HomeMy WebLinkAbout9 - Back Bay Science Center AgreementAgenda Item #9
April 24, 2007
CITY OF NEWPORT BEACH
MEMORANDUM
TO: Mayor and Members of the City Council
FROM: Dave Kiff, Assistant City Manager
DATE: April 20, 2007
RE: Agenda Item #9 -- Back Bay Science Center
Attached is the proposed Lease Agreement between the City and DFG for the Back Bay
Science Center. This was not included in Wednesday's packet, so here it is now.
City Hall a 3300 Newport Boulevard • Post Office Box 1768 • Newport Beach, California 92659 -1768
STATE OF CALIFORNIA
STANDARD FORM LEASE AGREEMENT
LEASE COVERING PREMISES LOCATED AT
CALIFORNIA [)EPA R`rM ENT OF FISH AND CAME
UPPER NEWPORT 13AV ECOLOGICAL, RESERVE
RACK BAV SCIE:NCF CENTER
600 SHELLMAKER ROAD
NEWPORT REACIL CALIFORNIA 92660
AGENCY
DEPAR:Tm ENT OF FISH AND CAME
SOUTH COAST REGION
4949 Vi E.NVIUDCE AVENUE
SAN DISCO. CALIFORNIA 92123
DEPARTMENT OF FISH AND GAME
SOUTH COAST REGION
THIS LEASE. dated for reference purposes only as of , 2007, is made by and
between the State of California, acting by and - through its Department of Dish and Game, hereinafter referred to
as the STATE, and the City of Newport Beach, a charter City, hereinafteF referred to as the LESSEE. STATE
and LESSEE are sometimes referred to as the "Parties" to this Lease.
13ACKCIZOUND
A. The STATE is the owner of certain real property located at 600 Shellmaker Road, Newport
Beach, California, commonly known as Shelln;aker Island (the "Property "); and
B. The Property is part of the STATE's Upper Newport Bay Ecological Reserve (the "Reserve ").
The primary purpose of the Reserve is to protect rare and endangered wildlife, aquatic organisms and critical
habitat and specifcal'lyto preserve and enhance a coastal salt marsh ecosystem; and
C. Pursuant to Fish and Game Code Section 1585, the STATE is authorized to const•uct 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; and
D. This Lease is entered into pursuant to the Cooperative Agreement dated August 1.7, 2004 (the
"Cooperative Agreement") among STATE, LESSEE, the County of Orange (the "COUnty ") and The Regents of
the University of California on behalf of the University of California at Irvine ( "UC1 "), regarding the planning,
funding and construction of the Back Bay Science Center 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 on a portion of the Property (the " Project"); and
E. A Negative Declaration for the Project was prepared pursuant to the provisions of the California
Environmental Quality Act. On September 30; 2003, the STATE filed a Notice of Determination for the
Project with the State Clearinghouse; and
F. The Project includes an approximate 13,000 square foot permanent enclosed structure (the "BBSC
Buildings ") comprised of three new buildings containing a total of four wines located on the Property; and
G. LESSEE has constructed or will construct the BBSC Buildings, the parking area(s) and other
portions of the Project under the Interagency Agreement for Construction of a Back Bay :Science Center at
Upper Newport Bay Ecological Reserve dated as of July, 2004, and the BBSC Administrative Wing
Construction Contract dated as of , 2007, each between STATE and LESSEE; and
1 -t. This Lease is entered into concurrently with the Back Bay Science Center Operating .Agreement
dated . 2007 (the "Operating, Agreement") among STATE, LESSEE, the County and UCT.
:Among other things, the Operating Agreement establishes a Back Bay Science Center Facilities Working Group
to identify facilities needs and plan for property maintenance, capital projects and improvements to Project
facilities (the "Facilities Working Group "); and
L LESSEE desires to lease from STATE certain space within the BBSC Buildings upon and subject
to the terns, covenants and conditions of this Lease.
NOW, THEREFORE, the Parties hereby mutually agree as follows:
LEASE
PREMISES 1. (a) STATE hereby leases to LESSEE and LESSEE hereby leases from STATE for
nescRtPrtou the tenn, in exchange for the consideration and upon all of the other terms, covenants; and
conditions set forth in this Lease, the approximately 4,000 square feet of rentable area
designated as the "Water Quality Lab" located within the "OC Water Quality Lab /Storage"
wing of the BBSC Buildings shown on the Site Plan attached to this Lease as Exhibit A
(the "Premises'). The Parties agree that the Premises represent 32 percent of the rentable
area of the BBSC Buildings.
(b) LESSEE shall also have the reasonable access to, and icon- exclusive right to use,
in common with others entitled to such use, those aspects of the BBSC Buildings to which
access is necessary for the City to perform its obligations under the Cooperative Agreement,
the Operating Agreement, or this Lease. V
(c) LESSEE has inspected the Mans for the BBSC Buildings and the Premises and
agrees that the square footage of the BBSC Buildings and the Premises set forth in this
Lease is only approximate and the STATE does not warrant or guarantee the actual area of
the BBSC Buildings or the Premises.
TERM 2. (a) The term of this Lease shall be for 30 years, commencing on the
Commencement Date,; as defined below, and ending on the day before the 30 °i anniversary
of the Commencement Date, unless renewed or sooner terminated pursuant to any provision
of this Lease.
(b) So Tong as at the time of exercise and at the time the Option Term (as defined
below) commences (i) LESSEE is not in breach or default under this Lease, (ii) the Project
is actively operating and expected to continue in active operation, and (iii) LESSEE and
each subtenant, if any, has performed and is continuing to perform all of its functions and
obligations in connection with the Project, LESSEE will have the option to renew the Lease
for up to two successive additional terms of five years each (each an "Option Tern m" ). Any
such renewal shall be upon the same terms, covenants and conditions of this Lease, except
that the consideration for the Lease during the Option Term will be determined as set forth
below. LESSEE- will exercise its option, if at all, by giving STATE written notice (the
"Option Notice ") at ]cast 12 months but not more than 18 months before the expiration of
the initial term of this Lease or the first Option Term, as applicable.
(c) LESSEE and STATE will have 180 days after STATE receives the Option
Notice within which to agree on the consideration for the Option Term based upon factors
which may include (but shall not be limited to) the condition and projected useful liteof the
Premises, its fair rental value and the operational and other needs of the Project identified
by the Facilities Working Group. If STATE and LESSEE agree within the 130 -day period,
they shall amend this Lease accordingly. If STATE and LESSEE are unable to so agree,
this Lease shall not be renewed and shall instead expire at the end of the then- current term.
,fine option granted to LESSEE is personal to LESSEE and nifty not be exercised or
assigned, voluntarily or involuntarily, by or to any person or entity other than the original
LESSEE named in this Lease. The second renewal option cannot be exercised unless the
Lease is renewed for the first Option Term.
Con rat ENCEAI ENT 3.. The Commencement Date of this Lease . shall be the (fate upon which LESSEE's
DATE building department issues a certificate of occupancy or temporary certificate of occupancy
for the Premises. . Provided, however, that if the Commencement Date has not occurred by
January 1, 2003 then this Lease shall terminate and be of no further force or effect.
LESSEE shall have no ri;ht to occupy the Premises prior to the Commencement Date.
Upon the Commencement Date, the temporary Ground Lease (Shellmaker Island) between
STATE and LESSEE dated December 17, 2002 shall terminate,.
CONS 1)ER.rnon 4. The STATE is entering into this Lease in consideration of the Cooperative
Agreement, the Operating Agreement, the performance by LESSEE and the County of their
respective functions and obligations under the Cooperative Agreement and the Operating
Agreement, and LESSEE's performance of its obligations (including LESSEE's provision
of services to the Project) set Forth in this Lease.
use S. The Premises shall be used and occupied only as a County -wide water quality
testing facility operating as pant of the Project pursuant to the Cooperative Agreement and
the Operating Agreement, including any amendment(s).to those Agreements (the
"Permitted Use "), and for no other purpose without the prior written consent of STATE,
which STATE may withhold. LESSEE shall not use or permit the use of the Premises in a
manner that is unlawful, creates damage, waste or a nuisance, or that unreasonably annoys
or disturbs occupants of or causes 'damage to neighboring premises or properties.
AS-IS LEASE 6. LESSEE hereby accepts the Premises and t:he BBSC Buildings in their AS -IS
condition existing as of the Commencement Date. LESSEE acknowledges that STATE has
not madeany representation or warranty as to the present or future suitability of the
Premises for LESSEE's intended use.
