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HomeMy WebLinkAbout08 - State Coastal Conservancy Grant AgreementCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 8 March 13, 2007 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Dave Kiff, Assistant City Manager 949 - 644 -3002 ordkiff@ city.newport- beach.ca.us SUBJECT: Resolution 2007 - : State Coastal Conservancy Grant Agreement; Ground Leases; Admin Wing Contract for the Back Bay Science Center; Budget Amendment ISSUE: Should the City Council: • Enter into a Ground Lease with the State of California, Department of Fish and Game, for the Back Bay Science Center (BBSC); and • Enter into a Sublease with the County of Orange to allow the County to equip, staff, and run the Water Quality Lab Wing of the BBSC; • Increase the Scope of Work for the Admin Wing construction project from $800,000 to $900,000, at no cost to the City; and • Adopt Resolution 2007 -_ authorizing the Mayor to accept $400,000 from the State Coastal Conservancy (SCC) for the SCC's contribution to the BBSC? RECOMMENDATIONS: 1. Adopt Resolution 2007 -_ authorizing the City to formally enter into and /or accept a funding agreement or similar document with the State Coastal Conservancy (SCC) to accept $400,000 for the Back Bay Science Center, 2. Authorize the Mayor to execute a Ground Lease or similar document 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, provided such Ground Lease is acceptable to the City Attorney after review. 3. Authorize the Mayor to execute a Sublease with the County of Orange for the Water Quality Lab wing of the Back Bay Science Center, such Sublease to become effective upon approval by the Orange County Board of Supervisors and upon the execution of the DF &G Ground Lease. 4. Authorize the City Manager or his designee to enter into a contract the State of California or its Department of Fish and Game to accept $900,000 for the design, construction, construction management, and contingency for the Back Bay Science Back Bay Science Center March 13, 2007 Page 2 Center's Administration Wing, provided that the contract fully compensates the City and its contractors for design and construction management; 5. Approve a Budget Amendment that does the following: • Appropriates $100,000 from the unappropriated Tide and Submerged Lands Fund /General Fund Reserves to Account #7457- C0310600 (BBSC) (an increase from $800,000 to $900,000). This amount shall only be appropriated if the City reaches an agreement with the State DF &G to accomplish the Admin Wing; 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. It is set to open in June 2007. 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); • 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. Readers should review that report for additional detail about the Project. This Agenda Item addresses three key aspects of the BBSC effort • Two ground /building leases — one between the City and DF &G, the other between the City and the County. • An agreement with the State Coastal Conservancy ratifying their prior action to fund the BBSC in the amount of $400,000.00 • A desire on DF &G's part to fund more of the Admin Wing's cost than it had previously been able to fund — going from $800,000 to $900,000. The Council previously authorized the City to build the Admin Wing of the BBSC for $800,000, but now we seek approval to include the additional $100,000. This amount should complete the tenant improvements for the Admin Wing, thus realizing a building ready for occupancy. 1 — Ground Leases. A Cooperative Agreement entered into August 17, 2004 discusses both a City Lease with DFG (City Lease) and a Sublease (Sublease) between the County of Orange and the City. 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 UCl is responsible under Back Bay Science Center March 13, 2007 Page 3 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. COUNTY SUBLEASE: Disbursement of these (County Tobacco Tax) funds will be governed by the provisions of this Agreement and the County Sublease (as defined below) with the understanding that the City will advance, for a period up to 180 days, any funds that the County is required to pay pursuant to this Agreement. The County's commitment is contingent on the approval and execution of a sublease with the City (County Sublease) for the approximate 3,980 square foot OC Water Quality Lab wing (Lab Wing) of the OC Water Quality Lab /Stor Building. This Agenda Item asks for the Council's approval to enter into both the City Lease and the County Sublease. The County Sublease is provided for your review. The City Lease, much to our frustration, has not yet been provided for us. It should be provided soon and should reflect the terms of the Cooperative Agreement. As such, we are comfortable in requesting your formal authorization to enter into the City Lease as soon as we receive it, provided that it receives the City Attorney's approval. 2 — Coastal Conservancv. The State Coastal Conservancy has been on record for a long period of time with a $400,000 contribution to the BBSC. The execution contract for that contribution is available now and ready for Council approval. The contract also dictates that the City Council adopt a resolution agreeing to accept the funds via this contractual agreement (agreement and resolution attached). The City very much appreciates the SCC's participation in this Project. 3 — Admin Wing. As we reported on January 23`d, 2007, in late December 2006, DFG informed us that the State had set -aside $800,000 in one -time appropriations to help complete the Admin Wing. The Admin Wing today is a poured slab with in- ground utilities and rebar set. To take advantage of economies of scale, DFG asked the City to add the construction of the Admin Wing to the current Project. Doing so would still allow most of the BBSC to open in mid -June, with the Admin Wing complete about three months later (September 2007). At the time Council last heard this item, DF &G knew that $800K would only complete most of the core - and -shell of the Wing. Wall and ceiling finishes, plumbing and lighting fixtures, and interior dividing walls would not be covered by the $800K. After reviewing their budgets, they have come up with another $100K to complete the project, including tenant improvements (to the extent possible). Back Bay Science Center March 13, 2007 Page 4 This Agenda Item asks that Council authorize us to manage the now $900,000 project (construction of the Admin Wing) instead of an $800,000 project. It includes the related Budget Amendment. No costs are to be incurred by the City for this effort. 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. Project 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: u, Dav' kiff Assistant City Manager Attachments: Resolution 2007 - SCC Contract County Sublease Budget Amendment Back Bay Science Center March 13, 2007 Page 5 RESOLUTION NO. 2007- AUTHORIZING THE EXECUTION OF GRANT AGREEMENT #06 -101 BETWEEN THE STATE COASTAL CONSERVANCY AND THE CITY OF NEWPORT BEACH FOR THE TEACHING LAB WING OF THE BACK BAY SCIENCE CENTER AT UPPER NEWPORT BAY ECOLOGICAL RESERVE WHEREAS, the State Coastal Conservancy has been working with the City of Newport Beach and eight other funding partners to develop the Back Bay Science Center at Shellmaker Island; and WHEREAS, the Back Bay Science Center shall have a Teaching Lab Wing intended to expand the educational and research knowledge about Upper Newport Bay and estuaries in general for students in grades 7 -12, community college, and local universities; and WHEREAS, the State Coastal Conservancy is desirous of participating with the City and other funding partners to plan, develop, and complete the Teaching Lab Wing; and WHEREAS, the State Coastal Conservancy has received funds from various bond sources, including Propositions 13, 40, 50, and 84, some of which allow and encourage the development and construction of educational facilities like the Back Bay Science Center; now, therefore be it RESOLVED by the City Council of the City of Newport Beach that the Council hereby authorizes and directs the Mayor to execute a Grant Agreement #06 -101 between the State Coastal Conservancy and the City to construct the Teaching Lab Wing of the Back Bay Science Center at Shellmaker Island within the Upper Newport Bay Ecological Reserve. ADOPTED this 13`h day of March, 2007, STEVE ROSANSKY Mayor of Newport Beach ATTEST: LAVONNE HARKLESS City Clerk STATE OF CALIFORNIA STANDARD AGREEMENT (Grant- Rev 09/06) AGREEMENT NUMBER AM. NO. 06 -101 TAXPAYERS FEDERAL EMPLOYER IDENTIFICATION N0, 95- 6000751 THIS AGREEMENT, made and entered into this day of in the State of California, by and between State of California, through its duly elected or appointed, qualified and acting TITLE OF OFFICER ACTING FOR STATE AGtNLY Executive Officer State Coastal Conservancy hereafter called the Conservancy, and City of Newport Beach , hereafter called the Grantee. The Grantee, for and in consideration of the covenants, conditions, agreements, and stipulations of the Conservancy hereinafter expressed, does hereby agree as follows: SCOPE OF AGREEMENT Pursuant to Chapter 9 of Division 21 of the California Public Resources Code, the State Coastal Conservancy ( "the Conservancy ") hereby grants to the City of Newport Beach ( "the grantee ") a sum not to exceed $400,000 (four hundred thousand dollars), subject to the terms and conditions of this agreement. The grantee shall use these funds to complete the following project ( "the project ") at Shellmaker Island in the Upper Newport Bay Ecological Reserve, Newport Beach, Orange County, as described in the staff recommendation, which is incorporated by reference and attached as Exhibit A. Grantee shall complete construction of the Back Bay Science Center teaching laboratory wing. The Back Bay Science Center shall consist of an approximately 13,900 square foot building with a teaching laboratory, water quality testing facilities, and administrative office. The teaching laboratory wing shall