementing Government
Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California
Code of Regulations, are incorporated into this Lease by reference and make a part hereof
as if set forth in full. LESSEE shall give written notice of its obligations under this clause
to any labor organizations with which LESSEE has a collective bargaining or other
agreement. Further, LESSEE shall post in conspicuous places available to employees and
applicants for employment, notice setting forth the provisions of this section.
39. If either LESSEE or STATE shall be delayed or prevented from the performance
of any act required hereunder by reason of acts of God, govemmental restrictions,
regulations or controls (except those reasonably foreseeable in connection with the uses and
activities contemplated by this Lease) or other cause without fault and beyond the control
of the party obligated (except financial inability), performance of 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. Nothing in this clause shall
excuse LESSEE from prompt payment of any sums, taxes, insurance or any other charge
required of LESSEE, except as may be expressly provided in this Lease.
40. Each individual executing this Lease on behalf of LESSEE represents and
warrants that he/she is duly authorized to execute and deliver this Lease on behalf of
LESSEE in accordance with a duly adopted resolution of the City Council of LESSEE, and
that this Lease is binding upon LESSEE in accordance with its terms. LESSEE shall,
within 30 days after execution of this Lease, deliver to the STATE a certified copy of
13
NO LIENS
AMENDMENTS
SMOKING
RESTRICTIONS
SECTION
HEADINGS;
INTERPRETATION
SUCCESSORS
BOUND
TERMINATION;
MERGER
REMEDIES
CUMULATIVE
TIME OF ESSENCE
WAIVER
resolution of LESSEE'S City Council authorizing or ratifying the execution of this Lease.
41. LESSEE shall pay when due all claims for labor or materials furnished or alleged
to have been furnished to or for LESSEE at or for use in the Premises, the BBSC Buildings
or the Project. LESSEE shall keep the Premises, the BBSC Buildings, the Project and the
Property free and clear of all liens resulting from work done by or for LESSEE.
42. This Lease may be altered, changed, or amended only by written agreement
signed by the Parties.
43. Smoking is not allowed in or upon the Project. LESSEE will enforce the
smoking prohibition as to LESSEE's employees, agents, contractors, invitees and
sublessees, inside the Premises and Common Areas, and within 20 feet of a main exit,
entrance, or operable window of the BBSC Buildings.
44. All captions and section headings contained in this Lease are for convenience of
reference only and are not intended to define or limit the scope of any term or provision of
this Lease. This Lease shall not be construed as if prepared by one of the Parties, but rather
according to its fair meaning as a whole, as if both Parties had prepared it.
45. The terms and provisions of this Lease shall extend to and be binding upon and
inure to the benefit of the Parties and their respective heirs, executors, administrators,
successors, and assigns, subject to the limitations on assignment and subletting set forth
above.
46. The voluntary or other surrender of this Lease by LESSEE, the mutual
termination or cancellation hereof, or a termination of this Lease by STATE for a default by
LESSEE shall automatically terminate any sublease or lesser estate in the Premises;
provided, however, that STATE may elect to continue any one or all existing subtenancies.
STATE's failure within 30 days following such event to elect to the contrary by written
notice to the holder of any such lesser interest shall constitute STATE's election to have
such event constitute the termination of such interest.
47. No remedy or election under this Lease shall be deemed exclusive but shall,
wherever possible, be cumulative with all other remedies at law or in equity.
48. Time is of the essence of each and all of the provisions of this Lease.
49. If the STATE waives the performance of any term, covenant or condition
contained in this Lease, such waiver shall not be deemed to be a waiver of any other
provision of this Lease or of any subsequent breach of the same or any other term, covenant
or condition. The acceptance of performance by STATE shall not constitute a waiver of
any preceding breach by LESSEE of any term, covenant or condition of this Lease
regardless of STATE's knowledge of the breach. Failure by STATE to enforce any term,
covenant or condition of this Lease for any length of time shall not be deemed to waive or
decrease the STATE's right to insist thereafter upon strict performance by LESSEE.
Waiver of any term, covenant or condition contained in this Lease affecting the STATE
may only be made by a written Notice signed by an authorized STATE representative.
sevERABILITv 50. If any provision of this Lease is determined by a court of competent jurisdiction
to be invalid, illegal or unenforceable, this determination shall not affect any other
provision of this Lease, and all other provisions shall remain in full force and effect.
CONFLICT 51. Any conflict between this Lease and the Operating Agreement shall be controlled
by this Lease
14
• •
ANTI -DEFICIENCY
LIQUEFACTION;
SEISMIC
HAZARDS;
ASSUMPTION OF
RISK
ENTIRE
AGREEMENT
Any duty of STATE to carry out obligations under this Lease that require
STATE to expend funds shall be subject to the availability of appropriated funds
therefor.
53. (a) LESSEE has been informed and acknowledges that the BBSC Complex
is on an island, and is subject to hazards from liquefaction. The BBSC Buildings are
designed to move freely in an earthquake. LESSEE assumes the risks of injury and
damage from earthquake, including liquefaction and movement, in connection with
this Lease, the Operating Agreement and the Cooperative Agreement. LESSEE
unconditionally waives any claim of damage or liability against the STATE, its
officers, agents and employees for injury or damage from such hazards. LESSEE
further indemnifies and holds harmless the STATE, its officers, agents and employees
against any and all liability, claims, demands, damages, costs (including costs and fees
incurred in defense of such claims) expenses, and amounts paid in settlement arising
from any injury or damage to any persons or property in or about the Premises due to
such hazards.
