HomeMy WebLinkAbout22 - Lease Agreement - Upper Newport Bay Regional ParkITEM 22
TO: Members of the Newport Beach City Council
FROM: Dave Kiff, Deputy City Manager
SUBJECT: Lease Agreement - Upper Newport Bay Regional Park
RECOMMENDEDACTION: Authorize the Mayor to execute the proposed Lease for a City -held tidelands
trust property within the boundaries of Upper Newport Bay Regional Park.
SUMMARY: Upper Newport Bay Regional Park is a County- operated regional park at the
northern edge of Upper Newport Bay. The Park is home to the soon- to -be-
complete (Grand Opening in October 2000) Upper Newport Bay Interpretive
Center, a distinctive slopeside building that will house interpretive exhibits
showing the wildlife and resource value of Upper Newport Bay.
Most of the 133 -acre park is owned by the County of Orange, but a small 6-
acre parcel near Irvine Avenue and Monte Vista (see map) is owned by the
State of California and held in trust by the City of Newport Beach.
Upper Newport Bay Regional Park
Site Held in Trust by City of Newport Beach
'I Subject Parcel
In order to consolidate and effectively manage the Regional Park, the County
has asked the City to lease the 6 -acre parcel to the County for 49 years from
the effective date of the Lease. The County has agreed to only use the
premises for park or park - related purposes. As consideration for the Lease,
the County will maintain and operate the premises and integrate the
Premises with the Park for full public use.
The City Attorney has reviewed the Lease and has found that it complies
with the City's standards for Lease Agreements, including its hold harmless,
insurance, and related provisions.
This Agenda Item asks the Council to authorize the Mayor to sign the
proposed Lease for the City's portion of the Upper Newport Bay Regional
Park property on behalf of the City.
ATTACHNIEN : Proposed Lease for Upper Newport Bay Regional Park site
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LEASE
(PORTION - UPPER NEWPORT BAY REGIONAL PARK)
THIS LEASE is made and entered into this day of , 2000, by
and between the City of Newport Beach, a chartered municipal corporation
(Lessor) and the County of Orange, a political subdivision of the State of
California, (Tenant).
RECITALS
A. Lessor holds in trust as State of California tidelands approximately six
acres of property between Irvine Avenue and Upper Newport Bay at
Monte Vista Avenue, which property is more particularly described in
Exhibit "A" and shown on Exhibit "B" attached hereto and by reference
made a part hereof (the "Premises ").
B. Tenant has acquired approximately 133 acres within the City of Newport
Beach which it has improved and which it maintains and operates as
Upper Newport Bay Regional Park (the Park) for all the residents of
Orange County.
C. The Premises is located within the Park boundaries and actually causes a
division of the Park into two unconnected portions.
D. Lessor and Tenant wish to include the Premises as part of Park for the
benefit of the public.
E. City is authorized to lease the Premises to Tenant consistent with the
provisions of the Charter of the City of Newport Beach and state law.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties hereto agree as follows:
1. DESCRIPTION OF LEASED PREMISES
Lessor hereby leases the Premises to Tenant and Tenant hereby leases the
Premises from Lessor.
2. TERM
The term of this Lease shall commence on the date of execution of this Lease by
Lessor and Tenant, as written above, and shall run for forty -nine (49) years from
that date.
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3. USE
A. Tenant shall maintain and operate the Premises as an integral portion of
the Park only and may improve the Premises for Park or Park related
purposes as it deems necessary or appropriate in accordance with all
federal and state laws.
B. All work on all improvements shall be performed in a good and
workmanlike manner, and shall comply with all applicable governmental
permits and laws.
C. Tenant shall pay all costs related to the construction of any improvements
by Tenant or its agents. Tenant shall keep the Premises free and clear of
all labor or materials liens resulting from construction of improvements on
the Premises.
4. CONSIDERATION
In consideration of the services to the public to be performed by Tenant in
maintaining and operating Premises as part of the Park, Lessor hereby leases
the Premises to Tenant on a rent -free basis.
5. OWNERSHIP OF IMPROVEMENTS
Upon expiration of this Lease, all improvements shall be free and clear of any
liens, claims, or liability for labor or material and, at Lessor's option shall become
the property of Lessor.