replace existing facilities with classrooms overlooking Upper Newport Bay and shall include wet -labs as well as outdoor learning spaces and shall be in a modular layout to provide for future expansion as more funding becomes available. (Continued on Following Pages) The provisions on the following pages constitute a part of this agreement. IN WITNESS WHEREOF, this agreement has been executed by the parties hereto, upon the date first above written. STATE OF CALIFORNIA GRANTEE AGENCY GRANTEE pf other than an individual, state whethere corporation, pednentria, em.) State Coastal Conservancy City of Newport Beach BY (Authorized Signature) BY (Authorized Signature) le JK PRINTED NAME AND TITLE OF PERSON SIGNING PRINTED NAME AND TITLE OF PERSON SIGNING Samuel Schuchat, Executive Officer Steven Rosansky, Mayor ADDRESS B PHONE NUMBER 1330 Broadway, 13'h Floor ADDRESS 3300 Newport Boulevard Oakland, CA 94612 Phone: (510) 286 -1015 Newport Beach, CA 9258 -8915 AMOUNT ENCUMBERED BY THIS PROGRAMICATEGORY tCODE AND TITLE) FUND TITLE DOCUMENT Capital Outlay WatcrSecurity... (OPTIONAL USE) Y 00,000.00 $4 Back Bay Science Center PRIOR AMOUNT ENCUMBERED ITEM CHAPTER STATUTE FISCAL YEAR FOR THIS AGREEMENT $ -0- 3760 - 301 -6031 (0.5) (B) 208 2004 04/05 TOTAL AMOUNT ENCUMBERED OBJECT OF EXPENDITURE (CODE AND TITLE) TO DATE $ 400,000.00 Resource Enhancement/Public Access I hereby certify upon my own personal knowledge that budgeted funds are available for the period and purpose of the expenditure stated above. SIGNATURE OF ACCOUNTING OFFICER DATE .5 ❑ GRANTEE ❑ ACCOUNTING ❑ PROJECT MANAGER ❑ CONTROLLER 0 STATE AGENCY I certify that this agreement is exempt from Department of General Services approval. City of Newport Beach Grant Agreement No. 06 -101 Page 2 SCOPE OF AGREEMENT (Continued) The grantee shall carry out the project in accordance with this agreement and a work program, as provided in the "WORK PROGRAM" section, below. The grantee shall provide any funds beyond those granted under this agreement which are needed to complete the project. CONDITIONS PRECEDENT TO CONSTRUCTION AND DISBURSEMENT The Conservancy shall not be obligated to disburse any funds unless and until the following conditions precedent have been met: 1. The City Council of the grantee has adopted a resolution authorizing the execution of this agreement. 2. The Executive Officer of the Conservancy ( "the Executive Officer ") has approved in writing: a. A work program for the project, as provided in the "WORK PROGRAM" section, below. b. A plan for installation of signs and placards, as provided in the "SIGNS" section, below. c. All contractors that the grantee intends to retain in connection with the project. The grantee must provide written evidence to the Conservancy that each contractor has complied with the bonding requirements described in the "BONDING" section, below. 3. The grantee has provided written evidence to the Conservancy that: a. All permits and approvals necessary to the completion of the project under applicable local, state and federal laws and regulations have been obtained. b. The grantee has provided for required insurance coverage, including additional insured endorsement, as described in the "INSURANCE" section, below. City of Newport Beach Grant Agreement No. 06 -101 Page 3 TERM OF AGREEMENT This agreement shall be deemed executed and effective as of the date of November 9, 2006, the date of the Conservancy's approval of the Back Bay Science Center. An authorized representative of the grantee shall sign the first page of the originals of this agreement in ink. This agreement shall run from its effective date through November 9, 2027 ( "the completion date "). The grantee shall submit a final Request for Disbursement no later than March 30, 2008 ( "the final invoice date "). AUTHORIZATION The signature of the Executive Officer of the Conservancy on this agreement certifies that at its November 9, 2006 meeting, the Conservancy adopted the resolution included in the staff recommendation attached as Exhibit A. This agreement is executed under that authorization. City of Newport Beach Grant Agreement No. 06 -101 Page 4 Standard Provisions WORK PROGRAM The grantee shall submit a detailed work program to the Executive Officer for review and written approval of its consistency with the purposes of this grant agreement. The work program shall include: I. Construction plans and specifications which have been certified by a licensed architect or registered engineer, or approved by the grantee's Public Works Director. 2. A schedule of completion for the project specifically listing the project timeline and a final project completion date. 3. A detailed project budget. The project budget shall describe all labor and materials costs of completing each component of the project. For each project component, the project budget shall list all intended funding sources, including the Conservancy's grant, and all other sources of monies, materials, or labor. The grantee shall review the plans on -site with Conservancy staff. The grantee shall construct the project in accordance with the approved work program. The work program shall have the same effect as if included in the text of this agreement. However, the work program may be modified without amendment of this agreement upon the grantee's submission of a modified work program and the Executive Officer's written approval of it. If this agreement and the work program are inconsistent, the agreement shall control. SIGNS The grantee shall install and maintain a sign (or signs) visible from the nearest public roadway identifying the project, acknowledging Conservancy assistance, and displaying the Conservancy's logo, and directing the public to the project. The Conservancy shall provide to the grantee specifications for the sign(s). The grantee may incorporate the required information into other signs as approved by the Executive Officer. In special circumstances, where the placement of signs or the general specifications are inappropriate, the Executive Officer may approve alternative, more appropriate methods for acknowledging the source(s) of funding. The grantee shall submit plans describing the number, design, placement and wording of the signs, or the specifications of a proposed, alternative method. The Conservancy will withhold final disbursement until the signs are installed as approved by the Conservancy. City of Newport Beach Grant Agreement No. 06 -101 Page 5 BONDING If the grantee intends to use any contractor(s) on any portion of the project to be funded under this agreement, each contractor shall furnish a performance bond in favor of the in the following amounts: for faithful performance, one hundred percent (100 %) of the contract value; and for labor and materials, one hundred percent (100 %) of the contract value. This requirement shall not apply to any contract for less than $20,000. Any bond furnished pursuant to this section shall be executed by an admitted corporate surety insurer licensed in the State of California. COSTS AND DISBURSEMENTS When the Conservancy determines that all "CONDITIONS PRECEDENT TO CONSTRUCTION AND DISBURSEMENT" have been fully met, the Conservancy shall disburse to the grantee, in accordance with the approved project budget, a total amount not to exceed the amount of this grant, as follows: The Conservancy shall disburse funds for costs incurred, upon the grantee's satisfactory completion of construction and compliance with the "PROJECT COMPLETION" section, below, and upon the Conservancy's acceptance of the project. The Conservancy will reimburse the grantee for expenses necessary to the project when documented by appropriate receipts. The Conservancy will reimburse travel and related expenses at actual costs not to exceed the rates provided in Title 2, Division 1, Chapter 3, Subchapter 1, Article 2 of the California Code of Regulations, except that reimbursement may be in excess of these rates upon provision of documentation that rates in compliance are not reasonably available to the grantee. Reimbursement for the cost of operating a private vehicle shall not, under any circumstance, exceed $0.44 per mile. The Conservancy will reimburse the grantee for other necessary expenses if those expenses are reasonable in nature and amount taking into account the nature of the project, its location, and other relevant factors. The grantee shall request disbursements by filing with the Conservancy a fully executed "Request for Disbursement" form (available from the Conservancy). The grantee shall include in the form its name and address, the number of this agreement, the date of the submission, the amount of the invoice, the period during which the work was actually done, and an itemized description, including time, materials, and expenses incurred of all work done for which disbursement is requested. The form shall also indicate cumulative expenditures to date, expenditures during the reporting period, and the unexpended balance of funds under the grant agreement. City of Newport Beach Grant Agreement No. 06 -101 Page 6 COSTS AND DISBURSEMENTS (Continued) An authorized representative of the grantee shall sign the forms. Each form shall be accompanied by: 1. All receipts and any other source documents for direct expenditures and costs that the grantee has incurred. 