HomeMy WebLinkAboutC-3272(B) - Antibes Marina Lease (for Lido Isle)LEASE
Antibes Marina
THIS LEASE (Lease), entered into this *day day of
1 , 2000, (Execution Date),
by and between the CITY OF NEWPORT BEACH, a charter city and municipal
corporation ("Lessor"), and the LIDO ISLE COMMUNITY ASSOCIATION, a
California non-profit corporation ("Lessee")
RECITALS
A. The City of Newport Beach has, since September 1928, held title to certain
lots and parcels of real property located on Lido Isle that have been leased to Lessee.
Parcel E (Premises), which is the subject of this Lease, was first leased to Lessee by an
amendment dated March 22,1954. The Premises is described in Exhibit "A" and
depicted on Exhibit "B".
B. Lessee and Lessor have entered into numerous long-term leases of City
owned property on Lido Isle including the current lease, which was approved in April
1975 and expires on April 14, 2000 (1975 Lease).
C. Lessor and Lessee intend to enter into two leases that comprise all of the
property subject to the 1975 lease with the exception of Parcel B (which is the fifty foot
strip between the bayward boundary of private property and the bulkhead line
bayward of Lot I) and Parcel C (which is a strip between the bayward boundary of
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private property and the bulkhead line between Lot 19 and Lot 26). This Lease covers
Parcel E and the other Lease covers the Bayfront Lettered Lots.
D. The Parties acknowledge that this Lease is in the best interests of the
citizens of Newport Beach, ensures a fair rent to the City given the location and current
condition of the Premises and will ensure that the Premises is maintained in good
condition and repair throughout the term of this Lease.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS in
this Lease, the Parties agree as follows:
1. DESCRIPTION OF LEASED PREMISES
Lessor hereby leases and Lessee does hereby accept the lease of the Premises,
subject to the terms and conditions in this Lease.
2. TERM
The term of this Lease shall be for a period of twenty-five (25) years, commencing
on the 15th day of April, 2000 (Effective Date) and expiring at the end of the day on
April 14, 2025 unless sooner terminated as provided in this Lease.
3. CONSIDERATION
The consideration for this Lease shall be the rent described in Section 4 of this
Lease and the Lessee's agreement to maintain the Premises in good condition and repair
during the term of the Lease.
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4. RENT
A. For each year (from April 15th to April 14th) during the term of this Lease,
Lessee shall pay to City the greater of the following;
1. Base Rent of $20,000 per year (increased to $22,000 in 2005, to
$24,200 in 2010, to $26,620 in 2015, to $29,282 in 2020; OR
2. Percentage Rent in an amount equal to 30% of the Annual Gross
Receipts during the prior calendar year (including calendar year
1999) from the wet slips and side ties on the Premises.
B. The term Annual Gross Receipts means the total amount of revenue received
by Lessee from the wet slips and the side ties on the Premises during the calendar year
preceding each April 15th during the term of this Lease. The term Annual Gross
Receipts shall not include any revenue or receipts from the dry boat storage upland of
the bulkhead on the Premises.
C. Lessee shall, for the first year during the term of this Lease, pay rent in the
sum of $14,817.93 on or before April 15, 2000. The rent due on or before April 15, 2000
has been calculated on the basis of thirty percent (30%) of the Annual Gross Receipts of
$75,393.10 received by Lessee during calendar year 1999 ($22,617.93) less rent prepaid
pursuant to the 1975 Lease ($7,800.00).
D. Lessee shall use its best efforts to maximize Annual Gross Receipts by
maintaining full occupancy of the wet slips and side ties on the Premises and renting
the wet slips and side ties at fair market rates given the unique location, size and
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condition of the Premises. Lessee shall, at least once every twelve (12) months during
the term of this Lease, advise Lessor of the rates charged and Lessor shall, within thirty
(30) days after receipt of rate information, advise Lessee if, in the opinion of Lessor, the
rates are below fair market given the unique location, size and condition of the
Premises, the wet slips and the side ties.
5. USE
Lessee shall use the Premises to manage and operate a marina including, without
limitation the rental of "wet slips" and side ties bayward of the bulkhead and dry boat
storage upland of the bulkhead. Lessee shall operate and manage the marina in a
manner that does not violate State or Federal laws including any law that prohibits
discrimination.
6. CAPITAL IMPROVEMENTS
A. All improvements constructed during the term of this Lease shall become the
property of Lessor upon expiration of the Lease.
B. Lessee shall be required to obtain, prior to commencing the construction of
any improvements, all permits, licenses or approvals that may be required by Lessor
acting in its governmental capacity.
