HomeMy WebLinkAboutC-8427-1 - Harbor Island Drive, 829 - Lease (Tenant 3) "Balboa Yacht Basin"l
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AMENDMENT NO. TWO TO
CQ
LEASE AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND
MARITIMO MARKETING AMERICAS, INC.
THIS AMENDMENT NO. TWO TSE AGREEMENT ("Amendment No. Two")
is made and entered into as of J,5 -a 2022 ("Effective Date"), by and between
the CITY OF NEWPORT BEACH, a California municipal corporation and charter city
("Lessor" or "City"), and MARITIMO MARKETING AMERICAS, INC., a Florida profit
corporation ("Tenant"), individually referred to "Party" or collectively "Parties".
RECITALS
A. On December 1, 2016, City and Seacoast of Channel islands, LLC, a California
limited liability company, entered into a Lease Agreement ("Agreement"), as
evidenced by that certain Memorandum of Lease recorded on February 22, 2017,
as Instrument No. 2017000075939 in the Official Records of Orange County
("Official Records"). The Agreement was amended pursuant to that certain
Amendment No. One to the Lease Agreement executed on April 6, 2021.
B. City consented to the assignment of the Agreement to Tenant, as evidenced by
that certain Consent to Assignment of Lease recorded on May 4, 2021 as
Instrument No. 2021000297293 in the Official Records, and that certain
Memorandum of Assignment of Lease and Amendment to Lease Memorandum
recorded on May 4, 2021 as Instrument No. 2021000297953 in the Official
Records.
C. The Parties desire to enter into this Amendment No. Two to amend Section 3
(Term) to provide for early termination, Section 4 (Rent) to provide for pro -rated
rent, and Section 22 (Notice) of the Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
Parties as follows:
1. TERM
Section 3 of the Agreement is amended and replaced in its entirety as follows:
"3. TERM
3.1 Initial Term. The "Initial Term" of this Agreement shall be five
(5) years from the Effective Date and shall expire on December 1, 2021,
unless extended as provided in Section 3.2 below or terminated in
accordance with the other provisions of this Agreement.
3.2 Option to Extend. Provided Tenant is not then in default
beyond applicable notice and cure periods, and upon approval of City,
Tenant may extend the term of this Agreement for one (1) additional term
of five (5) years ("Option Term") commencing on Expiration of the Initial
Term, on the same terms and conditions as contained in this Agreement.
Tenant shall exercise the extension option by giving City written notice of
its intention to do so on or before the Expiration of the Initial Term. If
exercised, the Option Term shall expire on December 1, 2026.
3.3. Option for Early Termination. On or after December 1, 2024,
Tenant may terminate this Agreement ("Early Termination"), however,
Tenant shall first provide City written notice of its intent to terminate at least
one hundred eighty (180) Days in advance and Tenant must not then be in
default beyond the applicable notice and cure period. If Tenant meets all
lease termination obligations as stated in this subsection, then City will
provide written approval of the lease termination within thirty (30) Days of
receipt of Tenant's notice of intent to terminate.
3.4. Terms of Lease. the "Term" is defined as the Initial Term and,
if exercised, the Option Term.
3.5. Hold Over. Should Tenant, upon City's written consent, hold
over and continue in possession of the Premises after Expiration of the
Initial Term or the Option Term, Tenant's continued occupancy of the
Premises shall be considered a month-to-month tenancy subject to
termination by either Party upon thirty (30) Days advance notice and shall
be subject to all the terms and conditions of this Agreement, except the
provisions of Section 3.1, 3.2 and 3.3.
3.6. Redevelopment of Property. Should City redevelop the
Property or Premises during the Term of the Agreement, or any extensions
thereof, which will materially interfere with Tenant's ability to occupy the
Premises, City shall provide Tenant with at least one hundred eighty (180)
Days prior written notice of termination of this Agreement."
2. RENT
Section 4.7 shall be added to the Agreement as follows:
"4.7. Prorated Rent. Rent, including any adjustments thereof, shall
be due and payable up to the actual date of Termination, and may be
prorated, as applicable, for any partial month in accordance with the actual
number of days in that month."
3. NOTICES
Section 22 (Notices) of the Agreement is hereby amended and replaced in its
entirety as follows:
"22. NOTICES
Maritimo Marketing Americas, Inc. Page 2
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) Days after deposit into the United States registered mail, postage
prepaid, by registered or certified mail, return receipt requested or upon delivery if
personally served, addressed as follows:
If to City: City of Newport Beach
Attention: Real Property Administrator
100 Civic Center Drive
Newport Beach, CA 92660
If to Tenant: Maritimo Marketing Americas, Inc.
1866 Ottawa Beach Road, Suite M
Holland, MI 49424
Either Party may, by written notice to the other Party hereto, specify
a different address for notice purposes or add one (1) additional address for
notice purposes."
4. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
5. COUNTERPARTS
The Parties may execute this Amendment in multiple counterparts, each of which
constitutes an original, and all of which, collectively, constitute only one Amendment.
[SIGNATURES ON NEXT PAGE]
Maritimo Marketing Americas, Inc. Page 3
IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: Z ��
By: 'Y'
ar C. H
p
C' Attorney
ATTEST:
Date: V115 21
By:
Z_/f4; z � I—
Leilanil.V6wn
City Clerk
LESSOR:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: y-13- Z02.Z.
