HomeMy WebLinkAboutC-9269-1 - Vista del Oro, 2555 - Lease Agreement for a Portion of Eastbluff Park 2023 (Boys and Girls Club)�Q
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AMENDMENT NO. ONE TO
LEASE AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND
U BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST
FOR A PORTION OF EASTBLUFF PARK
THIS AMENDMENT NO. ONE TO LEASE AGREEMENT ("Amendment No. One")
is made and entered into as of this 8th day of December, 2023 ("Effective Date"), by and
between the CITY OF NEWPORT BEACH, a California municipal corporation and charter
city ("Lessor"), and BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST, a California
nonprofit corporation ("Lessee"). Lessor and Lessee are sometimes individually referred
to herein as "Party" and collectively as the "Parties".
RECITALS
A. On May 30, 2023, Lessor and Lessee entered into a Lease Agreement for the
Property and District Property as defined therein ("Lease Agreement"), as
evidenced by a Memorandum of Lease recorded on May 31, 2023, as Instrument
No. 2023000128028 in the Official Records of Orange County ("Official Records").
B. The Parties desire to enter into this Amendment to amend the Insurance
requirements as set forth under Exhibit "F" of the Lease Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
Parties as follows:
INSURANCE
Exhibit F, Section 3(B) of the Lease is amended in its entirety and replaced with
the following:
3. COVERAGE REQUIREMENTS.
B. General Liability Insurance. Lessee and Lessee's agents,
representatives, consultants, contractors and/or subcontractors, shall
maintain commercial general liability insurance, and if necessary umbrella
liability insurance, with coverage at least as broad as provided by Insurance
Services Office form CG 00 01, in an amount not less than five million
dollars ($5,000,000) per occurrence, eight million dollars ($8,000,000)
general aggregate. The policy shall cover liability arising from Property,
operations, personal and advertising injury, and liability assumed under an
insured contract (including the tort liability of another assumed in a business
contract) with no endorsement or modification limiting the scope of
coverage for liability assumed under a contract.
Sexual abuse/molestation coverage shall be included under Commercial
General Liability or obtained in a separate policy with a limit of not less than
$1,000,000 per occurrence and $3,000,000 in the aggregate.
2. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Lease shall remain in full force and effect. In the event of a conflict between
any term, provision, or condition of this Amendment and any term, provision, or condition
of the Lease, the terms, provisions, or conditions of the Lease will control.
[SIGNATURES ON NEXT PAGE]
Amendment No. One to Lease Agreement Page 2
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By:
jg—
Aaro C. Harp , "Ts
City orney Q1'1/3
ATTEST:
Date:
Brown/
City Clerk
LESSOR: CITY OF NEWPORT BEACH,
a California municipal corporation and
charter city
Date: 2I131 Z2,J
By:
a K. Leung
y Manager
LESSEE: BOYS & GIRLS CLUB OF
CENTRAL ORANGE COAST, a California
nonprofit corporation
Date:
Signed in Counterpart
Bv:
Robert Santana
Chief Executive Officer
Date:
Signed in Counterpart
Bv:
Nicole Carrillo Hall
Chief Financial Officer
[END OF SIGNATURES]
Amendment No. One to Lease Agreement Page 3
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
APPROVED AS TO FORM: LESSOR: CITY OF NEWPORT BEACH,
CITY ATTORNEY'S OFFICE a California municipal corporation and
charter city
Date:-1 Date:
By: By:
Aar C. Harp,z" Is Grace K. Leung
Ci ttorneyl3 City Manager
ATTEST: LESSEE: BOYS & GIRLS CLUB OF
Date: CENTRAL ORANGE COAST, a California
nonprofit corporation
Date:
By:
By.
Leilani 1. Brown Robert antaf:ira�
City Clerk Chief Executive Officer
L&
Nicofe Carrillo' Hdfl-�' '
Chief Financial Officer
[END OF SIGNATURES]
Amendment No. One to Lease Agreement Page 3
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LEASE AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST
FOR A PORTION OF EASTBLUFF PARK
THIS LEASE AGREEMENT ("Lease") is made and entered into this?Oday
of 1'Y11A-1 , 2023 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a
California municipal corporation and charter city ("Lessor"), and BOYS & GIRLS CLUBS
OF CENTRAL ORANGE COAST, a California nonprofit corporation ("Lessee"). Lessor
and Lessee may individually be referred to as "Party" and collectively referred to as
"Parties" herein.
RECITALS
A. Lessor holds title to Eastbluff Park, located at 2401 and 2555 Vista del Oro,
Newport Beach, California 92660, Assessor's Parcel Numbers 440-161-06 and
440-161-05 ("Property"). The Property is more particularly described as set forth
in the legal description in Exhibit "A" and as more particularly depicted in Exhibit
"B," both of which are attached hereto and incorporated by reference.
B. The Property was granted to Lessor by The Irvine Company ("TIC") in a deed
recorded on May 17, 1965 as Document No. 11760 in Book 7522, pages 161-166
inclusive, Official Records of Orange County ("Deed") and, among other things,
the Deed restricts the use of the Property to certain public facility uses.
C. Lessee is a nonprofit corporation created for the principal purpose of constructing,
operating and maintaining recreational centers for boys and girls.
D. Lessee operates a recreational center, currently operating under the name of Boys
& Girls Club of Newport Beach ("BGC Newport Beach") on said Property.
E. On June 30, 1971, Lessor and Boys' and Girls' Club of the Harbor Area ("BGCHA")
entered into a lease agreement ("Original Lease"), whereby Lessor leased to
BGCHA a portion of the Property. The Original Lease expired on June 30, 1996
and BGCHA held over under the terms of the Original Lease on a month -to -month
basis until June 21, 1998.
F. On February 1, 1978, Lessor and Newport -Mesa Unified School District ("District")
entered into a license agreement, allowing Lessor, acting through BGCHA, to go
upon a portion of the District's property, as more particularly depicted in Exhibit "C"
attached hereto and made a part hereof by this reference ("District Property"), for
the purpose of construction, maintenance and operation of a basketball court
("License Agreement").
G. Over the term of the Original Lease, and pursuant to its terms and the terms of the
License Agreement, improvements were constructed on the Property and District
Property, including an approximately twelve thousand two hundred seventy
(12,270) square foot recreation building ("Recreation Building"), which includes a
full-sized gymnasium ("Gymnasium"), and an outdoor basketball court ("Basketball
Court") (hereafter collectively referred to as "Recreation Facilities").
H. On June 22, 1998, Lessor and BGCHA entered into a new lease agreement
("Existing Lease") whereby Lessor leased to BGCHA a portion of the Property and
the District Property.
On or around July 1, 2016, BGCHA merged with and into the Boys' and Girls' Club
of Santa Ana, a California nonprofit public benefit corporation ("BGCSA"), with
BGCSA continuing as the surviving corporation and immediately changing its
name to Boys & Girls Club of Central Orange Coast and the Existing Lease was
assigned to Lessee in accordance with the Landlord Consent to Assignment and
Assumption of Lease by Operation of Law, dated September 14, 2016.
J. Pursuant to Lessee's written notice to Lessor, in 2019, Lessee performed
renovations to modernize the Recreation Facilities, including increasing capacity,
updating technology, and creating safer and more functional program space, and
requested a fifty (50) year lease extension in order to help obtain funding for the
renovation project.
K. The Existing Lease expires on June 30, 2023, and the Parties desire to enter into
this Lease for a new term subject to the terms and conditions contained herein as
of the Effective Date. Execution of this Lease shall concurrently terminate the
Existing Lease.
L. City Council Policy F-7 provides that if the lessee is not a statewide or national
nonprofit organization, the By -Laws and charter documents of such lessee must
(i) establish a procedure wherein the election of directors of such lessee is
accomplished by an open, democratic and transparent process that allows
members to vote, (ii) has a governance and operational structure that is consistent
with best practices for non-profit public benefit corporations as determined by the
City Council, and (iii) cannot be amended without the prior written consent of the
City as lessor. The City Council hereby waives (i), and correspondingly (iii) to the
extent it applies to (i). Lessee's By -Laws and charter documents do not provide
for the election of directors that allows members to vote. However, based upon
the unique services Lessee provides, its board members are appointed through a
process that ensures board members maintain the requisite experience and
contributions to BGC.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS
hereinafter set forth, it is agreed as follows:
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST Page 2
1. DESCRIPTION OF LEASED PREMISES
Lessor hereby leases the portion of the Property, the District Property, and the
parking lot (collectively "Premises") depicted in Exhibit "D" attached hereto and
incorporated by reference, to Lessee and Lessee leases the Premises from Lessor for
the term specified in Section 2 and on the conditions contained in this Lease. Lessee
agrees that no representations with respect to the condition or improvements on the
Premises have been made by Lessor except as specifically set forth in this Lease, and
are otherwise being delivered in an "as -is" condition.