2. Original invoices from contractors that the grantee engaged to complete any portion of the work funded under this agreement and any receipts and any other source documents for costs incurred and expenditures by any such contractor, unless the Executive Officer makes a specific exemption in writing. Written substantiation of completion of the portion of the project for which the grantee is requesting disbursement. With each form, the grantee shall submit a supporting progress report summarizing the current status of the project and comparing it to the status required by the work program (budget, timeline, tasks, etc.). The grantee's failure to fully execute and submit a Request for Disbursement form, including attachment of supporting documents, will relieve the Conservancy of its obligation to disburse funds to the grantee until the grantee corrects all deficiencies. EXPENDITURE OF FUNDS AND ALLOCATION OF FUNDING AMONG BUDGETITEMS The grantee shall expend funds in the manner described in the approved project budget. The allocation of the Conservancy's total grant among the items in the project budget may vary by as much as ten percent without approval by the Executive Officer. Any difference of more than ten percent must be approved in writing by the Executive Officer. The Conservancy may withhold payment for changes in particular budget items which exceed the amount allocated in the project budget by more than ten percent and which have not received the approval required above. The total amount of this grant may not be increased except by amendment to this agreement. Any increase in the funding for any particular budget item shall mean a decrease in the funding for one or more other budget items unless there is a written amendment to this agreement. City of Newport Beach Grant Agreement No. 06 -101 Page 7 PROJECT COMPLETION Within ninety days of completion of construction of the project, the grantee shall supply the Conservancy with evidence of completion by submitting a final report which includes: An inspection report by a licensed architect or registered engineer or the grantee's Public Works Director certifying completion of the project according to the approved work program. 2. Documentation that signs have been installed as required by the "SIGNS" section of this agreement. 3. A fully executed final "Request for Disbursement" form. 4. "As built" drawings of the completed project. Within thirty days of grantee's compliance with this paragraph, the Conservancy shall determine whether the grantee has satisfactorily completed the project. If so, the Conservancy shall issue to the grantee a letter of acceptance of the project. The project shall be deemed complete as of the date of the letter. EARLY TERMINATION AND FAILURE TO PERFORM Before the project is complete, either party may terminate this agreement for any reason by providing the other party with seven days notice in writing. If the Conservancy terminates the agreement before construction is complete, the grantee shall take all reasonable measures to prevent further costs to the Conservancy, and the Conservancy shall be responsible for any reasonable and non - cancelable obligations incurred by the grantee in the performance of this agreement prior to the date of the notice to terminate, but only up to the undisbursed balance of funding authorized in this agreement. If the grantee fails to complete the project as required, or fails to fulfill any other obligations of this agreement prior to the termination date, the grantee shall be liable for immediate repayment to the Conservancy of all amounts disbursed by the Conservancy under this agreement This paragraph shall not be deemed to limit any other remedies the Conservancy may have for breach of this agreement. City of Newport Beach Grant Agreement No. 06 -101 Page 8 OPERATION AND MAINTENANCE The grantee shall use, manage, maintain and operate the project throughout the term of this agreement, consistent with the purposes for which the Conservancy's grant was made. The grantee assumes all operation and maintenance costs of these facilities and structures; the Conservancy shall not be liable for any cost of such maintenance, management, or operation. The grantee may be excused from its obligations for operation and maintenance during the term of this agreement only upon the written approval of the Executive Officer. For purposes of this agreement, "operation costs" include direct costs incurred for material and labor needed for operations, utilities, insurance, and similar expenses. "Maintenance costs" include ordinary repairs and replacements of a recurring nature necessary to prolong the life of capital assets and basic structures, and the expenditure of funds necessary to replace or reconstruct capital assets or basic structures. MITIGATION Without the written permission of the Executive Officer, the grantee shall not use or allow the use for mitigation (in other words, to compensate for adverse changes to the environment elsewhere) of any portion of real property on which the Conservancy has funded constriction. All funds generated in connection with any authorized or allowable mitigation on the real property shall be remitted promptly to the Conservancy until the Conservancy has been fully paid for all of its past, present, and future costs with respect to the real property, including, without limitation, staff, planning, development, restoration, operation and maintenance, and monitoring costs, and acquisition costs at fair market value as of the time mitigation is to begin. INSPECTION Throughout the term of this agreement, the Conservancy shall have the right to inspect the project area to ascertain compliance with this agreement. INDEMNIFICATION AND HOLD HARMLESS The grantee shall be responsible for, indemnify and hold harmless the Conservancy, its officers, agents, and employees from any and all liabilities, claims, demands, damages, or costs, including, without limitation, litigation costs and attorneys fees, resulting from or arising out of the willful or negligent acts or omissions of the grantee, its officers, agents, City of Newport Beach Grant Agreement No. 06 -101 Page 9 INDEMNIFICATION AND HOLD HARMLESS (Continued) contractors, subcontractors, and employees, or in any way connected with or incident to this agreement, except for the active negligence of the Conservancy, its officers, agents, or employees. The duty of the grantee to indemnify and hold harmless includes the duty to defend as set forth in Civil Code Section 2778. This agreement supersedes the grantee's right as a public entity to indemnity (see Gov. Code Section 895.2) and contribution (see Gov. Code Section 895.6) as provided in Gov. Code Section 895.4. The grantee waives any and all rights to any type of express or implied indemnity or right of contribution from the State, its officers, agents, or employees, for any liability resulting from, growing out of, or in any way connected with or incident to this agreement. Nothing in this agreement is intended to create in the public or in any member of it rights as a third party beneficiary under this agreement. INSURANCE The grantee shall procure and maintain insurance, as specified in this section, against claims for injuries to persons and damage to property that may arise from or in connection with any activities of the grantee or its agents, representatives, employees, or contractors associated with the project undertaken pursuant to this agreement. As an alternative, with the written approval of the Executive Officer, the grantee may satisfy the coverage requirement in whole or in part through: (a) its contractors' procurement and maintenance of insurance for work under this agreement, if the coverage otherwise fully satisfies the requirements of this section; or (b) the grantee's participation in a "risk management" plan, self insurance program or insurance pooling arrangement, or any combination of these, if consistent with the coverage required by this section. The grantee shall maintain required property insurance throughout the term of this agreement. The grantee shall maintain any required errors and omissions liability insurance from the effective date through two calendar years after the completion date. The grantee shall maintain all other required insurance from the effective date through the completion date. 1. Minimum Scope of Insurance. Coverage shall be at least as broad as: a. Insurance Services Office ( "ISO ") Commercial General Liability coverage (occurrence Form CG 0001) or ISO Comprehensive General Liability form (1973) or comparable with Broad Form Comprehensive General Liability endorsement. City of Newport Beach Grant Agreement No, 06 -101 Page 10 (Continued) b. Automobile Liability coverage: ISO Form Number CA 0001, Code 1 (any auto). c. Workers' Compensation insurance as required by the Labor Code of the State of California. d. Course -of- construction (also known as "Builder's Risk ") insurance covering all risks of loss. (Any proceeds of loss payable under this coverage shall be used to replace, rebuild or repair the damaged portions of the facilities and structures constructed under this agreement.) e. Property insurance covering the loss, damage, or destruction of the facilities or structures constructed under this agreement against fire and extended coverage perils. (Any proceeds of loss payable under this coverage shall be used to replace, rebuild and/or repair the damaged portions of the facilities and structures constructed under this agreement.) 2. Minimum Limits of Insurance. The grantee shall maintain coverage limits no less than: a. General Liability: $1,000,000 per occurrence for bodily injury, (Including operations, products personal injury and property damage. If and completed operations, as Commercial General Liability Insurance or other applicable) form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the activities under this agreement, or the general aggregate limit shall be twice the required occurrence limit. b. Automobile Liability: $1,000,000 per accident for bodily injury and property damage. c. Course of Construction: Completed value of the project with no coinsurance penalty provisions. d. Property Insurance 90 percent of full replacement cost of the facilities or structures. 3. Deductibles and Self- Insured Retentions. Any deductibles or self - insured retentions must be declared to and approved by the Executive Officer. City of Newport Beach Grant Agreement No. 06 -101 Page 11 INSURANCE (Continued) 4. Required Provisions. Each insurance policy required by this section shall be endorsed to state that coverage shall not be canceled by either party, except after thirty days' prior written notice by certified mail, return receipt requested, has been given to the Conservancy. