HomeMy WebLinkAbout22 - Funding for the Back Bay Science Center0
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 22
August 10, 2004
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Dave Kiff, Assistant City Manager
949 - 644 -3002 or dkiff(a)city.newport- beach.ca.us
Robert Burnham, City Attorney
949 - 644 -3131 or rburnham(a)city.newport- beach.ca.us
SUBJECT: Agreements and Funding for the Back Bay Science Center (formerly
known as the Marine Studies Center) on Shellmaker Island.
RECOMMENDATION:
1. Authorize the City Manager to execute a Cooperative Agreement between the City of
Newport Beach, the County of Orange and the Department of Fish and Game that is
substantively identical to Exhibit A; and
2. Authorize the City Manager to execute a Lease between the City of Newport Beach .
and the County of Orange that is substantively identical to Exhibit B; and
• 3. Authorize the City Manager to execute a Lease between the City of Newport Beach
and the Department of Fish and Game that is consistent with Exhibit B and the
authority previously granted on June 22, 2004.
BACKGROUND:
The City Council has consistently supported the concept of developing, in cooperation
with the Department of Fish and Game (DFG) and the County of Orange, a facility on
Shellmaker Island that would serve as a center for water quality and ecosystem
education as well as water quality testing and research (the Back Bay Science Center).
The proposed Back Bay Science Center include a County- operated water quality lab,
facilities for DFG personnel involved in the management of the Upper Newport Bay
Ecological Reserve, space and exhibits for estuarine, ecosystem and water quality
education and research programs, a wetland demonstration marsh and ecological
interpretive stations. The City has taken the lead role in the planning /design of the Back
Bay Science Center using Oil Spill Settlement Proceeds (Oil Spill Funds) designated for
that purpose.
The City Council has taken the following actions relative to the Back Bay Science Center:
• In 2000, the City Council included the Back Bay Science Center in the list of
• projects for which the City was seeking approval from the Trustee Agencies
responsible for monitoring use of the Oil Spill Funds;
• On April 24, 2001, the City Council directed staff to proceed with the
planning and design of the Back Bay Science Center;
• On June 22, 2001, the City Council requested State funding for the Back
Bay Science Center;
• On October 9, 2001, the City Council authorized the City Manager to
proceed with specific contracts relating to design, construction, and the
placement of a temporary water quality lab on Shellmaker Island;
• On September 9, 2003, the City Council authorized Ron Yeo Architects to
prepare final plans and specifications for the Back Bay Science Center;
• On September 23, 2003, the City Council received a comprehensive update
on the status of the Back Bay Science Center including the presentation of
a model of the project developed by Ron Yeo Architects.
• On November 25, 2003, the City Council authorized the City Manager to
execute a cooperative agreement between the City, DFG and the County.
• On June 22, 2004 the City Council authorized the City Manager to execute
a revised cooperative agreement between the City, DFG and the County.
COOPERATIVE AGREEMENT:
The Cooperative Agreement approved on June 22, 2004 (June 22 Draft) contained a
detailed description of the Back Bay Science Center and the "Demonstration Marsh ",
described the financial commitments of each party relative to constructing the project and •
established construction priorities if the Parties do not collectively have funds adequate to
complete the entire project. Like earlier drafts, the June 22nd Cooperative Agreement
obligated the City to contribute, first to any shortfall in funding for the County water quality
lab and second to any shortfall in funding for the DFG facilities, funds in the Upper
Newport Bay Restoration Fund and the Land Bank Fund that were established pursuant
to SB 573 (Johnson, 1997). The June 22 Draft also, for the first time, introduced the
concept that the water quality lab would be located on a portion of Shellmaker that DFG
would lease to the City and the City would lease to the County.
The proposed Cooperative Agreement differs from the June 22 Draft in two limited
respects. First, the proposed Cooperative Agreement incorporates additional details of
the conceptual agreement between DFG and the County regarding the sublease of the
water quality lab "parcel" including the County's option to extend the term for 10 years.
Second, the proposed Cooperative Agreement contains a more detailed description of
the components of an "operating agreement" that would establish the framework for
decisions regarding maintenance and other post- construction issues.
CITY /COUNTY LEASE
On August 171h, County staff is submitting to the Board of Supervisors the proposed
Cooperative Agreement and a proposed lease (Lease) between the City and the County
for the water quality lab parcel (Exhibit B). The key provisions of the Lease are: •
• 30 -year term with 2 five -year options
• Parcel used only as a water quality lab unless City Council (and DFG) authorizes a
. different use.
• Current 3 -year lease (for the short -term facility) terminates 30 days after the
permanent water quality lab is available.
• County shall pay no rent in consideration of $1.23 million contribution to construction.
• County reimburse City for 31 % of BBSC site /building maintenance costs.
• City agrees to construct water quality lab and reimburse County for payments if we fail
to complete project
• City will add water quality lab to schedule of buildings currently insured.
• City and County to meet and confer regarding County insurance contribution it
premiums increase more than 30% in any five year period.
Staff acknowledges that, with the approval of the proposed Cooperative Agreement and
the Lease, the City has, over the past few months, assumed a greater degree of financial
and administrative responsibility for the Back Bay Science Center than is warranted given
our limited rights to occupy the premises. However, we continue to believe that the Back
Bay Science Center is vitally important to two top priorities of the City Council and
Newport Beach residents — water quality education and the health and vitality of the
Upper Newport Bay Ecological Reserve. Accordingly, staff is recommending approval of
both agreements.
ENVIRONMENTAL REVIEW: A Mitigated Negative Declaration was prepared pursuant
• to the provisions of CEQA and approved by DFG on September 23, 2003
Submitted by:
DaveXiff, Assistant Oity Manager
Burnham, City Attorney
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COOPERATIVE AGREEMENT •
for the
BACK BAY SCIENCE CENTER
(Shellmaker Island)
This Cooperative Agreement (Agreement) is made and entered into as of the _
day of 2004 by and between the City of Newport Beach (City), the County
of Orange (County), the Regents of the University of California on behalf of the
University of California at Irvine (UCI) and the California Department of Fish and Game
(DFG) (each a Party and, together, the Parties).
PURPOSE
The purpose of this Agreement is to document the progress, intentions and
commitments of each Party with respect to the planning, funding and construction of the
Back Bay Science Center project described in Section 1 of this Agreement.
RECITALS
A. DFG is the owner of Shellmaker Island (Shellmaker) within the 752 -acre Upper
Newport Bay Ecological Reserve (Reserve). Shellmaker is generally shown on
Exhibit A. The primary purpose of the Reserve is to protect rare and endangered
wildlife, aquatic organisms and critical habitat, and specifically to preserve and
enhance a coastal salt marsh ecosystem.
B. Fish and Game Code Section 1585 authorizes DFG to construct facilities and
conduct programs in ecological reserves it selects to provide natural history
education and recreation if those facilities and programs are compatible with the
protection of the biological resources of the reserve.
C. Shellmaker is the Reserve's main public outreach location. The general public and
numerous students of all ages visit the Reserve year -round to study its terrestrial
and aquatic environments.
EXHIBIT �
•
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D. DFG, the County and the City is each actively involved in efforts to improve the
water quality in the Reserve, Newport Bay and its watersheds, as well as to preserve
and enhance the diverse species and habitats of the Reserve.
E. A tidal channel separates Shellmaker into two portions, the smaller of which
(designated as Lower Shellmaker Island on Exhibit A) contains a roughly 2 -acre
upland area improved with: (i) an existing Marine Studies Center which houses
educational programs developed through DFG's partnerships with the County
Department of Education and various school districts; (ii) offices, maintenance and
storage sheds and support facilities utilized by DFG personnel and volunteers; (iii) a
temporary water quality lab operated by the County; and (iv) facilities for rowing
equipment storage and student athletic rowing training (UCI Crew Facility) operated
by UCI pursuant to a t4eGround Lease dated 2904, between DFG
and UCI (UCI Lease).
F. DFG, the City, the County, UCI, the California Wildlife Foundation (CWF) and the
Newport Bay Naturalists and Friends (NBNF) are parties to the Memorandum of
Understanding for the Shellmaker Island Marine Studies Center (MOU) dated as of
August 2, 2002, memorializing the commitment of those parties to work
collaboratively towards the establishment of a Back Bay Science Center (referred to
in the MOU as the Marine Studies Center) on Shellmaker. Those parties have been
working cooperatively and have completed, or are in the process of completing, the
Short Term Objectives identified in Section V of the MOU.
G. In furtherance of the MOU, DFG and the City entered into the Interagency
Agreement for Planning and Design Services for a Marine Studies Center at Upper
Newport Bay Ecological Reserve dated as of May 1, 2002, as amended February 1,
2003 (Interagency Planning Agreement).
H. A Negative Declaration for the Back Bay Science Center (BBSC) project to replace
existing facilities for educational /interpretive programs, water quality testing, and
office staff, and including trails, wetlands rehabilitation and ancillary parking and
utilities (Project) was prepared pursuant to the provisions of the California
Environmental Quality Act. On September 30, 2003, DFG filed a Notice of
• Determination for the Project with the State Clearinghouse.
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I. DFG submitted a Coastal Development Permit (CDP) application for the Project, •
Application No. 5 -03 -451, to the California Coastal Commission (CCC) and, on
March 17, 2004 the CCC unanimously approved the CDP subject to numerous
conditions (the CCC conditions are attached as Exhibit B).