By:
Gr e K. Leung
y Manager
LESSEE: MARITIMO MARKETING
AMERICAS, INC., a Florida profit
corporation
Date:
Signed in Counterpart
Garth Corbitt
Chief Executive Officer
Date:
Signed in Counterpart
Dave Northrop
Secretary
Maritimo Marketing Americas, Inc. Page 4
IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTO EY'S OFFICE
Date:_ 2-116 Z 2_
BW'�trp
H
ey
ATTEST:
Date:�ZI Z Z
By:
Leilani I. Br n
City Clerk
LESSOR: CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
Grace K. Leung
City Manager
LESSEE: MARITIMO MARKETING
AMERICAS, INC., a Florida profit
corpor tion
By:
_ /' /'vzW -
Garth C'orbitY
Chief Executive Officer
IBM
By:
C
C
Maritimo Marketing Americas, Inc. Page 4
AMENDMENT NO. ONE TO
LEASE AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND
SEACOAST OF CHANNEL ISLANDS, LLC
THIS AMENDMENT NO. ONE TO LEAS AGREEMENT ("Amendment No. One")
is made and entered into as of this LA day of L- , 2021 ("Effective Date"), by and
between the CITY OF NEWPORT BEACH, a California municipal corporation and charter
city ("Lessor" or "City"), and SEACOAST OF CHANNEL ISLANDS, LLC, a California
limited liability company, ("Tenant"), individually referred to "Party" or collectively
"Parties".
RECITALS
A. On December 1, 2016, City and Tenant entered into a Lease Agreement
("Agreement"), as evidenced by a Memorandum of Lease recorded on February
22, 2017, as Instrument No. 2017000075939 in the Official Records of Orange
County.
B. The parties desire to enter into this Amendment No. One to amend Section 4 of
the Agreement, adding subsection 4.6.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. RENT
Section 4 of the Agreement is amended to add the following subsection 4.6:
4.6 Advance Payment of Rent.
Upon any delegation, assignment, or encumbrance of Tenant's
interest in this Agreement approved by City pursuant to Section 14.1 of the
Agreement, City may, in its sole discretion, require Tenant's proposed
transferee to provide advance payment of Rent ("Advancement") in an
amount equivalent to two (2) months' (first and last) payment of Rent at the
monthly rental rate as of the date the transfer is approved by City. Such
Advancement shall be due and payable to City upon such transferee's
execution of the necessary consent to transfer documents.
2. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
rSIGNATURES ON NEXT PAGE1
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 31/5 /2- 1
A-SroA C. Harp
City Attorney
ATTEST:
Date:
Leilani I. Brown
City Clerk
LESSOR: CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
Grace K. Leung
City Manager
LESSEE: SEACOAST OF CHANNEL
ISLANDS, LLC, a California limited liability
company
Date: � (c 20 �- ►
By:
Ro rt Nahm
Manager
[END OF SIGNATURES]
Seacoast of Channel Islands, LLC Page 2
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
w
1
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: f r ( )r/ Z I
By:
Aa on C. Harp
City Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
�Jq(.IFOt%
LESSOR: CITY OF NEWPORT BEACH,
a California municipal corporation
Date: APR 2 0 2021
By: 1—
G
K. Leung
Manager
LESSEE: SEACOAST OF CHANNEL
ISLANDS, LLC, a California limited liability
company
Date:
Signed in Counterpart
By:
Robert Nahm
Manager
[END OF SIGNATURES]
Seacoast of Channel Islands, LLC Page 2
AMENDMENT NO. ONE TO
LEASE AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND
SEACOAST OF CHANNEL ISLANDS, LLC
THIS AMENDMENT NO. ONE TO LEAS AGREEMENT ("Amendment No. One")
is made and entered into as of this _,A day of L- , 2021 ("Effective Date"), by and
between the CITY OF NEWPORT BEACH, a California municipal corporation and charter
city ("Lessor" or "City"), and SEACOAST OF CHANNEL ISLANDS, LLC, a California
limited liability company, ("Tenant"), individually referred to "Party" or collectively
"Parties".
RECITALS
A. On December 1, 2016, City and Tenant entered into a Lease Agreement
("Agreement"), as evidenced by a Memorandum of Lease recorded on February
22, 2017, as Instrument No. 2017000075939 in the Official Records of Orange
County.
B. The parties desire to enter into this Amendment No. One to amend Section 4 of
the Agreement, adding subsection 4.6.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows.-
1.
ollows:1. RENT
Section 4 of the Agreement is amended to add the following subsection 4.6:
4.6 Advance Payment of Rent.
Upon any delegation, assignment, or encumbrance of Tenant's
interest in this Agreement approved by City pursuant to Section 14.1 of the
Agreement, City may, in its sole discretion, require Tenant's proposed
transferee to provide advance payment of Rent ("Advancement") in an
amount equivalent to two (2) months' (first and last) payment of Rent at the
monthly rental rate as of the date the transfer is approved by City. Such
Advancement shall be due and payable to City upon such transferee's
execution of the necessary consent to transfer documents.
2. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
[SIGNATURES ON NEXT PAGE]
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTO EY'S OFFICE
Date: r ( )'l 2 1
By: 14o-. C �--_
Aa on C. Harp
City Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
LESSOR: CITY OF NEWPORT BEACH,
a California municipal corporation
Date: APR 2 0 2021
By:
Gf6 K. Leung
Manager
LESSEE: SEACOAST OF CHANNEL
ISLANDS, LLC, a California limited liability
company
Date:
Signed in Counterpart
By:
Robert Nahm
Manager
[END OF SIGNATURES]
Seacoast of Channel Islands, LLC Page 2
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 3 / S 2-
By: t"N-
A&0 C. Harp
City Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
LESSOR: CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
in
Grace K. Leung
City Manager
LESSEE: SEACOAST OF CHANNEL
ISLANDS, LLC, a California limited liability
company
Date:
;Y7
Ro rt Nahm
Manager
[END OF SIGNATURES]
Seacoast of Channel Islands, LLC Page 2
LEASE AGREEMENT
by and between
CITY OF NEWPORT BEACH,
a California municipal corporation and charter city
"City"
and
SEACOAST OF CHANNEL ISLANDS, LLC
a California limited liability company
(D.B.A. Seacoast -Heritage)
"Tenant"
Dated as of December 1. 2016
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Agreement') is made and entered into as of the
1st day of December, 2016 ("Effective Date"), by and between the CITY OF NEWPORT
BEACH, a municipal corporation and charter city ("City") and SEACOAST OF
CHANNEL ISLANDS, LLC (doing business as SEACOAST -HERITAGE), a California
limited liability company ("Tenant'). City and Tenant are at times individually referred to
as "Party" and collectively as "Parties' herein.
