HomeMy WebLinkAboutC-3057 - Bayside Drive, 1601 - Tidelands Lease 1998 (BCYC)•
FIRST AMENDMENT TO LEASE
THIS FIRST AMEND TO LEASE (this "Amendment"), made this
day of , 1998, by and between the City of
Newport Beach, a municipa corporation and Charter City
("Lessor"), and Bahia Corinthian Yacht Club, a California non-
profit corporation ("Lessee"), is made with reference to the
following recitals:
RECITALS
A. Lessor and Lessee have entered into, or conc nt
herewith are entering into, that certain Lease dated
1998 (the "Lease").
B. Lessor and Lessee desire to supplement and amend the
Lease as hereinafter set forth.
NOW, THEREFOR, Lessor and Lessee agree that the Lease is
supplemented and amended as follows:
1. Add the word "Beach" to the name of the Lessor in the
preamble to the Lease.
2. Add the phrase "Except as contemplated by Section 22 of
this Lease," to the beginning of Section 18 of the Lease.
3. Add a new Section 22 to the Lease as follows:
22. PROVISIONS RELATING TO LEASEHOLD MORTGAGES
A. Rights of Leasehold Mortgagees.
(1) Definitions.'
(a) The term "Leasehold Mortgage" as used
herein shall include a mortgage, a deed of trust, a deed to
secure debt, or other security instrument by which Lessee's
interest under this Lease and the leasehold estate created
thereby is mortgaged, encumbered, conveyed, assigned, or
otherwise transferred, to secure a debt or other obligation,
and any and all amendments, modifications, supplements,
extensions and renewals thereof.
(b) The term "Leasehold Mortgagee" as used
therein shall refer to a holder of a Leasehold Mortgage in
respect to which the notice provided for by Section 22A(3)
has been given.
(2) Leasehold Mortgage Authorized. On one or
more occasions, without Lessor's prior consent, Lessee may
mortgage or otherwise encumber Lessee's Leasehold Estate,
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under one or more Leasehold Mortgages and assign this Lease
as security for such Leasehold Mortgage or Mortgages.
(3) Notice to Lessor.
(a) If the holder of a Leasehold Mortgage
shall provide Lessor with notice of such Leasehold Mortgage
together with a true copy of such Leasehold Mortgage and the
name and address of the Leasehold Mortgagee, Lessor and
Lessee agree that, following receipt of such notice by
Lessor, the provisions of this Section 22 shall apply in
respect to such Leasehold Mortgage and 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 or
of an assignee of such Leasehold Mortgagee, notice of the
new name and address shall be provided to Lessor.
(4). Notices to Leasehold Mortgagees. Lessor,
upon providing Lessee with any notice of: (i) default under
this Lease, or (ii) a termination of this Lease, or (iii) a
matter on which Lessor may predicate or claim such a default
or termination, shall at the same time provide a copy of
such notice to any Leasehold Mortgagee. No such notice by
Lessor to Lessee shall be deemed to have been duly given
unless and until a copy thereof has been so provided to any
Leasehold Mortgagee. From and after the date such notice
has been given to Lessee and any Leasehold Mortgagee, any
Leasehold Mortgagee shall have the right to remedy, commence
remedying or cause to be remedied any default or acts or
omissions which are the subject matter of such notice,
within the same cure period as is given Lessee, plus in each
instance, the additional periods of time specified in this
Section 22. Lessee authorizes each Leasehold Mortgagee to
take any such action at such Leasehold Mortgagee's option
and does hereby authorize entry upon the Premises by the
Leasehold Mortgagee for such purpose.
(5) Leasehold Mortgagee's Election to Cure.
Anything contained in this Lease to the contrary
notwithstanding, if any breach or default shall occur and
remain uncured, Lessor shall have no right to terminate this
Lease or exercise any other remedy unless, following the
expiration of the period of time given Lessee to cure such
breach or default, or the act or omission which gave rise to
such breach or default, Lessor shall first notify any
Leasehold Mortgagee of Lessor's intent to so exercise such
remedy, such notice to be given at least thirty (30) days in
advance of the proposed effective date of such exercise if
such default is capable of being cured by the payment of
money, and at least sixty (60) days in advance of the
proposed effective date of such exercise if such default is
not capable of being cured by the payment of money. The
provisions of Section 22A(6) shall apply if, during such
thirty (30) or sixty (60) day period, any Leasehold
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Mortgagee shall notify Lessor of such Leasehold Mortgagee's
desire to exercise its rights to perform under Section
22A(6) and shall:
(a) pay or cause to be paid all rent, and
other paymentsmthen due and in arrears as specified in such
notice and which may become due during such thirty (30) or
sixty (60) day period; and
(b) comply or in good faith, with reasonable
diligence and continuity, commence to comply with all
non -monetary requirements of this Lease then in default and
reasonably susceptible of being complied with by such
Leasehold Mortgagee.
(6) Procedure on Default.
(a) If any Leasehold Mortgagee shall have
proceeded in the manner provided Section 22A(5), the period
specified in Section 22A(5) during which Lessor may not
terminate this Lease or exercise any other remedy shall be
extended for a period of six (6) additional months, provided
that such Leasehold Mortgagee shall, during such additional
six (6) month period:
(i) pay or cause to be paidall rent,
and other monetary obligations of Lessee under this Lease as
the same become due, and continue its good faith efforts to
perform all of Lessee's other obligationsunder this Lease,
excepting non -monetary obligations not reasonably
susceptible of being cured or performed by such Leasehold
Mortgagee; and
(ii) if not enjoined or stayed, take
steps to acquire or sell Lessee's interest in this Lease by
foreclosure of the Leasehold Mortgage or other appropriate
means and prosecute the same to completion with reasonable
diligence.
