HomeMy WebLinkAboutC-3090 (G) - Harbor Island, 829 - Lease 2025 - "Balboa Yacht Basin Office"LEASE AGREEMENT
by and between
CITY OF NEWPORT BEACH,
a California municipal corporation and charter city
"City"
and
HEATHER DICKERSON INSURANCE AGENCY,
a sole proprietorship
"Tenant"
Dated as of September 1, 2025
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Agreement") is made and entered into as of the 1 st
day of September, 2025 ("Effective Date"), by and between the CITY OF NEWPORT
BEACH, a municipal corporation and charter city ("City") and HEATHER DICKERSON
INSURANCE AGENCY, a sole proprietorship ("Tenant"). City and Tenant are at times
individually referred to as "Party" and collectively as "Parties" herein.
RECITALS
A. By virtue of a 1978 California legislative grant found in Chapter 74 of the
Statutes of 1978, as amended, ("Tidelands Grant"), City acts on behalf of the State of
California as trustee of certain tidelands located within the City's limits, including certain
harbor frontage tidelands near the Balboa Island Channel ("Tidelands"). City is also the
fee owner of certain abutting upland property containing parking and other commercial
uses, collectively and more commonly known as the "Balboa Yacht Basin," located at 829
Harbor Island Drive, Newport Beach, California, Assessor's Parcel Number 050-210-02.
The Balboa Yacht Basin includes a public marina, public restrooms, shipyard, parking lot,
garage buildings used for storage, and buildings with residential apartments, offices and
a restaurant ("Property"), as legally described and further depicted on Exhibit "A" attached
hereto and incorporated herein by reference. The Property includes a seven hundred
ninety (790) square foot office, which is depicted on Exhibit "B" attached hereto and
incorporated herein by reference ("Premises").
B. City and Tenant desire to enter into this Agreement to allow Tenant to
operate an office providing insurance services with a focus on coastal communities, not
to include retail sales, at the Premises.
C. Pursuant to City Council Policy F-7, the City conducted a review of recent
appraisals for similar office facilities and reviewed comparable spaces on the market for
rent or lease to determine the maximum or fair market value of the highest and best use
rent for the Premises.
D. The uses to be made of the Premises are consistent with provisions of the
Local Coastal Plan and General Plan of the City, and the terms and conditions in this
Agreement are consistent with the provisions of the City Charter and the ordinances of
the City.
E. The uses to be made of the Premises are consistent with provisions of the
Tideland Grant pursuant to which the City obtained title to the Property.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Agreement, City and Tenant agree as follows:
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1. DEFINITIONS
1.1. General Definitions. As used in this Agreement, the following words and
phrases shall have the following meanings:
(a) Alteration — any addition or change to or modification of, the
Premises made by Tenant, its employees, agents, and contractors
including, without limitation, fixtures and signage.
(b) Authorized Representative — any officer, agent, employee, or
independent contractor retained or employed by either Party, acting
within authority given by that Party.
(c) Common Area — the areas immediately surrounding the Premises on
the Property, which are available for non-exclusive use by City,
Tenant, and other tenants and/or users.
(d) Delivery Date — the date the City provides Tenant access to the
Premises.
(e) Expiration — the lapse of the time specified as the Term of this
Agreement, including any extension of the Term resulting from the
exercise of an option to extend.
(f) Good Condition — neat and broom -clean and in substantially the
same condition as of the Rent Commencement Date (reasonable
wear and tear and casualty excepted), and is equivalent to similar
phrases referring to physical adequacy in appearance and for use.
(g) Hazardous Materials —shall mean: (i) any substance, product, waste
or other material of any nature whatsoever which is or becomes
listed, regulated, or addressed pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C.
Section 9601 et seq. ("CERLCA"); the Hazardous Materials
Transportation Act, 49 U.S.C. Section 5101, et seq.; the Resource
Conversation and Recovery Act, 42 U.S.C. Section 6901 et seq.
"RCRA"); the Toxic Substances Control Act, 15 U.S.C. Section 2601
et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et seq.; the
California Hazardous Waste Control Act, Health and Safety Code
Section 25100 et seq.; the Carpenter -Presley -Tanner Hazardous
Substance Account Act, Health and Safety Code Sections 78000 et
seq.; the California Safe Drinking Water and Toxic Enforcement Act,
Health and Safety Code Sections 25249.5 et seq.; California Health
and Safety Code Sections 25280 et seq. (Underground Storage of
Hazardous Substances); the California Hazardous Waste of
Concern and Public Safety Act, Health and Safety Code Sections
25169.5 et seq.; California Health and Safety Code Sections 25501
et seq. (Hazardous Materials Response Plans and Inventory); or the
Porter -Cologne Water Quality Control Act, Water Code Sections
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13000 et seq., all as they, from time -to -time may be amended or re -
codified, (the above -cited statutes are here collectively referred to as
the "Hazardous Substances Laws") or any other Federal, State or
local statute, law, ordinance, resolution, code, rule, regulation, order
or decree regulating, relating to, or imposing liability or standards of
conduct concerning, any hazardous, toxic or dangerous waste,
substance or material, as now or at any time hereafter in effect; (ii)
any substance, product, waste or other material of any nature
whatsoever which may give rise to liability under any of the above
statutes or under any statutory or common law theory, including but
not limited to negligence, trespass, intentional tort, nuisance, waste
or strict liability or under any reported decisions of a state or federal
court; (iii) petroleum or crude oil; and (iv) asbestos.
(h) Law — any judicial decision, statute, constitution, ordinance,
resolution, regulation, rule, administrative order, or other requirement
of any municipal, county, state, federal, or other government agency
or authority having jurisdiction over the Parties and/or the Premises.
(i) Lease Year — refers to successive twelve (12) month periods,
commencing with the Effective Date of this Agreement.
(j) Maintenance or Maintain — repairs replacement, maintenance,
repainting, and cleaning.
(k) Person — one (1) or more natural persons, or legal entities, including,
without limitation, partnerships, corporations, trusts, estates,
associations, or a combination of natural persons and legal entities.
(1) Provision — any term, covenant, condition, or clause in this
Agreement that defines, establishes, or limits, the performance
required or permitted by either Party.
(m) Rent — includes rent, late payment penalties, interest, taxes, and
other similar monetary amounts and charges payable by Tenant
under the Provisions of this Agreement.
(n) Rent Commencement Date — the date Tenant begins paying Rent,
commencing the first day of the first month following the Effective
Date.
(o) Successor — assignee, transferee, personal representative, heir, or
other Person succeeding lawfully, and pursuant to the provisions of
this Agreement, to the rights or obligations of either Party.
(p) Termination — the termination of this Agreement, for any reason, prior
to Expiration.
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2. LEASE OF PREMISES
2.1 City leases the Premises to Tenant and Tenant leases the Premises from
City for the Term and on the conditions contained in this Agreement.
2.2 Tenant expressly acknowledges that the legislature of the State of California
has placed public trust restrictions on use of the Premises pursuant to the Tidelands Grant
as a portion of the Premises constitute filled tidelands. Tenant shall not take any action
that would cause the City to be in violation of any provisions of the Tidelands Grant. If
the State of California terminates or modifies the Tidelands Grant to prohibit the uses
contemplated under this Agreement, this Agreement shall terminate as a result and the
parties shall be released from all liabilities and obligations under this Agreement and City
shall owe no compensation to Tenant. As of the Effective Date, City confirms the
Premises conforms to the Tideland Grant.
2.3 As Is Condition of Premises. Tenant expressly accepts the Premises "as
is" and acknowledges that City has made no representations or warranties as to the
suitability of the Premises or any construction or improvement, whether or not known to
either Party as of the Effective Date. Tenant shall conduct all tests necessary to determine
the suitability of the Premises for any proposed construction or improvement, including,
without limitation, the amount and extent of any fill, and related factors. Tenant expressly
acknowledges that City shall not be liable for any damage or loss resulting from any
subsurface or soil condition in, on, or under the Premises or adjacent property. Tenant
expressly acknowledges that the Premises may constitute filled tidelands, and City has
made no representation or warranty relative to the validity of the Beacon Bay Bill or the
power of the legislature of the State of California to remove public trust restrictions on
tidelands through legislation. Notwithstanding the foregoing, in the event of any challenge
to the right and power of City to lease the Premises for the purposes provided in this
Agreement, City agrees, at its sole cost and expense, to use all reasonable efforts to
resist and defend against such challenge and to seek a ruling or judgment affirming and
upholding the right and power of City to lease the Premises for the purposes provided in
this Agreement.
2.4 Tenant further knowledges and accepts Tenant expressly accepts that the
Premises is subject to any and all existing easements and encumbrances. City reserves
the right to install, lay, construct, maintain, repair and operate such sanitary sewers,
drains, storm water sewers, pipelines, manholes and connections; water, oil and gas
pipelines; telephone and telegraph power lines and the appliances and appurtenances
necessary or convenient in connection therewith in, over, upon, through, across and along
the Premises or any part thereof, and to enter the Premises for any and all such purposes.
City also reserves the right to grant franchises, easements, rights -of -way and permits in,
over, upon, through, across and along any and all portions of the Premises. No right
reserved by City in this clause shall be so exercised as to interfere unreasonably with
Tenant's operations hereunder or to impair the security of any secured creditor of Tenant.
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3. TERM
3.1. Term. The "Term" of this Agreement shall be automatically renewing,
consecutive ninety (90) calendar day periods from the Effective Date and shall expire on
September 1, 2028, unless terminated in accordance with the other provisions of this
Agreement.
3.2. Hold Over. Tenant has no right to retain possession of the Premises or any
part thereof beyond the expiration or termination of this Agreement. In the event that
Tenant holds over, then the Rent shall be increased to 150% of the Rent applicable
immediately preceding the expiration or termination. Nothing contained herein shall be
construed as consent by Landlord to any holding over by Tenant. Any holding over by
Tenant of the Premises after the expiration or termination of this Agreement shall operate
and be construed as a tenancy from month to month on all terms of this Agreement,
terminable by either party upon thirty (30) days prior written notice to the other.
3.3. Redevelopment of Property. Should City redevelop the Property or
Premises during the Term of the Agreement, which will materially interfere with Tenant's
ability to occupy the Premises, City shall provide Tenant with at least ninety (90) calendar
days prior written notice of termination of this Agreement.
4. REDEVELOPMENT OF PROPERTY
4.1. During the Term, Tenant understands and acknowledges that the City's
redevelopment project at the Property may significantly disrupt Tenant's ability to occupy
the Premises. Tenant shall fully cooperate with City, and City's tenants (other than
Tenant), contractors, representatives and assignees ("Agents") during the
redevelopment.
4.2. Tenant acknowledges that the Term commences after the date that City
acquired the Property and Tenant agrees that its occupancy of the Premises is, will be,
and shall remain as a "post -acquisition" occupant pursuant to applicable federal, state,
and local laws and regulations providing for relocation assistance, benefits, or
compensation for moving and for property interests (including without limitation
furnishings, fixtures and equipment, goodwill, and moving expenses) (referred to herein
as "Relocation Law"), as more fully set forth in Exhibit "C" attached hereto and
incorporated herein by this reference.
5. RENT
5.1. Rent. Tenant agrees to pay City for the use and occupancy of the Premises
the sum of Three Thousand One Hundred Sixty Dollars and 00/100 ($3,160.00) per
month, payable in advance on or before the first day of the each month. Tenant shall
commence payment of Rent on the Rent Commencement Date.
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5.2. Late Payment. Any payment due from Tenant to City under the provisions
of this Agreement which is not paid within five (5) calendar days of the date due shall be
subject to a ten percent (10%) late charge plus interest on the amount due at the rate of
ten percent (10%) per annum from the date due and payable by the terms of this
Agreement until the same shall be paid. All late charges and interest payments
hereunder, shall, as incurred, become Rent due under this Agreement. City and Tenant
agree that this late charge plus interest represents a reasonable estimate of such costs
and expenses and is fair compensation to City for its loss suffered by such late payment
by Tenant.