RECITALS
A. City is the owner of certain harbor frontage and tidelands, together with
certain abutting upland property 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 six hundred ten (610) square foot office, which is depicted on Exhibit "B" attached
hereto and incorporated herein by reference ("Premises').
B. On August 1, 2001, City entered into a lease with Heritage Yacht Sales,
Inc., a California corporation ("Heritage") for the Premises ("2001 Lease").
C. On August 1, 2005, the City consented to the assignment of the 2001
Lease from Heritage to Anthony B. Duni and Ann M. Duni ("Dunis"), and the Dunis
agreed to be bound by the terms and conditions of the 2001 Lease. On August 1, 2005,
City and Dunis also amended the 2001 Lease to reflect new terms and conditions.
D. On September 8, 2016, a Consent to Assignment of Leasehold Interest
was recorded as Instrument No. 2016000431286, whereby the 2001 Lease was
assigned from Dunis to Tenant.
Seacoast of Channel Islands, LLC (DBA Seacoast -Heritage) Page 2
E. City and Tenant desire to enter into this Agreement to allow Tenant to
continue to operate a yacht sales brokerage office at the Premises.
F. Pursuant to City Council Policy F-7, City sought the assistance of an
appraiser to determine the maximum or fair market value rent for the Premises and City
sought revenue equivalent to the fair market value of the highest and best use of the
Premises by conducting an open bid process to insure the highest financial return.
G. 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.
H. 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:
1.
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.
Seacoast of Channel Islands, LLC (DBA Seacoast -Heritage) Page 3
(c) Damage — an injury to or death of any Person, or the damage
destruction, or loss of property caused by another Person's acts or
omissions.
(d) Damages — monetary compensation or indemnity that can be
recovered in the courts by any Person who has suffered Damage.
(e) Days — means calendar days, subject to extension for any weekend
or day when banks are not open in California if a deadline occurs
on any such Day.
(f) 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.
(g) Good Condition — the clean, safe, physical condition of the
Premises and each portion of the Premises in compliance with all
applicable governmental laws and regulations.
(h) Hazardous Materials — shall mean any substance whose nature
and/or quantity of existence, storage, use, manufacture, disposal or
effect, renders such substance and/or the user thereof and/or the
owner of real property affected thereby, subject to or controlled by
federal, state or local law, or regulation because such substance is
actually or potentially injurious or a threat to public health or welfare
or to the environment; or because such substance under federal,
state or local law requires remediation, removal, cleanup or other
action to bring such substance any areas impacted into
conformance with applicable law.
(i) Hold Harmless — to protect, defend, indemnify and hold harmless
the other party (including the employees, agents and other
potentially liable parties) from all liability, losses, penalties,
Damage, costs, attorney fees, expenses, causes of action, claims,
Seacoast of Channel Islands, LLC (DBA Seacoast -Heritage) Page 4
or judgments arising out of or related to any Damage to any Person
or property.
Q) 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.
(k) Lease Year — refers to successive twelve (12) month periods,
commencing with the Effective Date of this Agreement.
(1) Maintenance or Maintain — repairs replacement, maintenance,
repainting, and cleaning.
(m) 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.
(n) Provision — any term, covenant, condition, or clause in this
Agreement that defines, establishes, or limits, the performance
required or permitted by either Party.
(o) Rent — Rent, late payment penalties, interest, taxes, and other
similar monetary amounts and charges payable by Tenant under
the Provisions of this Agreement.
(p) Rent Commencement Date — the date Tenant begins paying Rent,
commencing on the Effective Date.
(q) 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.
Seacoast of Channel Islands, LLC (DBA Seacoast -Heritage) Page 5
(r) Termination — the termination of this Agreement, for any reason,
prior to Expiration.
2. LEASE OF PREMISES
City leases the Premises to Tenant and Tenant leases the Premises from City for
the Term and on the conditions contained in this Agreement. Tenant has been
occupying the Premises and is familiar with its condition. Thus, Tenant agrees to accept
the Premises in an "as is" condition as tendered by City. Tenant agrees that no
representations with respect to the condition or improvements of the Premises have
been made by City except as specifically set forth in this Agreement. This Agreement
covers rental of the Premises only, and does not include rental of a boat slip at the
Property. Tenant and City shall enter into a separate agreement for the rental of a boat
slip, if both Parties elect to do so.
3. TERM
3.1. Initial Term. The "Initial Term" of this Agreement shall be five (5) years
from the Effective Date and shall expire on December 1, 2021, unless extended as
provided in Section 3.2 below or terminated in accordance with the other provisions of
this Agreement.
3.2. Option to Extend. Provided Tenant is not then in default beyond applicable
notice and cure periods, and upon approval of the City, Tenant may extend the term of
this Agreement for one (1) additional term of five (5) years ("Option Term") commencing
on Expiration of the Initial Term, on the same terms and conditions as contained in this
Agreement. Tenant shall exercise the extension option by giving City written notice of its
intention to do so on or before one hundred twenty (120) Days prior to the Expiration of
the Initial Term. If exercised, the Option Term shall expire on December 1, 2026.
3.3. Terms of Lease. The "Term" is defined as the Initial Term and, if
exercised, the Option Term.
3.4. Hold Over. Should Tenant, upon City's written consent, hold over and
continue in possession of the Premises after Expiration of the Initial Term or the Option
Seacoast of Channel Islands, LLC (DBA Seacoast -Heritage) Page 6
Term, Tenant's continued occupancy of the Premises shall be considered a month-to-
month tenancy subject to termination by either Party upon thirty (30) Days advance
notice and shall be subject to all the terms and conditions of this Agreement, except the
provisions of Sections 3.1 and 3.2.
3.5. Redevelopment of Property. Should City redevelop the Property or
Premises during the Term of the Agreement, or any extensions thereof, which will
materially interfere with Tenant's ability to occupy the Premises, City shall provide
Tenant with at least one hundred eighty (180) Days prior written notice of termination of
this Agreement.