LESS' EE As 7. As part of the consideration for this Lease, LESSEE shall be the Facilities
ruo:n =.Cr Manager for the maintenance and improvement of the Project as set forth in the Operating
FACILITIES Agreement. Nothing in this Lease shall limit any right of LESSEE to receive any sum
NCrANAGER payable by the. County or UCI to LESSEE as Facilities Manager under the Operating
Agreement, including but not limited to payment or reimbursement of operating expenses
of the Project. However, STATE shall have no obligation to reimburse LESSEE for
maintenance and repair expenses for the BBSC Buildings, as the payment of such costs by
LESSEE is also a part of the consideration for this Lease.
ACCESS S. Subject to the other terms and conditions of this Lease and applicable legal
restrictions (including, without limitation, Cal. Code Reps., Title 14, Section 630 et seq.),
STATE will provide LESSEE with reasonable access to the Project (other than STATE
work and storage areas) 24 hours a day, 365 days per year, as necessary for Lessee to
perform its obligations under this Lease and the Operating Agreement.
UTILITIES AND 9. (a) LESSEE- agrees to make all necessary arrangements for; and pay the cost of
SERVICES connecting all gas, electric;: water and other utility services associated with the use of the
Premises during the term of this Lease. If any such services are not separately metered to
LESSEE, LESSEE shall pay a reasonable proportion of the Premises' utility costs of all
charges jointly metered with other portions of the Project or the Property.
(b) LESSEN shall comply with all reasonable conservation measures, if any,
requested by STATE as a result of any "energy crisis" or any curtailment of gas, electricity,
water or other utilities serving the Premises.
(c) Installation, monthly billing, maintenance, repair, removal and replacement of
any telecommunications equipment, lines or systems in or serving the Premises shall be the
sole responsibility of the LESSEE.
JANITORIAL 10. LESSEE shall, at LESSEE's expense, have or hirejanitorial services sufficient to
SERVICES maintain the Teaching Lab Wing, The Administrative Wing, and tile public restroonts in a
clean and well maintained condition, and property dispose of all trash in the BBSC
Buildings' central trash collection area (diampster area). Thejanitorial services for which
LESSEE is responsible shall include those identified in Exhibit 13 attached to and made a
part of this Lease and such other services, if any, as the Facilities Working Group may
specify from time -to -time.
MAINTENANCE 11. (a) LESSEE shall, at LESSEE's expense, keep the Premises, the BBSC Buildings
AND REPAIRS (including interior, exterior and common areas other than STATE work and storage areas),
and the common areas of the Project (including the parking area, except to the extent of
UCI's responsibilities under the Ground Lease with STATE dated December 15, 2004), in
;god order, condition and repair, including without limitation, plumbing, pipes, heating,
ventilating, air conditioning, electrical, Fighting facilities, fire protection and /or smoke
detection system, fire sprinkler system; fixtures, walls, ceilings; roof floors, windows and
window frames, gutters, drains and downspouts, doors; and walkways.
(b) The Parties agree that the new condition of the BBSC Buildings at the time of the
execution of this LEASE leads the Parties to assume that Major Capital Improvements to
the BBSC Buildings costing more than 530,000 for any one improvement project will not
be necessary for 15 to 20 years. These major capital improvements include, but are not
limited to, roof replacement, reconstruction of the parking lot, remodeling of restrooms:.
replacement of siding, replacement of walkways, replacement of plumbing, electrical, and
fire suppression systems,, and remodeling of Tenant Improvements. The Parties agree that
these Major Capital Improvements shall, at the time needed, be cost- shared to the extent
that funds are available by the Parties in an equitable way by all of the entities using the
BBSC Buildings and /or parking lot for scheduled activities.
(c) LESSEE shall, at LESSEE's expense, maintain and keep lighted during
operational hours the lobbies, reception areas, common meeting rooms, corridors, and
common entrances to the BBSC Buildings and all public restrooms of the BBSC Buildings.
(b) LESSEE agrees that in no event shall STATE be required to perform any
maintenance, repairs or improvements in, to or on the Premises and LESSEE shall keep the
Premises in good order and condition at its own expense.
RULES AND 12. SPATE shall have the right film time -to -time to adopt, modify, amend and
REGULATIONS enforce reasonable rules and regulations concerning the Common Areas: LESSEE shall
abide by and conform to such rules and regulations and shall cause its agents, employees,
contractors. invitees and sublessees to so abide and conform.
I. xSSES :S
13. Except as otherwise provided in this Lease, LESSEE shall, at LESSEE's
COMPLIANCE
expense, comply promptly with all applicable laws, statutes, regulations; codes, orders and
ordinances (collectively, "Applicable Laws ") which relate in any manner to the Premises,
the use of the Premises, or any activities of LESSEE under this Lease. LESSEE shall,
within 10 days after receipt of written request by SPATE, provide STATE with copies of
all permits and other documents and information evidencing LESSEE's compliance with
any Applicable Laws specified by STATE. Immediately upon receipt of any threatened of
actual claim, notice, citation, warning, complaint or report pertaining to or involving the
failure or alleged failure of LESSEE or the Premises to comply with any Applicable Laws,
LESSEE shrill notify STATE in writing (with copies of any documents involved).
STATE'S RIGHTS
14. if LESSEE fails to perform any of its obligations tinder this Lease, STATE may
at its option (but shall not be required to) perform such obligations on LESSEE's behalf,
and the cost of such performance together with interest thereon ;at the maximum rate then
allowable by law shall become due and payable by LESSEE to STATE within 30 clays after
STATE's written request for payment.
DFFAUET AND
15. LESSEE shall be in default of this Lease if LESSEE fails to observe or perform
REMEDI'S
any of the provisions of this Lease orthe Operating Agreement on the part of LESSEE to
be kept and performed and if such failure continues fora, period of 30 clays after receipt of
written notice from SLATE to LESSEE. Provide% however, that if the nature of
LESSEE's breach is such that more than 30 days is reasonably required for its cure, then it
shall not be deemed to be a default if LESSEE commences the cure within said 30 -day
period and thereafter diligently pursues the cure to:contpletion. In the event of a default by
LESSEE, the STATE may elect to terminate this Lease by any lawful means and pursue my
other remedy now or hereafter available at law or in equity. In the event of termination of
this Lease, STATE shall have the right to reenter 'tle Premises and every part thereof and to
remove and store at. LESSEE's expense all property therefrom and to repossess and occupy
the Premises. In the event STATE terminates this Lease pursuant to this paragraph, the
STATE shall not be required to pay LESSEE" any sum or sums whatsoever.
HOLDING OVER
16. Any holding over after the expiration of the term of this Lease or any renewal
with the consent of the STATE, expressed or implied, shall be deemed to be a tenancy only
from month-to-month. Any such month -to- month tenancy shall be upon and subject to all
the terms and conditions of this Lease insofar as applicable.
ASS[ G+NMENTAN p
17. This Lease is made solely in furtherance of the cooperative Project described in
SUBLE171NG
the Cooperative Agreement and the Operating Agreement. LESSEE shall not assign this
Lease in any event and shall not sublease the Premises or any part thereof and will not
permit the use of the Premises by anyone other than the LESSEE-. Provided, however, that
with the written consent of the STATE, which the STATE will not unreasonably withhold,
LESSEE', may Sublease the Premises to the County for a term not to exceed the term of this
Lease and upon the express condition that such sublease shall terminate if the County at
any time withdraws from the Project or fails or ceases to perform the Project functions for
Which the County is responsible under the Cooperative Agreement or the Operating
Agreement.
Regardless of STATE's consent, no subletting or assignment shall release LESSEE- of
LESSEE's obligation or alter the primary liability ofLESSEL to observe and perform all of
the obligations of LESSEE under this Lease. Consent to one assignment or subletting shall
not be deemed consent to any subsequent assignment or subletting. ht the event of a breach
by any assignee or successor of LESSEE, in the performance of any of the terms of this
Lease, STATE may proceed directly against LESSEE without the necessity of exhausting
remedies against said assignee or successor.
NOTICES 18. All notices; requests, consents, and other communications (each a "Notice ")
required, provided for or given under this Lease shall be in writing, and (a) personally
delivered (including by means of professional messenger service), (b) sent by recognized
overnight courier, (c) deposited in the United States mail, postage prepaid, return receipt
requested, or (d) transmitted by receipt- confirmed facsimile, to the intended recipient at the
address(es) or facsimile number(s) set forth below.