C. Lessee shall indemnify, defend and hold Lessor harmless from any and all
claims for labor or materials in connection with the construction, repair, alteration or
installation of any structure, capital improvement, equipment or facilities on the
Premises and from the costs of defending such claims, including reasonable attorney's
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fees. Lessee shall not suffer or permit to be enforced against all or a portion of the
Premises any mechanic's, materialmen's, contractor's or subcontractor's lien, or claim
for damage that is in any way related to any construction, repair, restoration,
replacement or improvement on the Premises. Lessee shall pay any lien, claim or
demand related to any construction, repair or improvement of the Premises that is
imposed or recorded on the Premises before any action is brought to enforce the same
against the Premises. However, the provisions of this Subsection shall not prevent
Lessee from contesting the validity of any lien, claim or demand, provided that in such
event, Lessee shall, at its expense, defend itself and Lessor against the same and shall
pay and satisfy any adverse judgment that may be rendered before enforcement against
Lessor or the Premises. Lessor shall have the right, in its sole discretion, to require
Lessee to furnish a surety bond satisfactory to Lessor to fully protect the Premises and
Lessor from the effect or enforcement of any lien or claim.
D. Lessee shall give Lessor 5 days prior written notice of any construction or
improvement on the Premises that is estimated to cost more than $5,000.00. Lessee shall
coordinate the scheduling of any work with any project of Lessor to minimize
inconvenience and cost.
E. Lessee acknowledges that it may be required to construct or install certain
improvements that may be necessary to comply with State or federal laws if it elects or
is required to upgrade, alter or repair any improvement on the Premises. Lessee agrees
to fully comply with all applicable law relative to the premises in the event it elects or is
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required to upgrade, alter or repair any improvement and that it will do so at Lessee's
sole cost and expense.
7. BUSINESS ACTIVITIES
With the exception of Lessee's right to operate a marina on the Premises
and rent or lease wet slips, side ties and dry boat storage facilities, Lessee shall not
grant any concession, license, permit or privilege for the conduct of any business or
other operation for profit on the Premises without the prior approval of the City
Manager.
8. UTILITIES AND TAXES
Lessee shall promptly pay all charges for water, sewer, electricity, refuse
collection and other municipal or utility services provided to the Premises. Lessee shall
also pay, prior to delinquency, any general and special taxes or assessments or other
governmental charges, if any, which may be levied on the Premises, improvements,
Lessee's use of the Premises or any possessory interest created by this Lease. . Lessee
acknowledges that this Lease may create a possessory interest subject to property
taxation and that Lessee may be subject to the payment of property taxes levied on such
interest. Tenant shall pay, before delinquency all taxes, assessments, license fees and
other charges (Taxes) that are, during the term that are levied or assessed against
Lessee's interest in the Premises or any personal property installed on the Premises.
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Satisfactory evidence of such payments shall be delivered to Lessor within seventy-two
(72) hours of Lessor's written request for such information.
9. INSURANCE
In addition to Lessee's obligations pursuant to Section 10, Lessee shall provide and
maintain, at its own expense, policies of liability insurance as follows:
A. All required policies shall be signed by a person authorized by that insurer to
bind coverage on its behalf and must be filed with Lessor, prior to execution of this
Lease. Current certification of coverage shall be provided throughout the term of this
Lease. Except for workers compensation, all insurance policies shall include Lessor and
its elected officials, officers, agents, representatives and employees as additional
insureds.
B. All insurance policies shall be issued by an insurance company currently
authorized by the 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 Bests Key Rating
Guide: unless otherwise approved by the Lessor's Risk Manager;
C. Lessee shall provide Worker's compensation insurance covering all
employees of Lessee, per the laws of the State of California.
D. Lessee shall provide Commercial general liability insurance covering third
party liability risks, including without limitation, contractual liability, in a minimum
amount of $1 million combined single limit per occurrence for bodily injury, personal
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injury and property damage. If commercial general liability insurance or other form
with a general aggregate is used, either the general aggregate shall apply separately to
this Lease, or the general aggregate limit shall be twice the occurrence limit.
E. Lessee shall provide Fire and extended coverage for not less than ninety
percent (90%) of the cost of replacement of all insurable improvements on the Premises.
F. Except for worker's compensation, the policy or policies shall be endorsed to
state that coverage shall not be canceled by either party, except after thirty (30) days'
prior notice has been given in writing to Lessor. Lessee shall give Lessor prompt and
timely notice of claim made or suit instituted arising out of Lessee's activities pursuant
to this Lease or on the Premises
G. Lessee agrees that, in the event of loss due to any of the perils for which it has
agreed to provide comprehensive general liability insurance, Lessee shall look solely to
its insurance for recovery. Lessee grants to Lessor, on behalf of any insurer providing
comprehensive general and automotive liability insurance to either Lessee or Lessor
with respect to the activities of Lessee pursuant to this Lease, a waiver of any right of
subrogation which any insurer of Lessee may acquire against Lessor by virtue of the
payment of any loss under such insurance.