J. CWF, on behalf of DFG pursuant to the American Trader Agreements identified in
Section 4, below, entered into a Master Services Agreement with Coastal Resources
Management to prepare a conceptual wetlands restoration plan for the rehabilitation
of degraded wetlands along the southerly edge of Shellmaker (Demonstration Marsh
K.
L
M
Area).
Proposed conceptual plans, preliminary plans and working drawings for the Project
(together, Plans) based on the needs identified by DFG, County and City (together,
the BBSC Parties) as well as the proposed educational, scientific and research
functions of the BBSC have been prepared by Ron Yeo, FAIA Architect, Inc. and the
City Public Works Department and submitted to the Parties.
DFG and the City have entered into the ^Fe °ice—,, g aR Interagency Agreement for
Construction of a Marine Studies Center at Upper Newport Bay Ecological Reserve .
dated as of April 1, 2004
(Interagency Construction Agreement).
In order to achieve the Objectives set forth in Section III of the MOU, the Parties
believe that the BBSC should serve as: (i) the site for a public educational facility for
estuarine, water quality and watershed issues; (ii) the site of a County -wide water
quality analysis laboratory; (iii) the focal point of watershed and water quality
education /research programs developed by the Parties in cooperation with other
interested parties such as the CCC and local educators; (iv) a base for monitoring
the health of the ecosystems of Newport Bay and the Reserve and the collection,
assembly and communication of scientific data regarding the status of the Reserve
to interested parties; and (v) an outdoor laboratory for research into, and public
education regarding, the ecology, management, research and the restoration of
wetlands and upland habitat.
N. A Wildlife Conservation and Restoration Program (WCRP) grant administered by the •
U.S. Department of Interior, U.S. Fish and Wildlife Service pursuant to Title IX of the
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is Commerce, Justice, State Appropriations Act for Fiscal Year 2001 provides to DFG
an apportionment of funds to support wildlife conservation, wildlife conservation
education and wildlife- associated recreation projects focused on animal species of
greatest conservation need. DFG earmarked a portion of these funds allocated in
Federal Fiscal Year 2001 to the BBSC Project for wildlife conservation education.
Guidelines for the use of WCRP funds are set forth in Exhibit C.
O. The Parties currently anticipate that the BBSC will offer research, educational,
academic and interpretive programs involving scientists, educators and volunteers
from the Parties, and other interested parties such as CCC, Orange Coast College
(OCC), NBNF, Newport Mesa School District (NMSD) and local educators and
community organizations that support improved water quality and /or enhanced
ecology of Newport Bay and the Reserve, such as the following:
(i) Programs designed to educate students about the importance of
protecting and enhancing the habitats and quality of water in the Reserve,
Newport Bay and tributary watersheds;
(ii) Extensive water quality testing of numerous public recreational and
sensitive habitat areas in and around coastal Orange County;
(iii) Water quality research programs for university students and, if feasible,
high school students who have displayed special skills and interest;
(iv) DFG facilities designed to provide a base and support for public education
and the management and operation of the Reserve and other public lands;
(v) A Demonstration Marsh Area that will serve as a "restoration research lab"
for students and biologists; and
(vi) A center for compilation, communication and analysis of data on the
physical and biological resources of Newport Bay, the Reserve and
tributary watersheds.
P. DFG and the City have completed a number of tasks that are integral to the
establishment of the BBSC including:
(i) Preparation of a Back Bay Science Center Interpretive Plan that provides
a framework for implementing the outreach and education components of
• the Project; and
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NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
5
(ii) Preparation, with the assistance of CCC staff, local educators and
consultants, of a curriculum to be used to implement the educational
programs to be offered at the BBSC.
Q.
The UCI Lease requires UCI to pay its proportionate share of, or to perform as part
of possible future Improvements (as defined in the UCI Lease) to the UCI Crew
Facility, certain site improvements which are a part of the Project. This Agreement
includes provisions which are necessary to coordinate the provisions of the UCI
Lease pertaining to such site improvements with the funding and construction of the
Project.
R.
The Parties have obtained preliminary cost estimates for constructing the Project in
accordance with the Plans and have identified funds available for the construction of
the Project. As of the date of this Agreement, however, the available funds identified
by the Parties are insufficient to construct the entire Project.
S.
The City and DFG have identified other possible funding sources and intend to
actively pursue contributions from those sources, and others, in an effort to obtain
sufficient funds to construct the entire Project.
T.
The Parties have determined that the planning and permitting of the Project should
proceed as if sufficient funding has been obtained to construct the entire Project
and, if adequate funding is not obtained prior to the City's award of the contract to
construct the Project, construction of the Project should proceed in phases.
U.
The Parties have reviewed and considered the various laws related to the exercise
of land use jurisdiction over Shellmaker and have determined that DFG is not
required to obtain City land use approvals, however, DFG is required to obtain a
Coastal Development Permit from CCC. DFG will voluntarily obtain a building permit
from the City in light of the Interagency Planning Agreement; the City's provision of
police, fire and other municipal services to the BBSC and the City's participation in
the Project as described in this Agreement.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
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1* 1. PROJECT DESCRIPTION
The Parties agree that the following represents a detailed description of the Project as
of the date of this Agreement and that the Project description set forth below is
consistent with the provisions of the Negative Declaration for the Project. Each of the
Project components described below is generally shown on the proposed Project site
plan attached as Exhibit D. The Project consists of the following:
(A) A permanent enclosed structure comprised of three new buildings
containing a total of four wings, as depicted on Exhibit D, totaling approximately
123,40988 gross square feet that will contain space and amenities: (i) to conduct
educational and interpretive programs for students in grades K -12; (ii) for an
estuarine research and resource center for students and teachers of local
schools and universities; (iii) for a "state -of- the -art" water quality testing facility to
be operated and maintained by the County; and (iv) for administrative offices and
equipment storage for DFG staff as well as volunteers. The structure will be set
back from the wetlands in accordance with the plans approved by the CCC and
buffered as required by the conditions described in Exhibit B. Existing
structures will be removed and relocated or demolished with the exception of the
modular building which houses the existing Marine Studies Center, which will be
relocated during construction for use by DFG. The permanent enclosed structure
will incorporate energy saving designs and materials and will be no more than 16
feet high except for a small entry feature that will be approximately 28 feet above
grade.
(B) Outdoor educational program improvements on Shellmaker, including
hands -on interpretive elements, research areas, testing areas, tanks, aquaria
and tide pool exhibits. The existing trail system will be enhanced and signed, will
be separated from the wetlands by appropriate buffers and will include several
"spur' trails leading to small observation /teaching areas. The Demonstration
Marsh Area will be enlarged to approximately 10,000 square feet and restored.
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The existing native planting area, greenhouse, and amphitheater will be
refurbished.
(C) Site improvements including upgrading water, sewer, electrical and
telephone service to the BBSC, under grounding electrical service, grading,
formalizing the existing 67 -space parking area in a manner that — in comparison
to the existing condition — reduces potential water quality impacts, relocating the
entry gate, adding signage and installing low level outdoor lighting solely for
purposes of security.
2. PROJECT FUNCTIONS
The Parties desire the Project, upon completion, to provide following functions (the
name of the Party presently identified as primarily responsible for performing or
supervising the function is in parentheses after the description):
(A) Educational programs, including displays, exhibits and teaching stations;
offices and storage for biologists, enforcement staff and volunteers to facilitate
DFG operation and management of the Reserve and performance of the DFG
functions identified in this Agreement, including the compilation of data, reports
and studies related to the Reserve (DFG).
(B) Restoration of wetlands along the south side of Shellmaker and the
ongoing use of the Demonstration Marsh Area as a venue for "hands on"
research and analysis designed to develop information and techniques that will
help enhance the habitat in the Reserve (DFG, in cooperation with the City, UCI,
and other interested parties).
(C) Community outreach in various forms including development and
maintenance of a water quality and water conservation website and data base, a
center for training volunteers to become docents or to perform habitat
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• enhancement and to serve as a forum for other educational programs and
activities (DFG and City).
(D) Water quality testing and analysis of samples taken from selected sites in
Orange County at rivers, lakes and storm drains and within the Pacific Ocean,
harbors and estuaries including locations in Newport Harbor, Upper Newport
Bay, Huntington Harbor and Dana Point Harbor, as well as testing, monitoring
and research projects relative to the identification of water quality and water
pollution problems and solutions (County).
(E) Water quality testing, education and awareness programs and projects for
middle school, high school and college students, including exhibits and special
programs (City and County — with assistance from DFG and other interested
parties such as OCC, UCI and NMSD).
• 3. PROJECT PHASING
(A) The County has established and is operating a temporary water quality lab
on Shellmaker under a sublease with the City effective February 4, 2003. The
City leases the portion of Shellmaker on which the temporary facility which
houses the water quality lab is located under a lease with DFG effective
December 17, 2002. City has installed a temporary structure within the area
leased from DFG and the County has staffed and equipped the temporary water
quality lab. The BBSC Parties agree that, in the event construction of the
building that will house the County's water quality lab (designated as OC Water
Quality Lab /Stor on Exhibit D) is delayed beyond the term of the current lease
between the City and DFG, the holdover provision of that lease shall apply.
(B) A preliminary cost estimate to construct the Project in accordance with the
Plans is attached as Exhibit E. The Parties acknowledge that actual costs may
• vary from the attached estimate.
