HomeMy WebLinkAbout18 - Sunset Ridge Park UpdateCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
COUNCIL AGENDA
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Study Session Agenda Item No. SSs
September 14, 2004
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
Stephen G. Badum
949 - 6443311
sbadum@city.newport-beach.ca.us
SUBJECT: SUNSET RIDGE PARK UPDATE
BACKGROUND:
In 1966, Caltrans purchased approximately 15 acres of land, commonly known as
"Caltrans West", at the northwest comer of Coast Highway and Superior Avenue for the
future Coast Freeway. Due to heavy local opposition, the freeway was never built. In
the mid1980s, the City of Newport Beach realigned Superior Avenue which created two
parcels within Caltrans West (westerly and easterly parcels). Additionally, the City
widened Coast Highway and created a public parking lot on a portion of the easterly
parcel. The resulting residual parcel and the Westerly parcel of Caltrans West was
deemed as excess right of way and,was put on the market as surplus. In 1997, the City
investigated the possibility of purchasing the property to create a park. An appraisal
was performed that yielded an estimated market price of $2,530,000. The appraisal
was updated in March 2000 and the valuation rose to $4,185,000. Due to rising land
costs, City staff investigated alternative means to acquire the property for park
purposes. It was discovered that Article XIX, Section 9 of the State Constitution
provides for the transfer of surplus State property within the coastal zone, for
consideration of the original cost paid to acquire the property, to the Department of
Parks and Recreation for State Park purposes. With the help of Senator Ross
Johnson, legislation (SB124) was passed that authorized the transfer of Caltrans West
to the State Department of Parks and Recreation upon payment of $1,356,485
(believed to be the original purchase price) by the City of Newport Beach. The intent of
the legislation was to transfer all of Caltrans West parcels to State Parks and allow the
City to enter into a ground lease similar to the existing operating agreement where the
City currently manages Corona del Mar State Beach.
DISCUSSION:
City Staff has been working with State Parks and Caltrans personnel to execute the
transfer and ground lease (formerly called operating agreements). Attached are draft
SUBJECT: Sunset Ridge Park Update
September 14, 2004
Page 2
copies of the two documents; Exhibit 1, Agreement for the Transfer of Jurisdiction of
State -owned Real Property and Exhibit 2, Ground Lease.
In general, the Ground Lease entitles the City the exclusive right to finance, develop,
operate and maintain a park facility for an initial term of ten years with provisions for
extensions. The City will make a one time payment of $1,365,485 to the State and will
be required to initiate development of the park within five years of the execution of the
lease.
In a recent letter dated August 16, 2004, Caltrans R/W Division has interpreted the
language of SB124 as not including the easterly parcel of Caltrans West and has
initiated a separate process to sell the easterly parcel as surplus land. The City has
responded firmly that we believe that they do not have clear title to this parcel and that
the intent of SB124 was to transfer all portions of the original Caltrans West parcel
which includes both the westerly and easterly portions. Staff is continuing discussions
with Caltrans staff to resolve this misunderstanding and, if necessary, will work with our
legislative representatives to pass amended legislation.
Submitted by-
Stephen adum
/ Public Works Director
STATE OF CALIFORNIA
LEASE COVERING PREMISES LOCATED AT
Newport Beach, California
APN: 424 - 041 -08, -09, -10, -11, -12;
LESSEE'S FED. TAX I D NO OR SOCIAL SECURITY NO
DEPARTMENT OF PARKS AND RECREATION
Lease No.:
Pursuant to the provisions of Public Resources Code Section 5003.17, THIS LEASE, dated this day
of , 2004, by and between the State of California, acting by and through the Department of Parks
and Recreation, hereinafter called STATE, and the City of Newport Beach, a Municipal Corporation,
hereinafter called LESSEE.
WITNESSETH:
DESCRIPTION I. STATE does hereby lease to LESSEE, and LESSEE hereby hires from STATE,_
upon the terms, agreements, and conditions hereinafter set forth, those certain premises as
outlined on the attached plot plan designated as Exhibit "A ", and legal description
designated as Exhibit `B" which is incorporated herein and by this reference made a part
hereof and more particularly described as follows:
Approximately 15.05 acres of property consisting of Assessor Parcel Numbers 424-
041-08, -09, -10, -11, and -12, situated in the City of Newport Beach, County of
Orange, State of California, hereinafter called Premises.
TERM 2. The term of this Lease shall be for 10 years, commencing on October 1, 2004 and
ending on September 30, 2014, with such rights of termination as are hereinafter expressly
set forth.
EXTENSIONS OF 3. Upon one year's written notice from LESSEE and upon STATE's written consent as
TERM granted pursuant to the STATE's sole discretion, this Lease may be extended for additional
terms commencing on the fast calendar day after the date set for expiration of this Lease.