5.3. Rent Adjustments. Rent shall be adjusted annually, on the first day of each
Lease Year, to reflect increases in the cost of living as indicated by the Consumer Price
Index described below. Rent shall be adjusted if the Consumer Price Index for the Los
Angeles — Long Beach — Anaheim, CA Area, All Urban Consumers, All Items ("Index"),
as published by the United States Department of Labor, Bureau of Labor Statistics
("Bureau"), increases over the Base Period Index. The initial "Base Period Index" shall be
the Index for the calendar month which is four (4) months prior to the month of the
Effective Date. The initial Base Period Index shall be compared with the Index for the
same calendar month for each subsequent Lease Year ("Comparison Index"). The
Comparison Index used for a given year's adjustment calculation will become the Base
Period Index for purposes of the next annual Rent adjustment calculation. If the
Comparison Index is higher than the Base Period Index, then Rent for the next Lease
Year shall be increased by the amount of such percentage change. Should the Bureau
discontinue the publication of the above Index, or publish same less frequently, or alter
same in some other manner, then the Parties shall adopt a substitute Index or substitute
procedure which reasonable reflects and monitors consumer prices. City shall notify
Tenant in writing of any annual adjustment pursuant to this Section 5.3.
5.4. Payment Location. All payments of Rent shall be made in lawful money of
the United States of America and shall be paid to City in person or by United States' mail,
or overnight service, at the Cashier's Office located at 100 Civic Center Drive, P.O. Box
1768, Newport Beach, California, 92658, or to such other address as City may from time
to time designated in writing to Tenant. If requested by City, Tenant shall make payments
electronically (at www.newportbeachca.gov) or by wire transfer (at Tenant's cost). Tenant
assumes all risk of loss and responsibility for late charges and delinquency rates if
payments are not timely received by City regardless of the method of transmittal.
5.5. Additional Rent. Any provision in this Agreement that requires Tenant to pay
additional amounts classified as "Additional Rent" shall be paid within ten (10) calendar
days of City's written demand therefore (unless a different time for payment is expressly
provided in this Agreement). Additional Rent does not reduce or offset Tenant's
obligations to pay Rent.
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6. BUSINESS PURPOSES AND USE OF PREMISES
6.1. "Approved Use". The Premises are to be used by Tenant:
(a) Soley and exclusively for the operation of a coastal community
insurance sales office, not to include any retail sales; and
(b) Tenant may not use the Premises for any other use except with prior
written consent of the City.
6.2. Operation of Premises. Tenant shall operate and manage the Premises in
a manner comparable to other high -quality businesses providing similar insurance
services. Tenant shall not use or permit the use of the Premises in any manner that: (a)
creates a nuisance; (b) violates any Law; or (c) is not in compliance with all statutes, laws,
permits, use restrictions and regulations of City applicable to the Premises, Tenant,
and/or Tenant's use of the Premises. Tenant assumes the risk of and shall cause all its
workmen, customers and independent contractors to also comply with all laws regarding
their activities at the Premises. Prior to engaging in any conduct on the Premises which
is inconsistent with the terms of this Agreement, Tenant must obtain written consent from
the City Manager and any required City permits and approvals.
6.3. Sales Restrictions. Tenant shall not display, sell or store merchandise
outside the defined exterior walls and permanent doorways of said Premises, and no sale
by auction in, upon and from said Premises, whether said auction be voluntary,
involuntary, pursuant to any assignment for benefit of creditors or pursuant to any
bankruptcy or other solvency proceedings, shall be conducted except such auctions that
may be conducted by officers of a court with respect to any vessels in custody of Tenant.
6.4. Advertising Display. Tenant may, at its own expense, place signs in or upon
the Premises subject to the prior written consent of the City as to the size, type, design
and method of installation and in compliance with the City's sign code regulations and the
deed restrictions applicable to the Premises. All signage placed by Tenant on, in or about
the Premises shall remain the property of Tenant and shall be removed by Tenant upon
Termination or Expiration of this Agreement at Tenant's expense; and any damage
caused by removal shall be repaired at Tenant's expense.
6.5. Independent Contractor. City shall have no interest in the business of
Tenant, and no liability for the business operations or sales of Tenant, whether or not
caused by City's enforcement of City laws and regulations which apply to the Premises
and/or Tenant. Nothing in this Agreement shall be deemed to constitute approval for
Tenant or any of Tenant's employees or agents, to be the agents or employees of City.
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6.6. No Distress Sales. No auction, fire, bankruptcy, "going out of business" or
other distress sales of any nature may be conducted on the Premises without the prior
written consent of the City Manager or his/her designee.
6.7. Parking. City grants a non-exclusive right to the use of parking area(s) on
the Property as noted in Exhibit "A" attached hereto and incorporated herein by reference.
City reserves the right to assign parking in the future, but agrees that any such assignment
of parking shall not materially diminish access to the Premises.
6.8. Smoking and Vaping. In addition to all other uses prohibited by this
Agreement, smoking or vaping is prohibited on the Property and the Premises. "Smoking"
means and includes inhaling, exhaling, burning, or carrying any lighted smoking
equipment for tobacco or any other weed or plant. "Vaping" means and includes inhaling
or exhaling any vaporized liquid or solid, usually from a battery -operated electronic
device.
6.9. Balboa Yacht Basin Rules and Regulations. Tenant shall comply with the
Balboa Yacht Basin Rules and Regulations attached hereto and incorporated herein as
Exhibit "D", which may be amended from time to time.
7. TAXES, LICENSES AND OTHER OBLIGATIONS
7.1. Tenant shall pay before delinquency all lawful taxes, assessments, fees,
and charges which at any time may be levied by the State, County, City or any tax or
assessment levying body upon any interest in this Agreement or any possessory right
which Tenant may have in or to the Property for any reason, as well as all taxes,
assessments, fees, and charges on goods, merchandise, fixtures, appliances,
equipment, and property owned by it in, on or about the Property. Tenant's obligation to
pay taxes and assessments hereunder shall include but is not limited to the obligation to
pay any taxes and/or assessments, or increases in taxes and/or assessments arising as
a result of the execution of this Agreement. Tenant shall have the right to contest the
amount of any assessment imposed against the Property or the possessory interest
therein; provided, however, the entire expense of any such contest (including interest and
penalties which may accrue in respect of such taxes) shall be the responsibility of Tenant;
and provided further, Tenant shall pay under protest such assessment pending the
outcome of such proceedings so long as neither the tax parcel nor the Property are in
danger of being forfeited. City shall not be required to join in any proceedings to contest
any assessment unless the provisions of any law, rule or regulation require such
proceedings to be brought by or in the name of the City, which event the City shall join in
such proceedings or permit the same to be brought in its name. Tenant will defend,
indemnify and save harmless City from any Claims related to such proceedings in
accordance with Section 13 below. In accordance with Section 107.6 of the California
Revenue and Taxation Code, Tenant is specifically informed, and hereby
acknowledges and agrees, that the Property and any fixtures, equipment, or other
improvements installed or constructed thereon shall be subject to possessory
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interest taxes and assessments, and that such taxes and assessments shall be
paid by Tenant prior to delinquency. Tenant shall include a statement in all
Subleases to the effect that the interests created therein are derive from the
Tenant's interest under this Agreement and that Tenant's interest requires the
payment of a possessory interest tax.
7.2. Payment of Obligations. Tenant shall promptly pay, when due, any and all
bills, debts, liabilities and obligations incurred by Tenant in connection with Tenant's
occupation and use of the Premises including the construction and/or maintenance of the
Improvements.
7.3. No Rent Offset. Any payments under this Section shall not reduce or offset
Rent payments. City has no liability for such payments.
7.4. License. Tenant shall obtain and maintain in good standing all required
licenses and permits required for operation of the business on the Premises, including
but not limited to a City business license as required by the Newport Beach Municipal
Code.
8. UTILITIES AND REFUSE COLLECTION
8.1. Basic Utilities. City shall pay for electricity, gas, water, and trash service.
Tenant shall make all arrangements for and pay for all other utilities furnished to or used
on the Premises, including, without limitation, telephone service, cable television, and
janitorial service. Tenant bears all risk of interruption, cancellation and/or disruption of
utility services on the Premises.
8.2. Refuse Collection. Refuse collection shall occur between 7:00 a.m. and
6:00 p.m. on non -holiday weekdays. Tenant shall keep the Premises free and clean of
rubbish and litter and shall deposit accumulated rubbish and litter in containers
designated by City. Trash containers shall be kept in an approved enclosed area. Tenant
shall comply with the provisions of the Newport Beach Municipal Code and all other laws
regarding the use, storage and disposal of Hazardous Materials. In no event shall Tenant
allow Hazardous Materials related to the Premises to enter, be disposed of into, seep or
otherwise be released into any sewer line, storm drain and/or adjacent bay waterway to
the Premises.
9. ALTERATIONS TO THE PREMISES
9.1. Alterations Requiring Building Permits. Any Alteration that requires a
building permit from City shall require the written consent of the City Manager or his/her
designee, which shall not be unreasonably withheld so long as Tenant's Approved Use
is not thereby being changed.
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9.2. Non -Structural Alterations Costing Less than $5,000. Tenant shall have the
right to make, at its sole expense, such non-structural changes, Alterations,
improvements and additions, costing less than $5,000 in and to the interior of the
buildings, and Tenant may install therein such trade fixtures and equipment as it may
deem advisable for the conduct of its business for the Approved Use of the Premises.
Any Alteration costing more than $5,000 requires the prior written consent of the City
Manager or his or her designee.
9.3. Quality of Work Performed. All work shall be performed in a good and
workmanlike manner, shall substantially comply with the plans and specifications
submitted to City and shall comply with all applicable governmental permits and Laws in
force at the time permits are issued. All work shall be performed between 7:00 a.m. and
6:00 p.m. on non -holiday weekdays. Any contractors hired by Tenant shall be fully
licensed, bonded, and insured.
9.4. Payment of Costs. Tenant shall pay all costs related to the construction of
any Alterations by Tenant or its agents. Tenant shall keep the Premises free and clear of
all mechanics' liens resulting from construction performed at the direction of Tenant.
9.5. Indemnification and Insurance. Tenant shall indemnify, defend, and hold
harmless City, its elected or appointed officers, agents, officials, employees, and
volunteers, and any person or entity owning or otherwise in legal control of the Property,
except for Tenant, from any and all liability, losses, penalties, damage, costs, attorney
fees, expenses, causes of action, claims, or judgments with respect to any damage or
damages related to any work performed on the Premises by Tenant. Tenant's contractors
and any subcontractors shall obtain insurance in an amount and form to be approved by
City's Risk Manager, including workers' compensation insurance as required by law,
general liability, automobile liability and builder's risk insurance covering improvements
to be constructed, all pursuant to standard industry custom and practice. City, its elected
or appointed officers, agents, officials, employees, volunteers, and any person or entity
owning or otherwise in legal control of the property shall be named as an additional
insured on the contractor's and any subcontractor's policies. City shall promptly provide
Tenant with a copy of any claim filed by any third party with respect to work performed by
Tenant. City has no obligation to or liability to Tenant incident to City's approval of
Tenant's plans or issuance of permits for any improvements to the Premises.