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions: a. The State of California, its officers, agents, employees, and volunteers are to be covered as insureds with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the grantee; and with respect to liability arising out of work or operations performed by or on behalf of the grantee including materials, parts or equipment furnished in connection with such work or operations. b. For any claims related to this agreement, the grantee's insurance coverage shall be primary insurance as respects the State of California, its officers, agents and employees. c. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under California Civil Code Section 2782(b). 5. Acceptability of Insurers. Insurance shall be placed with insurers admitted to transact business in the State of California and having a current Best's rating of `B +:VII" or better or, in the alternative, acceptable to the Conservancy and approved in writing by the Executive Officer. 6. Verification of Coverage. The grantee shall furnish the Conservancy with original certificates and amendatory endorsements effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the Executive Officer before work commences. The Conservancy may require, at any time, complete, certified copies of all required insurance policies, including endorsements affecting the coverage. 7. Contractors. The grantee shall include all contractors as insureds under its policies or shall require each contractor to provide and maintain coverage consistent with the requirements of this section. To the extent generally available, grantee shall also require each professional contractor to provide and maintain Errors and Omissions Liability insurance appropriate to the contractor's profession and in a reasonable City of Newport Beach Grant Agreement No. 06 -101 Page 12 INSURANCE (Continued) amount in light of the nature of the project with a minimum limit of liability of $1,000,000. 8. Premiums and Assessments. The Conservancy is not responsible for premiums and assessments on any insurance policy. AUDITS/ACCOUNTING/RECORDS The grantee shall maintain financial accounts, documents, and records (collectively, "records ") relating to this agreement, in accordance with the guidelines of "Generally Accepted Accounting Principles" ( "GAAP ") published by the American Institute of Certified Public Accountants. The records shall include, without limitation, evidence sufficient to reflect properly the amount, receipt, deposit, and disbursement of all funds related to the construction of the project, and the use, management, operation and maintenance of the real. Time and effort reports are also required. The grantee shall maintain adequate supporting records in a manner that permits tracing from the request for disbursement forms to the accounting records and to the supporting documentation. Additionally, the Conservancy or its agents may review, obtain, and copy all records relating to performance of the agreement. The grantee shall provide the Conservancy or its agents with any relevant information requested and shall permit the Conservancy or its agents access to the grantee's premises upon reasonable notice, during normal business hours, to interview employees and inspect and copy books, records, accounts, and other material that may be relevant to a matter under investigation for the purpose of determining compliance with this agreement and any applicable laws and regulations. The grantee shall retain the required records for a minimum of three years following the later of final disbursement by the Conservancy, and the final year to which the particular records pertain. The records shall be subject to examination and audit by the Conservancy and the Bureau of State Audits during the retention periods. If the grantee retains any contractors to accomplish any of the work of this agreement, the grantee shall first enter into an agreement with each contractor requiring the contractor to meet the terms of this section and to make the terms applicable to all subcontractors. The Conservancy may disallow all or part of the cost of any activity or action that it determines to be not in compliance with the requirements of this agreement. City of Newport Beach Grant Agreement No. 06 -101 Page 13 NONDISCRIMINATION During the performance of this agreement, the grantee and its contractors shall not unlawfully discriminate against, harass, or allow harassment against any employee or applicant for employment because of sex, race, religion, color, national origin, ancestry, disability, medical condition, marital status, age (over 40) or denial of family -care leave, medical -care leave, or pregnancy disability leave. The grantee and its contractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination and harassment. The grantee and its contractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code Section 12990 et seq.) and the applicable regulations (California Code of Regulations Title 2, Section 7285.0 et seq.). The regulations of the Fair Employment and Housing Commission regarding Contractor Nondiscrimination and Compliance (Chapter 5 of Division 4 of Title 2 of the California Code of Regulations), are incorporated into this agreement. The grantee and its contractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement. This nondiscrimination clause shall be included in all contracts and subcontracts entered into to perform work provided for under this agreement. LABOR COMPLIANCE PROGRAM This agreement is funded in whole or in part with funds from the "Water Security, Clean Drinking Water, Coastal and Beach Protection Fund of 2002" ( "Proposition 50 "). Section 1771.8(a) of the California Labor Code imposes on a body awarding any contract for a public works project financed in any part with Proposition 50 funds responsibility for adoption and enforcement of a "labor compliance program" under Labor Code Section 1771.5(b). The grantee shall review Labor Code Section 1771.8(a) and related provisions to determine its responsibilities. INDEPENDENT CAPACITY The grantee, and the agents and employees of grantee, in the performance of this agreement, shall act in an independent capacity and not as officers or employees or agents of the State of California. City of Newport Beach Grant Agreement No. 06 -101 Page 14 ASSIGNMENT Without the written consent of the Executive Officer, the grantee may not assign this agreement in whole or in part. TIMELINESS Time is of the essence in this agreement The Executive Officer shall designate a Conservancy project manager who shall have authority to act on behalf of the Executive Officer with respect to this agreement. The Executive Officer shall notify the grantee of the designation in writing. Except as expressly provided in this agreement, no changes in this agreement shall be valid unless made in writing and signed by the parties to the agreement. No oral understanding or agreement not incorporated in this agreement shall be binding on any of the parties. LOCUS This agreement is deemed to be entered into in the County of Alameda. I GA 1254 -220 2 HCA/Water Quality Lab 3 4 SUBLEASE 5 6 THIS IS A SUBLEASE, hereinafter referred to as "Sublease," made 2007, by and 7 between CITY OF NEWPORT BEACH, hereinafter referred to as "CITY," and the COUNTY OF 8 ORANGE, hereinafter referred to as "COUNTY," without regard to number and gender. The term 9 "COUNTY" shall mean the Board of Supervisors of the political body that executed this Agreement or 10 its authorized representative. 11 12 RECITALS 13 14 I. WHEREAS, the State of California is the owner of certain real property known as Shellmaker 15 Island, located at 600 Shellmaker Road in Newport Beach, Orange County, California. 16 17 II. WHEREAS, the City of Newport Beach (CITY), the University of California at Irvine (UCI), the 18 State of California, Department of Fish and Game (DFG), and County of Orange (COUNTY) have 19 entered into a Cooperative Agreement for the planning, designing, phasing, and construction of a Back 20 Bay Science Center, as defined herein, on Shellmaker Island; 21 22 III. WHEREAS, the COUNTY has offered to contribute $1.23 million toward the construction of the 23 Back Bay Science Center project as consideration for a 30 -year Sublease of approximately 3,980 square 24 feet of water quality laboratory space, as defined herein, as part of the proposed 12,409 square foot Back 25 Bay Science Center; 26 27 N. WHEREAS, CITY has leased from DFG the 3,980 square foot water quality laboratory space to be 28 constructed as part of the Back Bay Science Center; 29 30 V. WHEREAS, CITY is willing to Sublease the 3,980 square foot water quality laboratory space to be 31 constructed as part of the Back Bay Science Center to the COUNTY for a 30 -year term. 32 33 NOW THEREFORE, THE RECITALS ARE INCORPORATED HEREIN AND THE PARTIES DO 34 HEREBY AGREE AS FOLLOWS: 35 36 37 1of14 \\Filesmry 2Wome2 \InouyeR \ProjMtS\600 ShellmakeASub Lease.doc 1 I. DEFINITIONS (1.2 S) 2 3 "Board of Supervisors" means the Board of Supervisors of the County of Orange, a political subdivision 4 of the State of California. 5 6 "County Executive Officer" means the County Executive Officer, County Executive Office, County of 7 Orange, or designee, or upon written notice to CITY, such other person or entity as shall be designated 8 by the Board of Supervisors. 9 10 "Director of Health Care Agency" means the Director, Health Care Agency, County of Orange, or I I designee, or upon written notice to CITY, such other person or entity as shall be designated by the 12 County Executive Officer or the Board of Supervisors. 13 14 "Manager, HCA/Facilities Operations" means the Manager, Health Care Agency, Facilities Operations, 15 County of Orange, or designee, or upon written notice to CITY, such other person or entity as shall be 16 designated by the Director of Health Care Agency, or designee. 