In exercising its discretion to extend the term of the Lease, the STATE may modify, add
or delete terms and conditions of the original lease, including the addition of a requirement
for monetary consideration for the use of the Premises, as the STATE may determine to be
in the best interests of the STATE.
CONSIDERATION 4. This Lease is a non - compensation lease with respect to regular rental payments.
Consideration for the Lease which is deemed to meet or exceed the fair market value of
the property is LESSEE's acceptance of all terms and conditions of the Lease, including:
(a) The requirement to assume and finance all development, operation and
maintenance of the Premises; and
(b) To provide the public benefits of a city park as hereinafter provided; and
(c) A one -time payment of $1,365,485.00 to the STATE per the terms of Senate Bill
124 (Chapter 761 of the Statutes of 2001).
USE 5. The Premises shall be used by LESSEE during the term hereof for the purpose of
developing, operating and maintaining a city park providing multi -use sports and
recreational facilities for the residents and visitors of the City of Newport Beach and
surrounding communities, and for no other purposes whatsoever.
EXHIBIT 1
PERFORMANCE BY 5. LESSEE shall have the sole responsibility for funding the development, operation
LESSEE and maintenance of the Premises pursuant to Section 5003.18 of the California Public
Resources Code. LESSEE shall develop the Premises for the purposes specified in
Section 5003.18 within five (5) years of the execution of this Lease. Net profits, if any,
resulting from LESSEE's operation of the Premises shall be used exclusively for the
Premises. LESSEE shall keep all records pertaining to the development, operation and
maintenance of the Premises for no less than five (5) years from the date of each record
and shall make such records available to the State for inspection and/or copying upon the
STATE'S request. The STATE shall have the right to declare the LESSEE in breach of its
obligations under this Lease, terminate the Lease, and seek all applicable legal and
contractual remedies in the event LESSEE fails to develop the Premises within this five
(5) year period.
TERMINATION 6. Termination of this Lease by either party to this Lease shall be for breach of the
terms and conditions of the Lease. Upon termination, LESSEE shall immediately
surrender possession of the Premises to the STATE and comply with all other applicable
requirements mandated by this Lease.
HOLDOVER 7. Any holding over after the expiration of the term or any extension thereof, with the
written consent of STATE, expressed or implied, shall be deemed to be a tenancy only
from month -to -month and shall otherwise be subject to the terms and conditions specified
in this Lease.
UTILITIES 8. No utilities, including but not limited to electricity or gas, will be provided by
STATE and STATE assumes no liability for the existence or nonexistence of utilities.
WATER, 9. It is understood and agreed between the parties hereto that STATE does not
sTORMwATER AND guarantee the availability, quality or quantity of water on the Premises. LESSEE shall
IRRIGATION manage stormwater discharge on the Premises in a manner consistent with the best
management practices as determined by the public regulatory entity or entities having
jurisdiction over enforcement of water quality laws and regulations for the LESSEE's
project.
NOTICES 10. All notices or other communications required or permitted under this Lease shall
be in writing, and shall be personally delivered (including by means of professional
messenger service), or sent by overnight courier, or sent by registered or certified mail,
postage prepaid, return receipt requested to the addresses set forth below, or sent by
electronic facsimile to the telefacsimile numbers set forth below. All such notices or other
communications shall be deemed received upon the earlier of: (a) if personally delivered
or sent by overnight courier, the date of delivery to the address of the person to receive
such notice; (b) if mailed as provided above, on the date of receipt or rejection; or (c) if
given by electronic facsimile, when received by the other party if received Monday
through Friday between 6:00 a.m. and 5:00 p.m. Pacific Standard Time so long as such
day is not a state or federal holiday and otherwise on the next day provided that if the next
day is Saturday, Sunday, or a state or federal holiday, such notice shall be effective on the
following business day.
To the LESSEE: City of Newport Beach
c/o Director of Public Works
3300 Newport Boulevard
Newport Beach, California
Telephone: 949-644-3311
Facsimile: 949- 644 -3020
To the STATE: Department of Parks and Recreation
C/o District Superintendent, Orange Coast District
3030 Avenida del Presidente
San Clemente, CA 92672
Telephone: 949 - 492 -0802
Facsimile: 949 -492 -8459
With a copy provided to:
Department of Parks and Recreation
C/o Chief, Acquisition and Real Property Services
One Capitol Mall, Suite 500
Sacramento, California 95814
Notice of change of address or telefacsimile number shall be given by written notice in
the manner described in this section LESSEE is obligated to notice all STATE offices
listed above and the failure to provide notice to all STATE offices will be deemed to
constitute a lack of notice.
The address to which notices shall be mailed to either party may be changed by
written notice. Nothing herein shall preclude the giving of any notice by personal service.