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(C) The BBSC Parties have agreed that, if they do not have sufficient funds to •
construct the entire Project prior to the City's notice inviting bids, the notice
inviting bids and related documents shall require bidders to submit bids for
Project alternatives or additions, and the Project will be constructed in up to three
phases. If the Project is to be phased, the following priorities shall govern the
City's award of the contract for construction and the phasing of the Project (in
order of priority):
(i) The first phase (Phase 1) shall include at least the following
elements:
a. The site improvements described in Section 1(C); and
b. The building that will house the County's water quality lab
and DFG storage (designated as OC Water Quality Lab /Stor
on Exhibit D); and
C. The building that will ultimately house the Teaching Lab and
.
DFG exhibits (designated as Teach. Lab on Exhibit D); and
d. The Demonstration Marsh Area.
Phase 1 will proceed only when and if available funds are sufficient
to construct at least the elements identified in items (a) - (d) of this
Section 3(C)(i) unless the BBSC Parties, each in its discretion,
otherwise agree in writing.
(ii) The second phase (Phase 2) shall include at least the building that
will ultimately serve as permanent DFG and volunteer office space
and as a small meeting or conference space (designated as Admin
Building on Exhibit B). Provided, however, that the Admin Building
will be constructed in Phase 1 if sufficient funds are available to
construct the elements identified in items (a) - (d) of Section 3(C)(i),
above, as well as the Admin Building. Phase 2, if necessary, will
proceed as soon as sufficient funds are available to construct the
•
elements identified in this Section 3(C)(ii).
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. (iii) The third phase (Phase 3) shall include the exhibits and
improvements necessary to fully implement the educational
programs described in Section 1(B) of this Agreement. Provided,
however, that such exhibits and improvements will be constructed
in an earlier phase (Phase 1 or Phase 2) if sufficient funds are
available to construct all elements required to be included in such
earlier phase (and in any phase prior to such phase). Phase 3, if
required, will proceed as soon as sufficient funds are available to
construct the element identified in this Section 3(C)(iii).
4. PROJECT CONSTRUCTION FUNDING
The following represents the specific funding commitments of the Parties relative to the
construction of the Project:
• (A) The County has earmarked, and through this Agreement commits, $1.23
million from the National Tobacco Settlement Revenue allocated by the Orange
County Board of Supervisors to the construction of the OC Water Quality
Lab /Stor Building in accordance with the Final Plans (as defined in Section 6)
and the County's portion of site improvement costs. Disbursement of these funds
will be governed by the provisions of this Agreement and the County Sublease
(as defined below) with the understanding that the City will advance any funds
that the County is required to pay pursuant to this Agreement. The County's
commitment is contingent on the approval and execution of a sublease with the
City (County Sublease) for the approximate 3,980 square foot OC Water Quality
Lab wing (Lab Wing) of the OC Water Quality Lab /Stor Building.
The County Sublease shall be subject to the reasonable approval of DFG; shall
be in consideration of the County contributing the $1.23 million committed
through this Agreement and performing the services and obligations to be
performed by the County under the County Sublease, this Agreement and the
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Operating Agreement (as defined in Section 7); shall have a term of thirty (30)
years with provisions for renewal as set forth below; shall require the County to
operate and maintain the interior of the Lab Wing at all times in good condition
and repair and to pay its proportionate share of costs (including capital costs) to
operate and maintain the BBSC site, structures and improvements; and shall
contain such other terms and conditions not in conflict with the City Lease (as
defined below) on which the County and City agree. The County Sublease shall
include provisions to renew the sublease for two (2) additional terms of five (5)
years each in consideration of the County performing the services and
obligations to be performed by the County under the County Sublease, this
Agreement and the Operating Agreement; provided, that the Project is then in
operation, the City Lease is then in effect, and the County has performed and is
continuing to perform its obligations under the County Sublease, this Agreement
and the Operating Agreement. The County Sublease shall grant the County
during the sublease term reasonable access to, and non - exclusive use of, the
Parking Common Area (as defined below) and other exterior areas of Shellmaker
which are part of the BBSC. In no event shall the County's funding commitment
for the proposed construction exceed the County's contribution of $1.23 million
without the express written consent of the Orange County Board of Supervisors.
(B) DFG has earmarked, and through this Agreement commits, funding from
two sources (American Trader Oil Spill Settlement Agreement and WCRP Grant)
in the amount of $1,235,000 as set forth below. DFG's commitment is contingent
upon satisfaction of the conditions to the funding commitments of the County and
the City set forth in this Agreement.
(i) A total of $250,000 provided through the American Trader Oil Spill
Settlement Agreement, including $133,170 already expended on behalf of
DFG and remaining funds in the amount of $116,830, have been or will be
applied toward construction of the Project and disbursed in accordance
with the California Wildlife Foundation Environmental Education and
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•
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. Public Access Trust Fund American Trader Oil Spill Agreement dated April
25, 2001, as well as the Supplemental Memorandum of Understanding,
dated May 4, 2000 (together, the American Trader Agreements), among
DFG, the California Department of Parks and Recreation, the Cities of
Huntington Beach and Newport Beach and the County.
(ii) A total of $985,000 from the WCRP Grant, including $369,600
obligated in the Interagency Planning Agreement and remaining funds in
the amount of $615,400 to be applied toward construction of the Project
through the Interagency Construction Agreement. Use of these funds is
subject to the WCRP Guidelines set forth in Exhibit C. Payment of these
funds will be governed by existing State contracting procedures.
(iii) On May 13, 2004, the Wildlife Conservation Board (WCB) approved a
grant of $69,000 to the California Wildlife Foundation on behalf of DFG, to
• be used towards construction of the Demonstration Marsh Area.
Commitment and disbursement of funds by WCB is governed by the policy
and procedures of WCB.
(C) City has expended $500,000 in funds from the American Trader Oil Spill
Settlement towards the planning, design and environmental analysis of the
Project and the development of educational programs for the BBSC. City
commits, through this Agreement, to contribute to the construction of the Project
all of the funds available in the Upper Newport Bay Restoration Fund
(established pursuant to SB 573) as of June 1, 2004 based on a determination by
State Lands Commission staff that use of those funds for the purposes specified
in this Subsection is consistent with the intent of SIB 573 and the City's
commitment to support passage of confirming legislation. These funds shall first
be committed (first priority) to fund the difference, if any, between the actual cost
of (a) construction of the OC Water Quality Lab /Stor Building and the County's
• portion of site improvement costs (as set forth below), and (b) the $1.23 million
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committed by the County. Assuming funds remain after the "first priority" and •
subject to the execution of a lease of the Lab Wing reasonably acceptable to
DFG and the City (City Lease), the City commits the balance to fund the
difference, if any, between: (a) the actual cost of the Teach Lab Building and
other structures intended for use by DFG and DFG's portion of site improvement
costs (as set forth below), and (b) the $1,235,000 committed by DFG. In no
event shall the City's funding commitment pursuant to this Section 4(C) exceed
the then current balance in the Upper Newport Bay Restoration Fund without the
express consent of the City Council of the City of Newport Beach.
The City Lease shall require the City to maintain and repair the BBSC structures
(other than minor capital improvements such as roof replacement),
improvements and site (except for the Parking Common Area maintenance for
which UCI is responsible under the UCI Lease) at all times in good condition and
repair; to maintain the insurance set forth in Exhibit F and shall include such
other terms and conditions as the City and DFG agree. The City Lease shall •
grant the City during the lease term reasonable access to, and non - exclusive use
of, those portions of Shellmaker (other than DFG work stations and storage
areas) that are part of the BBSC Project and to which access is necessary for the
City to perform its obligations under this Agreement or the City Lease.
(E) The Parties have estimated site improvement costs at approximately
$1,059,075724 - ,7-79, as set forth in Exhibit E and the grading and completion of
the 67 -space parking area (Parking Common Area) represents $721,776 of those
costs. The Parties have determined, and hereby agree, that the site
improvement costs shall be borne as follows:
(i) If the Parties elect to construct the Parking Common Area, the T4;e
costs to improve the Parking Common Area) in
accordance with CDP 5 -03 -451 and the Final Plans (as defined in Section 6,
below) shall be borne as follows:
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E
FRIMOMWOMM,
• I (a) UCI shall be responsible for one -third but in no event more
_$281,42
than (a)
(b) County and City together shall be responsible for one - third,
to be paid from available funds identified in Sections 4(A) and (C), above; and
(c) DFG and City together shall be responsible for one - third, to
be paid from available funds identified in Sections 4(B) and (C), above.
(ii) The costs of the site improvements other than the Parking Common
Area shall be borne as follows:
(a) If the Parties elect to construct the site improvements, UCI
shall be responsible for, and shall reimburse the other Parties for, the actual
costs of installation of water, sewer, electrical and telephone service a�&
and gther acilities equal ia- prepG#+er -to the estimated proportionate use by UCI
of those utilities and facilities as provided in Article 7 of the UCI Lease;
(b) The balance of the site improvement costs (excluding the
Parking Common Area addressed immediately above) shall be borne as follows:
(1) County and City shall be responsible for one -half, to
be paid from available funds identified in Sections 4(A) and
(C), above; and
(2) DFG and City shall be responsible for one -half, to be
paid from available funds identified in Section 4(B) and (C),
above.