Notice shall be deemed received upon the earlier of (i) if personally delivered or sent
by overnight courier, the date of delivery, (ii) if mailed as provided above, on the date of
receipt or rejection as shown on the return receipt. or (iii) if transmitted by facsimile, when
received by the other party if received Monday through Friday between 9:00 a. m. and
5:00 p.m. Pacific Time, so long as such clay is not a state or federal holiday, and otherwise
on the nest business day. A copy of any Notice transmitted by facsimile shall be mailed to
the intended recipient on the same date as the facsimile transmission.
Notices stealI be addressed as follows:
To the LESSEE: City of Newport Beach
City Manager
3300 Newport Boulevard
Newport Beach, CA 92658 -8915
Telephone: (949) 644 -3000
Facsimile: (949) 644 -3020
With a Copy to: City of Newport Beach
City Attorney
3300 Newport Boulevard
Newport Beach, CA 92658 - 8915:
Telephone: (949)
Facsimile: (949)
To the STATE: Department of Fish and Game
South Coast Region
Regional Manager
4949 Viewridge Avenue
San Diego. CA 92123
Telephone: (858) 467 -4201
Facsimile: (858) 467 -4239
With a. Cope to: Department of Fish and Game
Office of the General Counsel
General Counsel
1416 Ninth Street, 12 °i Floor
Sacramento. CA '95814
Telephone: (916) 654 -3821
Facsimile: (916) 654 -3805
Notice of change of address or facsimile number shall be given by written notice in the
manner described in this section.
TENANT 19. Tenant improvements to the Premises shall be the responsibility of LESSEE (or
wti>apvH ateINTS LESSEE's sublessee) and shall be installed and maintained by November 1, 2008 at no cost
to STATE.
ALTEaxrtovs 20. (a) Except as provided in Section 19; LESSEE shall not, without the prior written
AND consent of STATE, make any alterations, improvements, additions or Utility Installations
tatt'ttovEntE.�TS (as defined below) in, on or about the Premises, except for non- structural alterations not
exceeding $30,000 in cumulative costs over the term of this Lease or 52,000 in total costs
during any 12- month period. In any event, whether or not in excess of the costs in the
preceding sentence, LESSEE shall make no change or alteration to any portion(s) of the
BBSC Buildings outside the Premises, or to or visible from the exterior of the Premises,
without the prior written consent ofSTA'I E. No alterations or improvements to the
Premises shall be permitted to begin until the STATE has approved the complete plans and
specifications for the project, the plans to be prepared by all architect licensed to practice
architecture in the State of California. As used in this Lease, "Utility installation' shall
mean carpeting, window coverings, air lines, power panels, electrical distribution systems,
Fighting fixtures, space heaters, air conditioning and plumbing. STATE may require that
LESSEE remove any or all alterations, improvements, additions or Utility Installations to
the Premises at the expiration of the term and restore. the Premises to their prior condition.
Should LESSEE make any alterations, improvements, additions or Utility Installations for
which the consent of STATE is required without first obtaining Such consent, STATE may
require LESSEE to immediately remove any or all of the same and restore the BBSC
Buildings and the Premises to their prior condition.
(b) Any alterations, improvements, additions or Utility Installations that LESSEE
shall desire to make and which require the consent of STATE shall be presented to STATE
in writing with proposed detailed plan's. IfSTATE'shall, give its consent, the consent shall
be deemed conditioned upon LESSEE acquiring all proper permits to do so from
appropriate governmental agencies, the furnishing of a copy of each permit to STTATE
prior to the commencement of the work, and LESSEE's compliance with all terms and
conditions of such permits in a prompt and expeditious manner.
(c) Unless STATE requires their removal under Section 20 (a), all alterations,
improvements, additions and Utility Installations which may be made on the Premises shall
at the expiration or termination ofthe term become the properly of STATE and remain
upon and be surrendered with the 'Premises. Despite the contrary provisions of Section
20 (<i); LESSEE's machinery and equipment, other than that which is affixed to the
Premises so that it cannot be removed without material damage to the Premises, shall
remain the property of LESSEE and may be removed by LESSEE subject to the provisions
of Section 24.
SICNAG,E 21. LESSEE shall not place any sign upon the Premises, the. BBSC Buildings or the
Project without the prior written consent of STATE. STATE- hereby agrees that LESSEE
may develop and submit: for approval kiosk -type signage and monument -style recognition
signage for the Project and Parking Lot, and STATE's approval of same shall not be
unreasonably withheld.
JUGHT To ENTER 22. STATE shall have the right to enter the Premises at any time, in the case of an
emergency, and otherwise at reasonable times, for the purpose of inspecting the condition
of the Premises, verifying compliance with this Lease, performing obligations of LESSEE
which LESSEE fails to perform in accordance with this Lease, or any other lawful STATE
purpose.
SECURITY 23. STATE shall have no obligation to provide any guard service or other Security
MEASURES measures to the Premises. LESSEE shall be responsible for the protection of the Premises,
LESSEE, its agents; employees, contractors, invitees, sublessees and their property from the
acts of third parties.
REMOVAL or 24. All articles of personal property and all business and trade fixtures, machinery and
PROPERTY equipment owned and installed by LESSEE, at LESSEE's expense, on the Premises, shall
be and remain the property of LESSEE, and may be removed by LESSEE at any time
during the term of the Lease, provided that any and all wires, conduits, or pipe leading to
any fixtures may be left in place on said Premises at the option of LESSEE, provided the
same shall be insulated, plugged or otherwise treated in accordance with applicable
standard practices and Applicable Laws. Any such property of LESSEE not removed on or
before the last day of the term or any earlier termination of this Lease shall be deemed to
have been abandoned by LESSEE and may be disposed of or retained by STATE as
STATE: may choose.
SuRRFNDER 25. On the last clay of the term or any earlier termination of this Lease, LESSEE" shall
surrender the Premises to STATE, with any appurtenances or improvements therein clean
and free of debris, in good operating order, condition and repair, reasonable use and wear
thereof excepted. LESSEE shall remove any and all personal property, trade fixtures,
machinery and equipment and repair any damage to the Premises or the BBSC Buildings
occasioned by the installation or removal of those items.
COMPLIANCE 26. LESSEE shall, at its sole cost and expense, comply promptly with all Applicable
wIT11 LAWS; Laws, covenants and restrictions of record, . and requirements in effect during the Term,
AMERICANS WITi pertaining to the Premises or-LESSEE'S use of or activities in, on, or about the BBSC
DISABILITIES ACT Buildings and the Project. Since compliance with the Americans with Disabilities. Act
( "ADA ") is dependent upon the specific use of the Premises, STATE specifically disclaims
any representation or warranty as to whether or not the Premises comply with ADA or any
similar legislation. If the use of the Premises requires modifications or additions to the
Premises in order to comply with ADA, LESSEE shall perform any such necessary work at
LESSEE's expense.
DEBT LIABILITY 27. STATE will, not be liable for any debts, claims, liens, . or encumbrances that arise
DISCLAIMER from the operation of this Lease.
RELATIONSHIP or 28. LESSEE and any and all agents, employees, contractors, invitees and sublessees Of
PA TTIrS LESSEE shall act in an independent capacity and not as officers, agents or employees of
STATE. The relationship of LESSEE and STATE is that of tenant and landlord. Nothing
in this Lease is intended, or shall be construed or interpreted, to create a partnership or
relationship other than that of tenant and landlord between LESSEE and STATE-.
TAXES AND
29. LESSEE agrees . to pay all lawful taxes, assessments or charges which at any time
ASSISSM EN"Ls.
may be levied upon this Lease or any interest of LESSEE in the Premises. STATE
specifically calls to the attention of LESSEE the fact that this Tease may create a
possessory interest subject to property taxation and LESSEE may be subject to the payment
of property taxes levied on such interest. LESSEE alone shall pay any such tax.
HOLD
30. This Lease is made upon the express condition that the STATE is to be Gee from
HARMLESS AND
all liability, losses, costs, . expenses; claims and damages (collectively, "Claims ") by reason
moEMNIFICA-
of any in Dry (including death) to any person or persons, including LESSEE and any
TION
subtenanl(s), or loss of or damage to property of any kind whatsoever and to whomsoever
belonging, including LESSEE and any subtenant(s), from any cause or causes whatsoever
while in, upon, or in any way connected with the Premises, the BBSC Buildings or the
Project during the term of this Lease or any occupancy hereunder, except those arising out
of the sole negligence of the STATE. LESSEE shall indemnify, protect, defend and hold
harmless the STATE, its officers, directors, employees and agents, from and against any
and all Claims on account of or arising out of this Lease or any such in.jury or damage,
however occurring, except those arising out of the sole negligence of the STATE.