(b) If at the end of such additional six (6)
month period such Leasehold Mortgagee is complying with
Section 22A(6)(a), this Lease shall not then terminate, and
the time for completion by such Leasehold Mortgagee of its.
proceedings shall continue so long as such Leasehold
Mortgagee is enjoined or stayed and thereafter for so long
as such Leasehold Mortgagee proceeds to complete steps to
acquire or sell Lessee's interest in this Lease by
foreclosure of the Leasehold Mortgage or by other
appropriate means with reasonable diligence and continuity.
Nothing in this Section 22A(6)(b), however, shall be
construed to extend this Lease beyond the original term
hereof as extended by any exercised options; nor to require
a Leasehold Mortgagee to continue such foreclosure
proceedings after a breach or default has been cured. If
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the Lessee's breach or default is cured and the Leasehold
Mortgagee discontinues such foreclosure proceedings, this
Lease shall continue in full force and effect as if no
breach or default under this Lease has occurred.
(c) The making of a Leasehold Mortgage shall
not impose personal liability or any Leasehold Mortgagee for
the performance of any of the terms, covenants or conditions
on the part of the Lessee to be performed hereunder.
Nothing contained herein shall require a Leasehold Mortgagee
to commence any cure or performance on behalf of Lessee or,
once having commenced such a cure or performance, to
continue or complete such cure or performance or require a
Leasehold Mortgagee to commence any remedy or exercise any
right under its Leasehold Mortgage or once having commenced
such remedy or exercise to continue or complete such remedy
or exercise.
(d) The purchaser at any sale of this Lease
and of the leasehold estate hereby created 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 to be an assignee or transferee
of this Lease, and shall be deemed to have agreed to perform
all of the terms, covenants and conditions on the part of
the Lessee to be performed hereunder, but only from and
after the date of such purchase and assignment, and only for
so long as such purchaser or assignee is the owner of the
leasehold estate created hereby. Any such purchaser or
assignee shall not have any personal liability for any
obligations of the Lessee accruing either before or after
such purchaser's period of ownership.
(e) Notwithstanding any other provision of
this Lease, any sale of this Lease and of the leasehold
estate hereby created in any proceedings for the foreclosure
of or Trustee's sale under any Leasehold Mortgage, or the
assignment or transfer of this Lease and of the leasehold
estate hereby created in lieu of the foreclosure of any
Leasehold Mortgage, shall be deemed to be a permitted sale,
transfer or assignment of this Lease and of the leasehold
estate hereby created, not requiring any consent or approval
of Lessor.
B. Termination and New Lease.
(1) New Lease. In the event this Lease is
terminated by reason of the happening of any breach or
default under this Lease which is not cured by Lessee or a
Leasehold Mortgagee under the provisions and within the time
limits set forth above, or in the event of rejection or
disaffirmance of this Lease pursuant to bankruptcy or
insolvency law or other law affecting creditors rights,
Lessor shall give prompt notice thereof to any Leasehold
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Mortgagee. Lessor shall, on written request of any
Leasehold Mortgagee, made at any time within sixty (60) days
after the giving of such notice by Lessor, enter into a new
lease of the Premises with such Leasehold Mortgagee within
thirty (30) days after receipt of such request, which new
lease shall be effective as of the date of such termination
of this Lease for the remainder of the term of this Lease,
at the rent provided for herein, and upon the same terms,
covenants, conditions and agreements as are herein
contained; provided that such Leasehold Mortgagee shall:
(a) pay to Lessor at the time of the execu-
tion and delivery of said new lease any and all unpaid sums
for rent and other charges payable by Lessee hereunder to
and including the date thereof, less the net amount of all
sums received by Lessor from any subtenants in occupancy of
any part or parts of the Premises or improvements thereon up
to the date of commencement of such new lease; and
(b) on or prior to the execution and
delivery of said new lease, agree in writing that promptly
following the delivery of such new lease, such Leasehold
Mortgagee will perform or cause to be performed all of the
other covenants and agreements herein contained on Lessee's
part to be performed to the extent that Lessee shall have
failed to perform the same to the date of delivery of such
new lease except such covenants and agreements which are not
reasonably susceptible of performance by such Leasehold
Mortgagee.
(2) New Lease Priority. Any new lease made
pursuant to Section 22B(1) and any renewal Lease entered
into with a Leasehold Mortgagee pursuant to this Lease shall
be prior to any mortgage or other lien, charge or
encumbrance on the fee interest in the Premises and the
tenant under such new lease shall have the same right, title
and interest in and to the Premises and the improvements
located thereon as Lessee had under this Lease.
(3) Liability of New Lessee. The tenant under
any such new lease shall be liable to perform the obli-
gations imposed on the tenant by such new lease only during
the period such person has ownership of the leasehold estate
created thereby, subject to the possibility of exculpation
noted in Section 22B(1).
(4) Subleases and Rents. After the termination
of this Lease and during the period thereafter during which
any Leasehold Mortgagee shall be entitled to enter into a
new lease of the Premises, Lessor shall not terminate any
sublease or the rights of the subtenant thereunder unless
such subtenant shall be in default under such sublease.
During such period Lessor shall receive all rent and other
payments due from subtenants, including subtenants whose
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attornment Lessor shall have agreed to accept, as agent of
such Leasehold Mortgagee and shall deposit such rents and
payments in a separate and segregated account in trust for
the Premises, but may withdraw such sums, from time to time,
to pay necessary operating expenses and carrying charges of
the Premises; and, upon the execution and delivery of such
new lease, shall account to the tenant under the said new
lease for the balance, if any, (after application as
aforesaid) of the basic rent, additional rents and other
payments made under said subleases, and said tenant shall
thereupon assign the basic rent, additional rents and other
payments due under said subleases to any Leasehold
Mortgagees of the new lease in the same manner as such
rentals and other payments had been assigned to the
Leasehold Mortgagees under this Lease. The collection of
rent by the Lessor acting as an agent pursuant to this
subparagraph shall not be deemed an acceptance by Lessor for
its own account of the attornment of any subtenant unless
Lessor shall have agreed in writing with such subtenant that
its tenancy shall be continued following the expiration of
any period during which a Leasehold Mortgagee may be granted
a new lease in which case such attornment shall take place
upon such expiration but not before.