(b) LESSEE is encouraged to plan and prepare for earthquakes and to take
appropriate steps to secure and anchor furniture, equipment, machines, containers
and other objects in the Premises. The California Seismic Safety Commission
publication, The Commercial Property Owner's Guide to Earthquake Safety (available
on the Internet at http://www.seismic.ca.gov/pub/CSSC 1998-01 COG.pdf) contains
information and recommendations regarding pre -earthquake planning. The Guide
suggests precautions such as, but not limited to, the following: writing down
evacuation, fire response, search -and rescue, and first aid procedures and training
employees to follow them; listing and acquiring basic emergency supplies, including
tire extinguishers, crescent and pipe wrenches to turn off gas and water supplies, first -
aid kits and handbooks, flashlights with extra bulbs and batteries, and portable radios
with extra batteries; setting up an ongoing program to reduce earthquake weaknesses
in the Premises; and training employees by holding drills, establishing responsibilities
for carrying out the emergency response plan and teaching them to act immediately to
put out fires.
LESSEE INITIALS LESSEE INITIALS
54. This Lease, together with its exhibits, and the Operating Agreement entered into
concurrently with this Lease, together contain all agreements of the Parties and supersedes
any prior negotiations, agreements and understandings with respect to any matter
mentioned in this Lease or the Operating Agreement.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
I5
EXHIBITS 55. The following exhibits are attached to this Lease and incorporated herein by this
reference:
Exhibit A — Site Plan
Exhibit B — Janitorial Services
Exhibit C — Tenant Improvement Work Letter, with Attachment 1
IN WITNESS WHEREOF, this Lease has been executed by the Parties as of the date of the last signature
below.
STATE: LESSEE:
State of Californi., a d through its
Department of Fi td ame
City of ; wp�,.. h, a charter City
By By
Name ' - V i ) r E-7-y1 ' Name
Title 1`1 Cifin _43 a 'tale r Title Mayor
Date: Odv b i-r" 31 , 2007
Date: October 29
Approved as to form:
Robin Clauson, City Attorney
Attest:
, 2007
j614%b)2
LaVonne Harkless, City Clerk
16
Exhibit A
Site Plan of BBSC
Exhibit A
sHelkmaMn Mani aea•
ArreJy
Q P gecl Area
BBSC Complex
UCI Crew Lipase
C 1 amain Common Ilea
Demonstration Ma sit
a,w(e OIM_Itesn
HBSC &Memos
A anises
UCI &ahN�q
•
Exhibit B
Janitorial Services
Janitorial services shall be provided to the BBSC Complex by LESSEE. Services are:
1—Restroom maintenance:
Nightly Monday -Saturday (includescleaning and disinfection of fixtures and floor, removal of
trash, restocking of soap and paper products).
Available within 4 hours for emergency cleaning.
2 — Trash collection:
Inside waste cans to be emptied to the dumpsters by staff within each individual building.
1 x a week commercial dumping of outside trash dumpsters.
3x a week dumping of outside trash cans (cans placed around building and on parking lot).
3 — Floor cleaning:
C .and.tite_fioocs in the Teaching Lab swept or vacuumed weekly.
Cement and tile floors in the Teaching Lab washed 2x a year or more frequently if needed.
Carpets in the Administrative Wing vacuumed 2x a week.
Carpets in the Administrative Wing shampooed 2x a year.
4 — Window washing:
All windows in Teaching Lab and Administrative Wing washed inside and out 2x a year.
5 — Outside Common Areas and Parking Lot (subject to the limitations in Paragraph #11(B)
in the Lease Agreement):
Trex decking, gravel areas, and entryway painted concrete swept or hosed down as needed.
Steam cleaning of Trex decking and concrete 2x a year or more frequently as needed.
Restriping of parking lot as needed.
Repair of kiosks and signage as needed.
Repair of storm drain catch basin and retention facility as needed.
6 - Compliance with Condition #8 of the Coastal Development Permit for the Project (CDP
No. 5-03-451):
•. Sweep the parking lot weekly (#8-2-B)
• When physically cleaning the parking lot, avoid using detergents or cleaning components that
have phosphates. The components must be biodegradable and non -toxic to marine wildlife.
Amounts used shall be minimized to the maximum extent practicable. No fluids containing
ammonia, sodium hypochlorite, chlorinated solvents, petroleum distillates, or lye shall be
used (#8-2-C).
• Avoid spraying down or washing down the parking lot unless the water used is directed
through a filtered drain, the sanitary sewer system, or recovered into a tank that later is
dumped into the sanitary sewer (#8-2-D).
• Operate all Best Management Practices (BMP's) associated with the Parking Lot for the life
of the project, and, at a minimum, inspect, clean out, and where necessary, repair structural
BMP's (such as the filtration system): (1)prior to October 15'h each year; (2) during each
month between October 151h and April 15m of each year; and (3) at least twice during the dry
season (#8-2-E).
• Dispose of debris and other water pollutants removed from Structural BMP's during clean -
outs in a proper manner (#8-2-F)
• Maintain the drainage system and associated structures and BMP's in accordance with
manufacturer's specifications (#8-2-G).
7 — Native -Landscaped Berms:
Weeding (quarterly), trash removal as needed, trimming of plants (quarterly), monitoring and
repair of any irrigation systems as needed.
EXHIBIT C
Tenant Improvement Work Letter
This Tenant Improvement Work Letter ("Work Letter") is incorporated by reference into the
Standard Form Lease Agreement ("Lease") dated as of , 2007, between the State of
California, acting by and through its Department of' Fish and Game (the "State") and the City of
Newport Beach, a charter City and Municipal Corporation ("Lessee"), covering Premises within the
BBSC Complex on Shellmaker Island within the State's Upper Newport Bay Ecological Reserve in
Newport Beach, California.
1. Definitions. Initial -capitalized terms used in this Work Letter and not otherwise defined herein
shall be defined as set forth in the Lease.
2. Lessee's Work. Lessee, at Lessee's sole cost and expense, shall construct and complete (or
cause to be constructed and completed) all leasehold improvements required for Lessee's use and
occupancy of the Premises (the "Lessee's Work") in accordance with this Work Letter. This Work
Letter and the Lease are intended to be consistent with one another and shall be interpreted as such to
the fullest extent possible. However, if any provision of this Work Letter as so interpreted should
conflict with any provision of the Lease, this Work Letter shall govern the rights and obligations of the
State and Lessee regarding the construction of Lessee's Work.