9.6. Disposition of Alterations at Expiration or Termination. Any Alterations
made to the Premises shall remain on, and be surrendered with, the Premises on
Expiration or Termination of this Agreement (excluding Tenant's fixtures, equipment,
furniture, and movable decorations). However, City may elect, not less than thirty (30)
calendar days prior to Expiration or Termination of this Agreement, to require Tenant to
remove, at Tenant's sole cost, any Alterations that Tenant has made to the Premises,
except those Alterations existing as of the Effective Date of this Agreement or approved
by City. If City requires removal of Alterations, Tenant shall, at its sole cost, remove the
Alterations and restore the Premises to its condition prior to installation of such
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Alterations, ordinary wear and tear excepted, before the last day of the Term, or within
thirty (30) calendar days after notice is given, whichever is later. Prior to Expiration or
within fifteen (15) calendar days after Termination of this Agreement, Tenant may remove
any movable partitions, machinery, equipment, furniture, and trade fixtures previously
installed by and solely paid for by Tenant, provided that Tenant repairs any damage to
the Premises cause by removal and the structural future of the foundation and bulkhead
areas of the Premises are not thereby worsened by such Tenant removal.
10. REPAIRS AND MAINTENANCE OF PREMISES
10.1. Maintenance and Repair by Tenant and City. Tenant agrees that it shall
keep the non-structural portion of the Premises in Good Condition throughout the Term
at its sole cost, and without expense to the City. City may perform Maintenance or repairs
in the event Tenant fails to commence required Maintenance or repairs within the time
provided by City in the written notice requesting such maintenance or repair (which shall
not be less than five (5) calendar days unless and in case of emergency or urgent
situation). Absent an emergency or urgent situation, should the Maintenance or repair
required by the City's written notice require more than five (5) calendar days to commence
or complete, Tenant must provide City with adequate assurance of due performance
within five (5) calendar days of receipt of City's written notice requesting such
Maintenance or repair or City may commence such requested repairs or Maintenance.
The cost of any Maintenance or repairs by the City pursuant to this Subsection shall be
payable as Additional Rent upon billing by City with the Tenant's next monthly Rent
payment.
10.2. Entry by City. City and its Authorized Representatives may enter upon and
inspect the Premises at any reasonable time for any lawful purpose. In case of
emergency, City or its Authorized Representatives may enter the Premises by the master
key if Tenant is not present to open and permit an entry. During entry, City and its
Authorized Representatives shall exercise reasonable care relative to the Premises and
to Tenant's property. Any entry to the Premises by City shall not be construed as a forcible
or unlawful entry into, or a detainer of, the Premises, or an eviction of Tenant from the
Premises or any portion thereof.
11. NO HYPOTHECATION
Tenant explicitly covenants and agrees not to hypothecate, pledge, mortgage,
assign as collateral, or otherwise encumber Tenant's leasehold interest in the Premises
or any part thereof, whether voluntarily or by operation of law. Any attempted
hypothecation or encumbrance in violation of this Section shall be null and void and shall
constitute an immediate Event of Default under this Agreement, entitling Landlord to
exercise all rights and remedies available at law or in equity.
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12. LIENS
Tenant shall, at all times, indemnify and hold City 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 Property, and from
the costs of defending against such claims, including reasonable attorney's fees. In the
event any lien or stop notice is imposed or recorded on the Property as a result of the
construction, repair, alteration of the Premises, installation of any equipment, Tenant
shall, within thirty (30) calendar days from the filing of the lien or stop notice:
(a) Record a valid release of lien or stop notice;
(b) Deposit sufficient cash with City to cover the amount of the
claim or lien or stop notice in question and authorize payment to the extent of said
deposit to any person or entity that obtains any judgment with respect to said claim or
lien or stop notice;
(c) Furnish a set aside letter from Tenant's construction lender, in
form and substance reasonably satisfactory to City, setting aside sufficient funds from
Tenant's construction loan for the satisfaction of such lien; or
(d) Procure and record a bond in accordance with the provisions of
California Civil Code Section 8424, or other applicable statute, which frees the Property
from the claim of lien or stop notice and from any action brought to foreclose the lien or
stop notice.
13. INDEMNITY AND EXCULPATION; INSURANCE
13.1. Hold Harmless Clause. Tenant agrees to indemnify, defend and hold
harmless the City, its Council, Boards, Commissions, Committees, officers, agents,
officials, employees, volunteers and any person or entity owning or otherwise in legal
control of the Property (collectively the "Indemnified Parties") from and against any and
all claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, actions, causes of action, suits, judgments, fines,
penalties, liabilities, losses, damages, costs and expenses (including, without limitation,
attorney's fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a "Claim"; collectively, "Claims"), which may arise from or in any manner
relate (directly or indirectly) to this Agreement, the Tenant, Tenant's employees,
contractors or subcontractors, or agents on the Premises, or the occupation and use of
the Premises, specifically including, but not limited to, any claim, liability, loss, or damage
arising by and Tenant assumes all corresponding risk because of:
(a) The death or injury of any Person caused or allegedly caused by the
condition of the Premises or an act or omission of Tenant or an
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agent, contractor, employee, servant, sublessee or concessionaire
of Tenant; and
(b) Any work performed on the Premises or materials furnished to the
Premises at the request of Tenant or any agent or employee of
Tenant, with the exception of Maintenance performed by City; and
(c) Tenant's failure to perform any provision of this Agreement or to
comply with any requirement of Law or any requirement imposed on
the Premises by any duly authorized governmental agency or
political subdivision.
13.2. Indemnified Parties shall not be liable to Tenant for any damage to Tenant
or Tenant's property, goodwill, increased Tenant operating costs, or loss of business or
income by Tenant from any cause other than the sole negligent, or willful acts of
Indemnified Parties. Except as otherwise expressly provided in this Agreement, Tenant
releases and also waives all claims against Indemnified Parties for damages arising for
any reason otherthan the gross negligent, intentional orwillful acts of Indemnified Parties.
Indemnified Parties shall not be liable to Tenant for any damage to the Premises, Tenant's
property, Tenant's goodwill, or Tenant's business income, caused in whole or in part by
acts of nature including, without limitation, waves, wind and tidal flows.
13.3. This indemnity Section shall apply to all claims and liability regardless of
whether any insurance policies are applicable.
13.4. Tenant's obligations in this Section 13 shall survive the expiration or earlier
termination of this Agreement.
13.5. Insurance. Without limiting Tenant's indemnification of City, Tenant shall
maintain insurance in the types and amounts specified in Exhibit "E," attached hereto and
incorporated herein by this reference.
14. DAMAGE OR DESTRUCTION OF PREMISES
14.1. Destruction of Premises. If the Premises are totally or partially destroyed,
rendering the Premises or any portion thereof totally or partially inaccessible or unusable,
Tenant shall restore the Premises, at Tenant's sole cost and effort, to substantially the
same condition as immediately prior to such destruction (including all trade fixtures,
personal property, improvements and Alterations as are installed by Tenant, which shall
be replaced by Tenant at its expense). Alternatively, Tenant may elect to terminate this
Agreement, provided the damage was not caused by Tenant, without any liability from
the City, by giving written notice of such election to City within sixty (60) calendar days
after the date of the occurrence of any casualty if the cost of the restoration exceeds the
amount of any available insurance proceeds, if the damage has been caused by an
uninsured casualty or event, or if Tenant reasonably estimates that repairs of the
Lease Agreement - Heather Dickerson Insurance Agency Page 14
Premises will take more than six (6) months. Upon such termination, insurance proceeds
applicable to reconstruction of the Premises (excluding Tenant's personal property
therein) shall be paid to City and Tenant shall have no further liability or obligations,
excluding any indemnification or hold harmless provisions under this Agreement.
14.2. Replacement of Tenant's Property. In the event of the damage or
destruction of improvements located on the Premises not giving rise to Tenant's option to
terminate this Agreement, Tenant shall, at its own expense, replace and repair all
Tenant's trade fixtures, equipment, machinery, furnishings, furniture and inventory as
soon as reasonably possible to permit the prompt continuation of Tenant's business at
the Premises for the Approved Use.
14.3. Destruction of Property. In the event that all or a portion of the Property or
access to the Property in areas to be maintained by the City either under this Agreement
or because City owns such other areas, is damaged, deteriorates or destroyed by fire or
any other casualty not attributable to Tenant nor covered by Tenant insurance and as a
result the Premises or a material portion of the Premises becomes inaccessible or
commercially unusable for the Approved Use, and the damage or destruction cannot
reasonably be repaired within twelve (12) months after the date of the casualty, City shall
have the right, by notice to Tenant within sixty (60) calendar days of such casualty, to
either:
(a) Terminate this Agreement by giving Tenant written notice (which
notice shall be given, if at all, within thirty (30) calendar days following
the date of the casualty), in which case this Agreement shall be
terminated thirty (30) calendar days following such City notice;
(b) Confirm City's intention to repair such damage as soon as
reasonably possible at City's expense, in which event this
Agreement shall continue in full force and effect; however, Rent shall
be abated in accordance with the procedures set forth in Section 15,
below. Tenant may terminate this Agreement by giving City written
notice at any time prior to the commencement of repairs if City
agrees to repair the Property pursuant to this Section 14.3(b) and
City fails to commence repairs within one hundred twenty (120)
calendar days after giving Tenant written notice of its intention to
repair. In such event, this Agreement shall terminate as of the date
of notice from Tenant to City, and City shall have no further liability
to Tenant under this Agreement; or
(c) City has no liability to Tenant concerning such casualty or City
election to repair or not repair.
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15. ABATEMENT OF RENT
General Rule. In the event of damage or destruction of the Premises or damage
to the Property that impacts the Premises and this Agreement is not terminated, Tenant
shall continue to utilize the Premises for the operation of its business for the Approved
Use to the extent it may be practicable and commercially reasonable. Rent shall abate in
proportion to the area of the Premises that is rendered unusable for the Approved Use.
The abatement of Rent shall commence on the date that use of the Premises is impacted
and continue until the completion of those repairs necessary to restore full use of the
Premises and Tenant's re -opening of the Premises. Tenant's obligation to pay taxes,
assessments, license fees and other charges pursuant to this Agreement shall not be
abated or reduced. Rent shall not abate if the damage or destruction to the Premises is
the result of the negligence or willful act or omission of Tenant or its employees, officers,
or agents. Tenant's right to abatement of Rent is contingent on payment of insurance
proceeds, if any, equal to the amount of Rent pursuant to coverage required by Section
13.5, above.
16. PROHIBITION AGAINST VOLUNTARY ASSIGNMENT, SUBLETTING AND
ENCUMBERING
16.1. Prohibition of Assignment. City and Tenant acknowledge that City is
entering into this Agreement in reliance upon the business experience and abilities of
Tenant to operate the Premises for the Approved Use. Consequently, Tenant shall not
voluntarily delegate, assign or encumber its interest in this Agreement or in the Premises,
or sublease substantially all or any part of the Premises, or allow any other person or
entity to occupy or use all or any part of the Premises without the prior written consent of
City. City's consent to any assignment or other transfer is subject to Tenant providing City
with evidence reasonably satisfactory to City that the: (a) proposed transferee has
financial strength and experience comparable to Tenant; (b) the use of the Premises by
the proposed transferee is consistent with the terms of this Agreement and is for the
Approved Use or a use approved by the City; (c) proposed transferee agrees to assume
all current and future Tenant obligations and agrees that the City is not in default of the
Agreement; and (d) Tenant is not then in material default of this Agreement. Except as
otherwise expressly provided herein, any dissolution, merger, consolidation,
reorganization of Tenant, or the sale or other transfer resulting in a transfer of a controlling
percentage of the capital stock of Tenant, shall be deemed a voluntary assignment
requiring City's consent above. However, the sale or transfer of a controlling percentage
of the capital stock of Tenant pursuant to a public offering(s) of equity or debt instruments
issued by Tenant, or other transfers of publicly traded capital stock or debt instruments
shall not constitute a voluntary assignment and shall not require City's consent or
approval if there is no change in the management of Tenant's business and if such
successor otherwise maintains the Approved Use and satisfies the prior experience and
business expertise tests above and is at least as creditworthy as Tenant at the time this
Agreement is signed. The phrase "controlling percentage" means the ownership of, or the
right to vote, stock possession of at least fifty percent (50%) of the total combined voting
Lease Agreement - Heather Dickerson Insurance Agency Page 16
power of all classes of Tenant's capital stock issued, outstanding, and entitled to vote for
the election of directors, except for ownership of publicly traded shares, warrants or
similar equity interests in Tenant traded on a national exchange or over-the-counter
markets.