94V Ti I
2.1 Initial Term. Lessor hereby leases the Premises to Lessee for the purposes
only as described in this Lease, and subject to the terms and conditions contained herein,
for a term of thirty (30) years beginning on the Effective Date ("Initial Term").
2.2 Option to Extend. Provided Lessee is not then in default beyond applicable
notice and cure periods provided herein, upon Lessee's request and Lessor's approval of
such request, Lessee may extend the term of this Lease for two (2) additional consecutive
terms of ten (10) years (the "First Option Term" and "Second Option Term" respectively),
the first commencing on expiration of the Initial Term and the second commencing on
expiration of the First Option Term, on the same terms and conditions as contained in this
Lease as it may be amended from time to time. Lessee must exercise the option by giving
Lessor written notice of its intention to extend the Term for the Option Term at least ninety
(90) calendar days prior to expiration of the Initial Term or the expiration of the first Option
Term, as the case may be.
2.3 Terms of Lease. The "Term" as used herein is defined as the Initial Term
and, as exercised, the Option Term(s).
2.4 Holdover. This Lease shall terminate and become null and void without
further notice upon the expiration of the Term of this Lease or any Option Term. Any
holding over by Lessee after the expiration of the Term shall not constitute a renewal or
extension and shall not give Lessee any rights in or to the Property, or any part thereof,
except as expressly provided in this Lease. Any holding over after the expiration of the
Term with the consent of the Lessor shall be construed to be a tenancy from month -to -
month on the same terms and conditions set forth in this Lease insofar as such terms and
conditions may be applicable to a month -to -month tenancy ("Holdover Term"). The
month -to -month tenancy may be terminated without cause by Lessee or Lessor upon
thirty (30) calendar days' prior written notice to the other Party.
2.5 Termination of Use of District Property. Lessor has the right to immediately
terminate Lessee's use of the District Property with written notice to Lessee. If required
by Lessor, Lessee agrees to remove the Basketball Court and any improvements from
the District Property and restore the District Property to, as near as possible, it's original
condition and in a timeframe required by Lessor.
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST Page 3
3. CONSIDERATION
3.1 The consideration for this Lease shall be the payment of rent, Lessee's
agreement to perform any improvements as required under this Lease, the continued
maintenance and operation of the Premises for the Term of the Lease at no cost to
Lessor, the commitment of Lessee to operate the Premises as a boys' and girls'
club as provided in Section 5, and the right of Lessor to utilize the Premises as provided
in Section 6.
3.2 In accordance with City Council Policy F-7, whenever an open bid process
is not conducted or fair market value rent is not received for the use of City property, the
City shall make specific findings setting forth the reasons thereof. The City finds that
Lessee provides an essential or unique service to the community that might not otherwise
be provided were full market value of the property required. Additionally, as the rent being
charged is less than fair market value, the City Council finds this use provides a public
benefit to the community by providing recreational facilities to the public and is therefore
a matter of citywide benefit. These findings by the City are of a citywide concern in that
the beneficial uses of the Property might not otherwise be provided were full market value
of the Property required.
4. RENT
4.1 Lessee shall pay to Lessor, and Lessor shall accept as rent for the
Premises, the sum of One Dollar and 00/100 ($1.00) per year ("Rent"). Rent for the entire
Initial Term shall be due and payable within thirty (30) days of the Effective Date. Rent for
the Option Term(s) shall be due and payable on the expiration of the Initial Term and the
expiration of the first Option Term, respectively.
4.2 PaVment Location. All payments of Rent shall be made in lawful money of
the United States of America and shall be paid to Lessor in person or by United States'
mail, or overnight mail service, at the Cashier's Office located at 100 Civic Center Drive,
Newport Beach, California, 92660, or to such other address as Lessor may from time to
time designate in writing to Lessee. If requested by Lessor, Lessee shall make payments
electronically (at www.newportbeachca.gov) or by wire transfer (at Lessee's cost).
Lessee assumes all risk of loss and responsibility for late charges and delinquency rates
if payments are not timely received by Lessor regardless of the method of transmittal.
5. USE OF PREMISES
5.1 Lessee shall use the Premises, solely and exclusively, to manage and
operate an athletic, educational and technology based program, which will, among other
things, instruct children of all ages in fitness and health programs, technology, S.T.E.M.
education, 215' century skill development, character development, and leadership skills.
The Premises will be available to children regardless of their place of residence. Lessee
shall operate and manage the Premises in a manner which does not violate state or
federal discrimination laws. Lessee shall make all services, programs and facilities
available to the public on fair and reasonable terms.
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST Page 4
5.2 Lessee shall not grant any sublease, concession, license, permit or
privilege for the conduct of any business or other operation for profit on the Premises
without the prior written approval of the City Manager.
5.3 When the Premises are not in use by Lessee, the Premises shall be
available for use as a community center by the City's Recreation and Senior Services
Department on a first -priority basis, and by youth -based community non-profit
organizations in accordance with reasonable rules and regulations to be established by
Lessee. Lessee is authorized to charge a reasonable fee to cover maintenance costs to
groups and organizations, other than Lessor, for the use of the Premises.
5.4 If, at any time during the Term of the Lease, it is found that the use of the
Premises is not allowed by TIC per the deed restrictions contained in the Deed, Lessor
has the right to terminate this Lease with thirty (30) calendar days' written notice to
Lessee.
6. SHARED USE OF PREMISES
6.1 The Gymnasium, which includes use of the bleachers, scoreboards,
scoreboard controls, tables and chairs, shall be exclusively used by Lessor every
Monday, Wednesday, and Thursday year-round, from 6:15 p.m. to 10:00 p.m., or as may
be amended by written agreement of both Parties.
6.2 Lessor and Lessee shall meet regularly and proactively as needed to
mutually agree on any desired classes to be offered at the Premises through the City's
Recreation and Senior Services Department ("RSS Department").
6.3 Both Lessor and Lessee shall have access to the Premises including keys,
codes, or other means of access (collectively "locks") for entrance into the Premises.
Lessee and Lessor shall each maintain a list of authorized personnel who have access
to or possession of any locks to the Premises.
6.4 City's use of the Premises shall be for use as a community center or
recreation center by the RSS Department. However, Lessor agrees not to schedule use
by co -sponsored groups with programs that compete with Lessee's club programs without
prior written mutual agreement of the Parties.
6.5 The Parties shall communicate and cooperate, acting reasonably and in
good faith, in scheduling the use of the Premises in a manner which:
6.5.1 Maximizes the use of the Premises;
6.5.2 Promotes community outreach,
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST Page 5
6.5.3 Does not cause any undue noise between the hours of 10:00 p.m.
and 7:00 a.m. (i.e., deliveries, facilities or landscape maintenance);
and
6.5.4 Does not violate any law.
6.6 Notwithstanding any exclusive access to the Premises reserved to either
Party by the terms of this Lease, all conflicts in scheduling for use of the Premises which
are not resolved by staff, shall be discussed between Lessor's Recreation and Senior
Services Director ("RSS Director") or designee and Lessee's Chief Executive Officer. In
the event a conflict in scheduling for use of the Premises cannot be mutually resolved
following good faith and reasonable efforts, the decision of the RSS Director or designee
shall be final.
7. CAPITAL IMPROVEMENTS
7.1 Lessee recently completed a major renovation of the Premises
("Improvements") as further described in Exhibit "E", attached hereto and incorporated
herein by reference. Lessee represents and warrants that the Improvements were
approved by the City's Zoning Administrator and obtained in compliance with the City's
charter, municipal code and zoning code, state or federal law. Lessee shall maintain the
Premises and Improvements in compliance with the terms of this Lease, and more
specifically as set forth under Section 14.
7.2 Lessee may make additional improvements to the Premises throughout the
Term ("Additional Improvements"), with the prior written consent of Lessor. Improvements
and Additional Improvements are collectively referred to as "Improvements" herein.
7.3 Lessee shall be required to obtain, prior to commencing the construction of
any Improvements, all permits, licenses or approvals that may be required from any local,
state or federal entities.