MIN
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5. PRECONSTRUCTION COMMITMENTS
The City and DFG shall use their respective good faith efforts to obtain sufficient funds
to construct the,entire Project prior to the City's award of the construction contract for
the Project (or Phase I, if the Project is phased). The City shall be the Party with primary
responsibility for this funding effort. The City and DFG agree to actively pursue
additional funding from federal, state and local agencies as well as the private sector.
The City agrees to seek contributions to the BBSC Project from the Irvine Ranch Water
District, the Santa Ana Regional Water Quality Control Board (and the State Water
Resources Control Board), the Orange County Sanitation District and the Orange
County Water District. The City and DFG will also endeavor to identify non - profit
organizations and environmental groups that may be sources of funding. Finally, the
City and DFG will contact, and if requested make presentations to, individuals,
organizations and businesses in Orange County and Southern California that desire to
contribute, or have previously contributed, to facilities such as the BBSC. City and DFG
shall provide each other with copies of any documents or material used in conjunction
with seeking funding and shall coordinate on the text and graphics used prior to their
distribution. Funds contributed to the BBSC shall be used for the purpose(s) specified
by the funding source or, if no specific use is identified, in the order of priority specified
in Section 3 of this Agreement.
6. PROJECT CONSTRUCTION COMMITMENTS /PROCEDURES
The BBSC Parties have made the following commitments, and agreed on the following
procedures, with respect to construction of the Project.
(A) City will process building and related permits necessary to construct the •
Project structures and site improvements, as set forth in final building and
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0
site development plans to be approved by the Parties (together, the Final
Plans). Upon approval of the Final Plans by the Parties, the Final Plans
shall be incorporated by reference in this Agreement. City will process the
plans and issue permits as appropriate without charge. DFG shall
promptly execute all documents which the fee owner of the Project site is
legally required to sign to obtain a building permit. Any changes the City
may request to the Final Plans approved by the Parties shall be consistent
with this Agreement and shall be subject to the prior written approval of
DFG. Any changes the City may request to the Final Plans for the OC
Water Quality Lab /Stor Building and site improvements shall also be
subject to the prior written approval of the County. Such approval will not
be unreasonably withheld or delayed. DFG and the County each agrees
to expedite its review of any changes to the Final Plans which the City
may request during construction, and to respond to such request in a
timely manner.
(B) The City, DFG and the County will otherwise fully cooperate with one
another, and with any resource agency, with respect to any resource
agency approval or permit required to construct or maintain any
component of the BBSC Project.
(C) Once City issues a building permit, City shall obtain bids for the
construction of the Project (including those phases of the Project for which
funds are then committed and available to fund construction, or for which
funds may become committed and available prior to City's award of the
contract) in accordance with the Final Plans approved by the BBSC
Parties, this Agreement and the Interagency Construction Agreement.
Once bids are received, City shall process the bids and award a contract
for the construction of all (or one or more specified phases) of the BBSC
Project in accordance with relevant provisions of law, this Agreement and
the Interagency Construction Agreement. In the event of any conflict
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between this Agreement and the Interagency Construction Agreement,
then as between DFG and the City, the Interagency Construction
Agreement shall govern.
(D) City will retain a construction manager to assist the architect during the
construction of the Project. The construction manager will be the point of
contact for the BBSC Parties with respect to questions or comments
regarding the manner, means, status or timing of construction and City will
cause the construction manager to routinely inspect construction, test
materials and provide progress reports to the BBSC Parties.
7. OPERATING AGREEMENT
The BBSC Parties shall enter into a BBSC Operating Agreement (Operating
Agreement) that would become effective when construction of Phase 1 (or the entire
Project, if phasing is unnecessary) is complete. Upon approval and execution by the
Parties, the Operating Agreement shall be attached to this Agreement as Exhibit G.
The BBSC Parties anticipate that the Operating Agreement will cover at least the
following topics:
(A) The establishment of (i) a Back Bay Science Center Facilities Working
Group (Facilities Working Group) and (ii) a Back Bay Science Center
Programs Working Group (Programs Working Group). The Facilities
Working Group would include DFG as landowner and Programs Manager,
the City as Facilities Manager, and the Project Administrators (as defined
in Section 12, below) or their designees. The Facilities Working Group
would be responsible to meet regularly_7apd -to identify facilities needs, aad
plan for property maintenance, capital projects and improvements, and
implementatiea of the applicable provisions of the Operating Agreement.
The Programs Working Group would include the Project Administrators or
their designees and such other parties as the Project Administrators may
17
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deem appropriate. The Programs Working Group would be responsible to
meet regularly and to identify programmatic needs and plan for
educational and research programs and exhibits, budgeting, staffing,
scheduling, involvement of volunteers, educators and students and
implementation of the applicable provisions of the Operating Agreement.
(B) Defining, to the extent not otherwise provided for in the City Lease, the
roles and responsibilities of the City as Facilities Manager for the
operation, maintenance and improvement of the Back Bay Science
Center, including serving as lead for crews and contractors performing
property maintenance and improvement.
(C) Defining, to the extent not otherwise provided for in the County Sublease
the roles and responsibilities of the County with respect to the operation
maintenance and improvement of the Back Bay Science Center. [NGW
CGURty'S ,nie and responsib9 ilities se. operation and maintenanGe
should be addFee-ced ip the Ceuwty Sublease r-atheF than in the
O pe Fatinn Agreemenq
{G4(D) Defining the roles and responsibilities of DFG as Programs Manager,
including serving as lead for program planning and coordinator for hours
of operation, facility and site access (including access by volunteers),
security needs, public use, information and data sharing and public
education and outreach.
fB)(E) Defining, to the extent not otherwise provided for in the UCI Lease, the
roles and responsibilities of UCI with respect to reimbursement for site
maintenance costs and other issues related to the interaction between the
UCI Rowing Program and the operation maintenance and improvement of
the Back Bay Science Center:
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(F) The development, evaluation and delivery of educational and research
programs, materials and exhibits and the extent to which the programs or
exhibits should be modified to better achieve the educational and research
objectives of the BBSC.
(E4LgLCoordination of the educational efforts of the County, including developing
an exterior interpretive panel on water quality testing, designing water
quality related curriculum, training educational personnel, assisting with
higher level classes to be held at the BBSC and staffing a demonstration
booth at special events such as Earth Day.
k%I:LThe management of volunteers, educators and students who are involved,
or wish to become involved, in the educational or research programs of
the BBSC.
(#)LIL long -term funding plan for maintenance and enhancement of the BBSC, .
which addresses endowment(s) and other sources of long -term funding.
8. UCI CREW FACILITY
City and County each agrees to cooperate with UCI relative to the use of, and any
redevelopment and /or reconstruction of, the UCI Crew Facility pursuant to the UCI
Lease
•
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• 9. COOPERATION
(A) The Parties acknowledge that the planning, funding, construction and
operation of the Project are complex matters that will require ongoing
cooperation and good faith effort on the part of each Party. Accordingly, the
Parties agree to put forth a good faith effort and to cooperate with one another to
ensure that each performs in a manner consistent with the terms and conditions
of this Agreement including, without limitation, the Project Functions described in
Section 2.
(B) The BBSC Parties presently desire that the Back Bay Science Center and
the Project Functions will continue for the foreseeable future. DFG agrees that
the long term involvement of the City and County in the operation of the Project
and their provision of Project Functions is important to the success of the Project.
Accordingly, subject to a determination that the City and the County have
• performed this Agreement, the Operating Agreement and, as applicable, the City
Lease or County Sublease, and following the request of City and County made
within 12 months prior to the expiration of the term of the City Lease, DFG will
consider extending the term of the City Lease or taking such other action as may
be appropriate to enable the City and the County to continue their involvement in
the operation of the Project and their provision of Project Functions. City and
County acknowledge and agree, however, that nothing in this Agreement is
intended to or constitutes a right or option to renew or extend the City Lease.
10. REMEDIES
If a Party defaults in the performance of any of its obligations under this Agreement, the
sole remedy of the other Parties shall be to seek specific performance against the
defaulting party.
i11. OTHER AGREEMENTS
20
This Cooperative Agreement is intended to supplement, not supplant the previous •
agreements referenced in this Agreement and its Exhibits. If any provision of a prior
agreement among the Parties, or between any two or more of the Parties, conflicts with
this Cooperative Agreement then, as between or among the affected Parties, this
Cooperative Agreement shall take precedence.
12. PROJECT ADMINISTRATORS
The Parties have each designated a "Project Administrator" to perform certain activities
under this Agreement, and to ensure that the Project is carried out in accordance with
this Agreement. The Project Administrators shall be the following:
Newport Beach — H. Bludau, City Manager
3300 Newport Boulevard, Newport Beach, CA 92658 -8915
Phone — (949) 644 -3000 •
Fax — (949) 644 -3020
E -mail hbludau (a)city.newport - beach.ca.us
DFG — Regional Manager, South Coast Region
4949 Viewridge Avenue, San Diego, CA 92123
Phone - (858) 467 -4210
Fax - (858) 467 -4239
E -mail craysbro(@dfq.ca.gov
County - Gary Gray, Manager, Facilities Acquisition and Management
405 W. 5'h Street, Room 612, Santa Ana, CA 92701
Phone — (714) 834 -5158
Fax — (714) 834 -7695
E -mail ggray()ochca.com •
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. UCI - Richard Demerjian, Director "C' Rirhapd _Demme iaR, Campus
and Environmental Planning:
^e^fUniversity of California
750 University Tower, Irvine, CA 92697 -7475
Phone — (949)824 -7058
Fax
E -mail rgdemeri(a uci.edu
A Party may change its Project Administrator at any time by written notice to the other
Parties given in accordance with Section 13.