ACTION BROUGHT 11. If action is brought by the STATE for any breach of the provisions of this Lease, or
FOR BREACH to restrain the breach of any agreement contained herein, or for the recovery of possession
of said Premises, or to protect any rights given to the STATE against the LESSEE
(including the appeals of such action and any action or proceeding under title 11 of the
United States Code), and if STATE shall prevail in such action, LESSEE shall pay to the
STATE such amount in attorneys' fees in said action as the court determines to be
reasonable.
HOLD 12. This Lease is made upon the express condition that the STATE is to be free from
HARMLESS all liability and claims for damages by reason of any injury to any person or persons,
including LESSEE, or property of any kind whatsoever and to whomsoever belonging,
including LESSEE, from any cause or causes whatsoever while in, upon or in any way
connected with the Premises during the term of this Lease or any occupancy hereunder
except those arising out of the sole negligence of the STATE. LESSEE agrees to defend,
indemnify and hold harmless STATE from all liability, loss, cost or obligation on account
of or arising out of any such injury or loss, however occurring. LESSEE further agrees to
provide necessary Worker's Compensation Insurance for all employees of LESSEE upon
said Premises at the LESSEE's own cost and expense.
INSURANCE 13. LESSEE shall furnish a certificate of insurance with the STATE's Lease Number
indicated on the face of said certificate, issued to STATE with amounts of Commercial
General Liability of at least $1,000,000 per occurrence and Fire Legal Liability of at least
$500,000 naming the State of California, its officers, agents and employees as additional
insureds. Said certificate of insurance shall be issued by and insurance company with a
minimum Best Insurance Guide rating of A- or better.
It is agreed that STATE shall not be liable for the payment of any premiums or
assessments on the insurance coverage required by this paragraph. The certificate of
insurance shall provide that the insurer will not cancel LESSEE's coverage without thirty
(30) days prior written notice to STATE. LESSEE agrees that the insurance herein
provided for shall be in effect at all times during the term of this Lease, all extensions
thereof, hold -over periods or any other occupancy of the Premises by LESSEE. In the
event said insurance coverage expires at any time or times during the term of this Lease,
LESSEE agrees to provide STATE at least thirty (30) days prior to said expiration date, a
new certificate of insurance evidencing insurance coverage as provided for herein for not
less than one (1) year. In the event LESSEE fails to keep in effect at all times insurance
coverage as herein provided, STATE may, in addition to any other remedies it may have,
terminate this Lease upon the occurrence of such event.
If LESSEE is self - insured, LESSEE shall provide STATE with written acknowledgment
of this fact at the time of the execution of this Lease. LESSEE shall annually thereafter,
on the anniversary of the date of execution of this Lease, provide STATE with a written
acknowledgment of the continuation of its self - insured status. If, at any time after the
execution of this Lease, LESSEE abandons its self - insured status, LESSEE shall
immediately notify STATE of this fact and shall comply with the terms and conditions of
Paragraph 13 of this Lease.
LOSSES 14. STATE will not be responsible for losses or damage to personal property,
equipment or materials of LESSEE and/or any of LESSEE's agents, employees, officers,
contractors, invitees. All losses shall be reported to STATE immediately upon discovery.
NON- 15. In the performance of this Lease, LESSEE shall not discriminate, harass, or allow
DISCRIMINATION harassment against any employee or applicant for employment because of race, religious
creed, color, national origin, ancestry, physical disability (including HIV and AIDS),
mental disability, medical condition, age (over 40), marital status, sex, sexual orientation,
or use of family care leave. LESSEE shall insure that the evaluation and treatment of its
employees and applicants for employment are free from such discrimination and
harassment. Such action shall include, but not be limited to, the following: employment,
upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or
termination, rates of pay or other forms of compensation, and selection for training,
including apprenticeship.
LESSEE shall comply with the provisions of the Fair Employment and Housing Act
(Government Code Section 12990 (a -f) et seq.) and the applicable regulations promulgated
thereunder (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable
regulations of the Fair Employment and Housing Commission implementing Government
Code Section 12990 (a -f), set forth in Chapter 5 of Division 4 of Title 2 of the California
Code of Regulations, are incorporated into this Lease by reference and made a part hereof
as if set forth in full. LESSEE shall give written notice of its obligations under this clause
to any labor organizations with which they have a collective bargaining or other
agreement. Further, LESSEE shall post in conspicuous places available to employees and
applicants for employment, notices to he provided by the STATE setting forth the
provisions of this Fair Employment Practices Section. (Government Code, Section
12920- 12994).
Remedies for willful violations:
(a) The STATE may determine a willful violation of the Fair Employment
Practices provision to have occurred upon receipt of a final judgment having that
effect from a court in an action to which LESSEE was a party, or upon receipt of a
written notide from the Fair Employment Practices Commission that it has
investigated and determined that the LESSEE has violated the Fair Employment
Practices Act and has issued an order pursuant to the appropriate provisions of the
Government Code.
