2406MAR —9 P111 33
Council/ Agency Meeting Held ot0 (
Deferred/ Continued to
Approved Conditionally Approved Denied
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Council Meeting Date 3/ 20/ 2006 Department ID Number ED 06- 15
CITY OF HUNTINGTON BEACH
REQUEST FOR CITY COUNCIL ACTION
SUBMITTED TO HONORABLE MAYOR AND CQWNCIL MEMBERS
SUBMITTED BY PENELO EECCULBRETH- GRAFT CI Y ADMINISTRATOR PREPARED BY KENNETH W SMALL CHIEF OF POLICE 04A60d4(.&
STANLEY SMALEWITZ DIRECTOR OF ECONOMIC
DEVELOPMENT
SUBJECT APPROVAL OF LICENSE AGREEMENT FOR BELLA TERRA
POLICE SUBSTATION AT 7777 EDINGER AVENUE SUITE D- 135
Statement of Issue Funding Source Recommended Action Alternative Action( s) Analysis Environmental Status Attachment( s) Statement of Issue The City Council is requested to approve a ten- year license agreement with Bella Terra Associates, LLC for the use of real property located at 7777 Edinger Avenue Suite D-135 for use by the Police Department for the new Bella Terra Substation
Funding Source Not Applicable
Recommended Action Motion to
1 Approve the lease agreement by and between the City of Huntington Beach and Bella Terra Associates LLC for the use of real property located at 7777 Edinger Avenue Suite D-135 for use by the Police Department for the Bella Terra Substation 2 Authorizeexecutionof the leaseagreementbythe Mayorand CityClerk Alternative Action( s) No alternatives to the proposed license agreement were considered Analysis A license agreement between the City and Bella Terra Associates Inc for a police substation at the new Bella Terra Mall is submitted for approval The mall owners havemadeavailableapproximately2 030squarefeet of officespaceto the Cityfor use by the Police Department at no cost The City will only pay for its own telephone and cleaning services The term of the agreement is ten years however the City will have the ability to terminate the agreement at any time upon 30 days written notice ACH
E-
REQUEST FOR ACTION
MEETING DATE March 20, 2006 DEPARTMENT ID NUMBER ED 06- 15 The Police Department has determined that operating a substation at Bella Terra will allow for a more substantial presence in the complex and the surrounding neighborhood, which would decrease response times and allow officers to stay in a more centralized area when processing paperwork and other routine assignments The Department is currently considering basing two full- time officers to operate the substation Thursday through Sunday Volunteers are anticipated to staff the reception area during business hours Monday through Friday
Staff recommends approval of the proposed license agreement which has been reviewed and approved by the City Attorney
Environmental Status Not applicable
Attachment( s)
1 Lease agreement by and between the City of Huntington Beach and Bella Terra Associates LLC for the use of real property located at 7777 Edinger Avenue Suite D- 135
2 Site Map
G \ Steve\ Real Estate\ Police\ RCA for Bella Terra Substation Lease doc 2 3/ 7/ 2006 9 03 AM
Lease agreement by and between the City of Huntington
Beach and Bella Terra Associates, LLC for the use of real property located at 7777 Edinger Avenue, Suite D- 135
ATTACHMENT #- 1
LICENSE AGREEMENT
1#
This License Agreement (' Agreement') is madethisdjC dayof March 2006by and between Bella Terra Associates, LLC, a Delaware limited liability company (" Licensor"), and theCity of Huntington Beach ('Licensee")
RECITALS
WHEREAS Licensor owns and operatesthe Bella Terra Shopping Center (' Center") located at 7777 Edinger Avenue, Huntington Beach, California, WHEREAS Licenseedesiresto occupyaportion of SuiteD- 135locatedin the ManagementOffice/SecuntyOffices locatedin theCenterasshownon the attachedExhibit A, consistingof approximately2,030squarefeet (hereinafterreferredto asthe 'LicensedArea") for purposesof operatingaCity of HuntingtonBeachPoliceSubstationand WHEREAS Licensor is willing to grantLicenseeuseof the LicensedArea subjectto the terms and provisions of this Agreement,
NOW, THEREFORE, LicensorherebygrantsandLicenseeherebyacceptsa revocable license to operate at the Licensed Area, subject to the terms and provisions hereinafter set forth
ARTICLE I
LICENSED AREA AND USE THEREOF
Section 1 1 Licensor herebygrantsto LicenseeandLicenseeherebyacceptsfrom Licensor a License to use the Licensed Area of the Centei The Licensed Area shall be used solelyfor operationof a City of HuntingtonBeachPoliceSubstationLicenseeshallhavethe right, but not the obligation to operate in Licensed Area 365 days per year, 24 hours per day Section 12 The Licensed Area shall be equipped set up and maintained at the sole expenseof Licensee Licensor agreesto furnish to the Licensed Area electricity water gas, trash service, internet access, and sewer service and deliver the Licensed Area to Licensee equipped with these services Licensee accepts the Licensed Area in its current " as -is" condition Subjectto theprovisions of Article XV below, Licenseeshall havethe right during the term of this Agreement to make, at its own expense, any interior, cosmetic alterations or improvements to the Licensed Area Licensee at Licensee' s cost, shall repair any damage to the Licensed Area caused by Licensee or Licensee s conti actors during performance of such alterations or improvements