6. INSURANCE
Tenant shall provide and maintain at its own expense policies of liability
insurance as follows:
A. Comprehensive General
Liability
B. Auto Liability
C. Workers Compensation and
Employers Liability
MINIMUM LIMITS
$1,000,000 combined single limit per
occurrence for personal injuries,
including but not limited to bodily injury,
personal injury, property damage
liability, contractual liability, products/
completed operations liability, and
independent contractors liability.
$1,000,000 combined single limit
Statutory
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2 Lessor agrees that Tenant, at Tenant's option, may self- insure the coverages
3 required by this Paragraph 6 (INSURANCE).
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5 In addition, the Comprehensive General Liability policy shall include:
6 "The City of Newport Beach is added as additional insured as respects
7 operations of the named insured at or from the Premises."
9 7. UTILITIES
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11 Tenant shall be responsible for and pay all utilities provided to the Premises.
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13 8. ASSIGNMENT
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15 Tenant shall not assign, transfer or sublease any interest in Lease or Premises
16 unless first approved by Lessor.
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18 9. HOLD HARMLESS
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20 Tenant hereby waives all claims and recourse against Lessor including the right
21 of contribution for loss or damage of persons or property arising from, growing
22 out of or in any way connected with or related to this Lease except claims arising
23 from the concurrent active or sole negligence of Lessor, its officers, agents, and
24 employees. Tenant hereby agrees to indemnify, hold harmless, and defend
25 Lessor, its officers, agents, and employees against any and all claims, loss,
26 demands, damages, cost, expenses or liability costs arising out of the operation
27 or maintenance of the Premises and /or Tenant's exercise of the rights under this
28 Lease, except for liability arising out of the concurrent active or sole negligence
29 of Lessor, its officers, agents, or employees, including the cost of defense of any
30 lawsuit arising therefrom. In the event Lessor is named as co- defendant, Tenant
31 shall notify Lessor of such fact and shall represent Lessor in such legal action
32 unless Lessor undertakes to represent itself as co- defendant in such legal action,
33 in which event Tenant shall pay to Lessor its litigation costs, expenses and
34 attorney's fees. In the event judgment is entered against Lessor and Tenant
35 because of the concurrent active negligence of Tenant and Lessor, their officers,
36 agents, or employees, an apportionment of liability to pay such judgment shall be
37 made by a court of competent jurisdiction. Neither party shall request a jury
38 apportionment.
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40 10. AMENDMENTS
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42 This Lease is the sole and only agreement between the parties regarding the
43 subject matter hereof. Any changes to this Lease shall be in writing and shall be
44 properly executed by both parties.
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11. NOTICES
All notices pursuant to this Lease shall be addressed as set forth below or as
either party may hereafter designate by written notice and shall be sent through
the United States mail in the State of California, duly registered or certified, return
receipt requested, with postage prepaid. If any notice is sent by registered or
certified mail, as aforesaid, the same shall be deemed to have been served or
delivered twenty -four (24) hours after mailing thereof as above provided.
Notwithstanding the above, Lessor may also provide notices to Tenant by
personal delivery or by regular mail and any such notice so given shall be
deemed to have been given upon receipt.
TO: LESSOR
City of Newport Beach
City Manager
3300 Newport Boulevard
Newport Beach, CA 92663
11.ATTACHMENT TO LEASE
TO: TENANT
County of Orange
PFRD /Real Property
Attn: Real Property Manager
300 N. Flower Street, 6th Floor
Santa Ana, CA 92702 -410
This Lease includes the following, which are attached hereto and made a part
hereof:
I. General Conditions
Il. Exhibit A — Legal Description
III. Exhibit B — Map
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IN WITNESS WHEREOF, the parties have executed this Lease the day and year
first above written.
APPROVED AS TO FORM:
Laurence M. Watson_
Z3/
SIGNED AND CERTIFIED THAT A COPY
OF THIS DOCUMENT HAS BEEN
DELIVERED TO THE CHAIRMAN OF
THE BOARD
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Darlene J. Bloom,
Clerk of the Board of Supervisors
County of Orange
APPROVED AS TO FORM AND:
CONTENT:
By
Robin L Clauson,
Assistant City Attorney
ATTEST:
By
LaVonne Harkless, City Clerk
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TENANT
COUNTY OF ORANGE
By
Chairman, Board of Supervisors
1 FSSOR
CITY OF NEWPORT BEACH
John Noyes,
Mayor
GENERAL CONDITIONS
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7 1. TIME (PMGEI.2 S)
9 Time is of the essence of this Lease. Failure to comply with any time requirement
10 of this Lease shall constitute a material breach of this Lease.
