HomeMy WebLinkAbout09 - Commercial Marina Lease for Balboa Boat Yard with Use of a Portion of the Public Tidelands in the Street-End at 26th StreetQ �EwPpRT
CITY OF
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iz NEWPORT BEACH
<,FORN'P City Council Staff Report
April 13, 2021
Agenda Item No. 9
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Seimone Jurjis, Community Development Director - 949-644-3232,
sjurjis@newportbeachca.gov
PREPARED BY: Lauren Wooding Whitlinger, Real Property Administrator,
Iwooding@newportbeachca.gov
PHONE: 949-644-3236
TITLE: Commercial Marina Lease for Balboa Boat Yard with Use of a Portion
of the Public Tidelands in the Street -End at 26th Street
ABSTRACT:
Balboa Boat Yard of California, Inc. (BBY), located at 2414 Newport Boulevard, Newport
Beach (Property), owns and operates a commercial shipyard utilizing a portion of the City
of Newport Beach (City) managed tidelands adjacent to the property. With an irregularly
shaped lot, BBY has utilized a portion of the public tidelands in the 26th Street right-of-
way next to the Property under their annual commercial marina permit for more than
50 years. BBY needs to replace their aging dock system, and staff proposes the City enter
into a commercial marina lease agreement (Attachment A) to allow the dock replacement
work, and to address BBY's use of the public tidelands in the street -end which is restricted
under Title 17 of the City's Municipal Code. For City Council's consideration is a
commercial marina lease with BBY.
RECOMMENDATION:
a) Find this project exempt from the California Environmental Quality Act (CEQA)
pursuant to Section 15301 (Existing Facilities) and Section 15302 (Replacement or
Reconstruction) of the CEQA Guidelines, California Code of Regulations, Title 14,
Chapter 3; and
b) Authorize the City Manager and City Clerk to execute a five-year Lease Agreement
("Agreement") for use of the City -managed tidelands adjacent to 2414 Newport
Boulevard and in the 26th Street street -end, in a form substantially similar to the
agreement prepared by the City Attorney.
DISCUSSION:
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Pursuant to State of California statutes, the City holds and administers certain tidelands
in Newport Harbor in Trust on behalf of the State. The City manages the public tidelands
property under the Beacon Bay Bill of 1978, as amended.
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Commercial Marina Lease for Balboa Boat Yard with Use of a Portion of the Public
Tidelands in the Street -End at 26th Street
April 13, 2021
Page 2
The law states that when the City permits or leases public tidelands property to third
parties for private use, the City is required to charge fair market rent, and that term may
not exceed 50 years. In 2012, in compliance with the Beacon Bay Bill, the City Council
approved a model permit and a model lease template for commercial marinas by adopting
Resolution No. 2012-97. Rent for the commercial marinas is set at fair market value
pursuant to City Council adopted Resolution No. 2017-49, and the rate for shipyards is
currently $0.40 per square foot per year.
Commercial permits and leases are issued pursuant to the conditions in Title 17 — Harbor
Code of the Newport Beach Municipal Code, which outlines the City's regulations related
to its management and administration of the tidelands in Newport Harbor.
Balboa Boat Yard
BBY has operated a commercial shipyard at the Property in Newport Harbor since 1964.
Under City Pier Permit Number CP12024141, BBY was permitted to install their existing
dock system which includes one southern float projecting bayward of the bulkhead line
along the prolongation of the Property's southern property line, and a second northern
float (Attachment B). Because the northern float is parallel to the southern float, the
northern float does not follow the prolongation of the northern property line, and therefore
encroaches into the public tidelands at the 26th Street street -end as depicted in the photo
below.
4 7
F L ry x i
Uplands Property
5T
�e 2414 Newport Blvd.
IV
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Commercial Marina Lease for Balboa Boat Yard with Use of a Portion of the Public
Tidelands in the Street -End at 26th Street
April 13, 2021
Page 3
The existing permitted improvements (Attachment B) are located over: (i) 924 square feet
of private waterway landward of the bulkhead line between the prolongation of the
Property lines; (ii) 961 square feet of public tidelands bayward of the bulkhead line
between the prolongation of the Property lines; (iii) 483 square feet of public tidelands
bayward of the bulkhead line within the street -end; and (iv) 115 square feet of public
tidelands landward of the bulkhead line within the street -end.
With the dock fingers installed in their current parallel configuration, BBY is able to provide
important haul -out services to its customers using a ways car and rails system which is a
preferred method for hauling wooden and older boats that can be damaged by the
alternate travel lift haul -out method.
Given the age of the existing improvements, BBY has contacted the City to request
permits and approval to remove and replace the entire dock system (Attachment C). To
continue its haul -out services and overall shipyard operations, BBY requests approval to
continue utilizing the public tidelands and a portion of the tidelands in the street -end as
shown in Attachment B (Premises). All dimensions of the replacement floats and
gangways are proposed to remain unchanged from the dimensions of the existing
improvements. The proposed dimensions may need to change; however, to comply with
building codes during the City plan check and agency permitting process, and the final
dimensions of the leased Premises will be updated from what is currently proposed.
Section 17.35.020 Harbor Development Regulations prohibits private piers at street ends
but allows for special consideration for areas where property lines are not approximately
perpendicular to the bulkhead line and where street ends adjoin the property.
Staff proposes to enter into the Agreement, a modified version of the model commercial
marina lease template, with BBY, which outlines terms and conditions associated with
BBY's use of the public tidelands in the street -end.
Summary of Terms
The proposed terms of the Agreement are summarized below:
1. The initial term is five years, with two (2) five-year extension options (subject to
repair and/or replacement of the improvements, or maintenance extending the
remaining useful life of the improvements commensurate with the term).
2. Rent shall be set pursuant to City Council Resolution No. 2017-49, or any
successor or amended resolution. (Currently at $0.40 per sq ft.)
3. Use of the Premises during the term shall be limited to a boat building and/or boat
repair facility and associated ancillary uses.
4. BBY shall obtain and maintain during the term of the Agreement all appropriate
permits, licenses, or approvals that may be required by any governmental agency
to construct, operate, and maintain the Property and Premises.
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Commercial Marina Lease for Balboa Boat Yard with Use of a Portion of the Public
Tidelands in the Street -End at 26th Street
April 13, 2021
Page 4
5. BBY shall clearly posts signs, at its sole cost and expense, at the boundary of the
Premises warning of the submerged haul out equipment.
6. BBY shall provide insurance policies, with the coverage types and limits as
approved by the City's Risk Manager.
The Agreement has been prepared by the City Attorney's Office. BBY has reviewed and
agreed to the terms of the Agreement.
Harbor Commission
This item was reviewed by the Harbor Commission at its March 10, 2021 meeting and
recommended to City Council for approval. The Harbor Commission did not propose any
changes to the Agreement or the dock configuration. Additionally, the Harbor Commission
noted the importance of protecting and preserving marine -oriented businesses on
Newport Harbor.
Coastal Development Permit
If the City Council approves the commercial marina lease, the BBY will have to apply to
the California Coastal Commission to obtain a coastal development permit for the
construction of a new dock.
FISCAL IMPACT:
Approval of this item will result in an increase in annual rental revenue of approximately
$46.40 from the commercial marina for the additional 116 square feet of tidelands, for a
total annual rent in the amount of $623.60. The adopted budget allocates revenue from
commercial use of tidelands in Newport Harbor for shipyards to the Tidelands Fund and
the Tidelands Capital Fund; the increase in revenue from this item will be posted to the
Tidelands Capital Fund account, 10103-551275.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this project exempt from the California
Environmental Quality Act (CEQA) pursuant to Section 15301 (Existing Facilities) and
Section 15302 (Replacement or Reconstruction) of the CEQA Guidelines, California Code of
Regulations, Title 14, Chapter 3. CEQA Guidelines Section 15301 (Class 1) applies to the
"operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing
public or private structures, facilities, mechanical equipment, or topographical features,
involving negligible or no expansion of existing or former use." Section 15302 (Class 2)
applies to the "replacement or reconstruction of existing structures and facilities where the
new structures will be located on the same site as the structure replaced and will have
substantially the same purpose and capacity as the structure replaced[.]" The lease to allow
replacement of the commercial dock system is in the same location and is substantially the
same size, purpose and capacity as the dock system it replaces.
Commercial Marina Lease for Balboa Boat Yard with Use of a Portion of the Public
Tidelands in the Street -End at 26th Street
April 13, 2021
Page 5
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A — Lease Agreement with Balboa Boat Yard of California, Inc.
Attachment B —Maps
Attachment C — Site Plan
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Attachment A
Lease Agreement (with Options for Renewal) by and between City of Newport Beach
and Balboa Boat Yard of California, Inc.
Wo
LEASE AGREEMENT (WITH OPTIONS FOR RENEWAL)
BY AND BETWEEN
City of Newport Beach, a California municipal corporation
and charter city
("Lessor")
/1 Ul
Balboa Boat Yard of California, Inc., a California corporation
("Lessee")
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1.
Definitions.......................................................................................................................4
2.
Leased Premises.............................................................................................................4
3.
Term................................................................................................................................4
4.
Rent................................................................................................................................5
5.
Utilities, Taxes and Assessments....................................................................................5
6.
Use of the Premises........................................................................................................6
7.
Permits and Licenses......................................................................................................6
8.
Reserved.........................................................................................................................6
9.
Acceptance of Condition of Premises - "As -Is" / Waiver / Release...................................6
10.
Reserved.........................................................................................................................8
11.
Reconstruction or Removal.............................................................................................8
12.
Maintenance and Repair.................................................................................................8
13.
Services to be Performed by Lessee.............................................................................10
14.
Standard of Care: ..........................................................................................................
10
15.
No Interest in Property..................................................................................................10
16.
Reservation of Rights....................................................................................................10
17.
Lessor Retention of Rights............................................................................................10
18.
Liens.............................................................................................................................11
19.
Reserved.......................................................................................................................11
20.
Quitclaim Deed..............................................................................................................11
21.
Right to Enter the Premises for Inspection.....................................................................11
22.
Transfers / Hypothecation for Financing........................................................................12
23.
Bankruptcy....................................................................................................................16
24.
Defaults.........................................................................................................................16
25.
Remedies......................................................................................................................17
26.
Surrender of Premises..................................................................................................18
27.
Condemnation...............................................................................................................18
28.
Indemnification..............................................................................................................20
29.
Insurance......................................................................................................................20
30.
Hazardous Substances.................................................................................................20
31.
Quiet Possession..........................................................................................................22
32.
Compliance with Applicable Laws.................................................................................23
33.
Not Agent of Lessor.......................................................................................................23
34.
No Third Party Beneficiaries..........................................................................................23
35.
Limitation of Leasehold / Easements.............................................................................23
36.
Notices..........................................................................................................................
23
37.
Entire Agreement/Amendments.....................................................................................24
38.
Waivers.........................................................................................................................
25
39.
Lessor's Authorized Representative..............................................................................
25
40.
City Business License...................................................................................................
25
41.
Governing Law & Non -Binding Arbitration.....................................................................25
42.
Interpretation.................................................................................................................
26
43.
Time is of the Essence..................................................................................................26
44.
California Labor Laws....................................................................................................26
45.
Joint and Several Liability..............................................................................................26
46.
Memorandum of Lease Agreement...............................................................................
26
47.
No Pre -commitment / Retention of Discretion / Assumption of Risk and Waiver............
26
48.
No Damages.................................................................................................................
27
49.
Appraisals.....................................................................................................................28
50.
Reserved.......................................................................................................................28
51.
Late Charges and Delinquency Rates...........................................................................
28
52. Reserved.......................................................................................................................28
53. Government Claims Act.................................................................................................29
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This Lease Agreement (With Options for Renewal) ("Agreement") is entered into this
day of , 2021 by and between the City of Newport Beach, a California
municipal corporation and charter city ("Lessor" or "City"), and Balboa Boat Yard of California,
Inc., a California corporation ("Lessee").
