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HomeMy WebLinkAboutC-4517 - Balboa Market Parking Lot Lease Agreement - 209 Washington Street & 608 Balboa BoulevardWHEN RECORDED, RETURN TO: City of Newport Beach 3300 Newport Beach Blvd. P.O. Box 1768 Newport Beach, California 92658-8915 Attn: City Clerk (Exempt From Recording Fees Pursuant to Government Code § 6103) (SPACE ABOVE THIS LINE FOR RECORDER'S USE) BALBOA MARKET PARKING LOT LEASE AGREEMENT This Balboa Market Parking Lot Lease Agreement ("Agreement") is made and entered into this day of , 2010 by and between the City of Newport Beach, a California municipal corporation ("City") and Waterfront Enterprises, Inc., a California corporation ("Lessee"). City and Lessee are at times referred to individually as "Party" and collectively as "Parties" herein. RECITALS A. City is the owner of the property located at 209 Washington Street and 608 Balboa Blvd., Newport Beach, California which is commonly referred to as the Balboa Market. The Balboa Market currently houses a structure and an accompanying parking lot ("Parking Lot"). B. City anticipates developing the Parking Lot with a future undetermined project but at this time the City is not using the Parking Lot. C. Lessee desires to use the Parking Lot for employee and valet parking associated with the restaurant and banquet operations of Harborside at the Balboa Pavilion and Newport Landing. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises, covenants, benefits, obligations and agreements set forth herein, the Parties agree as follows: 1. Incorporation of Recitals. The Recitals contained herein are true and correct and are incorporated into the operative part of this Agreement. 2. Parking Spaces. City hereby agrees to rent the Parking Lot to Lessee on a non-exclusive basis. The Parking Lot shall only be used by Lessee for parking of Lessee's employees' and guests' vehicles and for no other use. A10-00110 1 3. Term. This Agreement shall be month -to -month commencing upon the date first written above. This Agreement shall be cancelable by either Party upon thirty (30) calendar days written notice, with or without cause. In the event of termination the Lessee shall bear all relocation costs and not be entitled to any reimbursement from City. 4. Rent. Rent shall be due on the first (1st) of each month and late on the tenth (10th) of each month. Rent for any partial month shall be prorated in accordance with the actual number of days in that month. Lessee agrees to pay to City as monthly rent the sum of One Thousand Dollars ($1,000) ("Rent"). 5. Late Payment. Lessee hereby acknowledges that late payment by Lessee to City of Rent or other sums due hereunder will cause City to incur costs not contemplated by this Agreement, the exact amount of which is extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges. Accordingly, any payment of any sum to be paid by Lessee not paid by the tenth (10th) of each month shall be subject to a ten percent (10%) late charge. Lessee and City agree that this late charge represents a reasonable estimate of such costs and expenses and is fair compensation to City for its loss suffered by such late payment by Lessee. 6. Interest. Any sum to be paid pursuant to the terms of this Agreement not paid within twenty (20) calendar days of the date due shall bear interest from and after the that date until paid at a rate equal to ten percent (10%) per year. 7. Damage. Lessee shall be responsible for the cost of repairs of any and all damage to the Parking Lot arising out of Lessee's use of the Parking Lot under this Agreement. 8. Indemnity. To the fullest extent permitted by law, Lessee, its successors or assigns, agrees to indemnify, defend and hold harmless City and its elected and appointed officials, employees, volunteers, agents, consultants and contractors and their respective members, managers, partners, officials, officers, directors, shareholders, agents and employees ("Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death, mechanics liens, or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements, costs of litigation, investigation, appeal, expert witness fees and court costs) of every kind and nature whatsoever (individually, a "Claim"; collectively, "Claims"), which arise from Lessee's, its contractors', agents', employees', invitees', and their respective employees use of and/or presence on all or any of the Parking Lot. The foregoing shall not serve as authority for Lessee or its counsel to settle any Claim without the prior written consent of City. Notwithstanding the foregoing, nothing herein shall be construed to require Lessee to indemnify the Indemnified Parties from any Claim arising from the negligence A 10-00110 2 or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. 9. Insurance. At all times while this Agreement is in effect the Lessee shall maintain, the types and minimum amounts of insurance set forth below: 9.1 General Liability. General liability shall be for a minimum limit of not less than One Million Dollars ($1,000,000) per occurrence, and Five Million Dollars ($5,000,000) in the annual aggregate. 9.2 Automobile Liability. Limits for automobile liability shall be for a minimum limit of not less than Two Million Dollars ($2,000,000) per accident without annual aggregate. 9.3 Workers' Compensation and Employers' Liability. Statutory workers' compensation coverage as required by the State of California and employers' liability limits of not less than One Million Dollars ($1,000,000) bodily injury by accident, and One Million Dollars ($1,000,000) bodily injury by disease. 