13. NOTICE
Notices and other communications under this Agreement shall be made in writing and
may be given by delivery in person, by mail or by receipt- confirmed facsimile to the
Parties addressed to their respective above - listed Project Administrators.
14. TERM; TERMINATION
This Agreement becomes effective upon execution by the parties to the Agreement and
shall continue in effect until terminated in writing by the mutual consent of the Parties.
15. AMENDMENT
This Agreement may only be amended in writing and upon execution by all of the
Parties to this Agreement.
16. SEVERABILITY
If any part of this Agreement is determined to be invalid or in violation of the law, all
other parts not so determined shall remain in full force and effect.
•
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17. APPROPRIATIONS 0.
Any provision of this Agreement which calls for an expenditure of funds by DFG is
subject to the availability of appropriated funds for such purpose.
18. EXHIBITS
The following Exhibits are attached to this Agreement and incorporated by reference:
Exhibit A - Vicinity Map from Coastal Commission Staff Report.
Exhibit B - CCC conditions.
Exhibit C - Guidelines for the use of WCRP funds.
Exhibit D - Site plan.
Exhibit E - Preliminary estimate of Project construction costs.
Exhibit F - Insurance.
Exhibit G - Operating Agreement (to be attached upon completion). •
CITY OF NEWPORT BEACH ( "City "),
a Municipal Corporation
By:
Tod Ridgeway, Mayor
APPROVED AS TO FORM:
0
Robert H. Burnham, City Attorney
ATTEST:
LaVonne Harkless, City Clerk •
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APPROVED AS TO FORM:
OFFICE OF THE COUNTY COUNSEL
ORANGE COUNTY, CALIFORNIA
m
Deputy
DEPARTMENT OF FISH & GAME
m
THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA
m
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I GA 1254 -220
2 HCA /Water Quality Lab
3
4 SUBLEASE
5
6 THIS IS A SUBLEASE, hereinafter referred to as "Sublease," made 2004, by and
7 between CITY OF NEWPORT BEACH, hereinafter referred to as "CITY," and the COUNTY OF
g ORANGE, hereinafter referred to as "COUNTY," without regard to number and gender. The term
9 "COUNTY" shall mean the Board of Supervisors of the political body that executed this Agreement or
10 its authorized representative.
11
12 RECITALS
13
14 I. WHEREAS, the State of California is the owner of certain real property known as Shellmaker
15 Island, located at 600 Shellmaker Road in Newport Beach, Orange COUNTY, California.
16
17 II. WHEREAS, the CITY of Newport Beach (CITY), the University of California at Irvine (UCI) and
18 the State of California, Department of Fish and Game (DFG) have entered into a Cooperative Agreement
19 for the planning, designing, phasing, and construction of a Back Bay Science Center, as defined herei,
20 on Shellmaker Island;
21
22 III. WHEREAS, the COUNTY of Orange has offered to contribute $1.23 million toward the
23 construction of the Back Bay Science Center project as consideration for a 30 -year Sublease of
24 approximately 3,980 square feet of water quality laboratory space, as defined herein, as part of the
25 proposed 12,409 square foot Back Bay Science Center;
26
27 W. WHEREAS, CITY has Subleased from DFG the 3,980 square foot water quality laboratory space to
2g be constructed as part of the Back Bay Science Center;
29
30 V. WHEREAS, CITY is willing to Sublease the 3,980 square foot water quality laboratory space to be
31 constructed as part of the Back Bay Science Center to the COUNTY of Orange for a 30 -year term.
32
33 NOW THEREFORE, THE RECITALS ARE INCORPORATED HEREIN AND THE PARTIES DO
34 HEREBY AGREE AS FOLLOWS:
35 1 //
36 //
37 //
1 of 14 EXHIBIT
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1. DEFINITIONS (1.2 S)
2
3
'Board of Supervisors" means the Board of Supervisors of the COUNTY of Orange, a political
4
subdivision of the State of California.
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"COUNTY Executive Officer' means the COUNTY Executive Officer, COUNTY Executive Office,
7
COUNTY of Orange, or designee, or upon written notice to CITY, such other person or entity as shall be
8
designated by the Board of Supervisors.
9
10
"Director of CEO /Real Estate" means the Director, COUNTY Executive Office, Real Estate, COUNTY
11
of Orange, or designee, or upon written notice to CITY, such other person or entity as shall be
12
designated by the COUNTY Executive Officer or the Board of Supervisors.
13
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"Director of Health Care Agency" means the Director, Health Care Agency, COUNTY of Orange, or
15
designee, or upon written notice to CITY, such other person or entity as shall be designated by the
16
COUNTY Executive Officer or the Board of Supervisors.
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"Manager, HCAIFacilities Acquisition and Management" means the Manager, Health Care Agency,
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Facilities Support-Real Estate, COUNTY of Orange, or designee, or upon written notice to CITY, such
20
other person or entity as shall be designated by the Director of Health Care Agency, or designee.
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"Auditor- Controller" means the Auditor - Controller, COUNTY of Orange, or designee, or upon written
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notice to CITY, such other person or entity as shall be designated by the Board of Supervisors.
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"COUNTY Counsel' means the COUNTY Counsel, COUNTY of Orange, or designee, or upon written
26
notice to CITY, such other person or entity as shall be designated by the COUNTY Executive Officer or
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the Board of Supervisors.
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"CEO /Real Estate" means the COUNTY Executive Office, Real Estate for the COUNTY of Orange, or
30
upon written notice to CITY, such entity as shall be designated by the COUNTY Executive Officer or
31
the Board of Supervisors.
32
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"Back Bay Science Center' means the 12,409 square foot facility, the parking area and the landscaped
34
areas immediately adjacent to the facility as shown on Exhibit B, attached hereto, to be constructed on
35
Shellmaker Island in Newport Beach, California and related improvements for educational, and
36
scientific programs focusing on the ecology, water quality, conservation and restoration of Upper
37
Newport Bay.
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I "Water Quality Laboratory" means the 3,980 square foot laboratory space as shown on Exhibit
2 attached hereto, to be constructed as part of the 12,409 square foot Back Bay Science Center
3 Shellmaker Island in Newport Beach, California.
4
5 2. PREMISES (1.3 N)
6
7 CITY Subleases to COUNTY that certain property hereinafter referred to as "Premises," described in
8 "Exhibit A" and shown on "Exhibit B," which exhibits are attached hereto and by reference made a part
9 hereof, together with non - exclusive use of CITY's driveways for vehicle ingress and egress, pedestrian
10 walkways, other facilities and common areas appurtenant to COUNTY's Premises created by this
11 Sublease.
12
13 3. PARKING (1.4 S)
14
15 CITY, throughout the term of this Sublease, shall provide twelve (12) parking spaces for COUNTY's
16 free and non - exclusive use. Said parking spaces are to be located in the parking area shown on
17 Exhibit B.
18
19 In addition to said parking spaces, CITY shall also provide parking for disabled persons in accordan,
20 with the Americans with Disabilities Act, Section 7102 of the California Uniform Building Code and the
21 applicable codes and/or ordinances relating to parking for disabled persons as established by the local
22 jurisdiction in which the Premises is located where the provisions of such local codes and/or ordinances
23 exceed or supersede the State requirements.
24
25 4. USE (N)
26
27 COUNTY shall use the Premises as a water quality laboratory. COUNTY agrees not to use the Premises
28 for any other purpose without the prior written consent of CITY, which shall not be unreasonable
29 withheld.
30
31 5. CONTINGENCY (N)
32
33 This Sublease and the rights and obligations of COUNTY under this Sublease is contingent upon the
34 CITY executing a separate lease or other agreement with DFG covering the Premises and granting CITY
35 all of the rights that are necessary and appropriate to ensure that the provisions of this Sublease grant to
36 COUNTY the rights described herein. In the event that CITY fails to obtain a lease or other agreeme,
37 from DFG permitting the CITY to convey this Sublease to COUNTY, this Sublease shall become null
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and void and the parties hereto shall be relieved of all obligations hereunder.
.
2
3
6. TERM (2.2A N)
4
5
Subject to the provisions of the clause entitled "CONTINGENCY," the term of this Sublease shall be
6
thirty (30) years, commencing the first day of the first full calendar month following the date of
7
execution by COUNTY or commencing the first day of the first full calendar month following the
8
completion by CITY of the work set out in clause entitled "CONSTRUCTION ", below, whichever date
9
is later.
10
I 1
Parties agree that the commencement date of this Sublease will be confirmed in writing by either party
12
upon demand by the other.
13
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7. TERMINATION OF PRIOR AGREEMENTS (1.5 N)
15
16
It is mutually agreed that this Sublease shall operate to terminate and supersede, as of a date 30 days
17
after the Water Quality Laboratory is available for occupancy, any prior agreement between the parties
18
hereto covering all or any portion of the Premises, including that certain dated lease February 4, 2003,
•
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EXCEPT that all personal property and/or equipment (e.g., fixtures, partitions, counters, shelving)
20
attached to and/or placed upon any portion of the Premises by COUNTY pursuant to the terms of any
21
prior agreement between the parties hereto shall remain the personal property of COUNTY, who shall
22
have the right to remove same.