3. Plans. Within 30 days after the date the Lease has been fully executed by Lessee and the State,
Lessee shall deliver to the State for its approval proposed plans, drawings and specifications for the
completion of the Premises including, without limitation, Lessee's proposed layout, finish and
decoration and any communications or special utility facilities for the Premises ("Plans"). The State
shall not unreasonably withhold its approval of the Plans. A copy of the Plans, as approved, shall be
dated and initialed by both Lessee and the State.
4. Required Approvals. Lessee shall obtain, at Lessee's sole cost, all necessary approvals of the
Plans from governmental authorities with jurisdiction, and all permits, licenses and inspections
required in connection with the construction of Lessee's Work (such approvals, permits, licenses and
inspections are individually and collectively referred to as the "Required Approvals"). The Required
Approvals shall include, without limitation, requirements of the State Fire Marshal and the
Handicapped Compliance Officer of the Department of General Services, Division of the State
Architect.
5. Quality of Work. Lessee shall cause Lessee's Work to be constructed in a good and
workmanlike manner with new materials of good quality in accordance with the approved Plans,
Applicable Laws, and all Required Approvals. Lessee shall not make any changes or substitution of
materials without first obtaining the written approval of the State Lessee's Work shall not (a) affect
the structural aspects of the Premises, (b) cause substantial modification to any of the building systems
in or serving the BBSC Complex, or (c) be visible from or alter the exterior appearance of the
Premises.
6. Pre -Construction Notice. Lessee shall notify the State at least 10 working days before the date
Lessee intends to commence Lessee's Work of the date on which construction will begin, the
construction schedule, and the names, addresses, and contractor's license numbers of each contractor
and subcontractor that Lessee intends to engage for the Lessee's Work. The State shall have the right
to approve the contractors and subcontractors selected by Lessee, and only contractors and
subcontractors approved by the State shall perform work in the Premises. The State shall not
unreasonably withhold its approval. Lessee shall cause the Lessee's Work to be prosecuted diligently
to completion in accordance with the construction schedule Lessee provides to the State pursuant to
this paragraph.
7. Costs of Construction. Lessee shall pay when due all costs to construct and complete Lessee's
Work, and shall indemnify, protect, defend and hold the State free and harmless of and from any and
19
all claims, liability, losses, costs, damages and expenses of any kind or nature (including attorneys'
fees) arising from or connected with Lessee's Work.
8. Supervision; Inspections. Lessee shall supervise and direct the construction of Lessee's Work,
using Lessee's best skill and attention. The State shall have the right, but not the obligation, to inspect
Lessee's Work as it progresses to determine if it is being performed in accordance with this Work
Letter. If the State determines that Lessee's Work is not being performed in accordance with this Work
Letter or, when completed, will not be in accordance with the requirements hereof, then the State shall
give Lessee written notice of its objections. If the State shall give such notice, Lessee agrees to make
corrections promptly. Neither the ability to make inspections nor the making of any inspections by the
State shall operate as a waiver of the right of the State to require good and workmanlike construction in
accordance with the approved Plans, Applicable Laws, and all Required Approvals.
9. Manner of Performance. Lessee shall be responsible to perform, or have Lessee's Work
performed, in such a manner as to not: (a) obstruct access to the BBSC Buildings or common areas, (b)
interfere with the business or activities of the State or other occupants of the BBSC Complex, or (c)
interfere with the labor force working at the BBSC Complex. Lessee shall repair any damage to State-
owned buildings, improvements, infrastructure and property caused by or arising from the construction
of Lessee's Work.
10. Insurance. Lessee shall require Lessee's contractors and subcontractors to procure and maintain
insurance on all of their operations during the progress of the Lessee's Work for the minimum
coverages set forth in Attachment 1 which is incorporated by reference in this Work Letter. If any
contractor or subcontractor of Lessee shall fail to obtain the required insurance and a claim is made or
suffered, then Lessee shall indemnify, defend and hold harmless the State, its officers, directors,
employees and agents, from and against any and all Claims for which the required insurance would
have provided coverage. This indemnity obligation is in addition to any other indemnification
contained in the Lease. Lessee hereby releases, and shall cause its contractors and subcontractors to
release, the State, its officers, directors, employees and agents from any and al] Claims which the
releasing party might otherwise possess resulting from or in any way connected with any loss covered,
or which should have been covered, by insurance maintained or caused to be maintained under this
Work Letter. Each insurance policy shall provide that the insurer waives all right of recovery by way
of subrogation against the State, its officers, directors, employees and agents in connection with any
loss or damage covered by any policy.
11. Storage and Removal. All construction materials, tools, equipment, and debris shall be stored
only within the Premises. The State shall not insure or be responsible for any loss or damage to
property of any kind owned, used, rented or leased by Lessee, its contractors or subcontractors. Lessee
shall cause its contractors and subcontractors to remove all waste materials, rubbish, tools, equipment
and surplus materials on completion of Lessee's Work.
12. Notices. Notices under this Work Letter shall be given in accordance with Section 18 of the
Lease.
IN WITNESS WHEREOF, this Work Letter has been executed by Lessee and the State as of the date
of the Lease.
STATE: LESSEE:
State of California, by and through its City of Newport Beach, a
Department of Fish and Game charter City and Municipal Corporation
By: By:
Name: Name:
Title: Title:
20
ATTACHMENT 1 TO
EXHIBIT C
A. Worker's Compensation insurance and occupational disease coverage as required by California
law and employer's liability insurance with a minimum limit of $1 million each occurrence.
B. Broad form commercial general liability insurance with a combined single limit of not less than
$2 million each occurrence for bodily injury, death, personal injury and property damage resulting from
any one occurrence, including coverage for: a) premises, operations and mobile equipment liability; b)
completed operations and products liability; c) blanket contractual liability covering the contractual
obligations assumed by the contractor or subcontractor under the construction contract; d) independent
contractors; e) broad form property damage liability coverage; and f) personal injury liability.
