HomeMy WebLinkAbout17 - Marinapark Rental AgreementCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 17
January 14, 2003
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Robin Clauson, Assistant City Attorney
(949) 944 -3131 or rclauson @city.newport- beach.ca.us
Dave Kiff, Assistant City Manager
(949) 644- 3002or dkiff @city.newport- beach.ca.us
SUBJECT: Rental Agreement with Tenants of Marinapark
RECOMMENDATION:
Approve a one -year (January 14, 2003 through January 13, 2004) Rental Agreement to
lease spaces for mobilehomes on City property known as Marinapark (between 15th and
18th Street on the Balboa Peninsula).
DISCUSSION:
Brief Background
In 1985, the City Council approved a 15 -year Lease for spaces in the Marinapark Mobile
home site on City property located between 15`h Street and 18`h Street on the Balboa
Peninsula. The 1985 Lease expired in March of 2000. The Lease was extended for an
additional 2 years through March of 2002 (the "2000 Extension "). In early 2002, the City
embarked on negotiations with the tenants and the tenants' legal counsel to negotiate a
Second Extension of the 1985 Lease. At the conclusion of negotiations, the City Council
approved the Second Extension on May 28, 2002.
That same evening, the City Council also approved a rent increase to be effective
September 1, 2002. We based the rent increase upon an Appraisal of Fair Rental
Value (dated April 1, 2002) conducted by Mr. William Hansen of William Hansen and
Associates. Following 90 -day notice of increased rent, we increased rent on 9 -01 -02 as
shown in Exhibit A:
Marinapark Leases
January 14, 2003
Page 2
Exhibit A
As a reminder, Bay- adjacent lots are As or Bs. Lots one coach in from the Bay are Cs
and Ds. Lots two coaches in from the Bay are Es (see Exhibit B).
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5 T� PLAN
As a reminder, Bay- adjacent lots are As or Bs. Lots one coach in from the Bay are Cs
and Ds. Lots two coaches in from the Bay are Es (see Exhibit B).
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CIVI LEGION M I A'AIZ COh'IPL X
5 T� PLAN
Rejection of the 2nd Amendment and Extension. Immediately following the Council's
May 28, 2002 meeting, we delivered the Second Extension to each of the tenants.
Several of the tenants then retained a new attorney (George Kaelin of Endeman,
Lincoln, Turek & Heater) to review the Second Extension that had been approved by
their prior legal counsel (Cary Lowe of Jenkens and Gilchrist, LLP). Mr. Kaelin advised
the tenants -- and they concurred -- to reject the Second Extension and requested that
the City reopen negotiations to change many of the terms and conditions of the Lease.
Marinapark Leases
January 14, 2003
Page 3
The Second Extension of the 1985 Lease was rejected by the tenants and has no
further effect. The Tenants have occupied the spaces on a holdover basis under the
2000 Amendment.
Upon advice of City's outside legal counsel, Mr. Terry Dowdell, and with his assistance,
we have prepared and negotiated the terms of a new one -year Rental Agreement,
which, if approved by the City Council tonight, will be effective January 14, 2003 through
January 13, 2004. The Rental Agreement will reflect rental amounts that Council
approved May 28, 2002 and which took effect September 1, 2002. A one -year
agreement (shown as Attachment A), as opposed to an agreement of a longer term,
will provide the Council with flexibility as it considers options for reuse of the property.
The major changes between the May 28, 2002 version of the 2nd Amendment and
Extension and this Rental Agreement are as follows:
• The Rental Agreement has a single one -year term that expires on January 13,
2004. The previously proposed Extension had one one -year term with two one -
year options.
• Deletion of language expressly waiving tenants' rights to relocation benefits.
Our legal counsel and the tenants' counsel have agreed upon these changes
Additional Background & History
Marinapark sits today on a 4.34 acre parcel at 1770 West Balboa Boulevard on the
Balboa Peninsula between 18th and 15th Streets. Marinapark has 58 mobile home
spaces and 924' of beach frontage facing Newport Bay.
The City acquired Marinapark from Pacific Electric Land Company in 1919. The initial
use of the property after purchase was for a city campground (where campers paid
75¢ /day for waterfront camp areas and 50¢ /day for interior spaces) and later (in
approximately 1955) to a "deluxe trailer court" for 120 trailers. A later renovation of
Marinapark to accommodate larger trailers put the park at today's capacity of 58 mobile
homes. Today 56 of the coach spaces are occupied with a coach. The City contracts
with a private property management firm -- Bendetti Property Management -- to manage
the park. Bendetti has a manager and an assistant manager onsite.
The City and the residents at Marinapark ( "Lessees ") have entered into a series of
leases of varying terms relating to the Lessees' occupancy at Marinapark. A summary
follows:
• 1973 Lease. The 1973 Lease extended an existing lease to September 30, 1977 at
which time all Lessees would "unconditionally and without contest vacate the
premises without contest, legal and otherwise... Lessees further agree to waive any
Marinapark Leases
January 14, 2003
Page 4
relocation assistance or any other assistance from Lessor resulting from vacating
the premises." The 1973 Lease also dictated a new rental schedule through 1977.
• 1976 Lease. A new 1976 Lease extended the Marinapark Lessees' tenancy through
September 30, 1985. The 1976 Lease offered an extension of five years "should the
City Council find and determine ... that Marinapark is not required for any public trust
purpose or other public purpose..." Rents at the time were set by the Lease and
deemed to be "the fair market rental value" for the spaces.
• 1985 Lease. The City Council stated its intent that Marinapark should be converted
"to a public recreation area" upon expiration of a new 1985 Lease. The 1985 Lease
— with an expiration date of March 15, 2000 — said that "the most significant rights
obtained by Lessee, and given up by City..." were:
Lessee's long -term right to occupy the Premises...
- Lessee's payment of "moderate rent ... and the advantage of limited rental
increases in the future, while City gives up the right to charge higher rents initially
and the right to impose future rental increases in excess of the cost -of- living
index..."
The 1985 Lease also outlines the rights and benefits "given up" by the Lessee,
including:
City's right to convert Marinapark to a public recreational use at Lease
expiration; and
The waiver of any right of the Lessee to receive relocation benefits "or any other
form of relocation assistance."
. 2000 Amendment and Extension of Lease. On February 8, 2000, the City Council
authorized the City to offer an amendment and extension ( "Lease Extension ") to the
1985 Lease. The Lease Extension acknowledged several things — some new,
others a restatement of information in the 1985 Lease. The Lease Extension
acknowledged (among other things):
Uncertainty over the tidelands status of the land upon which the park sits —
arguably, if the land is State -owned and City- managed "tidelands," then the
residential uses at Marinapark may not be appropriate, because tidelands are
intended to be visitor - serving;
The City's (at that time) review of up to eight responses to a Request for
Proposals (RFP) for future uses and development of Marinapark, some of which
envisioned the continuation of the mobilehome use; and
The "substantial and important benefit" of the economic and personal rights of
the Lessees under the 1985 Lease, including the Lessees' payment of
moderated rent and the ongoing waiver of Lessees' claims to any relocation
benefits.
Marinapark Leases
January 14, 2003
Page 5
• Proposed (but later rejected) 2002 2 "d Amendment and Extension. As noted,
while the Council approved a 2002 2nd Amendment and Extension in May 2002, the
tenants and their second legal counsel rejected it. The 2nd Extension would have
provided for a one -year term with two one -year options exercisable at the City's
discretion to March 15, 2005.
The Council's action that night also allowed for the rent increase mentioned above
and for the City to apply additional rent increases of up to 1.50 times the previous
owner's rent to new tenants upon sale of the coach and assignment of the Lease.