in or on the Licensed Area Licensee shall have the right to install satellite dishes and/ or other antennas and/ or other facilities for television, music and telecommunications ( Communication Equipment') on, and affix Communication Equipment to on or about the Licensed Area Any satellite dishes of antennas on the roof shall be properly screened to Licensor' s satisfaction Licensee s use of the Licensed Area shall be exclusive for the term specified herein and not violate applicable laws and ordinances All such work shall be performed in a first class manner and shall comply with all laws and regulations Section 13 Licensor and Licensee acknowledge and agree that a) Neither the Licensed Area, nor any other space or area whatsoever at the Centeris leasedtotheLicensee Duringthetermof thisAgreement, theLicenseeshallhave theuseof theLicensedArea asLicenseesolelyfor thepurposesandusesherein stated The Licenseeshall havethe right to occupytheLicensedArea andto operatepursuantto the Licenseherebygrantedandto continuein thepossessionthereofonly solongLicenseeisin compliance with the terms and conditions of this Agreement b) Licenseeshall usetheLicensedArea solely for the purposestatedin Section 11, and for no other purposes whatsoever
c) Licenseeshall in no way interferewith norjeopardizethebusinessor reputation of the Property
d) Licenseeacknowledgesthat neithertheLicensornor its personnelwill haveanyresponsibility for the operationof theLicensedArea Licensee's operationstherein or anyotheraspectof Licensee'soperationsLicenseeshallindemnifyandholdharmless Licensor (its officers, principals andemployees), its Landlord andmortgagee (hereinafter referred to collectively as the additional insureds') againstanyclaims, costsor liabilities relatedto or arisingout of Licensee's useof theLicensedArea or Licensees obligationunder this Agreement Licenseeshall provide insuranceasspecifiedin Article IV of this Agreement and name the additional insureds on these insurance policies as their interests may appear Licenseefurther agreesto provide its employeeswithin all requiredcoverage, including without limitation workmen s compensation insurance Licensee shall pay all costs incurred with respectto the insurancecoverageprovidedby Licenseeunderthis Agreement e) Licensee has not relied upon any representation statement or warranty of Licensor or of Licensor s agents or employees with respect to the Licensed Area, the Center or the business to be conducted thereat, and in no event shall Licensor be liable to Licensee for any defect in the Licensed Area or for any limitation on its use (except to the extent of Licensor s or Licensor' s agents gross negligence or willful misconduct) and Licensee accepts the same " AS IS WHERE IS
f) Signs and Decor All signage and decor to be placed on the exterior of Licensed Area by Licensee shall be manufactured and displayed in accordance with the Sign Criteria Program developed by Licensor, asthe samemay change from time to time g) Grant of Nonexclusive Common Area Rights Licensor hereby grants to Licensee its patrons, employees, and authorized representatives a nonexclusive right to use the Common Area within the Center for vehicular parking and for pedestrian and vehicular ingress, egress and travel and restroom access Licensor shall provide Licensee with two dedicatedparking spaces in the service yard at the nearestpossible location to the Licensed area or at a location mutually agreeable to both Licensor and Licensee 2 ARTICLE II
TERM
Section 2 1 Theterm of this Agreementhereingrantedshall commenceasof pAAe# do_ for a TEN ( 10) year term which shall expire on , unless soonerextended or terminated as specifically provided herein Section 2 2 Notwithstanding theforegoing, Licenseeshallhavetheright to terminate the term of this Agreement without any further obligations or liability hereunder upon not less than thirty ( 30) days' prior written notice of such election Licensor shall have the right to terminate the term of this Agreement without any further obligations or liability hereunder upon not lessthansixty (60) days' prior written noticeof suchelection Section 2 3 This Agreement may be extended at any time by mutual consent of the parties subject to the terms herein
ARTICLE III
LICENSEE FEE
Section 3 1 There shall be no license fee associated with or required by this License Agreement
ARTICLE IV
INSURANCE
Section 4 1 Insurance Licensee shall at all times during the term of this Agreement and at its own cost and expense maintain, procure and continue in force commercial general liability insurance for personal injury bodily injury ( including wrongful death) and damage to property with a combined single limit of not less than Two Million and No/ 100 Dollars 2,000,000 000) pei occurrence naming Licensor as an additional insured Certificates of Insuranceevidencingthe requiredinsurancecoverageshallbedeliveredto Licensorprior to Licensee's occupancyof the LicensedArea andthereafter executedcopiesof renewalpoliciesor certificates thereof shall be delivered to Licensor within thirty ( 30) days prior to the expiration of the term of each such policy All policies on insurance delivered to Licensor must contain a provision that the company writing the policy will give Licensor twenty ( 