10. HOLD HARMLESS
Lessee shall indemnify, defend, save and hold harmless Lessor, its City Council,
boards and commissions, officers and employees from and against any and all loss,
damages, liability, claims, allegations of liability, suits, costs and expenses for damages
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of any nature whatsoever, including, but not limited to, bodily injury, death, personal
injury, property damages, or any other claims arising from any and all acts or
omissions of Lessee, its employees, agents or subcontractors in the use and
maintenance of the Premises pursuant to this Lease. Lessee's obligations pursuant to
this Section do not apply in the case of the sole negligence, fraud, or wilfull misconduct
of Lessor and/or its officers, employees or agents.
11. MAINTENANCE OF IMPROVEMENTS
A. Lessee shall, at its own cost and expense, maintain the Premises in good
order and repair and in clean, orderly, safe and sanitary condition. Lessee shall be
responsible for the repair of any damage to the Premises or any improvement on the
Premises.
B. If, in the judgment of the Lessor, the standards of maintenance and repair
required by this Lease are not being maintained, Lessor may elect to correct any
deficiency after written notice to the Lessee and Lessee's failure to cure the default.
Lessee shall pay to the Lessor on demand any and all sums expended by Lessor in
correcting any such deficiency together with interest at the legal rate. If, in the
judgment of the Lessor, the disrepair or lack of maintenance constitutes an emergency,
the notice shall be a 24-hour notice to remedy; in all other cases it shall be a 5-day
notice.
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C. Lessor reserves the right by its authorized agents, employees or
representatives to enter the Premises upon forty-eight (48) hours advance notice, for
purposes of inspection to attend to or protect the Lessor's interest under this Lease.
D. Lessee agrees to comply with all rules, regulations, statutes, ordinances and
laws of the State of California, County of Orange, the City of Newport Beach, or any
other governmental body or agency having lawful jurisdiction over the Premises or the
use and operation of the Premises.
12. ASSIGNMENT
Lessee shall not assign, transfer, sublease, mortgage, hypothecate or give
any grant of control of this Lease or all or a portion of the Premises, voluntarily or
involuntarily, without the express written consent of the Newport Beach City Council.
However, Lessee may lease the wet slips on the Premises to the marina tenants and
otherwise enter into such agreements as are common to marina operations in Newport
Bay without the prior approval of Lessor.
13. RESTORATION
If during the term of this Lease, any building or improvement erected by
Lessee on the Premises is damaged or destroyed by fire or other casualty, Lessee shall,
at its cost and expense, repair or restore the same according to the pre -casualty
condition or, at Lessee's option, Lessee may elect to replace the building or
improvement. In the event that Lessee elects to replace the building or improvement,
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Lessee shall obtain Lessor's approval of the proposed plans and specifications pursuant
to this Lease. Any repair, restoration or replacement shall be commenced within one
hundred and eighty (180) days after the damage or loss occurs and shall be completed
with due diligence, but not longer than one (1) year after such work is commenced
unless delay is caused by events beyond the control of Lessee. If Lessee elects not to
repair or rebuild the improvements, it may terminate this Lease by giving Lessor
written notice of termination and by assigning to Lessor all insurance proceeds relating
to the_casualty
14. DEFAULT AND TERMINATION OF LEASE
A. Time and each of the terms, covenants and conditions hereof are expressly
made the essence of this Lease. If the Lessee shall fail to comply with any of the terms,
covenants, or conditions of this Lease, including:
1. Failure of Lessee to make any payment required by the terms and
conditions of this Lease;
2. Failure of Lessee to maintain insurance or comply with the obligations to
defend, indemnify and hold Lessor harmless; or
3. Failure to keep the Premises in state of repair and condition required by
this Lease.
Lessor may, subject to the provisions of Subsectionll(B), terminate this Lease if
Lessee fails to remedy any default related to the payment of money within thirty (30)
days after service of a written notice from Lessor to do so, or fails to commence the cure
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of any other default within thirty (30) days and diligently prosecute the same to
completion. Lessee may also terminate this Lease if Lessee abandons or vacates the
Premises.
B. Lessee shall, upon the expiration or termination of this Lease, peaceably
surrender the Premises with all buildings and improvements, in the same condition as
when received or constructed, excepting reasonable use and wear. The provisions of
this Subsection shall be effective upon expiration or termination of this Lease regardless
of whether Lessee holds over under the provisions of Subsection E.
C. The rights, powers, elections and remedies of Lessor are cumulative and no
one of them shall be considered exclusive of the other or exclusive of any rights or
remedies allowed by law. Lessor's exercise of one or more rights, powers, elections or
remedies shall not impair or be deemed a waiver of Lessor's right to exercise any other.