16.2. Exceptions. Notwithstanding the foregoing paragraphs or anything to the
contrary contained herein, City's consent shall not be required for a transfer or
assignment of any stock or interest by a shareholder or member if the Approved Use of
the Premises is maintained, if such transfer is to a spouse, children or grandchildren or
an assignment or subletting to an Affiliate, Subsidiary, or Successor of Tenant defined as
follows:
(a) An "Affiliate" is any corporation or other entity which directly or
indirectly controls or is controlled or is under common control with
Tenant (for purposes of this Section, "control" shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such corporation or
other entity, whether through the ownership of voting securities or by
contract or otherwise);
(b) A "Subsidiary" shall mean any corporation or other entity not less
than twenty five percent (25%) of whose outstanding stock shall, at
the time, be owned directly or indirectly by Tenant and which is at
least as creditworthy as Tenant; and
(c) A "Successor" shall mean a corporation or other entity in which or
with which Tenant is merged or consolidated, in accordance with
applicable statutory provisions for merger or consolidation of
corporations or a corporation or other entity acquiring a substantial
portion of the property and assets of Tenant.
16.3. Continuing Effect. City's consent to any assignment, encumbrance, or
sublease shall not relieve Tenant from its obligations or liabilities under this Agreement
nor act as a waiver of the requirement that such consent be obtained to any subsequent
assignment, encumbrance or sublease.
17. TENANT'S DEFAULT/CITY'S REMEDIES
17.1. Default by Tenant. The occurrence of any one (1) or more of the following
events shall constitute a default and material breach of this Agreement by Tenant:
(a) Failure of Tenant to pay Rent or any other payment required by this
Agreement, as and when due, when such failure shall continue for a
period of ten (10) calendar days after written notice of default from
City to Tenant;
Lease Agreement - Heather Dickerson Insurance Agency Page 17
(b) Except as specified in 17.1(a) above, the failure of Tenant to observe
or perform any of the covenants, conditions or provisions of this
Agreement to be observed or performed by Tenant where such
failure shall continue for a period of thirty (30) calendar days after
written notice thereof from City to Tenant; provided, however, that if
the nature of Tenant's default is such that more than thirty (30)
calendar days are reasonably required for its cure, then Tenant shall
not be deemed to be in default if Tenant commences such cure within
said thirty (30) calendar day period and thereafter diligently
prosecutes such cure to completion;
(c) Tenant becomes a "debtor" as defined in 11 U.S.C. Section 101 or
any successor statute thereto, or should any adjudications in
bankruptcy be rendered against Tenant, or should Tenant 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 Tenant's property, and should the
same not be dismissed within sixty (60) calendar days thereafter;
(d) The making by Tenant of any general arrangement or assignment
for the benefit of creditors;
(e) The vacating or abandonment of the Premises by Tenant for a period
of thirty (30) successive calendar days, without the prior written
permission of the City's Authorized Representative; excluding
closures caused by any force majeure, casualty, or condemnation,
or by remodeling, reconstruction, alteration, repairs or permitted
closures set forth under this Agreement);
(f) The appointment of a trustee or receiver to take possession of
substantially all of the assets of Tenant's assets located at the
Premises or of Tenant's interest in this Agreement, where such
appointment is not discharged within sixty (60) calendar days; or
(g) The attachment, execution or the judicial seizure of substantially all
of Tenant's assets located at the Premises or of Tenant's interest in
the Agreement, where such seizure is not discharged within sixty
(60) calendar days.
17.2. Remedies.
(a) Cumulative Nature of Remedies. If any default by Tenant shall
continue without cure beyond the time permitted under this
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Agreement, City shall have the remedies described in this Section in
addition to all other rights and remedies provided by law or equity, to
which City may resort to cumulatively or in the alternative.
(b) Re-entry without Termination. City may re-enter the Premises, and,
without terminating this Agreement, re -let all or a portion of the
Premises. City may execute any agreements made under this
provision in City's name and shall be entitled to all rents from the use,
operation, or occupancy of the Premises. Tenant shall nevertheless
pay to City on the dates specified in this Agreement the equivalent
of all sums required of Tenant under this Agreement, plus City's
expenses in conjunction with re -letting, less the proceeds of any re -
letting or atonement. No act by or on behalf of City under this
provision shall constitute a termination of this Agreement unless City
gives Tenant specific written notice of termination.
(c) Termination Agreement. City may terminate this Agreement by
giving Tenant written notice of termination with a specified
termination date. In the event City terminates this Agreement, City
may recover possession of the Premises (which Tenant shall
surrender and vacate upon demand) and remove all persons and
property. City shall be entitled to recover the following as damages:
17.2.c.1. The value of any unpaid Rent or other charges
that are unpaid at the time of Termination;
17.2.c.2. The value of the Rent and other charges that
would have accrued after termination less the amount of Rent
and charges the City received or could have received through
the exercise of reasonable diligence as of the date of the
award, provided, however, that City shall use its best efforts
to re -lease the Premises and upon the City's re -leasing the
Premises Tenant shall be released from all further liability for
Rent and other charges that would have accrued after
termination;
17.2.c.3. Any other amount necessary to reasonably
compensate City for the detriment proximately caused by
Tenant's failure to perform its obligations under this
Agreement; and
17.2.c.4. At City's election, such other amounts in
addition to or in lieu of the foregoing as may be permitted from
time -to -time by applicable California law. City shall be entitled
to interest at the rate of ten percent (10%) per annum on all
Lease Agreement - Heather Dickerson Insurance Agency Page 19
Rent and other charges from the date due or the date they
would have accrued. City shall also be entitled to an award
of the costs and expenses incurred by City in maintaining or
preserving the Premises after default, preparing the Premises
for re -letting, or repairing any damage caused by an act or
omission of Tenant.
17.2.c.5. City may exercise any other right or remedy
which City may have at law or equity.
17.3. Use of Tenant's Personal Property. In the event Tenant is in default past
applicable notice and cure periods, City may use Tenant's personal property and any
trade fixtures located on the Premises or any of such property and fixtures without
compensation or liability to Tenant for use or damage. In the alternative, City may store
the property and fixtures at the cost of Tenant.
17.4. City's Right to Cure Tenant's Default. Upon continuance of any default
beyond applicable notice and cure periods, City may, but is not obligated to, cure the
default at Tenant's cost. If City pays any money or performs any act required of, but not
paid or performed by, Tenant after notice, the payment and/or the reasonable cost of
performance shall be due as Additional Rent not later than ten (10) calendar days after
service of a written demand accompanied by supporting documentation upon Tenant. No
such payment or act shall constitute a waiver of default or of any remedy for default or
render City liable for any loss or damage resulting from performance.
17.5. Waiver of Rights. Tenant waives any right of redemption or relief from
forfeiture under California Code of Civil Procedure Sections 1174 or 1179, or under any
other present or future law, in the event Tenant is evicted or City takes possession of the
Premises by reason of any default by Tenant.
18. CONDEMNATION
18.1. Termination of the Agreement. Tenant or the City shall have the right
to terminate this Agreement as of the date a public agency with lawful authority to
condemn obtains possession or title to ten percent (10%), or more of the land area
at the Premises, or the condemnation materially affects the conduct of Tenant's
business in the Premises, or the Premises will no longer be suitable for the conduct
of Tenant's business for the Approved Use. In the event of Termination pursuant
to this subsection, Rent shall be prorated to the date of Termination, any unearned
Rent shall be refunded to Tenant and Tenant shall have no further obligations
under this Agreement. Tenant shall not grant a right of entry to any condemnor
without the written consent of City.
18.2. No Termination of Agreement. If this Agreement is not terminated
under Section 18.1, above, then this Agreement shall terminate as to the portion
Lease Agreement - Heather Dickerson Insurance Agency Page 20
of the Premises taken upon the date which possession of said portion is taken, but
this Agreement shall continue in force and effect as to the remainder of the
Premises. Tenant shall, in the event of a taking of any portion of the Premises, be
entitled to a reduction in the Rent in reasonable proportion to the area of the
Premises so taken verses its impact on Tenant's continued operations for the
Approved Use.
18.3. Allocation of Award. In the event that an award is made for an entire
or partial taking or for damage to the Premises or any interest therein in any action
in direct or inverse condemnation or in the event of a taking under the power of
eminent domain, the Parties hereto agree that their respective rights to the award
or compensation paid shall be as follows:
(a) City shall be entitled to that Portion of the award received for the
taking of the real property within the Premises, the value of this
leasehold, including all buildings and other improvements to which
City is entitled on Expiration or Termination of this Agreement, and
for severance damages.
(b) Tenant shall be entitled to any award that may be made for the taking
of or injury to Tenant's business and profits, including any amount
attributable to Tenant's personal property, fixtures, installations, or
improvements in or on the Premises, Tenant's relocation expenses,
but excluding any "bonus value" attributable to this Agreement.
(c) Any interest payable on the total award shall be divided between City
and Tenant in the same ratio as are the awards granted to them
pursuant to the other provisions of this Section.
19. SUBJECT TO STATE LANDS COMMISSION GRANT
The Premises are located on property that may be the subject of a grant from the
State of California to the City that is administered by the State Lands Commission. Tenant
shall not take any action that would cause the City to be in violation of any provisions of
that grant. If the State Lands Commission terminates this grant for any reason or prevents
the Premises from being used for the Approved Use, this Agreement terminates as a
result and the Parties shall be released from all liabilities and obligations, excluding any
outstanding Rent, indemnification or hold harmless provisions, under this Agreement.
20. WASTE OR NUISANCE
Tenant shall not commit or permit the commission of any waste on the Premises.
Tenant shall not maintain, commit, or permit any nuisance as defined in Section 3479 of
the California Civil Code on the Premises. Tenant shall not use or permit the use of the
Premises for any unlawful purpose.
Lease Agreement - Heather Dickerson Insurance Agency Page 21
21. NO CONFLICTS OF USE
Tenant shall not use, occupy or permit any portion of the Premises or Property to
be used or occupied in violation of any Law. City represents and warrants that, to the best
of City's knowledge: (i) Tenant's use of the Premises does not conflict with applicable
Laws, and City knows of no reason why Tenant would be unable to obtain all required
permits, licenses and approvals from the appropriate governmental authorities; (ii) the
Premises is not in violation of any environmental laws, rules, or regulations and Tenant's
contemplated uses will not cause any such violation; and (iii) the Premises is free of any
and all Hazardous Materials as of the Delivery Date.
22. HAZARDOUS MATERIALS
22.1. From the Effective Date and throughout the Term, Tenant shall not use,
occupy, nor permit the use of, any Hazardous Material in the construction, reconstruction
or renovations of, or additions to the Project in violation of any applicable law, regulation,
code or ordinance. Tenant shall, at its expense, comply, and require each of its Affiliates,
subtenants, licensees and/or concessionaires of space in the Project or elsewhere on the
Premises to comply, with all applicable laws, regulations, codes and ordinances relating
to any Hazardous Material or to any Hazardous Material Activities, including obtaining
and filing all applicable notices, permits, licenses and similar authorizations.