(b) The STATE shall have the right to terminate this Lease and any loss or
damage sustained by the STATE by reason thereof shall be bome and paid for by
the LESSEE.
DEBT LL43H.TTY 16. The STATE will not be liable for any debts or claims that arise from operation of
DISCLAIMER this Lease.
PARTNERSHIP 17. LESSEE and any and all agents of LESSEE shall act in an independent capacity
DISCLAIMER and not as officers or employees of the STATE. Nothing herein contained shall be
construed as constructing the parties herein as partners, agents, or a joint powers entity.
Neither party shall have the right or power to bind the other to agreement or any other
liability at law.
SUBLETTING 18. LESSEE shall not assign this Lease in any event and shall not sublet the Premises
or any part thereof and will not permit the use of the Premises by anyone other than the
LESSEE without prior written consent of the STATE which consent shall be given at the
State's sole discretion.
TAXES AND 19. LESSEE agrees to pay all lawful taxes, assessments, or charges, which at any time
ASSESSMENTS may be levied upon the Premises or any interest in this agreement. It is understood that
any sublease or concession to a private entity that may be permitted by this Lease may
create a possessory interest subject to property taxation and LESSEE or such sublessee or
concessionaire may be subject to the payment of property taxes levied on such interest.
COMPLIANCE 20. LESSEE shall, at its sole cost and expense, comply with all the laws and
WITH LAWS requirements of all Municipal, County, State, and Federal authorities now in force or
which may hereafter be in force pertaining to the Premises and use of the Premises as
provided by this Lease.
CONDITION OF 21. LESSEE accepts the Premises "AS IS, WHERE IS, WITH ALL FAULTS"
PREMISES without representation or warranty. LESSEE is experienced in real property transactions
and acknowledges that it has the ability to investigate and evaluate the risks, if any,
associated with the receipt of the Premises and further acknowledges that it has had
adequate time to properly and completely review and analyze the condition of the
Premises to the extent it deems necessary or appropriate. LESSEE hereby accepts the
Premises in its existing condition and acknowledges that any preparation of the Premises
for LESSEE's use shall be the sole responsibility, obligation and expense of LESSEE.
LESSEE agrees on the last day of the term, or the earlier termination of this Lease, to
surrender up to STATE the Premises, with any appurtenances or improvements therein (as
required or allowed by this Lease), in the same condition as when received, reasonable use
and wear thereof and damage by acts of God excepted.
MAINTAINING 22. LESSEE shall, at LESSEE's sole cost and expense, be responsible for the
PREMISES development, maintenance and operation of all Improvements permitted to be constructed
upon the Premises by LESSEE in furtherance of the purposes of this Lease. LESSEE shall
keep the Improvements in good, clean and safe condition and shall comply with all laws
and regulations regarding the maintenance standards for such Improvements.
PROTECTION OF 23. LESSEE shall not commit or suffer to be committed any waste or nuisance upon
PREMISES the Premises.
PLANNING AND 24. Except otherwise agreed to by STATE, LESSEE shall be solely responsible for all
DEVELOPMENT planning and development of the facilities, buildings, playing fields, and infrastructure
(the Improvements) on the Premises contemplated by the purposes for which the Premises
may be developed under this Lease. LESSEE agrees to consult and collaborate with
STATE in the planning for development, construction and operation of the city park.
LESSEE's interest under this Lease will be subject to all easements, access rights, licenses
and permits in favor of or as granted by the STATE or its predecessors in interest.
IMPROVEMENTS 25. Development of the Premises or construction of Improvements thereon shall not be
permitted to begin until STATE (including Department of General Services, as necessary)
has approved the complete plans and specifications for the project, said plans to be
prepared by an architect, civil engineer, or other professional, that is duly qualified and
registered by the State of California. Once LESSEE has provided STATE said plans and
specifications, STATE shall have a thirty (30) day minimum review period before
granting LESSEE approval or disapproval of project in writing. LESSEE shall, at the time
of the request, specify if LESSEE desires to retain ownership and/or possession of the
alteration, addition, or Improvement. Review and approval of all plans and specifications
for the Improvements by STATE shall be for concurrence and compatibility with the
collaborative planning process contemplated and provided for herein above. Any
approvals shall not relieve LESSEE from its responsibility to plan, design, construct and
operate facilities in a safe manner according to all laws, codes, regulations or other
standards applicable to such facilities.
CEQA 26. LESSEE acknowledges that environmental documents under the California
Environmental Quality Act (CEQA) may be required for this Lease and for any of
LESSEE'S anticipated future improvements to the leased Premises.