C. Comprehensive automobile liability insurance, including all owned, hired and non -owned
vehicles, with a combined single limit of not less than $2 million each occurrence.
D. Excess and/or umbrella liability insurance with limits of not less than S2 million with coverage
at least as broad as the primary coverage in A, B and C above, with any excess umbrella layers written
on a strict following form basis over the primary umbrella.
All policies of insurance required under this Exhibit C shall be endorsed to include the State as
additional insured. Lessee shall furnish evidence of insurance to the State, together with satisfactory
evidence of payment of premiums thereon, before any of Lessee's Work is commenced. The policies
shall provide that there shall be no cancellation, reduction or material modification of coverage without
at least 30 days' prior written notice to the State.
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GA 1254-190
HCA/Temporary Water Quality Laboratory
LEASE
THIS IS A LEASE, hereinafter referred to as "Lease," made
2003, by and between
City of Newport Beach, hereinafter referred to as "LESSOR," and the County of Orange, hereinafter
referred to as "COUNTY," without regard to number and gender. The term "COUNTY" shall mean the
Board of Supervisors of the political body that executed this agreement or its authorized representative.
1. DEFINITIONS (1.2 S)
"Board of Supervisors" means the Board of Supervisors of the County of Orange, a political subdivision
of the State of California
"County Executive Officer" means the County Executive Officer, County Executive Office, County of
Orange, or designee, or upon written notice to LESSOR, such other person or entity as shall be
designated by the Board of Supervisors.
"Director of CEO/Purchasing and Real Estate" means the Director, County Executive Office, Purchasing
and Real Estate, County of Orange, or designee, or upon written notice to LESSOR, such other person or
entity as shall be designated by the County Executive Officer or the Board of Supervisors.
"Director of Health Care Agency" means the Director, Health Care Agency, County of Orange, or
designee, or upon written notice to LESSOR, such other person or entity as shall be designated by the
County Executive Officer or the Board of Supervisors.
"Manager, HCA/Facilities Support -Real Estate" means the Manager, Health Care Agency, Facilities
Support -Real Estate, County of Orange, or designee, or upon written notice to LESSOR, such other
person or entity as shall be designated by the Director of Health Care Agency, or designee.
"Auditor -Controller" means the Auditor -Controller, County of Orange, or designee, or upon written
notice to LESSOR , such other person or entity as shall be designated by the Board of' Supervisors.
"County Counsel" means the County Counsel, County of Orange, or designee, or upon written notice to
LESSOR, such other person or entity as shall be designated by the County Executive Officer or the
Board of Supervisors.
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"CEO/Real Estate" means the County Executive Office, Real Estate for the County of Orange, or upon
written notice to LESSOR, such entity as shall be designated by the County Executive Officer or the
Board of Supervisors.
2. PREMISES (1.3 N)
LESSOR leases to COUNTY that certain property hereinafter referred to as "Premises," described in
"Exhibit A" and shown on "Exhibit B," which exhibits are attached hereto and by reference made a part
hereof, together with non-exclusive, in common use of LESSOR's driveways for vehicle ingress and
egress, pedestrian walkways, other facilities and common areas appurtenant to COUNTY's Premises
created by this Lease.
3. PARKING (1.4 N)
LESSOR, throughout the term of this Lease, shall provide an area for parking for COUNTY's free and
non-exclusive use. Said parking area are to be located in the area shown on Exhibit B.
In addition to said parking area, LESSOR shall also provide parking for disabled persons in accordance
with the Americans with Disabilities Act, Section 7102 of the California Uniform Building Code and the
applicable codes and/or ordinances relating to parking for disabled persons as established by the local
jurisdiction in which the Premises is located where the provisions of such local codes and/or ordinances
exceed or supersede the State requirements.
4. USE (N)
COUNTY shall use the Premises to provide for a water quality laboratory. COUNTY agrees not to use
the Premises for any other purpose without the prior written consent of LESSOR, which shall not be
unreasonable withheld.
5. TERM (2.2A S)
The term of this Lease shall be three (3) years, commencing the first day of the first full calendar month
following the date of execution by COUNTY.
Parties agree that the commencement date of this Lease will be confirmed in writing by either party upon
demand by the other.
//
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6. OPTION TO TERMINATE LEASE (2.4 S)
COUNTY shall have the option to terminate this Lease at any time after the first year of the lease term
upon giving LESSOR written notice at least sixty (60) clays prior to said termination date.
7. RENT (N)
In consideration of the services to be performed by COUNTY pursuant to the terms of this Lease,
COUNTY's use of the Premises shall be rent-free.
8. REPAIR AND MAINTENANCE (5.1A N)
COUNTY shall provide, at its own cost and expense, all janitorial supplies and services to the Premises,
including the supplying of rest room expendables and replacement of light bulbs and fluorescent tubes.
COUNTY shall also provide, at its own cost and expense, the cleaning and refinishing of interior
surfaces and repair of' all damage.
COUNTY shall provide, at its own cost and expense, all other repair and maintenance items, including,
but not limited to, maintenance of the HVAC system for Premises.
9. ALTERATIONS (4.4 S)
COUNTY may make improvements and changes in the Premises, including but not limited to the
installation of fixtures, partitions, counters, shelving, and equipment as deemed necessary or appropriate.
It is agreed that any such fixtures, partitions, counters, shelving, or equipment attached to or placed upon
the Premises by COUNTY shall be considered as personal property of COUNTY, who shall have the
right to remove same. COUNTY agrees that the Premises shall be left in as good condition as when
received, reasonable wear and tear excepted.
10. UTILITIES (5.2 S)
COUNTY shall be responsible for and pay, prior to the delinquency date, all charges for utilities
supplied to the Premises, except water and sewer services, which shall be the obligation of LESSOR.
