HomeMy WebLinkAboutC-7347-4 - West Pacific Coast Highway, 3333 and 3335 - Lease 2018LEASE AGREEMENT (WITH OPTION FOR RENEWAL)
BY AND BETWEEN
City of Newport Beach, a California municipal corporation and
charter city
("Lessor")
Golden Hills Properties, LLC, a California limited liability
company, DBA Newport Marina
("Lessee")
1.
Definitions.......................................................................................................................4
2.
Leased Premises.............................................................................................................4
3.
Term................................................................................................................................4
4.
Rent................................................................................................................................5
5.
Utilities, Taxes and Assessments....................................................................................6
6.
Use of the Premises........................................................................................................6
7.
Reserved........................................................................................................ 6
8.
Acceptance of Condition of Premises - "As -Is" / Waiver / Release...................................6
9.
Reserved.........................................................................................................................8
10.
Reconstruction or Removal.............................................................................................8
11.
Maintenance and Repair.................................................................................................9
12.
Liens.............................................................................................................................10
13.
Easements and Subordination.......................................................................................10
14.
Quitclaim Deed..............................................................................................................11
15.
Right to Enter the Premises for Inspection.....................................................................12
16.
Transfers / Hypothecation for Financing........................................................................12
17.
Bankruptcy....................................................................................................................17
18.
Defaults.........................................................................................................................17
19.
Remedies......................................................................................................................18
20.
Surrender of Premises..................................................................................................19
21.
Condemnation...............................................................................................................20
22.
Indemnification..............................................................................................................22
23.
Insurance..................................................................................................... 22
24.
Hazardous Substances.................................................................................................23
25.
Quiet Possession..........................................................................................................25
26.
Compliance with Applicable Laws.................................................................................25
27.
Not Agent of Lessor.......................................................................................................25
28.
No Third Party Beneficiaries..........................................................................................25
29.
Limitation of Leasehold / Easements.............................................................................26
30.
Notices..........................................................................................................................
26
31.
Entire Agreement/Amendments.....................................................................................27
32.
Waivers.........................................................................................................................27
33.
Lessor's Authorized Representative..............................................................................28
34.
City Business License...................................................................................................28
35.
Governing Law & Non -Binding Arbitration.....................................................................28
36.
Interpretation.................................................................................................................
29
37.
Time is of the Essence..................................................................................................29
38.
California Labor Laws....................................................................................................29
39.
Joint and Several Liability................................................................................ 28
40.
Memorandum of Lease Agreement...............................................................................29
41.
No Pre -commitment / Retention of Discretion / Assumption of Risk and
Waiver.......................................................................................................
.... 29
42.
No Damages.................................................................................................................31
43.
Appraisals.....................................................................................................................30
44.
Reserved......................................................................................................
31
45.
Late Charges and Delinquency Rates...........................................................................
31
46.
Reserved.......................................................................................................................31
47.
Government Claims Act.................................................................................................32
This Lease Agreement (With Option for Renewal) ("Agreement") is dated this
22nd day of December, 2017, and effective as of the 1st day of July, 2018 by and
between the City of Newport Beach, a California municipal corporation and charter city
("Lessor" or "City"), and Golden Hills Properties, LLC, a California limited liability
company, DBA Newport Marina ("Lessee").
RECITALS
A. Lessee is the fee owner of certain upland parcels located at 3333 and 3335 West
Pacific Coast Highway (A.P.N.'s 049-130-25 and 049-130-22, respectively), in
the City of Newport Beach, California, and as more particularly described and
depicted in Exhibit A attached hereto and incorporated by reference. On July
16, 1997, the County of Orange ("County") granted to Lessee its fee interest in
the upland parcels;
B. City was granted in trust by the State of California those Tidelands consisting of
both filled and unfilled tidelands adjacent to the Lessee's parcels, of
approximately 75,376 square feet located generally at 3333 West Coast Highway
in the City of Newport Beach, California (A.P.N. 049-130-26), including that
certain area of tidelands that extends into Newport Harbor utilized as a
commercial marina with docks more particularly described and depicted as set
forth in Exhibit B attached hereto and incorporated by reference herein,
excluding any private water and Improvements ("Premises"), pursuant to the
provisions of the Beacon Bay Bill (Chapter 74 of Statutes of 1978, as amended).
Combined for mutual benefit and public interest into a single entity designated by
the County as Parcel HA55D-7, the County (now Lessee), fee owned parcels and
City filled tidelands parcel was formerly referred to as "City/County Dock
Property";
C. On March 5, 1958, County and City entered into a Lease Agreement ("City and
County Agreement") that provided for leasing, development, lease management,
and revenue sharing for the City/County Dock Property. On August 26, 1993, the
City and County Agreement was amended to allow for County's separate and
former lessee, Haseko-LSW Associates, to redevelop the City/County Dock
Property and to allow for negotiations for a ten (10) year extension to extend the
term to June 30, 2018;
D. Lessee is currently occupying and in possession of the Premises pursuant to that
City and County Agreement, as assigned to Lessee by County by virtue of the
terms of the July 16, 1997 Grant Deed, as corrected and re-recorded in 1999 by
the Clerk/Recorder of the County of Orange as Instrument No. 19990550385.