9.4 Additional Provisions. Policies shall include the following provisions: (a) The coverages shall contain no special limitations on the scope of protection afforded to City. For general liability coverages, the additional insured clause shall be no more restrictive than the coverage afforded by ISO Form No. CG 20 26 07 04 entitled "Additional Insured - Designated Person or Organization". For automobile liability coverages the additional insured clause shall be no more restrictive than ISO endorsement number CA 20 48 02 99 "Designated Insured Endorsement". Excess and umbrella liability policies may include following form additional insured provisions in lieu of specific endorsement language. (b) A provision stating that the policy shall be primary and non-contributing with respect to claims covered thereby and any self-insurance program or separate insurance carried by City shall be excess and noncontributing with respect to such claims. (c) A provision similar to the ISO "separation of insureds" provision or other commonly used "severability of interests" provisions. This provision shall apply the coverage separately to each insured (except with respect to the limits of liability). (d) Language stating that any failure to comply with the reporting provisions of the policies shall not affect the coverage provided City. (e) No cross suits exclusions (generally excluded in the excess policies). (f) With regard to all property coverages, the following: (i) Each policy shall be endorsed to state the coverage shall not be cancelled or reduced in coverage or amounts by the insurance company except after thirty (30) business days' prior written notice by certified mail, return receipt requested, has been given to City. Any notice of cancellation due to non-payment of premium shall A10-OO110 3 at a minimum comply with the requirement set forth by California law but in no event be less than ten (10) business days. Lessee shall notify City of any material change in policy terms and conditions that may impact the City, including any reduction in coverage or limits. (ii) The mailing address for all notices pertinent to these policies shall be sent to City at the address set forth in this Agreement. (iii) Insurance shall be placed with insurers licensed to do business and admitted in the State of California and having an A.M. Best Company (Best's Key Rating Guide) rating of no less than A-8. (h) All policies, other than workers compensation, shall name City, a California municipal corporation as an additional insured. 10. Compliance with Laws. Lessee shall, at its sole cost and expense, comply with all of the applicable requirements of all municipal, state and federal authorities now in force or which may hereafter be in force pertaining to the use of the Parking Lot, and shall faithfully observe in said use all municipal ordinances, including, but not limited to, the General Plan and zoning ordinances, state and federal statutes, or other governmental regulations now in force or which shall hereinafter be in force. Lessee's violation of law shall constitute an incurable default under this Agreement. The judgment of any court of competent jurisdiction, or the admission of Lessee in any action or proceeding against Lessee, whether City is a party thereto or not, that Lessee has violated any such order or statute in said use, shall be conclusive of that fact as between the City and Lessee. 11. Compliance with Environmental Laws. Lessee shall not engage in any activity on or about the Parking Lot that violates any environmental law, and shall promptly, at Lessee's sole cost and expense, take all investigatory and/or remedial action required or ordered by any governmental agency, City or environmental law for clean-up and removal of any contamination involving any hazardous material created or caused directly or indirectly by Lessee. The term "environmental law" shall mean any federal, state or local law, statute, ordinance or regulation pertaining to health, industrial hygiene or the environmental conditions on, under or about the Parking Lot and the regulations and administrative codes applicable thereto. The term "hazardous material" includes, without limitation, any material or substance which is (i) defined or listed as a "hazardous waste", "extremely hazardous waste", "restrictive hazardous waste" or "hazardous substance" or considered a waste, condition of pollution or nuisance under the environmental laws; (ii) petroleum or a petroleum product or fraction thereof; (iii) asbestos; and/or (iv) substances known by the State of California to cause cancer and/or reproductive toxicity. It is the intent of the Parties hereto to construe the terms "hazardous materials" and "environmental laws" in their broadest sense. 12. Signs. Lessee shall not place or permit to be placed any sign that is not in compliance with the sign ordinance of the City upon the Parking Lot. Any sign not constructed in accordance therewith shall be immediately removed by Lessee and, if said sign is not removed by Lessee within five (5) calendar days of written notice from A10-00110 4 City to Lessee, then City may remove and destroy said sign without Lessee's approval and without any liability to Lessee. 