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11. INDEMNIFICATION (5.5 S)
COUNTY shall defend, indemnify and save harmless LESSOR, its officers, agents, and employees,
from and against any and all claims, demands, losses, or liabilities of any kind or nature which LESSOR,
its officers, agents, and employees may sustain or incur or which may be imposed upon them for injury
to or death of persons, or damage to property as a result of, or arising out of, the sole negligence of
COUNTY, its officers, agents, employees, subtenants, invitees, or licensees, in connection with the
occupancy and use of the Premises by COUNTY.
Likewise LESSOR shall defend, indemnify and save harmless COUNTY, its officers, agents, and
employees from and against any and all claims, demands, losses, or liabilities of any kind or nature
which COUNTY, its officers, agents, and employees may sustain or incur or which may be imposed
upon them for injury to or death of persons, or damage to property as a result of, or arising out of, the
sole negligence of LESSOR, its officers, agents, employees, invitees, or licensees, in connection with the
ownership, maintenance, or use of the Premises.
12. TAXES AND ASSESSMENTS (5.6 N)
All taxes and assessments which become due and payable upon the Premises shall be the full
responsibility of LESSOR, and LESSOR shall cause said taxes and assessments to be paid prior to the
due date.
13. BUILDING AND SAFETY REQUIREMENTS (5.7 N)
During the full term of this Lease, LESSOR, at LESSOR's sole cost, agrees to maintain the Premises in
compliance with all applicable laws, rules, regulations, building codes, statutes, and orders as they are
applicable on the date of this Lease, and as they may be subsequently amended.
Included in this provision is compliance with the Americans with Disabilities Act (ADA) and all other
federal, state, and local codes, statutes, and orders relating to disabled access as they are applicable on the
dates of this Lease, and as they may be subsequently amended.
LESSOR further agrees to maintain the Premises as a "safe place of employment," as defined in the
California Occupational Safety and Health Act (California Labor Code, Division 5, Part 1, Chapter 3,
beginning with Section 6400) and the Federal Occupational Safety and Health Act, where the provisions
of such Act exceed, or supersede, the California Act, as the provisions of such Act are applicable on the
date of this Lease, and as they may be subsequently amended.
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14. TOXIC MATERIALS (5.9 S)
COUNTY hereby warrants and represents that COUNTY will comply with all laws and regulations
relating to the storage, use and disposal of hydrocarbon substances and hazardous, toxic or radioactive
matter, including, but not limited to, those materials identified in Title 26 of the California Code of
Regulations (collectively "Toxic Materials"). COUNTY shall be responsible for and shall defend,
indemnify and hold LESSOR, its officers, directors, employees, agents, and representatives, harmless
from and against all claims, costs and liabilities, including attorneys' fees and costs arising out of or in
connection with the storage, use, and disposal of Toxic Materials on the Premises by COUNTY. If the
storage, use, and disposal of Toxic Materials on the Premises by COUNTY results in contamination or
deterioration of water or soil resulting in a level of contamination greater than maximum allowable
levels established by any governmental agency having jurisdiction over such contamination, COUNTY
shall promptly take any and all action necessary to clean up such contamination.
Likewise, LESSOR hereby warrants and represents that LESSOR has in the past and will hereafter
comply with all laws and regulations relating to the storage, use and disposal of hydrocarbon substances
and hazardous, toxic or radioactive matter, including, but not limited to, those materials identified in
Title 26 of the California Code of Regulations (collectively "Toxic Materials"). LESSOR shall be
responsible for and shall defend, indemnify and hold COUNTY, its officers, directors, employees,
agents, and representatives, harmless from and against all claims, costs and liabilities, including
attorneys' fees and costs arising out of or in connection with the previous, current and future storage, use
and disposal of Toxic Materials on the Premises (or building if the Premises comprises only a portion of
said building) by LESSOR. If the previous, current and future storage, use, and disposal of Toxic
Materials on the Premises by LESSOR results in contamination or deterioration of water or soil resulting
in a level of contamination greater than maximum allowable levels established by any governmental
agency having jurisdiction over such contamination, LESSOR shall promptly take any and all action
necessary to clean up such contamination.
15. DEFAULTS AND REMEDIES (6.8 S)
The occurrence of any of the following shall constitute an event of default:
• Failure to pay any installment of any monetary amount due and payable hereunder;
• Failure to perform any obligation, agreement or covenant under this Lease.
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In the event of any non -monetary breach of this Lease by COUNTY, LESSOR shall notify COUNTY in
writing of such breach, and COUNTY shall have fifteen (15) days in which to initiate action to cure said
breach.
In the event of any non -monetary breach of this Lease by LESSOR, COUNTY shall notify LESSOR in
writing of such breach and LESSOR shall have fifteen (15) days in which to initiate action to cure said
breach.
In the event of any monetary breach of this Lease by COUNTY, LESSOR shall notify COUNTY in
writing of such breach, and COUNTY shall have fifteen (15) days in which to cure said breach, unless
specified otherwise within this Lease.
In the event of any monetary breach of this Lease by LESSOR, COUNTY shall notify LESSOR in
writing of such breach, and LESSOR shall have fifteen (15) days in which to cure said breach, unless
specified otherwise within this Lease.
16. NOTICES (8.1 S)
All written notices pursuant to this Lease shall be addressed as set forth below or as either party may
hereafter designate by written notice and shall be deemed delivered upon personal delivery, delivery by
facsimile machine, or seventy-two (72) hours after deposit in the United States Mail.
TO: LESSOR
City of Newport Beach
City Manager's Office
3360 Newport Boulevard
P.O. Box 1768
Newport Beach, CA 92658-8915
Attention: Assistant City Manager
17. ATTACHMENTS (8.2 S)
TO: COUNTY
County of Orange
Health Care Agency
HCA/Facilities Support -Real Estate
405 West 5th Street, Suite 610
Santa Ana, California 92701
Attention: Manager
This Lease includes the following, which are attached hereto and made a part hereof:
I. GENERAL CONDITIONS
II. EXHIBITS
A. Description - Premises
B. Plot Plan - Premises
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IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above
written.