The City/County Dock Property are currently developed with a five (5) story office
building, parking lot, and marina related office and parking, operating under the
name "Harbor Tower and Marina";
E. Pursuant to a July 28, 1999 re-recorded Grant Deed, County is the fee title owner
of that certain parcel of tidelands located in the City of Newport Beach, County of
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Orange, State of California (A.P.N. 049-130-23), as more particularly described
and depicted in Exhibit C, which also constitutes a part of the Property,
F. The parcels located at 3333 and 3335 West Pacific Coast Highway (A.P.N.'s
049-130-25 and 049-130-22, respectively), that certain filled tidelands parcel
(A.P.N. 049-130-26), that certain area of tidelands that extends into Newport
Harbor utilized as a commercial marina with docks, and that certain parcel of
tidelands located in the City of Newport Beach, County of Orange, State of
California (A.P.N. 049-130-23), as more particularly described and depicted in
Exhibits A, B, and C (respectively), and further depicted in Exhibit K, shall be
known as the "Property";
G. Pursuant to the Tidelands Grant, the State of California granted to Lessor, as
trustee, certain Tidelands. The Tidelands must be used to promote the public's
interest in water -dependent or water -oriented activities, as described more fully in
the Tidelands Grant,
H. The Tidelands Grant provides that the Tidelands shall not, at any time, be
granted, conveyed, given, or alienated to any individual, firm or corporation for
any purpose whatever except pursuant to Lessor's grant of either a franchise or
lease;
The Tidelands Grant authorizes Lessor to enter into leases of the Tidelands for a
period not exceeding fifty (50) years so long as such leases are consistent with
Lessor's obligations to hold the Tidelands in trust for the uses and purposes
contained in the Tidelands Grant;
J. On November 13, 2012, the City Council approved a model lease template, upon
which this Agreement is based, by adopting Resolution No. 2012-96, as required
by Municipal Code section 17.60.060(A); therefore, subject to the terms and
conditions of this Agreement, Lessor desires to lease a portion of the Tidelands
defined as the Premises to Lessee and Lessee desires to lease the Premises;
K. In addition to the above listed recitals, the City previously issued City Pier Permit
Number CP22733331 ("Permit") for the Premises; City Pier Permit Number
CP22733331, which expired July 1, 2018, after which time the City has stated
such Permit will not be renewed and Lessee or any other party has no continuing
rights in such Permit after such date; and
L. The parties desire to enter this Agreement for a term described herein and to
grant Lessee an option to extend the term of this Agreement.
In consideration of the mutual promises and obligations contained in this
Agreement, the receipt and sufficiency of which is hereby acknowledged, and the
Recitals above, which are incorporated by this reference, Lessee and Lessor hereby
enter into this Agreement on the following terms and conditions:
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NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Definitions
Capitalized terms that are not otherwise defined in the body of this Agreement
(which are identified in parentheses (" ")) have the meanings attributed in
Exhibit D.
2. Leased Premises
Lessor hereby leases to Lessee, for the Term specified in Section 3, the
Premises. The rights granted to Lessee by this Agreement are subject to
Lessee's compliance with the terms, covenants and conditions in this Agreement.
Lessee covenants, as a material part of the consideration for this Agreement, to
keep and perform each and every term, covenant and condition of this
Agreement.
3. Term
(a) Initial Term: The Term of this Agreement shall be ten (10) years
commencing on the 1st day of July, 2018, which shall be the
"Commencement Date," and terminating on the 30th day of June, 2028,
unless sooner terminated as provided in this Agreement.
(b) Option for Renewal Term(s): If Lessee is not in default of its obligations
under this Agreement, has completed improvements to the docks
pursuant to Section 11(d) of this Agreement, and upon the agreement of
the City, then Lessee shall have the option to extend the Term of this
Agreement for one (1) additional successive "Renewal Term(s)" of thirty
(30) years, on the same terms and conditions contained in this
Agreement. As provided by the Tidelands Grant, in no event shall the
Term and any Renewal Terms exceed a total of fifty (50) years.
(i) Each Renewal Term for which an option is exercised shall
commence at the expiration of the immediately preceding Term.
Lessee must exercise its option to a Renewal Term by giving a
written "Option Notice" of its election to Lessor no earlier than two
hundred and seventy (270) calendar days and no later than ninety
(90) calendar days prior to the expiration of the immediately
preceding Term.
(ii) Should Lessee fail to timely give an Option Notice, then the option
for the Renewal Term and all subsequent Renewal Terms shall be
null and void and of no further force and effect. Rent for the
Renewal Term shall be determined and adjusted as described in
Section 4 below.
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4. Rent
(a) Rent: Rent shall be calculated pursuant to Resolution No. 2017-49, or any
successor/amended resolution. Resolution No. 2017-49 and any
successor/amended resolution are automatically incorporated by
reference into this Agreement, without any further action by the parties,
when adopted by the Newport Beach City Council.
(b) Periodic Payment of Rent: One -twelfth (1/12) of annual Rent for a
particular Lease Term Year shall be payable on the first (1 st) day of each
month during the Term.
(c) Place for Payment of Rent: All payments of Rent shall be made in lawful
money of the United States of America and shall be paid to Lessor in
person or by United States' mail, or overnight mail service, at the
Cashier's Office located at 100 Civic Center Drive, Newport Beach, CA
92660, or to such other address as Lessor may from time to time
designate in writing to Lessee. If requested by Lessor, Lessee shall make
payments electronically (at www.newportbeachca.gov) or by wire transfer
(at Lessee's cost). Lessee' assumes all risk of loss and responsibility for
late charges and delinquency rates if payments are not timely received by
Lessor regardless of the method of transmittal.
(d) Additional Rent: Lessee agrees to pay as rental for the Premises,
within ten (10) calendar days of Lessor's demand therefor, unless a
different time for payment is expressly provided herein, all other amounts
Lessee is obligated to pay Lessor under the provisions of this Agreement
in addition to Rent ("Additional Rent").
