HomeMy WebLinkAboutC-2693 - Bayside Drive, 1801 - Lease 1988 "Balboa Yacht Club"LEASE
THIS LEASE, made this ' day of of 1988, by and between
the CITY OF NEWPORT BEACH, a Municipal CorWyation and Charter City,
(hereinafter "Lessor ") and BALBOA YACHT CLUB, INC., a California
Corporation, (hereinafter "Lessee ") is made with reference to the
following:
RECITALS
A. THAT Lessee has occupied certain premises, commonly referred to
as Balboa Yacht Club located at 1801 Bayside Drive, since April of 1941.
B. THAT the premises were acquired by Lease Agreement with the
Irvine Company in 1941 which Lease was amended from time to time until it
was terminated in 1979 by Lessee's purchase of the Irvine land.
C. THAT between May 1946 and November 1949 certain dredging took
place in Balboa Bay which created new County tidelands property on the
seaward side of the property occupied by Lessee.
D. THAT during 1949 and continuing through 1952 a long series of
negotiations took place between Balboa Yacht Club and the County of Orange
regarding the new tidelands area which said negotiations were also
participated in by the Irvine Company. These negotiations were culminated
in a Lease Agreement between the County and Lessee regarding the new
tidelands area the legal description of which is described and delineated
on Exhibit 'A' attached hereto and made a part hereof. The existing lease
arrangements with the Irvine Company were modified and a new lease with
the County covering all the real property described in Exhibit 'A' was
executed in July of 1952.
E. THAT some time after the lease with the County was entered into
it was determined that a portion of the land leased from the County
actually belonged to the Lessor. By agreement with the City, the County
lease was continued without amendment, the County being designated as
agent to collect rent on behalf of the Lessor from Lessee. That a new
lease was entered into with the County in August of 1984 which excluded
the portion of land owned by the Lessor which said land is more
particularly described in Exhibit 'B' attached hereto and made a part
hereof.
F. THAT it is the desire of the Lessor and the Lessee to enter into
a separate Lease Agreement covering said land which is more particularly
described in Exhibit 'B' attached hereto on the same terms and conditions
as the contiguous parcel belonging to the County.
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NOW THEREFORE FOR GOOD AND VALUED CONSIDERATION, THE RECEIPT AND
ADEQUACIES PARTIES HEREBY ACKNOWLEDGE, PARTIES AGREE AS FOLLOWS:
1. LEASED PREMISES
In consideration of the'rent to be paid and the covenants and
conditions to be observed and performed by Lessee, Lessor does hereby
lease to Lessee that certain property ( "Leased Premises" or "Premises "),
including all improvements located on Premises, legally described in
Exhibit "B ".
2. TERM
The term of this Lease shall commence August 28, 1988 and shall
end on August 28, 1999, subject, however, to earlier termination as
hereinafter provided.
3. RENTAL
(a) Initial Rent
Lessee agrees to pay Lessor rent for the use and occupancy
of the Leased Premises. The rent shall be periodically adjusted as
provided in subsection b. The initial annual rent for the first two years
shall be two thousand three hundred seventy -one dollars (2,371.00).
Rent shall be paid annually in advance.
(b) Adjustments to Initial Rent
i. The initial rent shall be adjusted on the second
anniversary of this Lease and every three years thereafter. (Adjustment
Dates) On each adjustment date the then current rent will be increased or
decreased in proportion to the total percentage increase or decrease in
the U.S. Department of Labor Consumer Price Index, all items, Los Angeles
- Long Beach - Anaheim (All urban consumers - All items), using the index
figure as of 1987 as the basis for calculating increases or decreases. In
the event that the Department of Labor no longer publishes the Consumer
Price Index, then a similar replacement index shall be utilized.
ii. In addition to the rights to adjust the initial rental
as set forth in Subparagraph (b)i, Lessor reserves the right to increase
the guaranteed rental in the event that such increases are, in the opinion
of a qualified appraiser, necessary to ensure that the rents due under
this Lease accurately reflect the fair market value of the Leased
Premises. However, any appraisal shall evaluate the fair market value of
the Leased Premises assuming that the primary use of the property is
restricted to that of a yacht club or similiar use. Lessor also reserves
14e right to conduct such appraisal at anytime provided, however, rent
shall be adjusted pursuant to the appraisal, no more than every 5 years
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from the date of this Lease. In the event the initial rent is increased,
pursuant to provisions of this subparagraph, the adjustments to guaranteed
rental provided for in Subsection (b)i shall occur every three years after
such increase, and the basis for calculating increases pursuant to
Subsection (b)i shall be the index figure as of the date of the increase
pursuant to the appraisal.