D. No failure of Lessor to exercise any right or power arising from any omission,
neglect or default of the Lessee shall impair any such right or power or construed as a
waiver.
E. If the Lessee remains in possession after the expiration of this Lease for any
cause, Lessee's possession shall be deemed a tenancy from month -to -month upon the
same terms, conditions, and provisions of this Lease.
15. EMINENT DOMAIN
In the event the whole or part of the Premises is condemned by a public entity in
the lawful exercise of the power or eminent domain, this Lease shall cease as to the part
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condemned upon the date possession of that part is taken by the public entity. If only a
part is condemned and the taking of does not substantially impair the capacity of the
remainder of the Premises to be used for the purposes authorized in this Lease, Lessee
shall continue to be bound by the terms, covenants and conditions of this Lease. If only
a part of the Premises is condemned and the taking of that part substantially impairs
the capacity of the remainder to be used for the purposes required in this Lease, Lessee
shall have the election of: (a) terminating this Lease and being absolved of obligations
which have not accrued at the date possession is taken by the public entity; or (b)
continuing to occupy the remainder of the Premises and remaining bound by the terms,
covenants and conditions of this Lease.
Lessee shall give notice in writing of his election hereunder, within thirty (30)
days of the date possession of the part is taken by the public entity. Lessor shall be
entitled to receive and shall receive all compensation for the condemnation of all or any
portion of the Premises by exercise of eminent domain. Lessee shall be entitled to
receive and shall receive all compensation for the condemnation of all or any portion of
the improvements constructed by Lessee on the Premises by the exercise of eminent
domain.
16. NOTICES
Any notice or notices required by this Lease or by law, to be given or served
upon the Lessee, may be given or served by mail, registered or certified, with postage
prepaid, and if intended for the City of Newport Beach, addressed to the City
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Manager,P.O. Box 1768, Newport Beach, California 92659, or at such other address as
may be furnished to the Lessee in writing, and if intended for the Lessee, addressed to
its Association President, 701 Via Lido Soud, Newport Beach, California 92663, or at
such other address as may be furnished to the Lessor in writing. In the alternative,
notice may be served personally upon any corporate officer of Lessee and that any
notice or notices provided by this Lease or by law to be served upon Lessor may be
served personally upon the Mayor of the City of Newport Beach or the City Clerk of
the City of Newport Beach. Notice mailed pursuant to this Section shall be deemed
given forty-eight (48) hours from and after the deposit in the United States mail.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
day and year first above written.
LESSOR:
CITY OF NEWPORT BEACH
By:
Mayor
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APPROVED AS TO FORM AND
CONTNT
By:
Robert Burnham
City Attorney
ATTEST:
By: 4-8-)01-& 74, , 6���
City Clerk
LESSEE:
Lido Isle Community Association
BV-Y\ I W-t)L__-
Y•
Hugh Helm
LICA President
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EXHIBIT A
Description of Leased Premises
ANTIBES MARINA
PARCEL "E"
All that certain parcel of land in Section 28, Township 6 South, Range 10 West, S.B.B.
& M. in the City of Newport Beach, Orange County, California, lying westerly of the
U.S. Bulkhead line between Stations 173-174, as said Bulkhead line and stations are
shown on a map entitled "Harbor Lines, Newport Bay, California", approved by the
Secretary of the Army, February 15, 1951, and on file in the U.S. District Engineer's
Office, Los Angeles, California, and southerly of and adjacent to that certain right-of-
way 100 feet in width, described in a deed to the City of Newport Beach recorded in
Book 361, Page 110, Official Records of said Orange County and more particularly
described as follows:
Beginning at the most westerly corner of Lot 885 of Tract 907, recorded in
Miscellaneous Maps, Book 28, Pages 25 to 36 inclusive, of said County, said corner also
being in the U.S. Bulkhead Line between Stations 173 and 174 as shown upon said map
of Harbor Lines; thence southwesterly along the southwesterly prolongation of the
northwesterly line of said Lot 885 a distance of 10.0 feet to the true point of beginning;
thence continuing along said southwesterly prolongation to an intersection with a line
lying 100 feet southerly of and parallel to the southerly line of said 100 feet right-of-
way; thence north 75° 09' 40' west and along said parallel line, a distance of 250.00 feet;
thence north 30° 09' 40' west, to an intersection with the westerly prolongation of the
southerly line of the aforementioned 100-foot right-of-way line; thence easterly along
said westerly prolongation and along said southerly line to an intersection with a line
lying 10.0 feet southwesterly of and parallel to the U.S. Bulkhead Line between Stations
173 and 174 as shown upon said map of Harbor Lines; thence southeasterly along said
parallel line to the point of beginning.