7.4 No Improvements shall be erected or maintained on the Premises unless
and until plans and specifications for the proposed scope of work have first been
submitted to and approved, in writing, by Lessor.
7.5 Lessee shall, at all times, indemnify and hold Lessor harmless from any and
all claims for labor or materials in connection with the construction, repair, or installation
of any structure, capital improvement, equipment or facilities on the Premises and from
the costs of defending such claims, including reasonable attorney's fees. Lessee shall not
suffer or permit to be enforced against the Premises, or any part thereof, any mechanic's,
materialmen's, contractor's or subcontractor's liens arising from, or any claim for damage
growing out of, the work of any construction, repair, restoration, replacement or
improvement or any other claim or demand arising from Lessee's operations under this
Lease. In the event any lien or stop notices imposed or recorded on the Premises as a
result of the construction, repair or alteration of the facility, Lessee shall pay or cause to
be paid all such liens, claims or demands before any action is brought to enforce the
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST Page 6
same against the leased Premises. Notwithstanding anything to the contrary contained in
this Section 7.5, if Lessee shall in good faith contest the validity of such lien, claim or
demand, then Lessee shall, at its expense, defend itself and Lessor against the same
and shall pay and satisfy any adverse judgment that may be rendered thereon, before the
enforcement thereof against Lessor or the Premises upon the condition that if Lessor shall
require, Lessee shall furnish to Lessor a surety bond satisfactory to Lessor in an amount
equal to such contested lien, claim or demand indemnify Lessor against liability for the
same and holding the leased Premises free from the effect of such lien or claim.
7.6 Before the commencement of any work or construction of any building
structure or other improvement on the Premises, or of any substantial repairs, alterations,
additions, replacement or restoration, in or about the Premises, Lessee shall give Lessor
advanced written notice which specifies the nature and location of the intended work.
Lessee shall coordinate with Lessor for the scheduling of any work so that the work does
not excessively burden Lessor's use of the Premises.
7.7 Lessor reserves the right to require Lessee to obtain performance and/or
labor and materials bonds for Improvements. Lessor shall have the right, in its sole
discretion, to require Lessee to furnish a surety bond satisfactory to Lessor to fully protect
the Premises and Lessor from the effect or enforcement of any lien, claim or demand.
8. TIME OF OPERATIONS
Lessee shall keep the Premises open for use during the periods of time as may
be mutually agreed upon by Lessee and Lessor and shall not close said Premises from
use or substantially alter the type of services provided or facilities offered, without first
obtaining the written approval of the RSS Director.
9. MANAGEMENT
Lessee agrees that at all times during the Term, the BGC Newport Beach will be
managed by a Qualified Manager, as defined below, and operated by Lessee or an
Affiliate of Lessee, as defined below. A Qualified Manager is an experienced operator
with a good reputation for honesty and integrity and experience in the operation and
management of recreational clubs. An Affiliate means any individual, corporation, partner,
partnership, limited liability company, trust or other entity which directly or indirectly
controls, is directly or indirectly controlled by or is under common control, whether it be
direct or indirect, with the Lessee and has the financial ability to perform its obligations
under a management agreement for the management and operation of the BGC Newport
Beach.
10. UTILITIES AND TAXES
10.1 Utilities. Lessee shall make arrangements for and be responsible for
payment, prior to the delinquency date, all charges for utilities furnished to or used on the
Premises including, without limitation, gas, electricity, sewer, water, refuse collection,
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST Page 7
telephone service, and cable TV. Satisfactory evidence of such payments shall be
delivered to Lessor within seventy-two (72) hours of a written request for such information.
10.2 Refuse Collection. Refuse collection may occur between 7:00 a.m. and 6:00
p.m. on non -holiday weekdays.
10.3 Payment of Taxes. Lessee shall pay directly to the appropriate taxing
authorities all taxes applicable to this Lease, fixtures and Lessee's personal property on
the Premises, that are levied or assessed against Lessee during the Term. Taxes shall
be paid before delinquency and before any fine, interest or penalty is due or imposed by
operation of law. Lessee shall, upon request, promptly furnish to Lessor satisfactory
evidence of payment. Lessor hereby gives notice to Lessee, pursuant to Revenue and
Tax Code Section 107.6 that this Lease may create a possessory interest that is the
subject of property taxes levied on such interest, the payment of which taxes shall be the
sole obligation of Lessee. Lessee shall advise in writing any subtenant, licensee,
concessionaire or third party using the Premises of the requirements of Section 107.6.
Lessee shall pay, before delinquency all taxes, assessments, license fees and other
charges ("Taxes") that are levied or assessed against Lessee's interest in the Premises
or any personal property installed on the Premises.
10.4 Payment of Obligations. Lessee shall promptly pay, when due, any and all
bills, debts, liabilities and obligations incurred by Lessee in connection with Lessee's
occupation and use of the Premises including the construction and/or maintenance of the
Improvements.
10.5 Reserved.
10.6 No Rent Offset. Any payments under this Section 10 shall not reduce or
offset Rent payments. Lessor has no liability for such payments.
11. INSURANCE
Without limiting Lessee's indemnification of Lessor, Lessee shall provide and
maintain at its own expense during the term of this Lease policies of liability insurance
of the type and amounts described in Exhibit "F," which is attached hereto and
incorporated herein by reference.
12. HOLD HARMLESS
12.1 Lessee agrees to indemnify, defend and hold harmless District, and Lessor
and its elected and appointed officers, agents, officials, volunteers, employees and any
person or entity owning or otherwise in legal control of the Property (collectively, the
"Indemnified Parties") from and against any and all claims (including, without limitation,
claims for bodily injury, death or damage to property), demands, obligations, damages,
actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and
expenses (including, without limitation, attorney's fees, disbursements and court costs)
of every kind and nature whatsoever (individually, a "Claim;" collectively, "Claims"), which
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST Page 8
may arise from or in any manner relate (directly or indirectly) to Lessee's, Lessee's
employees, contractor, subcontractor, agents, guests, invitees, sublessee's possession,
occupation or use of the Premises, specifically including, without limitation, any claim,
liability, loss, or damage arising by reason of:
12.1.1 The death or injury of any person or damage to personal property
related to a condition of the Premises or an act or omission of Lessee or an agent,
contractor, subcontractor, supplier, employee, servant, or sublessee of Lessee;
12.1.2 Any work performed on the Premises including the construction
and/or maintenance of the Improvements, or materials furnished to the Premises at the
request of Lessee or any agent or employee of Lessee; and/or
12.1.3 Lessee's failure to perform any provision of this Lease or to comply
with any requirement of law or any requirement imposed on the Premises by any duly
authorized governmental agency or political subdivision.
12.2 Lessor shall not be liable to Lessee for any Damage to Lessee or Lessee's
property, goodwill, increased Lessee operating costs, or loss of business or income by
Lessee from any cause other than the gross negligent, intentional or willful acts of City or
its elected and appointed officers, agents, officials, volunteers, employees. Except as
otherwise expressly provided in this Agreement, Lessee releases and also waives all
claims against City for damages arising for any reason other than the gross negligent,
intentional or willful acts of City or its elected and appointed officers, agents, officials,
volunteers, employees. City shall not be liable to Lessee for any damage to the Premises,
Lessee's property, Lessee's goodwill, or Lessee's business income, caused in whole or
in part by acts of nature including, without limitation, waves, wind and tidal flows.
This indemnity shall apply to all claims and liability regardless of whether any insurance
policies are applicable.
13. HAZARDOUS SUBSTANCE
13.1 Hazardous Substance means: (i) any substance, product, waste or other
material of any nature whatsoever which is or becomes listed, regulated, or addressed
pursuant to the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. Section 9601 et seq. ("CERLCA"); the Hazardous Materials Transportation
Act, 49 U.S.C. Section 1801, et seq.; the Resource Conversation and Recovery Act, 42
U.S.C. Section 6901 et seq. "RCRA"); the Toxic Substances Control Act, 15 U.S.C.