4. RENT
4.1. Tenant agrees to pay City for the use and occupancy of the Premises the
sum of One Thousand Eight Hundred Thirty Dollars and 00/100 ($1,830.00) 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.
4.2. Any payment due from Tenant to City under the provisions of this
Agreement which is not paid within five (5) 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.
4.3. Periodic Rental Adjustment. Rent may 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 may be adjusted if the Consumer Price
Index for the Los Angeles — Orange County — Riverside 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
Seacoast of Channel Islands, LLC (DBA Seacoast -Heritage) Page 7
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 4.3
at least thirty (30) Days prior to the effective date of such adjustment.
4.4. 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.
4.5. Additional Rent. Any provision in this Agreement that requires Tenant to
pay additional amounts classified as "Additional Rent" shall be paid within ten (10) 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.
5. BUSINESS PURPOSES AND USE OF PREMISES
5.1 "Approved Use". The Premises are to be used by Tenant:
(a) For the principal operation of a yacht sales brokerage office; and
Seacoast of Channel Islands, LLC (DBA Seacoast -Heritage) Page 8
(b) Tenant may not use the Premises for any other use except with
prior written consent of the City.
5.2 Operation of Premises. Tenant shall operate and manage the Premises in
a manner comparable to other high quality businesses providing similar yacht sales
brokerage 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.
5.3 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.
5.4 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.
5.5. 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.
Seacoast of Channel Islands, LLC (DBA Seacoast -Heritage) Page 9
5.6 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, which will not be unreasonably
withheld, conditioned on the condition that such event occurs once during the Term.
5.7 Parking. City grants a non-exclusive right to the use of parking area(s) on
the Property as depicted 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.
5.8 Restrooms. City grants a non-exclusive right to the use of the common
restrooms on the Property as depicted in Exhibit "A" attached hereto and incorporated
herein by reference. Tenant shall be provided one (1) key to the restrooms.
5.8 Balboa Yacht Basin Rules and Regulations. Tenant shall comply with the
Balboa Yacht Basin Rules and Regulations attached hereto and incorporated herein as
Exhibit "C", which may be amended from time to time.
6. TAXES, LICENSES AND OTHER OBLIGATIONS
6.1 Payment of Taxes. Tenant shall pay directly to the appropriate taxing
authorities all taxes applicable to this Agreement, fixtures and Tenant's personal
property on the Premises, that are levied or assessed against Tenant during the Term.
Taxes shall be paid before delinquency and before any fine, interest or penalty is due or
imposed by operation of law. Tenant shall, upon request, promptly furnish to the City
satisfactory evidence of payment. City hereby gives notice to Tenant, pursuant to
Revenue and Tax Code Section 107.6 that this Agreement may create a possessory
interest that is the subject of property taxes levied on such interest, the payment of
which taxes shall be the sole obligation of Tenant. Tenant shall advise in writing any
subtenant, licensee, or third party using the Premises of the requirements of Section
107.6. Tenant shall pay, before delinquency all taxes, assessments, license fees and
other charges ("Taxes") that are levied or assessed against Tenant's interest in the
Premises or any personal property installed on the Premises.
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6.2 Payment of Obligations. Tenant shall promptly pay, when due, any and all
bills, debts, liabilities and obligations incurred by or charged to Tenant in connection
with Tenant's occupation and use of the Premises.
6.3 Challenge to Taxes. Tenant shall have the right in good faith, at its sole
cost and expense, to contest the amount or legality of any Taxes including the right to
apply for reduction. If Tenant seeks a reduction or contests such Taxes, Tenant's failure
to pay the Taxes shall not constitute a default as long as Tenant complies with the
provisions of this Section. City shall not be required to join in any proceeding or contest
brought by Tenant unless the provisions of any Law require that the proceeding or
contest be brought by or in the name of City or any owner of the Premises. In that case,
City shall join in the proceeding or contest or permit it to be brought in City's name and if
requested by Tenant, City shall execute any instrument or document necessary or
advisable in connection with the proceeding or contest as long as City is not required to
bear any cost nor be liable for payment of such Taxes. Tenant, on final determination of
the proceeding or contest, shall immediately pay such disputed tax and also discharge
any decision or judgment rendered, together with all related costs, charges, interest and
penalties and provide City with a copy of Tenant's payment and the underlying bill for
such Taxes being paid with Tenant's next Rent payment. Tenant shall indemnify,
defend and Hold Harmless the City, its council members, boards, commissions,
committees, officers, employees, Authorized Representatives, agents and volunteers
from and against any liability, claim, demand, penalty, cost or expense arising out of or
in connection with any contest by Tenant pursuant to this Section. Any such contest of
Taxes by Tenant shall be concluded (meaning that such Taxes shall be fully paid or
cancelled by the taxing authority) by Tenant within eighteen (18) months of starting such
action, or end of the Term, if earlier.
6.4 No Rent Offset. Any payments under this Section 6 shall not reduce or
offset Rent payments. City has no liability for such payments.
6.5 License. Tenant shall obtain and maintain in good standing all required
licenses and permits required for operation of the business on the Premises, including
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but not limited to a City business license as required by the Newport Beach Municipal
Code.
7. UTILITIES AND REFUSE COLLECTION
7.1 Basic Utilities. Tenant shall make all arrangements for and pay for all
utilities furnished to or used on the Premises, including, without limitation, electricity,
telephone service, cable television, and janitorial service. Tenant bears all risk of
interruption, cancellation and/or disruption of utility services on the Premises.
7.2 Refuse Collection. Refuse Collection shall occur between 7:00 a.m. and
6:00 p.m. on non -holiday weekdays.
8. ALTERATIONS TO THE PREMISES
(a) 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.
(b) Non -Structural Alterations Costing Less than $20,000. Tenant shall have
the right to make, at its sole expense, such non-structural changes,
Alterations, improvements and additions, costing less than $20,000 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 $20,000 requires the prior written consent of the City.
(c) 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.
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(d) 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.
(e) Indemnification and Insurance. Tenant shall 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 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.
(f) 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, movable decorations and the like).