20) days notice in writing in advance of any cancellation or lapse or the effective date of any reduction in the amountsof insuranceAll policiesshallbewrittenasprimarypoliciesandshallprovidethatany insurancewhich Licensor or Licensor s lendermaycarry is strictly excess, secondaryandnon- contributingwith anyinsurancecarriedby Licensee Licenseeshall bepermittedto carrythe insurance required in this Agreement under a blanket policy which also covers other locations of theLicensee Notwithstanding the foregoing, the Licenseemay provide liability insurance through the Big Independent Cities Excess Pool (" BICEP"), providing for a self insured retention in the amount applicable to all the members of BICEP ( for calendar year 2006, suchself insured retention amount is $1,000,000with the member cities risk sharing any losses from S1, 000, 000 to $ 2, 000, 000 or larger)
Section 4 2 Indemnifications and Waivers
a) Indemnity To extentpermittedby law, andexceptto theextentany suchdamageloss, claim, liability, orexpenseisattributableto thegrossnegligenceorwillful misconduct of Licensor its employees, authorized agents and representatives Licensee will at Licenseessolecostand expenseindemnify LicensorPartiesagainstall Claimsarisingfrom (i) any Personal Injury, Bodily Injury or Property Damage whatsoever occurring in or at the LicensedArea, (ii) anyBodily Injury to anemployeeof a LicenseePartyarisingout of andin the course of employment of the employee and occurring anywhere in the Center ( 111) the use or occupancyor mannerof useof occupancy, or conductor managementof theLicensedArea by Licensee
b) Waivers To the extent permitted by law, and except to the extent any suchdamage, loss, claim liability, or expenseis attributableto the grossnegligenceor willful misconduct of Licensor, its employees, authorized agents and representatives, Licensee on behalf of all Licensee Parties, waives all Claims against Licensor Parties arising from the following ( 1) anyPersonalInjury, Bodily Injury or PropertyDamagewhatsoeveroccurringin or at the Licensed Area ( ii) any loss of or damage to property of a Licensee Party located in the Licensed Area or other part of the Center by theft or otherwise, ( iii) any Personal Injury Bodily Injury or Property Damage to any Licensee Party causedby other tenants of the Center parties not occupying space in the Center, occupants of property adjacent to the Center, or the public or by the construction of any private public or quasi -public work occurring either in the Licensed Area or elsewhere in the Center ( iv) any interruption or stoppage of any utility service or for anydamageto personsor property resultingfrom suchstoppage, (v) businessinterruptionor loss of use of the Licensed Area suffered by Licensee ( vi) anylatent defectin constructionof the Center ( vii) damages or injuries or interference with Licensee' s business loss of occupancy or quiet enjoyment and any other loss resulting from the exercise by Licensor of any right or the performance by Licensor of Licensor' s maintenance or other obligations under this Agreement or (viii) any Bodily Injury to an employee of a Licensee Party arising out of and in the course of employment of the employee and occurring anywhere in the Center c) Licensor shall protect, defend, indemnify and hold harmless Licensee, its officers officials, employees and agents from and against any and all liability loss damage expenses, costs (including without limitation costs and fees of litigation of every nature) arising out of or in connection with Licensor' s performance of this Agreement or its failure to comply with any of its obligations contained in this Agreement except such loss or damagewhich was causedby the negligence or willful misconduct of the Licensee d) Waivers of Subrogation LicensorandLicenseeeachherebywaive all rights of recoveryagainstthe other on accountof lossanddamageoccasionedto suchwaiving partyto theextentthat suchlossor damageis insuredagainstunderany insurancepolicies carried by the waiving party Licensor and Licensee shall each cause their insurers to waive their subrogation rights consistent with the foregoing
e) Definitions For purposes of this Paragraph 9 ( 1) the term ` Licensee Parties' means Licensee, and Licensee s officers members partners agents employees, subLicensees, licensees, inviteesandindependentcontractors andall personsandentities 4 03/ 07/ 2006 14 43 FAX 714 374 1580 CITY OF HUNT BEACH 2 002/ 002 claimingthroughanyofthesepersonsorentities, (it) theterm "LicensorParties" means Licensorandthepartners, venturerer, trusteesandancillarytrusteesof Licensorandthe respectiveofficers, directors shareholders, members, parents, subsidiariesandanyother affiliatedentities, personalrepresentatives, executors, heirs, assignslicensees, invites, beneficiaries, agents, servants employees and independent contractors of these persons or entities, (in) theterm "Indemnify" meansindemnify, defend (with counselreasonably acceptable to Licensor) and hold free and harmless for, from and against, ( iv) the term ` Claims" meansall lnabUities, claims, damages (including consequentialdamages), losses, penalties, litigation, demands, causesof action (whetherin tort or contract, in law or at equity or otherwise), swts proceedings, judgments, disbursementscharges, assessmentsandexpenses including attorneys and experts' feesandexpensesincurredin investigating defending, or prosecuting any litigation, claim, or proceeding), ( v) the term ' Waivers" means that the LicenseePartieswaive andknownnglyandvoluntarily assumethe risk of and (va) theterm Bodily Injury", " PersonalInjury and "PropertyDamage will havethe samemeaningsasin the form of commercial generalinsurancepolicy issuedby InsuranceServicesOffice, Inc most recentlyprior to the dateof the injury or lossin question