To the extent allowed by law. STATE shall indemnify, protect, defend and hold
harrtiless LESSEE, its officers, directors, employees and agents from and against any and
all Claims arising out of the sole negligence of STATE in connection with this Lease or any
occupancy hereunder.
ABANDONMENT 31. If the LESSEE abandons, vacates or surrenders. the Premises, or is dispossessed by
OF PREAUSes process of late., any personal property, trade fixtures; machinery and equipment belonging
to the LESSEE and left on the Premises shall be deemed to be abandoned, at the option of
the STATE. Pallure by LESSEE to occupy and /or use the Premises for a period of thirty
(30) days or longer shall constitute abandonment by LESSEE.
INSURANr6 32. LESSEE, at its sole cost and expense, shall insure its activities in connection with
this Lease and obtain and keep in force at least the following, insurance:
(a) Commercial General Liability insurance protecting LESSEE and STATE
against claims for bodily injury, personal injury and property damage based upon or arising
Out of the use, occupancy or maintenance of die Premises. Such insurance steal I be on an
occurrence basis providing single limit coverage in an amount not less than Two Million
Dollars ($2,000,000) per occurrence. The policy shall not contain any intra - insured
exclusions as between insured persons or organizations ,but shall include "contractual
liability" coverage for the performance of'LESSEE's indemnity obligations under this
Lease. LESSEE's policy may include a retention of $500,000-00.
(b) Property, fine and extended coverage insurance covering all risks of direct
physical loss or damage to the Premises, including the perils of flood and earthquake,
including coverage for demolition and debris removal and the enforcement of Applicable
Laws requiring the upgrading; demolition, reconstruction or replacement orally portion of
the Premises as the result of a covered loss. Such insurance shall be in an amount equal to
the full insurable replacement cost of the Premises', as the same shall exist from time -to-
time, and shall contain an agreed valuation provision in lieu of any coinsurance clause and
inflation guard protection causing an increase in the annual property insurance coverage
amount by a factor of less than the adjusted Index (as defined below).
(c) Automobile liability insurance covering owned, non - owned; hired or
scheduled vehicles with a combined single limit of not less than ']'we Million Dollars
($2;000,0000) per occurrence.
(d) Worker's compensation and/or employer's liability insurance in form and
amount covering LESSEE's full liability as required under federal and slate law, if
applicable. LESSEE's policy may include a retention of $500;000.00.
Each policy of insurance shall be issued by a reputable iosurer admitted to transact
business in the State of California and maintaining dur ngthe policy term a General
Policyholder's Rating of at least A- VII`, as set forth in the most current issue of "Best's
Insurance Guide ". All sums set forth in this Section 32 shall be maintained in Current
Dollars (as defined below). LESSEE's obligation to carry the insurance required by this
Lease may be brought within the coverage of a so- called blanket policy or policies of
insurance carried and maintained by LESSEE, so Iongas the coverage afforded to STATE -
will not be reduced or diminished by reason of the use of such policy or policies and all
requirements set forth in this Section 32 are otherwise satisfied.
LESSEE-' shall, prior to the Commencement Date, deliver to STATE copies, or other
evidence acceptable to STATE-, of the existence and amounts of the required insurance.
The policies referred to under subsections (a), (b) and (c) above shall name STATE, its
directors; officers, employees and agents as additional insureds by endorsement. No such
policy shall be cancelable, non - renewable, or subject to material modification except after
at least 30 days prior written notice by the insurer to STATE. LESSEE shall; at least 30
days prior to the expiration of any such policy, deliver to STATE evidence of renewal or
new policy of insurance which meets the requirements of this Lease.
"Current Dollars" as used in this Lease shall mean a dollar amount calculated by
multiplying a dollar amount specific(] in this Lease by a fraction, the numerator of which is
the Index (as defined below) last published prior to the anniversary of the Commencement
Date and the denominator of which is the Index last published prior to the Commencement
Date. "Index" as used herein shall mean the Los Angcles/Riverside /Orange County
Metropolitan Area Consumer Price index (all items) for All Urban Consumers (Base Year
1952 - 1954 = I00) as published by the United States Department of Labor, Bureau of
Labor Statistics.
STATE shall not be liable for the payment of any premiums or assessments on the
insurance coverage required by this Section 32. LESSEE agrees Chat the insurance herein
provided for shall be in effect at all times during the term of this Lease, all renewals
thereof, and any holdover periods.
The proceeds from the insurance referred to under subsection (b) above shall be applied
toward demolition, repair and reconstruction of the Premises. All insurance carried by
LESSEE-' shall be primary to and not contributory with insurance carried by STATE, if any.
STATE makes no representation or warranty that the limits or forms of coverage of
insurance specified in this Lease are adequate to cover LESSEE or its property or the
operations or obligations of.LESSEE under this Lease. The limits of insurance carried by
LESSEE or required under this Lease shall not limit the liability of LESSEE or relieve
LESSEE of any obligation under this Lease.
`.'v'ithout affecting any other rights or remedies, LESSEE releases STATE and waives
LESSEE's entire riglit to recover damages against the STATE for loss of or damage to
property arising put of or incident to the perils required to be insured against in this Lease.
The effect of such release and waiver is not limited by the amount of insurance can ied or
required, or by any deductible amounts applicable thereto. LESSEE agrees to have its
properh damage insurance carrier waive any right to subrogation that it may have against
STATE, so long as the insurance coverage is not invalidated by such waiver.
STATE shall not be liable for injury to LESSEE or damage to the property of LESSEE,
LES'SEE's employees, agents, invitees, subtenants, contractors, or any other person in or
aboutthe Premises, nor shall STATE be liable for any injury to LESSEE's employees,
agents, invitees, subtenants or contractors, as a result of any condition of the Premises, ,
fi-om any cause, whether such damage or injury is caused by or results from conditions
arising in the Premises. Further; STATE shall not be liable for any damages arising from
any act or neglect of any other tenant or occupant of the Premises.
-No STATE, 33. STATE shall not be required to (acid anticipates that it shall not) keep the
INSURANCE PremiSeSlnSUred (including, without Limitation, against fire, flood, earthquake or other
casualty), and LESSEE will make no claim of any nature against STATE: by reason of any
damage to the Premises in the event of damage or destruction by fire or other cause, arising
other than Gom or out of the sole negligence or willful misconduct of agents or employees
of the STATE in the course of their employment.
10
uAwtaCE OR 34. (a) If the Premises are damaged by a risk covered required to be covered by the
ots•ruuc'riov insurance described in this Lease, then LESSEE shall repair or restore such damage as soon
as reasonably possible at LESSEE's expense and this Lease shall remain in full force and
effect.
(b) If the Premises are damaged by a risk not required to be covered by the
insurance described in this Lease, then LESSEE shall have the option to either (i) repair or
restore such damage as soon as reasonably possible at LESSEE's expense, this Lease
continuing in full force and effect, or (ii) give notice to STATE at any time within 45 days
after the date of such damage terminating this Lease as of the date of, Or such later date as
LESSEE may specify in, such notice. If notice of termination is given, STATE shall have
the right within 45 days after the receipt of such notice to give written notice to LESSEE of
STATE's election to repair such clamagge; in which event this lease shall continue in full
force and effect. If STATE does not elect to repair, this Lease shall expire and any interest
of LESSEE in the Premises shall terminate on the date of, or such later (late specified in,
the notice of termination by LESSEE.
(c) If in STA "f E's judgment the Premises cannot be restored as required herein
under Applicable Taws, notwithstanding the availability of insurance proceeds, this Lease
shall be terminated effective as of the date of the damage.
(d) Any repair or restoration by LESSEE pursuant to subsection (a) or (b) above
shall be commenced as soon as reasonably possible after the date of damage and prosecuted
diligently to completion at the earliest possible date. STATE shall not be required to carry
nsurance of any kind on LESSEE'S property and shall riot be required to repair any injury
or damage thereto by fire, food, earthquake orother causes, or to make any restoration or
replacement of any paneling, decorations, partitions ceilings, floor coverings, office
fixtures; machinery, equipment or any other improvements or property installed in the
Premises by or for LESSEE, and in case of damage LESSEE shall be required to restore or
replace the same at LESSEE's expense. LESSEE shall have no claim against STATE for
any loss suffered by reason of any such damage, destruction, repair or restoration.