RECITALS
A. Pursuant to the Tidelands Grant, the State of California granted to Lessor, as trustee,
certain Tidelands. The Tidelands must be used to promote the public's interest in water -
dependent or water -oriented activities, as described more fully in the Tidelands Grant;
B. The Tidelands Grant provides that the Tidelands shall not, at any time, be granted,
conveyed, given, or alienated to any individual, firm or corporation for any purpose whatever
except pursuant to Lessor's grant of either a franchise or lease;
C. The Tidelands Grant authorizes Lessor to enter into leases of the Tidelands for a period
not exceeding fifty (50) years so long as such leases are consistent with Lessor's obligations to
hold the Tidelands in trust for the uses and purposes contained in the Tidelands Grant;
D. On November 13, 2012 the City Council approved the model lease template upon which
this Agreement is based, by adopting Resolution No. 2012-97, as required by Municipal Code
section 17.60.060(A); therefore, subject to the terms and conditions of this Agreement, Lessor
desires to lease a portion of the Tidelands defined below as the Premises to Lessee and Lessee
desires to lease the Premises;
E. The City previously issued City Pier Permit Number CP12024141 ("Permit") for that portion
of the Tidelands located within and adjacent to the prolongation of the property lines and between
the bulkhead and pierhead lines of the Tidelands, which consists of approximately 1,443 square
feet of waterway improved with docks consisting of fingers, floats, and access ramps, and is
defined as the "Permitted Premises" , as depicted in the attached Exhibit "A" and incorporated
herein by reference, which shall expire February 28, 2021 after which time the City has stated
such Permit will not be renewed and Lessee or any other party has no continuing rights in such
Permit after such date;
F. Lessee is the fee title owner of the adjoining littoral uplands appurtenant to the Permitted
Premises located at 2414 Newport Boulevard, Newport Beach, California [APN 047-120-01],
including 924 square feet of Tidelands over private property, defined as the "Uplands Property"
as depicted in the attached Exhibit "B" and incorporated herein by this reference;
G. Lessee is the owner of approximately 598 linear feet of dock improvements located on
Tidelands that extend beyond the Permitted Premises and Uplands Property, with fingers, floats
and access ramps located within the public right-of-way at the end of 26th Street, as depicted in
Exhibit "C", attached hereto and incorporated herein by reference (the "26th Street Dock");
H. Lessee desires to extend the Permitted Premises to include the 26th Street Dock,
collectively with the Permitted Premises, which consists of approximately 1,559 square feet,
hereinafter defined as the "Premises", as described and depicted in Exhibit "D", attached hereto
and incorporated herein by this reference (the "Premises"); and
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I. The parties desire to enter this Agreement to lease the Premises for a term described
herein and to grant Lessee an option to extend the term of this Agreement.
In consideration of the mutual promises and obligations contained in this Agreement, the
receipt and sufficiency of which is hereby acknowledged, and the Recitals above, which are
incorporated by this reference, Lessee and Lessor hereby enter into this Agreement on the
following terms and conditions:
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
Definitions
Capitalized terms that are not otherwise defined in the body of this Agreement (which are
identified in parentheses (" ")) have the meanings attributed in Exhibit "E" attached hereto
and incorporated herein by this reference.
2. Leased Premises
Lessor hereby leases to Lessee, the Premises for the Term specified in Section 3. The
rights granted to Lessee by this Agreement are subject to Lessee's compliance with the
terms, covenants and conditions in this Agreement. Lessee covenants, as a material part
of the consideration for this Agreement, to keep and perform each and every term,
covenant and condition of this Agreement.
3. Term
(a) Initial Term: The Term of this Agreement shall be five (5) years commencing on
the day of , 2021, which shall be the
"Commencement Date," and terminating on the day of
, 2026, unless sooner terminated as provided in this Agreement.
(b) Option for Renewal Term(s): If Lessee is not in default of its obligations in this
Agreement, then Lessee shall have the option to extend the Term of this
Agreement for two (2) additional successive "Renewal Term(s)" of five (5) years
each, on the same terms and conditions contained in this Agreement. As provided
by the Tidelands Grant, in no event shall the Term and any Renewal Terms exceed
a total of fifty (50) years.
(i) Each Renewal Term for which an option is exercised shall commence at
the expiration of the immediately preceding Term. Lessee must exercise
its option to a Renewal Term by giving a written "Option Notice" of its
election to Lessor no earlier than two hundred and seventy (270) calendar
days and no later than ninety (90) calendar days prior to the expiration of
the immediately preceding Term.
(ii) Should Lessee fail to timely give an Option Notice, then the option for the
Renewal Term and all subsequent Renewal Terms shall be null and void
and of no further force and effect. Rent for the Renewal Term shall be
determined and adjusted as described in Section 4 below.
4. Rent
(a) Rent: Rent shall be calculated pursuant to Resolution No. 2017-49, or any
successor/amended resolution. Resolution No. 2017-49 and any
successor/amended resolution are automatically incorporated by reference into
this Agreement, without any further action by the parties, when adopted by the
Newport Beach City Council.
(b) Periodic Payment of Rent: One -twelfth (1 /12) of annual Rent for a particular Lease
Term Year shall be payable on the first (1st) day of each month during the Term.
(c) Place for Payment of Rent: All payments of Rent shall be made in lawful money
of the United States of America and shall be paid to Lessor in person or by United
States' mail, or overnight mail service, at the Cashier's Office located at 100 Civic
Center Drive, Newport Beach, CA 92660, or to such other address as Lessor may
from time to time designate in writing to Lessee. If requested by Lessor, Lessee
shall make payments electronically (at www.newportbeachca.gov) or by wire
transfer (at Lessee's cost). Lessee' assumes all risk of loss and responsibility for
late charges and delinquency rates if payments are not timely received by Lessor
regardless of the method of transmittal.
(d) Additional Rent: Lessee shall pay as "Additional Rent" for the Premises, within ten
(10) calendar days of Lessor's demand therefore (unless a different time for
payment is expressly provided in this Agreement), all other amounts required by
this Agreement, in addition to Rent. Additional Rent does not reduce or offset
Lessee's obligations to pay Rent.
(e) No Abatement or Reduction in Rent: Lessee has no right to any abatement, set-
off or reduction in Rent or Additional Rent. No endorsement or statement on any
check or any letter accompanying any check or payment will be deemed an accord
and satisfaction, and Lessor may accept such check or payment without prejudice
to Lessor's right to recover the balance or pursue any other available remedy.
(f) Net Lease: Rent, as defined in this Agreement, is based upon Lessee's material
representation and covenant that it will pay all expenses, costs, taxes;
assessments, fees or charges, and incur all liabilities, of every kind in any way
relating to, or in connection with, the Premises and the Improvements during the
Term. Accordingly, Lessee will promptly pay all expenses, costs, taxes,
assessments, fees or charges, and incur all liabilities, of every kind and description
relating to, or in connection with, the Premises and the Improvements during the
Term.
5. Utilities, Taxes and Assessments
(a) Lessee is solely responsible for obtaining all utilities and paying all taxes, fees and
assessments for the Premises or Improvements located thereon. Lessee shall
promptly pay, and discharge prior to delinquency, any and all charges for services
or utilities and all taxes, fees and assessments furnished to or due on the Premises
or Improvements located thereon, or occupants thereof.
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(b) Lessor hereby gives notice to Lessee, pursuant to Revenue and Tax Code
Section 107.6 that this Agreement may create a possessory interest that is the
subject of property taxes levied on such interest, the payment of which taxes shall
be the sole obligation of Lessee. Lessee shall advise in writing any sublessee,
licensee, concessionaire or third party using the Premises of the requirements of
Section 107.6.
(c) Any payments under this Section shall not reduce or offset Rent payments. Lessor
has no liability for such payments.
6. Use of the Premises
(a) During the term of this Agreement, Lessee will use and occupy the Premises solely
and exclusively for the operation of a boat building and/or boat repairs facility and
associated ancillary uses. The permitted use of the Premises granted herein is
subject to the terms and conditions set forth in this Agreement.
(b) Except as provided under this Agreement, Lessee shall not make or permit to be
made any alterations, additions or improvements to the Premises, nor shall it paint,
install decorations, or install any signs, lettering or advertising of any type, or any
other type of visual displays, on or about the Premises without the prior written
consent of Lessor.
(c) Notwithstanding the foregoing, Lessee shall clearly post signs, at Lessee's sole
expense, at the boundary between the 261h Street Dock and the Permitted
Premises "CAUTION: SUBMERGED EQUIPMENT" that is legible and visible from
the dock.
7. Permits and Licenses.
Lessee, at its sole expense, shall obtain and maintain during the term of this Agreement,
all appropriate permits, licenses, and certificates that may be required by any government
agency.
8. Reserved.
9. Acceptance of Condition of Premises - "As -Is" / Waiver / Release
(a) Lessee's Acknowledgment: Lessee acknowledges that Lessee, Lessor or
unrelated third parties may have constructed improvements or will be constructing
improvements (defined as "Improvements", some or all of which may be
Improvements as specified on Exhibit "F", attached hereto and incorporated herein
by this reference) on and adjacent to the Premises (including, without limit,
bulkheads in the surrounding area adjacent to and/or abutting the Premises).
Lessee agrees and acknowledges that it is relying solely on its own inspections
and investigations regarding the Premises, the condition of the Premises, the
surrounding area and all other matters related thereto. Lessee represents and
warrants that it has obtained the advice of such independent professional
consultants as it deems necessary in connection with its investigation and study of
the Premises and surrounding area, including, without limitation, water quality,
Improvement quality, soils, hydrology, seismology, archaeology, Applicable Laws
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(including, without limitation, the laws relating to the construction, maintenance,
use and operation of the Premises and Improvements), and all environmental,
zoning and other land use entitlement requirements and procedures, height
restrictions, floor area coverage limitations and similar matters.
(b) Only Lessor's Express Written Agreements Binding: Lessee acknowledges and
agrees that no person acting on behalf of Lessor is authorized to make, and that
except as expressly set forth in this Agreement, neither Lessor nor anyone acting
for or on behalf of Lessor has made, any representation, warranty, statement,
guaranty or promise to Lessee, or to anyone acting for or on behalf of Lessee,
concerning the condition of the Premises, any other aspect of the Premises or the
surrounding area. Lessee further acknowledges and agrees that no
representation, warranty, agreement, statement, guaranty or promise, if any, made
by any person acting on behalf of Lessor which is not expressly set forth in this
Agreement will be valid or binding on Lessor.
(c) Verification of Acceptance: Lessee further acknowledges and agrees that
Lessee's execution of this Agreement constitutes Lessee's representation,
warranty and covenant that the condition of the Premises and the surrounding area
has been independently verified by Lessee to its full satisfaction, and that, except
to the extent of the express covenants of Lessor set forth in this Agreement,
Lessee will be leasing the Premises based solely upon and in reliance on its own
inspections, evaluations, analyses and conclusions, or those of Lessee's
representatives. As material inducement to Lessor's entering this Agreement,
Lessee represents, warrants and covenants that LESSEE ACCEPTS AND IS
LEASING THE PREMISES, AND IS AWARE OF THE SURROUNDING AREA, IN
ITS "AS -IS, WITH ALL FAULTS" CONDITION AND STATE OF REPAIR
INCLUSIVE OF ALL FAULTS AND DEFECTS, WHETHER KNOWN OR
UNKNOWN, AS MAY EXIST AS OF THE LESSEE'S EXECUTION OF THIS
AGREEMENT, AND WITH NO WARRANTY EXPRESS OR IMPLIED FROM
LESSOR AS TO ANY LATENT, PATENT, FORESEEABLE AND
UNFORESEEABLE CONDITIONS. Without limiting the scope or generality of the
foregoing, Lessee expressly assumes the risk that the Premises do not or will not
comply with any Applicable Laws now or hereafter in effect.
(d) Waivers, Disclaimers and Release:
(i) Waiver and Disclaimer: Lessee hereby fully and forever waives, and
Lessor hereby fully and forever disclaims, all warranties of whatever type
or kind with respect to the Premises and Improvements, whether
expressed, implied or otherwise including, without limitation, those of
fitness for a particular purpose, tenant ability, habitability or use.
(ii) Lessor's Materials: Lessee further acknowledges that any information and
reports including, without limitation, any engineering reports, architectural
reports, feasibility reports, marketing reports, soils reports, environmental
reports, analyses or data, or other similar reports, analyses, data or
information of whatever type or kind which Lessee has received or may
hereafter receive from Lessor or its agents or consultants have been
furnished without warranty of any kind and on the express condition that
Lessee will make its own independent verification of the accuracy, reliability
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and completeness of such information and that Lessee will not rely thereon.
Accordingly, Lessee agrees that under no circumstances will it make any
claim against, bring any action, cause of action or proceeding against, or
assert any liability upon, Lessor or any of the persons or entities who
prepared or furnished any of the above information or materials as a result
of the inaccuracy, unreliability or incompleteness of, or any defect or
mistake in, any such information or materials. Lessee hereby fully and
forever releases, acquits and discharges Lessor and each person
furnishing such information or materials of and from, any such claims,
actions, causes of action, proceedings or liability, whether known or
unknown.