The rent increase authorized in May 2002 took effect in September 2002. No
coaches have transferred ownership (except one coach purchased in December
2002 by the City itself) since the Council's May 2002 action.
With the September 1, 2002 rent increase (and less the management fee paid to
Bendetti Property Management), the City receives about $800,000 in revenue annually
from Marinapark.
Environmental Review: Section 15061 of the CEQA Guidelines provides that no
environmental review is necessary where it can be seen with certainty that there is no
possibility the activity will have a significant effect on the environment. This rental
agreement is a continuation of existing conditions with no change in the physical
environment.
Public Notice: No specific public notice is required for approval of this agreement.
The tenants have been notified through their attorney that this item has been placed on
agenda.
Prepared by:
Robin Clauson, Assistant City Attorney
C�-_ LvM
Dave ltiff, ssistant City Manage
Attachment: Attachment A -- Proposed Rental Agreement
H:1My DocumentsWarinapark -- 2003 \03 -01 -14 Al MP Rental Agreements.doc
MARINAPARK
1770 WEST BALBOA BOULEVARD
NEWPORT BEACH, CALIFORNIA 92663
RENTAL AGREEMENT
This Rental agreement ( "Agreement') is entered into this day of
2003, by and between the CITY OF NEWPORT BEACH, a municipal
corporation and Charter City (City or Owner) and
(Tenant), and is made with reference to the recital
and acknowledgments, the materiality and existence of which is stipulated and agreed
by the Parties:
A. City is the owner, and is in possession and control, of a parcel of real property,
located northerly of Balboa Boulevard and between approximately 15th Street
and 18th Street in Newport Beach, commonly known as Marinapark, generally
described in Exhibit "A" (Property).
B. The City Council actively solicited proposals for non - residential uses at
Marinapark and, as of February 2002, has deemed a non - residential use of
Marinapark the most appropriate land use for the property. The City is currently
investigating an alternative use of the property and a decision to change the
use of the property may be made at any time. Notification of any decision to
change the use of the property will be given in accordance with the Mobilehome
Residency Law, Section 798.56 (g) and other applicable law..
C. California State Lands Commission staff has asserted that a portion of the
Property consists of tidelands. City and Tenant have, in the past, claimed that
all or substantially all, of the Property leased for mobilehome residency
purposes is uplands owned by City, and City and Tenant have discussed
various bases to support that claim.
D. The State Lands Commission staff has asserted that permanent residential use
of tidelands is inconsistent with State statutory, decisional and constitutional
law. However, City and Tenant may dispute that claim.
E. The terms and conditions of this Agreement are consistent, with the provisions
of the Mobilehome Residency Law (Section 798 et. seq. of the California Civil
Code).
F. You acknowledge having received, read and understood a copy of: The
attached Mobilehome Residency Law and Park Rules and Regulations each of
which is incorporated by this reference.
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G. The terms of residency shall be solely governed by law and by the terms of this
agreement. No salesperson, broker, financial institution or any person not
specifically employed by owner has the authority or right to make statements on
behalf of City. The resident managers have no authority to modify this
agreement. This is the exclusive agreement between City and Tenant.
H. A new Tenant warrants that Tenant has read, reviewed and executed a written
disclosure statement provided by the management at least three (3) days prior
to the execution of this rental agreement.
EQUAL HOUSING OPPORTUNITY: WE DO BUSINESS IN ACCORDANCE
WITH THE STATE AND FEDERAL FAIR HOUSING LAWS. IT IS ILLEGAL TO
DISCRIMINATE AGAINST ANY PERSON BECAUSE OF RACE, COLOR,
RELIGION, SEX, SEXUAL ORIENTATION, HANDICAP OR DISABILITY,
FAMILIAL STATUS SOURCE OF INCOME, NATIONAL ORIGIN OR
ANCESTRY OR FOR ARBITRARY REASONS UNDER STATE LAW.
NOW, THEREFORE, the Parties do hereby mutually agree as follows:
1. DESCRIPTION OF PREMISES:
The City hereby rents to the Tenant, and Tenant accepts the rental of space
number as shown on Exhibit "A" (Premises) in Marinapark, 1770 West
Balboa Boulevard, Newport Beach, California 92663.
2. TERM: (select one option as provided)
Q The tenancy created under this Agreement shall be on a month -to -month
basis and shall commence on January 14, 2003.
Q The tenancy created under this Agreement shall be for a period of twelve
(12) months and shall commence on January 14, 2003, unless sooner
terminated in accordance with the terms of this Agreement;
Q The tenancy created under this Agreement shall be for a period of
months (from one month to twelve months) and shall commence on
January 14, 2003, unless sooner terminated in accordance with the
terms of this Agreement.
Rental agreements of varying duration including a 12 month or less and
month -to -month have been offered. It is acknowledged that this
agreement is chosen from such alternatives. The 12 month or less
agreement is and remains a continuing option for the tenant upon
expiration of the rental agreement under which the tenant had been
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residing until the said expiration of its term.
3. RENT:
A. The monthly rent is $ per month. Tenant shall pay as rent to Owner
without deduction or offset (without waiving Civil Code Section 1942) and on
the first day of each month: (1) the monthly rent (as it may be adjusted as
specified herein); (2) all utility charges billed to Tenants by Owner during each
month as described herein (please note: utility rates for utilities billed to Tenant
by Owner are set by the Public Utilities Commission and other governmental
agencies. Therefore, charges for these utilities may be increased at any time in
accordance with the rates established by these entities and no advance notice
of increases in such rates will be given to Tenant by Owner); and, (3) guest
charges (with applicable exceptions pursuant to the Mobilehome Residency
Law), of $ per day for any guest who stays more than twenty
consecutive days or more than thirty days in a calendar year.
B. Owner may charge a reasonable fee for services relating to the maintenance of
the land and premises upon which the Mobilehome is situated in the event the
Tenants fail to maintain such land or premises in accordance with the Rules
And Regulations of the Park after written notification to the Tenants and the
failure of the Tenants to comply within fourteen (14) days. Tenants are not
entitled to offset or deduct rent, or reduce the amount of rent by reason of any
claim against Owner, unless by order within the final judgment of a court of
competent jurisdiction. Such charges shall be billed as further rent or as a
permissible fee at owner's option, and added to the monthly rent billing payable
on the first of the month following the date of completion of the work performed
by the management.
C. Tenants shall pay when due all real property taxes attributable to Tenant's
mobilehome and all improvements made by Tenant to Tenant's mobilehome
space and all municipal, county, stale, federal and other taxes, fees,
assessments and levies (except Owner's income taxes and franchise taxes)
levied upon the Premises, or Tenant or Owner, in connection with the use and
occupancy of the Premises by Tenant.
D. All rent payable hereunder shall be paid in advance on the first day of each
month together with all other charges set forth on the monthly billing statement,
in. full without deduction, offset, reduction, discount, claim of collateral debt or
other obligation owing. Specifically, Tenants are not entitled to offset or deduct
rent, or reduce the amount of rent by reason of any claim against Owner by
reason of any independent, collateral or other legal obligation or dispute. The
entitlement to rent shall not be deemed cross - collateralized with or against any
other legal obligation or dispute for which Owner is claimed to be responsible to
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Tenants. Payment shall be in the form of personal check, money order, or
certified funds. Owner may however demand all prospective payments in cash,
on not less than at least ten (10) days advance written notice. If the rent is not
timely paid, demand notices to pay or quit may be served as soon as legally
permitted. Rent and all other charges will be late if not paid in full by 5:00 p.m.
on the 5th day of each month. Tenants must pay a late charge whenever rent
or other charges are paid more than five (5) days after they are due in the
amount of Thirty -Five dollars ($35.00) and a handling charge whenever a check
is returned for any reason in the amount of Twenty -five dollars ($25.00).