(c) Late Payment
Without waiving any right or remedy that Lessor may have
because of a default by Lessee in the payment of rent required by this
Lease, if Lessee shall fail to make any payment to Lessor required by this
Lease, the sum due shall bear interest at the rate of four percent (48)
per month from the date due.
(d) Form of Payment
All payments hereunder shall be paid in lawful currency of
the United States.
4. IMPROVEMENTS TO LEASED PREMISES
The Leased Premises are currently part of a general purpose deck
seaward of Balboa Yacht Club.
5. ALTERATIONS
Conformance with Law
All changes, alterations or additions made in or to said Premises
shall conform to applicable regulations, statutes and ordinances.
6. REPAIRS
Lessee shall, at its sole cost and expense, at all times during
the term hereof, keep and maintain the Leased Premises and every portion
thereof including, but not limited to, bulkheads, slips, floats and ramps,
in good order, condition and repair, and Lessee shall comply with all
laws, ordinances and regulations applicable thereto.
7. TAXES
(a) Lessor shall pay and discharge any real property taxes and
general or special assessments which, during the term of this Lease may be
levied upon or assessed agains the Leased Premises.
(b) During ther term hereof Lessee shall pay, prior to
delinquency, any and all taxes assessed against Lessee's possessory
interests under this Lease, all taxes assessed against and levied upon
tfixtures, furnishings, equipment or improvements, such as piers, floats
and structures, and all other personal property of Lessee located on the
Leased Premises. In the event any or all of Lessee's fixtures,
furnishings, equipment and other personal property shall be assessed and
taxed with the taxes or assessments payable by Lessor, Lessee shall pay to
Lessor its share of such taxes within ten (10) days after delivery to
Lessee by Lessor of a statement, in writing, setting forth the amount of
tax applicable to Lessee's property.
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8. USE OF THE PREMISES
(a) During the term hereof, Lessee shall use and occupy the
Leased Premises principally for the operation of a yacht club and for no
other use or purpose, except with the prior written consent of Lessor.
(b) Lessee, at its sole cost and expense shall, at all times,
comply with all governmental rules, regulations, ordinances, statutes and
laws now in force, or which may hereafter be enforced pertaining to the
Leased Premises.
(c) Occupancy of the Leased Premises after the date of
commencement of the term hereof shall constitute the acceptance by Lessee
of the safety and good order and condition thereof.
9. UTILITIES
Lessee shall pay for all water, power and sewer services.
10. LIABILITY INSURANCE
Lessee shall, at its cost and expense, at all times during the
term of this Lease, maintain in force, for the joint benefit of Lessor and
Lessee, a broad form of comprehensive coverage policy of public liability
insurance by the terms of which Lessor and Lessee are named as insured and
are indemnified against liability for damage or injury to the property or
person (including death) of any Lessee, or invitee of Lessee, or any other
person entering upon or using the Leased Premises, or any structure
thereon, or any part thereof, and arising from the use and occupancy
thereof. Such insurance policy or policies shall be maintained on the
minimum basis of five hundred thousand dollars ($500,000) for damage of
property, and one million dollars ($1,000,000) for bodily injury to or
death of one person and one million dollars ($1,000,000) for bodily injury
or death in any one accident. Such insurance policy or policies shall be
stated to be primary and non - contributing with any insurance which may be
carried by Lessor. Lessee shall deliver to Lessor the certificate of each
insurance carrier as to each such insurance policy within ten (10) days
after commencement of the term hereof, and the policy shall provide Lessor
receive written notice prior to the expiration or cancellation of each
such policy.