(e) No Abatement or Reduction in Rent: Lessee has no right to any
abatement, set-off or reduction in Rent or Additional Rent. No
endorsement or statement on any check or any letter accompanying any
check or payment will be deemed an accord and satisfaction, and Lessor
may accept such check or payment without prejudice to Lessor's right to
recover the balance or pursue any other available remedy.
(f) Net Lease: Rent, as defined in this Agreement, is based upon Lessee's
material representation and covenant that it will pay all expenses, costs,
taxes; assessments, fees or charges, and incur all liabilities, of every kind
in any way relating to, or in connection with, the Premises and the
Improvements during the Term. Accordingly, Lessee will promptly pay all
expenses, costs, taxes, assessments, fees or charges, and incur all
liabilities, of every kind and description relating to, or in connection with,
the Premises and the Improvements during the Term.
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5. Utilities, Taxes and Assessments
(a) Lessee is solely responsible for obtaining all utilities and paying all taxes,
fees and assessments for the Premises or Improvements located thereon.
Lessee shall promptly pay, and discharge prior to delinquency, any and all
charges for services or utilities and all taxes, fees and assessments
furnished to or due on the Premises or Improvements located thereon, or
occupants thereof.
(b) Lessor hereby gives notice to Lessee, 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 Lessee. Lessee shall advise in writing
any sublessee, licensee, concessionaire or third party using the Premises
of the requirements of Section 107.6.
(c) Any payments under this Section shall not reduce or offset Rent
payments. Lessor has no liability for such payments.
6. Use of the Premises
During the term of this Agreement, Lessee will use and occupy the Premises
solely and exclusively for the operation of a marina or boat berthing facility and
associated ancillary uses.
7. Reserved.
8. Acceptance of Condition of Premises - "As -Is" / Waiver / Release
(a) Lessee's Acknowledgment: Lessee acknowledges that Lessee, Lessor or
unrelated third parties may have constructed improvements (some or all of
which may be Improvements as specified on Exhibit E) on and adjacent
to the Premises (including, without limit, bulkheads in the surrounding area
adjacent to and/or abutting the Premises). Lessee agrees and
acknowledges that it is relying solely on its own inspections and
investigations regarding the Premises, the condition of the Premises, the
surrounding area and all other matters related thereto. Lessee represents
and warrants that it has obtained the advice of such independent
professional consultants as it deems necessary in connection with its
investigation and study of the Premises and surrounding area, including,
without limitation, water quality, Improvement quality, soils, hydrology,
seismology, archaeology, Applicable Laws (including, without limitation,
the laws relating to the construction, maintenance, use and operation of
the Premises and Improvements), and all environmental, zoning and other
land use entitlement requirements and procedures, height restrictions,
floor area coverage limitations and similar matters.
M
(b) Only Lessor's Express Written Agreements Binding: Lessee
acknowledges and agrees that no person acting on behalf of Lessor is
authorized to make, and that except as expressly set forth in this
Agreement, neither Lessor nor anyone acting for or on behalf of Lessor
has made, any representation, warranty, statement, guaranty or promise
to Lessee, or to anyone acting for or on behalf of Lessee, concerning the
condition of the Premises, any other aspect of the Premises or the
surrounding area. Lessee further acknowledges and agrees that no
representation, warranty, agreement, statement, guaranty or promise, if
any, made by any person acting on behalf of Lessor which is not expressly
set forth in this Agreement will be valid or binding on Lessor.
(c) Verification of Acceptance: Lessee further acknowledges and agrees that
Lessee's execution of this Agreement constitutes Lessee's representation,
warranty and covenant that the condition of the Premises and the
surrounding area has been independently verified by Lessee to its full
satisfaction, and that, except to the extent of the express covenants of
Lessor set forth in this Agreement, Lessee will be leasing the Premises
based solely upon and in reliance on its own inspections, evaluations,
analyses and conclusions, or those of Lessee's representatives. As
material inducement to Lessor's entering this Agreement, Lessee
represents, warrants and covenants that LESSEE ACCEPTS AND IS
LEASING THE PREMISES, AND IS AWARE OF THE SURROUNDING
AREA, IN ITS "AS -IS, WITH ALL FAULTS" CONDITION AND STATE OF
REPAIR INCLUSIVE OF ALL FAULTS AND DEFECTS, WHETHER
KNOWN OR UNKNOWN, AS MAY EXIST AS OF THE LESSEE'S
EXECUTION OF THIS AGREEMENT, AND WITH NO WARRANTY
EXPRESS OR IMPLIED FROM LESSOR AS TO ANY LATENT, PATENT,
FORESEEABLE AND UNFORESEEABLE CONDITIONS. Without limiting
the scope or generality of the foregoing, Lessee expressly assumes the
risk that the Premises do not or will not comply with any Applicable Laws
now or hereafter in effect.
(d) Waivers, Disclaimers and Release:
(i) Waiver and Disclaimer: Lessee hereby fully and forever waives,
and Lessor hereby fully and forever disclaims, all warranties of
whatever type or kind with respect to the Premises and
Improvements, whether expressed, implied or otherwise including,
without limitation, those of fitness for a particular purpose, tenant
ability, habitability or use.