Payment will be made at the Park Office.
E. Monies received for rent or other charges may be applied to the earliest
outstanding sums ( "first in, first out ") and to utilities first at Owner's discretion,
despite payer's instructions or endorsements purporting to restrict application of
payment to a specific month or time period, or purporting to pay -in -full, satisfy
or extinguish the amount or arrearage due or portion thereof. Partial payments
of monthly rents or other charges may be rejected and constitute a breach of
this agreement. However, tender of a part payment shall not be construed as
an accord and satisfaction or release of any indebtedness if accepted, despite
Tenant's purported instructions or restrictive endorsements to the contrary.
Acceptance of a part payment is not a waiver of the balance billed or due. The
period of time prior to the imposition of the late charge is not a grace period or
option to pay late.
4. UTILITIES:
A. Owner shall provide and separately bill to Tenant the following utilities: natural
gas at the beginning rate of $22.00. Water usage is included in monthly rent.
B. City shall not provide electricity or telephone service. Tenant shall make
arrangements directly with the utilities furnishing these services and pay such
utilities directly for them. Tenant shall contract with and pay directly for all other
utilities it may require. The charge for gas shall be paid when rent is due, and
is in addition to the obligation to pay rent. In the event Tenant fails to pay the
charge for water or gas service within ten (10) days after the amount is due,
Tenant shall pay to City a late charge of thirty -five dollars ($35.00). In the event
City provides both master meter and submeter service of utilities to Tenant, the
cost of the charges for each billing period shall be separately stated and shall
contain opening and closing readings of the meter. In such event, City shall
post rates charged by the appropriate utility in a conspicuous place. The
charge to Tenant for gas service shall be the amount of the charges paid by
Tenant as of June 1, 2002 ($22.00 per month). The charges for gas service
may be increased or decreased on or after the first day of October. Owner
further reserves the right to charge for any other separately - billed or
submetered utilities or for services actually rendered under Civil Code §798.32
(without reduction of rent or other charges) or Civil Code §798.41 (with
reduction in rent equal to cost of initial separate billing amounts). Such amounts
shall also be deemed to constitute further monthly rent.
C. Owner shall not be liable for any loss or injury, and Tenant shall not be entitled
to any abatement or reduction of rent by reason of Owner's failure to furnish
any of the foregoing utilities when such failure is caused by accident, breakage,
repairs, strikes, acts of third parties, labor disputes or by any other cause,
similar or dissimilar beyond the reasonable control of Owner. (Please Note: The
provisions of the paragraph below entitled "Indemnification" apply to this
paragraph.)
D. Tenant shall not connect, except through existing electrical or natural gas
outlets or water pipes on the Premises any apparatus or device for the purpose
of using electric current, natural gas, water or other utility.
E. PLEASE READ CAREFULLY! FROM TIME TO TIME, THE SERVING PUBLIC
UTILITY MAY SUFFER OR CAUSE POWER OUTAGES TO THE PREMISES.
POWER OUTAGES ARE CAUSED BY MANY FACTORS: Storms, wind, heat,
ice and high demand are the most common causes of widespread power
outages; high power demand during heat waves and other times of unusually
high demand may overburden electric cables, transformers, and other electrical
equipment of Southern California Edison which then melt and fail.
F. CAUTION: INTERMITTENT POWER INTERRUPTIONS ARE FOLLOWED BY
RESTORATION OF ELECTRICITY WHICH MAY CAUSE SURGES IN
ELECTRICAL POWER. POWER SURGES OFTEN AFFECT UNPROTECTED
CONSUMER HOUSEHOLD APPLIANCES SUCH AS ELECTRONIC
EQUIPMENT (COMPUTERS, STEREOS, RADIOS, ETC.). THE OWNER IS
NOT RESPONSIBLE FOR THE DISRUPTIONS, OUTAGES, SURGES, OR
OTHER IRREGULARITIES IN THE PROVISION OF ELECTRICAL SERVICE
TO THE PREMISES WHICH ARE CAUSED BY SOUTHERN CALIFORNIA
EDISON. TENANT AGREES THAT OWNER IS FULLY AND
UNCONDITIONALLY RELEASED AND DISCHARGED FROM ANY AND ALL
LIABILITY WHICH ARISES AS A RESULT OF THE ACTS AND OMISSION OF
THE UTILITY COMPANY. IT IS THE RESPONSIBILITY OF THE TENANT,
EXCLUSIVELY, TO EXERCISE PRUDENT CARE FOR PROPERTY WHICH
MAY BE AFFECTED BY DISRUPTIONS, OUTAGES, SURGES, OR OTHER
IRREGULARITIES IN THE PROVISION OF ELECTRICAL SERVICE TO THE
PREMISES. ACCORDINGLY, TENANT HAS THE RESPONSIBILITY TO
TAKE THE FOLLOWING PRECAUTIONS:
1. Tenant has the responsibility, always, TO USE SURGE PROTECTORS
FOR THE PROTECTION OF TENANT'S PROPERTY, especially for
computer equipment, stereo equipment, radios and other electrical
appliances, devices and products which may be affected by disruptions,
outages, surges, or other irregularities in the provision of electrical
service. Unplug heat - producing items such as irons or portable heaters
to prevent a fire when power is restored.
2. Turn off and unplug all appliances and other electrical equipment, except
for a single light bulb, which will be the signal your power has been
restored. This helps ensure against circuit overloading, which could
delay restoration of service.
3. In the event of an outage, do not use candles for lighting during an
outage, since they create a fire hazard. Use flashlights or battery-
powered lanterns instead.
4. Check the neighborhood to see if others have their power. If they do, the
problem may be a "tripped" circuit breaker.
G. IT IS RECOMMENDED THAT TENANT OBTAIN A HOMEOWNER'S
IN POLICY TO COVER DAMAGE, LOSS AND LIABILITY
ASSOCIATED WITH THE DISRUPTIONS, OUTAGES, SURGES, OR OTHER
IRREGULARITIES IN THE PROVISION OF ELECTRICAL SERVICE TO THE
PREMISES AND OTHER RISKS.
H. TENANTS ARE RESPONSIBLE FOR MAKING SURE THAT THEIR
MOBILEHOMES AND ALL APPLIANCES AND EQUIPMENT ARE
COMPATIBLE WITH THE ELECTRIC SERVICE NOW AVAILABLE, AND
OWNER SHALL HAVE NO LIABILITY OR RESPONSIBILITY IF THE
AVAILABLE ELECTRICAL SUPPLY IS INCOMPATIBLE OR INSUFFICIENT.
TENANTS ARE RESPONSIBLE TO MATCH THE RATING FOR THE
MOBILEHOME TO THE SERVICE PROVIDED AT THE PEDESTAL AND NOT
EXCEED IT. TENANT PROMISES THAT THE MOBILEHOME SHALL NOT
EXCEED SUCH RATING. TENANT RELEASES OWNER FROM FAILURE TO
COMPLY WITH THE AMPERAGE RATING OR EXCEEDING AVAILABLE
SERVICE. THIS RELEASE IS NOT INTENDED TO RELEASE OWNER FROM
OWNER'S WILLFUL MISCONDUCT OR ACTIVE NEGLIGENCE, BUT ONLY
TO THE EXTENT ALLOWED BY LAW. TENANT SHALL FORBEAR FROM
CONSUMING MORE AMPERAGE THAN THE EXISTING RATING FOR THE
HOMESITE, TO AVOID DAMAGE TO OWNER'S PROPERTY AND TO THE
PROPERTY OF OTHERS..