Section 2601 et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et seq.; the California
Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq.; the
California Hazardous Substance Account Act, Health and Safety Code Sections 25330
et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety
Code Sections 25249.5 et seq.; California Health and Safety Code Sections 25280
et seq. (Underground Storage of Hazardous Substances); the California Hazardous
Waste of Concern and Public Safety Act, Health and Safety Code Sections 25169.5 et
seq.; California Health and Safety Code Sections 25501 et seq. (Hazardous Materials
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST Page 9
Response Plans and Inventory); or the Porter -Cologne Water Quality Control Act, Water
Code Sections 13000 et seq., all as they, from time -to -time may be amended or re -
codified, (the above -cited statutes are here collectively referred to as the "Hazardous
Substances Laws") or any other Federal, State or local statute, law, ordinance, resolution,
code, rule, regulation, order or decree regulating, relating to, or imposing liability or
standards of conduct concerning, any hazardous, toxic or dangerous waste, substance
or material, as now or at any time hereafter in effect; (ii) any substance, product, waste
or other material of any nature whatsoever which may give rise to liability under any of
the above statutes or under any statutory or common law theory, including but not limited
to negligence, trespass, intentional tort, nuisance, waste or strict liability or under any
reported decisions of a state or federal court; (iii) petroleum or crude oil; and (iv) asbestos.
13.2 From the Effective Date and throughout the Term, Lessee shall not use,
occupy, or permit any portion of the Premises to be used or occupied in violation of any
Hazardous Substance laws.
13.3 Notwithstanding any contrary provision of this Lease, and in addition to the
indemnification duties of Lessee set forth elsewhere in this Lease, Lessee indemnifies,
defends with counsel reasonably acceptable to Lessor, protects, and holds harmless
Lessor and its elected officials, officers, employees, agents, attorneys, volunteers and
representatives from and against any and all losses, fines, penalties, claims, demands,
obligations, actions, causes of action, suits, costs and expenses (including, without
limitation, attorneys' fees, disbursements and court costs), damages, judgments, or
liabilities, including, but not limited to, any repair, cleanup, detoxification, or preparation
and implementation of any remedial, response, closure or other plan of any kind or nature
which the Lessor and its officials, officers, employees, agents, attorneys, volunteers or
assigns may sustain or incur, or which may be imposed upon them, in connection with
any breach of Lessee's obligations or representations in this Lease or the use of the
Premises under this Lease, arising from or attributable to the Lessee Parties (defined
below) storage or deposit of Hazardous Substances in violation of applicable laws. This
section is intended to operate as an agreement pursuant to Section 107(e) of CERCLA,
42 USC Section 9607(e), and California Health and Safety Code Section 25364, to
insure, protect, hold harmless, and indemnify Lessor for any claim pursuant to the
Hazardous Substance laws or the common law.
13.4 Lessee does not, and shall not, authorize any third party to use, generate,
manufacture, maintain, permit, store, or dispose of any Hazardous Substances in
violation of applicable laws on, under, about or within the Premises.
13.5 Upon expiration or earlier termination of this Lease, Lessee shall deliver
possession of the Premises in compliance with Hazardous Substance laws subject to the
last sentence of Section 13.2 above.
13.6 If during the Term of this Lease, Lessee becomes aware of (i) any actual or
threatened release of any Hazardous Substances on, in, under, from, or about the
Premises in violation of Hazardous Substance laws; or (ii) any inquiry, investigation,
proceeding, or claim by any government agency or other person regarding the presence
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST Page 10
of any Hazardous Substances in violation of Hazardous Substance laws on, in, under,
from or about the Premises, Lessee shall give Lessor written notice of the release or
inquiry within five (5) calendar days after Lessee becomes aware or first has reason to
believe there has been a release or inquiry and shall simultaneously furnish to Lessor
copies of any claims, notices of violation, reports, warning or other writings received by
Lessee that concern the release or inquiry.
13.7 If the presence of any Hazardous Substances brought onto the Premises
by Lessee or Lessee's employees, agents, sublessees, licensees, concessionaires,
contractors, or invitees ("Lessee Parties"), or generated by same during the Term of this
Lease, results in contamination of the Premises or adjacent properties in violation of
Hazardous Substance laws, Lessee shall promptly take all necessary actions, at Lessee's
sole expense, to remove or remediate such Hazardous Substances in full compliance
with applicable laws. Lessee shall provide notice to Lessor prior to performing any
removal or remedial action. Lessee shall not propose nor agree to any covenant of use
restriction as part of any removal or remediation required as a result of this provision
without Lessor's written consent. Lessee shall pay any costs Lessor incurs in performing
Lessee's obligation to clean-up contamination resulting from Lessee's operations or use
of the Premises.
13.8 Should any clean-up of Hazardous Substances for which Lessee is
responsible not be completed prior to the expiration or sooner termination of the Lease,
including any extensions thereof, then Lessee shall transfer the amounts required to
complete clean-up into an escrow account, together with Lessor -approved instructions
for the disbursement of such amount in payment of the costs of any remaining clean-up
as it is completed, and (ii) if the nature of the contamination or clean-up required of Lessee
is of such a nature as to make the Premises untenable or unleasable, then Lessee shall
be liable to Lessor as a holdover lessee until the clean-up has been sufficiently completed
to make the Premises suitable for lease to third parties. The estimated cost of the clean-
up shall require approval of the Lessor.
13.9 If Lessor determines, in its reasonable discretion, that Lessee does not have
insurance or other financial resources sufficient to enable Lessee to fulfill its obligations
under this provision, whether or not accrued, liquidated, conditional, or contingent, then
Lessee shall, at the request of Lessor, procure and thereafter maintain in full force and
effect such environmental impairment liability and/or pollution liability insurance policies
and endorsements, or shall otherwise provide such collateral or security reasonably
acceptable to Lessor as is appropriate to assure that Lessee will be able to perform its
duties and obligations hereunder.
13.10 Lessee's obligations in this Section 13 shall survive the expiration or earlier
termination of this Lease.
14. MAINTENANCE OF LANDSCAPING, BUILDINGS AND IMPROVEMENTS
14.1 Lessee Maintenance. Lessee to maintain all landscaping, buildings and
improvements on the Premises:
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST Page 11
14.1.1 Lessee covenants and agrees that during the Term of this Lease it
will, at its sole cost and expense, maintain the grounds, landscaping, including tree
trimming and irrigation, Recreation Building, Gymnasium, Basketball Court,
Improvements, equipment and furniture, in good order and repair and in clean, orderly,
safe and sanitary condition. As part of required ongoing maintenance, Lessee agrees to
paint the interior of the Recreation Building as needed.
14.1.2 Lessee shall provide and maintain parking for the Premises in
compliance with Use Permit 1503, as amended, and which may be further amended from
time to time.
14.1.3 Lessee shall be responsible for the repair of any damage caused by
its members or their invitees.
14.2 Lessor May Elect to Repair and Maintain at Expense of Lessee. If, in the
judgment of the Lessor, such standards of maintenance and repair are not being
maintained, it may at its option, after not less than thirty (30) calendar days prior written
notice thereof to the Lessee and Lessee's failure to commence in good faith to remedy
the same within the time herein provided and thereafter diligently prosecute the same to
completion, elect to correct any deficiency, whether it be in reference to grounds,
landscaping, building or improvements. Lessee covenants and agrees to pay to Lessor
on demand any and all sums expended by it in correcting any such deficiency, together
with interest at the legal rate. If, in the judgment of Lessor, the disrepair or lack of
maintenance constitutes an emergency, the notice herein provided shall be a 24-hour
notice to remedy.
14.3 District Property. Pursuant to the terms of the License Agreement, Lessee
may use the District Property for the operation of a basketball court. Lessee is responsible
for maintaining the Basketball Court at its sole cost and expense, including the portion of
the Basketball Court on the District Property.
14.4 Lessor's Right of Inspection. In addition to Lessor's rights to use the
Premises as provided in this Lease, Lessor reserves the right by its authorized agents,
employees or representatives to enter the Premises at any time, without notice, to inspect
the Premises in order to attend to or protect the Lessor's interest under this Lease.
14.5 Compliance with Laws, Ordinances and Regulations. Lessor and Lessee
covenant and agree to comply with all rules, regulations, statutes, ordinances and laws
of the State of California, County of Orange, the City of Newport Beach, or any other
governmental body or agency having lawful jurisdiction over the Premises or the
business, enterprises, or activities conducted thereon.
14.6 Site Walk. Lessor and Lessee shall annually perform a joint inspection of
the Premises by July 15th of every year to determine what repairs and maintenance shall
be scheduled for the following year.
14.7 Annual Report. Lessee shall provide a written report to Lessor on or before
July 15th of every calendar year during the Term, including any Option Terms, a list of
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST Page 12
any and all maintenance, repairs, or other work completed, including the costs incurred
thereof, for the prior calendar year.
15. ASSIGNMENT
Lessee shall not assign, transfer, sublease, mortgage, hypothecate or give any
grant of control of this Lease or the Premises, or any part hereof, either voluntarily or
involuntarily, unless first approved by the City Council.