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12 2. PERMITS AND LICENSES (PMGE3.2 S)
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Tenant shall be required to obtain any and all approvals, permits and /or licenses
which may be required by law in connection with the operation of the Premises as
set out herein. No permit, approval, or consent given hereunder by Lessor, in its
governmental capacity, shall affect or limit Tenant's obligations hereunder, nor shall
any approvals or consents given by Lessor, as a parry to this Lease, be deemed
approval as to compliance or conformance with applicable governmental codes,
laws, rules, or regulations.
3. LEASE ORGANIZATION (PMGE5.2 S)
The various headings and numbers herein, the grouping of provisions of this Lease
into separate clauses and paragraphs, and the organization hereof, are for the
purpose of convenience only and shall not be considered otherwise.
4. AMENDMENTS (PMGE6.2 S)
This Lease is the sole and only agreement between the parties regarding the
subject matter hereof. Any changes to this Lease shall be in writing and shall be
properly executed by both parties.
34 5. UNLAWFUL USE (PMGE7.2 S)
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Tenant agrees no improvements shall be erected, placed upon, operated, nor
maintained within the Premises, nor any business conducted or carried on therein
or therefrom, in violation of the terms of this Lease, or of any regulation, order of
law, statute, bylaw, or ordinance of a governmental agency having jurisdiction.
6. NONDISCRIMINATION (PMGE8.2 S)
Tenant agrees not to discriminate against any person or class of persons by
reason of sex, age, race, color, creed, physical handicap, or national origin in
employment practices and in the activities conducted pursuant to this Lease.
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Tenant shall make its accommodations and services available to the public on fair
and reasonable terms.
7. INSPECTION (PMGE9.2 S)
6 Lessor or its authorized representative shall have the right at all reasonable times
7 to inspect the Premises to determine if the provisions of this Lease are being
8 complied with.
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10 8. TAXES AND ASSESSMENTS (PMGEII.2 N)
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12 It is understood and agreed that all taxes and assessments which become due and
13 payable upon the Premises shall be the full responsibility of Tenant, and Tenant
14 shall cause said taxes and assessments to be paid promptly.
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16 9. SUCCESSORS IN INTEREST (PMGE12.2 S)
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Unless otherwise provided in this Lease, the terms, covenants, and conditions
contained herein shall apply to and bind the heirs, successors, executors,
administrators, and assigns of all the parties hereto, all of whom shall be jointly and
severally liable hereunder.
10. CIRCUMSTANCES WHICH EXCUSE PERFORMANCE (PMGE13.2 S)
If either party shall be delayed or prevented from the performance of any act
required hereunder by reason of Acts of God, restrictive governmental laws or
regulations, or other cause without fault and beyond the control of the party
obligated (financial inability excepted), performance of such act shall be excused
for the period of the delay and the period for the performance of any such act shall
be extended for a period equivalent to the period of such delay.
11. PARTIAL INVALIDITY (PMGE14.2 S)
If any term, covenant, condition, or provision of this Lease is held by a court of
competent jurisdiction to be invalid, void, or unenforceable, the remainder of the
provisions hereof shall remain in full force and effect and shall in no way be
affected, impaired, or invalidated thereby.
12. WAIVER OF RIGHTS (PMGE15.2 S)
The failure of Lessor or Tenant to insist upon strict performance of any of the
terms, covenants, or conditions of this Lease shall not be deemed a waiver of any
right or remedy that Lessor or Tenant may have, and shall not be deemed a waiver
of the right to require strict performance of all the terms, covenants, and conditions
of the Lease thereafter, nor a waiver of any remedy for the subsequent breach or
' I default of any term, covenant, or condition of the Lease. Any waiver, in order to be
2 effective, must be signed by the party whose right or remedy is being waived.
13. DEFAULT IN TERMS OF THE LEASE BY TENANT (PMGE16.2 N)
The occurrence of any one or more of the following events shall constitute a default
hereunder by Tenant:
9 (a) The abandonment or vacation of the Premises by Tenant.