IF THE MOBILEHOME, APPLIANCES AND EQUIPMENT IN THE
MOBILEHOME ARE NOT COMPATIBLE WITH THE ELECTRIC SERVICE
AND CAPACITY NOW AVAILABLE OR EXCEEDS AVAILABLE SUPPLY AT
THE PEDESTAL, TENANT SHALL "DE -AMP" (REDUCE THE RATING FOR)
THE MOBILEHOME OR DISCONTINUE EXCESS DEMAND TO ENSURE
M
AGAINST ANY OVERLOADING OR CAUSING ANY DISRUPTION IN
SERVICE. OWNER SHALL HAVE NO LIABILITY OR RESPONSIBILITY TO
TENANT IF THE AVAILABLE ELECTRICAL SUPPLY IS INSUFFICIENT OR
INCOMPATIBLE. TENANT IS EXPRESSLY LIABLE FOR SERVICE
DISRUPTIONS CAUSED BY EXCESSIVE DEMANDS ON THE ELECTRICAL
SYSTEM WHICH SHALL FURTHER BE DEEMED A DEFAULT AND BREACH
OF THE TENANTS' OBLIGATIONS UNDER THIS AGREEMENT.
J. With respect to the provision of any services or facilities (including utilities) to
Tenant, any prevention, delay, or stoppage due to strikes, walkouts, or other
labor disputes, acts of God, inability to maintain labor or materials or
reasonable substitutes for them, governmental restrictions, regulations or
controls, judicial orders, fire /flood or other natural disaster or casualty,
breakage, repairs, and other causes beyond owner's reasonable control, will
excuse performance of these obligations for a time period equal to the delay.
Tenants will remain responsible, without abatement or reduction, for the rent,
utilities, and other charges to be paid per the terms of this Agreement. Owner
will use reasonable efforts to reinstate or repair any services or facilities,
including utilities, which have been interrupted as set forth hereinabove. If
Tenants feel that Owner is not using reasonable efforts to reinstate such
services or facilities, Tenants shall mediate the matter pursuant to the
agreement or paragraph contained herein entitled "mediation and reference of
disputes" if and only if Tenants have consented to that provision or desire to do
so by mutual agreement (at the time the dispute arises) which provides for an
alternate dispute resolution procedure of such dispute. Owner will not be liable
under any circumstances for loss of or injury to property, however occurring
through or in connection with or incidental to the failure to furnish any services
of facilities (including utilities).
K. RESIDENT COVENANTS NOT TO CONSUME MORE AMPERAGE THAN
THE EXISTING RATING FOR THE SPACE, SO AS TO AVOID DAMAGE TO
OUR PROPERTY AND TO THE PROPERTY OF OTHERS. We will provide
utilities and or services as specified on page one of this agreement. Any
separate charges for natural gas, electricity and water as applicable will be on a
submetered basis (if not separately charged at the inception of this agreement,
owner reserves the right and power to do so on proper notice, with or without
electing to reduce rent as per CC §798.41). Civil Code Sections 798.41 or
798.32 allow for further separated billing of utilities with corresponding
reduction of rents and such option is reserved.
5. CIVIL CODE NOTICE RE: SERVICES AND IMPROVEMENTS:
Owner is responsible for providing and maintaining the existing services and
existing physical improvements located in the common facilities in good
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working order and condition and you agree that these responsibilities of the
Park are as defined and limited by this Agreement. The services include the
following:
(i) Park Management Services and those items set forth on page one;
(ii) Maintenance of the physical improvements of the park, including the
streets, walkways, and, common areas.
Management shall have a reasonable period of time, with respect to the
physical improvements in the common facilities, to repair the sudden or
unforeseeable breakdown or deterioration of these improvements and bring the
improvements into good working order and condition after management knows
or should have known of the breakdown or deterioration. The period of time to
do so shall not exceed: as soon as possible where health and safety is
affected, and thirty days except where exigent circumstances justify a delay; or,
otherwise as specified by law. Such repairs or other appropriate action shall be
accomplished as soon as possible in the event of any condition which may
relate to health and safety. With respect to providing any services or facilities,
any prevention, delay, or stoppage due to strikes, walkouts, or other labor
disputes, acts of God, inability to obtain labor or materials or reasonable
substitutes for them, governmental restrictions, regulations or controls, judicial
orders, fire /flood or other natural disaster or casualty, breakage, repairs, and
other causes beyond the reasonable control of the Park, will excuse the Park's
performance of these obligations for a time period equal to the delay. You will
remain responsible, without abatement or reduction, for the rent, utilities, and
other charges.
A. Tenant agrees to notify management immediately of any breakdown,
interruption, deterioration, or failure of any physical improvement, utility,
amenity, facility or service so a response to promptly to fulfill maintenance
responsibilities can be given. Management depends on notice to avoid and
mitigate loss, damage, injury and other liability by Tenant's prompt notice when
applicable. Tenant's good faith cooperation is important to enabling
management to timely respond.
B. Management's reasonable and conscientious efforts to maintain the Park,
despite prudent effort, will probably not be perfect. From time to time, repairs
and improvements may be needed, and Tenant may be inconvenienced.
Management hopes Tenant will please cooperate and be patient. Management
will reasonably endeavor to avoid material disruption and interference with quiet
enjoyment, and to provide advance notice of substantial interruptions or
interference which are planned or scheduled. Tenant agrees that a reasonable
job in maintaining the Park fairly describes Tenant's expectation of
management's duty to maintain the park. Management shall provide physical
E:3
improvements and services in the Park. However, services, facilities, amenities,
landscaping and other improvements in the common areas may change based
upon conservation interests and concerns; such changes may include drought
resistant landscaping, and additions, alterations or deletions of services and
facilities without reduction, discount of other offset from monthly rents. Such
changes will not alter other commitments under this Agreement. Tenant will
have the opportunity to consult if desired. An average and habitable residential
environment is provided, but not a perfect one as with any residential
neighborhood. Physical Improvements include existing common areas, office,
streets, any recreational facilities, buildings and interior improvements,
landscaping, meeting rooms, pools, related improvements and equipment.
6. USE OF PREMISES:
A. The Premises shall be used only for residential purposes, and no business or
commercial activity shall be conducted on the Premises. Tenant agrees not to
do anything that will constitute waste, nuisance, or unreasonable annoyance.
Tenant agrees to do nothing to cause damage to the space or park. Tenant
agrees not to permit any act or maintain or permit to be maintained any
condition on your space or mobilehome which may cause an increase in the
rate of insurance City pays or increase costs of maintenance and repair. No
activity shall be permitted which requires the issuance of a business license or
permit by any governmental agency, or which is inconsistent with community
zoning and conditional use permits, which would increase the risk of harm to
the management or to any other person or property, increase noise, dust,
vibration, odors or fumes, smoke, or any other condition offensive to the senses
or which causes reasonable complaint, breaches the covenant of quiet
enjoyment or reduces property values; which would increase foot or vehicular
traffic, results in deliveries and delivery trucks, require storage of any thing
outside the mobilehome, require additional employees or other persons on the
space, or affect parking. Permitted occupants are:
Tenant;
An additional person if Tenant is living alone;
(iii) Family members and sub - lessees entitled to occupy the premises
pursuant to the Mobilehome Residency Law; and
(iv) Short term guests. The term "short term guest' shall mean any person
who does not stay with Tenant for more than a total of twenty (20)
consecutive days or a total of thirty (30) days in any calendar year. Other
persons may not occupy the Premises with the prior written consent of
City.