(e) LESSEE-' shall have no right to terminate this Lease as a result of any
statutory provisions now or hereafter in effect pertaining to damage or destruction of the
Premises, except as expressly provided herein, and LESSEE expressly waives the
provisions of California Civil Code Section 1932(2) and 1933(4) with respect to any
damage or destruction of the Premises
CoNaewn'wnoN 35. If the Premises or any portion thereof are taken under the power of eminent
domain or sold under the threat of the exercise of such power (all of which are referred to
in this Lease as "Condemnatiod'), then this Lease shall terminate as to the part so taken as
of the date the condemning authority takes title or possession, whichever first occurs. Any
award for the takings of all or any part of the Premises under the power of eminent domain
or any payment made under the threat of the exercise of such power shall be the property of
STATE, whether such award or payment shall be made as compensation for diminution in
value of the leasehold or the taking of the fee, or as severance damages. Provided,
however, that LESSEE shall be entitled to any award or payment for loss of or damage to
LESSEE's trade fixtures and removable personal property. If this Lease remains in effect
after such Condemnation then STATE shall; to the extent of severance damages it receives
in connection with such Condemnation; repair or cause to be repaired any damage to the
Premises caused by the Condemnation except to the extent that LESSEE has been
reimbursed therefor by the condemnin? authority. LESSEE shall pay any amount in excess
Of such severance damages required to complete the repair.
II
HAZARDOUS 36. The term "Hazardous Substance" as used in this Lease shall mean any product,.
SCRS "I "ANCES substance or waste the presence, use, manufacture, disposal, transportation or release
(either by itself or in combination with other materials) is either: (a) potentially injurious to
public health, safety or welfare, the environment or the Premises; (b) regulated or
monitored by any governmental authority; or (c) a basis for potential liability of STATE
under any applicable statute or common law theory. Hazardous Substance includes,
without limitation, hydrocarbons, petroleum, gasoline, and /or crude oil or any products; by-
products or fractions thereof.
LESSEE shall comply with all Applicable Laws, federal, state and local, pertaining to
the presence, generation, possession, storage, use, disposal, transportation or release of any
ElazardOUS Substance in, on or From the Premises, the BBSC Buildings or the Project. If
LESSEE knows or has reasonable cause to believe that a Hazardous Substance has come to
be located in, on, under or about the Premises, theiBBSC Buildings or the Project other
than in full compliance with Applicable Law, LESSEE shall immediately give verbal and
written notice Of such fact to STATE, and provide STATE with a copy of any report,
notice, claim or other information which LESSEE has concerning such Hazardous
Substance. Verbal notice to STATE pursuant to this Section 36 may be given to any on -site
employee of STATE at the Back Bay Science Center.
LESSEE shall not cause or permit any Hazardous Substance to be spilled or released
in, on, under or about the Premises, the BBSC Buildings or the Project (including through
the plumbing or sanitary sewer system) and shall promptly, at LESSEE's expense; comply
with all Applicable Laws and take all investigatory and /or remedial action reasonably
recommended for the cleanup of any contamination and for the maintenance, security
and/or monitoring of the Premises, the BBSC Buildings, the Property; or other property in
the vicinity ofthe Premises, that was caused or materially contributed to by LESSEE or
involving any Hazardous Substance brought onto the Property during the term of this
Lease, by or for LESSEE or any third party acting with the consent, or under the direction
or control, of LESSEE.
LESSEE shall indenniify, defend, and hold harmless STATE, its officers;, directors,
agents, and employees from and against any and all claims, liabilities, tosses, costs,
expenses, damages, judgments, fines, and penalties arising out Of Or involving any
Hazardous Substance brought onto the Property or any portion thereof (including the
Premises or the BBSC Buildings) by or for LESSEE or any third party acting with the
consent, or under the direction or control, of LESSEE. The obligations of LESSEE-" shall
include, but not be limited to, the effects of any contamination or injury to person, property
or the environment created or suffered by LESSEE, and the cost of investigation; removal,
remediation, restoration and /or abatement, and shall survive the expiration or termination of
this Lease.
EASEa75NrS. 37. "]'his Lease is subject to all existing covenants, conditions, restrictions, contracts;
rlctnTs AND liens, encumbrances, leases, licenses, casements, rights of way and other interests. STATE
DEDICATION'S reserves the right to convey, lease or encumber the Project, in whole or in Bart, and to grant
such additional easements, rights and dedications as the STATE may deem necessary or
desirable, so long as they do not unreasonably interfere with the rights of LESSEE under
this Lease-
IN, () N - 38. In the performance of this Lease, the LESSEE shall not discriminate, harass, or
DISCRIAnNATION allow 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 Tree from such discrimination
and harassment. Such action shall include, but not be limited to, the following:
12
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 Pair Employment and Housing Commission implementing Government
Code Section 12990 (a -f), set forth in Chapter 5 of Division a of Title 2 of the California
Code of Regulations, are incorporated into this Lease by reference and make 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 LESSEE has a collective bargaining or other
agreement. Further. LESSEE shall post in conspicuous places available to employees and
applicants for employment, notice setting forth the provisions of this section.
roRer•.,vrw.) EwtE
39. 11' either LESSEE or STATE shall be delayed or prevented from the performance
of any act required hereunder by reason of acts of God; governmental restrictions,
regulations or controls (except those reasonably foreseeable in connection with the uses and
activities contemplated by this Lease) or other cause without fault and beyond the control
of the party obligated (except financial inability); performance of such act shall be excused
for the period of the delay and the period for the performance of any such act shall be
extended fora period equivalent to the period: of such- delay. Nothing in this clause shall
excuse LESSEE from prompt payment of any sums. taxes, insurance or any other charge
required of LESSEE, except as may be expressly provided in this Lease.
.A CnTn ORITV
40. Each individual executing this Lease on behalf of LESSEE represents and
warrants that he /she is duly authorized to execute and deliver this Lease on behalf of
LESSEE in accordance with a duly adopted resotitiort of the City Council of LESSEE, and
that this Lease is binding upon LESSEE in accordance with its terms. LESSEE shall,
within 30 days after execution of this Lease, deliver to the STATE a certified copy of
resolution of LESSEE-'s City Council authorizing or ratifying the execution of this Lease.
RECOVERY
41. if action is brought by the STATE for the enforcement or interpretation of this
OF r.E ..AL
Lease, or because of any alleged dispute, breach, default, or misrepresentation of this
FEES
Lease, for recovery of any sums due; to recover possession of the Premises; or to protect
any rights given to the STATE against the LESSEE, and if the STATE shall prevail in such
action, then in addition to any other relief to which it may be entitled, the STATE shall be
entitled to attorney's fees and other costs in connection with that action or proceeding, in
such amounts as the court determines to be reasonable, which shall be fixed by the court as
a part of the costs of the action.
NO UFNS
42. LESSEE shall pay when due all claims for labor or materials furnished or alleged
to have been furnished to or for LESSEE at or for use in the Premises, the BBSC Buildings
or the Project. LESSEE shall keep the Premises, the BBSC Buildings, the Project and the
Property free and clear of all liens resulting from work done by or for LESSEE.
Amn.NUwtNTS
43. This Lease may be altered, changed, or amended only by written agreement
signed by the Parties.
SMOKING
44. Smoking is not allowed in or upon the Project. LESSEE will enforce the
RESTRICTIONS
smoking prohibition as to LESSEE's employees, agents, contractors, invitees and
sublessees, inside the Premises and Cormnon Areas, and within 20 feet of a main exit,
entrance, or operable window of (he BBSC Buildings.
13
srcrroN 45. All captions and section headings contained in this Lease are for convenience of
llEAOtNCS; .reference only and are not intended to define or limit the scope of any term or provision. of
INTea I'll ETATrON this Lease. This Lease shall not be construed as if prepared by one of the Parties, but rather
according to its fair meaning as a whole, as if both Parties had prepared it.
c cESSas si 46. The terms and provisions of this Lease shall extend to and be binding upon and
BOUND inure to the benefit of the Parties and their respective heirs, executors, administrators,
successors, and assigns, subject to the limitations on assignment and subletting set forth
above.
TERMINATION;. 47. The voluntary or other surrender of this Lease by LESSEE, the mutual
,N IEIt CI" It termination or cancellation hereof, or a termination of this Lease by STATE for a default by
LESSEE shall automatically terminate any sublease or lesser estate in the Premises;
provided, however; that STATE may elect to continue ally one or all existing subtenancies.