(iii) Waiver of Civil Code Section 1542: With respect to all releases made by
Lessee or Lessor under or pursuant to this Section 8, Lessee or Lessor
hereby waives the application and benefits of California Civil Code
Section 1542 and hereby verifies that it has read and understands the
following provision of California Civil Code Section 1542:
"A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement with the
debtor."
Lessee: Lessor:
10. Reserved
11. Reconstruction or Removal
Lessee will promptly cause the Improvements or any part thereof, which are (a) damaged
or destroyed or (b) declared unsafe or unfit for occupancy or use by a public entity with
the appropriate authority, to either be (i) removed or (ii) restored or reconstructed to their
original design and layout, or to a good and safe condition as reasonably approved by
Lessor, whether or not required to be insured against, at Lessee's sole cost and expense.
Restoration or reconstruction shall commence within ninety (90) calendar days from the
date of issuance of all permits (City and Coastal), which permits Lessee will diligently
pursue in a commercially reasonable timeframe, to repair, and Lessee shall diligently
pursue reconstruction to completion. Lessee shall not be entitled to any abatement in
Rent or other form of compensation from Lessor for loss of use of the Premises or
Improvements in the event of damage or destruction of the Premises or Improvements.
Damage to or destruction of the Premises or the Improvements shall not permit Lessee to
terminate this Agreement. Alternatively, in the event of damage or destruction, Lessee
may remove all Improvements from the Premises and terminate this Lease. The force
majeure provisions in this Agreement shall apply to reconstruction.
12. Maintenance and Repair
(a) Maintenance by Lessee: Lessee assumes full responsibility for operation,
maintenance and repair of the Premises, including any finger, pier, gangway, float,
and pile, throughout the Term at its sole cost, and without expense to Lessor.
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(i) Lessee's obligation to maintain the Premises shall include a regular
preventative maintenance program, together with routine repairs of
damage that may be caused by normal wear and tear, to be provided by a
licensed service company acceptable to Lessor. Lessee shall obtain all
required permits and approvals necessary for such repair.
(ii) City shall be entitled to inspect the Premises for compliance with the terms
of this Agreement, and with all applicable federal, state and local
regulations.
(iii) Maintenance dredging bayward of the property line, between the bulkhead
line and the pierhead line, shall be the responsibility of Lessee. Lessee
shall perform all maintenance in compliance with all Applicable Laws.
(iv) Reserved.
(v) Reserved.
(vi) Lessee expressly waives (a) the right to require Lessor to make repairs;
(b) any right to make repairs at the expense of Lessor; (c) the right to
reduce or offset Rent as a consequence of the condition of the Premises
or the Improvements; (d) the benefits of California Civil Code
Sections 1932, 1941 and 1942, as amended from time to time; and (e) any
law, judicial pronouncement, or common law principle similar thereto, which
is now or hereafter in effect or is otherwise inconsistent with the provisions
of this Agreement.
(b) Reserved.
(c) Reserved.
(d) Maintenance Prior to Renewal Term: In addition to any other conditions to
Lessee's exercise of the option to extend the Term (or Renewal Term) of this
Agreement, no less than one hundred twenty (120) calendar days prior to the end
of a Term that may be renewed, Lessee shall submit a maintenance report stating
the condition of the Improvements on the Premises. Improvements shall be
inspected, and the maintenance report shall be written, by a qualified marine
engineer that is retained and paid for by Lessee but approved by Lessor.
The maintenance report shall make repair and maintenance recommendations to
ensure that the maintenance standards in this Agreement are met and will be
maintained and the useful life of the Improvements will extend throughout the
Renewal Term(s). At the time of providing the maintenance report to Lessor,
Lessee shall sign a certification under penalty of perjury that Lessee shall, at its
sole cost, make all repairs and perform all maintenance identified in the
maintenance report to the reasonable satisfaction of, and on a schedule
satisfactory to, Lessor. Any costs incurred by Lessee to make repair and
maintenance recommendations is a qualification for the Term or Renewal Term of
this Agreement and is not Rent. The cost of repair and maintenance
recommendations shall not be considered by the parties or appraiser in
determining any Rent or Rent adjustment during the term of this Agreement.
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(e) Maintenance by Lessor: Nothing in this Agreement requires Lessor to perform any
maintenance or repair to the Premises or to any adjacent property or bulkheads;
or to make any improvements whatsoever on or for the benefit of the Premises.
However, with no less than twenty-four (24) hours written notice -from Lessor to
Lessee, Lessor shall have the right, but not the obligation, to make any emergency
repairs related to safety or hazard concerns to or on the Premises. Lessee shall
reasonably cooperate with Lessor in any activity undertaken by Lessor on the
Premises. Lessor may collect its cost for emergency repairs from the Lessee as
Additional Rent.
13. Services to be Performed by Lessee
In addition to payment of Rent, Lessee shall also:
(a) Maintain the Premises in a safe and working condition;
(b) Maintain vehicle access on surrounding public streets by complying with City of
Newport Beach Municipal Code parking regulations; and
(c) Prohibit all vessels (owned and under the care of Lessee) from being moored
overnight at the 26th Street Dock without prior written permission from the City.
Lessee further agrees and understands that the 26th Street Dock is and continues
to be constructed over public property and that the public shall not be denied
access to the Tidelands adjacent to the 26th Street Dock.
14. Standard of Care:
Lessor agrees to perform all services required hereunder in a manner commensurate with
community professional standards.
15. No Interest in Property
Nothing herein shall be deemed to create a leasehold interest, easement or any property
right, or to grant any possessory or other interest in the Tidelands area at the 26th Street
Dock, other than a revocable license to access and operate the 26th Street Dock for the
terms set forth in this Agreement.
16. Reservation of Rights
Lessee understands, acknowledges and agrees that any and all authorizations granted to
Lessee under this Agreement, regarding use of the Tidelands at the 261h Street Dock, are
non-exclusive and shall remain subject to all prior and continuing regulatory and
proprietary rights and powers of Lessor to regulate, govern and use the Tidelands, as well
as any existing encumbrances, deeds, covenants, restrictions, easements, dedications
and other claims of title that may affect the Tidelands.
17. Lessor Retention of Rights
Lessee's right to use the Tidelands at the 26th Street Dock during any Term or Renewal
Term of this Agreement shall be subordinate and junior to the rights of Lessor to use and
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occupy the Tidelands at the 26th Street Dock for any purpose that does not interfere with
Lessee's use.
18. Liens
(a) Liens Prohibited: Lessee shall not permit to be imposed, recorded or enforced
against the Premises, any portion thereof or any structure or Improvement thereon,
any mechanics, materialmen's, contractors or other liens arising from, or any
claims for damages growing out of, any work or repair, construction or alteration
of improvements on the Premises.
(b) Release/Removal of Liens: In the event any lien or stop notice is imposed or
recorded on the Premises, or an Improvement permanently affixed to the
Premises, during the Term, Lessee shall pay or cause to be paid all such liens,
claims or demands before any action is brought to enforce the same against the
Premises or the Improvement. Notwithstanding the foregoing, if Lessee
legitimately contests the validity of such lien, claim or demand, then Lessee shall,
at its expense, defend against such lien, claim or demand provided that it provide
Lessor the indemnity in Section 22 and provided Lessee shall pay and satisfy any
adverse judgment that may be rendered before any enforcement against Lessor,
the Premises, or the Improvement.
(c) Reserved.
(d) Exceptions: Section 12 shall not apply to a foreclosure of a Leasehold Mortgage
encumbering the Leasehold Estate if the Leasehold Mortgage has previously
received Lessor consent in accordance with this Agreement.
19. Reserved.
20. Quitclaim Deed
Upon expiration or the earlier termination of this Agreement for any reason, including but
not limited to termination because of default by Lessee, Lessee shall, at Lessee's sole
expense, remove all fixtures, equipment, and Improvements installed by Lessee from the
Premises. Unless another time line is agreed upon by Lessor, all fixtures, equipment and
Improvements shall be removed by Lessee within ninety (90) calendar days following the
expiration or termination of this Agreement. Lessee shall continue to pay Rent to Lessor
during the time Lessee removes the Improvements from the Premises, as provided in
Section 20(b). Alternatively, Lessee, with Lessor's written consent, may quitclaim all
fixtures, equipment, and Improvements on the Premises to Lessor. Lessor acknowledges
the bulkhead is owned by Lessee and Lessor has no rights to use any portion of such
bulkhead. Notwithstanding any other provision of this Agreement as permitted by
California Public Resources Code Section 6312, or any successor statute, the parties
agree that upon expiration or earlier termination of this Agreement Lessor shall have no
liability or obligation to pay compensation for any improvements made to the Premises.
21. Right to Enter the Premises for Inspection
Lessor expressly reserves the right and shall be entitled to enter the Premises, and all
Improvements, including a right of reasonable access to the Premises across Lessee
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owned or occupied lands adjacent to the Premises, to inspect the Premises for compliance
with the terms of this Agreement. Unless otherwise provided in this Agreement, Lessee
shall provide Lessor access to the Premises for such purposes, upon not less than
seventy-two (72) hours written notice.
22. Transfers / Hypothecation for Financing
(a) Transfers: Except as expressly provided herein, Lessee and its successors shall
not either voluntarily, or by operation of law, engage in a Transfer without first
providing written request to Lessor and obtaining Lessor's prior written consent
which shall not be unreasonably withheld or delayed. Notwithstanding anything to
the contrary set forth herein, Lessee may, without consent from the City, assign all
or a portion of its interest in the Premises and/or this Agreement to any entity or
person affiliated with Lessee or a partner member, shareholder or trustee of
Lessee ("Permitted Transferees"). Lessee agrees that Lessor's discretion to
provide, withhold or condition consent to any Transfer (except for the Permitted
Transfers to a Permitted Transferee in which the City has no consent) includes,
without limitation, Lessor's discretion in administering the Tidelands, which are a
valuable public resource held by Lessor in trust for the people of the State of
California; therefore, Lessor's decision to grant, withhold or condition consent shall
be reasonable. A Transfer made in violation of this Section 16, including without
limitation the obligation to receive Lessor's prior consent, is a default subject to the
cure right in Section 18(b).
Lessee shall comply with the following requirements for any Transfer. Lessee
agrees that failure to satisfy these requirements are reasonable bases for Lessor
to deny consent (but is not exhaustive of the bases to deny consent):
(1) Lessee shall give Lessor at least thirty (30) calendar days written
notice of its proposed Transfer and provide appropriate
documentation demonstrating to Lessor's satisfaction the financial
and operational responsibility and appropriateness of the proposed
transferee. Lessee shall provide Lessor within five (5) calendar
days such other or additional information and/or documentation as
may be reasonably requested by Lessor.
(2) Lessee shall provide the terms and provisions of the proposed
Transfer.
(3) Except as otherwise provided in this Agreement for a permitted
Leasehold Mortgagee, the proposed transferee shall, in recordable
form, expressly assume this Agreement.
(4) In the event the proposed transferee is acquiring only a portion of
the adjoining Uplands Property, the rights and obligations of Lessee
and the proposed assignee shall be proportionately adjusted in the
manner deemed appropriate by Lessor in light of its obligations
under the Tidelands Grants; and
(5) Lessee shall pay all Lessor's costs associated with Lessor's
consideration of the Transfer, regardless of whether such transfer
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is consummated, or in connection with any other actions taken by
Lessor pursuant to this Section 16.
(b) Transfer if Appurtenant to Uplands Property
If Lessee Transfers its interest or rights to use such Uplands Property
adjoining the Premises separately from the Premises or Lessee's interest
in this Agreement, Lessee shall provide the following to the Lessor:
(1) Lessee must provide Lessor with thirty (30) calendar days prior
written notice of the proposed Transfer; and
(2) Lessee, subject to Lessor's reasonable approval, must provide
written documentation to Lessor describing in sufficient detail how
access will be provided to the Premises and the required uplands
support (e.g., parking, restrooms, etc.) and its respective location
that will serve/benefit the Premises.
(c) Subletting Permitted to Boat Slip Renters
(i) Notwithstanding other provisions of this Section 16, Lessee shall have the
right to sublease the slips to Boat Slip Renters and to extend or renew any
subleases with Boat Slip Renters.