17 18 "Auditor- Controller" means the Auditor - Controller, County of Orange, or designee, or upon written 19 notice to CITY, such other person or entity as shall be designated by the Board of Supervisors. 20 21 "County Counsel" means the County Counsel, County of Orange, or designee, or upon written notice to 22 CITY, such other person or entity as shall be designated by the County Executive Officer or the Board of 23 Supervisors. 24 25 "Back Bay Science Center" means the 12,409 square foot facility, the parking area and the landscaped 26 areas immediately adjacent to the facility as shown on Exhibit B, attached hereto, to be constructed on 27 Shellmaker Island in Newport Beach, California and related improvements for educational and scientific 28 programs focusing on the ecology, water quality, conservation and restoration of Upper Newport Bay. 29 30 "Water Quality Laboratory" means the 3,980 square foot laboratory space as shown on Exhibit B, 31 attached hereto, to be constructed as part of the 12,409 square foot Back Bay Science Center on 32 Shellmaker Island in Newport Beach, California. 33 // 34 // 35 // 36 // 37 // 2of14 \\Filese ef2\Home2 \lnouyeR\Pmjmts\600 Shell=ku\Sub Lease.dm Jf , 7 r 1 2. PREMISES (1.3 N) 2 3 CITY Subleases to COUNTY that certain property hereinafter referred to as "Premises," described in 4 "Exhibit A" and shown on "Exhibit B," which exhibits are attached hereto and by reference made a part 5 hereof, together with non - exclusive use of CITY's driveways for vehicle ingress and egress, pedestrian 6 walkways, other facilities and common areas appurtenant to COUNTY's Premises created by this 7 Sublease. 8 9 3. PARKING (1.4 S) 10 11 CITY, throughout the term of this Sublease, shall provide twelve (12) parking spaces for COUNTY's 12 free and non - exclusive use. Said parking spaces are to be located in the parking area shown on 13 Exhibit B. 14 15 In addition to said parking spaces, CITY shall also provide parking for disabled persons in accordance 16 with the Americans with.Disabilities Act, Section 7102 of the California Uniform Building Code and the 17 applicable codes and/or ordinances relating to parking for disabled persons as established by the local 18 jurisdiction in which the Premises is located where the provisions of such local codes and/or ordinances 19 exceed or supersede the State requirements. 20 21 4. USE (N) 22 23 COUNTY shall use the Premises as a water quality laboratory. COUNTY agrees not to use the Premises 24 for any other purpose without the prior written consent of CITY, which shall not be unreasonably 25 withheld. 26 27 5. CONTINGENCY (N) 28 29 This Sublease and the rights and obligations of COUNTY under this Sublease is contingent upon the 30 CITY executing a separate lease or other agreement with DFG covering the Premises and granting CITY 31 all of the rights that are necessary and appropriate to ensure that the provisions of this Sublease grant to 32 COUNTY the rights described herein. In the event that CITY fails to obtain a lease or other agreement 33 from DFG permitting the CITY to convey this Sublease to COUNTY, this Sublease shall become null 34 and void and the parties hereto shall be relieved of all obligations hereunder. 35 H 36 37 H 3of14 \ \Fileserver2\Home2VnouyeR\Pmjec6 \600 Shellmaker\Sub Lease.doc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 ' T ' 6, TERM (2.2A N) Subject to the provisions of Section 5 of this Agreement, entitled "CONTINGENCY," the term of this Sublease shall be thirty (30) years, commencing the first day of the first full calendar month following the date of execution by COUNTY or commencing the first day of the first full calendar month following the completion by CITY of the work set out in Section 10 of this Agreement, entitled "CONSTRUCTION ", below, whichever date is later ( "Commencement Date'). Parties agree that the Commencement Date of this Sublease will be confirmed in writing by either party upon demand by the other. 7. TERMINATION OF PRIOR AGREEMENTS (1.5 N) It is mutually agreed that this Sublease shall operate to terminate and supersede, as of a date thirty (30) days after the Water Quality Laboratory is available for occupancy, any prior agreement between the parties hereto covering all or any portion of the Premises, including that certain dated lease February 4, 2003, EXCEPT that all personal property and/or equipment (e.g., fixtures, partitions, counters, shelving) attached to and/or placed upon any portion of the Premises by COUNTY pursuant to the terms of any prior agreement between the parties hereto shall remain the personal property of COUNTY, who shall have the right to remove same. 8. EXTENSION OF SUBLEASE TERM (I) COUNTY may request that CITY extend the term of the Sublease for two (2) additional ten -year (10- year) periods on the same terms and conditions provided COUNTY has performed its obligations under the Sublease. COUNTY's request to extend the term of this Sublease shall be given to CITY, in writing, at least one hundred eighty (180) days prior to the Sublease termination date. CITY agrees to use its best efforts to obtain the approval from DFG to extend the term of the Sublease. 9. RENT (I) In consideration of the $1.23 million to be contributed by COUNTY toward the construction of the Back Bay Science Center and the services to be performed by COUNTY pursuant to the terms of this Sublease, COUNTY's use of the Premises shall be rent -free. 4of14 \ \Fileserva2 \Home2VnouyeR\Projecu \600 Shellmake \Sub Le e.doc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 ..t , I' 10. CONSTRUCTION (4.1 N) CITY hereby agrees to complete, at CITY's expense, within seven hundred thirty (730) calendar days after the date first written above, alterations, repairs, and other work (the "Work ") in accordance with the plans and the specifications attached hereto and made a part hereof as "Exhibit C." Should CITY fail to complete the Work within seven hundred thirty (730) calendar days after execution of the Sublease by COUNTY and, assuming the CITY's contractor fails to complete the Work within the time required, the City fails to exercise reasonable diligence in securing performance from the surety providing the performance bond, COUNTY may, at COUNTY's sole option and based upon the status of construction and the reasonable expectation that construction will not be completed within a reasonable time, upon giving written notice to CITY prior to the completion of the Work, terminate the Sublease. In the event of such termination, this Sublease shall terminate on the date specified in such notice and the CITY shall refund to COUNTY any prior payments in full within sixty (60) days and neither party shall have any further right or obligation to the other with respect to this Sublease or the Premises. All planning and architectural/design costs required to accomplish the Work shall be CITY's responsibility. All plans and working drawings for the Work shall have the acceptance of COUNTY's Manager, HCA/Facilities Operations. Acceptance by COUNTY of said plans and work drawings shall not relieve CITY of the responsibility for complying with all applicable codes and construction requirements, nor of obtaining necessary permits or approvals from the authorities of proper jurisdiction. Subsequent to the completion of the Work, and prior to occupancy by COUNTY, CITY shall obtain Manager, HCA/Facilities Operations, approval and acceptance of the Work. Said acceptance shall be manifested by letter from Manager, HCA/Facilities Operations, and may be subject to completion of "punch list" items. Said punch list will be generated by Manager, HCA/Facilities Operations. 11. PAYMENT OF COUNTY'S CONTRIBUTION (I) During the construction period immediately preceding the commencement of this Sublease, CITY shall provide accurate construction progress reports to the Manager, HCA/Facilities Operations. Upon completion by CITY and acceptance by Manager, HCA/Facilities Operations of fifty percent (50 %) of the Work, COUNTY agrees to pay to CITY the sum of Six Hundred Fifteen Thousand Dollars ($615,000). On the Commencement Date of the term of this Sublease, COUNTY agrees to pay to CITY the balance of its $1,230,000 contribution, in the amount of Six Hundred Fifteen Thousand Dollars 5of14 \\ Fileserver2 \Home2 \lnouyeR\Pmjwts\600 Shellmaker \Sub Lease.dm 1 ($615,000). In no event shall the COUNTY's funding commitment for the proposed construction exceed 2 the COUNTY's contribution of $1.23 million without the expressed written consent of the Orange 3 County Board of Supervisors. 4 5 To obtain payments, CITY (or CITY's designee) shall submit to COUNTY's Manager, HCA/Facilities 6 Operations, in a form acceptable to said Manager, HCA/Facilities Operations, a written claim for said 7 payments. 8 9 Payment shall be due and payable within thirty (30) days after receipt of CITY's written claim by 10 COUNTY's Manager, HCA/Facilities Operations. 11 12 12. REPAIR AND MAINTENANCE (5.1 N) 13 14 COUNTY shall provide, at its own cost and expense, all maintenance, repair and/or replacement 15 services for the interior portions of the Premises to include but not limited to janitorial service and 16 supplies; lighting service and supplies; heating, air conditioning and ventilation maintenance, repair and 17 replacement; entry doors, roll up doors and windows; fire extinguishers; interior painting and flooring; 1g locks, keys, access control systems and security service; and other services as needed to support its 19 operations. 20 21 CITY shall provide, subject to the provisions of the Clause entitled REIMBURSEMENT FOR COSTS 22 OF CITY SERVICES, all maintenance, repair and/or replacement services for the building structure and 23 the exterior portion of the Premises, including but not limited to, the building structure, exterior 24 surfaces, and roof, fire sprinkler system, utility connections to the building, and site improvements 25 (including the parking lot, sidewalks, curbs, gutters, drains, site related signage, site related security 26 lighting as shown on the construction plans). 