STATE's failure within 30 clays following such event to elect to the contrary by written
notice to the holder of any such lesser interest shall constitute STATE's election to have
such event constitute the termination of such interest.
aeala;mts 48. No remedy or election ember this Lease shall be deemed exclusive but shall,
CUMULATIVE wherever possible, be cumulative with all other remedies at law or in equity.
TIME orrtst<,INCC 49. Time is of the essence of each and all of the provisions of this Lease.
WAIVER 50. 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 ally other
provision of this Lease or of any subsequent' breach of the same or any other term, covenant
or condition. The acceptance of performance by STATE shall not constitute a waiver of
any preceding breach by LESSEE of any term, covenant or condition of this Lease
regardless of STATE's knowledge of the breach. Failure by STATE to enforce any terns,
covenant or condition ofthis Lease for - any length of time shall not be deemed to waive or
decrease the STATE's right to insist thereafter upon strict performance by LESSEE-.
Waiver of any term; covenant or condition contained in this Lease affecting the STATE
may only be made by a written Notice signed by an authorized STATE representative.
sEVERABILITY 51. if any provision of this Lease is determined by a court of competentjUrisdiction
to be invalid, illegal ur unenforceable, this determination shall not affect any other
provision of this Lease; and all other provisions shall remain in full force and effect.
CONFLICT 5.2.. Any conflict between this Lease and the Operating Agreement shall be controlled
by this Lease.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
14
r.tQUErAC ON; 53. (a) LESSEE has been informed and acknowledges that the EBSC Buildings
sErSIMuC are on an island, are subject to hazards from liquefaction and are designed to move
HAZARDS; freely in an earthquake. LESSEE assumes the risks of injury and damage from
ASSUMPTION or earthquake, including liquefaction and movement, in connection with the Project and
RtsK unconditionally waives any claim of damage or liability against the STATE, its
officers, agents and employees for injury or damage from such hazards. LESSEE
further indemnifies and holds harmless the STATE, its officers, agents and employees
against any and all liability, claims, demands, damages, costs (including costs and fees
incurred in defense of such claims) expenses, and amounts Paid in settlement arising
from any injury or damage clue to such hazards.
(b) LESSEE is encouraged to plan and prepare for earthquakes and to take
appropriate steps to secure and anchor furniture, equipment, machines, containers
and other objects in the Premises. The California Seismic, Safely Commission
publication, The Commercial Property Owner's Guide to Earthquake Safety (available
on the internet at httu: / /www.seismic.ca.gov /nub /CSSC 1993 -01 COG.Pd contains
information and recommendations regarding pre- earthquake planning. The Guide
suggests precautions such as, but not limited to, the following: writing down
evacuation, fire response, search -anal rescue, and frrstaid procedures and training
employees to follow them; listing and,acquiring, basic emergency supplies, including
fire extinguishers, crescent and pipe wrenches to turn off gas and water supplies, first -
aid kits and handbooks, flashlights with extra bulbs and batteries, and portable radios
with extra batteries; setting up an ongoing program to reduce earthquake weaknesses
in the Premises; and training employees by holding drills, establishing, responsibilities
for carrying out the emergency response plan and teaching them to act immediately to
put out fires.
LESSEE INITIALS LESSEE INITIALS
E,NTIItE 54. ]'his Lease, together with its exhibits. and the Operating Agreement entered into
Acara:wENT Concurrently with this Lease, together contain all agreements of the Parties and supersedes
any prior negotiations; agreements and understandings with respect to any matter
mentioned in this Lease or the Operating Agreement.
REMAINDER Of PAGE INTENTIONALLY LEFT BLANK
15
EXHIBITS 55. The following exhibits are attached to this Lease and incorporated herein by this
reference:
Exhibit A — Site Plan (showing Premises, BBSC Buildings and Project)
Exhibit B — Janitorial Services
IN WITNESS WHEREOF, this Lease has been executed by the Parties as of the date of the last signature
below.
STATE:
State of California, by and through its
Department of Fish and Game
LE
Title
Date:
2007
16
LESSEE:
City of Newport Beach, a charter City
M
Date:
2007
Exhibit A
Site Plan
showing Leased Premises
17
Exhibit B
Janitorial Services
Janitorial services shall be provided to the Teaching Lab wing; the Admin Wing, the restrooms in the Storage
Wing, the trash receptacles around the building (except at UCJ's facility), and the parking lot. Services shall
include:
I — Restroom maintenance
3x a week, with interim stocking of materials done as needed.
Available within 4 hours for emergency cleaning.
2 — 'Crash collection:
Inside waste cans to be emptied to the dumpsters by BBSC staff.
lx a week dumping of outside trash dumpsters.
2x a week dumping of outside trash cans (around building and on pal king lot).
3 — Floor cleaning:
Cement floors swept or vacuumed weekly.
Cement floors washed 2x a year.
4— Window cashing
2x a year.
5 — Miscellaneous and as needed:
Minor roof repair
blinor utility (water, wastewater, electrical) and HVAC repair
Minor weatherstripping, door, window repair
Mechanized sweeping of parking lot
13estriping of parking lot.
Minor repair of kiosks and signage
Nl inor repair of storm drain catch basin and retention facility
13
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No.
April 24, 2007
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: City Manager's Office
Dave Kiff, Assistant City Manager
949 - 644 -3002 or dkiff@ city.newport- beach.ca.us
SUBJECT: Back Bay Science Center— Operating Agreement and Lease
Agreement
ISSUE:
Should the City Council:
• Enter into a Lease Agreement with the State of California, Department of Fish and
Game, for the Back Bay Science Center (BBSC); and
• Enter into an Operating Agreement between the County, the State, and the
University of California, Irvine (UCI) to operate and manage the BBSC?
DATIONS:
1. Authorize the Mayor to execute a Lease Agreement in substantially similar form to
the attached draft Lease Agreement with the California Department of Fish and
Game (DF &G) that would authorize the City to provide basic facilities maintenance
for the Back Bay Science Center.
2. Authorize the Mayor to execute an Operating Agreement in substantially similar form
to the attached draft Operating Agreement between the City, DFG, the County, and
UCI regarding the operations and management of the BBSC.
3. Authorize City staff to align the terms of the existing and approved County -City
Sublease for the Water Quality Lab wing of the BBSC to align it with the terms of the
Sublease with the City -DFG Lease Agreement (if necessary).
BACKGROUND:
The Back Bay Science Center (BBSC) on Shellmaker Island in the Upper Newport Bay
Ecological Reserve is a multi - partnered project that is now under construction. Most of
the BBSC is set to open in June 2007, with a new Administrative Wing planned for a
September 2007 opening. The planning and funding partners include:
• The California Department of Fish and Game (DFG);
• The County of Orange Health Care Agency (County);
• The University of California at Irvine (UCI);
• The City of Newport Beach (City);
Back Bay Science Center
April 24, 2007
Page 2
• The California Coastal Commission (CCC);
• The State Coastal Conservancy (SCC);
• The Irvine Company;
• The Miocean Foundation and Pacific Life; and
• The Newport Bay Naturalists & Friends (NBNF).
On January 23, 2007, the City Council reviewed a detailed staff report about the BBSC.
On March 13, 2007, the Council approved a sublease with the County of Orange and a
contract to build the Admin Wing on DFG's behalf. Readers should review those
reports for additional details about the Project.
This Agenda Item addresses two key aspects of the BBSC effort:
• One Lease Agreement between the City and DF &G.
• The Operating Agreement under which all BBSC parties will operate and manage the facility
and its programs.
1 — Lease Agreement. A Cooperative Agreement entered into August 17, 2004
discusses the Lease Agreement with DFG (referred to as the "City Lease'). Relevant
parts of the Cooperative Agreement are as follows:
CITY LEASE:
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.
This Agenda Item asks for the Council's approval to enter into the City -DFG Lease in
Substantially similar form as the attached draft lease.
2 — Operatinq Agreement. The same Cooperative Agreement speaks to the four
parties involved in the BBSC's management entering into an Operating Agreement that,
among other things, does the following:
• Establishes a Facilities Working Group and a Programs Working Group.
• Discusses long -term funding issues and fundraising efforts.
• Speaks of an Educational Objective, including determining which educational programs
will be offered at the BBSC, including a focus on a particular grade level;
• Speaks of a Research Objective, which focuses on research that will improve the
knowledge of the Upper Newport Bay and water quality; and
Back Bay Science Center
April 24, 2007
Page 3
• Calls for working with key stakeholders, like the Newport Bay Naturalists and Friends,
Surfrider, "Inside the Outdoors,' and Orange County CoastKeeper, to implement the
Educational Objective and Research Objective.