C. Miscellaneous Provisions for Leasehold Mortgagees.
(1) Leasehold Mortgagee Need Not Cure Specified
Defaults. Nothing herein contained shall require any
Leasehold Mortgagee, as a condition to the exercise of any
of its rights hereunder, to cure any breach or default of
Lessee not reasonably susceptible of being cured by such
Leasehold Mortgagee, including without limitation any breach
or default under Sections 19(a)(iii), (iv) and (v).
(2) Consent of Leasehold Mortgagee Required. No
cancellation, termination, surrender or modification of this
Lease shall be effective as to any Leasehold Mortgagee
unless either consented to in writing by such Leasehold
Mortgagee or made pursuant to and in compliance with this
Section 22.
(3) Eminent Domain. So long as any Leasehold
Mortgagee shall exist, the proceeds arising from a
condemnation shall be disposed of as provided for in such
Leasehold Mortgage.
(4) 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 Lease
with respect thereto and, in the event of any conflict
between the provisions of this Lease and the provisions of
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any Leasehold Mortgage with respect thereto, the provisions
of this Lease shall control.
(5) Arbitration and Legal Proceedings. Lessor
shall give any Leasehold Mortgagee prompt notice of any
arbitration or legal proceedings between Lessor and Lessee
involving obligations under this Lease. Any Leasehold
Mortgagee shall have the right to intervene in any such
proceedings and be made a party to such proceedings, and the
parties hereto do hereby consent to such intervention.
Lessor shall also give any Leasehold Mortgagee notice of,
and a copy of, any award or decision made in any such
proceedings. Anything contained in this Lease to the
contrary notwithstanding, in the event Lessee shall fail to
appoint an arbitrator under circumstances where Tenant is
required or authorized to do so, a Leasehold Mortgagee shall
have an additional period of thirty (30) days, after notice
by Lessor that Lessee has failed to appoint such arbitrator,
to make such appointment, and the arbitrator so appointed
shall thereupon be recognized in all respects as if he had
been appointed by Lessee.
(6) Notices. No notice to be given by Lessor to
any Leasehold Mortgagee or by any Leasehold Mortgagee to
Lessor shall be effective unless in writing and, if to any
Leasehold Mortgagee, sent by registered mail to the most
recent address furnished Lessor pursuant to Section 22A(2),
and if to Lessor, sent by registered mail to the address set
forth in Section 21(c).
(7) Erroneous Payments. A Leasehold Mortgagee
making any payment to Lessor in error or pursuant to
Lessor's wrongful, improper or mistaken notice or demand
shall be entitled to the return of any such payment or
portion thereof. If, after any such payment by a Leasehold
Mortgagee, the Lessee pays the same or any part thereof to
Lessor, Lessor shall promptly refund said payment or portion
thereof to such Leasehold Mortgagee.
(8) Limitation on Lessor's Right to Encumber Fee.
Any mortgage now or hereafter placed on Lessor's fee
interest in the Premises shall be subject to this Lease, to
any new lease created pursuant to Section 22B, to any
mortgage now in existence on the leasehold estate as
permitted by this Lease or such new lease, and to Lessee's
right, as permitted by this Lease or such new lease,
subsequently to encumber the leasehold estate created hereby
or thereby.
(9) No Rights to Encumber Fee of Lessor. The
provisions of this Section do not give to any person
whatsoever the right to mortgage, hypothecate or otherwise
to encumber or to cause any liens to be placed against the
freehold estate of Lessor, nor shall said provisions be
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construed as resulting in a subordination in whole or in
part of the freehold estate of Lessor to any indebtedness of
Lessee.
(10) Performance by Leasehold Mortgagee. Any
Leasehold Mortgagee shall have the right, but not the
obligation, to make any payment, perform or cause to be
performed any act, or otherwise comply or cause compliance
with any and all terms, covenants and provisions of this
Lease to be complied with by Lessee, and Lessor shall accept
any such payment, performance or compliance by any Leasehold
Mortgagee as if such payment, performance or compliance had
been made by Lessee.
(11) Rights of Leasehold Mortgagees. The exercise
by any Leasehold Mortgagee of its rights to obtain
possession of the Premises, including without limitation the
right to commence an action against the Lessee for the
appointment of a receiver, shall not constitute a breach or
default under this Lease.
(12) Non -Merger. So long as any Leasehold
Mortgage is in existence, unless the Leasehold Mortgagee
thereof shall otherwise expressly consent in writing, the
fee title to the. Premises and the leasehold estate therein
created by this Lease shall not merge but shall remain
separate and distinct, notwithstanding the acquisition of
both said fee title and said leasehold estate by Lessor,
Lessee or by a third party, by purchase or otherwise.