11. RIGHT OF ENTRY
Lessee shall permit Lessor and its agents to enter upon the
Leased Premises at all reasonable times for the purpose of inspecting the
s ,4e and for the purpose of posting any notice deemed necessary by Lessor
for the protection of its interest, and for making any repairs or
alterations provided for in this Lease.
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12. ASSIGNMENTS AND SUBLETTING
(a) Lessee may not transfer or assign this Lease, or any right
or interest hereunder, or sublet said Premises, or any part thereof, until
first obtaining prior written consent and approval of Lessor; provided,
Lessor shall not unreasonably withhold such consent. Lessor hereby
reserves the right to condition any such approval upon Lessor's
determination that the assignee or sublessee is as financially and morally
responsible as Lessee. No transfer on assignment, whether voluntary or
involuntary, by operation of law under legal process or proceedings, by
receivership, in bankruptcy or otherwise, and no subletting, shall be
valid or effective without Lessor's prior written consent and approval.
Should Lessee attempt to make, or suffer to be made, any such transfer,
assignment or subletting, except as aforesaid, or should any of Lessee's
rights under this Lease be sold or otherwise transferred by or under court
order or legal process or otherwise, or should Lessee be adjugded
insolvent or bankrupt then, and in any of the foregoing, even as Lessor
may, at its option terminate this Lease, forthwith, by written notice
thereof to Lessee. Should Lessor consent to any such transfer, assignment
or subletting, such consent shall not constitute a waiver of any of the
restrictions of this Article and the same shall apply to each successive
transfer, assignment or subletting hereunder, if any.
(b) If Lessee hereunder is a corporation, any unincorporated
association or partnership, the transfer, assignment or hypothecation of
any stock or interest in such corporation, association or partnership, in
the aggregate in excess of twenty -five percent (25%) shall be deemed an
assignment within the meaning and provisions of this Article; provided,
however, a transfer or assignment of any such stock or interest by a
shareholder or member to a spouse, children or grandchildren is excepted
from the foregoing provision.
(c) If Lessor consent to an assignment or transfer by Lessee of
all or a portion of Lessee's interest under this Lease, Lessee shall pay,
or cause to be paid, a transfer fee of one hiundred dollars ($100.00);
provided, however, that such transfer fee shall not be payable upon
Lessor's consent to a transfer or assignment of Lessee's interest
hereunder as security for a loan.
13. LESSOR'S NON - LIABILITY
Lessor shall not be liable for any loss or damage to the goods,
wares, merchandise and other property of Lessee in, upon or about the
Lease Premises, or for any injury to the person (including death) of
,Lessee or its employees, agents, sublessees or invitees or other persons
'caused by any use thereof, or arising from any accident or fire or other
casualty thereon or from any other cause whatsoever, nor shall Lessor be
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liable for any such loss, damage or injury occurring anywhere in the area
known as the Balboa Yacht Club and caused by the act or neglect of Lessee,
its agents or employees. Lessee hereby waives, on its behalf, all claims
against Lessor for any such loss or injury and hereby agrees to indemnify,
defend and save Lessor harmless from all liability for any such loss,
damage or injury and in the event action is brought against Lessor on
accounty of such loss, damage or liability, and Lessor elects not to
accept Lessee's proffered defense of such action, Lessee shall
nevertheless pay the cost of Lessor's reasonable attorneys' fees incurred
in connection therewith. The provisions of this paragraph shall not apply
with respect to any loss, damage or injury occasioned by the willful or
negligent acts, conduct or omissions of the Lessor, its agents, employees
and servants.
14. LIENS
Lessee shall not permit to be enforced against said Premises, or
any part thereof, any mechanics', materialman's, contractors' or other
liens arising from, or any claims for damages growing out of, any work or
repair or alteration (except from the actions of Lessor), and Lessee shall
pay or cause to be paid all of said liens and claims before any action is
brought to enforce the same against Lessor or the Leased Premises, or
shall adequately indemnify Lessor and the Leased Premises by paynment
bonds as provided for in the laws of the State of California. Lessee
agrees to indmenify and hold Lessor and the Leased Premises free and
harmless from all liability for any and all such liens and claims and all
costs and expenses in connection therewith. Lessee shall give Lessor
notice in writing before commencing construction of any kind on the
Premises so that Lessor may post notices of non - responsibility.