APPROVED AS TO FORM: LESSOR
OFFICE OF THE COUNTY COUNSEL
ORANGE COUNTY, CALIFORNIA CITY OF NEWPORT BEACH
BY: BY:
Deputy
DATE: /z4/ .2. BY:
RECOMMENDED FOR APPROVAL:
Health Care Agency
BY:
B
Senior Real Propert
SIGNED AND CERTIFIED THAT A
COPY OF THIS DOCUMENT HAS BEEN
DELIVERED TO THE CHAIR OF
THE BOARD.
COUNTY
COUNTY OF ORANGE
� `.' BY:
DARLENE J.'I3LOOM
Clerk of the Board of Supervisors
of Orange County, California
r' st,:(1446.
Chair, Board of Supervisors
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GENERAL CONDITION(S)
1. LEASE ORGANIZATION (9.1 S)
The various headings in this Lease, the numbers thereof, and the organization of the Lease into separate
sections and paragraphs are for purposes of convenience only and shall not be considered otherwise.
2. INSPECTION (9.2 S)
LESSOR or his authorized representative shall have the right at all reasonable times and upon
reasonable advance notice to COUNTY to inspect the Premises to determine, if COUNTY is complying
with all the provisions of this Lease.
3. SUCCESSORS IN INTEREST (9.3 S)
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.
4. AMENDMENT (9.5 S)
This Lease sets forth the entire agreement between LESSOR and COUNTY and any modification must
be in the form of a written amendment.
5. PARTIAL INVALIDITY (9.6 S)
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.
6. CIRCUMSTANCES WHICH EXCUSE PERFORMANCE (9.7 S)
If either party hereto shall be delayed or prevented from the performance of any act required hereunder
by reason of acts of God, performance of 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. Financial inability shall not be considered a circumstance excusing performance under this Lease.
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7. STATE AUDIT (9.8 S)
Pursuant to and in accordance with Section 8546.7 of the California Government Code, in the event that
this Lease involves expenditures and/or potential expenditures of State funds aggregating in excess of
ten thousand dollars ($10,000), LESSOR shall be subject to the examination and audit of the Auditor
General of the State of California for a period of three years after final payment by COUNTY to
LESSOR under this Lease. The examination and audit shall be confined to those matters connected with
the performance of the contract, including, but not limited to, the costs of administering the contract.
8. WAIVER OF RIGHTS (9.9 S)
The failure of LESSOR or COUNTY to insist upon strict performance of any of the terms, conditions,
and covenants in this Lease shall not be deemed a waiver of any right or remedy that LESSOR or
COUNTY may have, and shall not be deemed a waiver of any right or remedy for a subsequent breach
or default of the terms, conditions, and covenants herein contained.
9. HOLDING OVER (9.10 S)
In the event COUNTY shall continue in possession of the Premises after the term of this Lease, such
possession shall not be considered a renewal of this Lease but a tenancy from month to month and shall
be governed by the conditions and covenants contained in this Lease.
10. HAZARDOUS MATERIALS (9.11 S)
LESSOR warrants that the Premises is free and clear of all hazardous materials or substances.
11. EARTHQUAKE SAFETY (9.12 S)
LESSOR warrants that the Premises is in compliance with all applicable seismic safety regulations and
building codes.
12. QUIET ENJOYMENT (9.13 S)
LESSOR agrees that, subject to the terms, covenants and conditions of this Lease, COUNTY may, upon
observing and complying with all terms, covenants and conditions of this Lease, peaceably and quietly
occupy the Premises.
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13. WAIVER OF JURY TRIAL (9.15 S)
Each party acknowledges that it is aware of and has had the advice of Counsel of its choice with respect
to its rights to trial by jury, and each party, for itself and its successors and assigns, does hereby expressly
and knowingly waive and release all such rights to trial by jury in any action, proceeding or counterclaim
brought by any party hereto against the other (and/or against its officers, directors, employees, agents, or
subsidiary or affiliated entities) on or with regard to any matters whatsoever arising out of or in any way
connected with this agreement and/or any claim of injury or damage.
14. GOVERNING LAW AND VENUE. (9.16 S)
This agreement has been negotiated and executed in the State of California and shall be governed by and
construed under the laws of the State of California. In the event of any legal action to enforce or interpret
this agreement, the sole and exclusive venue shall be a court of competent jurisdiction located in Orange
County, California, and the parties hereto agree to and do hereby submit to the jurisdiction of such court,
notwithstanding Code of Civil Procedure section 394.
15. TIME (9.17 S)
Time is of the essence of this Lease.
//
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DESCRIPTION - PREMISES
PROJECT NO: GA 1254-190 WRITTEN BY: Thurman Hodges
PROJECT: HCA/Temporary Water Quality Laboratory DATE: June 15, 2002
All the Premises shown crosshatched on the plot plan marked Exhibit B, attached hereto
and made a part hereof, being that certain approximately 2,160 square feet of office space
in an office trailer located at 700 Shelimaker Road, as shown on Exhibit B, in the City of
Newport Beach, County of Orange, State of California, together with the appurtenant
right to the free and non-exclusive use of the parking area.
NOT TO BE RECORDED
EXHIBIT A
•
•
RON YEO, FAIA ARCHITECT, INC.