22.2. Notwithstanding any contrary provision of this Agreement, and in addition
to the indemnification duties of Tenant set forth elsewhere in this Agreement, Tenant shall
indemnify, defend with counsel reasonably acceptable to City, protect, and hold harmless
City and its elected officials, officers, employees, agents, attorneys, volunteers and
representatives from and against any and all losses, fines, penalties, claims, demands,
obligations, actions, causes of action, suits, costs and expenses (including, without
limitation, attorneys' fees, disbursements and court costs), damages, judgments, or
liabilities, including, but not limited to, any repair, cleanup, detoxification, or preparation
and implementation of any remedial, response, closure or other plan of any kind or nature
which the City and its officials, officers, employees, agents, attorneys, volunteers or
assigns may sustain or incur, or which may be imposed upon them, in connection with
any breach of Tenant's obligations or representations in this Agreement or the use of the
Premises under this Agreement, arising from or attributable to the Tenant Parties (defined
below) storage or deposit of Hazardous Materials in violation of applicable laws. This
section is intended to operate as an agreement pursuant to CERCLA, 42 USC Section
9607(e), and California Health and Safety Code Section 79860, to ensure, protect, hold
harmless, and indemnify Landlord for any claim pursuant to the Hazardous Substance
Laws or the common law.
22.3. Tenant does not, and shall not, authorize any third party to use, generate,
manufacture, maintain, permit, store, or dispose of any Hazardous Materials in violation
of applicable laws on, under, about or within the Premises.
Lease Agreement - Heather Dickerson Insurance Agency Page 22
22.4. Upon expiration or earlier termination of this Agreement, Tenant shall
deliver possession of the Premises in compliance with Hazardous Substance Laws.
22.5. If during the Term of this Agreement, Tenant becomes aware of (i) any
actual or threatened release of any Hazardous Materials on, in, under, from, or about the
Premises in violation of Hazardous Substance Laws; or (ii) any inquiry, investigation,
proceeding, or claim by any government agency or other person regarding the presence
of any Hazardous Materials in violation of Hazardous Substance Laws on, in, under, from
or about the Premises, Tenant shall give City written notice of the release or inquiry within
five (5) days after Tenant becomes aware or first has reason to believe there has been a
release or inquiry and shall simultaneously furnish to City copies of any claims, notices of
violation, reports, warning or other writings received by Tenant that concern the release
or inquiry.
22.6. If the presence of any Hazardous Materials brought onto the Premises by
Tenant or Tenant's employees, agents, subtenant, licensees, concessionaires,
contractors, or invitees ("Tenant Parties"), or generated by same during the Term of this
Agreement, results in contamination of the Premises or adjacent properties in violation of
Hazardous Substance Laws, Tenant shall promptly take all necessary actions, at
Tenant's sole expense, to remove or remediate such Hazardous Materials in full
compliance with applicable laws. Tenant shall provide notice to City prior to performing
any removal or remedial action. Tenant shall not propose nor agree to any covenant of
use restriction as part of any removal or remediation required as a result of this provision
without City's written consent. Tenant shall pay any costs City incurs in performing
Tenant's obligation to clean-up contamination resulting from Tenant's operations or use
of the Premises.
22.7. Should any clean-up of Hazardous Materials for which Tenant is
responsible not be completed prior to the expiration or sooner termination of the
Agreement, including any extensions thereof, then Tenant shall transfer the amounts
required to complete clean-up into an escrow account, together with City -approved
instructions for the disbursement of such amount in payment of the costs of any remaining
clean-up as it is completed, and (ii) if the nature of the contamination or clean-up required
of Tenant is of such a nature as to make the Premises untenable or unleasable, then
Tenant shall be liable to City as a holdover lessee until the clean-up has been sufficiently
completed to make the Premises suitable for lease to third parties. The estimated cost
of the clean-up shall require approval of the City.
22.8. If City determines, in its reasonable discretion, that Tenant does not have
insurance or other financial resources sufficient to enable Tenant to fulfill its obligations
under this provision, whether or not accrued, liquidated, conditional, or contingent, then
Tenant shall, at the request of City, procure and thereafter maintain in full force and effect
such environmental impairment liability and/or pollution liability insurance policies and
endorsements, or shall otherwise provide such collateral or security reasonably
Lease Agreement - Heather Dickerson Insurance Agency Page 23
acceptable to City as is appropriate to assure that Tenant will be able to perform its duties
and obligations hereunder.
22.9. Tenant's obligations in this Section 22 shall survive the expiration or earlier
termination of this Agreement.
22.10. In the event that the presence of any Hazardous Materials not caused by
Tenant is detected at the Property at any time during the Term of this Agreement and any
Option Term, all remedial work shall be performed by City at City's expense. Tenant's
obligation to pay Rent shall be abated pursuant to Section 15 to the extent Tenant is
unable to conduct its business upon the Premises as a result of any remedial work that
is performed subsequent to Tenant opening for business. Tenant shall have the right (but
not the obligation) to terminate this Agreement, upon thirty (30) calendar days advance
written notice to City in the event that Hazardous Materials, not caused by Tenant, are
detected at the Premises and the presence or the remediation materially affects Tenant's
ability to conduct its business at the Premises.
23. EVENT OF BANKRUPTCY
23.1. Assignment. If this Agreement is assigned to any Person or entity pursuant
to the provisions of the Bankruptcy Code, 11 U.S.C. Sections 101 et seq. or any similar
or successor statute ("Bankruptcy Code"), any and all monies or other consideration
payable or otherwise to be delivered in connection with such assignment shall be paid or
delivered to City, shall be and remain the exclusive property of City and shall not
constitute property of Tenant or of the estate of Tenant within the meaning of the
Bankruptcy Code. Any and all monies or other consideration constituting City's property
under this Section not paid or delivered to City shall be held in trust for the benefit of City
and be promptly paid or delivered to City.
23.2. Assumption of Obligations. Any Person or entity to which this Agreement is
assigned pursuant to the provisions of the Bankruptcy Code shall be deemed without
further act or deed to have assumed all of the obligations arising under this Agreement
and any Amendments on and after the date of such assignment.
24. NOTICES
Any notice, demand, request, consent, approval or communication that either party
desires or is required to give shall be in writing and shall be deemed given three (3)
calendar days after deposit with the United States Postal Service, postage prepaid, by
registered or certified mail, return receipt requested or upon delivery if personally served.
Unless notice of a different address has been given in accordance with this Section, all
notices shall be addressed as follows:
Lease Agreement - Heather Dickerson Insurance Agency Page 24
If to City: City of Newport Beach
Attention: Real Property Administrator
100 Civic Center Drive
Newport Beach, CA 92660
If to Tenant: Heather Dickerson Insurance Agency
Heather Dickerson
P.O. Box 3121
Newport Beach CA 92659
25. SURRENDER OF PREMISES
At the expiration or earlier termination of this Agreement, Tenant shall surrender,
at no cost to City, the possession of the Premises. Tenant shall leave the surrendered
Premises, required personal property and fixtures in good and broom -clean condition,
reasonable wear and tear excepted. All property that Tenant is not required to surrender,
but that Tenant does abandon shall, at City's election, become City's property at
expiration or termination. City shall owe no compensation to Tenant for any personal
property or fixtures left at the Premises by Tenant more than fifteen (15) calendar days
after the expiration or termination of this Agreement.
Notwithstanding any other provision of this Agreement as permitted by California
Public Resources Code Section 6312, or any successor statute, the parties agree that
upon expiration or earlier termination of this Lesse, City shall have no liability or obligation
to paV compensation for any improvements made to the Premises.
26. COMPLIANCE WITH ALL LAWS
Tenant shall at its own cost and expense comply with all statutes, ordinances,
regulations and requirements of all governmental entities, including federal, state, county
or municipal, whether now in force or hereinafter enacted and relating in any way to the
Premises and/or this Agreement.
27. WAIVERS
The waiver by either party of any breach or violation of any term, covenant or
condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed
to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of
any subsequent breach or violation of the same or other term, covenant, condition,
ordinance, law or regulation. The subsequent acceptance by either party of any fee,
performance, or other consideration which may become due or owing under this
Agreement, shall not be deemed to be a waiver of any preceding breach or violation by
Lease Agreement - Heather Dickerson Insurance Agency Page 25
the other party of any term, condition or covenant of this Agreement, or any applicable
law, ordinance or regulation.
28. SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of this
Agreement shall continue in full force and effect.
29. CONFLICT
In case of conflict, the more specific provision of this Agreement shall control. If
any conflicts arise between the terms and conditions of this Agreement, and the terms
and conditions of the attached exhibits or the documents expressly incorporated by
reference, the terms and conditions of this Agreement shall control.
30. APPLICABLE LAW
This Agreement shall be construed in accordance with the laws of the State of
California. Any action brought relating to this Agreement shall be adjudicated in a court
of competent jurisdiction in the County of Orange, State of California.
31. ENTIRE AGREEMENT; AMENDMENTS
31.1. The terms and conditions of this Agreement, all exhibits attached, and all
documents expressly incorporated by reference, represent the entire agreement of the
parties with respect to the subject matter of this Agreement.
31.2. This Agreement shall supersede any and all prior agreements, oral or
written, regarding the subject matter between Tenant and City.
31.3. No other agreement, promise or statement, written or oral, relating to the
subject matter of this Agreement, shall be valid or binding, except by way of a written
amendment to this Agreement.
31.4. The terms and conditions of this Agreement shall not be altered or modified
except by a written amendment to this Agreement signed by Tenant and the Authorized
City Representative and approved as to form by the City Attorney.
31.5. Any obligation of the parties relating to monies owed, as well as those
provisions relating to limitations on liability and actions, shall survive termination or
expiration of this Agreement.
31.6. Each party has relied on its own inspection of the Premises and examination
of this Agreement, the counsel of its own advisors, and the warranties, representations,
Lease Agreement - Heather Dickerson Insurance Agency Page 26
and covenants in this Agreement. The failure or refusal of either party to inspect the
Premises, to read this Agreement or other documents, or to obtain legal or other advice
relevant to this transaction constitutes a waiver of any objection, contention, or claim that
might have been based on such reading, inspection, or advice.
32. TIME IS OF THE ESSENCE
Time is of the essence for this Agreement.
33. SUCCESSORS
Subject to the provisions of this Agreement on assignment and subletting, each
and all of the covenants and conditions of this Agreement shall be binding on and shall
inure to the benefit of the heirs, successors, executors, administrators, assigns, and
personal representatives of the respective parties.
34. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning
of the language used and shall not be construed for or against either party by reason of
the authorship of this Agreement or any other rule of construction which might otherwise
apply.
35. HEADINGS
The captions of the various sections of this Agreement are for convenience and
ease of reference only and do not define, limit augment, or describe the scope, content,
or intent of this Agreement.
36. NO BROKERS
Each party warrants to and for the benefit of the other than it has had no dealings
with any real estate broker or other agent (attorneys excepted) in connection with the
negotiation or making of this Agreement, and that no commission, fee or other
compensation is owed regarding this Agreement by such other Party.
37. GENDER; NUMBER
The neuter gender includes the feminine and masculine, the masculine includes
the feminine and neuter, and the feminine includes the neuter, and each includes
corporation, partnership, or other legal entity whenever the context requires. The singular
number includes the plural whenever the context so requires.
Lease Agreement - Heather Dickerson Insurance Agency Page 27
38. EXHIBITS
All exhibits to which reference is made in this Agreement are incorporated by
reference. Any reference to "this Agreement" includes matters incorporated by reference.
39. CITY BUSINESS LICENSE
Tenant shall obtain and maintain during the duration of this Agreement, a City
business license as required by the Newport Beach Municipal Code.
40. NO ATTORNEYS' FEES
The prevailing party in any action brought to enforce the terms and conditions of
this Agreement, or arising out of the performance of this Agreement, shall not be entitled
to recover its attorneys' fees.