(13) Estoppel Certificate. Lessor shall, without
charge, at any time and from time to time within ten (10)
days after written request of Lessee or any Leasehold
Mortgagee to do so, certify by written instrument duly
executed and acknowledged to any Leasehold Mortgagee or
purchaser, or proposed Leasehold Mortgagee or purchaser, or
any other person, firm or corporation specified in such
request: (a) as to whether this Lease has been modified,
supplemented, amended, extended or renewed and if so, the
substance and manner of such modification, supplement,
amendment, extension or renewal; (b) as to the validity and
force and effect of this Lease in accordance with its
provisions; (c) as to the existence of any breach or default
hereunder or any circumstance which, with the giving of
notice or the passage of time, or both, would constitute a
breach or default hereunder; (d) as to the existence of any
offsets, counterclaims or defenses to the enforcement of
this Lease on the part of either Lessor or Lessee; (e) as to
the commencement and expiration dates of the term of this
Lease; and (f) as to any other matters as may be reasonably
so requested. Any such certificate may be relied upon by
Lessee and any other person, firm or corporation to whom the
same may be exhibited or delivered, and the contents of such
certificate shall be binding upon Lessor.
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(14) Survival. The provisions of this Section 22
shall survive the termination, rejection or disaffirmance of
this Lease and shall continue in full force and effect
thereafter to the same extent as if this Section 22 was a
separate and independent contract made by Lessor and any
Leasehold Mortgagee and, from the effective date of such
termination, rejection or disaffirmance of this Lease to the
date of execution and delivery of any new lease pursuant to
Section 22B, such Leasehold Mortgagee may use and enjoy the
Premises without hindrance by Lessor or any person claiming
by, through or under Lessor so long as such Leasehold
Mortgagee or any person claiming by, through or under such
Leasehold Mortgagee complies with the terms of this Lease
except as otherwise provided in Section 22C(1).
4. Except as expressly set forth herein, the Lease remains
unmodified and in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment
effective as of the date first written above.
LESSOR
LESSEE
City of Newgort Bpach Bahia Corinthian Yacht Club
Attest:
pqm City Clerk
Appr
to form:
As_t. _ y Attorney
By:
Its:
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LEASE
THIS LEASE, made this 7th day of May, 1998, by and between the City of
Newport, a municipal corporation, and Charter City, hereinafter, "Lessor" and the Bahia
Corinthian Yacht Club, a California, non-profit Corporation, hereinafter, "Lessee", is made
with reference to the following recitals:
RECITALS
A. Under the provisions of the Beacon Bay Bill (Chapter 740 of the Statues of 1978),
Lessor is the grantee of certain harbor tidelands, located in the City of Newport
Beach, County of Orange, ("Tidelands Grant");
B. Lessee currently operates a marina in and over a portion of those tidelands under
Harbor Permit 0101-1801-1;
C. Harbor Permit 0101-1801-1 is issued to Califomia Recreation, a dba of The Irvine
company, the owner of the upland property adjacent to the tidelands;
D. Lessee has acquired the upland property adjacent to the tidelands;
E. The parties desire to enter into a long-term lease in lieu of a City Harbor Permit,
and
F. The Marina use to be made of these tidelands, and the terms and conditions in this
lease are consistent with the provisions of the City Charter and Ordinances of
Lessor, and are consistent with the provisions of the Tideland's Grant; and
G. Lessor and Lessee entered into that certain Option Agreement for the Lease of
Real Property dated as of October 4, 1995 (the "Option Agreement") granting
Lessee the right to enter into a lease for the premises on the terms and conditions
set forth herein. Lessee has duly exercised such option, all conditions precedent
to such exercise have been satisfied, and there exists no event of default by
Lessee under the Option Agreement as of the date of the exercise of the option by
Lessee or the date hereof.
NOW THEREFORE, THE PARTIES AGREE:
1. LEASED PREMISES
In consideration of the rent to be paid and the covenants and conditions to be
observed and performed by Lessee, Lessor leases to the Lessee those tidelands
described in Exhibit "A"and depicted on the map attached, as Exhibit "B" (the "Premises").
Lessor reserves all oil, oil rights, gas, minerals, mineral rights, natural gas rights and other
hydrocarbon substances in and under the Premises and the right to grant and transfer the
same, together with all necessary and convenient rights to explore for, develop, produce
and extract and take the same, subject to the express limitation that any and all
operations for the exploration, development, production, extraction and taking of any such
substance shall be carried on at levels below the depth of five hundred feet (500') from
the surface of the land by means of wells, derricks and other equipment from surface
locations on adjoining or neighboring land, and subject further to all restrictions and
regulations concerning the drilling for, and production of, oil, gas, minerals, petroleum and
other hydrocarbon substances specified in the Newport Beach City Charter or the
Newport Beach Municipal Code.
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2. TERM
The Term shall commence on the date first written above, and shall expire upon
the thirty-fifth (35) anniversary thereof (the "Expiration Date"), unless sooner terminated
as provided in this Agreement.
3. QUIET POSSESSION
So long as no default by Lessee has occurred under this Lease, Lessee shall
peaceably and quietly use and enjoy the Premises for the Term, without hindrance or
interruption by Lessor or any other person or persons claiming by, through or under
Lessor. 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 the Lessor (such as, water or sewer service), or a termination,
interruption or disturbance of any service attributable to any act or neglect of Lessor or its
servants, agents, employees, licensees, business invitees, or any person claiming by,
through or under Lessee.
4. IMPROVEMENTS TO LEASED PREMISES
Lessor and Lessee acknowledge that Lessee has constructed major
improvements on and adjacent to the Premises. These improvements include, but are
not necessarily limited to, bulkheads, piers, docks, floats and related improvements which
comprise a marina consisting of 2,504 lineal feet of slips for docking of boats, (collectively,
the "Marina improvements") as shown on Exhibit "B." Of the 2,504 lineal feet of slips for
docking boats, 2,079 lineal feet of such slips are located on State Tidelands, which are
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the subject of this Lease and shall serve as the basis for calculating rent herein below.