DISPOSMON OF 27. Upon termination of this Lease for any cause, LESSEE shall use its best efforts to
IMPROVEMENTS remove any and all personal equipment and Improvements of the LESSEE and restore the
entire Premises to its condition prior to the execution of this Lease, except, however, the
STATE may approve, in writing, any deviation from this requirement or may direct
LESSEE as to its intentions with respect to the Improvements. Any Improvements
remaining at the Premises at the expiration or termination of this Lease shall become the
property of the State.
FIRE AND 28. STATE will not keep Improvements which are constructed or installed by LESSEE
CASUALTY under the provisions of this Lease insured against fire or casualty, and LESSEE will make
DAMAGES no claim of any nature against STATE by reason of any damage to the facilities or
property of LESSEE in the event of damage or destruction by fire or other cause, arising
other than from or out of the negligence or willful misconduct of agents or employees of
the STATE in the course of their employment.
HAZARDOUS 29. The following activities are prohibited on the Premises:
SUBSTANCES
(a) Use or storage of any hazardous substance or hazardous chemical as those
terms are used in CERCLA (42 USC 9601.14) or SARA (42 USC 11021(e)) or
any similar state law, or any pesticide, oil, petroleum product or fuel (except only
materials packaged and purchased for consumer use in containers not to exceed
one (1) gallon, or fuel in a vehicle fuel tank). Use of pesticides should be
minimized, and will be applied only by authorized personnel and in accordance
with all applicable laws, regulations, and label instructions. Aerial application is
prohibited.
(b) Accumulation, storage, treatment, or disposal of any waste material
(excepting only temporary storage, not to exceed fourteen (14) days), or non-
hazardous solid refuse produced from activities on the Property for pick up by a
municipal or licensed commercial refuse service, and lawful use of sanitary sewers
(if any) for domestic sewage.
(c) Manufacturing, maintenance of equipment or vehicles, or use, installation
or construction of vessels, tanks, (stationery or mobile), dikes, sumps, or ponds, or
any activity for which a license or permit is required from any government agency
for (1) transportation, storage, treatment, or disposal of any waste, and (2)
discharge of any pollutant, including but not limited to discharge to air, water, or a
sewer system.
Any spill, release or discharge of a hazardous material to the air, soil, surface water, or
groundwater will be immediately reported to the STATE as well as to appropriate
government agencies, and shall be promptly and fully cleaned up and the Premises
(including soils and surface water and groundwater) restored to its original condition.
LESSEE agrees to comply with the requirements and orders, if any, of the California
Department of Toxic Substances Control with respect to the Premises.
Should LESSEE desire to use pesticides on the area (either herbicides, rodenticides, or
insecticides), all applicable Environmental Protection Agency (EPA) standards must be
met and prior approval must be received from the STATE (as specified below) as not all
EPA approved pesticides may be used on wildlife areas. No aerial applications of
pesticides will be permitted. No dumping of hazardous wastes (Petroleum) shall be
permitted. LESSEE will fill out Form FG -880 and submit it to the area manager at least
seven (7) days prior to application of pesticides. STATE reserves the right to disapprove
the use of any pesticide. LESSEE shall obtain all County, State, or Federal permits
required, including restricted pesticide use and burning permits, and comply with all
conditions of those permits. LESSEE shall submit to the area manager a copy of all
permits.
PEST CONTROL 30. All non - routine pest control activities (defined as activities not normally used for
the maintenance of ball fields and supporting structures), chemical or non - chemical, shall
be approved by the STATE prior to any action performed by the LESSEE, LESSEE's
employees, agents, or contractors. The LESSEE, or a pest control contractor acting on
behalf of the LESSEE, must submit a pest control recommendation on a form approved by
the STATE to the Orange Coast District Superintendent for approval. The STATE shall
have fourteen (14) days to approve or deny the request. LESSEE, or the pest control
contractor acting on behalf of the LESSEE, must submit a report of completed work for
each pest management action to the District Superintendent no later than seven (7) days
after performance of the work. LESSEE and all of LESSEE's employees, agents, or
contractors shall prevent the inadvertent transport of pest species into or out of the
STATE's park unit.
LESSEE shall have a written training program for LESSEE's employees who handle
pesticides. This program shall comply with California Code of Regulations Title 3,
Section 6724. Any pest control contractor hired by the LESSEE shall comply with all
California laws and regulations.
RIGHT 31. During continuance in force of this Lease, there shall be and is hereby expressly
OF ENTRY reserved to STATE and to any of its agencies, contractors, agents, employees,
representatives, or licensees, the right at any and all times, and any and all places, to
temporarily enter upon said Premises for survey, inspection or other lawfiil STATE
purposes.
EASEMENTS AND 32. This Lease is subject to all existing easements and rights of way as may affect the
RIGHTS OF WAY Premises at the time of commencement of the Lease.
MINERALRIGHTS 33. LESSEE agrees not to interfere in any way with the interests of any person or
persons that may presently (or in the future) hold oil, gas, or other mineral interests if any
under said Premises, nor shall LESSEE interfere in any way with the rights of ingress and
egress of said interest holders.