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B. Tenant agrees to comply with the Rules and Regulations of Marinapark (Exhibit
"B ") and further agrees these Rules and Regulations may be amended as
provided in the Mobilehome Residency Law or other relevant statute.
7. CONSIDERATION:
City reserves the right to take the position that the past rents have been below
market and constitute consideration to be applied against relocation costs upon
closure of the Park. Tenants reserve the right to dispute City's position.
8. RELEVANT STATUTES AND RULES:
The Mobilehome Residency Law requires this Agreement to contain, among
other things, the Rules and Regulations of Marinapark and the language of the
Mobilehome Residency Law. The Rules and Regulations of Marinapark are
attached as Exhibit "B," the provisions of the Mobilehome Residency Law are
attached as Exhibit "C," and both documents are incorporated into this
Agreement by reference. The Marinapark Rules and Regulations and the
Mobilehome Residency Law may be amended or modified from time to time,
and these amendments and modifications shall be deemed to be incorporated
into the documents attached as Exhibits "B" and "C," respectively, when
effective.
9. SALE OR ASSIGNMENT:
Subject to the terms of this Section, Tenant may sell the mobilehome located on the
Premises pursuant to the rights, and subject to the obligations, of Tenant under the
Mobilehome Residency Law and any other applicable statutes. If the mobilehome
that is the subject of the sale or transfer is to remain on the Premises, or if Tenant
proposes to assign Tenant's interest in this Lease to any person or persons who is
(are) to reside on the Premises, Tenant and /or the proposed transferee must do the
following:
A. Tenant must give notice of the sale or assignment to City prior to close of
escrow.
B. The sale or assignment shall not be effective unless City has given prior written
approval, the transferee has executed a new rental agreement provided by
City, and the transferee has expressly agreed to be bound thereto.
C. Tenant agrees that occupancy of the Premises shall be limited as provided in
this Agreement and Tenant agrees not to sublease or otherwise transfer any
partial interest in this Agreement.
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D. The requirements for any mobilehome proposed to be installed on the space is
as follows: Management must first approve a mobilehome before it may be
installed in the park. No mobilehome which in excess of twelve feet in height
may be installed in the park. The proposed mobilehome must fit upon the space
in the position specified by management. Management reserves the right to
require the largest possible mobilehome commercially available to be sited
upon the space. Established set backs must be honored, and may not be
changed. Roof material must be non -glare composition or wood shake
shingles for the mobilehome, awnings and any storage or other structures on
the space. All installations and improvements must be approved by
management before work is commenced to avoid damage to underground
utilities. Management must further approve a written plan, to be submitted for
approval as required by law, showing the proposed location with measurements
and dimensions evidencing conformance to all setback requirements required
by law including Title 25 of the Code of Administrative regulations and local
ordinances. A tie down system in compliance with §1336.3 of Paragraph (a) of
Title 25 is required. A vapor retarding ground cover of six (6) mil polyethylene
or equivalent over the ground, under the home is required. Under floor areas
shall be ventilated 1 sq. ft. for each 150 sq. ft. of under floor area. Air
conditioners, compressors and necessary accessories will be considered and
approval of same shall be at management's sole discretion. No changes shall
be made to the grade of the lot that would cause any runoff to adjacent space
or common areas. Lot must meet HCD requirements for drainage. Only mobile
homes manufactured in 1976 or later are permitted. No new cabanas may be
constructed. Eaves are permitted only if applicable set back requirements can
be met. Hitches must be removed from home and stored under the
mobilehome. Porch, steps and ramps must be built to Title 25 Requirements.
No aluminum porches are permitted, and shall not encroach set back
requirements or required parking space. Any required handrail, porch, or step
railing shall be wood, painted to match home /trim color. No upgrading or
tampering with the electrical /gas service shall be permitted even by a licensed
contractor. No mobilehome is permitted which is rated at higher amperage than
the pedestal. Additional requirements are set forth in the rules and regulations.
E. Notwithstanding any other provision in this Agreement, Tenant shall have the
right to assign its interest in this Agreement to a spouse, son and /or daughter
provided, however, the Premises shall be used as the primary residence of the
assignee and the assignee shall be bound by all provisions of this Agreement.
F. City shall approve any such transfer, if the transferee has the financial ability to
pay the rent" and charges and otherwise comply with the terms and conditions
of this Agreement, provided, however, City may withhold approval if it
determines that, based upon the transferee's prior tenancies, the transferee will
not comply with the Rules and Regulations of Marinapark (Exhibit "B ").
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10. SUBLEASING:
A. The Premises shall constitute Tenant's residence, whether primary or
secondary. Tenant agrees not to sublease or rent the mobilehome or
otherwise transfer any interest in this Lease, except to the extent that the right
to sublet or transfer is specifically provided by this Agreement.
B. Management shall permit a tenant to rent his or her mobilehome that serves as the
homeowner's residence or sublet his or her space under the circumstances
described in and in compliance with the provisions of AB 1410 effective January 1,
2003. Only one mobilehome may be subleased by the tenant though the tenant
may own or control one or more mobilehomes or homesites in the Park.. Any sub-
lease created in compliance with AB 1410 shall not create a landlord /tenant
relationship as between City and sublessee. It is specifically agreed and understood
that Sublessee cannot become a resident by attempting or purporting to pay City
such monies. Receipt, retention, acceptance or possession of any monies from the
sublessee shall only be on behalf of the Tenant. As between City and sublessee
there is no privity of estate or contract. Tenant hereby further agrees to defend and
indemnify City, at Tenant's sole expense, from any claims, liabilities, or actions
brought by sublessee against the Park or for any action brought against the City by
any person arising out of conduct related to Sublessee's conduct within the Park.
11. MAINTENANCE OF LANDSCAPING AND IMPROVEMENTS:
Tenant shall, at its cost and expense, maintain in good order and condition any
mobilehome, cabana or other improvement located on the Premises. Tenants
also agree that all landscaping on the Premises shall be limited to three feet (3')
in height, to preserve views and open space. City may charge a reasonable
fee for services relating to the maintenance of the Premises in the event Tenant
fails to maintain the Premises in accordance with the provisions of this
Agreement and the Rules and Regulations of Marinapark (Exhibit "B "), after
giving written notification to Tenant and Tenant's failure to comply within
fourteen (14) days from the date of written notice. The written notice shall
contain all information required by the Mobilehome Residency Law.
12. PHYSICAL IMPROVEMENTS AND SERVICES:
Tenant shall have the nonexclusive right to use all of the common areas and
common facilities located within Marinapark, including but not limited to streets,
non - restricted parking areas, laundry facilities, restrooms and showers located
in the common areas and common facilities and designated for use by
residents.
13. CHANGES IN MARINAPARK RULES AND REGULATIONS, PHYSICAL
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IMPROVEMENTS AND SERVICES:
City retains the right to amend or modify the Marinapark Rules and
Regulations, the Terms of this Agreement, and the nature of the physical
improvements or services to be provided, after complying with the provisions of
the Mobilehome Residency Law and other applicable law. The right to amend
the Terms of this Agreement, the Marinapark Rules and Regulations and the
physical improvements and services to be provided by City include, without
limitation, the right to reduce the size of, or eliminate, any physical
improvement, common area, common facility or equipment without
corresponding reduction or adjustment in rent.
14. RIGHT OF ENTRY:
Tenant, subject to the right of revocation as set forth in the Mobilehome
Residency Law, hereby grants written consent to City to enter the premises for
the purpose of inspecting, improving, maintaining, repairing or replacing gas,
water and sewage systems owned and maintained by City. Subject to the
obligation of City to exercise ordinary care, any damage, loss or injury to
Tenant's home, property of Tenant or the Premises which results from efforts of
City to maintain, repair, improve or replace the gas, water or sewage systems
shall be the sole responsibility of Tenant, and City shall not be responsible for
reimbursing any cost or expense incurred by Tenant as a result of such efforts,
nor shall City be responsible for repairing, replacing or otherwise restoring the
mobilehome, the Premises or any improvements thereon to the state or
condition immediately prior to the maintenance, replacement or repair efforts.