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Exhibit B
Depiction (MAP) of Leased Premises
ANTIBES MARINA
1051
Leased Premises:
Parcel E
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LEASE
Antibes Marina
THIS LEASE, made and entered into this 12th day of April, 1999, by and between
the CITY OF NEWPORT BEACH, a chartered municipal corporation (hereinafter
referred to "Lessor"), and the LIDO ISLE COMMUNITY ASSOCIATION, a California
corporation (hereinafter referred to as "Lessee").
RECITALS
A. The City of Newport Beach has, since September 1928, held title to certain
real property located on Lido Isle (property designated on Exhibit "A") that is attached
hereto and incorporated herein by reference.
B. Lessee and Lessor entered into a long-term lease of certain real property
on Lido Isle on March 4, 1929. The 1929 Lease was later renegotiated into a series of
new leases in December 1938, June 1951, and April 1975. The April 1975 lease expires in
March 2000.
C. It is the intention of the Lessor and the Lessee to enter into two separate
new leases that divide the property leased under the 1975 lease into two separate
agreements, with one lease ("Marina Lease") covering the wet slips at Parcel E of
Exhibit A (also known as the Via Antibes Marina) and a second lease ("Parks and
Beaches Lease") covering the street end parks, beaches, and dry boat storage areas on
the Isle.
D. It is the intention of Lessee to continue to operate and maintain all of the
leased properties in a manner that reflects the high standards of care and maintenance
that existed in the year in which this lease was entered into, so that Lido Isle residents
and visitors will continue the active use and enjoyment of the City -owned parcels.
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E. Lessee will maintain the Marina Premises in good condition and repair
throughout the term of this Lease, ensure adequate fire and other public safety
equipment at the Marina Premises as may be determined by the Newport Beach Fire
Marshal or designee, and insure the Marina Premises to the extent described in the this
Lease.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS
hereinafter set forth, it is agreed as follows:
1. DESCRIPTION OF LEASED PREMISES
Lessor hereby leases, and Lessee does hereby accept a lease of the property hereinafter
described and as shown on Exhibit "A" attached hereto:
The property shown on Exhibit A as "Parcel E" including a
portion of Sec. 28, T6S., R10W., S.B.B. & M. These premises
include 17 concrete boat slips plus side ties.
2. TERM
The term of this Lease shall be for a period of twenty-five (25) years,
commencing on the 1st day of April, 2000 and terminating on March 31, 2025 unless
sooner terminated as provided for in this Lease.
3. CONSIDERATION
The consideration for this Lease shall be the rent described in §4 of this
Lease and the Lessee's agreement to maintain and operate of the Premises in good
condition and repair for the term of the Lease.
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4. RENT
A. By July 30 of each year of this Lease, Lessee shall remit to the City a
payment of either:
• Base Rent of $20,000 per year (increased to $22,000 in 2005, then to $24,200 in
2010, then to $26,620 in 2015, then to $29,282 in 2020, then to $32,210 in 2025) OR
• Percentage Rent equal to 30% of the Annual Gross Receipts from the rental of the
wet slips at the Marina; WHICHEVER AMOUNT IS HIGHER.
As a descriptive example of the above calculations, if Lessee receives
$110,000 in a year of operations from rentals of the Antibes Marina wet slips, Lessee
shall remit to Lessor the Percentage Rent of $33,000 for that year. If Lessee receives
$55,000 in a year of operations from rentals of the Antibes Marina wet slips, Lessee shall
remit to Lessor the Base Rent of $20,000. If Lease requires Lessee to remit the Base Rent
in a year subsequent to 2004, Lessee shall remit the Base Rent as revised (increased)
above.
B. For the purposes of this Lease, Annual Gross Receipts means the
cumulative and total amount of revenue received by Lessee over the 12 months
previous to each July 1 of this lease's term from the rental of each "wet slip" in the
Antibes Marina.
C. Lessee shall rent the Marina wet slips at a rate that is not less than 90%
of the average rent charged for a similar slip at any one of the following facilities:
• Balboa Yacht Basin Marina
• American Legion Marina
• Bahia Corinthian Yacht Club
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5. USE
Lessee shall use the Premises to manage and operate a public marina.
Lessee shall operate and manage the marina in a manner that does not violate State or
Federal discrimination laws. Lessee shall make all services, programs and facilities
available to the public on fair and rc sonable terms.
6. CAPITAL IMPROVEMENTS
A. All capital improvements constructed during the term of this lease
become the property of Lessor upon expiration of the Lease.
B. Lessee shall be required to obtain, prior to commencing the
construction of any long term improvements, all permits, licenses or approvals that may
be required.
C. No long term improvements shall be erected or maintained on the
Premises unless and until plans, specifications, and structural improvements have been
approved, in writing, by Lessor.