ARTICLE V
TAXES AND OTHER CHARGES
Section 51 Licenseeshall pay anddischargewhendue andprior to the imposition of any interest or penalty for delinquency in payment, all taxes, fees, or assessments imposed upon the operationof the Licensee s use of the LicensedArea. Notwithstanding the foregoing, Licenseeshall not be obligated to pay any taxes, chargesor assessmentsapplicableto Licensor s collection of the License Fee or with respect to Licensor s ownership of the Center Section S 2 If requestedby Licensor, Licenseeshall fnraish to Licensor a receiptor otherevidenceof the payment of eachtax, assessmentor imposition, or any suchothercharge which is payableby Licensee within five (5) businessdaysof suchrequest Section 53 Licenseeshall provide for andmaintain its own secure telecommunicationsand data line equipmentwithin theleasedpremises, andshall beresponsible for thecostof maintaining these designatedutilities Licenseeshall alsoprovide for and maintain a cleaningservice for the leasedpremises, andshall beresponsiblefor the costof thus service Licensor shall manitain andprovidepaymentfor all other utilities associatedwith the leasedpremises, including but not limited to, electrical, gas, water, sewerandtrash servicesand shallpay all common arearamtenancecosts ( CAM costs) includingtaxes insuranceand anagement fees Licensr shallnot payanyadditionalrent or CAMcostsLicenseeshall not responsible for anyutilitiesserving the CommonAreas of thePropertyT13 S1. 110toSection
5 4 Licenseeshall, duringthe Termof thisAgreement, keep the LicensedArea in neatand cleanconditionsubject to Licensors obligations claiming through any of these persons or entities, ( ii) the term ` Licensor Parties" means Licensorandthe partners venturerer trusteesandancillary trusteesof Licensorandthe respectiveofficers, directors shareholders, members, parents, subsidiariesandanyother affiliatedentities, personalrepresentativesexecutors, heirs assignslicensees, invites, beneficiaries, agents, servants, employees and independent contractors of these persons or entities, (w) the term ` Indemnify means indemnify defend (with counsel reasonably acceptable to Licensor) and hold free and harmless for from and against ( iv) the term' Claims' meansall liabilities, claims damages (including consequentialdamages) losses, penalties, litigation, demands, causes of action ( whether in tort or contract, in law or at equity or otherwise), suits, proceedings, judgments, disbursements, charges, assessmentsandexpenses including attorneys and experts' fees and expensesincurred in investigating, defending, or prosecuting any litigation, claim, or proceeding), ( v) the term " Waivers" means that the Licensee Parties waive and knowingly and voluntarily assumethe risk of and (vi) the term Bodily Injury " Personal Injury" and ' Property Damage" will have the same meanings as in the form of commercial general insurance policy issued by Insurance Services Office, Inc most recently prior to the date of the injury or loss in question
ARTICLE V
TAXES AND OTHER CHARGES
Section 5 1 Licenseeshall payanddischargewhendueandprior to theimposition of any interest or penalty for delinquency in payment all taxes, fees, or assessmentsimposed upon the operation of the Licensee' s use of the Licensed Area Notwithstanding the foregoing Licensee shall not be obligated to pay any taxes charges or assessmentsapplicable to Licensor' s collection of the License Fee or with respect to Licensor s ownership of the Center Section 5 2 If requested by Licensor, Licensee shall furnish to Licensor a receipt or other evidence of the payment of each tax, assessmentor imposition, or any such other charge which is payable by Licensee, within five ( 5) business days of such request Section 5 3 Licensee shall provide for and maintain its own secure telecommunications and data line equipment within the leased premises and shall be responsible for thecostof maintainingthesedesignatedutilities Licenseeshall alsoprovide for and maintain a cleaning service for the leasedpremises and shall be responsible for the cost of this service Licensor shall maintain and provide payment for all other utilities associated with the leasedpremises, including but not limited to, electrical gas, water, sewerandtrashservices, and shallpayall commonareamaintenancecosts (CAM costs) including taxes, insurance, and managementfeesLicensershallnotpayanyadditionalrentorCAMcostsLicenseeshallnot beresponsiblefor any utilities servingtheCommonAreasof theProperty TLS- shloto
Section 5 4 Licensee shall during the Term of this Agreement, keep the Licensed Area in neat and clean condition subject to Licensor s obligations
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES ON DEFAULT