16. RESTORATION
If during the Term the Premises are totally or partially destroyed, rendering the
Premises or any portion thereof totally or partially inaccessible or unusable, Lessee shall,
at its sole cost and expense, repair or restore the Premises to substantially the same
condition as immediately prior to such destruction (including all trade fixtures, personal
property, improvements and alterations as are installed by Lessee, which shall be
replaced by Lessee at its expense). Any such work of repair, restoration or replacement
shall be commenced within one hundred and eighty (180) days after the damage or loss
occurs and shall be completed with due diligence, but not longer than one (1) year after
such work is commenced unless delay is caused by events beyond the control of Lessee.
Alternatively, Lessee may elect to terminate this Lease by giving written notice of such
election to Lessor within sixty (60) calendar days after the date of the occurrence of any
casualty if the cost of the restoration exceeds the amount of any available insurance
proceeds, if the damage has been caused by an uninsured casualty or event, or if Lessee
reasonably estimates that repairs of the Premises will take more than six (6) months.
Upon such termination, insurance proceeds applicable to reconstruction of the Premises
(excluding Lessee's personal property therein) shall be paid to Lessor, and Lessee shall
have no further liability or obligations under this Lease.
17. DEFAULT AND TERMINATION OF LEASE
17.1 Default. Time and each of the terms, covenants and conditions hereof are
expressly made the essence of this Lease. If the Lessee shall fail to comply with any of
the terms, covenants, or conditions of this Lease, including:
17.1.1 Failure of Lessee to keep current on all payments required in
Section 13;
17.1.2 Failure of Lessee to keep the Premises or Improvements in good
order and repair, and in a neat, clean, orderly, safe and sanitary
condition;
17.1.3 Failure of Lessee to maintain the Premises or Improvements in
compliance with any applicable provisions of the City's charter,
municipal code and zoning code, state or federal law;
17.1.4 Failure to make payment of Rent at the time and in the amount
herein required;
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST Page 13
17.1.5 Violation of Section 6 (Shared Use), Section 9 (Management,
Section 14 (Maintenance), Section 16 (Restoration), or Section 19
(Unlawful Use) of this Lease; or
17.1.6 Failure to provide and maintain valid proof of insurance coverage
as required in Section 11 of this Lease.
and fails to (1) remedy such default within fourteen (14) calendar days after service of a
written notice from Lessor to do so, if the default may be cured by the payment of money
or, (2) remedy any default of Section 17.1.2 that presents a life safety issue within fourteen
(14) days, (3) commence in good faith to remedy any other default within thirty (30)
calendar days and thereafter diligently prosecute the same to completion or, (4) if Lessee
shall abandon or vacate the Premises for more than thirty (30) calendar days other than
for periods of repair or remodel, which shall be approved in advance by Lessor, then
Lessor may, at its option and without further notice or demand, terminate this Lease and
enter upon the Premises and take possession thereof, and remove any and all persons
therefrom in the appropriate manner provided by law.
17.2 Surrender of Possession upon Expiration or Termination. Lessee covenants
and agrees that upon the expiration or sooner termination of this Lease, the Lessee will
peaceably surrender the Premises with all buildings and improvements, in the same
condition as when received or constructed, excepting reasonable use and wear thereof,
and damage by fire, act of God, or by the elements. The Recreation Facilities and all other
improvements built, constructed or placed upon the Premises by the Lessee (excluding
Lessee's fixtures, equipment, furniture, and moveable decorations), or anyone holding
by, under, or through it, shall remain on the Premises and become the property of the
Lessor without any cost to Lessor upon the expiration or termination of this Lease,
whether by lapse of time or by reason of default, unless, at its sole and absolute
discretion, Lessor requires Lessee to remove some or all improvements on the Premises
within sixty (60) days following the expiration or termination of this Lease. The provisions
of this section shall be effective upon expiration or termination of this Lease regardless of
whether Lessee holds over under the provisions of Section 2.4.
17.3 Remedies Cumulative. The rights, powers, elections and remedies of the
Lessor contained in this Lease shall be construed as cumulative and no one of them shall
be considered exclusive of the other or exclusive of any rights or remedies allowed by
law, and the exercise of one or more rights, powers, elections or remedies shall not impair
or be deemed a waiver of Lessor's right to exercise any other.
17.4 No Waiver.
17.4.1 No delay or omission of the Lessor to exercise any right or power
arising from any omission, neglect or default of the Lessee shall impair any such right.. or
power or shall be construed as a waiver of any such omission, neglect or default on the
part of the Lessee or any acquiescence therein.
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST Page 14
17.4.2 No waiver of any breach of any of the terms, covenants,
agreements, restrictions or conditions of this Lease shall be construed as a waiver of any
succeeding breach of the same or of any of the terms covenants, agreements, restrictions
or conditions of this Lease.
18. EMINENT DOMAIN
18.1 In the event the whole or part of the Premises or improvements is
condemned by a public entity in the lawful exercise of the power of eminent domain, this
Lease shall cease as to the part condemned upon the date possession of that part is
taken by the public entity.
18.2 If only a part is condemned and the taking of that part does not substantially
impair the capacity of the remainder to be used for the purposes required in this Lease,
Lessee shall continue to be bound by the terms, covenants and conditions of this Lease.
18.3 If only a part is condemned and the taking of that part substantially impairs
the capacity of the remainder to be used for the purposes required in this Lease, Lessee
shall have the election of:
18.3.1 Terminating this Lease and being absolved of obligations hereunder
which have not accrued at the date possession is taken by the public
entity; or
18.3.2 Continuing to occupy the remainder of the Premises and remaining
bound by the terms, covenants and conditions of this Lease.
18.4 Lessee shall give notice in writing of his election hereunder, within thirty (30)
days of the date possession of the part is taken by the public entity.
18.5 Lessor shall be entitled to receive and shall receive all compensation for the
condemnation of all or any portion of the Premises by exercise of eminent domain.
18.6 Lessee shall be entitled to receive and shall receive all compensation for
the condemnation of all or any portion of the improvements constructed by Lessee on
the Premises by the exercise of eminent domain.
19. UNLAWFUL USE
Lessee agrees that no improvement shall be erected, constructed or operated on
the Premises, nor any business conducted on the Premises, in violation of the terms of
this Lease or of any regulation, order, law, statute, bylaw, charter provision, or ordinance
of any governmental agency having jurisdiction. Lessee shall not construct, maintain, or
allow any sign upon the Premises or Property, or improvements thereon, except as
approved in writing by Lessor, and further, such sign must be in compliance with the
provisions of the Newport Beach Municipal Code. Lessee shall not discriminate against
any person or class of persons by reason of race, religious creed, color, national origin,
ancestry, age, physical disability, mental disability, medical condition, including the
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST Page 15
medical condition of Acquired Immune Deficiency Syndrome (AIDS) or any condition
related thereto, marital status, sex, sexual orientation or any other impermissible basis
under the law. Lessee shall make all of its services, programs and facilities available to
the public on fair and reasonable terms.
20. TERMINATION OF EXISTING LEASE
Concurrently with execution of this Lease by the Parties, the Existing Lease is
hereby terminated.
21. NOTICES
All notices pursuant to this Lease shall be deemed given when personally delivered or
deposited in the United States mail, first class postage prepaid, and addressed as follows:
Lessor: City of Newport Beach
Attention: Real Property Administrator
100 Civic Center Drive
Newport Beach, CA 92660
Lessee: Boys & Girls Clubs of Central Orange Coast
Attention: Executive Director
17701 Cowan, Suite 110
Irvine, CA 92614
22. MEMORANDUM OF LEASE
A Memorandum of Lease Agreement ("Memorandum"), in a form and content
similar to that contained in Exhibit "G," which is attached hereto and incorporated by
reference, shall be recorded by the parties promptly upon execution of this Lease. Upon
execution by both Parties, the Memorandum shall be recorded against the Property in the
office of the Orange County Clerk -Recorder, as required by Government Code
Section 37393.
23. COMPLIANCE WITH ALL LAWS
Lessee shall at its own cost and expense comply with all statutes, ordinances,
regulations and requirements of all governmental entities, including federal, state, county
or municipal, whether now in force or hereinafter enacted. In addition, all work prepared
by Lessee shall conform to applicable city, county, state and federal laws, rules,
regulations and permit requirements and be subject to approval of the City Manager or
their designee.