23
24
8. EXTENSION OF SUBLEASE TERM (N)
25
26
COUNTY may request that CITY extend the term of the Sublease for two (2) additional five -year (5-
27
year) periods on the same terms and conditions provided COUNTY has performed its obligations under
28
the Sublease. COUNTY's request to extend the term of this Sublease shall be given to CITY, in writing,
29
at least one hundred eighty (180) days prior to the Sublease termination date.
30
31
CITY agrees to use its best efforts to obtain the approval of DFG to extend the term of the Sublease,
32
however, CITY and COUNTY acknowledge and agree that nothing in this Sublease is intended to or
33
constitutes a right or option to renew or extend the Sublease.
34
35
9. RENT (N)
36
37
In consideration of the $1.23 million to be contributed by COUNTY toward the construction of the Back
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I Bay Science Center and the services to be performed by COUNTY pursuant to the terms of th
2 Sublease, COUNTY's use of the Premises shall be rent -free.
3
4 10. CONSTRUCTION (4.1 N)
5
6 CITY hereby agrees to complete, at CITY's expense, within five hundred forty (540) calendar days after
7 the date first written above, alterations, repairs, and other work (the "Work ") in accordance with to
g plans and the specifications dated May 3, 2004, attached hereto and made a part hereof as "Exhibit C."
9
10 Should CITY fail to complete the Work within five hundred forty (540) calendar days after execution of
11 the Sublease by COUNTY or the date on which construction commences and, assuming the contractor
12 fail to complete the Work within the time required, the City fails to exercise reasonable diligence in
13 securing performance from the surety providing the performance bond, COUNTY may, at COUNTY's
14 sole option and based upon the status of construction and the reasonable expectation that construction
15 will not be completed within a reasonable time, upon giving written notice to CITY prior to the
16 completion of the Work, terminate the Sublease. In the event of such termination, this Sublease shall
17 terminate on the date specified in such notice and the CITY shall refund to COUNTY any prior
Ig payments in full with sixty (60) days and neither party shall have any further right or obligation to the
19 other with respect to this Sublease or the Premises. ,
20
21 All planning and architectural /design costs required to accomplish the Work shall be CITY's
22 responsibility. All plans and working drawings for the Work shall have the acceptance of COUNTY's
23 Manager, HCA/Facilities Acquisition and Management. Acceptance by COUNTY of said plans and
24 work drawings shall not relieve CITY of the responsibility for complying with all applicable codes and
25 construction requirements, nor of obtaining necessary permits or approvals from the authorities of proper
26 jurisdiction.
27
28 Subsequent to the completion of to Work, and prior to occupancy by COUNTY, CITY shall obtain
29 Manager, HCA /Facilities Acquisition and Management, approval and acceptance of the Work. Said
30 acceptance shall be manifested by letter from Manager, HCA/Facilities Acquisition and Management,
31 and may be subject to completion of "punch list" items. Said punch list will be generated by Manager,
32 HCA/Facilities Acquisition and Management.
33
34 11. PAYMENT OF COUNTY'S CONTRIBUTION (N)
35
36 During the construction period immediately preceding the commencement of this Sublease, CITY sh4d
37 provide accurate construction progress reports to the Manager, HCA/Facilities Acquisition and
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Management. Upon completion by CITY and acceptance by Manager, HCA/Facilities Acquisition and
Management of fifty percent (50 %) of the Work, COUNTY agrees to pay to CITY the sum of Six
Hundred Fifteen Thousand Dollars ($615,000). On the Commencement Date of the term of this
Sublease, COUNTY agrees to pay to CITY the balance of its $1,230,000 contribution, in the amount of
Six Hundred Fifteen Thousand Dollars ($615,000). In no event shall the COUNTY's funding
commitment
for the proposed construction exceed the COUNTY's contribution of $1.23 million without the
expressed written consent of the Orange COUNTY Board of Supervisors.
To obtain payments CITY (or CITY's designee) shall submit to COUNTY's Manager, HCA/Facilities
Acquisition and Management, in a form acceptable to said Manager, HCA/Facilities Acquisition and
Management, a written claim for said payments.
Payment shall be due and payable within twenty (20) days after receipt of CITY's written claim by
COUNTY's Manager, HCA/Facilities Acquisition and Management.
12. REPAIR AND MAINTENANCE (5.1 N)
COUNTY shall provide, at its own cost and expense, all maintenance, repair and /or replacement
services for the interior portions of the Premises to include but not limited to janitorial service and
supplies; lighting service and supplies; heating, air conditioning and ventilation maintenance, repair and
replacement; entry doors, roll up doors and windows; fire extinguishers; interior painting and flooring;
locks, keys, access control systems and security service; and other services as needed to support its
operations.
CITY shall provide, subject to the provisions of the Clause entitled REIMBURSEMENT FOR COSTS
OF CITY SERVICES, all maintenance, repair and/or replacement services for the building structure and
the exterior portion of the Premises, including but not limited to, the building structure, exterior
surfaces, and roof, fire sprinkler system, utility connections to the building, and site improvements
(including the parking lot, sidewalks, curbs, gutters, drains, site related signage, site related security
lighting as shown on the construction plans).
13. REIMBURSEMENT FOR THE COSTS OF CITY SERVICES (N)
For the purpose of this clause, the cost of services provided by CITY
Services ") shall include only the following:
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for the COUNTY ( "CITY
1
2 A. Trash, Water and Sewer Services. ,
3 B. Landscape Maintenance Services.
4 C. Maintenance and Repair Services (including preventative maintenance).
5 D. Cost for major repairs and /or replacements to the building and parking area that constitutes
6 capital improvements or replacements (such as roof replacement, parking lot resurfacing
7 and/or replacement).
8 Notwithstanding the provision of the Clause entitled (RENT) of this Sublease, COUNTY shall
9 reimburse CITY on an annual basis for CITY's actual costs of providing CITY Services to the Premises
10 listed above. For the purpose of making payments pursuant to this section, the Premises shall be
11 considered 32% of the rentable area of the Back Bay Science Center within which the Premises resides.
12 This percentage is calculated by dividing the size of the Premises (3,980 square feet) by the rentable area
13 of the Back Bay Science Center (12,409 square feet). Consequently, COUNTY shall only be responsible
14 for 32% of the costs of CITY's Services.
15
16 Within one hundred twenty (120) days following the July 1, 2005, and each anniversary date, CITY shall
17 furnish COUNTY with the following applicable to the Premises:
18
19 A. Summary Statement: CITY shall furnish a written ( "Summary Statement ") that includes,
20 detail the cost of each category of CITY Services for the pervious year.
21
22 B. Supporting Data: CITY shall provide ( "Supporting Data ") that includes copies of invoices and/or
23 work orders and proof of payment for each, neatly separated and organized by CITY Service
24 categories and date of service.
25 C. Budget : CITY shall furnish a written ( "Budget ") that includes in detail the estimated cost of
26 each category of CITY Services to be provided by CITY for the next fiscal year, which begins
27 on July 1.
28
29 COUNTY shall have the right to audit any Supporting Data provided by CITY and used in the
30 preparation of said claim. In the event COUNTY questions the adequacy of any portion of the
31 Supporting Data provided by CITY, and COUNTY requests additional Supporting Data, the due date for
32 payment of the adjustment shall be ninety (90) days from the date COUNTY receives the additional data
33 required to substantiate CITY's claim. In the event payment is due, said payment shall be made in a
34 lump sum within ninety (90) days following receipt of said Summary Statement and Supporting Data.
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36 Should CITY fail to provide said Summary Statement and supporting documentation within oz4
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clause shall be deemed waived by the CITY. Notwithstanding the foregoing, CITY Services shall not
include expenses for the cost of correcting building defects (latent or otherwise).
14. ALTERATIONS (4.4 S)
COUNTY may make improvements and changes in the Premises, including but not limited to the
installation of fixtures, partitions, counters, shelving, equipment, seismic bracing, access and alarm
systems, telephone and computer network systems, and modifications to the utility services as deemed
necessary or appropriate. It is agreed that any such fixtures, partitions, counters, shelving, or equipment
attached to or placed upon the Premises by COUNTY shall be considered as personal property of
COUNTY, who shall have the right to remove same. COUNTY agrees that the Premises shall be left in
as good condition as when received, reasonable wear and tear excepted.
15. UTILITIES (5.2 N)
COUNTY shall be responsible for and pay, prior to the delinquency date, all charges for utilities
supplied to the Premises, except charges for water and sewer services, which charges shall be allocated
to COUNTY under the provisions of the clause entitled "REIMBURSEMENT FOR THE COSTS OF
CITY SERVICES."
16. INSURANCE (5.3 N)
Property /Fire Insurance: CITY shall obtain and keep in force during the term of this Sublease, and at
no cost or expense to COUNTY except as may be agreed upon pursuant to the "meet and confer"
provisions of this Clause, a policy or policies of property and fire insurance with extended coverage,
covering, to the same extent as other CITY -owned buildings, damage to the Premises and improvements
located on the Premises (including the full value of any improvements and fixtures owned by CITY
against all perils included within the classification of fire, extended coverage, vandalism, malicious
mischief, special extended perils ( "all risk" as such term is used in the insurance industry, including
earthquake and flood) and shall name the COUNTY as an additional insured.