(d) Hypothecation for Financing: For the purpose of financing or refinancing the
acquisition of the Premises, the Improvements, the fixtures and equipment located
on the Premises, the alteration, construction or reconstruction of Improvements,
Lessee may engage in a Transfer to a Leasehold Mortgagee only if, in addition to
such other applicable provisions in this Agreement, the provisions in this
Section 16(d) are satisfied. In no event shall Leasehold Mortgages either
individually or collectively exceed a loan -to -value ratio of seventy-five percent
(75%) of the Premises.
(i) Notice to Lessor. Lessee shall provide Lessor with a fully executed
complete copy of each Leasehold Mortgage, and all related loan
documents (including copies of all appraisals), any and all amendments
thereto, and the name and address of each Leasehold Mortgagee. In the
event of any assignment of a Leasehold Mortgage or in the event of a
change of address of a Leasehold Mortgagee, Lessee shall provide the
new name and address of the assignee or Leasehold Mortgagee to Lessor.
Notices of default and notices of foreclosure shall be given to Lessor
contemporaneously with service on Lessee.
(ii) Notices to Leasehold Mortgagees. A Leasehold Mortgagee shall not be
entitled to notice or a copy of any notice from Lessor unless Lessee
provides Lessor with Leasehold Mortgagee's name and address and
requests that such Leasehold Mortgagee receive notices.
(iii) Leasehold Mortgagee Opportunity to Remedy Default. Any Leasehold
Mortgagee who is entitled to notice as provided in Section 16(d)(ii) shall
have the right, but not the obligation, to remedy the default or acts or
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omissions of Lessee within the period and in the manner specified in this
provision. Upon Lessee's default and subsequent expiration of the
applicable cure period in Section 18, a Leasehold Mortgagee shall be
permitted to remedy such default(s) at any time within fifteen (15) calendar
days (for nonmonetary defaults) and five (5) calendar days (for monetary
defaults) following the expiration of the Lessee's cure period; provided,
however, Lessor shall not be required to furnish any further notice(s) of
default(s) to said Leasehold Mortgagee.
(iv) Leasehold Mortgagee Procedure on Lessee's Default.
(1) Upon Leasehold Mortgagee's remedy of Lessee's default to the
reasonable satisfaction of Lessor, this Agreement shall continue
provided that a Leasehold Mortgagee:
a. Pays all Rent, and other monetary obligations of Lessee
under this Agreement as the same becomes due, and
perform all of Lessee's other obligations under this
Agreement; and
b. If not enjoined or stayed, takes steps to acquire or sell
Lessee's interest in this Agreement and in the Premises to
an assignee, future transferee or purchaser by foreclosure
of the Leasehold Mortgage or other appropriate means, and
prosecutes the same to completion with reasonable
diligence.
(2) Nothing in this Section 16(d) shall extend this Agreement beyond
the Term or any Renewal Term; nor to require a Leasehold
Mortgagee to continue such foreclosure proceedings after a breach
or default has been remedied. If Lessee's breach or default is
remedied and the Leasehold Mortgagee discontinues such
foreclosure proceedings, this Agreement, at Lessor's option and in
its sole and absolute discretion, may continue as if no breach or
default under this Agreement occurred.
(3) Before a Leasehold Mortgagee, or any other assignee, future
transferee or purchaser by foreclosure of the Leasehold Mortgage,
acquires the Leasehold Estate, it shall, as an express condition
precedent, agree in writing to assume each and every obligation
under the Agreement. Regardless, with the exception of said
Leasehold Mortgagee, no Transfer to an assignee, future
transferee or purchaser by foreclosure of a Leasehold Mortgage
shall be effective without Lessor's prior written consent, which shall
not be unreasonably withheld.
(4) The assignee, purchaser or future transferee at any sale of this
Agreement or of the Leasehold Estate in any proceedings for the
foreclosure of or trustee's sale under any Leasehold Mortgage, or
pursuant to any deed in lieu of foreclosure, shall be deemed an
assignee or transferee of this Agreement, and shall be deemed to
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have agreed to perform all of the terms, covenants and conditions
on the part of Lessee to be performed in this Agreement but only
from and after the date of such purchase and assignment, and only
for so long as such purchaser; future transferee or assignee is the
owner of the Leasehold Estate.
(5) If Lessor denies consent to (a) the successful bidder or purchaser
upon foreclosure or (b) a proposed future transferee, assignee or
sublessee of the Leasehold Mortgagee, the sole and exclusive
remedy shall be for such party or the Leasehold Mortgagee to seek
relief in the nature of specific performance.
(6) A Leasehold Mortgagee shall include a statement in any Notice of
Foreclosure Sale that provides the requirements for Lessor's
consent.
(v) Casualty Loss. A standard lender's loss payable endorsement naming
each Leasehold Mortgagee may be added to any and all insurance policies
required to be carried by Lessee hereunder. Nevertheless, the provisions
in any Leasehold Mortgage for the application of insurance proceeds shall
be subject to the provisions of this Agreement and, in the event of any
conflict between the provisions of this Agreement and the provisions of any
Leasehold Mortgage with respect thereto, the provisions of this Agreement
shall control.
(vi) Limitation on Lessee's Right to Encumber. Any Leasehold Mortgage now
or hereafter placed on Lessee's interest in the Premises shall be subject
and subordinate to any limitations in the Tidelands Grants, Lessor's interest
in the Tidelands, this Agreement, and any mortgage now in existence on
the Leasehold Estate. Lessee shall not use, encumber or Transfer this
Agreement or the Premises as security or collateral for any action unless
directly related to the Tidelands and the permitted uses allowed by this
Agreement.
(vii) No Rights to Encumber Interest of Lessor. The provisions of Section 16 do
not give any entity the right to mortgage, hypothecate, cause a Transfer of,
or otherwise encumber or cause any liens to be placed against the Lessor's
interest in the Premises as trustee of the Tidelands, nor shall anything in
this Agreement be construed as resulting in a subordination in whole or in
part of Lessor's interests.
(viii) Estoppel Certificate. Lessor shall, within ten (10) business days after
written request from Lessee or any Leasehold Mortgagee, certify by written
instrument to any Leasehold Mortgagee or proposed Leasehold
Mortgagee: (a) as to whether this Agreement has been modified,
supplemented, amended, extended or renewed; (b) as to the existence of
any breach or default of this Agreement; and (c) as to the commencement
and expiration dates of the term of this Agreement.
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23. Bankruptcy
Lessee agrees that if all, or substantially all, of Lessee's assets are placed in the hands of
a receiver or trustee and remain so for a period of thirty (30) calendar days; or if Lessee
makes an assignment for the benefit of creditors or be adjudicated bankrupt; or if Lessee
institutes any proceedings under the Bankruptcy Act or similar law wherein Lessee seeks
to be adjudicated bankrupt or to be discharged of its debts or seeks to effect a plan of
liquidation or reorganization; or if any involuntary proceedings be filed against Lessee and
not dismissed or stayed within one hundred twenty (120) calendar days, then this
Agreement or any interest in and to the Premises shall not become an asset in any such
proceeding and, to the extent permitted by law (and in addition to the provisions of
Section 18) Lessor may declare this Agreement terminated and take possession of the
Premises.
24. Defaults
The occurrence of any of the following constitutes a default of this Agreement by Lessee:
(a) Continued failure to operate, vacation or abandonment of the Premises except for
casualty, damage, repair construction or Harbor dredging for three hundred (300)
consecutive calendar days after the date of Lessor's written notice to Lessee.
(b) Failure to make any payment required by this Agreement when such failure
continues for a period of fifteen (15) calendar days after the date of Lessor's written
notice that payment is due (unless another time period within which to make
payment is specifically provided); provided that any such notice provided in this
Section 18(b) or in Section 18(c) shall be in lieu of, and not in addition to, any notice
required under Section 1161 of the California Code of Civil Procedure, as may be
amended.
(c) Failure of Lessee to observe or perform any of the covenants, conditions, or
provisions in this Agreement, except for a monetary default specified in
Section 18(b) above, where such failure continues for a period of thirty (30)
calendar days after the date of Lessor's written notice of the default (unless
another time period within which to perform is specifically provided in this
Agreement); provided, however, that if the nature of Lessee's default is such that
more than thirty (30) calendar days are reasonably required to complete its cure,
then Lessee shall not be in default if Lessee commences to cure the default within
thirty (30) calendar days after written notice and thereafter diligently and
continuously pursues the cure to completion.
(d) Any of the events in Section 17 occur; provided that this provision is not applicable
or binding on a Leasehold Mortgagee which is of record and has been consented
to by Lessor, or to said Leasehold Mortgagee's successors in interest consented
to by Lessor, as long as (i) there remains any monies to be paid by Lessee to such
Leasehold Mortgagee under the terms of such Leasehold Mortgage, (ii) that such
Leasehold Mortgagee or its successors in interest, continuously and timely pays
to Lessor all Rent due or coming due under the provisions of this Agreement and
the Premises are continuously and actively used and (iii) that said Leasehold
Mortgagee agrees in writing to assume and perform each and every obligation
under the Agreement.
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25. Remedies
(a) Cumulative Nature of Remedies. If any default by Lessee continues without being
cured in the time period specified in Section 18, then Lessor shall have the
remedies described in this Section 19, which are in addition to all other rights and
remedies provided by law, equity or elsewhere in this Agreement. Lessor shall
have the right to elect its remedies and may resort to any such remedies
cumulatively, or in the alternative.
(i) Maintain Agreement. Lessor may maintain this Agreement in full force and
effect and recover Rent, Additional Rent, payment or other charges or
consideration as they become due, without terminating Lessee's right of
possession, regardless of whether Lessee has abandoned the Premises.
(ii) Termination. Lessor may terminate this Agreement by giving Lessee thirty
(30) calendar days written notice. If Lessor terminates this Agreement,
Lessor may recover possession (which Lessee shall surrender and vacate
upon demand) and remove all persons, and property and Improvements.
Lessor shall be entitled to recover the following as damages:
(1) The Worth at the Time of Award of the unpaid Rent, Additional Rent
or other charges which had been earned at the time of termination;
(2) The Worth at the Time of Award of the amount by which the unpaid
Rent, Additional Rent or other charges which would have been
earned after termination until the time of award exceeds the amount
of such loss that Lessee proves could have been reasonably
avoided;
(3) The Worth at the Time of Award of the amount by which the unpaid
Rent, Additional Rent or other charges for the balance of the Term
of this Agreement after the time of award exceeds the amount of
such loss that Lessee proves could have been reasonably avoided;
(4) Any other amount necessary to reasonably compensate Lessor for
the detriment proximately caused by Lessee's failure to perform its
obligations under this Agreement;
(5) At Lessor's election, such other amounts in addition to or in lieu of
the foregoing as may be permitted from time -to -time by applicable
California law; and
(6) Lessor shall also be entitled to an award of the costs and expenses
(including, without limitation, actual attorneys' fees and costs)
incurred by Lessor in maintaining or preserving the Premises after
default, preparing the Premises for re -letting, or repairing any
damage caused by the act or omission of Lessee.
The "Worth at the Time of Award" of the amounts referred to in "(1)"
and "(2)" above shall be computed by charging interest at ten
percent (10%) per annum from the dates such amounts accrued to
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Lessor. The "Worth at the Time of Award" of the amount referred
to in "(3)" above shall be computed by discounting such amount at
ten percent (10%) per annum.
(b) Waiver of Rights. Lessee waives any right of redemption or relief from forfeiture
under California Code of Civil Procedure Sections 1174 or 1179, or under any
other present or future law, if Lessee is evicted or Lessor takes possession of the
Premises by reason of any default by Lessee.
26. Surrender of Premises
(a) Upon expiration or earlier termination, of this Agreement Lessee shall peaceably
surrender the Premises to Lessor.
(b) If Lessee elects to remove any fixtures, improvements (including all Improvements
to which Lessee has title), or if Lessor declines Lessee's offer to accept ownership
of the same, then Lessee shall restore the Premises to its natural state as deemed
acceptable by Lessor. All plans for Lessee's subsequent removal shall be to the
reasonable satisfaction of Lessor and shall be completed no later than ninety (90)
calendar days after the expiration or sooner termination of this Agreement or other
time line agreed upon by the Lessor. During any period of time employed by
Lessee to remove fixtures, improvements (including all Improvements to which
Lessee has title) Lessee shall continue to pay Rent to Lessor in accordance with
this Agreement, which said Rent shall be prorated daily.