(ii) Lessor's Materials: Lessee further acknowledges that any
information and reports including, without limitation, any
engineering reports, architectural reports, feasibility reports,
marketing reports, soils reports, environmental reports, analyses or
data, or other similar reports, analyses, data or information of
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whatever type or kind which Lessee has received or may hereafter
receive from Lessor or its agents or consultants have been
furnished without warranty of any kind and on the express condition
that Lessee will make its own independent verification of the
accuracy, reliability and completeness of such information and that
Lessee will not rely thereon. Accordingly, Lessee agrees that
under no circumstances will it make any claim against, bring any
action, cause of action or proceeding against, or assert any liability
upon, Lessor or any of the persons or entities who prepared or
furnished any of the above information or materials as a result of
the inaccuracy, unreliability or incompleteness of, or any defect or
mistake in, any such information or materials. Lessee hereby fully
and forever releases, acquits and discharges Lessor and each
person furnishing such information or materials of and from, any
such claims, actions, causes of action, proceedings or liability,
whether known or unknown.
(iii) Waiver of Civil Code Section 1542: With respect to all releases
made by Lessee or Lessor under or pursuant to this Section 8,
Lessee or Lessor hereby waives the application and benefits of
California Civil Code Section 1542 and hereby verifies that it has
read and understands the following provision of California Civil
Code Section 1542:
"A general release does not extend to claims which the creditor
does not know or suspect to exist in his or her favor at the time of
executing the release, which if known by him or her must have
materially affected his or her settlement with the debtor."
Lessee: /V`. Lessor:
lAt2m�-
9. Reserved
10. Reconstruction or Removal
Lessee will promptly cause the Improvements or any part thereof, which are
(a) damaged or destroyed or (b) declared unsafe or unfit for occupancy or use by
a public entity with the appropriate authority, to either be (i) removed or
(ii) restored or reconstructed to their original design and layout, or to a good and
safe condition as reasonably approved by Lessor, whether or not required to be
insured against, at Lessee's sole cost and expense. Restoration or
reconstruction shall commence within ninety (90) calendar days from the date of
issuance of all permits (City and Coastal), which permits Lessee will diligently
pursue in a commercially reasonable timeframe, to repair, and Lessee shall
diligently pursue reconstruction to completion. Lessee shall not be entitled to any
abatement in Rent or other form of compensation from Lessor for loss of use of
the Premises or Improvements in the event of damage or destruction of the
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Premises or Improvements. Damage to or destruction of the Premises or the
Improvements shall not permit Lessee to terminate this Agreement.
Alternatively, in the event of damage or destruction, Lessee may remove all
Improvements from the Premises and terminate this Lease. The force majeure
provisions in this Agreement shall apply to reconstruction.
11. Maintenance and Repair
(a) Maintenance by Lessee: Lessee assumes full responsibility for operation
and maintenance and repair of the Premises throughout the Term at its
sole cost, and without expense to Lessor.
(i) Without limiting Lessee's obligations to maintain the Premises,
Lessee shall keep and maintain all Improvements in good order,
condition and repair consistent with similar marinas in Newport
Harbor.
(ii) Maintenance dredging bayward of the property line, between the
bulkhead line and the pierhead line, shall be the responsibility of
Lessee. Lessee shall perform all maintenance in compliance with
all Applicable Laws.
(iii) Reserved.
(iv) Reserved.
(v) Lessee expressly waives (a) the right to require Lessor to make
repairs; (b) any right to make repairs at the expense of Lessor;
(c) the right to reduce or offset Rent as a consequence of the
condition of the Premises or the Improvements; (d) the benefits of
California Civil Code Sections 1932, 1941 and 1942, as amended
from time to time; and (e) any law, judicial pronouncement, or
common law principle similar thereto, which is now or hereafter in
effect or is otherwise inconsistent with the provisions of this
Agreement.
(b) Reserved.
(c) Reserved.
(d) Maintenance Prior to Renewal Term: In addition to any other conditions to
Lessee's exercise of the option to extend the Term (or Renewal Term) of
this Agreement, no less than one hundred twenty (120) calendar days
prior to the end of a Term that may be renewed, Lessee shall submit a
maintenance report stating the condition of the Improvements on the
Premises. Improvements shall be inspected, and the maintenance report
shall be written, by a qualified marine engineer that is retained and paid
for by Lessee but approved by Lessor.
In
The maintenance report shall make repair and maintenance
recommendations to ensure that the maintenance standards in this
Agreement are met and will be maintained and the useful life of the
Improvements will extend throughout the Renewal Term(s). At the time of
providing the maintenance report to Lessor, Lessee shall sign a
certification under penalty of perjury that Lessee shall, at its sole cost,
make all repairs and perform all maintenance identified in the
maintenance report to the reasonable satisfaction of, and on a schedule
satisfactory to, Lessor. Any costs incurred by Lessee to make repair and
maintenance recommendations is a qualification for the Term or Renewal
Term of this Agreement and is not Rent. The cost of repair and
maintenance recommendations shall not be considered by the parties or
appraiser in determining any Rent or Rent adjustment during the term of
this Agreement.
(e) Maintenance by Lessor: Nothing in this Agreement requires Lessor to
perform any maintenance or repair to the Premises or to any adjacent
property or bulkheads; or to make any improvements whatsoever on or for
the benefit of the Premises. However, with no less than twenty-four (24)
hours written notice -from Lessor to Lessee, Lessor shall have the right,
but not the obligation, to make any emergency repairs related to safety or
hazard concerns to or on the Premises. Lessee shall reasonably
cooperate with Lessor in any activity undertaken by Lessor on the
Premises. Lessor may collect its cost for emergency repairs from the
Lessee as Additional Rent.
12. Liens
(a) Liens Prohibited: Lessee shall not permit to be imposed, recorded or
enforced against the Premises, any portion thereof or any structure or
Improvement thereon, any mechanics, materialmen's, contractors or other
liens arising from, or any claims for damages growing out of, any work or
repair, construction or alteration of improvements on the Premises.