5. RENT
Upon execution of this lease Lessee shall pay to Lessor the sum of twenty-nine
thousand, two hundred, fifty-six dollars and fifty-one cents ($29,256.51), in twelve (12)
equal monthly installments of two thousand four hundred and thirty-eight dollars and four
cents ($2,438.04) payable on the first of each month, and every year thereafter. Lessee
shall pay rent which sum is equal to nine percent (9%) of the annual gross receipts from
slip rentals generated by 2,079 lineal feet of marina slips at a rental rate of thirteen dollars
and three cents ($13.03) per lineal foot, the ("rental rate") or such rental rate as may be
adjusted as provided in Paragraph 6 below.
6. RENT ADJUSTMENT/MINIMUM RENT
Every year, on the anniversary date of the Lease, the rental rate shall be adjusted
upwards or downwards in direct proportion to the weighted average increase or decrease
in the rate per lineal foot of slips in the "comparable marinas" described below, but in no
event shall the rent adjust below the then prevailing commercial harbor permit fee paid by
other commercial users within lower Newport Harbor. The weighted average rate per
lineal foot of slips shall be determined by the following "comparable marinas.": Bayside
Marina, Villa Cove Marina, Balboa Yacht Basin, Balboa Marina and Bayshores Marina.
From the list of "comparable marinas" the following size categories shall be excluded from
the weighted average calculations: Bayside Marina, forty sixt foot (46') to seventy four
foot (74'); Bayshores Marina, sixty eight foot (68') to eighty two foot (82'). If the method of
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determining rental rates in the comparable marinas should change, Lessor agrees to
consult with Lessee to establish a comparable method to determine the future rental
rates.
7. ALTERATIONS
Lessee shall have the right to make, at its sole expense, such nonstructural
changes, alterations, improvements and additions in and to the marina improvements, but
such changes shall conform to the City's Harbor Permit Policies and Exhibit "B". Structural
changes shall not be made to any marina improvement without first submitting written
plans and specifications of the proposed change, alteration or addition to the Lessor and
obtaining Lessor's written approval. Lessee shall make, at its expense, such changes,
alterations or additions in and to structures on the Premises that may be required by any
public law ordinance from time to time, applicable to Lessee's use and occupancy of the
Premises.
8. MARINA MAINTENANCE
Lessee at its sole cost and expense, shall keep and maintain all marina
improvements and related fixtures and personal property in first class order, condition and
repair. Lessee shall maintain and operate not less than 2,079 lineal feet of slips available
for rent. Maintenance dredging bayward of the property line, between the bulkhead line
and the pierhead line, shall be the responsibility of the Lessee for the zone delineated by
bayward prolongations of upland side property lines out to the U.S. project line. The
Lessee agrees that the Lessor may go upon the leased Premises and make any
i
necessary repairs to the Premises, and perform any work therein:
(i) Which may be necessary to comply with any laws, ordinances, rules
or regulations of any public entity;
(ii) That Lessor is obligated to make, under the terms of this Lease; or
(iii) That the Lessor may deem necessary to prevent waste or
deterioration of the Premises, if the Lessee does not make or cause
such work to be performed promptly and diligently after receipt of
written demand, therefore from the Lessor. Nothing herein
contained shall apply any duty on the part of the Lessor to do any
work which the Lessee may be required to do, nor shall it constitute
a waiver of Lessee's default. No exercise by the Lessor of any rights
reserved, shall entitle the Lessee to any damage for any injury or
inconvenience occasioned thereby, or to any abatement of rent,
however, such repairs once commenced, shall be completed in a
timely manner. In the event that Lessor makes, or causes to be
made, any repairs, within the Term of this Lease that is Lessee's
obligation to make, Lessee shall upon demand, pay to the Lessor the
cost of such repairs, which amounts shall be due and payable upon
demand and shall bear interest from the date of demand, until totally
paid at the rate of nine percent (9%) per annum.
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9. USE OF THE PREMISES
During the Term of this Lease, Lessee shall use and occupy the Premises,
principally for the operation of a marina. The marina use shall be limited to the rental of
boat slips, dock lockers, dry storage and related uses. Lessee shall not commit or permit
the commission by others of any waste on the Premises. Lessee shall not maintain any
nuisance, as defined in Section 3479 of the California Civil Code on the leased Premises.
Lessee shall not unreasonably interfere with the rights of other harbor permittees or
nearby residents, and Lessee shall not use or permit the use of the Premises for any
unlawful purpose, or in violation of any provision of law.
10. UTILITIES
Lessee shall be solely responsible for obtaining and shall promptly pay for all
water, power, sewer, and other utility services provided to the Premises.
11. RIGHT TO ENTER
Lessor expressly reserves the right to enter the Premises and all improvements for
any purpose associated with this Lease or for carrying out any function required by law, or
the rules, regulations or management policies of Lessor. Lessor shall have a right of
reasonable access to the Premises across Lessee owned or occupied lands adjacent to
the Premises for any purpose associated with this Lease.
12. RULES, REGULATIONS AND TAXES
(a) Lessee shall comply with and be bound by all presently existing or
subsequently enacted policies, regulations, statutes or ordinances of Lessor, including,
7
but not limited to, rules and regulations prescribed under Council Policy H-1 (Harbor
Permit Policies), or any other government agency or entity having lawful authority and
jurisdiction.
(b) Lessee understands and agrees that a necessary condition for the granting
and continued existence of this Lease is that Lessee obtain and maintain all permits or
other entitlements.
(c) During the Term of this lease, Lessee shall pay, prior to delinquency, any
and all taxes assessed against Lessee's possessory interest under this Lease and all
other taxes, assessments, user fees or service charges imposed on or associated with
the leasehold interest, or personal property or improvements on the Premises, and such
payment shall not reduce rent due Lessor under this Lease, and Lessor shall have no
liability for such payment.
13: ENVIRONMENTAL REQUIREMENTS
(a) Lessee shall practice conservation of water, energy, and other natural
resources and shall prevent pollution and harm to the environment. Lessee shall not
violate any law or regulation whose purpose is to conserve resources or to protect the
environment.