Section 6 1 Any of thefollowingoccurrencesor actsshallconstitutean `Eventof Default under this Agreement
a) If Licensee shall
i) default in makingpaymentwhendueof the LicenseFeeandsuch defaultshallcontinuetwenty (20) businessdaysof noticeof non payment (but notwithstanding, nonoticeor 20 daycureperiod shall applymorethanonetime during the term of this Agreement), or
it) default in makingpaymentwhendueof any otheramountpayable byLicenseehereunderandsuchdefaultshallcontinuetwenty (20) businessdaysof noticeof nonpayment (butnotwithstandingnonoticeor 20daycureperiodshallapplymorethanone time during the term of this Agreement), or
m) default in theobservanceor performanceof anv otherprovisionof this Agreementto beobservedor performedby Licenseehereunderor b) The suspension revocation or expiration of any of the Licensee' s licenses required to conduct its business at the Licensed Area, of c) Licenseeshallfile a petition in bankruptcyor for reorganizationor for an arrangementpursuantto the BankruptcyAct or underanysimilar federalor statelaw now or hereafter in effect, or shall be adjudicated a bankrupt or become insolvent, of shall make an assignment for the benefit of its creditors, or shall admit in writing of its inability to pay its debtsasthey becomedue, or shall be dissolved or shall suspendpaymentof its obligations, or shalltakeanycorporateaction for thepurposeof effectinganyof the foregoing Section 6 2 Except with respect to Section 6 1( a)( 1) and 6 1( a)( ii), whenever an Event of Default shall have occurred Licensor may, at its election, in its sole discretion, terminate this License upon ten ( 10) business days written notice to Licensee whereupon all rights of Licensee to the use of the Licensed Area shall forthwith terminate as though this License had never been made, and Licensor shall have the immediate right of possession of the Licensed Area and the right to remove all persons and property therefrom without liability to the Licensee whatsoever, and in addition shall have the right to recover forthwith from the Licensee any and all License Feesand all other amounts payable by Licensee hereunder which have become due as of the date the termination of this License Notwithstanding the foregoing, no Event of Default shall deem to have occurred if Licensee cures said Default prior to the expiration of the twenty ( 20) day notice period In the event of a Default under Section 6 1(a)( 1) or 6 1( a)( ii), after the applicable cure period Licensor may, at its election in its sole discretion terminate this License with no further notice required to Licensee whereupon all rights of Licensee to the use of the Licensed Area shall forthwith terminate as though this License had never been made and Licensor shall have the immediate right of possession of the Licensed Area and the right to remove all persons and property therefrom without liability to the Licensee whatsoever and in addition shall have the right to recover forthwith from the Licensee any and all License Fees and all other amounts In
payableby Licenseehereunderwhichhavebecomedueasof thedatetheterminationof this License
Section 6 3 The failure of the Licensor to insist upon a strict performance of any term or condition of this Agreement shall not be deemed a waiver of any right or remedy that the Licensormayhaveandshallnotbedeemedawaiverof anysubsequentbreachof suchtermor condition
ARTICLE VII
DAMAGE OR DESTRUCTION OF THE CENTER / EMINENT DOMAIN
In the event of ( material) damage to or destruction of the Center or to the Licensed Area, or in theeventany (material) portion of theCenteror LicensedArea shall be lawfully takenor condemned, either Licensee or Licensor shall have the right to terminate this Agreement as of the date of the damage or destruction or as of the taking ( as the casemay be) and upon such terminationall LicenseFeesshall beproratedandneitherparty shall thereafterhaveanyrights or obligations thereafter accruing under this Agreement Licensee shall have no obligation with respectto anydamageor destructionto theLicensedArea of the Centerdueto anycasualty
ARTICLE VIII
ASSIGNMENT
Section S 1 Licensee shall not assign this Agreement or any interest therein and shall not sublicense the Licensed Area or any part thereof without the prior written consent of Licensor at Licensor s sole and absolute discretion
ARTICLE IX
BINDING EFFECT, MERGER AND CONSOLIDATION, ENTIRE AGREEMENT Section 9 1 All the terms and provision contained in this Agreement shall be binding upon inure to the benefit of and be enforceable by, the successorsand assigns of Licensor to the sameextentasif eachsuchsuccessoror assignwerenamedaspart of this Agreement Section 9 2 This Agreement embodies the entire agreement between Licensor and Licensee relating to the subject matter hereof and supersedesall prior agreements and understandingsrelating to suchsubjectmatter Neitherthis Agreementnor anyprovision hereof maybeamended, modified, waived dischargedor terminatedorally but only asexpressly provided herein or by an instrument signed by Licensor and Licensee Section 9 3 As used in this Agreement and whenever required by the context thereof, eachnumber both singularandplural shall includeall numbers andeachgendershall include all genders Licensor and Licensee as used in this