(b) Release/Removal of Liens: In the event any lien or stop notice is imposed
or recorded on the Premises, or an Improvement permanently affixed to
the Premises, during the Term, Lessee shall pay or cause to be paid all
such liens, claims or demands before any action is brought to enforce the
same against the Premises or the Improvement. Notwithstanding the
foregoing, if Lessee legitimately contests the validity of such lien, claim or
demand, then Lessee shall, at its expense, defend against such lien, claim
or demand provided that it provide Lessor the indemnity in Section 22 and
provided Lessee shall pay and satisfy any adverse judgment that may be
rendered before any enforcement against Lessor, the Premises, or the
Improvement.
(c) Reserved.
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(d) Exceptions: Section 12 shall not apply to a foreclosure of a Leasehold
Mortgage encumbering the Leasehold Estate if the Leasehold Mortgage
has previously received Lessor consent in accordance with this
Agreement.
13. Easements, Subordination, and Nonexclusive License Agreement
(a) Grant of Easements. Nonexclusive, perpetual sidewalk and public access
easements shall be granted, at no cost, to the Lessor by Lessee to
provide and improve pedestrian access to Newport Harbor, as further
described in the Grant of Easement for Public Access attached hereto as
Exhibit F and incorporated herein by this reference.
(b) Subordination. As a condition precedent to this Agreement, the Grant of
Easement for Public Access above mentioned and attached hereto as
Exhibit F, shall unconditionally be and remain at all times an
encumbrance, interest or charge upon the land hereinbefore described as
the Property, prior and superior to any lien or deeds of trust. A
Subordination Agreement shall be executed by Lessee and Lessee's
Lender granting the priority as further described in the Subordination
Agreement attached hereto as Exhibit G and incorporated herein by this
reference.
(c) Nonexclusive License Agreement. Lessee desires to grant Lessor
vehicular access from the public right of way across portions of the
Property owned or controlled by Lessee, in, over, along, and across
certain real property ("License") as further described in the Nonexclusive
License Agreement attached hereto as Exhibit H and incorporated herein
by this reference.
14. Quitclaim Deed
Upon expiration or the earlier termination of this Agreement for any reason,
including but not limited to termination because of default by Lessee, Lessee
shall, at Lessee's sole expense, remove all fixtures, equipment, and
Improvements installed by Lessee from the Premises. Unless another time line
is agreed upon by Lessor, all fixtures, equipment and Improvements shall be
removed by Lessee within ninety (90) calendar days following the expiration or
termination of this Agreement. Lessee shall continue to pay Rent to Lessor
during the time Lessee removes the Improvements from the Premises, as
provided in Section 20(b). Alternatively, Lessee, with Lessor's written consent,
may quitclaim all fixtures, equipment, and Improvements on the Premises to
Lessor. Lessor acknowledges the bulkhead is owned by Lessee and Lessor has
no rights to use any portion of such bulkhead. Notwithstanding any other
provision of this Agreement as permitted by California Public Resources Code
Section 6312, or any successor statute, the parties agree that upon expiration or
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earlier termination of this Agreement Lessor shall have no liability or obligation to
pay compensation for any improvements made to the Premises.
15. Right to Enter the Premises for Inspection
Lessor expressly reserves the right and shall be entitled to enter the Premises,
and all Improvements, including a right of reasonable access to the Premises
across Lessee owned or occupied lands adjacent to the Premises, to inspect the
Premises for compliance with the terms of this Agreement. Unless otherwise
provided in this Agreement, Lessee shall provide Lessor access to the Premises
for such purposes, upon not less than seventy-two (72) hours written notice.
16. Transfers / Hypothecation for Financing
(a) Transfers: Except as expressly provided herein, Lessee and its
successors shall not either voluntarily, or by operation of law, engage in a
Transfer without first providing written request to Lessor and obtaining
Lessor's prior written consent which shall not be unreasonably withheld or
delayed. Notwithstanding anything to the contrary set forth herein, Lessee
may, without consent from the City, assign all or a portion of its interest in
the Premises and/or this Agreement to any entity or person affiliated with
Lessee or a partner member, shareholder or trustee of Lessee ("Permitted
Transferees"). Lessee agrees that Lessor's discretion to provide, withhold
or condition consent to any Transfer (except for the Permitted Transfers to
a Permitted Transferee in which the City has no consent) includes, without
limitation, Lessor's discretion in administering the Tidelands, which are a
valuable public resource held by Lessor in trust for the people of the State
of California; therefore, Lessor's decision to grant, withhold or condition
consent shall be reasonable. A Transfer made in violation of this
Section 16, including without limitation the obligation to receive Lessor's
prior consent, is a default subject to the cure right in Section 18(b).
Lessee shall comply with the following requirements for any Transfer.
Lessee agrees that failure to satisfy these requirements are reasonable
bases for Lessor to deny consent (but is not exhaustive of the bases to
deny consent):
(1) Lessee shall give Lessor at least thirty (30) calendar days
written notice of its proposed Transfer and provide
appropriate documentation demonstrating to Lessor's
satisfaction the financial and operational responsibility and
appropriateness of the proposed transferee. Lessee shall
provide Lessor within five (5) calendar days such other or
additional information and/or documentation as may be
reasonably requested by Lessor.
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(2) Lessee shall provide the terms and provisions of the
proposed Transfer.
(3) Except as otherwise provided in this Agreement for a
permitted Leasehold Mortgagee, the proposed transferee
shall, in recordable form, expressly assume this Agreement.