RELOCATION 34. LESSEE acknowledges that LESSEE, its employees, contractors, subordinates and
assigns are not entitled to any Relocation Payment or Relocation Advisory Assistance due
to their occupancy of the Premises.
In the event subleasing is permitted, LESSEE shall incorporate the above paragraph
into each sublease. Failure to do so will obligate LESSEE for damages and costs resulting
from claims for relocation payment by sublessees.
DEFAULT 35. The occurrence of any of the following shall constitute a material breach and
default of this Lease by LESSEE:
(a) LESSEE's failure to develop the Premises within five (5) years of the date
of execution of this Lease.
(b) The abandonment or vacation of the Premises by LESSEE. Failure to
occupy and operate the Premises for thirty (30) consecutive days following the
mailing of written notice from STATE to LESSEE calling attention to the
abandonment shall be deemed an abandonment or vacation.
(c) A failure by LESSEE to observe and perform any other provision of this
Lease to be observed or performed by LESSEE, where such failure continues for
thirty (30) days after the date of written notice thereof by STATE to LESSEE;
provided, however, that if the nature of such default is such that it cannot be
reasonably cured within such thirty (30) day period, LESSEE shall not be deemed
to be in default if LESSEE shall within such period commence such cure and
thereafter diligently prosecute the same to completion.
(d) The making by LESSEE of any general assignment or general
arrangement for the benefit of creditors, and the appointment of a trustee or
receiver to take possession of substantially all of LESSEE's assets where
possession is not restored to LESSEE within forty-five (45) days, or the
attachment, execution or other judicial seizure of substantially all of LESSEE's
assets where such seizure is not discharged within thirty (30) days.
35.1 STATE'S Remedies
In the event of any material default or breach by LESSEE, STATE may at any time
thereafter, without limiting STATE in the exercise of any right or remedy at law or in
equity which STATE may have by reason of such default or breach, immediately
terminate this Lease and LESSEE shall immediately surrender possession of the Premises
to STATE. In such event, STATE shall be entitled to recover from LESSEE all damages
incurred by STATE by reason of LESSEE's default including, but not limited to, the
following:
(a) any amount necessary to compensate STATE for all the detriment
proximately caused by LESSEE's failure to perform its obligations under this
Lease or which in the ordinary course of events would be likely to result
therefrom, including attorney's fees and costs; plus
(b) such other amounts in addition to or in lieu of the foregoing as may be
permitted from time to time by applicable state law; and
(c) the costs of all reasonable repairs, alterations or modifications to the
Premises which the STATE, in its sole discretion, deems reasonable or necessary
as a result of LESSEE possession, including removal of the Improvements and
restoration of the property as required on termination by other provisions of this
Lease.
FAILURE TO 36. In the event of the failure, neglect, or refusal of LESSEE to do, or perform work, or
PERFORM any part thereof, or any act or thing in this Lease provided to be done and performed by
LESSEE, STATE shall, at its sole option, have the right to do and perform the same, and
LESSEE hereby covenants and agrees to pay STATE the cost thereof on demand.
WAIVER 37. If the STATE waives the performance of any term, covenant or condition
contained in this Lease, such waiver shall not be deemed to be a waiver of that or any
subsequent term, covenant or condition Failure by STATE to enforce any of the terms,
covenants or conditions of this Lease for any length of time shall not be deemed to waive
or decrease STATE'S right to insist thereafter upon strict performance by LESSEE.
Waiver by STATE of any term, covenant or condition contained in this Lease may only be
made by a written document property signed by an authorized STATE representative.
SEVERABH.TTY 38. If any term, covenant, condition or provision of this Lease or application thereof
shall, to any extent, be invalid or unenforceable, the remainder of this Lease shall not be
affected thereby, and shall be valid and enforceable to the fullest extent permitted by law.
AMERICANS WITH 39. Lessee shall comply with all federal requirements established under 28 Code of
DISABILITY ACT Regulations, Part 36, Americans with Disabilities Act, in order to make improvements and
programs accessible to all participants and to provide equally effective communications.
The requirements of CCR Title 24, State Building Code relative to Access Law
Compliance, and Americans with Disabilities Act (ADA), and Uniform Federal Access
Standards (UFAS), must be included in the design and development of all facilities
constructed under this Lease and all Sub - Leases, including the Lease - Financing.
All new construction work shall be planned to comply with the above mentioned
standards.
SUPERSEDURE 40. This Lease supersedes and voids any prior license, lease or agreement between the
STATE and the LESSEE identified in this Lease with regard to the Premises.
VOLUNTARY 41. Permittee accepts this Lease, and the Premises, in its as -is condition and has made
EXECUTION such investigation of the facts pertaining to this Lease and all the matters pertaining
,thereto as it deems necessary.