24. WAIVER
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST Page 16
The waiver by Lessor or Lessee of any breach of this Lease by the other shall not
be deemed to be a waiver of any term, covenant, or condition or any subsequent breach.
The acceptance of Rent by Lessor shall not be deemed a waiver of any breach by Lessee
other than the failure to pay the particular rent accepted.
25. PARTIAL INVALIDITY
If any term or provision of this Lease is declared invalid or unenforceable, the
remainder of this Lease shall not be affected.
26. GOVERNING LAW
The laws of the State of California shall govern this Lease and all matters relating
to it and any action brought relating to this Lease shall be adjudicated in a court of
competent jurisdiction in the County of Orange, State of California. Neither Lessor's
execution of this Lease nor any consent or approval given by the City of Newport Beach
in its capacity as landlord shall affect the City of Newport Beach's powers and duties as
a governmental body. Any consent or approval Lessee is required to obtain from Lessor
pursuant to this Lease is in addition to any permits or approvals Lessee is required to
obtain pursuant to law or ordinance. However, Lessor shall attempt to coordinate its
procedures for giving contractual and governmental approvals so that Lessee's requests
and applications are not unreasonable denied or delayed.
27. ENTIRE AGREEMENT; MODIFICATION
This Lease contains the entire agreement between the Parties. No verbal
agreement or implied covenant shall be held to vary the provisions of this Lease. Each
Party has relied on its own investigation of the Premises and examination of this Lease,
the counsel of its own attorney or other advisors, and has a complete understanding of
the overall warranties, representations, and covenants in this Lease. The failure or refusal
of either Party to inspect the Premises, to read this Lease or other documents, or to obtain
legal or other advice relevant to this transaction shall not be the basis for later claim that
all or part of this Lease is not enforceable or was not understood by a Party when this
Lease was signed. No provision of this Lease may be amended or varied except by an
agreement in writing signed by the Parties or their respective successors.
28. TIME IS OF THE ESSENCE
Time is of the essence with respect to the performance of every provision of this
Lease in which time of performance is a factor. All time deadlines are meant to be strictly
construed. A "day" means a calendar day, with extension if a deadline occurs on a
weekend or day when banks are not open in California.
29. SUCCESSORS
Subject to the provisions of this Lease on assignment and subletting, each and all
of the covenants and conditions of this Lease shall be binding on and shall inure to the
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST Page 17
benefit of the heirs, successors, executors, administrators, assigns, and personal
representatives of the respective parties.
30. INTERPRETATION
The terms of this Lease shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either party by reason of the
authorship of this Lease or any other rule of construction which might otherwise apply.
31. HEADINGS
The captions of the various sections of this Lease are for convenience and ease
of reference only and do not define, limit augment, or describe the scope, content, or
intent of this Lease.
32. NO BROKERS
Each party warrants to and for the benefit of the other than it has had no dealings
with any real estate broker or other agent (attorneys excepted) in connection with the
negotiation or making of this Lease, and that no commission, fee or other compensation
is owed regarding this Lease by such other Party.
33. GENDER; NUMBER
The neuter gender includes the feminine and masculine, the masculine includes
the feminine and neuter, and the feminine includes the neuter, and each includes
corporation, partnership, or other legal entity whenever the context requires. The singular
number includes the plural whenever the context so requires.
34. EXHIBITS
All exhibits to which reference is made in this Lease are incorporated by reference.
Any reference to "this Lease" includes matters incorporated by reference.
35. CITY BUSINESS LICENSE
Lessee shall obtain and maintain during the duration of this Agreement, a City
business license as required by the Newport Beach Municipal Code
36. NO ATTORNEY'S FEES
The prevailing party in any action brought to enforce the terms and conditions of
this Lease, or arising out of the performance of this Lease, shall not be entitled to recover
its attorneys' fees.
37. NONDISCRIMINATION
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST Page 18
Lessee, for itself and its successors, agrees that in the performance under this
Lease, Lessee shall not discriminate against any person because of the marital status or
ancestry of that person or any characteristic listed or defined in Section 11135 of the
Government Code.
38. NO THIRD -PARTY BENEFICIARIES
City of Newport Beach (both as a lessor and as the City of Newport Beach) and
Lessee do not intend, by any provision of this Lease, to create in any third party, any
benefit or right owed by one party, under the terms and conditions of this Lease, to the
other party.
39. CALIFORNIA LABOR LAWS
It shall be the obligation of Lessee to comply with all laws, including, but not limited
to, State of California labor laws, rules and regulations and the Parties agree that the
Lessor shall not be liable for any violation by Lessee (or Lessee's agent, sublessee or
any party affiliated with Lessee) thereof.
40. NO DAMAGES
Lessee acknowledges that Lessor would not enter this Lease if it were to be liable
for damages (including, but not limited to, actual damages, economic damages,
consequential damages, lost profits, loss of rents or other revenues, loss of business
opportunity, loss of goodwill or loss of use) under, or relating to, this Lease or any of the
matters referred to in this Lease, including, without limitation, any and all plans, permits,
licenses or regulatory approvals, and CEQA documents. Accordingly, Lessee covenants
and agrees on behalf of itself and its successors and assigns, not to sue the City of
Newport Beach (either in its capacity as lessor in this Lease or in its capacity as the City
of Newport Beach) for damages (including, but not limited to, actual damages, economic
damages, consequential damages, lost profits, loss of rents or other revenues, loss of
business opportunity, loss of goodwill or loss of use) or monetary relief for any breach of
this Lease by Lessor or for any dispute, controversy, or issue between Lessor and Lessee
arising out of or connected with this Lease or any of the matters referred to in this Lease,
including, without limitation, any and all plans, permits, licenses or regulatory approvals,
CEQA documents, or any future amendments or enactments thereto, the parties agreeing
that declaratory relief, injunctive relief, mandate and specific performance shall be
Lessee's sole and exclusive judicial remedies.
41. GOVERNMENT CLAIMS ACT
Lessee and Lessor agree that in addition to any claims filing or notice requirements
in this Lease, Lessee shall file any claim that Lessee may have against Lessor in strict
conformance with the Government Claims Act (Government Code sections 900 et seq.),
or any successor statute.
V,F 99111ki111=1V91-121K
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST Page 19
This Lease may be executed in two (2) or more counterparts, each of which shall
be deemed an original and all of which together shall constitute one (1) and the same
instrument.
[SIGNATURES ON NEXT PAGE]
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST Page 20
IN WITNESS WHEREOF, we have executed this Lease as of the day and year
written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 3 I "�yI I
By: �L/"
Aaron .-Harp U 3 • zq • zs wc,
City At rney
ATTEST:
Date: "L3L IX�
By. c
epfi� —
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: /24 1x7-3
By:
Gr e Leung
Cit anager
LESSEE: BOYS & GIRLS CLUB OF
CENTRAL ORANGE COAST, a California
nonprofit corporation
Date:
By. Signed in Counterpart
Robert Santana
Chief Executive Officer
Date:
Signed in Counterpart
Bv:
Nicole Carrillo Hall
Chief Financial Officer
[END OF SIGNATURES]
Attachments: Exhibit A:
Legal Description of Property
Exhibit B:
Depiction of Property
Exhibit C:
Depiction of District Property
Exhibit C-1:
Depiction of District Property
Exhibit C-2:
Depiction of Portion District Property Leased to
BGCSA
Exhibit D:
Depiction of Premises
Exhibit E:
Improvements
Exhibit F:
Insurance Requirements
Exhibit G:
Memorandum of Lease
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST Page 21
IN WITNESS WHEREOF, we have executed this Lease as of the day and year
written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By:
Aaron .-Harp U 3 • z9 • Z3 wr.
City At rney
ATTEST:
Date:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
in
Grace K. Leung
City Manager
LESSEE: BOYS & GIRLS CLUB OF
CENTRAL ORANGE COAST, a California
nonprofit corporation
Date: '5Li-!, tla,2�
By: By: (77��
Leilani I. Brown Robert a
City Clerk Chief Executive cer
M
By:
Nic
Chief Financial Officer
[END OF SIGNATURES]
Attachments: Exhibit A:
Legal Description of Property
Exhibit B:
Depiction of Property
Exhibit C:
Depiction of District Property
Exhibit C-1:
Depiction of District Property
Exhibit C-2:
Depiction of Portion District Property Leased to
BGCSA
Exhibit D:
Depiction of Premises
Exhibit E:
Improvements
Exhibit F:
Insurance Requirements
Exhibit G:
Memorandum of Lease
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST Page 21
FXHIRIT A
LEGAL DESCRIPTION OF PROPERTY
That portion of Block 52 of Irvine's Subdivision in the City of Newport Beach,
County of Orange, State of California, as per map recorded in Book 1, Page 88, of
Miscellaneous Record Maps in the Office of the County Recorder of said County.