However, City may elect, not less than thirty (30) Days prior to Expiration
or Termination of this Agreement, to require Tenant to remove, at Tenant's
cost, any Alterations that Tenant has made to the Premises, except those
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Alterations existing as of the Effective Date of this Agreement or approved
by City. If City requires removal of Alterations, Tenant shall, at its cost,
remove the Alterations and restore the Premises to its condition prior to
installation of such Alterations, ordinary wear and tear excepted, before
the last day of the Term, or within thirty (30) Days after notice is given,
whichever is later. Prior to Expiration or within fifteen (15) 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.
9. REPAIRS AND MAINTENANCE OF PREMISES
9.1 Maintenance and Repair by Tenant and City. Tenant agrees that it shall
maintain the Premises in Good Condition. 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. 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.
9.2 Entry by City. City and its Authorized Representatives may enter upon and
inspect the Premises at any reasonable time for Maintenance or other purposes. 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.
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10. LIENS
Tenant shall not permit to be enforced against said Premises, or any part thereof,
any mechanics', materialman's, contractors' or other liens arising from, or any claims for
damages growing out of, any work or repair or Alteration (except from the actions of
City), and Tenant shall pay or cause to be paid said liens and claims before any action
is brought to enforce the same against Tenant or the Premises, or shall adequately
indemnify City and the Premises by payment bonds acceptable to City and as provided
for by Law. Tenant agrees to Hold Harmless City and the Premises free and harmless
from all liability for any and all such liens and claims and all costs and expenses in
connection therewith. Tenant shall give City notice in writing before commencing
construction of any kind on the Premises and provide any additional Tenant insurance
required by this Agreement.
11. INDEMNITY AND EXCULPATION: INSURANCE
11.1 Exculpation of City. Except as otherwise expressly provided in this
Agreement, City 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 gross negligent, intentional or willful acts of City
or its Authorized Representatives. Except as otherwise expressly provided in this
Agreement, Tenant releases and also waives all claims against City for Damages
arising for any reason other than the gross negligent, intentional or willful acts of City or
its Authorized Representatives. City 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.
11.2 Tenant Release and Hold Harmless. Tenant releases the City and also
agrees to Hold Harmless the City, its elected or appointed officers, agents, officials,
employees, volunteers and any person or entity owning or otherwise in legal control of
the Property ("Indemnified Parties") from and against any and all claims, liability, loss,
Damage, or expenses resulting from Tenant's occupation and use of the Premises,
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specifically including, without limitation, 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
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.
Tenant's obligation pursuant to this subsection shall not extend to any claim,
loss, liability, Damages, costs or fees that are proximately caused by the sole gross
negligence, willful misconduct, or unlawful or fraudulent conduct on the part of the
Indemnified Parties.
11.3 Insurance. Tenant shall maintain insurance in the types and amounts
specified in Exhibit "D," attached hereto and incorporated herein by this reference.
12. DAMAGE OR DESTRUCTION OF PREMISES
12.1 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 notice of such election to City within sixty
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(60) 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 Premises will take more than six (6) months. Upon such termination, all
insurance proceeds applicable to reconstruction (excluding Tenant's personal property
therein) shall be paid to City and Tenant shall have no further liability or obligations
under this Agreement.
12.2 Replacement of Tenant's Propertv. 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 under Section 12.1, above, 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.
12.3 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) Days of such
casualty, to either:
(a) Terminate this Agreement by giving to Tenant written notice (which
notice shall be given, if at all, within thirty (30) Days following the
date of the casualty), in which case this Agreement shall be
terminated thirty (30) 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
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shall be abated in accordance with the procedures set forth in
Section 13, 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 12.3(b)
and City fails to commence repairs within one hundred twenty (120)
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 except solely arising under Section
12.1, above.
13. 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 and other monetary obligations 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 conduct 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 11, above.
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14. PROHIBITION AGAINST VOLUNTARY ASSIGNMENT, SUBLETTING AND
ENCUMBERING
14.1 Prohibition of Assignment. The Parties acknowledge that City is entering
into this Agreement in reliance upon the business experience and abilities of Tenant
and its principals to operate the Premises for the Approved Use. Consequently, Tenant
shall not have the right to 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 (except Tenant's Authorized Representatives) to
occupy or use all or any part of the Premises without the prior written consent of City,
which may be withheld at the sole discretion of the City unless Tenant provides 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 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
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shares, warrants or similar equity interests in Tenant traded on a national exchange or
over-the-counter markets.
14.2 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 this purpose, "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.
14.3 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.
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15. DEFAULT
15.1 Default by Tenant. The occurrence of any one 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 due hereunder within ten (10)
calendar Days after written notice from Lessor; or
(b) Any failure by Tenant to perform any of the other terms, conditions
or covenants of this Agreement to be observed or performed by
Tenant after thirty (30) Days written notice from Lessor; or
(c) Tenant becoming insolvent or filing any debtor proceedings, 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 discharged within one
hundred twenty (120) Days thereafter; or
(d) Tenant permitting the Premises to become vacant or unoccupied
for thirty (30) consecutive Days after written notice to Tenant
(except for vacancies caused by any force majeure or by
remodeling, reconstruction, alteration or repairs permitted under
this Agreement); or
(e) The appointment of a trustee or receiver to take possession of
substantially all of the assets of Tenant located at the Premises or
Tenant's interest in this Agreement or the Premises, where
possession is not restored within thirty (30) Days.
15.2 Except for the payment of Rent, if the nature of Tenant's default or breach
under this paragraph is such that more than thirty (30) Days are reasonably required for
its cure, then Tenant shall not be deemed to be in default or breach if Tenant
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commences such cure within such thirty (30) day period and diligently proceeds with
such cure to completion.
15.3 Remedies. In the event of a default or breach by Tenant and Tenant's
failure to cure such default or breach, City may at any time and with or without notice do
any or more of the following:
(a) Re-enter the Premises, remove all persons and property, and
repossess and enjoy such Premises.