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11 (b) The failure or inability by Tenant to observe or perform any of the provisions
12 of this Lease to be observed or performed by Tenant, other than specified in (a)
13 above, where such failure shall continue for a period of thirty (30) days after
14 written notice thereof from Lessor to Tenant; provided, however, that any such
15 notice shall be in lieu of, and not in addition to, any notice required under
16 California Code of Civil Procedure Section 1161 et seq.; provided, further, that if
17 the nature of such failure is such that it can be cured by Tenant but that more
18 than thirty (30) days are reasonably required for its cure (for any reason other
19 than financial inability), then Tenant shall not be deemed to be in default if
20 Tenant shall commence such cure within said thirty (30) days, and thereafter
21 diligently prosecutes such cure to completion.
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23 In the event of any default by Tenant, then, in addition to any other remedies
24 available to Lessor at law or in equity, Lessor may exercise the following
25 remedies:
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27 (A) Lessor may terminate this Lease and all rights of Tenant hereunder by giving
28 written notice of such termination to Tenant.
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30 (B) Continue this Lease in effect without terminating Tenant's right to possession
31 even though Tenant has breached this Lease and abandoned the Premises and
32 to enforce all of Lessor's rights and remedies under this Lease, at law or in
33 equity.
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35 (C) Nothing in this Section shall be deemed to affect Tenant's indemnity of
36 Lessor liability or liabilities based upon occurrences prior to the termination of
37 this Lease for personal injuries or property damage under the indemnification
38 clause or clauses contained in this Lease.
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40 No delay or omission of Lessor to exercise any right or remedy shall be construed
41 as a waiver of such right or remedy or any default by Tenant hereunder. No act or
42 thing done by Lessor or Lessor's agents during the term of this Lease shall be
43 deemed an acceptance of a surrender of the Premises, and no agreement to
44 accept a surrender shall be valid unless in writing and signed by Lessor.
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All covenants and agreements to be performed by Tenant under any of the terms
of this Lease shall be performed by Tenant at Tenant's sole cost and expenses. If
Tenant shall fail to pay any sum of money or shall fail to perform any other act on
its part to be performed hereunder, or to provide any insurance or evidence of
insurance to be provided by Tenant, then in addition to any other remedies
provided herein, Lessor may, but shall not be obligated to do so, and without
waiving or releasing Tenant from any obligations of Tenant, make any such
payment or perform any such act on Tenant's part to be made or performed as
provided in this Lease or to provide such insurance. Any payment or performance
of any act or the provision of any such insurance by Lessor on Tenant's behalf shall
not give rise to any responsibility of Lessor to continue making the same or similar
payments or performing the same or similar acts. All costs, expenses, and other
sums incurred or paid by Lessor in connection therewith, together with interest at
the maximum rate permitted by law from the date incurred or paid by Lessor shall
be deemed to be additional rent hereunder and shall be paid by Tenant with and at
the same time as the next monthly installment of rent hereunder, and any default
therein shall constitute a breach of the covenants and conditions of this Lease.
14. HOLDING OVER (PMGE19.2 S)
In the event Tenant shall continue in possession of the Premises after the term of
this Lease, such possession shall not be considered a renewal of this Lease but a
tenancy from month to month and shall be governed by the conditions and
covenants contained in this Lease.
15. CONDITION OF DEMISED PREMISES UPON TERMINATION (PMGE20.2 S)
Except as otherwise agreed to herein, upon termination of this Lease, Tenant shall
re- deliver possession of said Premises to Lessor in substantially the same
condition that existed immediately prior to Tenant's entry thereon, reasonable wear
and tear, flood, earthquakes, war, and any act of war, excepted. References to the
"Termination of the Lease" in this Lease shall include termination by reason of the
expiration of the Lease term.
17. DISPOSITION OF ABANDONED PERSONAL PROPERTY (PMGE21.2 S)
If Tenant abandons or quits the Premises or is dispossessed thereof by process of
law or otherwise, title to any personal property belonging to and left on the
Premises fifteen (15) days after such event shall, at Lessor's option, be deemed to
have been transferred to Lessor. Lessor shall have the right to remove and to
dispose of such property without liability therefor to Tenant or to any person
claiming under Tenant, and shall have no need to account therefor.
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18. QUITCLAIM OF TENANT'S INTEREST UPON TERMINATION (PMGE22.2 S)
Upon termination of this Lease for any reason, including but not limited to
termination because of default by Tenant, Tenant shall execute, acknowledge, and
deliver to Lessor, within thirty (30) days after receipt of written demand therefor, a
good and sufficient deed whereby all right, title, and interest of Tenant in the
Premises is quitclaimed to Lessor. Should Tenant fail or refuse to deliver the
required deed to Lessor, Lessor may prepare and record a notice reciting the
failure of Tenant to execute, acknowledge, and deliver such deed and said notice
shall be conclusive evidence of the termination of this Lease and of all rights of
Tenant or those claiming under Tenant in and to the Premises.