(4) In the event the proposed transferee is acquiring only a
portion of the adjoining Other Real Property, the rights and
obligations of Lessee and the proposed assignee shall be
proportionately adjusted in the manner deemed appropriate
by Lessor in light of its obligations under the Tidelands
Grants; and
(5) Lessee shall pay all Lessor's costs associated with Lessor's
consideration of the Transfer, regardless of whether such
transfer is consummated, or in connection with any other
actions taken by Lessor pursuant to this Section 16.
(b) Transfer if Appurtenant to Other Real Property
(i) The Premises is appurtenant to the adjoining littoral or riparian land
and/or uplands with required uplands support (e.g., parking,
restrooms, etc.). The uplands property along with the location of
the code required uplands support is more particularly described on
Exhibit A as the "Other Real Property" and Lessee, City, and
County are the fee title owners of the Other Real Property that
supports the tidelands (unfilled).
(ii) If Lessee Transfers its interest or rights to use such Other Real
Property adjoining the Premises separately from the Premises or
Lessee's interest in this Agreement, Lessee shall provide the
following to the Lessor:
(1) Lessee must provide Lessor with thirty (30) calendar days
prior written notice of the proposed Transfer; and
(2) Lessee, subject to Lessor's reasonable approval, must
provide written documentation to Lessor describing in
sufficient detail how access will be provided to the Premises
and the required uplands support (e.g., parking, restrooms,
etc.) and its respective location that will serve/benefit the
Premises.
(c) Subletting Permitted to Boat Slip Renters
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(i) Notwithstanding other provisions of this Section 16, Lessee shall
have the right to sublease the slips to Boat Slip Renters and to
extend or renew any subleases with Boat Slip Renters.
(d) Hypothecation for Financing: For the purpose of financing or refinancing
the acquisition of the Premises, the Improvements, the fixtures and
equipment located on the Premises, the alteration, construction or
reconstruction of Improvements, Lessee may engage in a Transfer to a
Leasehold Mortgagee only if, in addition to such other applicable
provisions in this Agreement, the provisions in this Section 16(d) are
satisfied. In no event shall Leasehold Mortgages either individually or
collectively exceed a loan -to -value ratio of seventy-five percent (75%) of
the Premises.
(i) Notice to Lessor. Lessee shall provide Lessor with a fully executed
complete copy of each Leasehold Mortgage, and all related loan
documents (including copies of all appraisals), any and all
amendments thereto, and the name and address of each
Leasehold Mortgagee. In the event of any assignment of a
Leasehold Mortgage or in the event of a change of address of a
Leasehold Mortgagee, Lessee shall provide the new name and
address of the assignee or Leasehold Mortgagee to Lessor.
Notices of default and notices of foreclosure shall be given to
Lessor contemporaneously with service on Lessee.
(ii) Notices to Leasehold Mortgagees. A Leasehold Mortgagee shall
not be entitled to notice or a copy of any notice from Lessor unless
Lessee provides Lessor with Leasehold Mortgagee's name and
address and requests that such Leasehold Mortgagee receive
notices.
(iii) Leasehold Mortgagee Opportunity to Remedy Default. Any
Leasehold Mortgagee who is entitled to notice as provided in
Section 16(d)(ii) shall have the right, but not the obligation, to
remedy the default or acts or omissions of Lessee within the period
and in the manner specified in this provision. Upon Lessee's
default and subsequent expiration of the applicable cure period in
Section 18, a Leasehold Mortgagee shall be permitted to remedy
such default(s) at any time within fifteen (15) calendar days (for
nonmonetary defaults) and five (5) calendar days (for monetary
defaults) following the expiration of the Lessee's cure period;
provided, however, Lessor shall not be required to furnish any
further notice(s) of default(s) to said Leasehold Mortgagee.
(iv) Leasehold Mortgagee Procedure on Lessee's Default.
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(1) Upon Leasehold Mortgagee's remedy of Lessee's default to
the reasonable satisfaction of Lessor, this Agreement shall
continue provided that a Leasehold Mortgagee:
a. Pays all Rent, and other monetary obligations of
Lessee under this Agreement as the same becomes
due, and perform all of Lessee's other obligations
under this Agreement; and
b. If not enjoined or stayed, takes steps to acquire or sell
Lessee's interest in this Agreement and in the
Premises to an assignee, future transferee or
purchaser by foreclosure of the Leasehold Mortgage
or other appropriate means, and prosecutes the same
to completion with reasonable diligence.
(2) Nothing in this Section 16(d) shall extend this Agreement
beyond the Term or any Renewal Term; nor to require a
Leasehold Mortgagee to continue such foreclosure
proceedings after a breach or default has been remedied. If
Lessee's breach or default is remedied and the Leasehold
Mortgagee discontinues such foreclosure proceedings, this
Agreement, at Lessor's option and in its sole and absolute
discretion, may continue as if no breach or default under this
Agreement occurred.
(3) Before a Leasehold Mortgagee, or any other assignee,
future transferee or purchaser by foreclosure of the
Leasehold Mortgage, acquires the Leasehold Estate, it shall,
as an express condition precedent, agree in writing to
assume each and every obligation under the Agreement.
Regardless, with the exception of said Leasehold
Mortgagee, no Transfer to an assignee, future transferee or
purchaser by foreclosure of a Leasehold Mortgage shall be
effective without Lessor's prior written consent, which shall
not be unreasonably withheld.
(4) The assignee, purchaser or future transferee at any sale of
this Agreement or of the Leasehold Estate in any
proceedings for the foreclosure of or trustee's sale under any
Leasehold Mortgage, or pursuant to any deed in lieu of
foreclosure, shall be deemed an assignee or transferee of
this Agreement, and shall be deemed to have agreed to
perform all of the terms, covenants and conditions on the
part of Lessee to be performed in this Agreement but only
from and after the date of such purchase and assignment,
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and only for so long as such purchaser; future transferee or
assignee is the owner of the Leasehold Estate.