(b) Terminate this Agreement and Tenant's right of possession of the
Premises. Such termination shall be effective upon City's giving
written notice and upon receipt of such notice, Tenant shall
immediately surrender possession of the Premises to City.
(c) Maintain this Lease in full force and effect and recover any rental,
royalty, or other consideration as it becomes due, without
terminating Tenant's right of possession, regardless of whether
Tenant shall have abandoned the Premises.
(d) Exercise any other right or remedy which City may have at law or
equity.
15.4 City's Right to Cure Tenant's Default. Upon continuance of any material
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 no 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 Five (5) days after
service of a written demand accompanied by supporting documentation. 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.
15.5 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
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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.
16. CONDEMNATION
16.1 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.
16.2 No Termination of Agreement. If this Agreement is not terminated under
Section 16.1, above, then this Agreement shall terminate as to the portion 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.
16.3 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
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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.
17. 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 under this Agreement.
18. 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.
19. NO CONFLICTS OF USE, HAZARDOUS MATERIALS
Tenant represents and warrants that, to the best of Tenant's knowledge: (i)
Tenant's use of the Premises does not conflict with applicable Laws; (ii) the Premises
shall not be operated in violation of any environmental laws, rules, or regulations and
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Tenant's contemplated uses will not cause any such violation; and (iii) the Premises are
free of any and all Hazardous Materials as of the date of this Agreement. In the event
that the presence of any Hazardous Material caused by Tenant is detected within the
Premises or adjacent to this Premises at any time during the Term of this Agreement
and any Option Term, all remedial or clean-up work shall be immediately performed by
Tenant at Tenant's expense to fully remediate such environmental condition so that the
Premises and such affected area(s) are promptly brought into full compliance with all
Laws. This clause and this Agreement do not restrict or limit Tenant's right to lawfully
use Hazardous Materials on the Premises, if in strict conformance with all Laws.
20. CITY'S DEFAULTS/TENANT'S REMEDIES
City shall be in Material Default if it fails to perform, or commence performance if
Tenant gives notice of nonperformance specifying the nature of and City does not cure
within thirty (30) Days or City commences performance within said thirty (30) Days
diligently completes said performance. In the event of City's Material Default, Tenant
may:
(a) Upon fifteen (15) Days' notice to City cure any such default by City and
City shall reimburse Tenant the amount of all costs and expenses incurred
by Tenant in curing the default, together with interest and expenses at the
maximum rate then allowed by law;
(b) Terminate this Agreement if City's default materially interferes with
Tenant's use of the Premises for their intended purpose and City fails to
cure such default within fifteen (15) Days after a second demand by
Tenant in which case Tenant shall have no further or continuing
obligations and City shall have no liability to Tenant; or
(c) Commence an action for specific performance and recover costs and
expense, including reasonable attorney fees if Tenant is the prevailing
party.
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21. EVENT OF BANKRUPTCY
21.1 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.
21.2 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 on and after the date of
such assignment, including the obligation to operate the business which Tenant is
required to operate under this Agreement.
22. 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) Days after deposit into the United States registered mail, 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 address as follows:
If to City: City of Newport Beach
Attention: Real Property Administrator
100 Civic Center Drive
P.O. Box 1768
Newport Beach, CA 92658
If to Tenant: Seacoast Yachts
3615 Victoria Avenue
Oxnard, CA 93035
Seacoast of Channel Islands, LLC (DBA Seacoast -Heritage) Page 26
22. SURRENDER OF PREMISES
At the Expiration or earlier Termination of this Agreement, Tenant shall surrender
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.
23. 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. In addition, all work
prepared by Tenant shall conform to applicable City, county, state and federal laws,
rules, regulations and permit requirements and be subject to approval of the City
Manager or his/her designee.
24. WAIVER
The waiver by City or Tenant of any breach of this Agreement by the other shall
not be deemed to be a waiver of any term, covenant, or condition or any subsequent
breach. The acceptance of Rent by City shall not be deemed a waiver of any breach by
Tenant other than the failure to pay the particular rent accepted.
25. PARTIAL INVALIDITY
If any term or Provision of this Agreement is declared invalid or unenforceable,
the remainder of this Agreement shall not be affected.
26. GOVERNING LAW
The laws of the State of California shall govern this Agreement and all matters
relating to it and any action brought relating to this Agreement shall be adjudicated in a
court of competent jurisdiction in the County of Orange, State of California. Neither
Seacoast of Channel Islands, LLC (DBA Seacoast -Heritage) Page 27
City's execution of this Agreement nor any consent or approval given by City in its
capacity as landlord shall affect City's powers and duties as a governmental body. Any
consent or approval Tenant is required to obtain from City pursuant to this Agreement is
in addition to any permits or approvals Tenant is required to obtain pursuant to law or
ordinance. However, City shall attempt to coordinate its procedures for giving
contractual and governmental approvals so that Tenant's requests and applications are
not unreasonable denied or delayed.
27. ENTIRE AGREEMENT: MODIFICATION
This Agreement contains the entire agreement between the Parties. No verbal
agreement or implied covenant shall be held to vary the provisions of this Agreement.
Each Party has relied on its own investigation of the Premises and examination of this
Agreement, the counsel of its own attorney or other advisors, and has a complete
understanding of the overall warranties, representations, 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 shall not be the basis for later claim that all or part of this Agreement is not
enforceable or was not understood by a Party when this Agreement was signed. No
provision of this Agreement may be amended or varied except by an agreement in
writing signed by the Parties or their respective Successors.
28. TIME IS OF THE ESSENCE
Time is of the essence with respect to the performance of every Provision of this
Agreement in which time of performance is a factor. All time deadlines are meant to be
strictly construed. A "day" means a calendar day, with extension if a deadline occurs on
a weekend or day when banks are not open in California.
29. 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
Seacoast of Channel Islands, LLC (DBA Seacoast -Heritage) Page 28
inure to the benefit of the heirs, successors, executors, administrators, assigns, and
personal representatives of the respective parties.
30. 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.
31. 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.
32. 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.
33. 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.
34. 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.