Agreement or in any other instrument referred to in or madeapart of this Agreementshall likewise include boththe singular andtheplural, a corporation co partnership, individual or person acting in any fiduciary capacity as executor, administrator trustee or in any other representative capacity All covenants herein contained on thepartof LicensorandLicenseeshall bejoint andseveral The languageof all partsof this Agreementshall in all casesbe construedasawhole accordingto its fair meaning, andnot strictly for or againstanyof the pasties If anyprovision of this Agreementis held by an 7 arbitratororcourtof competentjurisdictionto beunenforceable, void, illegalor invalid, such holdingshallnot invalidate or affectthe remainingcovenantsandprovisions of this Agreement No covenantor provision shall be deemeddependentuponanyotherunlesssoexpressly providedhere Nothingcontainedhereinshallbeconstruedsoasto requirethecommissionof anyactcontraryto law, andwhereverthereisanyconflictbetweenanyprovisioncontained hereinandanypresentor futurestatutelaw, ordinanceorregulationcontraryto whichthe partieshaveno right to contract, then thelatter shallprevail, andtheprovision of this Agreement which is herebyaffectedshall becurtailedandlimited only to the extentnecessaryto bring it within the requirements of the law
ARTICLE X
NOTICES
Section 10 1 All Notices mustbein writing and shallbe deemedto havebeenproperly givenor servedby depositingin theUnited StatesMail, postpaidandregisteredor certified return receipt requested, or sent by overnight delivery service, and addressedto the addressesset forth below All Notices shall be effectiveuponbeingdepositedin theUnited StatesMail However, thetime period in which a responseto anyNotice must begiven, if any, shall commence to run from the date of receipt of the Notice by the addresseethereof Rejection or other refusal to accept or the inability to deliver becauseof a changed address of which no Notice was given shall be deemed to be receipt of the Notice sent By giving at least five ( 5) days Notice thereof either party shall have the right to specify as its address any other address within the United States of America
Licensor s Address Bella Terra Associates, LLC
c/ o DJM Capital Partners
60 S Market Street, Suite 1120
San Jose, CA 95113 a36
408- 271- 0366
408- 271 0377 — Fax
Tax ID# 20- 2921485
Licensee' s Address City of Huntington Beach
ATTN Chief of Police
2000 Main Street P O Box 190
Huntington Beach CA 92648
With copy to City of Huntington Beach
Real Estate Services
ATTN Steve Holtz
2000 Main Street
Huntington Beach, CA 92648
ARTICLE XI
CONTROVERSY
Section 111 Any controversy arising under this Agreement which is not resolved by the parties hereto shall be determined in and by the courts of the Sateof California, in accordance with the laws of the State of California
ARTICLE XII
COMPLIANCE
Section 12 1 Licensee agrees at its own cost and expenseto promptly execute and comply with all present or future rules, regulations, requirements laws and ordinances of all governmental authorities having jurisdiction of the Licensed Area or the business of Licensee thereat, andto obtainall licensesand/or permitsrequiredto conductthebusinessof Licenseeat theLicensedArea Notwithstandingthe foregoing, Licensorshallnot beresponsiblefor any alterations or additions to the Licensed Area required by applicable laws and/or ordinances
ARTICLE XIII
MISCELLANEOUS
Section 13 1 Nothing contained herein nor this Agreement shall be construed nor is it theintent of theparties to createajoint ventureor partnershipbetweenLicensor andLicensee Section 13 2 This Agreementis not to berecorded If this provision is breachedany such recording shall be deemed null and void
Section 13 3 If any provision of this Agreementor the applicationthereofto anyperson or in anycircumstancesshall bedeterminedto beinvalid, unlawful or unenforceableto any extent, thentheremainderof this Agreement, andtheapplicationof suchprovisionsotherthan theonesdeemedinvalid unenforceableor unlawful shallnot beaffectedtherebyandeach remainingprovision hereofshall continueto bevalid andmaybeenforcedto the fullest extent permitted by law
Section 13 4 Nondiscrimination Licenseecovenantsby andfor itself, its successors andassigns, andall personsclaiming underor throughit andthis Agreementis madeand accepteduponandsubjectto the following conditions Thatthereshall be no discrimination againstor segregationof anypersonor groupof personson accountof sex marital status, race, color religion creed, nationaloriginorancestry, in theleasing, subleasing, transferring, use, or enjoymentof thePropertynor shall Licenseeitself, or anypersonclaiming underor throughit establishor permit any suchpracticeor practicesof discriminationor segregationwith reference to theselection location number useor occupancyof tenants Licensees, subLicensees, subtenants or vendees in the Center
Section 13 5 Holding Over If Licenseecontinuesto occupythe LicensedArea followingtheexpirationor terminationof thisAgreement, suchholdingovershallconstitute renewalof thisLicenseonamonthto monthbasis, with LicenseFeepayableforeachmonth equal to 125% of theLicenseFeepayableduringtheoriginalterm TheLicenseTermmay 6 thereafterbeterminableby eitherpartyupononemonthsnoticeandotherwiseonthetermsof this Agreement