(b) Lessee shall not use, nor permit the use of, any hazardous wastes or
materials in the construction, reconstruction or renovations of or use of the marina
improvements in violation of any applicable law, regulation, code or ordinance. Lessee
shall, at its expense, comply, and cause each of its members, licensees and/or
concessionaires of space in the marina or elsewhere adjacent to the Premises to comply
with all applicable laws, regulations, codes and ordinances relating to any hazardous
regulated material, including obtaining and filing all applicable notices, permits, licenses
and similar authorizations. Lessee shall be fully responsible to clean up any hazardous
wastes, substances or materials as may be required under Federal, State or local law,
regulation, code or ordinance that are manufactured, generated, used, placed, disposed,
stored, or transported on the Premises by Lessee, its members, licensees and
concessionaires during the Lease Term and shall comply with and be bound by all
applicable provisions of such Federal, State or local law, regulation, code or ordinance
dealing with such wastes, substances or materials. Lessee shall notify Lessor and the
appropriate governmental emergency response agency(ies) immediately in the event of
any release or threatened release of any such wastes, substances or materials.
14. INDEMNITY
(a) Lessee agrees to defend, indemnify, protect and hold Lessor harmless from
and against any and all liability, claims, damages, penalties, actions, demands or
expenses of any kind or nature, including damage to any property and injury (including
death) to any person (collectively, "Claims"), arising from Lessee's use or occupation of
the Premises of from any activity, work or things done, permitted or suffered by Lessee,
or from any activity, work or things done, permitted or suffered by Lessee or any omission
of Lessee on or about the Premises or from any litigation concerning any of the foregoing
in which Lessor is made a party Defendant. Lessee shall not be required hereunder to
defend, indemnify or hold Landlord or any other person or entity indemnified under this
Section harmless from or against any of the Claims to the extent such Claim arises solely
out of the negligence or willful misconduct of Lessor. This obligation to indemnify shall
include reasonable_ attorneys' fees and investigation costs and all other reasonable costs,
expenses and liabilities incurred by Lessor or its counsel from the first notice that any
claim or demand is to be made or may be made.
(b) Upon receiving knowledge of any Claim that Lessor believes is covered by
this indemnity, Lessor shall give Lessee notice of the matter and an opportunity to defend
it, at Lessee's sole cost and expense, with legal counsel satisfactory to Lessor in its sole
and absolute discretion. Lessor may also require Lessee to so defend the matter. So
long as Lessee shall be defending any such Claim, Lessor shall not settle such claim
without the consent of Lessee.
(c) Lessee shall notify Lessor immediately in case of any accident, injury or
casualty on the Premises.
15. INSURANCE
(a) Lessee shall obtain and maintain in full force and effect during the Term of
this Lease, comprehensive general liability insurance and property damage insurance,
with such coverage and limits as may be reasonably requested by the Lessor from time to
time, but in no event for less than the sum(s) specified below, insuring Lessee and Lessor
against any and all claims or liability arising out of the ownership, use, occupancy,
condition or maintenance of the Premises and all improvements.
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(i) Comprehensive General Liability Insurance. Lessee shall maintain
Comprehensive General Liability Insurance with a combined single
limit for bodily injury and property damages of Two Million Dollars
($2,000,000), (which amount shall be subject to periodic adjustment
as may be determined by Lessor upon one hundred eighty days
(180) prior notice. The limits of liability of the insurance coverage
specified in this paragraph may be provided by any combination of
primary and excess liability insurance policies.
(ii) Property Insurance -Construction. During construction of any
improvements on the Premises, Lessee shall maintain builder's risk
insurance against "all risk" or physical loss, including without
limitation the perils of flood, collapse and transit, with deductibles
acceptable to Lessor, covering the total cost of work performed,
equipment, supplies and materials furnished on a replacement cost
basis. Lessee shall be permitted to obtain and maintain flood
insurance in such amounts and forms as are available, from time to
time, under National Flood Insurance Program.
(iii) Property Insurance. Lessee shall obtain insurance on the marina
improvements and shall maintain insurance continuously during the
Term, against "all risk" perils of physical loss, including, but not
limited to, flood, fire, lightning, riot and civil commotion, vandalism
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and malicious mischief. Such insurance shall be in amounts not less
than the then full replacement cost of the marina improvements,
without deduction for depreciation. Such policies of insurance shall
contain the "Replacement Cost Endorsement." Such full
replacement cost shall pertain to the Project and Furnishings and be
determined not less often than each two (2) years during the Term.
(b) Insurance carriers shall be licensed and approved to do business in
California having a general policyholders' rating of not less than B+ and financial rating or
not less than "VII" in the most current Best's Key Rating Guide.
(c) The insurance policy or policies shall name the Lessor, its officers, agents
and employees as additional insureds. Lessee shall provide Lessor with a certificate of
such insurance and shall keep such certificate current. The policy (or endorsement) must
provide that the insurer will not cancel the Lessee's coverage without thirty (30) days prior
written notice to the Lessor. The Lessor will not be responsible for any premiums or other
assessments on the policy. The coverage provided by the Lessee shall be primary and
non-contributing.
(d) The insurance coverage specified in this Lease shall be in effect at all times
during the Lease Term and subsequently until all of the Premises have been either
accepted as improved, by Lessor, or restored by Lessee.
(e) Lessee shall not commit or permit the commission of any acts on the
Premises that would cause the cancellation of any liability or other insurance policy,
12
insuring either the Premises or the improvements on the Premises. Lessee shall, at its
own cost and expense, comply with any and all requirements imposed by insurance
companies that carry the policies described above.
(f)
either.