41. NONDISCRIMINATION
Tenant, for itself and its successors, agrees that in the performance under this
Agreement, Tenant shall not discriminate against any person because of the marital
status or ancestry, gender, sexual orientation, etc. of that person or any characteristic
listed or defined in Section 11135 of the Government Code.
42. NO THIRD PARTY BENEFICIARIES
City (both as a lessor and as the City of Newport Beach) and Tenant do not intend,
by any provision of this Agreement, to create in any third party, any benefit or right owed
by one party, under the terms and conditions of this Agreement, to the other party.
43. LAWS
It shall be the obligation of Tenant to comply with all laws, statutes, rules, and
regulations relating in any way to the Premises including, but not limited to, State of
California labor laws, rules and regulations and the parties agree that the City shall not
be liable for any violation by Tenant (or Tenant's agent, sublessee or any party affiliated
with Tenant) thereof.
44. NO DAMAGES
Tenant acknowledges that City would not enter this Agreement if it were to be liable
for damages (including, but not limited to, actual damages, economic damages,
consequential damages, lost profits, loss of rents or other revenues, loss of business
opportunity, loss of goodwill or loss of use) under, or relating to, this Agreement or any of
the matters referred to in this Agreement, including, without limitation, any and all plans,
Lease Agreement - Heather Dickerson Insurance Agency Page 28
permits, licenses or regulatory approvals, and CEQA documents. Accordingly, Tenant
covenants and agrees, except as otherwise provided herein, on behalf of itself and its
successors and assigns, not to sue City (either in its capacity as lessor in this Agreement
or in its capacity as the City of Newport Beach) for damages (including, but not limited to,
actual damages, economic damages, consequential damages, lost profits, loss of rents
or other revenues, loss of business opportunity, loss of goodwill or loss of use) or
monetary relief for any breach of this Agreement by City or for any dispute, controversy,
or issue between City and Tenant arising out of or connected with this Agreement or any
of the matters referred to in this Agreement, including, without limitation, any and all plans,
permits, licenses or regulatory approvals, CEQA documents, or any future amendments
or enactments thereto, and the parties expressly agree that declaratory relief, injunctive
relief, mandate and specific performance shall be Tenant's sole and exclusive judicial
remedies.
45. GOVERNMENT CLAIMS ACT
Tenant and City agree that in addition to any claims filing or notice requirements
in this Agreement, Tenant shall file any claim that Tenant may have against City in strict
conformance with the Government Claims Act (Government Code sections 900 et seq.),
or any successor statute.
46. COUNTERPARTS
This agreement may be executed in two (2) or more counterparts, each of which
shall be deemed an original and all of which together shall constitute one (1) and the
same instrument.
[SIGNATURES ON NEXT PAGE]
Lease Agreement - Heather Dickerson Insurance Agency Page 29
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:: l 0 Z 5
By:
A on C. Harp
City Attorney PF
ATTEST:
Date:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: $119 120 ZS
By:
Grq,ceX Leung
Ci anager
TENANT: Heather Dickerson Insurance
Agency, a sole proprietorship
Date:
�y Signed in Counterpart
By
Moll Per
Y Perry
x„_, ``
�E_� �" BY:
Interim City Clerk
'�
Heather Dickerson
Sole Proprietor
Attachments:
Exhibit "A" —
Property Legal Description and Depiction
Exhibit "B" —
Premises Depiction
Exhibit "C" —
Waiver of Relocation Benefits
Exhibit "D" —
Balboa Yacht Basin Rules and Regulations
Exhibit "E" —
Insurance Requirement
Lease Agreement - Heather Dickerson Insurance Agency Page 30
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 6 � Z
By: r
Aa on C. Harp , '1 tiff
City Attorney �'' ply
ATTEST:
Date:
go
Molly Perry
Interim City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Grace K. Leung
City Manager
TENANT: Heather Dickerson Insurance
Agency, a sole proprietorship
Date: 'V F d �� S
B:
Heather Dickers
Sole Proprietor
Attachments: Exhibit "A" — Property Legal Description and Depiction
Exhibit "B" — Premises Depiction
Exhibit "C" — Waiver of Relocation Benefits
Exhibit "D" — Balboa Yacht Basin Rules and Regulations
Exhibit "E" — Insurance Requirement
Lease Agreement - Heather Dickerson Insurance Agency Page 30
EXHIBIT "A"
Property Legal Description and Depiction
A parcel of land situated in the Northwest quarter (NW 1/4) of Section Thirty -Five
(35), Township Six (6) South, Range Ten (10) West, S.B.B.& M., Orange County,
California, more particularly described as follows, to -wit:
Beginning at a point in the U.S. Bulkhead line between Station No. 200 and Station
No. 101 as shown upon a map entitled "Harbor Lines, Newport Bay Harbor, California,"
approved May 2, 1936, by the Secretary of War, and on file in the office of the U.S. District
Engineer at Los Angeles, California, said point of beginning being East 754.25 feet of
said bulkhead Station No. 200, running thence North 424.71 feet to a point in the Northerly
line of that certain parcel of land conveyed to City of Newport Beach by the Irvine
Company, as described in a deed recorded September 25, 1929, in Book 306, Page 375,
of official records of Orange County, California; thence South 850 43' East 772.15 feet to
the Northeasterly corner of the last mentioned parcel of land; thence South along the
Easterly line of the last mentioned parcel of land 367.01 feet to a point in said U.S.
Bulkhead line between Station No. 200 and Station No. 101, thence West along said
bulkhead line 770 feet to the point of beginning, containing approximately seven (7) acres.
Lease Agreement - Heather Dickerson Insurance Agency Page A-1
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EXHIBIT "B"
Premises Depiction
Lease Agreement - Heather Dickerson Insurance Agency Page B-1
EXHIBIT B
Office RSF: 790 sf
SCALE: 1/2" = 11-0" SHEET SIZE: 11x17
10• s 0' m
GRAPHIC SCALE —�
1614
829 Harbor Island Drive
Newport Beach, CA WorkSpacePlans
kim@workspaceplans.com jill@workspeceplans.com
EXHIBIT "C"
Waiver of Relocation Benefits
This Waiver of Relocation Benefits ("Waiver") is made and entered into by and
between the CITY OF NEWPORT BEACH, a California municipal corporation and charter
city ("Landlord") and HEATHER DICKERSON INSURANCE AGENCY, a sole
proprietorship "("Tenant"), as of the date of the Lease Agreement ("Agreement") between
City and Tenant to which this Waiver is attached. City and Tenant hereby agree that,
notwithstanding anything contained in the Agreement to the contrary, the provisions set
forth below shall be deemed to be part of the Agreement and shall supersede any
inconsistent provisions therein. All references in the Agreement and in this Waiver shall
mean the Agreement (and all exhibits attached thereto), as amended and supplemented,
including by this Waiver. All capitalized terms not defined in this Waiver shall have the
same meaning as set forth in the Agreement. This Waiver is effective as of the Effective
Date.
Tenant acknowledges it has read and understands the following terms and
knowingly and voluntarily enters into the Agreement without coercion, undue influence or
other inducement by City or any other person or entity.
1. STATUS OF POST -ACQUISITION TENANT.
(a) City has informed Tenant that it is redeveloping the Property for
public purposes, specifically the renovation, management, and maintenance of the
buildings at the Property ("Public Facility"). City does not intend to begin construction
until after the natural expiration of the Agreement and has informed Tenant that
construction will not result in Tenant being displaced or required to move from the
Premises before that time.
(b) The proposed Public Facility may involve demolition and new
construction of the subject Property and Premises. Since potential federal, state, and local
funding would be planned for use in the Public Facility, the Relocation Law (defined
herein) may apply to persons and businesses in lawful occupancy at the time an
application for funding is submitted for federal, state and/or local funding.
(c) Tenant enters into the Agreement in consideration of reduced rent
and/or other concessions provided by the City. In entering into the Agreement, Tenant
knowingly and voluntarily waives any eligibility it has or may have for relocation payments
or assistance under the Relocation Law, which may include, without limitation, advisory
assistance, payment for certain moving expenses, business re-establishment expenses,
and expenses incurred in searching for a replacement business. Tenant understands that
other businesses or persons in occupancy at the Property may be or become eligible for
such relocation assistance. Tenant agrees its status shall hereby be deemed and shall
remain as a post -acquisition tenant.
Lease Agreement - Heather Dickerson Insurance Agency Page C-1
(d) After full consideration of the foregoing advisement and information,
Tenant agrees that:
(1) under the Relocation Law, including without limitation
California Government Code Section 7260(c)(2), Tenant is not and will not become a
"displaced person", having waived any and all rights to benefits or assistance under the
Relocation Law; therefore, Tenant is not, and shall not become, entitled to relocation
assistance or benefits if Tenant moves from the Premises for whatever reason at any
time; and if for any reason Tenant shall ever be determined to be a "displaced person",
Tenant does hereby expressly, intentionally, and knowingly waive each and any claim of
entitlement to relocation assistance and/or benefits under the Relocation Law in
connection with the Tenant's occupancy of the Premises under the Agreement.
(e) Tenant represents, warrants, and agrees that it has not entered into
any other lease, assignment or any other agreement allowing any third party to occupy
all or any part of the Premises. Tenant represents, warrants, and agrees that as of the
date of this Agreement, other than Tenant, no other person or entity has or will have any
legal right to possess or occupy the Premises, excepting Tenant.
2. TENANT'S RELEASE AND WAIVER OF CITY OF NEWPORT BEACH.
Tenant is entering into the Agreement with City and agrees that all rights or obligations
that exist or may arise out of the termination of Tenant's leasehold interest at some date
in the future, whether for public, private or any other purposes, include Tenant's
intentional release and waiver of any and all rights to seek remedies under the Relocation
Law, to seek compensation for alleged severance damages, pre -condemnation
damages, alleged loss of business goodwill, or for costs, interest, attorneys' fees, and/or
any claim whatsoever that might arise out of or relate in any respect whatsoever directly
or indirectly to the termination of Tenant's leasehold interest by Landlord.
(a) Accordingly, Tenant acknowledges and agrees that should City
terminate Tenant's leasehold interest such termination and the resulting move of Tenant's
business and/or removal of Tenant's personal property from the Premises are non-
compensable under the Relocation Law and other federal and state laws related to
Tenant's move of its business from the Premises.
(b) Tenant fully, intentionally, knowingly and voluntarily waives, releases
and discharges City and its appointed and elected officials, officers, directors, employees,
contractors, and agents (together "Indemnitees") from all and any manner of rights,
demands, liabilities, obligations, claims, or cause of actions, in law or equity, of whatever
kind or nature, whether known or unknown, whether now existing or hereinafter arising,
which arise from or relate in any manner to (i) the use of the Premises for a public project
or other public purposes or (ii) the relocation of any of Tenant's business operations or
the relocation of any person or persons, business or businesses, or other occupant or
occupants located on the Premises, including the specific waiver and release of all rights
Lease Agreement - Heather Dickerson Insurance Agency Page C-2
under the Relocation Law and/or payments that otherwise may be required under such
state or federal law.
(c) Tenant waives all rights to compensation for any interest in the
business operations at, on, or about the Premises including, but not limited to, land and
improvements, fixtures, furniture, or equipment thereon, goodwill, severance damage,
attorneys' fees or any other compensation of any nature whatsoever.
(d) It is hereby intended that the release contained herein relates to both
known and unknown claims that Tenant and any person or entity claiming by or through
Tenant may have, or claim to have, against any of the Indemnitees with respect to the
subject matter contained herein or the events relating thereto. By releasing and forever
discharging claims both known and unknown which are related to or which arise under or
in connection with, the items set out above, Tenant expressly waives any rights under
California Civil Code Section 1542 and any similar law of any state or territory of the
United States are expressly waived. Section 1542 reads as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR OR RELEASED PARTY."