27 28 13. REIMBURSEMENT FOR THE COSTS OF CITY SERVICES (I) 29 30 For the purpose of this clause, the cost of services provided by CITY for the COUNTY ("CITY 31 Services ") shall include only the following: 32 33 A. Trash, Water and Sewer Services. 34 B. Landscape Maintenance Services. 35 C. Maintenance and Repair Services (including preventative maintenance). 36 37 6of14 \\Filesmu2\Home2\lnouyeR\Pmjects \600 She11=ker\Sub Lea .doc I D. Cost for major repairs and/or replacements to the building and parking area that constitutes 2 capital improvements or replacements (such as roof replacement, parking lot resurfacing 3 and/or replacement). 4 Notwithstanding the provision of the Clause entitled (RENT) of this Sublease, COUNTY shall 5 reimburse CITY on an annual basis for CITY's actual costs of providing CITY Services to the Premises 6 listed above. For the purpose of making payments pursuant to this section, the Premises shall be 7 considered 32% of the rentable area of the Back Bay Science Center within which the Premises resides. 8 This percentage is calculated by dividing the size of the Premises (3,980 square feet) by the rentable area 9 of the Back Bay Science Center (12,409 square feet). Consequently, COUNTY shall only be responsible 10 for 32% of the costs of CITY's Services. 11 12 Within one hundred twenty (120) days following the July 1, 2008, and each anniversary date, CITY shall 13 furnish COUNTY with the following applicable to the Premises: 14 15 A. Summary Statement: CITY shall furnish a written ( "Summary Statement ") that includes in 16 detail the cost of each category of CITY Services for the pervious year. 17 18 B. Supporting Data: CITY shall provide ( "Supporting Data ") that includes copies of invoices and/or 19 work orders and proof of payment for each, neatly separated and organized by CITY Service 20 categories and date of service. 21 C. Budget: CITY shall furnish a written ( "Budget ") that includes in detail the estimated cost of 22 each category of CITY Services to be provided by CITY for the next fiscal year, which begins 23 on July 1. 24 25 COUNTY shall have the right to audit any Supporting Data provided by CITY and used in the 26 preparation of said claim. In the event COUNTY questions the adequacy of any portion of the 27 Supporting Data provided by CITY, and COUNTY requests additional Supporting Data, the due date for 28 payment of the adjustment shall be ninety (90) days from the date COUNTY receives the additional data 29 required to substantiate CITY's claim. In the event payment is due, said payment shall be made in a 30 lump sum within ninety (90) days following receipt of said Summary Statement and Supporting Data. 31 32 Should CITY fail to provide said Summary Statement and supporting documentation within one 33 hundred twenty (120) days from said anniversary date, any claim for reimbursement pursuant to this 34 clause shall be deemed waived by the CITY. Notwithstanding the foregoing, CITY Services shall not 35 include expenses for the cost of correcting building defects (latent or otherwise). 36 37 // 7of14 \\ Filesma2 \Home2 \lnouyeRTmjeccs\600 Shel1=1cer\Sub Leue.doc 1 14. ALTERATIONS (4.4 S) 2 3 COUNTY may make improvements and changes in the Premises, including but not limited to the 4 installation of fixtures, partitions, counters, shelving, equipment, seismic bracing, access and alarm 5 systems, telephone and computer network systems, and modifications to the utility services as deemed 6 necessary or appropriate. It is agreed that any such fixtures, partitions, counters, shelving, or equipment 7 attached to or placed upon the Premises by COUNTY shall be considered as personal property of 8 COUNTY, who shall have the right to remove same. COUNTY agrees that the Premises shall be left in 9 as good condition as when received, reasonable wear and tear excepted. 10 11 15. UTILITIES (5.2 N) 12 13 COUNTY shall be responsible for and pay, prior to the delinquency date, all charges for utilities 14 supplied to the Premises, except charges for water and sewer services, which charges shall be allocated 15 to COUNTY under the provisions of the clause entitled "REIMBURSEMENT FOR THE COSTS OF 16 CITY SERVICES." 17 18 16. INSURANCE (5.3 N) 19 20 Property/Fire Insurance: CITY shall obtain and keep in force during the term of this Sublease, and at 21 no cost or expense to COUNTY except as may be agreed upon pursuant to the "meet and confer" 22 provisions of this Clause, a policy or policies of property and fire insurance with extended coverage, 23 covering, to the same extent as other CITY -owned buildings, damage to the Premises and improvements 24 located on the Premises (including the full value of any improvements and fixtures owned by CITY 25 against all perils included within the classification of fire, extended coverage, vandalism, malicious 26 mischief, special extended perils ( "all risk" as such term is used in the insurance industry, including 27 earthquake and flood) and shall name the COUNTY as an additional insured. 28 29 Included in the policy or policies of property and fire insurance shall be a standard waiver of right of 30 subrogation against COUNTY by the insurance company issuing said policy or policies. CITY shall 31 provide COUNTY with evidence of compliance with these requirements. 32 33 CITY's insurance (a) shall be in a form satisfactory to COUNTY and carried with a company (or 34 companies) acceptable to COUNTY and licensed to do business in the state of California, (b) shall 35 provide that such policies shall not be subject to material alteration or cancellation without at least thirty 36 1(30) days prior written notice to COUNTY, and (c) shall be primary, and any insurance carried by 37 COUNTY shall be non - contributing. CITY's policy or policies, or duly executed certificates for them, 8of14 \ \Filesma2Wome2WouyeR\Projmis\600 Shellmake Sub Lease.doc I I shall be deposited with COUNTY prior to the Commencement Date of this Sublease, and prior to 2 renewal of such policies. 3 4 In the event that insurance premiums for the coverage described in this Clause increase by an amount in 5 excess of thirty percent (30 %) during any five (5) year period during the term of this Sublease, CITY and 6 COUNTY shall meet and confer in good faith in attempt to reach an agreement as to an amendment of 7 this Sublease that would establish the amount of any COUNTY contribution to the cost of insurance or 8 the extent to which the insurance requirements in this Clause should be modified. 9 10 17. INDEMNIFICATION (5.5 S) II 12 COUNTY shall defend, indemnify and save harmless CITY, its officers, agents, and employees, from 13 and against any and all claims, demands, losses, or liabilities of any kind or nature which CITY, its 14 officers, agents, and employees may sustain or incur or which may be imposed upon them for injury to 15 or death of persons, or damage to property as a result of, or arising out of, the sole negligence of 16 COUNTY, its officers, agents, employees, subtenants, invitees, or licensees, in connection with the 17 occupancy and use of the Premises by COUNTY. 18 19 Likewise CITY shall defend, indemnify and save harmless COUNTY, its officers, agents, and 20 employees from and against any and all claims, demands, losses, or liabilities of any kind or nature 21 which COUNTY, its officers, agents, and employees may sustain or incur or which may be imposed 22 upon them for injury to or death of persons, or damage to property as a result of, or arising out of the 23 sole negligence of CITY, its officers, agents, employees, invitees, or licensees, in connection with the 24 ownership, maintenance, or use of the Premises. 25 26 18. TAXES AND ASSESSMENTS (5.6 N) 27 28 All taxes and assessments which become due and payable upon the Premises shall be the full 29 responsibility of CITY, and CITY shall cause said taxes and assessments to be paid prior to the due date. 30 31 19. BUILDING AND SAFETY REQUIREMENTS (5.7 N) 32 33 During the full term of this Sublease, CITY, at CITY's sole cost, agrees to maintain the Premises in 34 compliance with all applicable laws, rules, regulations, building codes, statutes, and orders as they are 35 applicable on the date of this Sublease, and as they may be subsequently amended. 36 H 37 H 9of14 \\Files u2\Home2 \InouyeR\Pmjecls\600 Shellmaker\Sub Lme.doc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 Included in this provision is compliance with the Americans with Disabilities Act (ADA) and all other federal, state, and local codes, statutes, and orders relating to disabled access as they are applicable on the dates of this Sublease, and as they may be subsequently amended. CITY further agrees to maintain the Premises as a "safe place of employment," as defined in the California Occupational Safety and Health Act (California Labor Code, Division 5, Part 1, Chapter 3, beginning with Section 6400) and the Federal Occupational Safety and Health Act, where the provisions of such Act exceed, or supersede, the California Act, as the provisions of such Act are applicable on the date of this Sublease, and as they may be subsequently amended. Notwithstanding the foregoing, the COUNTY shall, as to the interior of the Water Quality Laboratory, be solely responsible for the compliance with the laws referenced above, and all other relevant laws, ordinances, rules or regulations pertaining to workplace safety or security. 