15. LESSOR PAYING CLAIMS
Should Lessee fail to pay and discharge, when due and payable,
any tax or assessment, or any premium or other charge in connection with
insurance policy or policies which Lessee is obligated to pay, or any lien
or claim for labor or material employed or used in, or any claim for
damages arising out of the repair, alterations, maintenance and use of the
Leased Premises, as provided in this Lease, after ten (10) days written
notice from Lessor, then Lessor may, at its option and without waiving or
releasing Lessee from any of Lessee's obligations hereunder, pay any such
tax, assessment, lien, claim insurance premium or charge, or settle or
discharge any action therefor or satisfy any judgement thereon. All
costs, expenses and other sums incurred or paid by Lessor in connection
therewith, together with interest, at the rate of ten percent (10%) per
annum, on such costs, expenses and sums from the date incurred or paid by
Lessor, shall be deemed to be rent and shall be paid by Lessee with and at
the same time as the next installment of rent is due.
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16. ATTORNEY'S A •
In the event that any action shall be instituted by either of the
Parties hereto for the enforecement of any of its rights or remedies in
and under this Lease, the Party in whose favor judgement shall be rendered
therein shall be entitled to recover from the other Party all costs
incurred by said prevailing party in said action, including reasonable
attorney's fees to be fixed by the court therein.
17. DEFAULT /BREACH
The occurrence of any of the following shall constitute a
material default and breach of this Lease by Lessee;
(a) Any failure by Lessee to pay rent, or make any other payment
required by this Lease, where such failures continue for thirty days after
written notice thereof;
(b) The abondonment or vacation of the Premises by Lessee;
except abandonment or vacation resulting from the actions of any public
agency.
(c) The failure by Lessee to perform any other provision of this
Lease, where such failure continues for thirty (30) days, after written
notice; provided, however, if the nature of the default is such that it
cannot reasonably be cured within the thirty (30) day period, Lessee shall
not be in default if Lessee, within the thirty (30) day period, begins to
cure the default and diligently pursues correction until complete;
(d) The attachment, execution or other judicial seizures of
substantially all of Lessee's assets located on the Premises; if Lessee
does not diligently pursue satisfaction or discharge and accomplish same
within a reasonable time, the making by Lessee of any general assignment
for benefit of creditors; the filing by or against Lessee of a petition to
have Lessee adjudged a bankrupt or petition for reorganization or
arrangement of any law relating to bankruptcy; or the appointment of a
trustee or receiver to take possession of substantially all of Lessee's
assets.
18. REMEDIES
In the event of any default by Lessee as described in Paragraph
21 and in addition to any other remedies available to Lessor, Lessor shall
have the immediate option to:
(a) Terminate this Lease by giving written notice of its
intention to terminate and, may, thereafter, recover all amounts necessary
to compensate Lessor for detriment caused by Lessee's failure to perform
its obligations under this Lease; or
(b) Continue this Lease in effect, by not terminating Lessee's
rights of possession, in which event Lessor shall be entitled to enforce
;all of its rights and remedies under this Lease, including the right to
recover the rent specified in this Lease as soon as it becomes due;
(c) In the event that Lessor shall exercise its option to
terminate this Lease, Lessor shall also have the right to re -enter and
regain possession of the Premises in the manner provided by the Laws of
Unlawful Detainer in the State of California then in effect.