Included in the policy or policies of property and fire insurance shall be a standard waiver of right of
subrogation against COUNTY by the insurance company issuing said policy or policies. CITY shall
provide COUNTY with evidence of compliance with these requirements.
CITY's insurance (a) shall be in a form satisfactory to COUNTY and carried with a company (or
companies) acceptable to COUNTY and licensed to do business in the state of California, (b) shall
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I provide that such policies shall not be subject to material alteration or cancellation without at least thin
2 (30) days prior written notice to COUNTY, and (c) shall be primary, and any insurance carried
3 COUNTY shall be non - contributing. CITY's policy or policies, or duly executed certificates for them,
4 shall be deposited with COUNTY prior to the Commencement Date of this Sublease, and prior to
5 renewal of such policies.
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7 In the event that insurance premiums for the coverage described in this Clause increase by an amount in
8 excess of thirty percent (30 %) during any five (5) year period during the term of this Sublease, CITY and
9 COUNTY shall meet and confer in good faith in attempt to reach an agreement as to an amendment of
10 this Sublease that would establish the amount of any COUNTY contribution to the cost of insurance or
I I the extent to which the insurance requirements in this Clause should be modified.
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15 17. INDEMNIFICATION (5.5 S)
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17 COUNTY shall defend, indemnify and save harmless CITY, its officers, agents, and employees, from
18 and against any and all claims, demands, losses, or liabilities of any kind or nature which CITY, i;
19 officers, agents, and employees may sustain or incur or which may be imposed upon them for injury
20 or death of persons, or damage to property as a result of, or arising out of, the sole negligence of
21 COUNTY, its officers, agents, employees, subtenants, invitees, or licensees, in connection with the
22 occupancy and use of the Premises by COUNTY.
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24 Likewise CITY shall defend, indemnify and save harmless COUNTY, its officers, agents, and
25 employees from and against any and all claims, demands, losses, or liabilities of any kind or nature
26 which COUNTY, its officers, agents, and employees may sustain or incur or which may be imposed
27 upon them for injury to or death of persons, or damage to property as a result of, or arising out of, the
28 sole negligence of CITY, its officers, agents, employees, invitees, or licensees, in connection with the
29 ownership, maintenance, or use of the Premises.
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31 18. TAXES AND ASSESSMENTS (5.6 N)
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33 All taxes and assessments which become due and payable upon the Premises shall be the full
34 responsibility of CITY, and CITY shall cause said taxes and assessments to be paid prior to the due date.
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36 19. BUILDING AND SAFETY REQUIREMENTS (5.7 N) ,
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1 During the full term of this Sublease, CITY, at CITY's sole cost, agrees to maintain the Premises in
2 compliance with all applicable laws, rules, regulations, building codes, statutes, and orders as they are
3 applicable on the date of this Sublease, and as they may be subsequently amended.
4
5 Included in this provision is compliance with the Americans with Disabilities Act (ADA) and all other
6 federal, state, and local codes, statutes, and orders relating to disabled access as they are applicable on
7 the dates of this Sublease, and as they maybe subsequently amended.
8
9 CITY further agrees to maintain the Premises as a "safe place of employment," as defined in the
10 California Occupational Safety and Health Act (California Labor Code, Division 5, Part 1, Chapter 3,
11 beginning with Section 6400) and the Federal Occupational Safety and Health Act, where the provisions
12 of such Act exceed, or supersede, the California Act, as the provisions of such Act are applicable on the
13 date of this Sublease, and as they may be subsequently amended.
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15 Notwithstanding the foregoing, the COUNTY shall, as to the interior of the Water Quality Laboratory,
16 be solely responsible for the compliance with the laws referenced above, and all other relevant laws,
17 ordinances, rules or regulations pertaining to workplace safety or security.
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19 20. TOXIC MATERIALS (5.9 S)
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21 COUNTY hereby warrants and represents that COUNTY will comply with all laws and regulations
22 relating to the storage, use and disposal of hydrocarbon substances and hazardous, toxic or radioactive
23 matter, including, but not limited to, those materials identified in Title 26 of the California Code of
24 Regulations (collectively "Toxic Materials "). COUNTY shall be responsible for and shall defend,
25 indemnify and hold CITY, its officers, directors, employees, agents, and representatives, harmless from
26 and against all claims, costs and liabilities, including attorneys' fees and costs arising out of or in
27 connection with the storage, use, and disposal of Toxic Materials on the Premises by COUNTY. If the
28 storage, use, and disposal of Toxic Materials on the Premises by COUNTY results in contamination or
29 deterioration of water or soil resulting in a level of contamination greater than maximum allowable
30 levels established by any governmental agency having jurisdiction over such contamination, COUNTY
31 shall promptly take any and all action necessary to clean up such contamination.
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33 Likewise, CITY hereby warrants and represents that CITY has in the past and will hereafter comply with
34 all laws and regulations relating to the storage, use and disposal of hydrocarbon substances and
35 hazardous, toxic or radioactive matter, including, but not limited to, those materials identified in Title 26
. 36 of the California Code of Regulations (collectively "Toxic Materials "). CITY shall be responsible for
37 and shall defend, indemnify and hold COUNTY, its officers, directors, employees, agents, and
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I representatives, harmless from and against all claims, costs and liabilities, including attorneys' fees an
2 costs arising out of or in connection with the previous, current and future storage, use and disposal
3 Toxic Materials on the Premises (or building if the Premises comprises only a portion of said building)
4 by CITY. if the previous, current and future storage, use, and disposal of Toxic Materials on the
5 Premises by CITY results in contamination or deterioration of water or soil resulting in a level of
6 contamination greater than maximum allowable levels established by any goverrnnental agency having
7 jurisdiction over such contamination, CITY shall promptly take any and all action necessary to clean up
8 such contamination.
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10 21. LABOR CODE COMPLIANCE (6.10 S)
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12 CITY acknowledges and agrees that all work on physical modifications required to be performed as a
13 condition precedent to the commencement of the term of this Sublease or any such future work
14 performed by CITY at the request of COUNTY shall be governed by, and performed in accordance with,
15 the provisions of Article 2 of Chapter 1, Part 7, Division 2 of the Labor Code of the State of California
16 (Sections 1770, et seq.). These provisions are not applicable to modifications costing not more than
17 $1,000.
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19 Pursuant to the provisions of Section 1773 of the Labor Code of the State of California, the Oran/
20 COUNTY Board of Supervisors has obtained the general prevailing rate of per diem wages and the
21 general prevailing rate for holiday and overtime work in the locality applicable to this Sublease for each
22 craft, classification, or type of workman needed to execute the aforesaid structural modifications from
23 the Director of the State Department of Industrial Relations. CITY herein agrees that CITY shall post,
24 or cause to be posted, a copy of such wage rates at the job site and shall pay the adopted prevailing wage
25 1 rates. Copies of said prevailing wage rates may be obtained from COUNTY's Manager, HCA/Pacilities
26 Acquisition and Management. In addition, CITY shall provide continuously updated certified payroll
27 records to COUNTY.
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29 Except as expressly set forth in this Sublease, nothing herein is intended to grant authority for CITY to
30 perform construction work on space currently Subleased by COUNTY or for which COUNTY has
31 entered into a Sublease or Sublease amendment.
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33 22. RIGHT TO WORK AND MINIMUM WAGE LAWS (6.13 S)
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35 In accordance with the United States Immigration Reform and Control Act of 1986, CITY shall require
36 its employees that directly or indirectly service the Premises or terms and conditions of this Sublease,,
37 any manner whatsoever, to verify their identity and eligibility for employment in the United States.
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CITY shall also require and verify that its contractors or any other persons servicing the Premises or
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terms and conditions of this Sublease, in any manner whatsoever, verify the identity of their employees
3
and their eligibility for employment in the United States.
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Pursuant to the United States of America Fair Labor Standard Act of 1938, as amended, and State of
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California Labor Code, Section 1178.5, CITY shall pay no less than the greater of the Federal or
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California Minimum Wage to all its employees that directly or indirectly service the Premises, in any
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manner whatsoever. CITY shall require and verify that all its contractors or other persons servicing the
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Premises on behalf of the CITY also pay their employees no less than the greater of the Federal or
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California Minimum Wage.
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CITY shall comply and verify that its contractors comply with all other Federal and State of California
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laws for minimum wage, overtime pay, record keeping, and child labor standards pursuant to the
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servicing of the Premises or terms and conditions of this Sublease.
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Notwithstanding the minimum wage requirements provided for in this clause, CITY, where applicable,
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shall comply with the prevailing wage and related requirements, as provided for in the Clause (LABOR
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CODE COMPLIANCE) of this Sublease.
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23. DEFAULTS AND REMEDIES (6.8 S)
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The occurrence of any of the following shall constitute an event of default:
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Failure to pay any installment of any monetary amount due and payable hereunder;
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Failure to perform any obligation, agreement or covenant under this Sublease.
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In the event of any non - monetary breach of this Sublease by COUNTY, CITY shall notify COUNTY in
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writing of such breach, and COUNTY shall have fifteen (15) days in which to initiate action to cure said
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breach.
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In the event of any non - monetary breach of this Sublease by CITY, COUNTY shall notify CITY in
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writing of such breach and CITY shall have fifteen (15) days in which to initiate action to cure said
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breach.
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In the event of any monetary breach of this Sublease by COUNTY, CITY shall notify COUNTY in
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writing of such breach, and COUNTY shall have fifteen (15) days in which to cure said breach, unless
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specified otherwise within this Sublease.