MARINE STUDIES CENTER
SHELLMAKER ISLAND, NEWPORT BEACH
500 JASMINE AVENUE CORONA DEL MAR, CALIFORNIA 92525 PHONE: (S49) 644-5111 FAX 6::..2r,g
15
Piot PIA - --GA 1254490--
HCA/Temporary Water Quality Laboratory
Shellmaker Island
Ndtaport Beach
s
Date:6/ 15/02
EXHIBIT B
COUNTY OF ORANGE
HCA/REAL ESTATE
COASTAL RESOURCES MANAGEMENT
PROPOSAL TO CONDUCT WETLAND STUDIES
SHELLMAKER ISLAND, UPPER NEWPORT BAY, CA
INTRODUCTION
The City of Newport Beach and the California Department of Fish and Game are jointly
planning to construct a Marine Science Educational Center on Shellmaker Island, in Upper
Newport Bay, Orange County, California. The design of the Center will result the expansion of
building facilities and a potential reduction in the acreage of biological habitats on Shellmaker
Island. To this end, Coastal Resources Management (CRM) proposes to conduct wetland field
studies and prepare a wetlands restoration demonstration plan for the south end of Shellmaker
Island adjoining the existing saltmarsh. The purpose of the work is to (1) identify existing
habitat types and wetland biological resources on the south end of Shellmaker Island, (2) identify
sensitive habitats and rare and endangered species located on the property, and (3) prepare a
wetlands restoration plan for a marsh demonstration project to be implemented as part of the
Marine Science Center Educational Program.
TASK 1. PROJECT PLANNING MEETINGS
Five planning meetings will be held with the City of Newport Beach, Department of Fish and
Game, and other regulatory agencies. These meetings will be held prior to, during the course of
the studies, and at the completion of the project. The purposes of the meetings are to identify
agency concerns, regulatory constraints, habitat values as perceived by the agencies, review draft
reports and mitigation plans, and present a final wetland restoration plan to the City of Newport
Beach and the California Department of Fish and Game.
TASK 2 REVIEW RESULTS OF TOPOGRAPHIC SURVEYS OF THE EXISTING
SITE AND OF THE WETLANDS LOCATED SOUTH OF THE PROPOSED MARINE
SCIENCE EDUCATION CENTER AND PREPARE A REPORT OF FINDINGS
The existing topographic features of the building site and the wetland habitat located south of the
proposed Marine Science Education Center were identified by Ron Yeo & Associates. This
information was prepared so that proposed wetland restoration plans can be developed based on
the known elevations of the existing tidal channels, tidal flats, salt marsh, and transitional
biological habitats. As part of the wetland habitat evaluation, CRM will prepare a topographic
survey report that will be used as a basis for conducting the wetland habitat surveys (Task 3), and
biological analyses and wetland restoration plan designs in Tasks 4, 5, and 6.
TASK 3 CONDUCT WETLAND HABITAT MAPPING AND BIOLOGICAL
RESOURCES SURVEYS
CRM will conduct wetland habitat mapping and biological resources surveys in order to identify
existing conditions on the project site and the nearby saltmarsh and tidal flats located next to the
proposed Marine Science Education Center. Habitat mapping will be conducted using
quantitative transects, and Differential GPS mapping techniques. These surveys will be
conducted to delineate habitat types, vegetation, and the presence of wildlife resources present
during the time of the survey. Emphasis will also be placed on determining the presence and
location of sensitive, rare, threatened, or endangered species, such as the salt marsh bird's beak
(Cordylanthus maritimus spp. maritimus), Belding's savannah sparrow (Passerculus
sandwichensis beldingi), western snowy plover (Charadrius alexandrinus nivosus), peregrine
falcon (Falco peregrinus), light-footed clapper rail (Rallus longirostris levipes), and California
brown pelican (Pelecanus occidentalis californicus) for use in the Section 7 Biological
Assessment (Task 4).
TASK 4 PREPARE A FIELD REPORT OF FINDINGS
CRM will prepare a biological field studies report that describes the habitats, vegetational
communities, and wildlife in the area. A habitat map, based on the existing topographic map
prepared in Task 2 will be presented that illustrates the biological resources on the project site
and vegetational zones will be presented.
TASK 5 PREPARE A BIOLOGICAL ASSESSMENT FOR THE SECTION 7
INFORMATIONAL CONSULTATION PROCESS
Because of the high value and the potential for the wetland demonstration project to affect
federally -listed endangered species and federal candidate species for listing, a biological
assessment will be prepared in support of Section 7 of the Endangered Species Act, informal
consultation process between the City of Newport Beach/Cal Fish and Game, the U.S. Army
Corps of Engineers, and the U.S. Fish and Wildlife Service. This assessment will be based upon
both site -specific survey of the area and Upper Newport Bay historical data collected over the
last several years for the Upper Newport Bay Dredging Project.
TASK 6 PREPARE A WETLANDS RESTORATION DEMONSTRATION PLAN
Based on the impacts identified for the Marine Science Educational Center Project and the
existing wetland topographic and biological attributes on the south end of Shellmaker Island,
CRM will prepare a plan to restore additional wetland habitat proximal to the existing wetland.
The restoration designs will take into account but not be limited to identified goals and priorities
for restoration, physical and biological limitations of the area, regulatory constraints, associated
goals of the California Department of Fish and Game research and educational programs, and
input from local wetland scientists and wetland managers. The plan will include design plans for
footbridges, pathways, and lookout kiosks to be used for educational purposes.
A draft wetland restoration plan will be provided to the City of Newport Beach and the
Department of Fish and Game for review and comment. In addition, a wetland restoration plan
review and comment meeting will be held to gather input from wildlife and regulatory agencies,
and the Upper Newport Bay Technical Advisory Committee.
Based upon the comments received on the draft report, a final wetlands restoration plan will be
prepared for the City of Newport Beach and the California Department of Fish and Game. This
document will be finalized and submitted within 60 days of receiving comments on the draft
report.
TASK 7 PROJECT MANAGEMENT
Mr. Rick Ware, Principal and Senior Biologist of CRM will be the Project Manager and
Principal Investigator for the project. He has 25 years of experience conducting wetland, bay,
harbor, and offshore marine biological studies and preparing state -and federal biological impact
assessments, restorations plans, and implementing mitigation and monitoring programs
throughout Southern California. He is extremely familiar with Upper Newport Bay and its
environs, and has conducted studies in Newport Bay since 1977, and has conducted several
wetland and marine biological investigations for the City of Newport Beach. Mr. Ware will be
responsible for the timely and cost-efficient submittals for the project and will oversee as well as
participate in all aspects of the project.