13. Relationship of Parties. The relationship of the Parties hereto is that of landlord and tenant, and it is expressly understood and agreed that City does not in any way or for any purpose become a partner of Lessee in the conduct of Lessee's business or otherwise, or a joint venturer with Lessee, and that the provisions of this Agreement and the agreements relating to Rent payable hereunder are included solely for the purpose of providing a method whereby rental payments are to be measured and ascertained. 14. Nondiscrimination. Lessee herein covenants by and for itself, its heirs, executors, administrators and assigns and all persons claiming under or through it, and this Agreement is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons on account of race, sex, marital status, color, creed, national origin or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the Parking Lot herein leased, nor shall Lessee itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of Lessee's, lessees, sublessees, sublesors or vendees in the Parking Lot. 15. Entry and Inspection. Lessee shall permit City and its agents to enter into and upon the Parking Lot for the purpose of inspecting the same or for the purpose of maintaining the Parking Lot. City shall be permitted to do any of the above without any rebate of Rent and without any liability to Lessee for any loss of occupation or quiet enjoyment of the Parking Lot thereby occasioned. 16. Assignment and Subletting. Lessee shall not assign this Agreement or sublet the Parking Lot, or any interest therein without the prior written consent of the City. 17. Damage and Destruction of Premises. In the event of (a) partial or total destruction of the Parking Lot during the term of this Agreement which requires repairs to the Parking Lot, or (b) the Parking Lot being declared unsafe or unfit for occupancy by any authorized public authority for any reason other than Lessee's act, use or occupation, which declaration requires repairs to the Parking Lot, City may either (i) make said repairs or (ii) terminate this Agreement by providing written notice to Lessee within thirty (30) calendar days following the date of such destruction. If City elects to make said repairs, and provided City uses due diligence in making said repairs, this Agreement shall continue in full force and effect, and the Rent shall be proportionately reduced while such repairs are being made. If City elects to terminate this Agreement, all rentals shall be prorated between City and Lessee as of the date of such destruction. A10-00110 5 • • 18. Liens. Lessee shall keep the Parking Lot free from any liens arising out of any work performed, material furnished, or obligation incurred by Lessee or alleged to have been incurred by Lessee. 19. Alterations. Lessee shall not make, or suffer to be made, any alterations to the Parking Lot, or any part thereof, without the prior written consent of City. 20 Maintenance and Repair. By entering into this Agreement, Lessee shall be deemed to have accepted the Parking Lot as being in good and sanitary order, condition and repair, and as built in conformance with Lessee's intended use at the time of execution of this Agreement. Lessee shall maintain the Parking Lot free of litter and graffiti and shall notify City of any damage to structures (e.g., broken windows) on the Parking Lot, including damage done by third -parties.. Lessee agrees on the last day of this Agreement to surrender the Parking Lot with appurtenances, in the same condition as when received and in a good, clean and sanitary condition, reasonable use and wear thereof, act of God or by the elements excepted. Lessee agrees to promptly reimburse City for damages to the Parking Lot and any and all fixtures or appurtenances thereto, as provided herein. City shall not be required to make any repairs to the Parking Lot. 21. Notices. Any notice, request, direction, demand, consent, waiver, approval or other communication required or permitted to be given hereunder shall be in writing and shall be personally delivered or sent by registered or certified mail, postage prepaid, return receipt requested, or overnight courier, or electronic transmission as defined below. Notices or other communications shall be addressed as follows: To Lessee: Waterfront Enterprises, Inc. Attention: David Salisbury, President 400 Main Street Newport Beach, California 92661 To City: City of Newport Beach Attention: City Manager 3300 Newport Blvd. Newport Beach, California 92658 22. Interpretation. The terms of this Agreement shall be construed in accordance within the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 23. Waiver. A waiver by either Party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. A10-OO110 6 24. Integrated Agreement. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 25. Modification. This Agreement may be modified or amended only by a written document executed by both Lessee and City and approved as to form by the City Attorney. 26. Partial Invalidity. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 27. Jurisdiction and Venue. California law shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement. Venue shall be in the County of Orange. 28. Recordation. This Agreement shall be recorded with the County Recorder of Orange County pursuant to California Government Code Section 37393. [SIGNATURES ON NEXT PAGE] A10-00110 7 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed on the day and year first above written. City of Newport Beach Waterfront Enterprises, Inc. A California Municipal Corporation A California Corporation Keith Curry, Mayor Dave Salisbury, President I Z, <0 Date APPROVED AS TO FORM: Leonie Mulvihill, Acting City Attorney�'J ATTEST: Leilani Brown, City Clerk 1/ Vila [END OF SIGNATURES] A10-00110 8