Section 13 6 Authority Eachsignatoryto this Agreementrepresentsandwarrants that ( i) he or sheis duly authorizedto executeanddeliver this Agreementon behalfof such entity in accordancewith its corporatebylaws statementof partnershipor certificateof limited partnershipasthe casemay be, (n) this Agreementis binding uponsaidentity in accordance with its terms and (ui) the entity is aduly organizedandlegally existing corporationor partnershipin goodstandingin the Stateof California
Section 13 7 Attorneys' Fees In theeventthat any actionshall be institutedby either of the parties to this Agreement ( or their successors) for the enforcement of any of their rights in and under this Agreement, each party shall bear its own attorney' s fees, such that the prevailing party shall not be entitled to recover its attorney' s fees from the non prevailing party Section 13 S Conference Room Licensee and Licensor agree to share the Conference Room adjacent to the Licensed Area, and identified on Exhibit A on a first come first served basis pursuant to rules and procedures reasonably determined by Licensor This conference room shall not house any City of Huntington Beach Police Department telecommunications equipment
Section 13 9 Brokers Each party warrants to and for the benefit of the other that it has engaged no broker of finder and that no claims for brokerage commissions or finder' s fees will arise in connection with the execution of this Agreement and each of the parties agreesto indemnify the other against, hold it harmless from all liabilities arising from any such claim including, without limitation, the cost of attorney s fees in connection therewith) Section 13 10 Legal Services Subcontracting Prohibited Licensor and Licensee agreethat Licensee is not liable for payment of any subcontractor work involving legal services and that such legal services are expressly outside the scope of services contemplated hereunder Licensor understands that pursuant to Huntington Beach City Charter Section 309, the City Attorneyis theexclusivelegal counselfor Licensee, and Licenseeshall not beliable for payment of anylegalservicesexpensesincurredby Licensor
Section 13 11 Duplicate Original The original of this Agreement and one or more copies hereto have been prepared and signed in counterparts as duplicate originals, each of which so executed shall irrespective of the date of its execution and delivery be deemed an original Eachduplicateoriginal shall be deemedan original instrumentas againstany party who signed it
ARTICLE XIV
SUBORDINATION
This Agreementshall be subjectandsubordinateat all times to the lien of anymortgage, whichmay now or hereafteraffect the LicensedArea Licenseewill executeanddeliver any instrumentwhich may be requiredby Licensorin confirmationof suchsubordinationpromptly upon the request of the Licensor If the Licensee shall fail at any time to execute, acknowledge 10 anddeliverany suchinstrument Licensor in additionto anyotherremediesavailableto it may executeacknowledgeand deliver the sameasattorneyin -factof the Licenseeandin the Licensee'snameplaceandstead, andtheLicenseeherebyirrevocablymakes, constitutesand appoints Licensor its successor and assigns, such attorney in -fact for that purpose
ARTICLE XV
ALTERATIONS AND ADDITIONS
Section 15 1 Licensee shall obtain Licensors prior written consent for alterations improvementsadditions, utility installationsor repairsin on or aboutthe LicensedArea, or the Center which are ( i) structural in nature, or ( u) non- structural in nature and exceed a total cost of Five Thousand Dollars ($ 5,000 00) per alteration/ addition Licensor may give or withhold its consentto any structural alterations, improvements, additions Utility Installationsor repairsin its sole and absolute discretion As used in this Section 15 1 the term " Utility Installation" shall mean carpeting, window and wall coverings, power panels, electrical distribution systems lighting fixtures air conditioning, plumbing, and telephoneand telecommunicationwiring and equipment Licensor may require Licensee to remove said alterations, improvements, additions or Utility Installations at the expiration of the term to restore the Licensed Area and the Center to their prior condition at Licensee' s expense Should Licensor permit Licensee to make its own alterations, improvements additions, or Utility Installations Licensee shall use only such contractor as has been expressly approved by Licensor Should Licensee make any alterations improvements, additions or Utility Installations without the prior approval of Licensor or use a contractor not expressly approved by Licensor, Licensor may, at any time during the term of the Lease, requirethat Licenseeremoveanypartor all of the same Section 15 2 Any alterations, improvements, additions or Utility Installations in or about the Licensed Area or the Center that Licensee shall desire to make which are ( i) structural in nature, or ( ii) non- structural in nature and exceed a total cost of Five Thousand Dollars 5,00000) per alteration/addition shall be presentedto Licensor in written form, with proposed detailed plans Licensee shall reimburse Licensor as additional rent for Licensor' s actual costs in reviewing any proposed plans whether or