(c) Any holding over by Lessee after either expiration or earlier termination shall not
constitute a renewal or extension, or give Lessee any rights in or to the Premises.
If Lessee, with Lessor's consent, remains in possession of the Premises after
Agreement expiration or earlier termination (including for the purpose of Lessee's
removal of Improvements), such possession shall be deemed a month-to-month
tenancy terminable upon thirty (30) calendar days' notice furnished at any time by
either party to the other. In addition, all provisions of this Agreement, except those
pertaining to Term, shall apply to the month-to-month tenancy, and Lessee shall
continue to pay all Rent required by this Agreement. Provided, however, Rent
shall be paid monthly on the first (1st) day of the month.
27. Condemnation
(a) Lessor shall notify Lessee of any Condemnation by providing written notice thereof
no later than thirty (30) calendar days after the later of (i) the filing of a complaint
in eminent domain by Condemnor or (ii) any voluntary final agreement by Lessor
and Condemnor of the extent of the scope and extent of property interests in the
Premises to be included within the Condemnation.
(b) If the Premises are totally taken by Condemnation, this Agreement shall terminate
as of the date on which Condemnor actually takes physical possession of the
Premises, which date is referred to in this Section 21 as the "Termination Date." If
less than all but more than fifty percent (50%) of total area of the Premises are
taken through Condemnation, Lessee shall have the option to terminate this
Agreement by providing written notice to Lessor. Lessee's notice must be given
within thirty (30) calendar days after Lessee's receipt of Lessor's notice provided
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pursuant to subparagraph (a) above, and if Lessee's notice of termination is not
timely given, then Lessee shall conclusively be deemed to have elected not to
terminate this Agreement. If this Agreement is terminated under this Section, the
termination shall be effective on the Termination Date, and Lessor shall prorate
Rent to that date. Lessee must pay Rent for the period up to, but not including,
the Termination Date, as prorated by Lessor. Lessor shall return to Lessee any
prepaid Rent allocable to any period on or after the Termination Date.
(c) If any part of the Premises is taken by Condemnation and this Agreement is not
terminated, Rent shall be proportionately reduced based on the value of the actual
portion of the Premises taken as a percentage of the value of the entire Premises,
in its "before" condition and without regard to any injury to the remainder, or benefit
to the remainder, resulting from the taking or the construction of the project for
which the taking occurs. Lessor shall make such determination of the amount of
reduction in Rent in its reasonable discretion, based upon either the appraisal for
the Condemnation provided by the Condemnor, or pursuant to an appraisal
prepared in the manner provided in Section 43, as Lessor shall determine. Lessor
and Lessee agree to execute an amendment or other appropriate instrument
modifying this Agreement within thirty (30) calendar days after a partial taking,
confirming the reduction in Premises and reduction in Rent.
(d) If a temporary taking of part of the Premises occurs through (i) the exercise of any
government power by Condemnor or (ii) a voluntary sale or transfer by Lessor to
any Condemnor, either under threat of exercise of eminent domain by a
Condemnor or while legal proceedings for condemnation are pending, Rent shall
abate during the time of such taking but only with respect to that physical portion
of the Premises actually temporarily taken, and all Rent or other compensation
paid by the Condemnor shall be the sole and exclusive property of Lessor.
(e) In the event of a total or partial Condemnation, though the award shall belong and
be paid to Lessor, Lessee shall be entitled to claim and receive, and Lessor hereby
assigns to Lessee, from such award:
(i) A sum attributable to the fair market value of any and all Improvements
made to the condemned portion(s) of the Premises by Lessee in
accordance with this Agreement, which Improvements Lessee has the right
to remove, but elects not to remove; or, if Lessee elects to remove any
such Improvements, a sum attributable to their reasonable removal and
relocation costs not to exceed the fair market value of such Improvements;
and
(ii) A sum attributable to any excess of the present value at the date of taking
of the fair market rental value of the condemned portion(s) of the Premises,
exclusive of any of Lessee's Improvements for which it is compensated
under subsection (i), above, for the remainder of the term over the present
value at the date of taking of the actual Rent payable by Lessee hereunder
for the condemned portion(s) for the remainder of the term; and
(iii) A sum attributable to any diminution of the present value at the date of
taking of the fair market rental value (i.e., that portion or those portions not
condemned) for the remainder of the term; and
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(iv) Any sum awarded or paid to Lessee by any Condemnor for damage to
Lessee's business or for "loss of goodwill."
28. Indemnification
In addition to any other indemnity provided for in this Agreement, and notwithstanding any
other provisions of this Agreement to the contrary, Lessee indemnifies, defends (with
counsel selected by Lessor) and holds harmless Lessor, its elected officials, officers,
employees, agents, attorneys, volunteers and representatives from and against all claims,
demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines,
penalties, liabilities, costs and expenses (including, without limitation, attorney's fees,
disbursements and court costs) of every kind that may arise from or in any manner relate
to (directly or indirectly): (i) Lessee's rights, obligations, acts or omissions under this
Agreement, (ii) Lessee's occupancy and use, or Lessee's guests, invitees, sublessees, or
licensees occupancy and use, of the Premises, or Improvements (individually, each a
"Claim" and, collectively, "Claims"). The indemnification in this Section 22 specifically
includes, without limitation, all Claims arising by reason of:
(a) The death or injury of any person or damage to real or personal property caused
or allegedly caused by the condition of the Premises, Improvements, or an act or
omission of Lessee or an agent, contractor, subcontractor, supplier, employee,
servant, sublessee or concessionaire of Lessee;
(b) Any work performed on the Premises, Improvements, or materials furnished to the
Premises, Improvements, by or at the request of Lessee or any agent, contractor,
subcontractor, supplier, employee, servant, sublessee or concessionaire of
Lessee, with the exception of maintenance performed by City; and/or
(c) Lessee's failure to perform any provision of this Agreement or to comply with any
requirement of Applicable Law or any requirement imposed on the Premises or
Improvements by any duly authorized governmental agency or political
subdivision. Lessee's obligations in this Section (or any other provision providing
indemnity in this Agreement) shall not extend to the degree any Claim is
proximately caused by the sole negligence or willful misconduct of Lessor, subject
to any immunities which may apply to Lessor with respect to such Claims. This
indemnification provision and any other indemnification provided elsewhere in this
Agreement shall survive the termination of this Agreement and shall survive for the
entire time that any third party can make a Claim.
29. Insurance
Without limiting Lessee's indemnification of Lessor, Lessee will obtain, provide and
maintain at its own expense during the Term of this Agreement, a policy or policies of
insurance of the type, amounts and form acceptable to Lessor. The policy or policies shall
provide, at a minimum, those items described in Exhibit "G",_attached hereto and
incorporated herein by this reference.
30. Hazardous Substances
(a) From the Commencement Date and throughout the Term, Lessee will not use,
occupy, or permit any portion of the Premises to be used or occupied in violation
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of any Hazardous Substance Laws. Notwithstanding any other provision in this
Section 24, Lessee is not responsible/liable for any Hazardous Substances that
are brought on to the Premises, through migration or other means, by third -parties
not associated with Lessee.
(b) Notwithstanding any contrary provision of this Agreement, and in addition to the
indemnification duties of Lessee set forth elsewhere in this Agreement, Lessee
indemnifies, defends with counsel reasonably acceptable to Lessor, protects, and
holds harmless Lessor, its elected officials, officers, employees, agents, attorneys,
volunteers and representatives from and against any and all losses, fines,
penalties, claims, demands, obligations, actions, causes of action, suits, costs and
expenses (including, without limitation, attorneys' fees, disbursements and court
costs), damages, judgments, or liabilities, including, but not limited to, any repair,
cleanup, detoxification, or preparation and implementation of any remedial,
response, closure or other plan of any kind or nature which the Lessor, its officials,
officers, employees, agents, attorneys, volunteers or assigns may sustain or incur,
or which may be imposed upon them, in connection with any breach of Lessee's
obligations or representations in this Agreement or the use of the Premises under
this Agreement, arising from or attributable to the Lessee Parties (defined below)
storage or deposit of Hazardous Substances in violation of Applicable Laws. This
Section is intended to operate as an agreement pursuant to Section 107(e) of
CERCLA, 42 USC Section 9607(e), and California Health and Safety Code
Section 25364, to insure, protect, hold harmless, and indemnify Lessor for any
claim pursuant to the Hazardous Substance Laws or the common law.
(c) Lessee does not, and will not, authorize any third party to use, generate,
manufacture, maintain, permit, store, or dispose of any Hazardous Substances in
violation of Applicable Laws on, under, about or within the Premises.
(d) Upon expiration or earlier termination of this Agreement, Lessee shall deliver
possession of the Premises in compliance with Hazardous Substance Laws
subject to the last sentence of Section 24(a) above.
(e) If during the Term of this Agreement, Lessee becomes aware of (i) any actual or
threatened release of any Hazardous Substances on, in, under, from, or about the
Premises in violation of Hazardous Substance Laws; or (ii) any inquiry,
investigation, proceeding, or claim by any government agency or other person
regarding the presence of any Hazardous Substances in violation of Hazardous
Substance Laws on, in, under, from or about the Premises, Lessee shall give
Lessor written notice of the release or inquiry within five (5) calendar days after
Lessee becomes aware or first has reason to believe there has been a release or
inquiry and shall simultaneously furnish to Lessor copies of any claims, notices of
violation, reports, warning or other writings received by Lessee that concern the
release or inquiry.
(f) If the presence of any Hazardous Substances brought onto the Premises by
Lessee or Lessee's employees, agents, sublessees, licensees, concessionaires,
contractors, or invitees ("Lessee Parties"), or generated by same during the Term
of this Agreement, results in contamination of the Premises or adjacent properties
or the Newport Harbor in violation of Hazardous Substance Laws, Lessee shall
promptly take all necessary actions, at Lessee's sole expense, to remove or
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remediate such Hazardous Substances in full compliance with Applicable Laws.
Lessee shall provide notice to Lessor prior to performing any removal or remedial
action. Lessee shall not propose nor agree to any covenant of use restriction as
part of any removal or remediation required as a result of this provision without
Lessor's written consent. Lessee shall pay any costs Lessor incurs in performing
Lessee's obligation to clean-up contamination resulting from Lessee's operations
or use of the Premises. Any amounts not paid when due shall be subject to late
charges and delinquency rates as provided in Section 45.
(i) Should any clean-up of Hazardous Substances for which Lessee is
responsible not be completed prior to the expiration or sooner termination
of the Agreement, including any extensions thereof, then Lessee shall
transfer the amounts required to complete clean-up into an escrow
account, together with Lessor -approved instructions for the disbursement
of such amount in payment of the costs of any remaining clean-up as it is
completed, and (ii) if the nature of the contamination or clean-up required
of Lessee is of such a nature as to make the Premises untenable or
unleaseable, then Lessee shall be liable to Lessor as a holdover lessee
until the clean-up has been sufficiently completed to make the Premises
suitable for lease to third parties. The estimated cost of the clean-up shall
require approval of the Lessor.
(ii) If Lessor determines, in its reasonable discretion, that Lessee does not
have insurance or other financial resources sufficient to enable Lessee to
fulfill its obligations under this provision, whether or not accrued, liquidated,
conditional, or contingent, then Lessee shall, at the request of Lessor,
procure and thereafter maintain in full force and effect such environmental
impairment liability and/or pollution liability insurance policies and
endorsements, or shall otherwise provide such collateral or security
reasonably acceptable to Lessor as is appropriate to assure that Lessee
will be able to perform its duties and obligations hereunder.
(g) Lessee's obligations in this Section 24 shall survive the expiration or earlier
termination of this Agreement.
31. Quiet Possession
(a) So long as no default by Lessee has occurred and is continuing uncured under this
Agreement, and subject to the Tidelands Grant or any amendment to that grant,
Lessee shall peaceably and quietly use and enjoy the Premises for the Term,
without hindrance or interruption by Lessor.
(b) Lessor shall in no event be liable in damages or otherwise, nor shall Lessee be
released from any obligations hereunder, because of the interruption or termination
of any service provided by Lessor (such as water or sewer service), or a
termination, interruption or disturbance of any service attributable to any act or
neglect (other than gross negligence or willful misconduct) of Lessor or its
servants, agents, employees, licensees, business invitees, or any person claiming
by, through or under Lessee.