(5) If Lessor denies consent to (a) the successful bidder or
purchaser upon foreclosure or (b) a proposed future
transferee, assignee or sublessee of the Leasehold
Mortgagee, the sole and exclusive remedy shall be for such
party or the Leasehold Mortgagee to seek relief in the nature
of specific performance.
(6) A Leasehold Mortgagee shall include a statement in any
Notice of Foreclosure Sale that provides the requirements
for Lessor's consent.
(v) Casualty Loss. A standard lender's loss payable endorsement
naming each Leasehold Mortgagee may be added to any and all
insurance policies required to be carried by Lessee hereunder.
Nevertheless, the provisions in any Leasehold Mortgage for the
application of insurance proceeds shall be subject to the provisions
of this Agreement and, in the event of any conflict between the
provisions of this Agreement and the provisions of any Leasehold
Mortgage with respect thereto, the provisions of this Agreement
shall control.
(vi) Limitation on Lessee's Right to Encumber. Any Leasehold
Mortgage now or hereafter placed on Lessee's interest in the
Premises shall be subject and subordinate to any limitations in the
Tidelands Grants, Lessor's interest in the Tidelands, this
Agreement, and any mortgage now in existence on the Leasehold
Estate. Lessee shall not use, encumber or Transfer this Agreement
or the Premises as security or collateral for any action unless
directly related to the Tidelands and the permitted uses allowed by
this Agreement.
(vii) No Rights to Encumber Interest of Lessor. The provisions of
Section 16 do not give any entity the right to mortgage,
hypothecate, cause a Transfer of, or otherwise encumber or cause
any liens to be placed against the Lessor's interest in the Premises
as trustee of the Tidelands, nor shall anything in this Agreement be
construed as resulting in a subordination in whole or in part of
Lessor's interests.
(viii) Estoppel Certificate. Lessor shall, within ten (10) business days
after written request from Lessee or any Leasehold Mortgagee,
certify by written instrument to any Leasehold Mortgagee or
proposed Leasehold Mortgagee: (a) as to whether this Agreement
has been modified, supplemented, amended, extended or renewed;
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(b) as to the existence of any breach or default of this Agreement;
and (c) as to the commencement and expiration dates of the term
of this Agreement.
17. Bankruptcy
Lessee agrees that if all, or substantially all, of Lessee's assets are placed in the
hands of a receiver or trustee and remain so for a period of thirty (30) calendar
days; or if Lessee makes an assignment for the benefit of creditors or be
adjudicated bankrupt; or if Lessee institutes any proceedings under the
Bankruptcy Act or similar law wherein Lessee seeks to be adjudicated bankrupt
or to be discharged of its debts or seeks to effect a plan of liquidation or
reorganization; or if any involuntary proceedings be filed against Lessee and not
dismissed or stayed within one hundred twenty (120) calendar days, then this
Agreement or any interest in and to the Premises shall not become an asset in
any such proceeding and, to the extent permitted by law (and in addition to the
provisions of Section 18) Lessor may declare this Agreement terminated and
take possession of the Premises.
18. Defaults
The occurrence of any of the following constitutes a default of this Agreement by
Lessee:
(a) Continued failure to operate, vacation or abandonment of the Premises
except for casualty, damage, repair construction or Harbor dredging for
three hundred (300) consecutive calendar days after the date of Lessor's
written notice to Lessee.
(b) Failure to make any payment required by this Agreement when such
failure continues for a period of fifteen (15) calendar days after the date of
Lessor's written notice that payment is due (unless another time period
within which to make payment is specifically provided); provided that any
such notice provided in this Section 18(b) or in Section 18(c) shall be in
lieu of, and not in addition to, any notice required under Section 1161 of
the California Code of Civil Procedure, as may be amended.
(c) Failure of Lessee to observe or perform any of the covenants, conditions,
or provisions in this Agreement, except for a monetary default specified in
Section 18(b) above, where such failure continues for a period of thirty
(30) calendar days after the date of Lessor's written notice of the default
(unless another time period within which to perform is specifically provided
in this Agreement); provided, however, that if the nature of Lessee's
default is such that more than thirty (30) calendar days are reasonably
required to complete its cure, then Lessee shall not be in default if Lessee
commences to cure the default within thirty (30) calendar days after
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written notice and thereafter diligently and continuously pursues the cure
to completion.
(d) Any of the events in Section 17 occur; provided that this provision is not
applicable or binding on a Leasehold Mortgagee which is of record and
has been consented to by Lessor, or to said Leasehold Mortgagee's
successors in interest consented to by Lessor, as long as (i) there remains
any monies to be paid by Lessee to such Leasehold Mortgagee under the
terms of such Leasehold Mortgage, (ii) that such Leasehold Mortgagee or
its successors in interest, continuously and timely pays to Lessor all Rent
due or coming due under the provisions of this Agreement and the
Premises are continuously and actively used and (iii) that said Leasehold
Mortgagee agrees in writing to assume and perform each and every
obligation under the Agreement.
19. Remedies
(a) Cumulative Nature of Remedies. If any default by Lessee continues
without being cured in the time period specified in Section 18, then Lessor
shall have the remedies described in this Section 19, which are in addition
to all other rights and remedies provided by law, equity or elsewhere in
this Agreement. Lessor shall have the right to elect its remedies and may
resort to any such remedies cumulatively, or in the alternative.
(i) Maintain Agreement. Lessor may maintain this Agreement in full
force and effect and recover Rent, Additional Rent, payment or
other charges or consideration as they become due, without
terminating Lessee's right of possession, regardless of whether
Lessee has abandoned the Premises.