not Licensor s consent thereto is given If Licensor shall give its consent to Licensee's making such alteration improvement, addition or Utility Installation, the consentshall be deemedconditionedupon Licenseeacquiring a permit to do so from the applicable government agencies furnishing a copy thereof to Licensor prior to the commencementof the work, and complianceby Licenseewith all conditions of saidpermit in a prompt and expeditious manner Licensors approval of plans, specifications and working drawingsfor Licensees alterations improvements, additionsor Utility Installationsshall create no responsibility or liability on the part of Licensorfor their completeness, design, sufficiency or compliance with all laws, rules and regulations of governmental agencies or authorities Section 15 3 Licensee shall pay when due, all claims for labor or materials furnished or alleged to have been furnished to or for Licensee at or for use in the Licensed Area which claims are or may be secured by any mechanic' s or materialmen s lien against the Licensed Area the or the Centert or any interest therein
Section 15 4 Licensee shall give Licensor not less than ten ( 10) days notice prior to the 11 commencementof any work in the LicensedAreaby Licensee, andLicensoi shall havetheright to postnoticesof non -responsibilityin or ontheLicensedAreaor theCenterasprovidedby law If Licenseeshall, in goodfaith contestthevalidity of any suchlien claim or demand, then Licensee shall at its sole expense, defend itself and Licensor against the same and shall pay and satisfyanysuchadversejudgmentthatmayberenderedthereonbeforetheenforcementthereof against Licensor or the Licensed Area, or the Center, upon the condition that if Licensor shall require Licensee shall furnish to Licensor a surety bond satisfactory to Licensor in an amount equal to such contested lien or claim or demand indemnifying Licensor against liability for the sameandholding the LicensedArea andtheCenterfreefrom the effect of suchlien or claim In addition, Licensormay require Licenseeto payLicensor's reasonableattorneys' feesandcostsin participatingin suchactionif Licensorshalldecideit isto Licensor'sbestinteresttodoso Section 15 5 All alterations, improvements, additions and Utility Installations, which may be made to the Licensed Area by Licensee including but not limited to, floor coverings paneling doors, drapes, built-ins, moldings soundattenuation, and lighting and telephoneor communication systems conduit, wiring and outlets, shall be made and done in a good workmanlike manner and of good and sufficient quality and materials and shall be the property of Licensor and remain upon and be surrendered with the Licensed Area at the expiration of the Lease term, unless Licensor requires their removal pursuant to Section 15 1 Provided Licensee is not in default notwithstanding the piovrsrons of this Section 15 5 Licensee s personal property and equipment, other than that which is affixed to the Licensed Area so that it cannot be removed without material damage to the Licensed Area or the Center, and other than Utility Installations, shall remain the property of Licenseeandmay be removedby Licenseesubjectto the provisions of Section 1 2
Section 15 6 Licensee shall provide Licensor with as -built plans and specifications for any alterations, improvements, additions or Utility Installations
ARTICLE XVI
SECURITY DEPOSIT AND TERMINATION
Section 16 1— Licensor and Licensee agreethere shall be no security deposit associated with or required by this Agreement
Section 16 2 — Upon termination of this License for any reason whatsoever, Licensee shallrestoretheLicensedArea to its conditionimmediatelyprecedingtheterm of this License
ARTICLE XVII
COMPLIANCE WITH OWNER PARTICIPATION AGREEMENT ( OPA)
Licenseeherebyacknowledgesandagreesto be boundby, Sections501-505of theOPA By andBetweenthe RedevelopmentAgency of theCity of Huntington BeachandHuntington CenterAssociatesLLC, aswell astheagreementcontainingcovenantsaffecting real property filed with the Orange County Clerk Recorder s office as Document No 2005-000643199 12 ARTICLE XVIII
LICENSEE' S CONTRACT ADMINISTRATOR
Licensee s Director of Economic Development, or his / her designee, shall be Licensee s Contract Administrator for this Agreement with the authority to act on behalf of Licensee for the purposesof this Agreement, and all Licenseeapprovalsand noticesrequired to be given heremto Licensee shall be so directed and addressed
IN WITNESS WHEREOF thepartieshavecausetheproper executionof this Agreement as of the date set forth above
LICENSOR
BELLA TERRA ASSOCIATES LLC,
a Delaware limited liability company
By 2L=:,
Its V ( c e ) gLetc ( L y-- T
Date 3- 7- 06
LICENSEE
City of Huntington Beach a- municipal f
corporation of the State of California.,
Mayor
0400ejoor \°
City Clerk
a
APP ED AS TO FORM
V
nV ,^
City
Attey -TL, 318 ate d INITIATED AND
APPROVED 7 Director
of
Economi DevelopmentREVIEWED AND
APPROVED 13
fity
Admi istrator
14 EXHIBIT " A"
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FA10LOO LE END FLOOR PUN NOTE WALL TY E 6C EDULE KEYPLA Light shaded area = Licensed Area
Darker shaded area = Adjacent Conference Room
15 Site Map
ATTACHMENT # 2
Site Map
Bella Terra Police Substation
7777 Edinger Avenue, Suite D- 135