WARRANTY OF 42. The undersigned represents that it has the authority to, and does, bind the person or
AUTHORITY entity on whose behalf and for whom it is signing this Lease and the attendant documents
provided for herein, and this agreement and said additional documents are, accordingly,
binding on said person or entity.
MUTUAL CONSENT 43. Notwithstanding any provision contained herein to the contrary, this Lease may be
altered, changed, or amended by mutual consent of the parties hereto in Writing.
BINDING 44. The terms of this Lease and covenants and agreements herein contained shall apply
to and shall bind the agents, employees, officers, contractors and licensees of the parties
hereto.
ASSIGNABILITY 45. This Lease is non - assignable.
CHOICE OF LAW 46. This Lease will be governed and construed by the laws of the State of California.
SECTION 47. All section headings contained herein are for convenience of reference only, and
HEADINGS are not intended to define or limit the scope of any provisions of this Lease.
ENTIRE 48. This Lease and all attached Exhibits constitute the entire agreement between
AGREEMENT STATE and LESSEE. No prior written or prior, contemporaneous or subsequent oral
promises or representations shall be binding.
ESSENCE OF TIME 49. Time is of the essence for each and all of the provisions, covenants and conditions
of this agreement.
IN WITNESS WHEREOF, this Lease has been executed by the parties hereto as of the Executed Date first
written hereinabove.
STATE OF CALIFORNIA: LESSEE:
DEPARTMENT OF PARKS AND RECREATION CITY OF NEWPORT BEACH
By: By:
in
Agreement for the Transfer of Jurisdiction of
State -Owned Real Property
THIS AGREEMENT is entered into this day of
2004, by and between the California Department of Parks and Recreation
( "State Parks"),. and the California Department of Transportation
("Caltrans'), with the approval of the Director of General Services.
WITNESSETH
WHEREAS, Section 9 of Article XIX of the California Constitution
allows for the transfer of Caltrans -owned property in the Coastal Zone
from Caltrans to State Parks when the property will be used for state
park purposes, and
WHEREAS, Senate Bill 124 (Johnson), which was passed by the
State Legislature and signed into law by the Governor as Chapter 761 of
the Statutes of 2001, directs that the Caltrans shall transfer the
approximately 15.05 acres known as "Caltrans West" rSubject Property")
to State Parks in accordance with the Constitution, and
WHEREAS, Government Code §14673 also pertains to the transfer
of jurisdiction between state agencies; and
WHEREAS, the Subject Property is situated in the City of
Newport Beach, County of Orange, State of California more particularly
described in Exhibit A attached hereto by this reference and made a part
hereof, and
WHEREAS, the City of Newport Beach shall pay to State Parks,
which shall then pay to the State Highway Account, consideration of one
million three hundred fifty -six thousand four hundred eighty -five dollars
($1,356,485) for Subject Property, and
WHEREAS, the City of Newport Beach and State Parks shall,
consistent with SB 124, execute an agreement that requires the city to
accept and perform all of the responsibilities relating to, and to assume
the liability for, the construction, operation, and maintenance of the park
and its improvements.
NOW, THEREFORE, be it resolved that the parties hereto agree
as follows:
EXHIBIT 2
Pursuant to the provisions of Chapter 761 of the Statutes of 2001
and Section 14673 of the Government Code of the State of California,
Caltrans hereby transfers unto State Parks and State Parks hereby
accepts the jurisdiction of that real property known as Orange County
Assessor Parcel numbers 424 - 041 -08, 424 - 041 -09, 424- 041 -10, 424-
041-11, and 424 - 041 -12, and more particularly described in attached
Exhibit "A" attached hereto and by this reference made a part hereof, and
The consideration for this transfer of jurisdiction is one million
three hundred fifty -six thousand four hundred eighty -five dollars
($1,356,485.00); and
The use and operation of the property shall be in accordance
with that agreement between State Parks and the City of Newport Beach
dated , 2004 wherein the City of Newport Beach has agreed
to assume the liability for the construction, operation, and maintenance
of the park and its improvements.
This agreement will be effective upon approval by the Director of
General Services.
DEPARTMENT OF PARKS AND DEPARTMENT OF TRANSPORTATION
RECREATION
By: -
Title
Date
APPROVED:
DIRECTOR OF GENERAL SERVICES
By:
Date:
Title:
Date:
STATE OF CALIFORNIA- BUSINESS. TRANSPORTATION AND HOUSING AGENCY ARNOLD SCHWARZENEGGER, Governor
DEPARTMENT OF TRANSPORTATION
SOUTHERN RIGHT OF WAY REGION
District 07 R/W Field Office
120 SoUth Spring Street
Las Angeles, CA 90012 -3606
August 16, 2004
12- ORA -1- PM 19.7
DD: 040766 -01 -02
City Hall
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92658
Gentleman:
The Department of Transportation hereby offers to sell this surplus land shown on the attached map in
accordance with the provisions of Sections 54220 through 54227 of the Government Code.