The proposed draft Operating Agreement attempts to meet the Cooperative
Agreement's expressed goals. This Agenda Item asks for the Council's approval to
enter into the Operating Agreement in substantially similar form to the attached
Operating Agreement.
Environmental Review: A Mitigated Negative Declaration was prepared and processed.
to assess the environmental impact associated with constructing the Back Bay Science
Center. Identified mitigation measures have been included in the project design. The
California Department of Fish and Game was the lead agency for the environmental
review and the documentation was completed in September 2003.
Proiect Status: Construction of the Back Bay Science Center project is approximately
75% complete. We expect completion by mid -June 2007 for most of the building, with
the Admin Wing following in September 2007.
Submitted by:
b-L�"
Dave Kiff
Assistant City Manager
Attachments: City-DFG Lease Agreement
Operating Agreement
BACK BAY SCIENCE CENTER
OPERATING AGREEMENT
This Operating Agreement (Agreement) made the , 2007
(Effective Date) by and between the City of Newport Beach (City), the County of
Orange (County), the Department of Fish and Game (DFG) and the Regents of
the University of California on behalf of the University of California at Irvine (UCI)
which is a Party and, together, the Parties) is based on the following.
RECITALS
A. The Back Bay Science Center (BBSC) is a permanent enclosed structure
comprised of three new buildings containing a total of four wings totaling
approximately 12,409 gross square feet. The BBSC buildings will contain
space and amenities: (i) to conduct educational and interpretive programs
for students in grades K -12 as well as for workshops and seminars for
adults; (ii) for an estuarine research and resource center for students and
teachers of local schools and universities, with an educational emphasis
geared towards Grades 7 -12, community college, and university students;
(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.
B. The BBSC will also include: (i) outdoor educational program
improvements including hands -on interpretive elements, research areas,
touch tanks, aquaria and tide pool exhibits; (ii) an enhanced trail system
with several l "spur" trails leading to small observation /teaching areas; (iii) a
"Demonstration. Marsh Area" of approximately 10,000 square feet; and (iv)
a 63 -space parking area.
Draft of operating Agreement
Page 2 of 10
April 17, 2007
C. The Parties have previously approved various documents pertaining to the
BBSC including: (i) a Cooperative Agreement dated August 17, 2004
(Cooperative Agreement) that commits the Parties to jointly construct the
BBSC and to prepare and approve this "Operating Agreement' to "become
effective when construction of Phase 1 (or the entire Project, if phasing is
unnecessary) is complete "; (ii) a lease between DFG and the City dated
(DFG /City Lease); (iii) a sublease between the City and the
County dated (City /County Lease); and (iv) a Memorandum of
Understanding between DFG and UCI regarding Academic Collaboration
at Shellmaker Island (DFG -UCI MOU) dated December 15, 2004.
D. Construction of the BBSC commenced in July 2006 and portions of the
project are expected to be completed on or about June 2007, with the
remainder being completed by October 2007.
E. The Cooperative Agreement assumed the Operating Agreement would, at
a minimum, cover at least the following topics: (i) establishment of
Facilities Working Group and a Programs Working Group; (ii) defining, the
roles and responsibilities of the Parties for the operation, maintenance and
improvement of the BBSC; (iii) providing for the development, evaluation
and delivery of educational and research programs, materials and
exhibits; (iv) coordination of the educational efforts of the Parties; (v) the
management of volunteers, educators and students who are involved, or
wish to become involved, in the educational or research programs of the
BBSC; and (vi) development of a long -term funding plan for maintenance
and enhancement of the BBSC.
F. This Agreement complies with, and implements, the provisions of the
Cooperative Agreement pertaining to the operation, maintenance and
improvement of the BBSC.
E
Draft of Operating Agreement
Page 3 of 10
April 17, 2007
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
(1) BACK BAY SCIENCE CENTER FACILITIES WORKING GROUP
(A) Establishment/Composition. The Parties hereby establish the
Back Bay Science Center Facilities Working Group (Facilities Group). The
Facilities Group will be comprised of the Project Administrators identified in
Section 12 of the Cooperative Agreement (Newport Beach City Manager; DFG —
Supervising Biologist; County - OCHCA Manager, Facilities Operations; and UCI
- Director Campus and Environmental Planning) or their respective designees.
The Newport Beach Public Works Director and Building Director shall each be an
ex- officio member of the Facilities Group. The City Manager shall be the Chair of
the Facilities Group with the Vice Chair positing rotating among the Parties.
(B) Meetings. The Facilities Group shall meet no less than twice
each year to identify facilities needs and to plan for property maintenance as well
as capital projects and improvements. The meetings may be conducted by
teleconference and shall be held at a time when the decisions regarding
maintenance, repair and improvement can be reflected in the annual budget of
each of the Parties.
(C) Functions. The Facilities Group shall be responsible to ensure
that the interior and exterior of the BBSC and all related improvements —
including the parking area, trails and interpretive elements are maintained in
good condition, order and repair and that all improvements are functioning as
intended. In performing its function, the Facilities Group shall:
• Establish procedures that are consistent with, and implement, provisions
of the Cooperative Agreement, relative to tenant improvements (Tls) as
well as the maintenance and repair of the BBSC and all related
improvements on Shellmaker Island.
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April 17, 2007
• Cooperate with the Programs Group with respect to any plan to improve
the BBSC so that the improvement is consistent with and satisfies the
needs of those providing educational or research services and
opportunities.
• Review and make recommendations regarding all contracts for repair or
maintenance work.
• Resolve any issues related to reimbursement of repair or maintenance
services.
• Prepare, review, adopt, implement, and modify (as needed) an annual
maintenance budget for the BBSC;
The City Manager or his/her designee shall serve as the project
manager /coordinator of all maintenance and repair /replacement activities related
to the BBSC. The City Manager or his/her designee shall provide the Programs
Group with regular updates regarding the status and costs of all construction
work related to the repair, preventative maintenance or other improvement of the
structures or improvements that comprise the BBSC.
(2) BACK BAY SCIENCE CENTER PROGRAMS WORKING GROUP
(A) Establishment. The Parties hereby create a Back Bay Science Center
Programs Working Group (Programs Group). The Programs Group is
comprised of the Newport Beach City Manager; DFG — Supervising Biologist;
County - OCHCA Public Health Laboratory Director; and UCI - Director Campus
and Environmental Planning) or their respective designees. DFG shall serve as
Chair of the Programs Group, with the vice -chair position rotating among the
Parties. The Programs Group may create subcommittees as necessary.
(B) Meetings. The Programs Group shall meet no less than quarterly
during the first two years after the Effective Date and as frequently as necessary
thereafter as necessary to perform its functions. Meetings shall be open to the
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April 17, 2007
public. Meeting attendance and participation by volunteers, the general public
and groups interested in programs at the BBSC is hereby encouraged. Nothing
in this section shall preclude the Programs Group from holding brief closed
sessions if the need arises.
(C) Educational Objective. The primary educational objective of the
Programs Group will be to provide high quality educational programs at the
BBSC efficiently utilizing available resources and coordinating programs with
other facilities in the region. The Parties agree that the education and research
emphasis of the BBSC's Teaching Lab shall be towards research -based
education for Grades 7 -12, community college, and university students.
However, the Parties acknowledge that DFG, if it so chooses, may use the
Teaching Lab to provide education to any grade level in order to meet DFG's
mission and goals for the Upper Newport Bay Ecological Reserve. The Parties
also agree that OC HCA is in a unique position to provide community and adult
education about water quality and water quality research. As such, OC HCA
may lead seminars, workshops, and other programs at the BBSC (including at
the Teaching Lab).
(D) Educational Duties of the Programs Group. The Programs Group
shall:
• Ensure that Teaching Lab programs are compliant with State education
standards for water quality, ecology, habitat restoration, and /or plant and
marine life and address the most pressing needs of Orange County
students, educators and the public.
• Annually prepare a schedule for educational programs, workshops, and
seminars at the BBSC, subject to the approval of the Parties.
• Identify the educational needs of the community through input from
environmental groups, water quality advocates, and schools, colleges, and
universities in Orange County that express an interest in participating in
the BBSC's educational programs.
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• Identify and communicate with each entity that does or seeks to provide
educational programs or opportunities at or near Newport Bay and/or the
BBSC (Providers).
• Identify the resources that each Provider has available with respect to the
education programs including paid personnel, volunteers and educational
material.