Each policy of insurance procured pursuant to the Section shall contain,
(i) A waiver by the insurer of the right of subrogation against either party
hereto for negligence of such party; or
(ii) A statement that the insurance shall not be invalidated should any
insured waive in writing prior to a loss any or all right of recovery
against any party for loss described in the insurance policy. Lessor
and Lessee each hereby waives any and all rights of recovery
against the other, and against it shareholders, officers, directors,
employees, subsidiaries, partners, servants, agents and
representatives, for loss or damage arising from any cause insured
against under the form of insurance policies required to be carried
pursuant to this Section or under any other policy of insurance
carried by either Lessor or Lessee. Lessee and Lessor each agrees
to use reasonable efforts to obtain its liability insurance carriers'
permission as to the waiver of subrogation described above in this
Section.
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(g) Lessee shall at all times observe and comply with the requirements of all
policies of insurance° in force with respect to the Premises or any part thereof, and
Lessee shall so perform and satisfy the requirements of the companies writing such
policies so that, at all times, companies of good standing reasonably satisfactory to
Lessor shall be willing to write or to continue such insurance. Lessee shall, if any
member, licensee, concessionaire or other user of any portion of the Premises engages
in any activity in violation of the requirements of all policies of insurance in force with
respect to the Premises, or any party thereof, take steps, immediately upon knowledge of
such activity, to remedy or prevent the same, as the case may be.
16. CASUALTY
Lessee shall promptly cause the marina improvements, or any part, thereof, which
is damaged or destroyed, to be repaired and restored to its original condition whether or
not required to be insured against, at Lessee's sole cost and expense. Such repair and
restoration shall be commenced in good faith and with all reasonable diligence within a
reasonable diligence within a reasonable period of time following casualty and shall be
completed with due diligence.
17. NO ABATEMENT OF RENT
Throughout the Term, no direct or indirect destruction of or damage to the marina
improvements or any other personal property on the Premises or any part thereof or
elsewhere by fire or other casualty whatsoever, whether such damage or destruction be
partial or total, shall permit Lessee to surrender or terminate the Lease or relieve Lessee
14
from its obligation to pay in full the rent and other sums and charges payable by Lessee
hereunder or from any other obligation under the Lease, except as otherwise expressly
set forth herein.
18. ASSIGNMENT, ENCUMBRANCING OR SUBLETTING
(a) Lessee shall not either voluntarily or by operation of law, assign, transfer,
mortgage, pledge, hypothecate or encumber this Lease and shall not sublet the
Premises, in whole or in part, or allow any person other than the Lessee's employees,
members, agents, servants and invitees to occupy or use all or any portion of the
Premises without the prior written consent of Lessor which consent shall not be
unreasonably withheld.
(b) The following shall be deemed to be an assignment or transfer within the
meaning of this Lease:
(i) If Lessee is a corporation, any dissolution, merger, consolidation or
other reorganization of Lessee or sale or other transfer of a
percentage of capital stock of Lessee which results in a change of
controlling persons, or the sale or other transfer of substantially all
the assets of Lessee.
(ii) If Lessee is a partnership, a transfer of any interest of a general
partner, a withdrawal of any general partner from the partnership, or
the dissolution of the partnership.
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• •
(c) This Lease is appurtenant to adjoining littoral or riparian land and/or
uplands, and Lessee shall not transfer or assign its ownership interest or use rights in
such adjoining land separately from the leasehold rights granted by this Agreement
without the prior written consent of Lessor.
19. DEFAULT AND REMEDIES
(a) The occurrence of any one or more of the following shall constitute a default
by Lessee:
(i) Failure of Lessee to pay rent due hereunder within thirty (30) days
after written notice from Lessor; or
(ii) Any failure by Lessee to perform any of the other terms, conditions
or covenants of this Lease to be observed or performed by Lessee
after thirty (30) days written notice from Lessor, or
(iii) Lessee becoming insolvent or filing any debtor proceedings, or
should any adjudications in bankruptcy be rendered against Lessee,
or should Lessee take or have taken against it, in any court pursuant
to any statute either of the United States or of any State, a petition in
bankruptcy or insolvency or for reorganization or for the appointment
of a receiver or trustee of all or a portion of Lessee's property, and
should the same not be discharged within one hundred twenty (120)
days thereafter; or
16
(iv) Lessee permitting the Premises to become vacant or unoccupied for
fifteen (15) consecutive days after written notice to Lessee (except
for vacancies caused by any Force Majeure or by remodeling,
reconstruction, alterations or repairs permitted under this Lease); or
(v) The appointment of a trustee or receiver to take possession of
substantially all of the assets of Lessee located at the Premises or
Tenant's interest in this Lease or the Premises, where possession is
not restored within thirty (30) days.
(b) Except for the payment of rent, if the nature of Lessee's default or breach
under this paragraph is such that more than thirty (30) days are reasonably required for
its cure, then Lessee shall not be deemed to be in default or breach if Lessee
commences such cure within such thirty (30) day period and diligently proceeds with such
cure to completion.
(c) Remedies In the event of a default or breach by Lessee and Lessee's
failure to cure such default or breach, Lessor may at any time and with or without notice
do any one or more of the following:
(i) Re-enter the Lease Premises, remove all persons and property, and
repossess and enjoy such Premises.
(ii) Terminate this Lease and Lessee's right of possession of the Lease
Premises. Such termination shall be effective upon Lessor's giving
written notice and upon receipt of such notice, Lessee shall
17
immediately surrender possession of the Lease Premises to Lessor.
(iii) Maintain this Lease in full force and effect and recover any rental,
royalty, or other consideration as it becomes due, without terminating
Lessee's right of possession, regardless of whether Lessee shall
have abandoned the Lease Premises.
(vi) Exercise any other right or remedy which Lessor may have at law or
equity.