Please notify the undersigned within sixty (60) days of your receipt of this notice if you intend to purchase
this surplus land.
Multiule Offers
In the event our Department receives offers for the purchases of this surplus land from more than one entity,
we shall give first priority to the entity which agrees to use the site for housing for persons and families of
low or moderate income, except that fast priority shall be given to an entity which agrees to use the site for
park or recreational purposes if the land being offered is already being used and will continue to be used for
park or recreational purposes, or if the land is designated for park and recreational use in the local general
plan and will be developed for the purpose. (Gov. Code Section 54227).
If we do not hear from your agency within (60) days of your receipt of this letter, the surplus land will be
disposed of in another manner.
(J10
Than Mai Vo
Right of Way Agent
Regional Excess Land
(213) 897 -1803
Encls.
SOUTHERN RIGHT OF WAY REGION
21073 PATHFINDER, SUITE 100
DIAMOND BAR, CA 91167
District 08 R(W Field Office
464 W. Fourth St.
San Bernardino, CA 92401 -1400
District I2 R/W Field Office
3337Michelson Drive, Ste. CN 380
Irvine, CA 92612 -1692
PHONE: (909) 468 -1500 Phone:(909) 383 -6277 Phone: (714) 724 -2000
Fax: (909) 468 -1500 F=:(909) 383 -6877 F=(7I4) 724 -24II
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423 -01
Senate B17h No. 124
CHAPTER 761
An act relating to state property.
[Approved by Governor October 11, 2001. Filed
with Secretary of State October 12, 2001.]
LEGISLATIVE COUNSEL'S DIGEST
SB 124, Johnson. Department of Transportation: property transfer.
Department of Parks and Recreation: City of Newport Beach.
(1) The California Constitution authorizes the Legislature, by statute,
with respect to state surplus property located in the coastal zone and
acquired by the expenditure of certain tax revenues, to transfer the
property, for a consideration at least equal to the acquisition cost paid by
the state to acquire the property, to the Department of Parks and
Recreation for state park purposes.
This bill would require the Department of Transportation to transfer
a certain parcel of land in the City of Newport Beach to the Department
of Parks and Recreation, for use as a park upon payment of consideration
of $1,356,485 by the City ofNewport Beach. The bill would require the
funds to be deposited in the State Highway Account. The bill would
make the transfer of the property contingent on the execution of an
agreement between the Department ofParks and Recreation and the City
of Newport Beach that requires the city to perform all of the
responsibilities related to, and to assume the liability for, the
construction, operation, and maintenance of the park and its
improvements.
(2) The bill would declare that, due to the special circumstances
concerning the Department of Transportation property in the City of
Newport Beach, a general statute cannot be made applicable within the
meaning of Section 16 of Article W of the California Constitution, and
the enactment of a special statute is therefore necessary.
(3) To the extent that the bill would impose new duties on the City of
Newport Beach, the bill would impose a state - mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the state.
Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this act
for a specified reason.
95
Ch. 761 . —2—
The people of the State of California do enact as follows:
SECTION 1. (a) The Department of Transportation shall transfer to
the Department of Parks and Recreation, upon payment by the City of
Newport Beach of consideration of one million three hundred fifty -six
thousand four hundred eighty -five dollars ($1,356,485), which is at least
equal to the acquisition cost paid by the state, pursuant to Section 9 of
Article M of the Califomia Constitution, the state -owned real property
described in subdivision (b), for state park purposes. The funds paid
pursuant to this section shall be deposited in the State Highway Account
(b) The property to be transferred pursuant to subdivision (a) consists
of approximately 15.05 acres, located in the coastal zone of the City of
Newport Beach, adjacent to Superior Avenue and Pacific Coast
Highway, identified by Director's Deed #040766 -01 -01 and known as
"Caltrans West."
SEC. 2. Execution of the property transfer specified in Section I of
this act shall be contingent upon the execution of an agreement between
the Department of Parks and Recreation and the City ofNewport Beach
that requires the city to accept and perform all of the responsibilities
relating to, and to assume the liability for, the construction, operation,
and maintenance of the park and its improvements.
SEC. 3. Due to the unique circumstances concerning the
Department of Transportation property in the City of Newport Beach,
the Legislature finds and declares that a general statute cannot be made
applicable within the meaning of subdivision (b) of Section 16 of Article
IV of the California Constitution, and that this special statute is
necessary.
SEC. 4. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because the
only costs that may be incurred by a local agency or school district are
the result of program for which legislative authority was requested by
that local agency or school district, within the meaning of Section 17556
of the Government Code and Section 6 of Article XIII B of the California
Constitution.
0
95