Seacoast of Channel Islands, LLC (DBA Seacoast -Heritage) Page 99
35. NO ATTORNEY'S 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.
36.
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 of that person or any characteristic listed or defined in Section 11135
of the Government Code.
37. MEMORANDUM OF LEASE AGREEMENT
A Memorandum of Lease Agreement, in a form and content similar to that
contained in Exhibit "E" shall be recorded by the parties promptly upon execution of this
Agreement. Upon execution by both parties, the Memorandum of Lease Agreement
shall be recorded against the Premises in the office of the Orange County Clerk -
Recorder, as required by Government Code Section 37393.
38. 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.
39. CALIFORNIA LABOR LAWS
It shall be the obligation of Tenant to comply with all laws, 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.
Seacoast of Channel Islands, LLC (DBA Seacoast -Heritage) Page 30
40. 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, permits, licenses or regulatory approvals, and CEQA documents. Accordingly,
Tenant covenants and agrees 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, the parties agreeing that declaratory relief, injunctive relief, mandate and
specific performance shall be Tenant's sole and exclusive judicial remedies.
41. 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.
[SIGNATURES ON NEXT PAGE]
Seacoast of Channel Islands, LLC (DBA Seacoast -Heritage) Page 31
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: I t
By: I
Aaron C. Harp V-�A,LI19f�cfl
City Attorney
ATTEST:
Date: a')2111
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: `al a,_,l
By:
Dave Ki
City Manager
TENANT: SEACOAST OF CHANNEL
ISLANDS, LLC (DBA SEACOAST -
HERITAGE), a California limited liability
company
Date:
>EW pORT
cn By: o
n Rob ahm
eK Managing Member
CFO RNP
[END OF SIGNATURES]
Attachments: Exhibit A — Property Legal Description and Depiction
Exhibit B — Premises Depiction
Exhibit C — Balboa Yacht Basin Rules and Regulations
Exhibit D — Insurance Requirements
Exhibit E — Memorandum of Lease
Seacoast of Channel Islands, LLC (DBA Seacoast -Heritage) Page 32
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.
Seacoast of Channel Islands, LLC (DBA Seacoast -Heritage) Page A-1
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EXHIBIT A-4
EXHIBIT "B"
Premises' Depiction
Seacoast of Channel Islands, LLC (DBA Seacoast -Heritage) Page B-1
EXHIBIT B-1
EXHIBIT B-2
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CEILING
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Office #3
SCALE: 1/2" = V-0"
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Newport Beach, CA WorkSpacePlans
kim@workspaceplans.com jill@workspaceplans.com
EXHIBIT "C"
Balboa Yacht Basin Rules and Regulations
Seacoast of Channel Islands, LLC (DBA Seacoast -Heritage) Page C-1
44W PO4l' BALBOA YACHT BASIN
829 Harbor Island Drive
F n Newport Beach, CA 92660
v $ (949) 673-0360
1�
91IFORt' 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
Basin Marine 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.
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.
Page 1 of 4
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.
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.
Page 2 of 4
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.
37. The City will not provide space for the storage of dinghies or miscellaneous Vessel
Owner equipment on Basin property.
Page 3 of 4
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 day's notice.
Dave New
Balboa Yacht Basin Manager
Davel naBasinMarine.com
(949) 673-0360
Revised February 4, 2013
Page 4 of 4
EXHIBIT "D"
Insurance Requirements
Without limiting Tenant's indemnification of City, Tenant shall 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.
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 VII (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, statutory limits, and
Employer's Liability Insurance with limits of at least one million dollars
($1,000,000) each accident for bodily injury by accident and each
employee for bodily injury by disease in accordance with the laws of the
State of California, Section 3700 of the Labor Code.
Seacoast of Channel Islands, LLC (DBA Seacoast -Heritage) Page D-1
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
officers, agents, employees and volunteers.
B. General Liability Insurance. Tenant and Tenant's agents, representatives,
consultants, contractors and/or subcontractors, shall maintain commercial
general liability insurance, and if necessary 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 one million dollars and 00/100
($1,000,000) per occurrence, two million dollars and 00/100 ($2,000,000)
general aggregate. The policy shall cover liability arising from premises,
operations, personal and advertising injury, and liability assumed under an
insured contract (including the tort liability of another assumed in a
business contract) with no endorsement or modification limiting the scope
of coverage for liability assumed under a contract.
i. Products Liability Coverage. Tenant shall maintain products liability
insurance covering bodily injury and property damage for all
activities of the Tenant arising out of or in connection with products
or services sold by the Tenant under this Agreement, in an amount
not less than one million dollars and 00/100 ($1,000,000) combined
single limit for each occurrence.
C. Fire and Extended Coverage. Tenant shall maintain fire and extended
coverage insurance, together with insurance against vandalism, theft and
malicious mischief, on the improvements and fixtures, alterations, trade
fixtures, signs, equipment, personal property and inventory on or upon the
Premises from loss or damage to the extent of their full replacement value.
D. 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
Seacoast of Channel Islands, LLC (DBA Seacoast -Heritage) Page D-2
purposes by a risk insured under a special form property coverage policy
including vandalism and malicious mischief endorsements.
E. Automobile Liability Insurance. Tenant and Tenant's consultants,
contractors and/or subcontractors shall maintain automobile insurance at
least as broad as Insurance Services Office form CA 00 01 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 and 00/100 ($1,000,000)
combined single limit each accident. On -hook insurance in an amount not
less than one million dollars and 00/100 ($1,000,000).