The rights and duties set forth in this paragraph are intended to implement and
shall be exercised consistent with the Mobilehome Residency Law.
15. NOTICE REQUIRED BY CIVIL CODE SECTION 2079.10(a):
The California Department of Justice, county sheriffs departments, police
departments serving jurisdictions of 200,000 or more and many other local law
enforcement authorities maintain for public access a data base of the locations
of persons required to register pursuant to paragraph (1) of subdivision (a) of
Section 290.4 of the California Penal Code. The database is updated on a
quarterly basis and is a source of information about the presence of these
individuals in any neighborhood. The Department of Justice maintains a Sex
Offender Identification Line through which inquiries about individuals may be
made. This is a "900" telephone service. Callers must have specific information
about individuals they are checking. Information regarding neighborhoods is not
available through this telephone service.
16. HOLD HARMLESS:
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A. Tenant covenants to indemnify, defend and hold City, and its representatives,
officers, agents and employees, harmless from any and all claims or demands
of any name or nature whatsoever arising out of, or incident to, Tenant's use
and occupancy of the Premises, and to indemnify City for any cost, liability or
expense caused by or arising out of any injury or death of persons or damage
to property which may occur upon or about the Premises or caused by or
arising out of any activities or omission of Tenant, or Tenant's agents,
employees, licensees and /or invitees, including, without limitation, injury or
death of Tenant, or Tenant's agents, employees, licensees and invitees and
damage to their property or Tenant's property, except for any damage or injury
of any kind arising out of the active negligence, fraud or willful misconduct of
City, its representatives, officers, agents or employees. This section is intended
to provide City with a release from liability to the fullest extent allowed by law
and not exceeding the rights of the City to do so either under Civil Code section
1953 ( "[a] Any provision of a lease or rental agreement of a dwelling by which
the lessee agrees to modify or waive any of the following rights shall be void as
contrary to public policy: ... [5] His right to have the landlord exercise a duty of
care to prevent personal injury or personal property damage where that duty is
imposed by law ") or section 1668 ( "All contracts which have for their object,
directly or indirectly, to exempt anyone from responsibility for his own fraud, or
willful injury to the person or property of another, or violation of law, whether
willful or negligent, are against the policy of the law "). City does not admit the
applicability of section 1953 to a mobilehome space.
B. Tenant, as a material part of the consideration under this Agreement, hereby
waives all claims against City for any damage or loss from any cause arising at
any time, including, but not limited to fire, theft, Acts of God, vandalism or any
physical damage while the mobilehome remains on the Property, unless
caused by the active negligence or willful misconduct of City's representatives,
officers, agents or employees. Tenant agrees to indemnify and hold City, and
its representatives, officers, agents and employees, harmless from and on
account of any and all damage or injury to any person or equipment in or on the
mobilehome arising from any cause or from the negligence of Tenant, and
Tenant's family or guests.
C. ANY CLAIM OR SUIT BETWEEN THE PARTIES FOR DAMAGES FOR
PERSONAL OR BODILY INJURY OR PROPERTY DAMAGE AND OTHER
APPLICABLE CLAIMS MUST BE COMMENCED IN ACCORDANCE WITH
THE PROCEDURES FOR MAKING CLAIMS AGAINST GOVERNMENTAL
ENTITIES PURSUANT TO THE REQUIREMENTS OF THE CALIFORNIA
GOVERNMENT CODE.
D. The value of the mobilehome may decline. Since a substantial portion of the
present value of Tenant's mobilehome or coach is attributable to the rent
charged by this Lease, the value of the premises and the proximity of the
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premises to lower Newport Bay, you should investigate before purchasing.
City's only obligation is to provide reasonable cost of relocation on
closure of the park. Please investigate thoroughly before executing this
agreement.
17. TERMINATION:
A. Tenant may terminate this Agreement, without any further liability to City, upon
sixty (60) days written notice to City and upon condition that all persons
occupying the mobilehome terminate their tenancy within that period and
remove the mobilehome and all other improvements from the park
B. City may terminate this Agreement for the reasons specified, and according to
the procedures set forth in the Mobilehome Residency Law.
18. ATTORNEYS' FEES:
Should either City or Tenant be required to employ counsel to enforce the
terms, conditions and covenants of this Agreement, the prevailing Party shall
recover all reasonable attorneys' fees (and court costs if applicable) incurred
therein pursuant to the Mobilehome Residency Law.
19. REMEDIES CUMULATIVE:
The rights, powers, elections and remedies of the Parties contained in this
Agreement shall be construed as cumulative and no one of them shall be
considered exclusive of the other or exclusive of any rights or remedies allowed
by law, and the exercise of one or more rights, powers, elections or remedies
shall not impair or be deemed a waiver of either Party's right to exercise any
other.
20. NO WAIVER:
A. No delay or omission of either Party to exercise any right or power arising from
any omission, neglect or default of the other Party shall impair any such right or
power or shall be construed as a waiver of any such omission, neglect or
default on the part of the other Party or any acquiescence therein. No waiver of
any breach of any of the terms, covenants, agreements, restrictions or
conditions of this Agreement shall be construed as a waiver of any succeeding
breach of the same or of any of the terms, covenants, agreements, restrictions
or conditions of this Agreement.
B. Acceptance of rent shall not reinstate or create a tenancy. Conditional
acceptance of rent pending approval of tenancy shall not be deemed to create
a tenancy or waive any requirements applicable to tenancy, purchaser
15
application or approval requirements or assignment or transfer requirements.
Acceptance of rent after service of a notice to terminate tenancy as specified in
Civil Code §798.57 shall not waive, affect or prejudice the notice. Nor shall
routine service of other notices, Management communications, or other actions
or omissions of the Management waive, prejudice, or affect the right to
terminate tenancy, process a purchaser application and approve a tenant for
tenancy, or otherwise affect the rights of Management. Possession of rent by
the resident manager shall not be acceptance until actually approved by the
park owner; accordingly, the receipt by or the tender of payment to the resident
park manager shall be conditional and for custody purposes only until approved
and accepted by the park owner.
C. Owner may exercise any right under the terms of this agreement, or the Rules
and Regulations as amended or modified, or any other right of the management
under applicable law, and do so on or at any time subsequent to the date such
right became effective hereunder, and do so retroactively to the date the right
initially became effective or enforceable, by and upon demand for performance,
including payment of any rent adjustments or other monies from or for the date
such right first accrued through to and including the date of the demand and
thereafter. Any delay, forbearance, whether intentional or inadvertent, in
enforcing any right of the management for which subsequent demand is made
shall not be construed as a waiver, estoppel, release or acquittal thereof,
accord and satisfaction thereof, settlement in whole or part thereof; shall not
constitute laches in respect thereto; and, shall not render any such right
unenforceable or be a defense against enforcement of such rights from the time
such right could first be exercised and thereafter.
21. COMPLIANCE WITH LAWS.
A. Tenant covenants and agrees to comply with all rules, regulations, statutes,
ordinances and laws of the State of California and City or any other
governmental body or agency having lawful jurisdiction over the Premises
and /or the Property. Tenants agree to abide and conform with all the terms and
conditions of this Agreement, the Rules and Regulations, all rules, regulations,
terms and provisions contained in any document referred to in this Agreement,
and said rules, regulations terms, and provisions as may from time to time be
amended modified or otherwise changed by Owner as permitted by the terms
of this Agreement.