D. Lessee shall, at all times, indemnify and hold Lessor harmless from
any and all claims for labor or materials in connection with the construction, repair,
alteration or installation of any structure, capital improvement, equipment or facilities
on the Premises and from the costs of defending such claims, including reasonable
attorney's fees. Lessee shall not suffer or permit to be enforced against the Premises, or
any part thereof, any mechanic's, materialmeri s, contractor's or subcontractor's liens
arising from, or any claim for damage growing out of, the work of any construction,
repair, restoration, replacement or improvement or any other claim or demand arising
from Lessee's operations under this Lease. In the event any lien or stop notices
imposed or recorded on the Premises as a result of the construction, repair or alteration
of the facility, 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 leased Premises.
Notwithstanding anything to the contrary contained in this paragraph 6D, if Lessee
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shall in good faith contest the validity of such lien, claim or demand, then Lessee shall,
at its expense, defend itself and Lessor against the same and shall pay and satisfy any
adverse judgment that may be rendered thereon, before the enforcement thereof against
Lessor or the Premises upon the condition that if Lessor shall require, Lessee shall
furnish to Lessor a surety bond satisfactory to Lessor in an amount equal to such
contested lien, claim or demand indemnify Lessor against liability for the same and
holding the leased Premises free from the effect of such lien or claim.
E. Before the commencement of any work or construction of any building
structure or other improvement on the Premises, or of any substantial repairs,
alterations, additions, replacement or restoration, in or about the Premises, Lessee shall
give Lessor advanced written notice which specifies the nature and location of the
intended work. Lessee shall coordinate with Lessor for the scheduling of any work so
that the work does not excessively burden Lessor's use of the Premises.
7. BUSINESS ACTIVITIES
Lessee shall not grant any concession, license, permit or privilege for the
conduct of any business or other operation for profit on the Premises without the prior
approval of the City Manager.
8. UTILITIES AND TAXES
Lessee shall promptly pay for all utility services furnished to it and shall
pay before delinquent any general and special taxes or assessments or other
governmental charges, if any, which may be levied on the Premises or improvements
thereon, or any possessory interest therein arising out of or based upon the leasehold
interest throughout the term hereof, or may be imposed upon Lessee as a result of its
operations under the Lease. Satisfactory evidence of such payments shall be delivered
to Lessor within seventy-two (72) hours of a written request for such information.
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9. INSURANCE
Without limiting Lessee's indemnification of Lessor, Lessee shall provide
and maintain at its own expense during the term of this Lease policies of liability
insurance of the type and amounts described below and satisfactory to Lessor.
Certification of all required policies shall be signed by a person authorized by that
insurer to bind coverage on its behalf and must be filed with Lessor, prior to execution
of this Lease and current certification of coverage shall be provided throughout the
terms of this Lease. Except for workers compensation, all insurance policies shall add
Lessor, its elected officials, officers, agents, representatives and employees as
additional insured for all liability arising from Lessee's operations under this Lease.
All insurance policies shall be issued by an insurance company currently
authorized by the 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
Bests Key Rating Guide: unless otherwise approved by the City's Risk Manager.
A. Worker's compensation insurance covering all employees of Lessee,
per the laws of the State of California.
B. Commercial general liability insurance covering third party liability
risks, including without limitation, contractual liability, in a minimum amount of $1
million combined single limit per occurrence for bodily injury, personal injury and
property damage. If commercial general liability insurance or other form with a
general aggregate is used, either the general aggregate shall apply separately to this
Lease, or the general aggregate limit shall be twice the occurrence limit.
C. Commercial auto liability and property insurance covering any owned
and rented vehicles of Lessee in a minimum amount of $1 million combined single
limit per accident for bodily injury and property damage.
D. Fire and extended coverage for not less than ninety percent (90%) of
the cost of replacement of all insurable improvements on the Premises.
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Except for worker's compensation, the policy or policies shall be endorsed
to state that coverage shall not be canceled by either party, except after thirty (30) days'
prior notice has been given in writing to Lessor. Lessee shall give Lessor prompt and
timely notice of claim made or suit instituted arising out of Lessee's operation
hereunder. 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 its
proper protection and prosecution of the work.
Lessee agrees that, in the event of loss due to any of the perils for which it
has agreed to provide comprehensive general and automotive liability insurance,
Lessee shall look solely to its insurance for recovery. Lessee hereby grants to Lessor,
on behalf of any insurer providing comprehensive general and automotive liability
insurance to either Lessee or Lessor with respect to the services of Lessee herein, a
waiver of any right of subrogation which any such insurer of said Lessee may acquire
against Lessor by virtue of the payment of any loss under such insurance.