20. TOXIC MATERIALS (5.9 S) COUNTY hereby warrants and represents that COUNTY will comply with all laws and regulations relating to the storage, use and disposal of hydrocarbon substances and hazardous, toxic or radioactive matter, including, but not limited to, those materials identified in Title 26 of the California Code of Regulations (collectively "Toxic Materials "). COUNTY shall be responsible for and shall defend, indemnify and hold CITY, its officers, directors, employees, agents, and representatives, harmless from and against all claims, costs and liabilities, including attorneys' fees and costs arising out of or in connection with the storage, use, and disposal of Toxic Materials on the Premises by COUNTY. If the storage, use, and disposal of Toxic Materials on the Premises by COUNTY results in contamination or deterioration of water or soil resulting in a level of contamination greater than maximum allowable levels established by any governmental agency having jurisdiction over such contamination, COUNTY shall promptly take any and all action necessary to clean up such contamination. Likewise, CITY hereby warrants and represents that CITY has in the past and will hereafter comply with all laws and regulations relating to the storage, use and disposal of hydrocarbon substances and hazardous, toxic or radioactive matter, including, but not limited to, those materials identified in Title 26 of the California Code of Regulations (collectively "Toxic Materials "). CITY shall be responsible for and shall defend, indemnify and hold COUNTY, its officers, directors, employees, agents, and representatives, harmless from and against all claims, costs and liabilities, including attorneys' fees and costs arising out of or in connection with the previous, current and future storage, use and disposal of Toxic Materials on the Premises (or building if the Premises comprises only a portion of said building) by CITY. If the previous, current and future storage, use, and disposal of Toxic Materials on the 10 of 14 \\ Filesmer2 \Home2WOUyeR\Projeas\600 shellmakerSub Lease.doc 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 .r Premises by CITY results in contamination or deterioration of water or soil resulting in a level of contamination greater than maximum allowable levels established by any governmental agency having jurisdiction over such contamination, CITY shall promptly take any and all action necessary to clean up such contamination. 21. LABOR CODE COMPLIANCE (6.10 S) CITY acknowledges and agrees that all work on physical modifications required to be performed as a condition precedent to the commencement of the term of this Sublease or any such fixture work performed by CITY at the request of COUNTY shall be governed by, and performed in accordance with, the provisions of Article 2 of Chapter 1, Part 7, Division 2 of the Labor Code of the State of California (Sections 1770, et seq.). These provisions are not applicable to modifications costing not more than $1,000. Pursuant to the provisions of Section 1773 of the Labor Code of the State of California, the Orange County Board of Supervisors has obtained the general prevailing rate of per diem wages and the general prevailing rate for holiday and overtime work in the locality applicable to this Sublease for each craft, classification, or type of workman needed to execute the aforesaid structural modifications from the Director of the State Department of Industrial Relations. CITY herein agrees that CITY shall post, or cause to be posted, a copy of such wage rates at the job site and shall pay the adopted prevailing wage rates. Copies of said prevailing wage rates may be obtained from COUNTY's Manager, HCA/Facilities Operations. In addition, CITY shall provide continuously updated certified payroll records to COUNTY. Except as expressly set forth in this Sublease, nothing herein is intended to grant authority for CITY to perform construction work on space currently Subleased by COUNTY or for which COUNTY has entered into a Sublease or Sublease amendment. 22. RIGHT TO WORK AND MINIMUM WAGE LAWS (6.13 S) In accordance with the United States Immigration Reform and Control Act of 1986, CITY shall require its employees that directly or indirectly service the Premises or terms and conditions of this Sublease, in any manner whatsoever, to verify their identity and eligibility for employment in the United States. CITY shall also require and verify that its contractors or any other persons servicing the Premises or terms and conditions of this Sublease, in any manner whatsoever, verify the identity of their employees and their eligibility for employment in the United States. 11 of 14 \ \Filesmer2 \Home2gnouyeR\Projects\600 Shellmaker\Sub Le e.doc , r � I Pursuant to the United States of America Fair Labor Standard Act of 1938, as amended, and State of 2 California Labor Code, Section 1178.5, CITY shall pay no less than the greater of the Federal or 3 California Minimum Wage to all its employees that directly or indirectly service the Premises, in any 4 manner whatsoever. CITY shall require and verify that all its contractors or other persons servicing the 5 Premises on behalf of the CITY also pay their employees no less than the greater of the Federal or 6 California Minimum Wage. 7 8 CITY shall comply and verify that its contractors comply with all other Federal and State of California 9 laws for minimum wage, overtime pay, record keeping, and child labor standards pursuant to the 10 servicing of the Premises or terms and conditions of this Sublease. 11 12 Notwithstanding the minimum wage requirements provided for in this clause, CITY, where applicable, 13 shall comply with the prevailing wage and related requirements, as provided for in the Clause (LABOR 14 CODE COMPLIANCE) of this Sublease. 15 16 23. DEFAULTS AND REMEDIES (6.8 S) 17 18 The occurrence of any of the following shall constitute an event of default: 19 20 • Failure to pay any installment of any monetary amount due and payable hereunder; 21 • Failure to perform any obligation, agreement or covenant under this Sublease. 22 23 In the event of any non - monetary breach of this Sublease by COUNTY, CITY shall notify COUNTY in 24 writing of such breach, and COUNTY shall have fifteen (15) days in which to initiate action to cure said 25 breach. 26 27 In the event of any non - monetary breach of this Sublease by CITY, COUNTY shall notify CITY in 28 writing of such breach and CITY shall have fifteen (15) days in which to initiate action to cure said 29 breach. 30 31 In the event of any monetary breach of this Sublease by COUNTY, CITY shall notify COUNTY in 32 writing of such breach, and COUNTY shall have fifteen (15) days in which to cure said breach, unless 33 specified otherwise within this Sublease. 34 35 In the event of any monetary breach of this Sublease by CITY, COUNTY shall notify CITY in writing of 36 1 such breach, and CITY shall have fifteen (15) days in which to cure said breach, unless specified 37 otherwise within this Sublease. 12 of 14 \\Fileserve2\Hon 2\InouyeR\Projmts \600 She11=ker\Sub Lease.doc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 24. NOTICES (8.1 S) All written notices pursuant to this Sublease shall be addressed as set forth below or as either party may hereafter designate by written notice and shall be deemed delivered upon personal delivery, delivery by facsimile machine, or seventy-two (72) hours after deposit in the United States Mail. TO: CITY City of Newport Beach City Manager's Office 3360 Newport Boulevard P.O. Box 1768 Newport Beach, CA 92658 -8915 Attention: Assistant City Manager 25. ATTACHMENTS (8.2 S) TO: COUNTY County of Orange Health Care Agency HCA/Facilities Operations 405 W.5th Street, Suite 610 Santa Ana, California 92701 Attention: Manager This Sublease includes the following, which are attached hereto and made a part hereof: I. GENERAL CONDITIONS II. EXHIBITS A. Exhibit A: Description - Premises B. Exhibit B: Plot Plan — .Premises C. Exhibit C: Plans and Specifications // // // // // // // // 1/ // // // 13 of 14 \T ilesmu2 \Home2 \lnouyeR\Projecu\600 ShellmakeSub Lease.doc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 J IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written. APPROVED AS TO FORM: CITY OFFICE OF THE COUNTY COUNSEL ORANGE COUNTY, CALIFORNIA CITY OF NEWPORT BEACH BY: I Vti`5v"6 A '0 -, � � �`_ BY: Deputy Mayor DATE: � �7"_ DATE: RECOMMENDED FOR APPROVAL: Resources & Development Management Department SIGNED AND CERTIFIED THAT A COPY OF THIS DOCUMENT HAS BEEN DELIVERED TO THE CHAIRMAN OF THE BOARD. DARLENE J. BLOOM Clerk of the Board of Supervisors of Orange COUNTY, California COUNTY COUNTY OF ORANGE INN 14 of 14 \\Files a2 \Home2 \lnouyeR\Pmjwm%00 ShellmaWSub Leas .dm Chairman, Board of Supervisors I GENERAL CONDITION(S) 2 3 1. SUBLEASE ORGANIZATION (9.1 S) 4 5 The various headings in this Sublease, the numbers thereof, and the organization of the Sublease into 6 separate sections and paragraphs are for purposes of convenience only and shall not be considered 7 otherwise. 8 9 2. INSPECTION (9.2 S) 10 11 CITY or his authorized representative shall have the right at all reasonable times and upon reasonable 12 advance notice to COUNTY to inspect the Premises to determine, if COUNTY is complying with all the 13 provisions of this Sublease. 14 15 3. SUCCESSORS IN INTEREST (9.3 S) 16 17 Unless otherwise provided in this Sublease, the terms, covenants, and conditions contained herein shall 18 apply to and bind the heirs, successors, executors, administrators, and assigns of all the parties hereto, all 19 of whom shall be jointly and severally liable hereunder. 20 21 4. DESTRUCTION OF OR DAMAGE TO PREMISES (9.4 S) 22 23 "Partial Destruction" of the Premises shall mean damage or destruction to the Premises, for which the 24 repair cost is less than 25% of the then replacement cost of the Premises (including tenant 25 improvements), excluding the value of the land. 26 27 "Total Destruction" of the Premises shall mean damage or destruction to the Premises, for which the 28 repair cost is 25% or more of the then replacement cost of the Premises (including tenant 29 improvements), excluding the value of the land. 30 31 In the event of a Partial Destruction of the Premises, CITY shall immediately pursue completion of all 32 repairs necessary to restore the Premises to the condition which existed immediately prior to said Partial 33 Destruction. Said restoration work (including any demolition required) shall be completed by CITY, at 34 CITY's sole cost, within sixty (60) days of the occurrence of said Partial Destruction or within an 35 extended time frame as may be authorized, in writing, by COUNTY. The Partial Destruction of the 36 Premises shall in no way render this Sublease and/or any option to purchase null and void; however, rent 37 payable by COUNTY under the Sublease shall be abated in proportion to the extent COUNTY's use and 1 of 4 %\Filese a2%Home2UnouyeR\Projem\600 Shellmaker\Sub Lease.doe GENERAL CONDITIONS I occupancy of the Premises is adversely affected by said Partial Destruction, demolition, or repair work 2 required thereby. Should CITY fail to complete necessary repairs, for any reason, within sixty (60) days, 3 or other time frame as may be authorized by COUNTY, COUNTY may, at COUNTY's sole option, 4 terminate the Sublease or complete necessary repair work and deduct the cost thereof, including labor, 5 materials, and overhead from any rent thereafter payable. 