Tenant Initials:
(e) In connection with the Agreement, and the above release and waiver,
Tenant acknowledges that it is aware that it and its attorneys may hereafter discover
claims or facts or legal theories in addition to or different from those which it know or
believe to exist with respect to the claims released herein, but that Tenant's intention
hereby is to fully, finally and forever release and waive all such claims, known or unknown,
suspected or unsuspected, which do now exist, may exist or have existed in favor of
Tenant. In furtherance of such intention, Tenant's entering into the Agreement shall
evidence Tenant's full and complete release and waiver, notwithstanding the discovery
or existence of any such additional claims, facts, or legal theories under applicable laws
or regulations or otherwise relating to the Premises or the termination of Tenant's
leasehold interest and later move from the Premises. Tenant acknowledges and agrees
that its waiver and release is an essential and material term to the Agreement and that
without it, City would not have consented to the Agreement. Tenant understands and
acknowledges the significance and consequences of these provisions under the
Agreement.
(f) Tenant agrees, warrants and represents that it has carefully read the
contents of the Agreement and that, in executing the Agreement, Tenant does so with full
knowledge of any right which it may have, that it has received independent legal advice
from its attorneys, or in the alternative, knowingly has determined not to seek legal advice
Lease Agreement - Heather Dickerson Insurance Agency Page C-3
with respect to the matters set forth herein, and that Tenant has freely signed this
Agreement without relying on any agreement, promise, statement or representation by or
on behalf of any person or entity, including any and all Indemnitees, except as specifically
set forth in the Agreement.
(g) The statements, representations and recitals contained in the
Agreement are to be considered contractual in nature and not merely recitations of fact.
The Agreement, the advisements herein, and the above release and waiver shall be
binding upon Tenant and its heirs, agents, successors, legal representatives and assigns.
3. RELOCATION LAW DEFINITION. "Relocation Law" as used herein shall mean
applicable federal, state, and local laws and regulations, including without limitation (i) the
Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970
("URA"), 42 U.S.C. 4601-4655, and the implementing regulations at 49 CFR Part 24, (ii)
the California Relocation Assistance Act, Government Code Section 7260, et seq. and
the implementing regulations at Title 25, Section 6000, et seq. of the California Code of
Regulations, and (iii) any other applicable federal, state or local enactment, regulation or
practice providing for relocation assistance, benefits, or compensation for moving and for
property interests (including without limitation furnishings, fixtures and equipment,
goodwill, and moving expenses).
Lease Agreement - Heather Dickerson Insurance Agency Page C-4
EXHIBIT "D"
Balboa Yacht Basin Rules and Regulations
Lease Agreement - Heather Dickerson Insurance Agency Page D-1
r BALBOA YACHT BASIN
829 Harbor Island Drive
n Newport Beach, CA 92660
z (949) 673-0360
Rules and Regulations
When a boat enters the Balboa Yacht Basin ("BYB"), it immediately comes under the
jurisdiction of BYB and shall be berthed only where ordered and maneuvered as directed.
Vessels may be relocated within BYB at City's discretion. The City ordinances, rules and
regulations, summarized herein and as amended from time to time, and all other regulations
established by regulatory bodies having jurisdiction at BYB, shall form a part of all Slip Rental
Agreements as though printed thereon.
The Balboa Yacht Basin is owned by the City of Newport Beach ("City") and managed by
Bellport Group, Inc., located onsite at 829 Harbor Island Drive.
There is no warranty of any kind as to the condition of the floats, walks, gangways, ramps or
mooring gear, nor shall City be responsible therefore, or for injuries to persons or property
occurring thereon or for any other reason, whether herein specifically stated or not.
1. No Vessel may be moored at the BYB unless a current Slip Rental Agreement or
Temporary Slip Rental Agreement (collectively, the "Agreements") is in effect between
Vessel Owner and City. All defined terms herein shall have the same meaning as in the
Agreements.
2. Only the Vessel described in the Agreements and registered to Vessel Owner may
occupy the assigned Slip. Only one boat is permitted to occupy a slip at any one time,
unless otherwise approved by the Marina Manager.
3. Use of boats moored at BYB for unauthorized commercial purposes is prohibited.
4. No major repairs or complete overhauls shall be made on boats in BYB. Extent of the
permitted repairs shall be at the discretion of the City. Disc sanding and spray painting
are strictly forbidden.
5. Supplies, materials, accessories or gear of all kinds shall not be stored within BYB
except in approved lockers. No additional locker boxes shall be placed on the docks by
Vessel Owner. Maximum weight in lockers shall not exceed 70 pounds.
6. City reserves the right to inspect all boats to determine if they are properly identified and
equipped for safe operation in accordance with Coast Guard and other applicable
regulations.
Page 1 of 4
7. No Vessel Owner shall throw, discharge, pump or deposit from any boat or float any
refuse, oil, spirits, flammable liquid, or other polluting matter into BYB. All such matter
shall be deposited in appropriately marked containers within BYB.
8. Use of boat toilets not equipped with storage devices approved by the state or local
health departments is not permitted within BYB. City reserves the right to inspect all
boats for installation and proper operation of such devices and holding tanks.
9. Unnecessary operation of engines in berths is not permitted. No excessive noise is
allowed. Halyards should be tied away from masts.
10. Except for entering or leaving slips, marine engines, power generating equipment or
other noise making machinery shall not be operated between the hours of 5:00 P.M. and
9:00 A.M. Engines may not be operated in gear while boats are secured to dock.
11. Water or power lines shall not cross main walks.
12. All boats shall be moored by Vessel Owner in a safe manner, on cleats, with strong and
adequate lines.
13. The speed limit within BYB shall be dead slow, or wakeless speed, whichever is slower.
14. Fishing from the slips is not allowed. No cleaning of fish is permitted in BYB.
15. There shall be no laundering or drying of wearing apparel on the docks or on the dock or
rigging of a boat in BYB.
16. Restrooms will remain locked at all times. All keys must be returned to the Marina
Manager office upon termination of the Agreement. If not returned, the Key Deposit will
be retained by the City. Keys must not be duplicated.
17. Vessel Owner shall notify the Marina Manager when they expect Vessel to be away
from the Slip for any period in excess of thirty (30) days. Vessel Owner shall not sublet
or otherwise grant others the use of the Slip. During any absence of the Vessel, City
may use the Slip for any purpose without credit or compensation to Vessel Owner.
18. For security reasons, no dinghy, sabot, float or other similar boat shall be permitted to
cruise up and down the fairways. All such boats must be kept on Vessel. The use of
another slip at any time, for ANY non -emergency reason is not permitted.
19. The maximum distance by which any boat (including all projections such as transom
platforms, booms, gait tanks, bowsprits, etc.) may extend beyond the end of the berth
may not be more than ten percent (10%) of the length of the Slip beyond the end of the
Slip. No part of the Vessel shall at any time extend over any portion of any dock at BYB.
No part of any boat shall extend over the main walkway.
20. All equipment and electrical connections made by Vessel Owner must be approved by
the Marina Manager.
21. No fueling or transferring of fuel from docks shall be permitted at any time.
Page 2 of 4
22. Vessel Owner shall be responsible for any oil, paint, or other materials spilled, dripped
or otherwise applied to the concrete fingers or walks adjacent to the boat slip.
23. Boat boarding steps shall be a maximum of one-half (1/2) the width of the finger and
shall be of lightweight, open construction. No storage will be allowed under the boarding
steps.
24. No dinghies, masts, bicycles, hibachis, etc. shall be stored on the docks. Items left or
stored on the docks will be confiscated.
25. Trash containers are provided. Vessel Owners shall not place their own trash
containers on the docks.
26. No cleats, dock wheels or other accessories shall be installed by Vessel Owner. The
dockmaster should be contacted if additional accessories are necessary.
27. Any paint, varnish, etc. spilled on the docks or lockers shall be cleaned up immediately.
If the spill cannot be removed by Vessel Owner, he should contact the Marina Manager
for assistance.
28. Vessel Owner is encouraged to inform the Marina Manager of any leaks or other
malfunctions with water or electricity, etc., so that they may be corrected as soon as
possible.
29. ANIMALS SHALL BE LEASHED AT ALL TIMES. Should the size or temperament of a
pet disturb others or should the pet commit any nuisance on the property of BYB, such
animal shall be removed from BYB by Vessel Owner.
30. Children under twelve (12) years of age are not permitted on docks without the
immediate presence of a parent or other responsible adult.
31. Disorderly or discourteous conduct by Vessel Owner or guests that might injure a
person, cause damage to property or harm the reputation of BYB shall be cause for
termination of the Vessel Owner's Agreement.
32. Vessel Owner shall park vehicles in areas designated for Basin parking. Parking areas
shall not be used for storage of trailers without City's consent.
33. Vessel Owners are advised that it will be unlawful for any unauthorized person to solicit
business or to offer goods, wares, merchandise or services for sale on the premises of
BYB without the consent of the City.
34. "For Sale" or other unauthorized advertising signs are prohibited in BYB.
35. City is not responsible for any losses or damage to boats at BYB. Each Vessel Owner is
responsible for damage which he and/or his boat may cause to other boats or
improvements in BYB.
36. No swimming is permitted in BYB waters.
Page 3 of 4
37. The City will not provide space for the storage of dinghies or miscellaneous Vessel
Owner equipment on Basin property.
38. Hydro -lift hoists will not be allowed in BYB.
39. The Marina Manager may ascertain that strangers aboard yachts are authorized by
Vessel Owner to be aboard.
40. Riding of skateboards, bicycles or motorcycles on the docks is not permitted.
Slip Fees specified in the Agreement are determined by the size of the slip space or vessel
size and permitted overhang. Rent is due in advance, payable by the first of the month.
Electricity is charged for the previous month's use. Vessel is subject to impound if the
account is delinquent. Vessel Owner will be liable for any cost of impounding and collection
of account.
These rules and regulations are subject to change upon five (5) calendar day's notice.
Ralph Grippo
Balboa Yacht Basin Manager
Bellport Group, Inc.
949-723-7788
rarippo(-)bellwetherfinancialgroup.com
Kelly Rinderknecht
Balboa Yacht Basin Office Manager
Bellport Group, Inc.
949-569-0723
krinderknecht(cD-themarinaatdanapoint.com
Revised September 21, 2021
Page 4 of 4
EXHIBIT "E"
Insurance Requirements
Without limiting Tenant's indemnification of City, Tenant will obtain, provide, and
maintain at its own expense during the Term of this Agreement, a policy or policies of
insurance of the type, amounts, and form acceptable to City. The policy or policies shall
provide, at a minimum, those items described below.
1. Provision of Insurance. Without limiting Tenant's indemnification of City, and prior
to commencement of work on Premises by Tenant or Tenant's agents,
representatives, consultants, contractors and/or subcontractors, Tenant shall
obtain, provide and maintain at its own expense during the term of this Agreement
policies of insurance of the type and amounts described below and in a form
satisfactory to City. Tenant agrees to provide insurance in accordance with
requirements set forth here. If Tenant uses existing coverage to comply and that
coverage does not meet these requirements, Tenant agrees to amend,
supplement or endorse the existing coverage. City reserves the right to modify
these requirements, including limits, based on the nature of the risk, prior
experience, insurer, coverage, passage of time, or other special circumstances. If
the existing policies do not meet the insurance requirements set forth herein,
Tenant agrees to amend, supplement, or endorse the policies to do so.
2. Acceptable Insurers. 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 VI (or larger) in accordance with the
latest edition of Best's Key Rating Guide, unless otherwise approved by the City's
Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Tenant and Tenant's agents,
representatives, consultants, contractors and/or subcontractors, shall
maintain Workers' Compensation Insurance with statutory limits and
Employer's Liability Insurance with a limit of at least one million dollars
($1,000,000) each accident for bodily injury by accident and each employee
for bodily injury by disease in accordance with the laws of the State of
California.