10. HOLD HARMLESS
A. Lessee shall indemnify, defend, save and hold harmless Lessor, its City
Council, boards and commissions, officers and employees from and against any and all
loss, damages, liability, claims, allegations of liability, suits, costs and expenses for
damages of any nature whatsoever, including, but not limited to, bodily injury, death,
personal injury, property damages, or any other claims arising from any and all
negligent acts or omissions of Lessee, its employees, agents or subcontractors in the
operation of the Angling Club and use of the Premises pursuant to this Lease.
B. Lessor shall indemnify, defend, save and hold harmless Lessee, its
officers and employees, from and against any and all loss, damages, liability, claims,
allegations of liability, suits, costs and expenses for damages of any nature whatsoever,
including, but not limited to, bodily injury, death, personal injury, property damages,
or any other claims arising from any and all negligent acts or omissions of Lessor, its
employees, agents or subcontractors in the use of the Premises pursuant to this Lease.
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11. MAINTENANCE OF IMPROVEMENTS
A. Lessee to Maintain All Buildings and Improvements
Lessee covenants and agrees that during the term of this Lease it will, at its own cost
and expense, maintain the Premises in good order and repair and in clean, orderly, safe
and sanitary condition. Lessee shall be responsible for the repair of any damage caused
by its members or their invitees.
B. Lessor May Elect to Repair and Maintain at Expense of Lessee
If, in the judgment of the Lessor, such standards of maintenance and
repair are not being maintained, it may at its option, after written notice thereof to the
Lessee and Lessee's failure to commence in good faith to remedy the same within the
time herein provided and thereafter diligently prosecute the same to completion, elect
to correct any deficiency. Lessee covenants and agrees to pay to the Lessor on demand
any and all sums expended by it in correcting any such deficiency together with interest
at the legal rate. If, in the judgment of the Lessor, the disrepair or lack of maintenance
constitutes an emergency, the notice herein provided shall be a 24-hour notice to
remedy; in all other cases it shall be a 5-day notice.
C. Lessor's Right of Inspection
In addition to Lessor's rights to use the Premises as provided in this
Lease, Lessor reserves the right by its authorized agents, employees or representatives
to enter the Premises upon forty-eight (48) hours advance notice, to inspect the same or
any part thereof at any time to attend to or protect the Lessor's interest under this Lease.
D. Compliance with Laws, Ordinances and Regulations
Lessor and Lessee covenant and agree to comply with all rules,
regulations, statutes, ordinances and laws of the State of California, County of Orange,
the City of Newport Beach, or any other governmental body or agency having lawful
jurisdiction over the Premises or the business, enterprises, or activities conducted
thereon.
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12. ASSIGNMENT
Lessee shall not assign, transfer, sublease, mortgage, hypothecate or give
any grant of control of this Lease or the Premises, or any part hereof, either voluntarily
or involuntarily, unless first approved by the City Council. Notwithstanding this
section, Lessee may lease the wet slips on the Premises to the marina tenants.
13. RESTORATION
If during the term hereof any building or improvement erected by Lessee
on the Premises, or any part thereof, shall be damaged or destroyed by fire or other
casualty, Lessee shall, at its cost and expense, repair or restore the same according to the
original plans thereof, or, at Lessee's option, Lessee may elect to replace such building
or improvement, provided that if Lessee so elects, Lessee shall obtain the approval of
Lessor of the proposed architectural plans. Any such work of repair, restoration or
replacement shall be commenced within one hundred and eighty (180) days after the
damage or loss occurs and shall be completed with due diligence, but not longer than
one (1) year after such work is commenced unless delay is caused by events beyond the
control of Lessee. If Lessee does not wish to repair or rebuild the improvements, it may
terminate this Lease by giving Lessor written notice of termination and by assigning all
insurance proceeds relating to the premises to Lessor., and if If Lessee chooses to
terminate the Lease it shall be obligated to completely clear and restore the building site
to its original condition.
14. DEFAULT AND TERMINATION OF LEASE
A. Default
Time and each of the terms, covenants and conditions hereof are expressly made
the essence of this Lease. If the Lessee shall fail to comply with any of the terms,
covenants, or conditions of this Lease, including:
1. Failure of Lessee to keep current on all utility payments for the Premises;
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2. Failure of Lessee to keep the Premises in good order and repair and to keep it
in a neat, clean, orderly, safe and sanitary condition;
3. The failure to make payment of rent at the time and in the amount herein
required;
4. Failure to provide certificates of insurance evidencing insurance coverage as
required in paragraph 12 of this Lease;
and shall fail to remedy such default within thirty (30) days after service of a
written notice from Lessor to do so, if the default may be cured by the payment of
money, or to commence in good faith to remedy any other default within thirty (30)
days and thereafter diligently prosecute the same to completion, or if Lessee shall
abandon or vacate the Premises, Lessor may, at its option and without further notice or
demand, terminate this Lease and enter upon the Premises and take possession thereof,
and remove any and all persons therefrom in the appropriate manner provided by law.