PROJECT TIMELINE
Timing of the project elements will be finalized following initial meetings with the City of
Newport Beach and the California Department of Fish and Game. It is anticipated that the
project will be initiated in December 2000, and that the Wetlands Demonstration Plan will be
finalized by early March 2003.
PROJECT COSTS
Project costs, by task are presented in Attachment 1, and summarized below. The total estimated
not -to -exceed project cost is $46,680.70. This cost includes a 10% contingency.
TASK COST
1 Project Planning and Meetings
2 Review Topographic Survey Results, Prepare Report
3 Wetland Mapping and Habitat Resource Surveys
4 Biological Reports
5 Biological Assessment, Section 7 Informal Consultation
Report
6 Wetlands Restoration Demonstration Plan
7 Project Management and Coordination
Estimated Project Costs
Contingency Costs
Total Estimated Project Costs
$4,842.00
$2,540.60
$4,429.00
$6,309.60
$3,451.00
$12,900.00
$2,291.00
$36,767.20
$ 3,676.72
$40,443.40
KEY PERSONNEL
Person and Organization
Rick Ware, Coastal Resources Management
Kathy Keane, Keane Biological
Randy Mason, Cash & Associates
Ron Yeo, Architect
Brian Shelton, Cal Dept of Fish and Game
Task Responsibility
Principal Investigator
Wildlife Surveys
Engineering Design Plans
Integration of MSC Designs
Project Review/Coordination
COASTAL RESOURCES MANAGEMENT
FEE PROPOSAL
SHELLMAKER ISLAND MARINE SCIENCE CENTER
WETLANDS DEMONSTRATION PROJECT
PLANNING AND MITIGATION DESIGN EFFORTS
TASK 1: PROJECT PLANNING MEETINGS (5) WITH AGENCIES
Labor Hours
Marine Biologist 30
Endangered Species Biologist 8
Architect 8
Word Processor 4
Total 50
Direct Charges
Phone/Fax
Copies
Mileage 400 mi @ $0.33/mi
Delivery
Graphics
Rate Amount Subtotal
$95 $2,850.00
$75 $600.00
$100 $800.00
$45 $180.00
Subtotal Directs
Total Task 1
$30.00
$100.00
$132.00
$50.00
$100.00
$4,430.00
$412.00
Total Task
$4,842.00
TASK 2: REVIEW PRE -CONSTRUCTION TOPOGRAPHIC SURVEY RESULTS AND PREPARE
REPORT
Labor Hours Rate Amount
Marine Biologist 24 $95 $2,280.00
Total 24
Direct Charges
Mileage (120 mi @ $0.33/mi)
Telephone/Fax/Copy
Computer/Digital Photography/Prints
$39.60
$25.00
$200.00
Subtotal
$2,280.00
Subtotal Directs $264.60
Total Task 2
Total Task
$2,544.60
TASK 3 : CONDUCT WETLAND HABITAT MAPPING AND BIOLOGICAL RESOURCES SURVEYS
Labor Hours Rate Amount Subtotal Total Task
Senior Biologist 24 $95 $2,280.00
Endangered Species Biologist 16 $75 $1,200.00
Total 40 $3,480.00
Direct Charges
Gear rental $60.00
DGPS UNIT (2 days @ $100/day) $200.00
Mileage 120 mi @ $0.33/mi) $39.00
Misc field equipment $50.00
Report Printing/Reproduction $500.00
Computer/Digital Photography/Prints $100.00
Subtotal Directs $949.00
Total Task 3 $4,429.00
TASK 4: PREPARE A FIELD REPORT OF FINDINGS
Labor Hours Rate Amount Subtotal Total Task
Senior Biologist 40 $95 $3,800.00
Endangered Species Biologist 8 $75 $600.00
Word Processor 16 $45 $720.00
Total 64 $5,120.00
Direct Charges
Telephone/Fax $60.00
Copy $90.00
Mileage 120 mi @ $0.33/mi) $39.60
Report Graphics/GIS Work $1,000.00
Subtotal Directs $1,189.60
Total Task 4 $6,309.60
TASK 5: PREPARE A BIOLOGICAL ASSESSMENT FOR THE SECTION 7 INFORMAL
CONSULTATION PROCESS
Labor Hours Rate Total Subtotal Total Task
Marine Biologist 8 $95 $760.00
Endangered Species Biologist 32 $75 $2,400.00
Total 40 Hrs $3,160.00
Direct Charges
Telephone/Fax $25.00
Mileage (200 mi @ $0.33/mi) $66.00
Copy/Graphics $200.00
Subtotal Directs $291.00
Total Task 5 $3,451.00
TASK 6: PREPARE A WETLANDS RESTORATION DEMONSTRATION PLAN
Labor Hours
Marine Biologist 40
Endangered Species Biologist 16
Graphic Artist 24
Word Processor 16
Total 96
Direct Charges
Rate Amount Subtotal Total Task
$95 $3,800.00
$75 $1,200.00
$45 $1,080.00
$45 $720.00
Hrs $6,800.00
GIS and Architectural Consultant (Ron Yeo, Architect)
$2,500.00
Engineering Consultant (Cash & Associates)
$2,500.00
Telephone/Copy $100.00
Copy/Graphics and Report Production
$1,000.00
Subtotal Directs
Total Task 6
TASK 7: PROJECT MANAGEMENT AND COORDINATION
Labor
Marine Biologist
Word Processor
Direct Charges
Hours
20
5
Total 25
Telephone/Fax
Mileage (200 mi @ $0.33/mi)
Copy/Graphics
Rate
$95
$45
Hrs
Subtotal Directs
Total Task 7
$6,100.00
$12,900.00
Amount Subtotal Total Task
$1,900.00
$225.00
$2,125.00
$50.00
$66.00
$50.00
$166.00
ESTIMATED COST
10 PERCENT CONTINGENCY COST
TOTAL ESTIMATED COST
$2,291.00
$36,767.20
$3,676.20
$40,443.40