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19. REMOVAL
C
Upon expiration of the term of this Lease, or upon any earlier
termination of this Lease, Lessee shall quit and surrender possession of
the Leased Premises to Lessor in the same condition as upon delivery of
possession to Lessee, reasonable wear and tear excepted. Before
surrendering possession of the Leased Premises Lessee shall, without
expense to Lessor remove, or cause to be removed from the Leased Premises
all signs, furnishings, equipment, trade fixtures, merchandise and other
personal property installed or placed therein, and all debris and rubbish,
and Lessee shall repair all damage to the Leased Premises resulting from
such removal. If Lessee fails to remove any of its signs, furnishings,
equipment, trade fixtures, merchandise or other personal property within
thirty (30) days after the expiration or termination of this Lease then,
Lessor may, at its sole option, (1) deem any or all of such items
abandoned and the sole property of the Lessor; or (2) remove any or all of
such items and dispose of same in any manner, or store same for Lessee, in
which event the expense of such dispostion or storage shall be borne by
the Lessee and shall be immediately due and payable.
20. ONLY AGREEMENT
This instrument constitutes the sole and only agreement between
Lessor and Lessee regarding the Leased Premises and directly sets forth
the obligations of Lessor and Lessee to each other as of its date.
21. NOTICES
Except as otherwise expressly provided by law, any and all
notices and other communications required or permitted by this Lease to be
served on or given to either Party by the other shall be in writing, and
shall be deemed duly served and given when personally delivered to the
Party to whom they are directed, or, in lieu of such personal service,
when deposited in the United States Mail, first -class postage, prepaid and
addressed as follows:
Lessee: Lessor:
Balboa Yacht Club City of Newport Beach
1801 Bayside Drive 3300 Newport Boulevard
Corona del Mar, Ca Newport Beach, Ca 92663
22. TIME OF THE ESSENCE
Time is expressly declared to be of the essence in this Lease.
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23. ACCEPTANCE OF PREMISES BY LESSEE
By taking possession of the Leased Premises, Lessee accepts the
improvements in the condition on which they may then be, and waives any
right or claim against Lessor arising out of the condition of the Leased
Premises, including the improvements thereon, the appurtenances thereto
and the equipment thereof.
24. AMENDMENT OF LEASE
No amendment or other ratification of this Lease shall be
effective unless in writing - signed by the President and /or Vice President
and the Secretary or an Assistant Secretary of Lessor and by Lessee.
IN WITNESS WHEREOF, each of the Parties hereto has caused this Lease
to be executed, Lessor by two of its officers thereunto duly authorized
and its corporate seal to be affixed, the day and year first above
written.
Dated:
Appr ed As to Form
� t
C' y Attorney
Attest
City C]
Dated:
F.
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LESSOR:
C I'
By
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That portion of the County owned tide and submerged land
In Newport Bay, Orange County, California, adjacent to a
line between U. S. Bulkhead Stations 104 and 104 -D, as
shown on a Map of U. S. Harbor Lines In Newport Bay Harbor,
California, approved 15 February 1951, and being particularly
described as follows:
Beginning at U. S. Bulkhead Station 104 and running thence
So th 40 00' East a distance of 490.72 feet; thence South
4309'00" West 11.71 Beet; thence North 46051100" West 113.34
feet; thence South 72 30100" West 152.07 feet, more or less,
to a point on the said U. S. Harbor Lines on the line joining
U. S. Bulkhead Stations 104-A and 104-B; thence North 17030'
00" West along said last mentioned line a distance of 129.09
feet to U. S. Bulkhead Station 104-A; thence North 10006'30"
West a distance of 233.20 feet to said U. S. Bulkhead Sta-
tion 104, the point of beginning. Said parcel containing -
1.04 acres, more or lees.
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HARBOR
DISTRICT
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CITY LEASEHOLD
That portion of the City owned tide and submerged land in Newport
Bay, Orange County, California, adjacent to a line between U.S.
BulKhead Stations 104 and 104 -A, as shown on a Map of U. S.
Harbor Lines in Newport Bay Harbor, California, approved 15
February 1951, and being particularly described as follows:
Beginirng at U. S. Bulkhead Station 104 and running thence South
40 °00' East a distance of 135.83 feet; thence S79° 00'-14" W 67.70
feet; thence N10 °06'59" W 118.80 feet to the point of beginning.
--- U.S. 104
U.S. BULKHEAD LINE
?90 53' 27 M .a (R.
PER TR.2094)
PORCH
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