20. RESTORATION OF PREMISES
(a) Upon expiration or sooner termination of this Lease, Lessor upon written
notice, may take title to any or all improvements, including fills, or Lessor may require
Lessee to remove all or any such improvements at its sole expense and risk; or Lessor
may itself remove or have removed all or any portion of such improvements at Lessee's
sole expense. Lessee shall deliver to Lessor such documentation as may be necessary
to convey title to such improvements to Lessor, free and clear of any liens, mortgages,
loans or any other encumbrances.
(b) In removing any such improvements, Lessee shall restore the Premises as
nearly as possible to the conditions existing prior to their installation or construction.
(c) All plans for and subsequent removal and restoration shall be to the
satisfaction of Lessor and shall be completed within ninety (90) days after the expiration
or sooner termination of this Lease.
18
4
(d) In removing any or all the improvements, Lessee shall be required to obtain
any permits or other governmental approvals as may then be required by lawful authority.
21. ADDITIONAL PROVISIONS
(a) Waiver
(i) No term, covenant, or condition of this Lease and no default or
breach of any such term, or condition shall be deemed to have
waived by Lessor's acceptance of a late nonconforming performance
or otherwise, such a waiver is expressly acknowledged Lessor in
writing.
(ii) Such waiver shall not be deemed to be a of any other term, covenant
or condition this Lease.
(b) Time
Time is of the essence of this Lease and each and all its terms, covenants or
conditions in which is a factor.
(c) Notice
All notices required to be given under this Lease be given in writing, sent by U.S.
Mail, to Lessor at:
City of Newport Beach
3300 Newport Boulevard
Newport Beach, Califomia, 92658
Attention: City Manager
19
•
and the Lessee at the address specified in this Lease. Lessee shall give Lessor
notice of any change in its name, address or telephone number. Until such notice of
change, all notices to Lessee shall be sent to:
BAHIA CORINTHIAN YACHT CLUB,
1600 Bayside Drive
Corona del Mar, CA 92625
Attn: Commodor
(d) Consent
Where Lessor's consent is required under this Lease, its consent for one
transaction or event shall not be deemed to be a consent to any subsequent occurrence
of the same or any other transaction or event.
(e) Changes
This Lease may be terminated and its term, covenants and conditions amended,
revised or supplemented only by mutual written agreement of the parties.
(f) Successors
The terms, covenants and conditions of this Lease shall extend to and be binding
upon and inure to the benefit of the heirs, successors, and assigns of the respective
parties.
(g) Joint and Several Obligation
If more than one Lessee is a party to this Lease, the obligations of the Lessees
shall be joint and several.
20
4
• •
(h) Captions
The captions of this Lease are not controlling and shall have no effect upon its
construction or interpretation.
(i) Severabilitv
If any term, covenant or condition of this Lease is determined by a
court of competent jurisdiction to be invalid, it shall be considered
deleted and shall not invalidate any of the remaining terms,
covenants and conditions.
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS AGREEMENT
EFFECTIVE AS OF THE DATE FIRST WRITTEN ABOVE.
LESSOR LESSEE
CITY OF j / -ORT BEACH BAHIA CORINTHIAN YACT CLUB
Th as Cole Edwards, Mayor
ATTEST:
DCRAI
U�'v
City Clerk
APP' +V D AS TO FORM:
Robin L. Clauson,
Assistant City Attorney
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airmendefor
F:1cafda\AglBahia\050698.doc
21
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June 30, 2023
City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
RE: CPUC Letter of Notification for New T-Mobile Wireless Facility
Administrative Wireless Communication Facilities Permit:
PA2022-0163, Resolution No. ZA2023-041
Address: 1601 Bayside Drive, Corona Del Mar, CA 92625
T-Mobile Site: LA02868G/Bahia Corinthian Yacht Club
Dear City of Newport Beach,
Please find three (3) enclosed copies of the CPUC Letter of Notification and deliver to the following
persons:
City Manager: Grace Leung
Community Development Manager: Seimone Jurjis
City Clerk: Leilani Brown
Please feel free to reach out to me with any questions regarding this matter at (949) 336-1550 or via
email at dpichardo@coastalbusinessgroup.net.
Regards,
COASTAL BUSINESS GROUP
Damien M. Pichardo
24310 Moulton Pkwy Suite 0 #1009 • Laguna Hills, CA 92637 • Phone: 949.336.1550 • Fax: 949.446.6465
www.coastalbusinessgroup.net
DocuSign Envelope ID: DF8DFD78-A78D-4EFA-B906-D49B14CACB2B
T-MOBILE LON
ATTACHMENT A
1. Proiect Location
Site Identification Number: LA02868G
Site Name: Bahia Corinthian Yacht Club
Site Address: 1601 Bayside Drive, Corona Del Mar, California 92625
County: Orange County
Assessor's Parcel Number: 050-401-30
Latitude: 33.607006
Longitude:-117.885403
2. Proiect Description
Number of Antemias to be installed: 6 antemlas
Tower Design: Faux Clunuley
Tower Appearance: Panel antennas will be mounted inside Faux Chimney
Tower Height: 27'
Size of Buildings: 27'
3. Business Addresses of Governmental Agencies
ter` -ace- —e-ung — Cf City be- r 10- n Ch,ic Center Driv e-, N ewpo ft Rah r e 91660
Leilani Brown — City Clerk —100 Civic Center Drive, Newport Beach, CA 92660
Seimone Jurjis— Community Development Director —100 Civic Center Drive, Newport
Beach, CA 92660
4. Land Use Approvals
a. Date Land Use Approval Issued: 6-15-2023, takes effect 6-30-2023
b. Land Use Permit Number: PA2022-0163, Resolution No ZA2023-041
c. If Land Use Approval was not required: N/A