B. Surrender of Possession upon Termination
Lessee covenants and agrees that upon the expiration or sooner
termination of this Lease, the Lessee will peaceably surrender the Premises with all
buildings and improvements, in the same condition as when received or constructed,
excepting reasonable use and wear thereof, and damage by fire, act of God, or by the
elements. The Premises and all other improvements built, constructed or placed upon
the Premises by the Lessee, or anyone holding by, under, or through it, shall remain on
the Premises and become the property of the Lessor without any cost to Lessor upon the
termination of this Lease, whether by lapse of time or by reason of default, unless the
Lessee elects to remove said improvements within sixty (60) days following the
expiration or termination of this Lease. The provisions of this section shall be effective
upon expiration or termination of this Lease regardless of whether Lessee holds over
under the provisions of section E, below.
C. Remedies Cumulative
The rights, powers, elections and remedies of the Lessor contained in
this Lease shall be construed as cumulative and no one of them shall be considered
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exclusive of the other or exclusive of any rights or remedies allowed by law, and the
exercise of one or more rights, powers, elections or remedies shall not impair or be
deemed a waiver of Lessor's right to exercise any other.
D. No Waiver
No delay or omission of the Lessor to exercise any right or power
arising from any omission, neglect or default of the Lessee shall impair any such right:
or power or shall be construed as a waiver of any such omission, neglect or default on
the part of the Lessee or any acquiescence therein.
No waiver of any breach of any of the terms,covenants, agreements,
restrictions or conditions of this Lease shall be construed as a waiver of any succeeding
breach of the same or of any of the terms covenants, agreements, restrictions or
conditions of this Lease.
E. Holding Over
It is mutually agreed that if the Lessee shall hold over after the
expiration of this Lease for any cause, such holding over shall be deemed a tenancy
from month -to -month only, and upon the same terms, conditions, and provisions of this
Lease.
15. EMINENT DOMAIN
In the event the whole or part of the property or improvements is
condemned by a public entity in the lawful exercise of the power or eminent domain,
this Lease shall cease as to the part condemned upon the date possession of that part is
taken by the public entity.
If only a part is condemned and the taking of that part does not
substantially impair the capacity of the remainder to be used for the purposes required
in this Lease, Lessee shall continue to be bound by the terms, covenants and conditions
of this Lease.
If only a part is condemned and the taking of that part substantially
impairs the capacity of the remainder to be used for the purposes required in this Lease,
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Lessee shall have the election of:
(1) Terminating this Lease and being absolved of obligations hereunder which
have not accrued at the date possession is taken by the public entity; or
(2) Continuing to occupy the remainder of the property and remaining bound by
the terms, covenants and conditions of this Lease.
Lessee shall give notice in writing of his election hereunder, within thirty
(30) days of the date possession of the part is taken by the public entity.
Lessor shall be entitled to receive and shall receive all compensation for
the condemnation of all or any portion of the property by exercise of eminent domain.
Lessee shall be entitled to receive and shall receive all compensation for
the condemnation of all or any portion of the improvements constructed by Lessee on
the Premises by the exercise of eminent domain.
16. NOTICES
It is mutually agreed that any notice or notices provided for by this Lease
or by law, to be given or served upon the Lessee, may be given or served by mail,
registered or certified, with postage prepaid, and if intended for the City of Newport
Beach, addressed to the City Manager,P.O. Box 1768, Newport Beach, California 92659,
or at such other address as may be hereafter furnished to the Lessee in writing, and if
intended for the Lessee, addressed to its Association President, 701 Via Lido Soud,
Newport Beach, California 92660, or at such other address as may be hereinafter
furnished to the Lessor in writing; or it may be served personally upon any corporate
officer of Lessee or person charged with general maintenance responsibilities in
connection with the Premises; and that any notice or notices provided by this Lease or
by law to be served upon Lessor may be served personally upon the Mayor of the City
of Newport Beach or the City Clerk of the City of Newport Beach. Such service shall be
deemed complete at the expiration forty-eight (48) hours from and after the deposit in
the United States mail of such notice or demand or communication.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
day and year first above written.
LESSOR: CITY OF NEWPORT BEACH
ATTEST:
By:
City Clerk
LESSEE:
f:\ cat\ ag\ LICAMarina\ LeaseFina1041299.doc
By:
Dennis D. O'Neil
Mayor
APPROVED AS TO FORM AND
CONTENT
By:
Robin L. Clauson
Assistant City Attorney
Lido Isle Community Association
By:
John Polovina
LICA President
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LOT I (1 - 6) & PARCEL B
LOT C & PARCEL C
LIDO ISLE