6 7 In the event of Total Destruction of the Premises or the Premises being legally declared unsafe or unfit 8 for occupancy, this Sublease and/or any option shall in no way be rendered null and void and CITY shall 9 immediately instigate action to rebuild or make repairs, as necessary, to restore the Premises (including 10 replacement of all tenant improvements) to the condition which existed immediately prior to the 11 destruction. All rent payable by COUNTY shall be abated until complete restoration of the Premises is 12 accepted by COUNTY. In the event CITY refuses to diligently pursue or is unable to restore the 13 Premises to an occupiable condition (including replacement of all tenant improvements) within 180 days 14 of the occurrence of said destruction or within an extended time frame as may be authorized, in writing, 15 by COUNTY, COUNTY may, at COUNTY's sole option, terminate this Sublease or complete the 16 restoration and deduct the entire cost thereof, including labor, materials, and overhead from any rent 17 payable thereafter. 18 19 Further, CITY, at COUNTY's request, shall provide a suitable, COUNTY- approved temporary facility 20 ( "Facility") for COUNTY's use during the restoration period for the Premises. The Facility may be 21 Subleased, at market rate, under a short term Sublease, for which the COUNTY will reimburse CITY the 22 cost thereof, on a monthly basis. 23 24 5. AMENDMENT (9.5 S) 25 26 This Sublease sets forth the entire agreement between CITY and COUNTY and any modification must 27 be in the form of a written amendment. 28 29 6. PARTIAL INVALIDITY (9.6 S) 30 31 If any term, covenant, condition, or provision of this Sublease is held by a court of competent 32 jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions hereof shall remain in 33 full force and effect and shall in no way be affected, impaired, or invalidated thereby. 34 35 7. CIRCUMSTANCES WHICH EXCUSE PERFORMANCE (9.7 S) 36 37 1 If either party hereto shall be delayed or prevented from the performance of any act required hereunder 2 of 4 \\Filesmer2\H=e2Vnouyek \Projects \600 SheU=ker\.Sub Lease.doc GENERAL CONDMONS I by reason of acts of God, performance of such act shall be excused for the period of the delay; and the 2 period for the performance of any such act shall be extended for a period equivalent to the period of such 3 delay. Financial inability shall not be considered a circumstance excusing performance under this 4 Sublease. 5 6 8. STATE AUDIT (9.8 S) 7 8 Pursuant to and in accordance with Section 8546.7 of the California Government Code, in the event that 9 this Sublease involves expenditures and/or potential expenditures of State funds aggregating in excess of 10 ten thousand dollars ($10,000), CITY shall be subject to the examination and audit of the Auditor 11 General of the State of California for a period of three years after final payment by COUNTY to CITY 12 under this Sublease. The examination and audit shall be confined to those matters connected with the 13 performance of the contract, including, but not limited to, the costs of administering the contract. 14 15 9. WAIVER OF RIGHTS (9.9 S) 16 17 The failure of CITY or COUNTY to insist upon strict performance of any of the terms, conditions, and 18 covenants in this Sublease shall not be deemed a waiver of any right or remedy that CITY or COUNTY 19 may have, and shall not be deemed a waiver of any right or remedy for a subsequent breach or default of 20 the terms, conditions, and covenants herein contained. 21 22 10. HOLDING OVER (9.10 S) 23 24 In the event COUNTY shall continue in possession of the Premises after the term of this Sublease, such 25 possession shall not be considered a renewal of this Sublease but a tenancy from month to month and 26 shall be governed by the conditions and covenants contained in this Sublease. 27 28 11. HAZARDOUS MATERIALS (9.11 N) 29 30 CITY warrants that, to its knowledge, the Premises is free and clear of all hazardous materials or 31 substances. COUNTY acknowledges that CITY has never been in possession of the Premises and has 32 never conducted any survey or test of the Premises to determine if any hazardous materials or substances 33 are present. 34 35 12. EARTHQUAKE SAFETY (9.12 S) 36 37 CITY warrants that the Premises is in compliance with all applicable seismic safety regulations and 3 of 4 \\Fileserver2 \Hon e2\lnouyeR\Projwts \600 Shellm kelSub Leas .dm GENERAL CONDITIONS r i I building codes. 2 3 13. QUIET ENJOYMENT (9.13 S) 4 5 CITY agrees that, subject to the terms, covenants and conditions of this Sublease, COUNTY may, upon 6 observing and complying with all terms, covenants and conditions of this Sublease, peaceably and 7 quietly occupy the Premises. 8 9 14. WAIVER OF JURY TRIAL. (9.15 S) 10 I I Each party acknowledges that it is aware of and has had the advice by Counsel of its choice with respect 12 to its rights to trial by jury, and each party, for itself and its successors and assigns, does hereby 13 expressly and knowingly waive and release all such rights to trial by jury in any action, proceeding or 14 counterclaim brought by any party hereto against the other (and/or against its officers, directors, 15 employees, agents, or subsidiary or affiliated entities) on or with regard to any matters whatsoever 16 arising out of or in any way connected with this agreement and/or any claim of injury or damage. 17 18 15. GOVERNING LAW AND VENUE. (9.16 S) 19 20 This agreement has been negotiated and executed in the State of California and shall be governed by and 21 construed under the laws of the State of California. In the event of any legal action to enforce or 22 interpret this agreement, the sole and exclusive venue shall be a court of competent jurisdiction located 23 in Orange County, California, and the parties hereto agree to and do hereby submit to the jurisdiction of 24 such court, notwithstanding Code of Civil Procedure section 394. 25 26 16. TIME (9.17 S) 27 28 Time is of the essence of this Sublease. 29 // 30 // 31 // 32 33 34 35 36 37 4 of 4 \\ Filesma2Wome2\lnouyeR\Pmjects\600 Shellmeka\Sub Leme.doc GENERAL CONDITIONS LEASE DESCRIPTION Project No.: 220 Date: November 14, 2006 Project: Water Quality Laboratory at Written By: Ronald Inouye Back Bay Science Center All the Premises shown crosshatched on a plot plan marked Exhibit B, attached hereto and made a part hereof, comprising of 3,980 square feet of the first floor of the Back Bay Science Center, located at 600 Shellmaker Road, Newport Beach, County of Orange, State of California, together with twelve (12) free and non - exclusive parking spaces as shown on Exhibit B. NOT TO BE RECORDED Exhibit A % V m TRML CONSTRUMON STAGINGAREA (NIQ S DIRECTED true north Plot Plan 220 Prepared By: COUNTY OF ORANGE Water Quality Laboratory Ronald Inouye RDMD/REAL ESTATE Back Bay Science Center 600 Shellmaker Road Newport Beach, CA Date: 11/14/2006 EXHIBIT B rSERVICE YARD S STO Tol V m TRML CONSTRUMON STAGINGAREA (NIQ S DIRECTED true north Plot Plan 220 Prepared By: COUNTY OF ORANGE Water Quality Laboratory Ronald Inouye RDMD/REAL ESTATE Back Bay Science Center 600 Shellmaker Road Newport Beach, CA Date: 11/14/2006 EXHIBIT B Y Exhibit C Plans and Specifications Water Quality Laboratory The attached plans being executed by the Manager, Facilities Operations/Health Care Agency are final plans. Original plans were not approved by the Manager, Facilities Operations prior to construction. Manager, Facilities Operations Date Health Care Agency County of Orange 405 W. Fifth Street, Suite 610 Santa Ana, CA 92701 SUBLEASE EXHIBITS NOT ATTACHED AVAILABLE IN DAVE KIFF'S OFFICE City of Newport Beach BUDGET AMENDMENT 2006 -07 EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates X Increase Expenditure Appropriations AND Transfer Budget Appropriations SOURCE: from existing budget appropriations X from additional estimated revenues from unappropriated fund balance EXPLANATION: This budget amendment is requested to provide for the following: NO. BA- 07BA -054 AMOUNT: $100,000.00 Increase in Budgetary Fund Balance Decrease in Budgetary Fund Balance X No effect on Budgetary Fund Balance To increase expenditure appropriations and revenue estimates for increases in the scope of construction at the Back Bay Science Center to be funded by the Department of Fish and Game. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Amount Fund Account Description Debit Credit R REVENUE ESTIMATES (3601) Fund /Division Account Description 457 4879 Back Bay Science Ctr - Dept of Fish & Gam $100,000.00 EXPENDITURE APPROPRIATIONS (3603) Division Number Account Number Division Number Account Number Signed: Signed: Administrative Approval: City Manager $100,000.00 Automatic 3 -7 -07 it Date - tf(' to Signed: City Council Approval: City Clerk Date Description Division Number 7457 Back Bay Science Center Account Number C0310600 Back Bay Science Center Division Number Account Number Division Number Account Number Division Number Account Number Division Number Account Number Signed: Signed: Administrative Approval: City Manager $100,000.00 Automatic 3 -7 -07 it Date - tf(' to Signed: City Council Approval: City Clerk Date