Tenant and Tenant's agents, representatives, consultants, contractors
and/or subcontractors, shall submit to City, along with the certificate of
insurance, a Waiver of Subrogation endorsement in favor of City, its City
Lease Agreement - Heather Dickerson Insurance Agency Page E-1
Council, boards and commissions, officers, agents, volunteers and
employees for all losses that relate in any way to this Agreement .
B. General Liability Insurance. Tenant and Tenant's agents, representatives,
consultants, contractors and/or subcontractors, shall maintain commercial
general liability insurance, and if necessary excess/umbrella liability
insurance, with coverage at least as broad as provided by Insurance
Services Office form CG 00 01, in an amount not less than two million
dollars ($2,000,000) per occurrence, four million dollars ($2,000,000)
general aggregate. The policy shall cover liability arising from bodily injury,
property damage, personal and advertising injury, and liability assumed
under an insured contract (including the tort liability of another assumed in
a business contract) with no endorsement or modification limiting the scope
of coverage for liability assumed under a contract. Contractors, consultants
and/or subcontractors shall provide coverage with a format at least as broad
as provided by Insurance Services Office form CG 20 38 04 13.
C. Automobile Liability Insurance. Tenant and Tenant's consultants,
contractors and/or subcontractors shall maintain automobile insurance
covering bodily injury and property damage for all activities of Tenant or all
activities of Tenant's consultants, contractors and/or subcontractors arising
out of or in connection with work to be performed on the Premises, including
coverage for any owned, hired, non -owned or rented vehicles, in an amount
not less than one million dollars ($1,000,000) combined single limit each
accident.
D. Builder's Risk Insurance. During construction, Tenant shall require that
Tenant's construction contractors and subcontractors maintain Builders
Risk insurance or an installation floater as directed by City, covering
damages to the work for "all risk" or special causes of loss form with limits
equal to one hundred percent (100%) of the completed value of the work,
with coverage to continue until final acceptance of the work by Tenant and
City. City shall be included as an insured on such policy, and Tenant shall
provide City with a copy of the policy.
E. Contractors Pollution Legal Liability or Pollution Legal Liability insurance
including onsite and offsite coverage for bodily injury (including death and
mental anguish), property damage, non -owned disposal site liability,
defense costs, cleanup costs, and pollution conditions that arise from or in
connection with the transportation (including loading and unloading) by or
on behalf of Tenant, of any waste or waste materials off or away from the
project site. Coverage shall be provided for both sudden and accidental
and gradual and continuous pollution events with limits no less than two
Lease Agreement - Heather Dickerson Insurance Agency Page E-2
million dollars ($2,000,000) each loss and in the aggregate. The policy shall
not exclude any hazardous materials for which there is exposure.
F. Fire and Extended Coverage. Tenant shall maintain fire and extended
coverage insurance, together with insurance against vandalism, theft and
malicious mischief, on the Tenant's improvements and fixtures, alterations,
trade fixtures, signs, equipment, personal property, inventory, and all other
Alterations on or upon the Premises from loss or damage to the extent of
their full replacement value.
G. Loss of Rent. Tenant shall maintain loss of rent insurance insuring that the
Rent will be paid to City for a period up to six (6) months if the Premises are
destroyed or rendered unusable or inaccessible for commercial purposes
by a risk insured under a special form property coverage policy including
vandalism and malicious mischief endorsements.
H. Excess/Umbrella Liability Insurance shall be "following form" of the
underlying policy coverage, terms, conditions, and provisions and shall
meet all the insurance requirements stated in this Agreement, including, but
not limited to the additional insured, primary & non-contributory and waiver
of subrogation insurance requirements stated herein. No insurance policies
or self-insurance maintained by the City, whether primary, reinsurance or
excess, and which also apply to a loss covered hereunder, shall be called
upon to contribute to a loss until Tenant's primary and excess/umbrella
liability policies are exhausted.
4. Endorsements: Policies shall contain or be endorsed to contain the following
provisions:
A. Waiver of Subrogation. All insurance policies maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its City Council, boards and commissions, officers, agents, volunteers,
employees or shall specifically allow Tenant or others providing insurance
evidence in compliance with these requirements to waive their right of
recovery prior to a loss. Tenant hereby waives its own right of recovery
against City, and shall require similar written express waivers from each of
its consultants, contractors or subcontractors.
B. Additional Insured Status. The City, its City Council, boards and
commissions, officers, agents, volunteers, employees are to be covered as
an additional insured under all policies with respect to liability arising out of
Tenant's activities related to this Agreement and with respect to use or
occupancy of the Premises. City, its City Council, boards and commissions,
Lease Agreement - Heather Dickerson Insurance Agency Page E-3
officers, agents, volunteers, employees shall be named as an additional
insured on any of Tenant's contractor's and subcontractor's policies.
C. Primary and Non -Contributory. Policies shall be considered primary
insurance as respects to City, its City Council, boards and commissions,
officers, agents, volunteers, employees as respects to all claims, losses, or
liability arising directly or indirectly from Tenant's operations. Any insurance
maintained by City, including any self -insured retention City may have, shall
be considered excess insurance only and not contributory with the
insurance provided hereunder.
D. Liability Insurance. Liability insurance shall act for each insured and
additional insured as though a separate policy had been written for each,
except with respect to the limits of liability of the insuring company.
E. Reporting Provisions. Any failure to comply with reporting provisions of the
policies shall not affect coverage provided to City of City, its City Council,
boards and commissions, officers, agents, volunteers, employees .
F. Notice of Cancellation. The insurance required by this Agreement shall not
be suspended, voided, canceled, or reduced in coverage or in limits except
after thirty (30) calendar days (ten (10) calendar days' written notice of non-
payment of premium) written notice has been received by City. It is Tenant's
obligation to ensure that provisions for such notice have been established.
G. Loss Payee. Losses payable under the policy shall be paid to the City as
its interests may appear.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. General Obligations. In the event City determines that (i) the Tenant's
activities on the Property creates an increased or decreased risk of loss to
the City, (ii) greater insurance coverage is required due to the passage of
time, or (iii) changes in the industry require different coverage be obtained,
Tenant agrees that the minimum limits of any insurance policy required to
be obtained by Tenant or Tenant's consultants, contractors or
subcontractors, may be changed accordingly upon receipt of written notice
from City. With respect to changes in insurance requirements that are
available from Tenant's then -existing insurance carrier, Tenant shall deposit
certificates evidencing acceptable insurance policies with City incorporating
such changes within thirty (30) calendar days of receipt of such notice. With
respect to changes in insurance requirements that are not available from
Tenant's then- existing insurance carrier, Tenant shall deposit certificates
Lease Agreement - Heather Dickerson Insurance Agency Page E-4
evidencing acceptable insurance policies with City, incorporating such
changes, within ninety (90) calendar days of receipt of such notice.
B. Use of Premises. Tenant agrees not to use the Premises in any manner,
even if use is for purposes stated herein, that will result in the cancellation
of any insurance City may have on the Premises or on adjacent premises,
or that will cause cancellation of any other insurance coverage for the
Premises or adjoining premises. Tenant further agrees not to keep on the
Premises or permit to be kept, used, or sold thereon, anything prohibited by
any fire or other insurance policy covering the Premises. Tenant shall, at
its sole expense, comply with all reasonable requirements for maintaining
fire and other insurance coverage on the Premises.
C. Evidence of Insurance. All policies, endorsements, certificates, and/or
binders shall be subject to approval by the City as to form and content.
These requirements are subject to amendment or waiver only if approved
in writing by the City. The City reserves the right to require complete,
certified copies of all required insurance policies, including endorsements
required by these specifications, at any time. The certificates and
endorsements for each insurance policy shall be signed by a person
authorized by that insurer to bind coverage on its behalf. At least fifteen (15)
days prior to the expiration of any such policy, evidence of insurance
showing that such insurance coverage has been renewed or extended shall
be filed with the City. If such coverage is cancelled or reduced, Tenant shall,
within ten (10) days after receipt of written notice of such cancellation or
reduction of coverage, file with the City evidence of insurance showing that
the required insurance has been reinstated or has been provided through
another insurance company or companies.
D. Self -Insured Retentions. Any self -insured retentions must be declared to
and approved by City. City reserves the right to require that self -insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
E. Contractual Liability. The coverage provided shall apply to the obligations
assumed by Lessee under the indemnity provisions of this Agreement.
F. Reporting Requirements. Tenant shall give City prompt and timely notice of
any claim made or suit instituted arising out of or resulting from Tenant or
Tenant's agents, representatives, consultants, contractors or
subcontractors' performance under this Agreement.
Lease Agreement - Heather Dickerson Insurance Agency Page E-5
G. Requirements Not Limiting. If Tenant, Tenant's consultants, contractors,
and subcontractors maintains higher limits than the minimums shown
above, the City requires and shall be entitled to coverage for the higher
limits maintained by the tenant. Any available insurance proceeds in excess
of the specified minimum limits of insurance and coverage shall be available
to the City.
H. Claims Made Policies. If coverage is written on a claims -made basis, the
retroactive date of such insurance and all subsequent insurance shall
coincide or precede the effective date of Tenant's initial Agreement with the
City and continuous coverage shall be maintained, or an extended reporting
period shall be exercised for a period of at least ten (10) years from
termination or expiration of this Agreement.
Insurance. Tenant and Tenant's consultants, contractors and/or
subcontractors shall be subject to the insurance requirements contained
herein unless otherwise specified in the provisions above or written
approval is granted by the City. Tenant shall verify that all consultants,
contractors and/or subcontractors maintain insurance meeting all the
requirements stated herein, and Tenant shall ensure that City is an
additional insured on insurance required from contractors, consultants
and/or subcontractors. All required insurance shall be in force on the
Effective Date, and shall be maintained continuously in force throughout the
term of this Agreement. In addition, the cost of all required insurance shall
be borne by Tenant or by Tenant's consultants, contractors or
subcontractors. Tenant shall provide certificates of insurance, with original
endorsements as required above, to City as evidence of the insurance
coverage required herein. Insurance certificates must be approved by City
prior to commencement of work or issuance of any permit. Current
certification of insurance shall be kept on file with City at all times during the
term of this Agreement.
J. Failure to Maintain Insurance. If Tenant or Tenant's consultants, contractors
or subcontractors fail or refuse to maintain insurance as required in this
Agreement, or fail to provide proof of insurance, City has the right to declare
this Agreement in default without further notice to Tenant, and City shall be
entitled to exercise all available remedies.
Lease Agreement - Heather Dickerson Insurance Agency Page E-6
`` 2 320 P+ 57 ® V
4 Search s1= Insured
Insured Name
Name: Heather Dickerson Insurance
Heather Dickerson Insurance Agency (FV1 Agency n
I Account Number: FV00001421
Heather Dickerson Insurance Agency Address: P.O. Box: 3121, Newport Beach,
CA, USA, 92659
Active Records Only
Status: Currently in Compliance.
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Address 1:
P.O. Box:
829 Harbor Island Drive, #D-1
3121
Address 2:
City:
Newport
Newport Beach
Beach
I Rtnta•
r A
('A
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Contract Information
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Description of Services. -
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92659
USA
Lease
Agreement
for BYB,
Suite D-1
92660
USA
Contract End Date:
Contract Expiration Date:
Safety Form II:
Contact Name: Debbie Misc:
Wu rtz
Phone Number: 9099871314 Alt Phone Number:
Fax Number: 9099417701
E-Mail Address: debbie.hdickerson@farmersagency.com
Approval Date:
Rush: No
Contract on File: No
Certificate Received: Yes
Indemnification Agreement: No
Tax Id:
This Account created by g16 on 08/11/2025.