19. LESSOR'S RIGHT TO RE -ENTER (PMGE23.2 S)
Tenant agrees to yield and peaceably deliver possession of the Premises to Lessor
on the date of termination of this Lease, whatsoever the reason for such
17 termination.
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Upon giving written notice of termination to Tenant, Lessor shall have the right to
re -enter and take possession of the Premises on the date such termination
becomes effective without further notice of any kind and without institution of
summary or regular legal proceedings. Termination of the Lease and re -entry of
the Premises by Lessor shall in no way alter or diminish any obligation of Tenant
under the lease�terms and shall not constitute an acceptance or surrender.
Tenant waives any and all right of redemption under any existing or future law or
statute in the event of eviction from or dispossession of the Premises for any lawful
reason or in the event Lessor re- enters and takes possession of the Premises in a
lawful manner.
20. GOVERNING LAW AND VENUE (9.16 S)
This agreement has been negotiated and executed in the State of California and
shall be governed by and construed under the laws of the State of California. In
the event of any legal action to enforce or interpret this agreement, the sole and
exclusive venue shall be a court of competent jurisdiction located in Orange
County, California, and the parties hereto agree to and do hereby submit to the
jurisdiction of such court, notwithstanding Code of Civil Procedure Section 394.
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EXHIBIT A
WEST BAY PARK SITE
That certain parcel of land in the City of Newport Beach, County of Orange, State of California
described in a Deed to the City of Newport Beach filed in Book 13905, Pages 1436 through 1439 of
Official Records in the office of the County Recorder of said County, said certain parcel being more
particularly described as follows:
All that portion of Blocks 4, 5 and 51 of Irvine's Subdivision filed in Book 1, Page 88 of
Miscellaneous Maps in the office of said County Recorder described as follows:
Beginning at the southwesterly terminus of that certain course in the southeasterly right -of -way line
of Irvine Avenue shown as N 40 93810" E 333.39 feet on Record of Survey Map No_ 80 -1102 filed in
Book 105, Page 5 of Records of Survey in the office of the County Surveyor of said County; thence
along said right -of -way line N 40 238'10" E 303.39 feet; thence S 49 222'09" E 160.00 feet to the
beginning of a tangent curve concave to the north and having a radius of 260.00 feet; thence
easterly along said curve through a central angle of 6014'30" a distance of 291.52 feet; thence non -
tangent to said curve S 19 222'51" W 349.97 feet; thence S 70 237'09" E 31.97 feet to that certain
course having a bearing and length of S 53 222'27" W 442.40 feet in the ggtherly boundary of that
certain parcel of land described in deed to the State of California redorded in Book 11382, Page
1876 of said Official Records; thence along said boundary S 53 °24'17' W 338.26 feet; thence N
36 235'43" W 95.87 feet to a point on a non - tangent 175.00 -foot radius curve that is concave to the
northeast, a radial line to said point bears S 1 218'21" E; thence northwesterly along said last
mentioned curve, through a central angle of 72 °11'59 ", a distance of 220.52 feet to the beginning of
a reverse curve concave to the southwest and having a radius of 175.00 feet; thence northwesterly
along said last mentioned curve, through a central angle of 44 245'00 ", a distance of 136.68 feet;
thence N 63 251'22" W 23.07 feet to a point in the southeasterly right -of -way line of said Irvine
Avenue, said point being in a 725.00 -foot radius curve concave to the southeast, a radial to said
point bears N 63 251'22" W; thence northeasterly along said last mentioned curve, through a central
angle of 14 229'32 ", a distance of 183.38 feet to the Point of Beginning.
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EXHIBIT "B"
)o \ IRVINt SUBDIVISION
BLOCK LINE
\ R = 260.00'
\ 6 = 64° 14'30"
L = 291.52'
Bo,-,,,,'02
R = 725.00' WEST BAY PARK SITE
L = 183.38x2 PER O.R.13905 1436
R = 175.00' 105
L = 44045'00" IJ
L = 136.68'
R = 175.00'
- = 7201T59"
L = 220.52'
N 36 ° 35'43" W
95.87'
-7C °37'' 91 C.
31.97'
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