B. Any violation of the Rules and Regulations shall be deemed a public nuisance.
Tenants agfee that a breach of this Agreement or any of the Rules and
Regulations cannot reasonably or adequately be compensated in damages in
an action of law, and therefore, Owner shall be entitled to injunctive relief
including but not limited to restraining Tenants (or family members, guests or
other invitees) from continuing to breach any such rules or regulations term or
16
condition or to allow a condition violative of a rule or regulation term or
condition to exist or continue to exist without proving irreparable harm or lack of
adequate legal remedy.
22. MOBILEHOME RESIDENCY LAW 1 ZONING AND USE PERMIT
INFORMATION:
Pursuant to Civil Code section 798.27 ( "(a) The management shall give written
notice to all homeowners and prospective homeowners concerning the
following matters: (1) the nature of the zoning or use permit under which the
mobilehome park operates. If the mobilehome park is operating pursuant to a
permit subject to a renewal or expiration date, the relevant information and
dates shall be included in the notice....'), Tenant is hereby notified as follows:
A. Tenant acknowledges having received and read a copy of the provisions of the
Mobilehome Residency Law (Exhibit "C ") as presently constituted, and the
Marinapark Rules and Regulations (Exhibit "B ").
B. The Property is currently zoned 'Planned Community." There are no conditional
use permits or other permits required to operate the Property as a mobilehome
park. City owns the Property, but its use may be limited to the extent the
Property is determined to be tidelands and subject to the public trust applicable
to tidelands.
23. ENTIRE AGREEMENT:
This Agreement and the documents referred to herein constitute the entire
agreement between Tenant and Owner pertaining to the subject matter
contained herein and supersedes all prior and contemporaneous agreements,
representations and understandings of the parties, whether written or oral.
Paragraph titles are for identification and reference only and are not part of this
Agreement and shall not be used to interpret this Agreement Each term and
provision of this agreement to be performed by the Tenant or which is a duty of
the Tenant shall be deemed to be both a condition and a covenant.
Additionally, a breach of any each such term and provision shall also be
deemed to constitute a rule and regulation for purposes of Civil Code section
798.56 and may constitute grounds for the termination of tenancy as a violation
of a rule and regulation.
24. NOTICES:
All notices and other communications shall be in writing, shall be sent by first
class registered or certified United States mail, postage prepaid, and shall be
deemed effective at the expiration of seventy -two (72) hours after the day of
mailing addressed:
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A. To Lessor:
City Manager
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA, 92658
With a copy to:
City Clerk's Office
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA, 92658
or at such other addresses as Lessor shall have furnished to Tenant;
and
To Tenant:
By delivering a copy to the Tenant personally; or Tenant be absent from
the mobilehome, by leaving a copy with some person of suitable age and
discretion who may be occupying the mobilehome; or no one can be
found, then by affixing a copy of the notice in a conspicuous place on the
Premises or mobile home and also sending a copy through the mail
addressed to Tenant. Since a substantial portion of the present value of
Lessee's mobilehome or coach Is attributable to the value of the
premises and the and the proximity of the premises to lower Newport
Bay,
B. Following notice by City of any amendment, all other provisions of the Lease
shall remain in full force and effect in their original form.
25. TIME OF ESSENCE:
Time is of the essence in this Agreement and each and every provision hereof.
26. EMINENT DOMAIN:
If the entire Park, or a portion thereof so that, in City's sole opinion, the balance
remaining is not suitable for a mobilehome park, is taken under the power of
eminent domain, or is sold to any authority having the power of eminent
domain, either under threat of condemnation or while condemnation
Im
proceedings are pending, then this Agreement shall automatically terminate on
proper notice as of the date the condemning authority takes possession,
precondemns, notices its intent to condemn or files a condemnation action or
other action which relates thereto.
27. INSURANCE:
Owner does not carry public liability or property damage insurance to
compensate Tenants, Residents, guests or any other person from any loss,
damage or injury except those resulting from situations where Owner would be
legally liable for such loss, damage or injury. If Tenants desire such or similar
insurance coverage, it should be obtained by Tenants, insuring against loss
and casualty by fire, earthquake, flooding, theft, other liability and casualty
which relates to the mobilehome, other improvements and contents to full
insurable value, personal liability and such other insurance as is necessary and
appropriate. Tenants are advised to obtain a homeowners policy in accordance
with the guidelines and requirements specified by a lender, and if no lender,
then in such sums and for such coverage as would be so required if so
financed.
28. PARTIAL INVALIDITY:
Certain terms and provisions of this Agreement and other documents referred
to in this Agreement refer to restate or summarize provisions of the
Mobilehome Residency Law and other applicable laws. In every instance it is
intended that these references, restatements and summaries will accurately
reflect the law and correctly set forth Tenants' and Owners rights liabilities
duties and obligations to one another and to other persons. The same is true of
all of the other provisions of this Agreement and the other documents used by
the Park. If any of the provisions of this Agreement or the other documents
used by the Park fail in any way to meet the above criteria then it is
unintentional and all such provisions shall be deemed to be automatically
revised to correctly reflect the Owner's and Tenants' rights, liabilities, duties
and obligations under the provisions of the Mobilehome Residency Law and all
other applicable laws. Tenants agree to promptly notify Owner in writing of any
instance where Tenants believe that any of the provisions of this Agreement or
the other documents used by the Park fail to meet the above criteria. If any
term or provision of this Agreement or any document referred to in this
Agreement or the application thereof to any person or circumstances shall to
any extent be invalid or unenforceable the remainder of this Agreement or the
other document or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable
shall not be affected thereby and each term and provision of this Agreement or
the other document shall be valid and be enforced to the fullest extent
permitted by law.
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29. ENTIRE AGREEMENT:
A. The resident manager, other personnel, mobilehome dealers, the sales person
and seller from whom the mobilehome was purchased by Tenants and other
persons are not authorized to make any representations or agreements with
Tenants respecting the Community unless those agreements and
representations are contained in this Agreement and the other documents and
posted signs referred to in it. Therefore, Tenants agree that this Agreement and
the other documents and posted signs referred to in it are the entire agreement
between Tenants and Owner regarding the subjects covered by this
Agreement, other documents and signs. This Agreement, the rules and
regulations and the purchase agreement with Owner constitute the exclusive
statement of the agreement and supersedes all prior and contemporaneous
agreements, representations and understandings.
B. Each party has relied on his own examination of this Agreement and counsel of
his own advisers, and the warranties, representations and covenants in the
Agreement itself. Failure or refusal of either party to inspect the premises or
improvement, to read the Agreement or other documents or to obtain legal or
other advice relevant to this transaction constitutes a waiver of any objection,
contention or claim that might have been based on such reading, inspection or
advice. Additionally, in any interpretation of this Agreement it shall be deemed
that this Agreement and its exhibits were written by both parties.
C. It is further agreed by and between the parties that the legal relationship that
exists pursuant to this Agreement is a rental agreement, and that there are not
other legal rights or relationships inferred. Tenants warrant and agree that they
have no other rights, title or interest in the property upon which the Park is
located or in the above described space other than that which is specifically set
forth in this document.
30. DRAINAGE AND GRADING:
A. The existing drainage pattern and grading of the space may not be changed
without Management's consent. Tenant is responsible for maintaining the
space so that water does not accumulate or stand under the mobilehome or on
the Space. Water on the space is required to drain off the space in a fashion as
to avoid runoff onto another mobilehome space. Tenant shall ensure the
skirting attached to the mobilehome is not extended into the grade which would
cause moisture or water to accumulate under the mobilehome. All watering
systems shall be installed, maintained and adjusted as necessary to avoid
water run -off and standing water on the premises. Any berms on the space
shall be installed and maintained to avoid the accumulation of water on the
space or under the mobilehome. Any masonry skirting must contain sufficient
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openings as to prevent accumulation of water on the space or under the
mobilehome.