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32. Compliance with Applicable Laws
Lessee agrees that, in all activities on or in connection with the Premises, and in all uses
thereof, it will comply with and conform, at its sole cost, to all Applicable Laws. Lessee is
solely responsible for compliance with Applicable Laws. If City enacts a new tax or
imposes a new fee, which exceeds the cost of providing the service, against the Premises,
the Lessee has the right to terminate this Agreement upon thirty (30) calendar days notice
to Lessor.
33. Not Agent of Lessor
Neither anything in this Agreement nor any acts of Lessee shall authorize Lessee or any
of its employees, agents or contractors to act as agent, contractor, joint venturer or
employee of Lessor for any purpose. The parties' relationship under this Agreement is
exclusively that of a lessor and lessee.
34. No Third Party Beneficiaries
Lessor (both as a lessor and as the City of Newport Beach) and Lessee do not intend, by
any provision of this Agreement, to create in any third party, any benefit or right owed by
one party, under the terms and conditions of this Agreement, to the other party.
35. Limitation of Leasehold / Easements
This Agreement and the rights and privileges granted Lessee in and to the Premises and
Improvements are subject to all covenants, conditions, restrictions, and exceptions of
record, including those which are set out in the Tidelands Grant by the State of California
to Lessor. Nothing contained in this Agreement or in any related document shall be
construed to imply the conveyance to Lessee of rights in the Premises or Improvements
that exceed those owned by Lessor. This Agreement and the rights and privileges granted
Lessee in and to the Premises shall be further subject to future easements and rights-of-
way for access, gas, electricity, water, sewer, drainage, telephone, telegraph, television
transmission, and such other utilities as Lessor may determine from time to time to be in
the best interests of the development of the lands within Lessor's jurisdiction, provided,
however, that no easements, rights-of-way, or the installation of such facilities by Lessor,
shall materially interfere with Lessee's business. Easements and rights -of -ways allowed
by this section shall be limited in purpose to providing the utilities contemplated in this
section. Nothing in this section gives a utility a right to attach any item to the
Improvements. Lessee is not entitled to any monetary payment or other remuneration for
any such future easements and rights-of-way.
36. Notices
All notices and other communications required or permitted to be given under this
Agreement, including any notice of change of address, shall be in writing and given by
personal delivery, or deposited with the United States Postal Service, certified and
postage prepaid, or by national overnight mail service addressed to the parties intended
to be notified. Notice shall be deemed given as of the date of personal delivery, or if
mailed, two (2) calendar days following the date of deposit with the United States Postal
Service. Notice shall be given as follows:
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To Lessor: City of Newport Beach
Attn: Real Property Administrator
100 Civic Center Drive
Newport Beach, CA 92660
949-644-3200
With Copy To: City Attorney (at same address)
To Lessee: Balboa Boat Yard of California, Inc.
2414 Newport Blvd.
Newport Beach, CA 92663
949-673-6834
Attn: Pat Werner
37. Entire Agreement/Amendments
(a) The terms and conditions of this Agreement, all exhibits attached hereto are
incorporated by reference into this Agreement, and all documents expressly
incorporated by reference, represent the entire Agreement of the parties with
respect to the subject matter of this Agreement.
(b) This Agreement may be executed in counterparts, including electronic
counterparts, each of which, after all the parties have signed this Agreement, shall
be deemed to be an original, and such counterparts shall constitute one
Agreement binding on the parties.
(c) This written Agreement shall supersede any and all prior agreements, oral or
written, regarding the subject matter. Notwithstanding the foregoing sentence, with
respect to City Pier Permit No. CP12830171, nothing herein is a release of any
violation of Lessee's duties or obligations, if any, with respect to City Pier Permit
No. CP12830171, whether known or unknown at this time or upon the effective
date of this Agreement. Lessor acknowledges it is not aware of any known defaults
by Lessee.
(d) Except as permitted by Section 33 below, no other agreement, promise or
statement, written or oral, relating to the subject matter of this Agreement, shall be
valid or binding, except by way of a written amendment to this Agreement.
(e) The terms and conditions of this Agreement shall not be altered or modified except
by a written amendment to this Agreement signed by Lessee and Lessor.
(f) If any conflicts arise between the terms and conditions of this Agreement, and the
terms and conditions of the attached exhibits or the documents expressly
incorporated by reference, the terms and conditions of this Agreement shall
control.
(g) Any obligation of the parties relating to monies owed, as well as those provisions
relating to limitations on liability and actions, shall survive termination or expiration
of this Agreement.
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38. Waivers
The waiver by either party of any breach, default or violation of any term, covenant or
condition of this Agreement, or of any Applicable Law, shall not be deemed a waiver of
any other term, covenant, condition, or Applicable Law, or of any subsequent breach or
violation of the same or other term, covenant, condition, or Applicable Law. The
subsequent acceptance by either party of any fee, performance, or other consideration
which may become due or owing under this Agreement, shall not be deemed to be a
waiver of any preceding breach or violation by the other party of any term, condition,
covenant of this Agreement or any Applicable Law.
39. Lessor's Authorized Representative
Unless otherwise specified in this Agreement or unless Applicable Law requires action of
the City Council or some other person or body of Lessor (in its capacity as the City of
Newport Beach), Lessor shall maintain the authority to implement this Agreement on its
behalf through the City Manager of the City of Newport Beach (or his or her designee).
The City Manager (or his or her designee) shall have authority (but not the obligation) to
issue interpretations, waive provisions (including, without limitation, imposition of late
charges and delinquency rates, Lessee's payment of costs and times of performance),
and/or enter into amendments of this Agreement on behalf of the Lessor.
40. City Business License
Lessee shall obtain and maintain during the duration of this Agreement a City business
license as required by the Newport Beach Municipal Code.
41. Governing Law & Non -Binding Arbitration
(a) Prior to instituting any legal action in a court, in the event the Lessor and Lessee
shall be unable to agree as to any matter provided for in this Agreement such
dispute shall be submitted to three (3) disinterested arbitrators (unless the parties
can agree on one (1) arbitrator). Such arbitration shall be conducted upon request
of either the Lessor or the Lessee, before three (3) arbitrators (unless the Lessor
or the Lessee agree to one (1) arbitrator) designated by the American Arbitration
Association and in accordance with the rules of such Association. The decision(s)
of the arbitrator(s) designated and acting under this Agreement shall be nonbinding
and the arbitrator(s) have no power to depart from or change any of the provisions
thereof. The expense of arbitration proceedings conducted hereunder shall be
borne equally by the parties.
(b) This Agreement shall be construed in accordance with the laws of the State of
California. Any action brought relating to this Agreement shall be adjudicated in a
court of competent jurisdiction in the County of Orange. Lessee is advised that
Public Resources Code Section 6308 may require that the State of California be
joined to any action against the City involving title to or boundaries of the Tidelands.
(c) The prevailing party in any non-binding arbitration or legal action authorized under
this section shall not be entitled to attorneys' fees.
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42. Interpretation
The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either party by reason of the
authorship of the Agreement or any other rule of construction which might otherwise apply.
43. Time is of the Essence
Time is of the essence to the performance of each and every act required to be performed
by this Agreement.
44. California Labor Laws
It shall be the obligation of Lessee or any subcontractor under Lessee to comply with all
State of California labor laws, rules and regulations and the parties agree that the Lessor
shall not be liable for any violation thereof.
45. Joint and Several Liability
The term "party" in this section shall mean either Lessor or Lessee, and if more than one
(1) person or entity comprises either Lessor or Lessee, then the obligations imposed upon
such "party" shall be both joint and several.
46. Memorandum of Lease Agreement
A Memorandum of Lease Agreement, in a form and content similar to that contained in
Exhibit "H", attached hereto and incorporated herein by this reference, shall be recorded
by the parties promptly upon execution of this Agreement. Upon execution by both parties,
the Memorandum of Lease Agreement shall be recorded against the Premises in the office
of the Orange County Clerk -Recorder, as required by Government Code Section 37393.
47. No Pre -commitment / Retention of Discretion / Assumption of Risk and Waiver
(a) By its execution of this Agreement, Lessor is not committing itself or agreeing to
undertake any activity requiring the subsequent exercise of discretion by the City
of Newport Beach, or any department thereof, including but not limited to the
approval of any CEQA documents, the approval of any development proposal or
land use regulation governing the Premises, or any other act or approval.
(b) Lessee understands and agrees that Lessor in its capacity as the City of Newport
Beach reserves the right to exercise its discretion as to all matters which it is, by
law, entitled or required to exercise its discretion, including, but not limited to, the
consideration of CEQA documents the consideration of a final development, the
consideration of any and all plans, permits, licenses or regulatory approvals, or
any other acts or activities requiring the subsequent independent exercise of
discretion by the City of Newport Beach or any agency or department thereof.
Lessee understands and agrees that the City of Newport Beach may, in its sole
and absolute discretion, certify or not certify a CEQA document and approve,
approve with modifications, or not approve or may consider other alternatives,
including those presented in the CEQA documents.
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(c) Lessee acknowledges and agrees that the City of Newport Beach or other
governmental agencies (including without limitation the Coastal Commission) may,
at their sole and absolute discretion, approve any and all plans, permits, licenses
or regulatory approvals, only upon the imposition and performance of additional
conditions or mitigation measures.
(d) Nothing in this Agreement shall obligate the Lessor in its capacity as the City of
Newport Beach to exercise its discretion in any particular manner, and
notwithstanding any provision of this Agreement to the contrary any exercise of
discretion required by law or permitted by this Agreement shall not be deemed to
constitute a breach of Lessor's duties under this Agreement.
(e) Lessee accepts and assumes the risk that the City of Newport Beach or other
governmental agencies (including without limitation the Coastal Commission) will
not approve or certify the CEQA documents or any and all plans, permits, licenses
or regulatory approvals sought, that the City of Newport Beach may consider or
approve other alternatives to the CEQA documents, any and all plans, permits,
licenses or regulatory approvals, or CEQA documents might be approved or
certified subject to modifications or the performance of certain additional conditions
or mitigation measures imposed by the City of Newport Beach or other
governmental agencies (including without limitation the Coastal Commission) in
their sole and absolute discretion, or that third parties may file litigation against or
otherwise delay any and all plans, permits, licenses or regulatory approvals
sought, or CEQA documents. Lessee agrees it has no claim, cause of action, or
right to damages, compensation or reimbursement from Lessor or the City of
Newport Beach if (i) CEQA documents or any and all plans, permits, licenses or
regulatory approvals sought are not approved by the City of Newport Beach or
other governmental agencies (including without limitation the Coastal
Commission) for any reason, (ii) other alternatives to the CEQA documents or any
and all plans, permits, licenses or regulatory approvals sought are approved,
(iii) CEQA documents are approved or certified subject to modification or the
performance of certain additional conditions or mitigation measures, and/or
(iv) third parties file litigation against or otherwise delay the CEQA documents.
48. No Damages
Lessee acknowledges that Lessor would not enter into this Agreement if it were to be
liable for damages (including, but not limited to, actual damages, economic damages,
consequential damages, lost profits, loss of rents or other revenues, loss of business
opportunity, loss of goodwill or loss of use) under, or relating to, this Agreement or any of
the matters referred to in this Agreement, including, without limitation, any and all plans,
permits, licenses or regulatory approvals, CEQA documents, and Transfers. Accordingly,
Lessee covenants and agrees on behalf of itself and its successors and assigns, not to
sue Lessor (either in its capacity as lessor in this Agreement or in its capacity as the City
of Newport Beach) for damages (including, but not limited to, actual damages, economic
damages, consequential damages, lost profits, loss of rents or other revenues, loss of
business opportunity, loss of goodwill or loss of use) or monetary relief for any breach of
this Agreement by Lessor or for any dispute, controversy, or issue between Lessor and
Lessee arising out of or connected with this Agreement or any of the matters referred to
in this Agreement, including, without limitation, any and all plans, permits, licenses or
regulatory approvals, CEQA documents, Transfers or any future amendments or
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enactments thereto, the parties agreeing that declaratory relief, injunctive relief, mandate
and specific performance shall be Lessee's sole and exclusive judicial remedies.