APN 440-161-06
Inclusive of Parcel 1 as shown on a map fled in Book 38, Page 9 of Parcel Maps
and a portion of Block 52 of Irvine's Subdivision as shown on a map thereof recorded in
Book 1, Page 88 of Miscellaneous Record Maps, Records of Orange County, California.
APN 440-161-05
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST A-1
EXHIBIT B
DEPICTION OF PROPERTY
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST B-1
IWA:II:i10:
Ste' ' A
AP
i ■■ F - 7,
f.
74
ti
-3 Eastbl,,ff
°k Elementirt'.5cho
t
Disclaimer:
N E W P O R T a a c Every reasonable effort has been made to assure the
accuracy of the data provided, however, The City of
Newport Beach and its employees and agents
0 417 833 disclaim any and all responsibility from or relating to
any results obtained in its use.
Feet
Cqt/FOR��PJ
12/19/2018
EXHIBIT C
DEPICTION OF DISTRICT PROPERTY
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST C-1
EXHIBIT C-1
Depiction of District Property
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12/19/2018
EXHIBIT C-2
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Disclaimer:
0 Every reasonable effort has been made to assure the
accuracy of the data provided, however, The City of
Newport Beach and its employees and agents
0 40 80 disclaim any and all responsibility from or relating to
any results obtained in its use.
Feet
12/19/2018
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DEPICTION OF PREMISES
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST D-1
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DEPICTION OF PREMISES
EXHIBIT E
IMPROVEMENTS
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST E-1
Boys & Girls Club Newport Beach 2019 Pursuing Greatness Campaign Renovation Highlights
• 4 STEAM (Science Technology Engineering Arts Math) Labs
o Chromebooks
o IPads
o Projectors
o Programs: Arts, Character, Leadership, Entrepreneurship, Coding, etc.
• 1 Kindergarten Lab
• 1 Makerspace
o 3D Printers, Drones, Various Robotics, Laser Cutters, Virtual Gaming Projector, etc.
• Gymnasium
o New flooring, backboards, wall pads, bleachers, & updated design
• School Partnerships
o Eastbluff Elementary School o Newport Coast Elementary School
o Lincoln Elementary School o Corona Del Mar HS/MS
o Harbor View Elementary School
(714) E-4-;_5c40 1 17701 C,:-wan, Suite#110 1 Irvine, CA92614 1 w-o--o.b-y},sandgirlsclub.,:cirii
Wns M.
INSURANCE REQUIREMENTS
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST F-1
EXHIBIT F
INSURANCE REQUIREMENTS
Without limiting Lessee's indemnification of Lessor, Lessee will obtain, provide and
maintain at its own expense during the Term of this Lease, a policy or policies of
insurance of the type, amounts and form acceptable to Lessor. The policy or policies
shall provide, at a minimum, those items described below.
1. Provision of Insurance. Without limiting Lessee's indemnification of Lessor, and
prior to commencement of work on Property by Lessee or Lessee's agents,
representatives, consultants, contractors and/or subcontractors, Lessee shall
obtain, provide and maintain at its own expense during the Term of this Lease
policies of insurance of the type and amounts described below and in a form
satisfactory to Lessor. Lessee agrees to provide insurance in accordance with
requirements set forth herein. If Lessee uses existing coverage to comply and that
coverage does not meet these requirements, Lessee agrees to amend,
supplement or endorse the existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the insurance commissioner to transact business
of insurance in the State of California, with an assigned policyholders' rating of A -
(or higher) and financial size category class VII (or larger) in accordance with the
latest edition of best's key rating guide, unless otherwise approved by the City's
Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Lessee and Lessee's agents,
representatives, consultants, contractors and/or subcontractors, shall
maintain Workers' Compensation Insurance, statutory limits, and
Employer's Liability Insurance with limits of at least one million dollars
($1,000,000) each accident for bodily injury by accident and each employee
for bodily injury by disease in accordance with the laws of the State of
California, Section 3700 of the Labor Code.
Lessee and Lessee's agents, representatives, consultants, contractors
and/or subcontractors, shall submit to Lessor, along with the certificate of
insurance, a Waiver of Subrogation endorsement in favor of Lessor, its
officers, agents, employees and volunteers.
B. General Liability Insurance. Lessee and Lessee's agents, representatives,
consultants, contractors and/or subcontractors, shall maintain commercial
general liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than five million dollars ($5,000,000) per
occurrence, ten million dollars ($10,000,000) general aggregate. The policy
shall cover liability arising from Property, operations, personal and
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST F-1
advertising injury, and liability assumed under an insured contract (including
the tort liability of another assumed in a business contract) with no
endorsement or modification limiting the scope of coverage for liability
assumed under a contract.
Sexual abuse/molestation coverage shall be included under
Commercial General Liability or obtained in a separate policy with a limit of
not less than $1,000,000 per occurrence and $3,000,000 in the aggregate.
C. Automobile Liability Insurance. Lessee and Lessee's agents,
representatives, consultants, contractors and/or subcontractors, shall
maintain automobile insurance at least as broad as Insurance Services
Office form CA 00 01 covering bodily injury and property damage, including
coverage for any owned, hired, non -owned or rented vehicles, in an amount
not less than five million dollars ($5,000,000) combined single limit each
accident.
D. Professional Liability (Errors & Omissions) Insurance. Lessee shall require
that Lessee's consultants, contractors and/or subcontractors providing any
design, engineering, surveying or architectural services for the Property
maintain professional liability insurance that covers the services to be
performed, in the minimum amount of one million dollars ($1,000,000) per
claim and two million dollars ($2,000,000) in the aggregate. Any policy
inception date, continuity date, or retroactive date must be before the
Effective Date of this Lease and Lessee shall require that Lessee's
consultants, contractors and/or subcontractors agree to maintain
continuous coverage through a period no less than three (3) years after
completion of the services performed.
E. Products -Completed Operations. Lessee shall require and verify that
Lessee's construction contractors and subcontractors maintain commercial
general liability insurance, including products -completed operations, for a
period of at least five (5) years from the time that all work is completed or
obtain coverage for completed operations liability for an equivalent period.
F. Builder's Risk Insurance. During construction, Lessee shall maintain
Builder's Risk Insurance to cover "All Risk" of physical loss including
coverage for loss or damage from collapse resulting from builder's design
error. All property stored off -site or in transit must be covered. The value
insured shall cover 100% of the completed contract cost and include Boiler
& Machinery and Soft Costs and shall be maintained until full acceptance
by Lessor. The "All Risk" coverage shall contain no coinsurance clause.
Earthquake and flood coverage shall be covered to 100% of the completed
contract cost. A waiver of subrogation and primary and non-contributory
endorsements shall be provided to Lessor. Proceeds payable under this
insurance shall be fully payable to Lessor as Loss Payee. Lessee shall be
solely responsible for the payment of any deductible.
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST F-2
G. Property Insurance. Lessee shall maintain property insurance throughout
the Term of the Lease on an "All Risk" basis equal to the full replacement
cost of the Property. The insurance shall contain no coinsurance clause. A
waiver of subrogation and primary and noncontributory endorsements shall
be provided to Lessor. Proceeds payable under the insurance shall be fully
payable to Lessor as Loss Payee. Earthquake and flood coverage shall be
covered to 100% of the completed contract cost. Lessee shall be solely
responsible for the payment of any deductible.
H. Pollution Liability Insurance. Lessee shall require that Lessee's
construction contractors and subcontractors maintain a policy providing
contractor's pollution liability ("CPL") coverage with a total limit of liability of
no less than two million dollars ($2,000,000) per loss and in the aggregate
per policy period dedicated to this project. The CPL shall be obtained on
an occurrence basis for a policy term inclusive of the entire period of
construction. If all or any portion of CPL coverage is available only on a
claims -made basis, then a 10-year extended reporting period shall also be
purchased. The CPL policy shall include coverage for cleanup costs, third -
party bodily injury and property damage, including loss of use of damaged
property or of property that has not been physically injured or destroyed,
resulting from pollution conditions caused by contracting operations.