• Identify and evaluate existing educational materials and curriculum that
may be appropriate for incorporation into new or existing education
programs.
• Review educational programs to ensure consistency with State standards,
good water quality practices, and the educational criteria adopted by DFG.
• Communicate regularly to determine the extent to which the development
of exhibits and educational tools at the BBSC could help effectively
educate students and/or the public; and
• Determine if, and to what extent, the student or public education programs
can or should be coordinated with research activities such as the
Demonstration Marsh;
(E) Research Objective. The primary research program objective of the
Programs Group will be to accommodate reputable research programs that have
the potential to improve knowledge about the environment of Newport Back Bay
or Southern California estuaries and waterways while ensuring that the program
will not have any adverse impact on natural resources or the educational or other
core programs at BBSC.
The parties acknowledge that the Orange County Public Health Water
Quality Laboratory will carry out high level in -house research appropriate for a
public health laboratory as part of its mission to advance the state of water
quality testing and water quality overall. The parties acknowledge that the Water
Quality Laboratory research program does not come under the purview of the
Programs Group.
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The parties acknowledge that participation in programs via the Programs
Group of the Water Quality Laboratory's facilities, staff and equipment are
subject to the approval of the Water Quality Laboratory's director.
The Programs Group shall require prospective researchers who intend to
utilize the BBSC for all or a portion of the research project to submit an
application accompanied by a description of the project for review and
consideration. The Programs Group shall approve or disapprove the application
unless the research proposal involves activities subject to DFG jurisdiction. In
the latter case, the Programs Group shall make recommendations to DFG to
approve or disapprove the application.
(3) SPECIAL PROVISIONS
(A) Educational Material /Exh!bits. The Programs Group shall pay
special attention to 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." In this regard, the Programs Group shall meet with the
individuals who are currently involved in the delivery of educational programs at
the BBSC to determine what they believe would be most helpful in
communicating information to students and to the public. The Programs Group
shall also review the most current DFG educational material and objectives to
ensure that programs offered at the BBSC are consistent with those objectives
and messages. In light of the considerable amount of educational material and
programs currently available, the Programs Group will give special attention to
the development of exhibits or "hands -on" teaching tools that effectively convey
important information or messages in a relatively short period of time.
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(B) County Education The Cooperative Agreement
contemplates the Operating Agreement would address issues related to the
"coordination 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." The Programs Group recognizes that the use of the OC HCA
Water Quality Lab must be carefully regulated to ensure that educational
activities do not interfere with the Lab's primary mission. The Programs Group
will, with the County as the lead agency, design programs will utilize the water
quality education and research opportunities presented by the presence of the
lab and water quality personnel to an extent and in a manner that does not
interfere with that mission and protects the County from liability related to those
research and educational programs.
(C) Volunteer Management. The Cooperative Agreement assumes
the Operating Agreement would address issues related to "the management of
volunteers, educators and students who are involved, or wish to become
involved, in the educational or research programs of the BBSC." The Parties will
address the level of staffing necessary to train, schedule, organize and monitor
the activities of volunteers.
(4) FUNDING PLAN
The Cooperative Agreement commits the Parties, through the Operating
Agreement, to develop a "long -term funding plan for maintenance and
enhancement of the BBSC, which addresses endowment(s) and other sources of
long -term funding." The Programs Group, collectively or through committees
consisting of one or more members, shall develop a Long Term Funding Plan
(LTFP) that addresses or incorporates the following:
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(A) Private Sources. The BBSC has been funded, in part, through
donations from non - governmental agencies and private parties. The Parties
believe that other private sources of funding — including county residents and
local, state or national organizations — may be willing to fund certain aspects of
BBSC development or operation. These sources, and the member or members
responsible for seeking funding from the sources, shall be identified in the LTFP.
(B) Public Sources. The BBSC has been funded, in large part,
through contributions from the Parties — including tideland revenue and proceeds
from the American Trader litigation. The Parties believe that other public sources
of funding — such as State or Federal water quality education grants — may be
available. The LTFP shall identify possible public sources of funding and the
member or members responsible for seeking funding from those public sources.
(C) Fundraising Activities. The Parties shall incorporate in the
LTFP fundraising activities that are considered appropriate and the member or
members who will be responsible for planning and implementing those activities.
CITY OF NEWPORT BEACH
By:
Mayor
APPROVED AS TO FORM:
M
City Attorney
COUNTY OF ORANGE
0
Chairman of the Board of Supervisors
APPROVED AS TO FORM:
By:
Deputy County Counsel
STATE OF CALIFORNIA
DEPARTMENT OF FISH & GAME
By:
Regional Manager, South Coast Region
THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA
By:
Draft of Operating Agreement
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April 17, 2007
10
MEMORANDUM OF UNDERSTANDING
BETWEEN
THE CALIFORNIA DEPARTMENT OF FISH AND GAME
0010]
THE UNIVERSITY OF CALIFORNIA, IRVINE
REGARDING ACADEMIC COLLABORATION AT SHELLMAKER ISLAND
This Memorandum of Understanding ( "MOU ") is entered into as of - 1,o4Uy,
2004, by the State of California, acting by and through the Department of Fish and Game
( "DFG ") and The Regents of the University of California, on behalf of the University of
California, Irvine ( "UCI ").
BACKGROUND
A. DFG, in cooperation with other local partners, is participating in feasibility and
planning studies for a Marine Studies Center ( "MSC") at Shellmaker Island, located in Upper
Newport Bay, Orange County, California, for the purpose of community education and research
related to coastal water quality and marine science. The MSC is also referred to as the Back Bay
Science Center.
B. UCI and DFG are entering into a long -term ground lease ( "Ground Lease ") for
UCI to continue use of existing facilities located on Shellmaker Island for UCI's student athletic
rowing program ( "UCI Crew ") and provide for the possible future construction of a replacement
UCI Crew facility at Shellmaker Island.
C. UCI currently maintains teaching and research programs related to water quality,
biological sciences, earth system science, restoration ecology, and other academic disciplines
related to the marine sciences.
D. UCI intends to expand its current academic programs related to marine sciences.
E. DFG and UCI desire to collaborate in teaching, research, and public service
activities at MSC to further their mutual goals.
NOW, THEREFORE, UCI and .DFG agree as follows:
Academic Collaboration
1.1 DFG will establish a MSC Program Advisory Committee for the purpose of
developing and overseeing the teaching and research programs to be pursued by the
MSC.
1.2 UCI will appoint three staff members with appropriate scientific expertise to serve
on the MSC Program Advisory Committee.
13 UCI will pursue joint research opportunities with the MSC including pursuit of
research grants and development of collaborative research projects.
1.4 Office, laboratory, and classroom space at the MSC will be available for use by
UCI faculty, staff, and students engaged in collaborative teaching and research
programs to the extent feasible.
2. Habitat Restoration
2.1 UCI will pay DFG (or such third party as DFG may designate) $30,000 for habitat
restoration, habitat management or other habitat - related uses at Shellmaker Island
as DFG may determine, such payment to be made upon execution of this MOU.
3. Library and Information Services
3.1 UCI will assist the MSC by providing access to on -line University of California
Library services to support MSC programs.
3.2 UCI will identify one staff representative with expertise in on -line library resources
as an advisor to MSC in the area of on -line library services.
4. Internship Programs
4.1 UCI and DFG will explore opportunities for collaboration in the development of
student - related programs to support the MSC. This exploration will include
identification of opportunities for UCI students such as internships, directed
research projects, independent study, and participation in the educational programs
of the MSC. UCI also will be open to opportunities for graduate students to
conduct thesis or dissertation research at the MSC.
Future Collaboration
5.1 UCI and DFG will continue to explore opportunities for program collaboration to
support the mission of the MSC.
5.2 The UCI Vice Chancellor for Research and Graduate Studies and the senior DFG
member of the MSC Program Advisory Committee will meet on an annual basis to
discuss the status of UCI program relationships and identification of additional
opportunities for collaboration.
-2-
IN WITNESS WHEREOF, the parties have executed this Memorandum of Understanding on the
dates set forth below. The date of approval of this MOU shall be the date of execution by the
party signing last.
STATE OF CALIFORNIA,
acting by and through the
DEPARTMENT OF FISH AND GAME
C. F. Raybsb k Date
Regional Manager, South Coast Region
THE REGENTS OF THE UNIVERSITY OF CALIFORNIA
on behalf of the
UNIVERSITY OF CALIFORNIA, IRVINE
' l
Ralph Cicerone
Chancellor
ma.'d /I ter s
Date
3-