49. Appraisals
Except as otherwise provided in the applicable resolution for the Fair Market Adjustment
of Rent, this Section governs the process for all appraisals required or permitted in this
Agreement. Any time an appraisal is required or permitted by this Agreement, Lessor and
Lessee shall each select an independent appraiser with qualifications of MAI to appraise
Tidelands properties. Each party shall pay the costs of their selected appraiser. If the two
(2) appraisals return with a fair market value that is within five percent (5%) of each other
the two (2) appraisal fair market values shall be averaged to produce the fair market value
of the affected Premises. For clarity, if one (1) appraiser concludes thirteen percent (13%)
and one (1) appraiser concludes fifteen percent (15%) the difference in their conclusions
is thirteen and 333/1,OOOths percent (13.333%) and therefore a third appraisal would be
needed. If the two (2) appraisers should fail to agree on the fair market value, and the
difference between the two appraisals exceeds five percent (5%), then the two (2)
appraisers thus appointed shall mutually appoint a third MAI designated appraiser, and in
case of their failure to agree on a third appraiser within thirty (30) calendar days after their
individual determination of the fair market value, either party may apply to the Presiding
Judge of the Superior Court for Orange County, requesting said Judge to appoint the third
MAI designated appraiser. The costs of the third appraiser, if any, shall be split equally
between the Lessor and the Lessee. The third appraiser so appointed shall meet and
confer with the two (2) other appraisers and then conduct its own analysis to determine
the fair market value of the affected Premises within sixty (60) calendar days of their
appointment and the average of the fair market value per square foot as set forth in the
appraisals of the two (2) closest appraisers shall be used as the fair market value. All MAI
appraisers appointed or selected pursuant to this subsection shall have at least ten (10)
years experience appraising Tidelands in the Southern California area and shall be free
of conflicts (i.e., no appraisers shall rent a boat slip or office space from Lessor or lessees,
etc.).
50. Reserved
51. Late Charges and Delinquency Rates
A ten percent (10%) late charge shall be added to all payments due but not received by
Lessor with ten (10) calendar days following the due date, unless another due date is
specified in this Agreement. In addition, all unpaid amounts shall accrue at a delinquency
rate of one and a half percent (1 %2%) per month or any portion of a month until paid in full.
Lessor and Lessee hereby agree that such late charges and delinquency rates represent
a fair and reasonable estimate of the costs Lessor will incur by Lessee's late payment,
including, without limitation, lost opportunities and the cost of servicing the delinquent
account. Lessee agrees that such late charges and delinquency rates are Additional Rent
and are not interest. Acceptance of such late charges and delinquency rates (and/or any
portion of the overdue payment) by Lessor does not constitute a waiver of Lessee's default
with respect to such overdue payment, or prevent Lessor from exercising any of the other
rights and remedies granted in this Agreement.
52. Reserved
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53. Government Claims Act
Lessee and Lessor agree that in addition to any claims filing or notice requirements in this
Agreement, Lessee shall file any claim that Lessee may have against Lessor in strict
conformance with the Government Claims Act (Government Code sections 900 et seq.).
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in duplicate on the date and year first written herein.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: } 1 20
By:
J�2.Aaron . Harp
City tt rney
ATTEST:
Date.-
M_
ate:
w
Leilani I. Brown
City Clerk
ATTACHMENTS:
LESSOR: CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
Grace K. Leung
City Manager
LESSEE: BALBOA BOAT YARD OF
CALIFORNIA, INC., a California corporation
Date:
By:
Patrick Werner Jr.
Chief Executive Officer
Date:
By:
Alison Eastman
Secretary
Exhibit "A": Depiction of Permitted Premises
Exhibit "B": Depiction of Uplands Property
Exhibit "C": Depiction of 2611 Street Dock
Exhibit "D": Depiction of Premises
Exhibit "E": Definitions
Exhibit "F": Improvements
Exhibit "G": Insurance
Exhibit "H": Memorandum of Lease Agreement (With Options for
Renewal)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in duplicate on the date and year first written herein.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:—
By: _
.Aaron . Harp
City tt rney
ATTEST:
Date:
M
Leilani I. Brown
City Clerk
ATTACHMENTS
LESSOR: CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
0
Grace K. Leung
City Manager
LESSEE: BALBOA BOAT YARD OF
CALIFORNIA, INP., a California corporation
Date:
By:
Patrick Werner Jr.
Chief Executive Officer
Date: 3' 2- ZI
B:1(a; . �?
Y
Alison Eastman
Secretary
Exhibit "A":
Depiction of Permitted Premises
Exhibit "B":
Depiction of Uplands Property
Exhibit "C":
Depiction of 26111 Street Dock
Exhibit "D":
Depiction of Premises
Exhibit '*E":
Definitions
Exhibit "F":
Improvements
Exhibit "G":
Insurance
Exhibit '*H":
Memorandum of Lease Agreement (With Options for
Renewal)
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9-38
EXHIBIT "A"
DEPICTION OF PERMITTED PREMISES
EXHIBIT "A"
-1--
9-39
EXHIBIT "B"
DEPICTION OF UPLANDS PROPERTY
4F
EXHIBIT "B"
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EXHIBIT "C"
DEPICTION OF 26TH STREET DOCK
9-41
EXHIBIT "D"
DEPICTION OF PREMISES
M �s 4 PREMISES
Premises (1,559 sq. N )
241 4 Newport blvd (Uplands Property)
Tidelands over Pnvale Property
(Uplands Property) (924 sq. ff.)
...
r� I i l ill j
r
r
04 - yam, 4 • , ti,
c
EXHIBIT "D"
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EXHIBIT "E"
DEFINITIONS
Additional Rent is defined in Section 4.
Agreement is defined in the Preamble.
Applicable Law(s) mean and include, but are not limited to, those prescribed by Title 17 of the
Newport Beach Municipal Code; any ordinances of the City of Newport Beach, including the
Building Code thereof; the City Charter of Newport Beach; any regulations, policies and general
rules of the City of Newport Beach; the Tidelands Grant; Hazardous Substances Laws; CEQA;
and any other Federal, State or local statute, law, ordinance, resolution, code, rule, regulation,
order or decree as any of the same now exist or may hereafter be adopted or amended.
Boat Slip Renters is defined in Section 1(a)(i).
CDP means a Coastal Development Permit.
CEQA means the California Environmental Quality Act, codified at California Public Resources
Code Sections 21000 et seq. as may be amended from time -to -time.
Claim(s) is defined in Section 22.
Commencement Date is defined in Section 3(a).
Condemnation means a permanent taking of the Premises through (i) the exercise of any
government power, by any public or quasi -public authority or by any other party having the right
of eminent domain (Condemnor) or (ii) a voluntary sale or transfer by Lessor to any Condemnor,
either under threat of exercise of eminent domain by a Condemnor or while legal proceedings for
condemnation are pending.
Gross Revenue for Slip Rentals means all receipts of every kind and nature, whether for cash,
credit or barter, received/due for the rental or use of a slip, dock, or pier on the Premises. Without
limiting the breadth of the prior sentence, Gross Revenue for Slip Rentals shall include, without
limitation, receipts of every kind and nature derived from any promotion, package deal, service,
or other item that is associated in any way with the rental or use of a slip, dock, or pier on the
Premises, excluding pass-through of direct third -party charges (e.g., electricity, cable TV, etc.)
without markup by Lessee. For purposes of determining Gross Revenue for Slip Rentals any
fixed, annual, monthly and/or recurring charge that a person or entity is required to pay shall be
counted as part of the Gross Revenue for Slip Rentals. Gross Revenue for Slip Rentals shall not
be offset or reduced for any reason, including, but not limited to, the payment of taxes, fees,
repairs, maintenance, construction, or inability or failure to collect any cash, credit, or barter due
for the use of a slip, dock, or pier on the Premises.
Hazardous Substance means: (i) any substance, product, waste or other material of any nature
whatsoever which is or becomes listed, regulated, or addressed pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq.
(CERLCA); the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; the
Resource Conversation and Recovery Act, 42 U.S.C. Section 6901 et seq. "RCRA"); the Toxic
Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Water Act, 33 U.S.C. Section
EXHIBIT "E"
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1251 et seq.; the California Hazardous Waste Control Act, Health and Safety Code Section 25100
et seq.; the California Hazardous Substance Account Act, Health and Safety Code Sections
25330 et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety
Code Sections 25249.5 et seq.; California Health and Safety Code Sections 25280 et seq.
(Underground Storage of Hazardous Substances); the California Hazardous Waste Management
Act, Health and Safety Code Sections 25170.1 et seq.; California Health and Safety Code
Sections 25501 et seq. (Hazardous Materials Response Plans and Inventory); or the Porter -
Cologne Water Quality Control Act, Water Code Sections 13000 et seq., all as they, from time -to -
time may be amended or re -codified, (the above-cited statutes are here collectively referred to as
lithe Hazardous Substances Laws") or any other Federal, State or local statute, law, ordinance,
resolution, code, rule, regulation, order or decree regulating, relating to, or imposing liability or
standards of conduct concerning, any hazardous, toxic or dangerous waste, substance or
material, as now or at any time hereafter in effect; (ii) any substance, product, waste or other
material of any nature whatsoever which may give rise to liability under any of the above statutes
or under any statutory or common law theory, including but not limited to negligence, trespass,
intentional tort, nuisance, waste or strict liability or under any reported decisions of a state or
federal court; (iii) petroleum or crude oil; and (iv) asbestos.
Improvements are owned by Lessee and mean those items described on Exhibit "D" as they
may be modified, altered, restored, or rebuilt pursuant to this Agreement.
Leasehold Estate means Lessee's interest in the Premises created by this Agreement.
Leasehold Mortgage means a Transfer or security instrument by which the Leasehold Estate is
used to secure a debt or other obligation arising from or related to Lessee's use or operation of
the Premises.
Leasehold Mortgagee means a holder or holders of the Leasehold Mortgage.
Lease Term Year means each twelve (12) month period beginning on the Commencement Date
(or anniversary thereof) and ending on the day prior to the next anniversary of the
Commencement Date.
Lessee is defined in the Preamble.
Lessor is defined in the Preamble.
Marina Index is comprised of the marinas listed in the resolution incorporated by Section 4.
Market Adjustment Date means March 1, 2018 and every fifth (5th) anniversary year thereafter.
Option Notice is defined in Section 3(b)(i).
Premises means those Tidelands which is an independent site with no land access consisting of
approximately 13,128 square feet water area located generally at 3101 West Coast Highway, in
the City of Newport Beach, California, more particularly described and depicted on the map set
forth in Exhibit B, excluding any private water and Improvements.
Renewal Term(s) is defined in Section 3(b).
Rent is defined in Section 4.
EXHIBIT "E"
-2-
ME
Target Indexed Rate is defined in the resolution incorporated by Section 4
Term is defined in Section 3(a).
Tidelands means certain tidelands and submerged land (whether filled or unfilled), located in the
City of Newport Beach, County of Orange, State of California granted to the City of Newport
Beach, as trustee, by the State of California pursuant to the Tidelands Grant.
Tidelands Grant means uncodified legislation related to the State of California's grant of certain
rights in the Tidelands to the City of Newport Beach, including, without limitation, the Beacon Bay
Bill (Chapter 74 of the Statutes of 1978, as amended [citations omitted]).
Transfer(s) means any attempt to sell, convey, assign, transfer, mortgage, pledge, grant,
hypothecate or encumber this Agreement or any interest in this Agreement, or the Premises or
any portion of the Premises, and any attempt to sublet (which shall also include management
and/or operating agreements covering the Premises), license or grant any concession to the
Premises, in whole or in part, or allow any person other than Lessee's employees, members,
agents, servants and invitees to occupy or use all or any portion of the Premises.
EXHIBIT "E"
-3-
W91
EXHIBIT "F"
IMPROVEMENTS
EXHIBIT "F"
-1- 9-46
EXHIBIT "G"
INSURANCE
Provision of Insurance. Without limiting Lessee's indemnification of Lessor, Lessee will
obtain, provide and maintain at its own expense during the Term of this Agreement, a
policy or policies of insurance of the type and amounts as described below, at a minimum,
and in a form satisfactory to Lessor. Lessee agrees to provide insurance in accordance
with the requirements set forth herein. If Lessee uses existing coverage to comply and
that coverage does not meet these requirements, Lessee agrees to amend, supplement
or endorse the existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance company
currently authorized by the California Insurance Commissioner to transact business of
insurance in the State of California, with an assigned policyholders'. Rating of A- (or
higher) and Financial Size Category Class VII (or larger) in accordance with the latest
edition of Best's Key Rating Guide, unless otherwise approved by Lessor's Risk
Manager.
3. Coveraqe Requirements
A. Workers Compensation Insurance. Lessee shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability Insurance with
limits of at least One Million Dollars ($1,000,000) each accident for bodily injury
by accident and each employee for bodily injury by disease in accordance with
the laws of the State of California, Section 3700 of the Labor Code. Coverage
shall include USL&H and Maritime Coverages as appropriate.