Coverage as required in this paragraph shall apply to sudden and non -
sudden pollution conditions resulting from the escape or release of smoke,
vapors, fumes, acids, alkalis, toxic chemicals, liquids, or gases, waste
materials, or other irritants, contaminants, or pollutants. The CPL shall also
provide coverage for transportation and off -site disposal of materials. The
policy shall not contain any provision or exclusion (including any so-called
"insured versus insured" exclusion or "cross -liability" exclusion) the effect of
which would be to prevent, bar, or otherwise preclude any insured or
additional insured under the policy from making a claim which would
otherwise be covered by such policy on the grounds that the claim is
brought by an insured or additional insured against an insured or additional
insured under the policy.
4. Endorsements: Policies shall contain or be endorsed to contain the following
provisions:
A. Additional Insured Status. Lessor, its elected or appointed officers, officials,
employees, agents and volunteers are to be covered as an additional
insured under all general liability, automobile liability and pollution liability
policies with respect to liability arising out of Lessee's activities related to
this Lease and with respect to use or occupancy of the Property.
B. Primary and Non Contributory. Policies shall be considered primary
insurance as respects to Lessor, its elected or appointed officers, officials,
employees, agents and volunteers as respects to all claims, losses, or
liability arising directly or indirectly from Lessee's operations. Any insurance
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST F-3
maintained by Lessor, including any self -insured retention Lessor may
have, shall be considered excess insurance only and not contributory with
the insurance provided hereunder.
C. Liability Insurance. Liability insurance shall act for each insured and
additional insured as though a separate policy had been written for each,
except with respect to the limits of liability of the insuring company.
D. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Lease shall be endorsed to waive subrogation against
Lessor, its elected or appointed officers, agents, officials, employees and
volunteers or shall specifically allow Lessee or others providing insurance
evidence in compliance with these requirements to waive their right of
recovery prior to a loss. Lessee hereby waives its own right of recovery
against Lessor, and shall require similar written express waivers from each
of its consultants, contractors or subcontractors.
E. Reporting Provisions. Any failure to comply with reporting provisions of the
policies shall not affect coverage provided to Lessor, its elected or
appointed officers, officials, employees, agents or volunteers.
F. Notice of Cancellation. The insurance required by this Lease shall not be
suspended, voided, canceled, or reduced in coverage or in limits except
after thirty (30) calendar days (ten (10) calendar days written notice of non-
payment of premium) written notice has been received by Lessor. It is
Lessee's obligation to ensure that provisions for such notice have been
established.
5. Additional Requirements.
A. In the event Lessor determines that (i) the Lessee's activities on the
Property creates an increased or decreased risk of loss to the Lessor, (ii)
greater insurance coverage is required due to the passage of time, or (iii)
changes in the industry require different coverage be obtained, Lessee
agrees that the minimum limits of any insurance policy required to be
obtained by Lessee or Lessee's consultants, contractors or subcontractors,
may be changed accordingly upon receipt of written notice from Lessor.
With respect to changes in insurance requirements that are available from
Lessee's then -existing insurance carrier, Lessee shall deposit certificates
evidencing acceptable insurance policies with Lessor incorporating such
changes within thirty (30) calendar days of receipt of such notice. With
respect to changes in insurance requirements that are not available from
Lessee's then- existing insurance carrier, Lessee shall deposit certificates
evidencing acceptable insurance policies with Lessor, incorporating such
changes, within ninety (90) calendar days of receipt of such notice.
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST F-4
B. Any deductibles or self -insured retentions applicable to the commercial
property or insurance purchased in compliance with the requirements set
forth herein shall be approved by Lessor.
C. Lessee and Lessee's consultants, contractors and/or subcontractors shall
be subject to the insurance requirements contained herein unless otherwise
specified in the provisions above or written approval is granted by Lessor.
Lessee shall verify that all consultants, contractors and/or subcontractors
maintain insurance meeting all the requirements stated herein, and Lessee
shall ensure that Lessor is an additional insured on insurance required from
contractors, consultants and/or subcontractors.
D. For general liability coverage, contractors, consultants and/or
subcontractors shall provide coverage with a format at least as broad as
provided by Insurance Services Office form CG 20 38 04 13. Unless written
approval is granted by Lessor, contractors and/or subcontractors shall also
provide an additional insured endorsement at least as broad as ISO Form
CG 20 37.
E. If Lessee maintains higher limits than the minimums shown above, Lessor
requires and shall be entitled to coverage for the higher limits maintained
by the Lessee. Any available insurance proceeds in excess of the specified
minimum limits of insurance and coverage shall be available to Lessor.
F. Lessee shall give Lessor prompt and timely notice of any claim made or suit
instituted arising out of or resulting from Lessee or Lessee's agents,
representatives, consultants, contractors or subcontractors performance
under this Lease.
G. Lessee shall provide certificates of insurance, with original endorsements
as required above, to Lessor as evidence of the insurance coverage
required herein. Insurance certificates must be approved by Lessor prior to
commencement of work or issuance of any permit. Current certification of
insurance shall be kept on file with Lessor at all times during the term of this
Lease.
H. All required insurance shall be in force on the Effective Date, and shall be
maintained continuously in force throughout the term of this Lease. In
addition, the cost of all required insurance shall be borne by Lessee or by
Lessee's consultants, contractors or subcontractors.
If Lessee or Lessee's consultants, contractors or subcontractors fail or
refuse to maintain insurance as required in this Lease, or fail to provide
proof of insurance, Lessor has the right to declare this Lease in default
without further notice to Lessee, and Lessor shall be entitled to exercise all
available remedies.
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST F-5
EXHIBIT G
MEMORANDUM OF LEASE
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST G-1
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
City Clerk's Office
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
[Exempt from Recordation Fee - Govt. Code §§ 6103 & 27383]
MEMORANDUM OF LEASE AGREEMENT
This Memorandum of Lease Agreement ("Memorandum") is dated , 2023,
and is made between City of Newport Beach, a California municipal corporation and charter city
("Lessor" or "City") and Boys & Girls Clubs of Central Orange Coast, a California non-profit
corporation ("Lessee"), concerning the premises as depicted in Exhibit "A," attached hereto and
by this reference made a part hereof ("Premises").
For good and adequate consideration, Lessor leases the Premises to Lessee, and Lessee hires
them from Lessor, for the term and on the provisions contained in the Lease Agreement
dated , 2023 ("Agreement"), including without limitation provisions
prohibiting assignment, subleasing, and encumbering said leasehold without the express written
consent of Lessor in each instance, all as more specifically set forth in said Agreement, which
said Agreement is incorporated in this Memorandum by this reference.
The term is thirty (30) years, beginning , 2023, and ending
, 2053, and two (2) additional successive "Option Terms" of ten (10)
years, on the same terms and conditions contained in the Agreement as it may be amended from
time to time.
This Memorandum is not a complete summary of the Agreement. Provisions in this Memorandum
shall not be used in interpreting the Agreement's provisions. In the event of conflict between this
Memorandum and other parts of the Agreement, the other parts shall control. Execution hereof
constitutes execution of the Agreement itself.
Assessor's Parcel Numbers 440-161-05 and 440-161-06.
[SIGNATURES ON THE NEXT PAGE]
IN WITNESS WHEREOF, the Parties hereto have executed this Memorandum as of the
date first written above.
LESSOR LESSEE
City of Newport Beach, Boys & Girls Clubs of Central Orange Coast,
a California municipal corporation a California non-profit corporation
Grace K. Leung Robert Santana
City Manager Chief Executive Officer
ATTEST:
Leilani I. Brown
City Clerk
APPROVED AS TO FORM:
Aaron C. Harp
City Attorney
Nicole Carrillo Hall
Chief Financial Officer
[END OF SIGNATURES]
ATTACHMENTS: Exhibit A - Depiction of Premises
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST G-2
ACKNOWLEDGMENT
A notary public or other officer completing this certificate
verifies only the identity of the individual who signed the
document to which this certificate is attached, and not
the truthfulness, accuracy, or validity of that document.
State of California
County of } SS.
On , 20 before me, , Notary
Public, personally appeared who proved to me
on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf
of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
ACKNOWLEDGMENT
A notary public or other officer completing this certificate
verifies only the identity of the individual who signed the
document to which this certificate is attached, and not
the truthfulness, accuracy, or validity of that document.
State of California
County of } SS.
(seal)
On , 20 before me, , Notary
Public, personally appeared proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(seal)
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST G-0
EXHIBIT "A"
DEPICTION OF PREMISES
BOYS & GIRLS CLUBS OF CENTRAL ORANGE COAST G-4