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In the event of any monetary breach of this Sublease by CITY, COUNTY shall notify CITY in writing
such breach, and CITY shall have fifteen (15) days in which to cure said breach, unless specifi
otherwise within this Sublease.
24. NOTICES (8.1 S)
All written notices pursuant to this Sublease shall be addressed as set forth below or as either party may
hereafter designate by written notice and shall be deemed delivered upon personal delivery, delivery by
facsimile machine, or seventy-two (72) hours after deposit in the United States Mail.
TO: CITY
CITY of Newport Beach
CITY Manager's Office
3360 Newport Boulevard
P.O. Box 1768
Newport Beach, CA 92658 -8915
Attention: Assistant CITY Manager
25. ATTACHMENTS (8.2 S)
TO: COUNTY
COUNTY of Orange
Health Care Agency
HCA/Facilities Acquisition and Management
405 W.Sth Street, Suite 610
Santa Ana, California 92701
Attention: Manager
This Sublease includes the following, which are attached hereto and made a part hereof:
1. GENERAL CONDITIONS
11. EXHIBITS
A. Description - Premises
B. Plot Plan — Premises
C. Plans and Specifications
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IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first
written.
APPROVED AS TO FORM:
OFFICE OF THE COUNTY COUNSEL
ORANGE COUNTY, CALIFORNIA
Im
Deputy
m
RECOMMENDED FOR APPROVAL:
Health Care Agency
Im
MX
Senior Real Property Agent
SIGNED AND CERTIFIED THAT A
COPY OF THIS DOCUMENT HAS BEEN
DELIVERED TO THE CHAIRMAN OF
THE BOARD.
DARLENE J. BLOOM
Clerk of the Board of Supervisors
of Orange COUNTY, California
CITY
CITY OF NEWPORT BEACH
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COUNTY
COUNTY OF ORANGE
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Chairman, Board of Supervisors
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GENERAL CONDITION(S)
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1. SUBLEASE ORGANIZATION (9.1 S)
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The various headings in this Sublease, the numbers thereof, and the organization of the Sublease into
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separate sections and paragraphs are for purposes of convenience only and shall not be considered
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otherwise.
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2. INSPECTION (9.2 S)
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CITY or his authorized representative shall have the right at all reasonable times and upon reasonable
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advance notice to COUNTY to inspect the Premises to determine, if COUNTY is complying with all the
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provisions of this Sublease.
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3. SUCCESSORS IN INTEREST (9.3 S)
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Unless otherwise provided in this Sublease, the terms, covenants, and conditions contained herein shall
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apply to and bind the heirs, successors, executors, administrators, and assigns of all the parties hereto, all
•
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of whom shall be jointly and severally liable hereunder.
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4. DESTRUCTION OF OR DAMAGE TO PREMISES (9.4 S)
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"Partial Destruction" of the Premises shall mean damage or destruction to the Premises, for which the
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repair cost is less than 25% of the then replacement cost of the Premises (including tenant
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improvements), excluding the value of the land.
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"Total Destruction" of the Premises shall mean damage or destruction to the Premises, for which the
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repair cost is 25% or more of the then replacement cost of the Premises (including tenant
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improvements), excluding the value of the land.
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In the event of a Partial Destruction of the Premises, CITY shall immediately pursue completion of all
32
repairs necessary to restore the Premises to the condition which existed immediately prior to said Partial
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Destruction. Said restoration work (including any demolition required) shall be completed by CITY, at
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CITY's sole cost, within sixty (60) days of the occurrence of said Partial Destruction or within an
35
extended time frame as may be authorized, in writing, by COUNTY. The Partial Destruction of the
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Premises shall in no way render this Sublease and /or any option to purchase null and void; however, rent
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1 payable by COUNTY under the Sublease shall be abated in proportion to the extent COUNTY's use and
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I occupancy of the Premises is adversely affected by said Partial Destruction, demolition, or repair wor
2 required thereby. Should CITY fail to complete necessary repairs, for any reason, within sixty (60) daA
3 or other time frame as may be authorized by COUNTY, COUNTY may, at COUNTY's sole option,
4 terminate the Sublease or complete necessary repair work and deduct the cost thereof, including labor,
5 materials, and overhead from any rent thereafter payable.
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7 In the event of Total Destruction of the Premises or the Premises being legally declared unsafe or unfit
8 for occupancy, this Sublease and /or any option shall in no way be rendered null and void and CITY shall
9 immediately instigate action to rebuild or make repairs, as necessary, to restore the Premises (including
10 replacement of all tenant improvements) to the condition which existed immediately prior to the
11 destruction. All rent payable by COUNTY shall be abated until complete restoration of the Premises is
12 accepted by COUNTY. In the event CITY refuses to diligently pursue or is unable to restore the
13 Premises to an occupiable condition (including replacement of all tenant improvements) within 180 days
14 of the occurrence of said destruction or within an extended time frame as may be authorized, in writing,
15 by COUNTY, COUNTY may, at COUNTY's sole option, terminate this Sublease or complete the
16 restoration and deduct the entire cost thereof, including labor, materials, and overhead from any rent
17 payable thereafter.
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19 Further, CITY, at COUNTY's request, shall provide a suitable, COUNTY- approved temporary facili,
20 ( "Facility ") for COUNTY's use during the restoration period for the Premises. The Facility may be
21 Subleased, at market rate, under a short term Sublease, for which the COUNTY will reimburse CITY the
22 cost thereof, on a monthly basis.
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24 5. AMENDMENT (9.5 S)
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26 This Sublease sets forth the entire agreement between CITY and COUNTY and any modification must
27 be in the form of a written amendment.
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29 6. PARTIAL INVALIDITY (9.6 S)
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31 If any term, covenant, condition, or provision of this Sublease is held by a court of competent
32 jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions hereof shall remain in
33 full force and effect and shall in no way be affected, impaired, or invalidated thereby.
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7. CIRCUMSTANCES WHICH EXCUSE PERFORMANCE (9.7 S)
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If either party hereto shall be delayed or prevented from the performance of any act required hereunder
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by reason of acts of God, performance of such act shall be excused for the period of the delay; and the
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period for the performance of any such act shall be extended for a period equivalent to the period of such
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delay. Financial inability shall not be considered a circumstance excusing performance under this
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Sublease.
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8. STATE AUDIT (9.8 S)
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Pursuant to and in accordance with Section 8546.7 of the California Government Code, in the event that
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this Sublease involves expenditures and /or potential expenditures of State funds aggregating in excess of
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ten thousand dollars (510,000), CITY shall be subject to the examination and audit of the Auditor
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General of the State of California for a period of three years after final payment by COUNTY to CITY
15
under this Sublease. The examination and audit shall be confined to those matters connected with the
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performance of the contract, including, but not limited to, the costs of administering the contract.
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9. WAIVER OF RIGHTS (9.9 S)
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The failure of CITY or COUNTY to insist upon strict performance of any of the terms, conditions, and
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covenants in this Sublease shall not be deemed a waiver of any right or remedy that CITY or COUNTY
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may have, and shall not be deemed a waiver of any right or remedy for a subsequent breach or default of
23
the terms, conditions, and covenants herein contained.
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10. HOLDING OVER (9.10 S)
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In the event COUNTY shall continue in possession of the Premises after the term of this Sublease, such
28
possession shall not be considered a renewal of this Sublease but a tenancy from month to month and
29
shall be governed by the conditions and covenants contained in this Sublease.
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11. HAZARDOUS MATERIALS (9.11 N)
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CITY warrants that, to its knowledge, the Premises is free and clear of all hazardous materials or
34
substances. COUNTY acknowledges that CITY has never been in possession of the Premises and has
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never conducted any survey or test of the Premises to determine if any hazardous materials or substances
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are present.
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4 12. EARTHQUAKE SAFETY (9.12 S)
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6 CITY warrants that the Premises is in compliance with all applicable seismic safety regulations and
7 building codes.
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9 13. QUIET ENJOYMENT (9.13 S)
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11 CITY agrees that, subject to the terms, covenants and conditions of this Sublease, COUNTY may, upon
12 observing and complying with all terms, covenants and conditions of this Sublease, peaceably and
13 quietly occupy the Premises.
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15 14. WAIVER OF JURY TRIAL (9.15 S)
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17 Each party acknowledges that it is aware of and has had the advice of Counsel of its choice with respect
18 to its rights to trial by jury, and each party, for itself and its successors and assigns, does hereby
19 expressly and knowingly waive and release all such rights to trial by jury in any action, proceeding,
20 counterclaim brought by any party hereto against the other (and /or against its officers, directors,
21 employees, agents, or subsidiary or affiliated entities) on or with regard to any matters whatsoever
22 arising out of or in any way connected with this agreement and/or any claim of injury or damage.
23
24 15. GOVERNING LAW AND VENUE. (9.16 S)
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26 This agreement has been negotiated and executed in the State of California and shall be governed by and
27 construed under the laws of the State of California. In the event of any legal action to enforce or
28 interpret this agreement, the sole and exclusive venue shall be a court of competent jurisdiction located
29 in Orange COUNTY, California, and the parties hereto agree to and do hereby submit to the jurisdiction
30 of such court, notwithstanding Code of Civil Procedure section 394.
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32 16. TIME (9.17 S)
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34 Time is of the essence of this Sublease.
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