Lessee shall submit to City, along with the certificate of insurance, a Waiver of
Subrogation endorsement in favor of Lessor, its City Council, boards and
commissions, officers, officials, agents, volunteers and employees.
In addition, Lessee shall require each subtenant or subcontractor to similarly
maintain Workers' Compensation Insurance and Employer's Liability Insurance,
including USL&H and Maritime Coverages as appropriate, in accordance with the
laws of the State of California for all of the subtenant's or subcontractor's
employees. Lessee shall verify the existence of such insurance prior to allowing
such subtenant or subcontractor to perform any work on the Premises. The insurer
shall agree to waive all rights of subrogation against Lessor, its City Council,
boards and commissions, officers, officials, agents, volunteers and employees for
losses arising from work performed by Lessee for Lessor, by endorsement to the
policy.
B. General Liability Insurance. Lessor shall maintain commercial general liability
insurance in an amount not less than Two Million Dollars ($2,000,000) per
occurrence and Four Million Dollars ($4,000,000) general aggregate. The policy
shall cover liability arising from premises, operations, personal and advertising
injury, and liability assumed under an insured contract (including the tort liability
of another assumed in a business contract). Coverage shall be at least as broad
EXHIBIT "G"
-1- 9-47
as that provided by Insurance Services Office form CG 00 01 and may be
arranged through any combination of primary and excess insurance as required
to achieve the limits specified provided that any excess liability policy does not
restrict coverage provided in the primary policy. Other policy forms may be
acceptable if more appropriate to the exposures, such as Marina Operator's
Liability Insurance. None of the policies required herein shall be in compliance
with these requirements if they include any limiting endorsement that has not
been first submitted to Lessor and approved in writing by Lessor's Risk Manager.
C. Contractor's Pollution Liability. Lessee shall maintain contractor's pollution liability
insurance for contractors or subcontractors performing construction work written
on a form acceptable to City providing coverage for liability arising out of sudden,
accidental and gradual pollution. The policy limit shall be no less than One Million
Dollars ($1,000,000) per claim and in the aggregate for contractors and between
Two Million Dollars ($2,000,000) and Five Million Dollars ($5,000,000) for Lessee,
as determined by Lessor depending on services offered by Lessee on the
Premises (e.g., fuel dock, boat repair, etc.). When this insurance is required, all
activities comprising the work shall be specifically scheduled on the policy as
"covered operations." The policy shall provide coverage for the hauling of waste
from the Premises to the final disposal location, including non -owned disposal
sites. Products/completed operations coverage shall extend a minimum of three
(3) years after completion of the work.
D. Pollution Legal Liability. Lessee shall maintain pollution legal liability insurance
applicable to bodily injury; property damage, including loss of use of damaged
property or of property that has not been physically injured or destroyed; cleanup
costs; and defense, including costs and expenses incurred in the investigation,
defense, or settlement of claims; all in connection with any loss arising from the
insured facility. Coverage shall be maintained in an amount of at least One Million
Dollars ($1,000,000) per loss, with an annual aggregate of at least One Million
Dollars ($1,000,000).
4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the
following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant
to this Agreement shall be endorsed to waive subrogation against Lessor, its City
Council, boards and commissions, officers, officials, agents, volunteers, and
employees or shall specifically allow Lessee or others providing insurance
evidence in compliance with these requirements to waive their right of recovery
prior to a loss. Lessee hereby waives its own right of recovery against Lessor,
and shall require similar written express waivers from each of its contractors or
subcontractors.
B. Additional Insured Status. All liability policies, including general liability and
pollution liability, shall provide or be endorsed to provide that Lessor, its City
Council, boards and commissions, officers, officials, agents, volunteers and
employees shall be included as insureds under such policies with respect to
liability arising out of Lessee's activities related to this Agreement and with
EXHIBIT "G"
-2- 9-48
respect to use or occupancy of the Premises.
C. Primary and Non -Contributory. All liability coverage shall apply on a primary basis
and shall not require contribution from any insurance or self-insurance maintained
by Lessor.
D. Notice of Cancellation. The insurance required by this agreement shall not be
suspended, voided, canceled, or reduced in coverage or in limits, unless Lessor
is provided with thirty (30) calendar days' prior written notice of cancellation
(except for nonpayment for which ten (10) calendar days' notice is required) or
nonrenewal coverage for each required coverage.
5. Additional Agreements Between the Parties.
A. Evidence of Insurance. Lessee shall provide certificates of insurance to Lessor
as evidence of the insurance coverage required herein, along with a waiver of
subrogation endorsement for workers' compensation and other endorsements as
specified herein for each coverage. Insurance certificates and endorsement must
be approved by Lessor's Risk Manager prior to commencement of performance.
Current certification of insurance shall be kept on file with Lessor at all times
during the term of this contract. Lessor reserves the right to require complete,
certified copies of all required insurance policies, at any time.
All insurance shall be written on an occurrence -made form, except the Pollution
Liability policy which is on a claims -made form of insurance requiring the Lessee
to provide proof of coverage (extending reporting) for a minimum of three (3)
years following termination of Lease Agreement.
All licensees, sub -lessees (not including slip renters) and concessionaires shall
be subject to the insurance requirements contained herein unless written
approval is granted by the Lessor.
All required insurance shall be in force on the Commencement Date, and shall be
maintained continuously in force throughout the term of this Agreement. In
addition, the cost of all required insurance shall be borne by Lessee.
B. City's Right to Revise Requirements. In the event Lessor determines that (i) the
Lessee's activities in the Premises creates an increased or decreased risk of
loss to the Lessor, greater insurance coverage is required due to the passage
of time, or changes in the industry require different coverages be obtained,
Lessee agrees that the minimum limits of any insurance policy required to be
obtained by Lessee may be changed accordingly upon receipt of written notice
from Lessor; provided that Lessee shall have the right to appeal a determination
of increased coverage to the City Council within fourteen (14) calendar days of
receipt of notice from the Risk Manager in the manner provided in Municipal Code
Section 17.65.010 et seq. (or any amended or successor Code section or
ordinance) If Lessee fails to timely appeal a decision, it shall be deemed final.
With respect to changes in insurance requirements that are available from
EXHIBIT "G"
-3- 9-49
Lessee's then -existing insurance carrier, Lessee shall deposit certificates
evidencing acceptable insurance policies with Lessor incorporating such changes
within thirty (30) calendar days of receipt of such notice. With respect to changes
in insurance requirements that are not available from Lessee's then- existing
insurance carrier, Lessee shall deposit certificates evidencing acceptable
insurance policies with Lessor, incorporating such changes, within ninety (90)
calendar days of receipt of such notice.
C. Enforcement of Agreement Provisions. Lessee acknowledges and agrees that
any actual or alleged failure on the part of Lessor to inform Lessee of non-
compliance with any requirement imposes no additional obligations on City nor
does it waive any rights hereunder.
D. Requirements not Limiting. Requirements of specific coverage features or limits
contained in this Section are not intended as a limitation on coverage, limits or
other requirements, or a waiver of any coverage normally provided by any
insurance. Specific reference to a given coverage feature is for purposes of
clarification only as it pertains to a given issue and is not intended by any party
or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of
any type. If Lessee maintains higher limits than the minimums shown above,
Lessor requires and shall be entitled to coverage for higher limits maintained by
Lessee. Any available insurance proceeds in excess of the specified minimum
limits of insurance and coverage shall be available to Lessor.
E. Self-insured Retentions. Any self-insured retentions must be declared to and
approved by Lessor. Lessor reserves the right to require that self-insured
retentions be eliminated, lowered, or replaced by a deductible. Self insurance will
not be considered to comply with these requirements unless approved by Lessor.
F. City Remedies for Non -Compliance. If Lessee fails or refuses to maintain
insurance as required in this Agreement, or fails to provide proof of insurance,
Lessor has the right to declare this Agreement in default without further notice to
Lessee, and Lessor shall be entitled to exercise all available remedies.
G. Lessee's Insurance. Lessee shall also procure and maintain, at its own cost and
expense, any additional kinds of insurance, which in its own judgment may be
necessary for Lessee's protection.
EXHIBIT "G"
-4- 9-50
EXHIBIT "H"
MEMORANDUM OF LEASE AGREEMENT
(WITH OPTIONS FOR RENEWAL)
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
Office of the City Clerk
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
[Exempt from Recordation Fee - Govt. Code Sec. 6103]
MEMORANDUM OF LEASE AGREEMENT
(WITH OPTIONS FOR RENEWAL)
This Memorandum of Lease Agreement (With Options for Renewal) ("Memorandum") is dated
, 2021, and is made between City of Newport Beach, a California
municipal corporation and charter city ("Lessor" or "City") and Balboa Boat Yard of California, Inc.,
a California corporation ("Lessee"), concerning the Premises depicted in Attachment "1" attached
hereto and by this reference made a part hereof.
For good and adequate consideration, Lessor leases the Premises to Lessee, and Lessee hires
them from Lessor, for the term and on the provisions contained in the Agreement dated
, 2021, including without limitation provisions prohibiting assignment,
subleasing, and encumbering said leasehold without the express written consent of Lessor in
each instance, all as more specifically set forth in said Agreement, which said Agreement is
incorporated in this Memorandum by this reference.
The term is five (5) years, commencing on 2021, and
terminating , 2026, with two (2) additional successive "Renewal Terms" of
five (5) years each, on the same terms and conditions contained in the Agreement.
This Memorandum is not a complete summary of the Agreement. Provisions in this Memorandum
shall not be used in interpreting the Agreement's provisions. In the event of conflict between this
Memorandum and other parts of the Agreement, the other parts shall control. Execution hereof
constitutes execution of the Agreement itself.
[Signatures on the next page]
EXHIBIT "H"
-1-
9-51
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By:
Aaron C. Harp
City Attorney
ATTEST:
Date:
M
Leilani I. Brown
City Clerk
LESSOR: CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Grace K. Leung
City Manager
LESSEE: BALBOA BOAT YARD OF
CALIFORNIA, INC., a California corporation
Date:
By:
Patrick Werner, Jr.
Chief Executive Officer
Date:
By:
Alison Eastman
Secretary
EXHIBIT "H"
-2-
9-52
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of I ss.
On 20 before me,
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (seal)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of I ss.
On 20 before me,
Notary Public, personally appeared
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
EXHIBIT "H"
-3-
(seal)
9-53
ATTACHMENT "1"
DESCRIPTION OF PREMISES
EXHIBIT "H"
-4-
9-54
Attachment B
Maps
9-55
DEPICTION OF CURRENTLY
PERMITTED TIDELANDS
PUBLIC TIDELANDS - $0.40/SF/YR
PRIVATE WATERWAY - NO CHARGE
9-56
DEPICTION OF PRIVATE WATERWAY
AND PUBLIC TIDELANDS
4 r X46 w
PUBLIC TIDELANDS
961 SF
483 SF
115 SF
1,559 SF
PRIVATE WATERWAY - 924 SF
9-57
DEPICTION OF PREMISES TO BE LEASED
9-58
Attachment C
Site Plan
9-59
Improvement Plans
Depiction & Diagram
6351 Industry Way, Westminster, CA 92683
- Mk IFI' SLIP DI K &. PTER BUILDERS, INC. Phone: (9491631-3121
Fox: (714) 509-0618
cJEvr AMENDMENTS:
EASTMAN, RYAN RO - I_a 11/19120 �,: ��p O,: 6Y: DAM
CKM..- CATE:
2414 NEWPORT BLVD, NEWPORT BEACH, CA 92663 - ---- - -
a' 201' 4'
r10
I
PROJECT LINE
FrERHEAD LITJE I_ ____ L___
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BULKHEA❑ LINE
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PROPOSED
KEY:
All Improvements
Premises
Improvement Plans
Written Description
Repairs will consist of replacing the two (2) debilitated docks and gangways, including
hauling out old docks and disposing the old material at proper inland disposal site and
floating in a new dock for installation. No construction is done over water. Docks
are assembled with predrilled holes and a catch bucket is used at all times. Repairs
also consist of replacing the gangways. All dimensions of the existing docks and
gangways will remain unchanged/no changes to existing dimensions. All materials used
are lumber and AZEK pvc decking with stainless and galvanized hardwares.
Concrete piles are excluded from repairs as they are sufficiently in shape.
9-61