F. 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.
G. Pollution Liability Insurance. Tenant shall require that Tenant's
construction contractors and subcontractors maintain a policy providing
contractor's pollution liability ("CPL") coverage with a total limit of liability
of no less than one million dollars and 00/100 ($1,000,000) per loss and in
the aggregate per policy period dedicated to this project. The CPL shall
be obtained on an occurrence basis for a policy term inclusive of the entire
period of construction. If all or any portion of CPL coverage is available
only on a claims -made basis, then a 10 -year extended reporting period
shall also be purchased. The CPL policy shall include coverage for
cleanup costs, third -party bodily injury and property damage, including
Seacoast of Channel Islands, LLC (DBA Seacoast -Heritage) Page D-3
loss of use of damaged property or of property that has not been
physically injured or destroyed, resulting from pollution conditions caused
by contracting operations. Coverage as required in this paragraph shall
apply to sudden and non -sudden pollution conditions resulting from the
escape or release of smoke, vapors, fumes, acids, alkalis, toxic chemicals,
liquids, or gases, waste materials, or other irritants, contaminants, or
pollutants. The CPL shall also provide coverage for transportation and off-
site disposal of materials. The policy shall not contain any provision or
exclusion (including any so-called "insured versus insured" exclusion or
"cross -liability" exclusion) the effect of which would be to prevent, bar, or
otherwise preclude any insured or additional insured under the policy from
making a claim which would otherwise be covered by such policy on the
grounds that the claim is brought by an insured or additional insured
against an insured or additional insured under the policy.
4. Endorsements: Policies shall contain or be endorsed to contain the following
provisions:
A. Additional Insured Status. City, its elected or appointed officers, officials,
employees, agents and volunteers are to be covered as an additional
insured under all general liability and pollution liability 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 elected or
appointed officers, officials, employees, agents and volunteers shall be
named as an additional insured on any of Tenant's contractor's and
subcontractor's policies.
B. Primary and Non Contributory. Policies shall be considered primary
insurance as respects to City, its elected or appointed officers, officials,
employees, agents and volunteers 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
Seacoast of Channel Islands, LLC (DBA Seacoast -Heritage) Page D-4
may have, shall be considered excess insurance only and not contributory
with the insurance provided hereunder.
C. 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.
D. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation
against City, its elected or appointed officers, agents, officials, employees
and volunteers 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.
E. Reporting Provisions. Any failure to comply with reporting provisions of
the policies shall not affect coverage provided to City, its elected or
appointed officers, officials, employees, agents or volunteers.
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. City shall be included a loss payee under the commercial
property insurance.
5. Additional Requirements.
A. 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
Seacoast of Channel Islands, LLC (DBA Seacoast -Heritage) Page D-5
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
evidencing acceptable insurance policies with City, incorporating such
changes, within ninety (90) calendar Days of receipt of such notice.
B. Any deductibles applicable to the commercial property or insurance
purchased in compliance with the requirements of this section shall be
approved by City.
C. 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.
D. For General Liability coverage, contractors, consultants and/or
subcontractors shall provide coverage with a format at least as broad as
provided by Insurance Services Office form CG 203 80413.
E. If Tenant 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.
Seacoast of Channel Islands, LLC (DBA Seacoast -Heritage) Page D-6
F. 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.
G. 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.
H. 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.
I. 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.
J. 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.
Seacoast of Channel Islands, LLC (DBA Seacoast -Heritage) Page D-7
EXHIBIT "E"
Memorandum of Lease
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
City Clerk's Office
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
[Exempt from Recordation Fee - Govt. Code Sec. 61031
MEMORANDUM OF LEASE AGREEMENT
This Memorandum of Lease Agreement ("Memorandum") is dated 2016,
and is made between the City of Newport Beach, a California municipal corporation and
charter city ("City") and Seacoast of Channel Islands, LLC (doing business as Seacoast -
Heritage), a California limited liability company ("Tenant"), concerning the Property and
Premises as legally described and depicted in Exhibit 1" attached hereto and by this
reference made a part hereof.
For good and adequate consideration, City leases the Premises to Tenant, and Tenant
leases the Premises from City, for the term and on the provisions contained in the
Agreement dated December 1, 2016, including without limitation provisions prohibiting
assignment, subleasing, and encumbering said leasehold without the express written
consent of City in each instance, all as more specifically set forth in said Agreement,
which said Agreement is incorporated in this Memorandum by this reference.
The term is five (5) years, beginning December 1, 2016, and ending December 1, 2021,
and one (1) elective additional successive "Option Term" of five (5) years, on the same
terms and conditions contained in the Agreement.
This Memorandum is not a complete summary of the Agreement. Provisions in this
Memorandum shall not be used in interpreting the Agreement's provisions. In the event
of conflict between this Memorandum and other parts of the Agreement, the other parts
of the Agreement shall control. Execution hereof constitutes execution of the
Agreement itself.
[SIGNATURES ON NEXT PAGE]
Seacoast of Channel Islands, LLC (DBA Seacoast -Heritage) Page E-1
IN WITNESS WHEREOF, the Parties hereto have executed this Memorandum
as of the date first written above.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By:
Aaron C. Harp
City Attorney
ATTEST:
Date:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Dave Kiff
City Manager
TENANT: SEACOAST OF CHANNEL
ISLANDS, LLC (DBA SEACOAST -
HERITAGE), a California limited liability
company
Date:
By: By:
Leilani I. Brown Robert Nahm
City Clerk Managing Member
[END OF SIGNATURES]
ATTACHMENTS: Exhibit 1 — Legal Description and Depictions of Property and
Premises
Seacoast of Channel Islands, LLC (DBA Seacoast -Heritage) Page E-2
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of } ss.
On 20 before me,
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (seal)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of ) ss.
On 20 before me,
Notary Public, personally appeared
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(seal)
Seacoast of Channel Islands, LLC (DBA Seacoast -Heritage) Page E-3
EXHIBIT 1
PROPERTY AND PREMISES DESCRIPTION AND DEPICTIONS
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.
Seacoast of Channel Islands, LLC (DBA Seacoast -Heritage) Page E-4
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EXHIBIT A-5
EXHIBIT A-6
EP
CEILING
@ 7'-6"
CEILING
@7' -10 -
Office
7'•10"
Office #3
SCALE: 1/2" = V-0"
ID' 6' V iP
GRAPHIC SCALE
RSF: 610 sf
SHEET SIZE: 11x17
1614
829 Harbor Island Drive
Newport Beach, CA U WorkSpacePians
kim@workspaceplans.com jlll@workspaceplans.com