B. Homeowner warrants to that the mobilehome and areas under the mobilehome
and homesite are free of and from mold. Homeowner is also responsible for
mold cleanup. The mobilehome should be inspected by a competent home
inspection contractor periodically. It is imperative to treat and remove all molds
as if potentially harmful. Among the conditions to be checked should be
presence of any mold in or about the mobilehome. The following are sources of
indoor moisture that may cause problems: flooding, backed -up sewers, leaky
roofs, humidifiers, mud or ice dams, damp crawl spaces, constant plumbing
leaks, house plants - watering can generate large amounts of moisture, steam
from cooking, showertbath steam and leaks, wet clothes on indoor drying lines,
clothes dryers vented indoors, combustion appliances (e.g. stoves) not
exhausted to the outdoors. Homeowner is responsible for avoiding any such
conditions and for remediation if same should occur.
31. NO THIRD -PARTY RIGHTS:
Tenant is not a third -party beneficiary of any other agreement between Owner
and anyone. The terms and provisions may differ between rental agreements
and rules and regulations in force in the park, and no one may rely on the
enforcement of any other's rental agreement or rules and regulations. There
are no third party beneficiaries to this agreement.
32. NO RECORDING:
No recording of this Agreement on any memorandum of this Agreement may be
made without the prior written consent of Owner, which consent may be
withheld in Owner's sole discretion.
33. LOT LINES:
"Space" includes the area as defined by the perimeter of the mobilehome and
its horizontal projections of its accessory structures. This understanding is
based on the public ownership of the property on which the expectations of
occupation which Tenant may use and enjoy. Therefore, Tenant may not rely
on any markers to define the area of use and enjoyment to be expected due to
the rights of the public entitled to entry within the park.
34. ALTERATIONS AND ADDITIONS:
Tenant agrees not to make any alterations, improvements, additions or utility
installations to, on or about the homesite or mobilehome, nor install, remove or
change any existing improvements, or modify the drainage or landscaping nor
21
make any contract for such work without Owner's prior written consent and
approval. Tenant is responsible for all conditions under the mobilehome
including grading, compaction, subsidence, drainage, moisture, and ventilation.
In giving or withholding consent to any such work, Owner may, at its option,
consider and base consent or refusal of consent entirely upon aesthetic
considerations and the compatibility of such changes to the Community. If
Tenant fails to obtain prior written consent and approval, all such alterations,
improvements, additions or utility installations shall be promptly removed at
Tenant's sole expense, upon Owner request.
35. OPPORTUNITY TO REMEDY:
If, at any time, Tenant believes owner has not fulfilled any legal obligations,
Tenant agrees to immediately give owner written notice specifying what is
believed owner has failed to do and indicating what Tenant believes owner
must do in order to fulfill these obligations. This notice shall be as detailed as
possible so that owner may fully understand Tenant's concerns. Tenant agrees
that owner will have at least ninety (90) days, or such longer period as is
reasonably necessary, after receipt of Tenant's notice to remedy the problem(s)
Tenant has identified. If Tenant fails to promptly give owner this written notice
as soon as Tenant is aware of any problem(s), or Tenant fails to give owner a
reasonable opportunity to remedy the problem(s), owner will have no liability to
Tenant for any expense, cost, damage or injury which Tenant may sustain as a
result of the problem(s). If owner fails to remedy the problem(s) within a
reasonable time after receipt of written notice, the problem(s) will be subject to
mediation if such an agreement has been reached between the Parties.
36. ENVIRONMENTAL PROTECTION:
A. Proper "hazardous substances" and waste disposal is required of all Tenants.
Typical hazardous substances include automobile, boat and motorcycle
batteries, household batteries, cleaning fluids and solvents, gasoline, paint and
other thinners, oils, brake fluids, transmission fluids, radiator fluids and coolants
and petroleum products. No Tenants may keep or store, in any place including
within or about the mobilehome, homesite, storage shed or elsewhere in the
Community, any hazardous substances in excess of the quantities required for
typical single family household use. Additionally, Tenants may not cause any
environmental hazard, including any exposure to, contact with, spill or deposit
of any hazardous substance or waste. Tenants are prohibited from violating
any law relating to environmental protection, hazardous substances or waste.
This includes, but is not limited to, for example, changing or discarding auto
batteries, oil, brake and radiator fluids, automatic transmission fluid, air
conditioning gases, or grease in any motor vehicle or machine. Tenants may
not cause or allow hazardous substances or waste to be disposed of anywhere
in the Community, including, but not limited to, trash cans, trash bins, the
K4
sewage disposal system, or any other trash or disposal area in the Community.
Such substances must be physically removed from the Community and
disposed of elsewhere in compliance with law. In the event of any spill or
deposit of hazardous substances in the Community, Tenants are required by
law to immediately notify management. Management reserves the right to
inspect the homesite for hazardous substances.
B. In addition to other remedies allowed by law, Tenants will indemnify and hold
the Owner harmless for any such environmentally hazardous act or omission
prohibited by this rule or law, including any compensatory damages, statutory
damages, punitive damages, expense and attorney's fees and costs sustained
by the Community. Tenants will also be required to reimburse the Community
for any actual attorney's fees, litigation expenses, and costs incurred in
defending any action against the Community as a result of any environmentally
hazardous act or omission of Tenants, Residents, Guests, Contractors and
invitees. For purposes of this rule, "hazardous substances" includes without
limitation: (1) Those substances included within the definitions of "hazardous
substance," "hazardous waste," "hazardous material," "toxic substance," "solid
waste," or "pollutant or contaminant" in federal law including C.E.R.C.L.A.,
R.C.R.A., T.S.C.A., H.M.T.A., or under any other Environmental Law; (II)
Those substances listed in the United States Department of Transportation
(D.O.T.) Table [49 C.F.R. 172.101], or by the Environmental Protection Agency
(E.P.A.), or any successor agency, as hazardous substances [40 C.F.R. Part
302]; (III) Other substances, materials, and wastes that are or become
regulated or classified as hazardous or toxic under federal, state, or local laws
or regulations; and (IV) Any material, waste, or substance that is: (V) a
petroleum or refined petroleum product, (i) asbestos, (ii) polychlorinated
biphenyl, (iii) designated as a hazardous substance pursuant to 33 U.S.C. §
1321 or listed pursuant to 33 U.S.C. § 1317, (VI) a flammable explosive, or (VII)
a radioactive material.
37. COUNTERPARTS:
This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which taken together shall constitute but one and
the same instrument.
38. NON - RESPONSIBILITY OF PARK:
Owner is not responsible to inspect and approve any work done by Tenant or
for Tenant by others, including, but not limited to, the installation of the
mobilehome, driveway, walkways, fences or any other equipment or
improvements of any type. To the extent that Owner may inspect or approve
something, it is for Owners own purpose only and Tenant is not entitled to rely
23
on that inspection or approval to ensure that the item has been installed or
constructed correctly or that the work has otherwise been done as required.
Instead, Tenant is responsible for all required inspections and approvals and
Tenant agrees to indemnify and hold Owner harmless from any work which is
improperly done.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed the
day and year first above written.
Tenant
CITY OF NEWPORT BEACH
a municipal corporation.
Homer Bludau, City Manager
APPROVED AS TO FORM:
Robin L. Clauson, Assistant City Attorney
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