(ii) Termination. Lessor may terminate this Agreement by giving
Lessee thirty (30) calendar days written notice. If Lessor
terminates this Agreement, Lessor may recover possession (which
Lessee shall surrender and vacate upon demand) and remove all
persons, and property and Improvements. Lessor shall be entitled
to recover the following as damages:
(1) The Worth at the Time of Award of the unpaid Rent,
Additional Rent or other charges which had been earned at
the time of termination;
(2) The Worth at the Time of Award of the amount by which the
unpaid Rent, Additional Rent or other charges which would
have been earned after termination until the time of award
exceeds the amount of such loss that Lessee proves could
have been reasonably avoided;
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(3) The Worth at the Time of Award of the amount by which the
unpaid Rent, Additional Rent or other charges for the
balance of the Term of this Agreement after the time of
award exceeds the amount of such loss that Lessee proves
could have been reasonably avoided;
(4) Any other amount necessary to reasonably compensate
Lessor for the detriment proximately caused by Lessee's
failure to perform its obligations under this Agreement;
(5) At Lessor's election, such other amounts in addition to or in
lieu of the foregoing as may be permitted from time -to -time
by applicable California law; and
(6) Lessor shall also be entitled to an award of the costs and
expenses (including, without limitation, actual attorneys' fees
and costs) incurred by Lessor in maintaining or preserving
the Premises after default, preparing the Premises for re-
letting, or repairing any damage caused by the act or
omission of Lessee.
The "Worth at the Time of Award" of the amounts referred to
in "(1)" and "(2)" above shall be computed by charging
interest at ten percent (10%) per annum from the dates such
amounts accrued to Lessor. The "Worth at the Time of
Award" of the amount referred to in "(3)" above shall be
computed by discounting such amount at ten percent (10%)
per annum.
(b) Waiver of Rights. Lessee waives any right of redemption or relief from
forfeiture under California Code of Civil Procedure Sections 1174 or 1179,
or under any other present or future law, if Lessee is evicted or Lessor
takes possession of the Premises by reason of any default by Lessee.
20. Surrender of Premises
(a) Upon expiration or earlier termination, of this Agreement Lessee shall
peaceably surrender the Premises to Lessor.
(b) If Lessee elects to remove any fixtures, improvements (including all
Improvements to which Lessee has title), or if Lessor declines Lessee's
offer to accept ownership of the same, then Lessee shall restore the
Premises to its natural state as deemed acceptable by Lessor. All plans
for Lessee's subsequent removal shall be to the reasonable satisfaction of
Lessor and shall be completed no later than ninety (90) calendar days
after the expiration or sooner termination of this Agreement or other time
line agreed upon by the Lessor. During any period of time employed by
Lessee to remove fixtures, improvements (including all Improvements to
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which Lessee has title) Lessee shall continue to pay Rent to Lessor in
accordance with this Agreement, which said Rent shall be prorated daily.
(c) Any holding over by Lessee after either expiration or earlier termination
shall not constitute a renewal or extension, or give Lessee any rights in or
to the Premises. If Lessee, with Lessor's consent, remains in possession
of the Premises after Agreement expiration or earlier termination
(including for the purpose of Lessee's removal of Improvements), such
possession shall be deemed a month-to-month tenancy terminable upon
thirty (30) calendar days' notice furnished at any time by either party to the
other. In addition, all provisions of this Agreement, except those
pertaining to Term, shall apply to the month-to-month tenancy, and
Lessee shall continue to pay all Rent required by this Agreement.
Provided, however, Rent shall be paid monthly on the first (1 st) day of the
month.
21. Condemnation
(a) Lessor shall notify Lessee of any Condemnation by providing written
notice thereof no later than thirty (30) calendar days after the later of
(i) the filing of a complaint in eminent domain by Condemnor or (ii) any
voluntary final agreement by Lessor and Condemnor of the extent of the
scope and extent of property interests in the Premises to be included
within the Condemnation.
(b) If the Premises are totally taken by Condemnation, this Agreement shall
terminate as of the date on which Condemnor actually takes physical
possession of the Premises, which date is referred to in this Section 21 as
the "Termination Date." If less than all but more than fifty percent (50%) of
total area of the Premises are taken through Condemnation, Lessee shall
have the option to terminate this Agreement by providing written notice to
Lessor. Lessee's notice must be given within thirty (30) calendar days
after Lessee's receipt of Lessor's notice provided pursuant to
subparagraph (a) above, and if Lessee's notice of termination is not timely
given, then Lessee shall conclusively be deemed to have elected not to
terminate this Agreement. If this Agreement is terminated under this
Section, the termination shall be effective on the Termination Date, and
Lessor shall prorate Rent to that date. Lessee must pay Rent for the
period up to, but not including, the Termination Date, as prorated by
Lessor. Lessor shall return to Lessee any prepaid Rent allocable to any
period on or after the Termination Date.
(c) If any part of the Premises is taken by Condemnation and this Agreement
is not terminated, Rent shall be proportionately reduced based on the
value of the actual portion of the Premises taken as a percentage of the
value of the entire Premises, in its "before" condition and without regard to
any injury to the remainder, or benefit to the remainder, resulting from the
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taking or the construction of the project for which the taking occurs.
Lessor shall make such determination of the amount of reduction in Rent
in its reasonable discretion, based upon either the appraisal for the
Condemnation provided by the Condemnor, or pursuant to an appraisal
prepared in the manner provided in Section 43, as Lessor shall determine.
Lessor and Lessee agree to execute an amendment or other appropriate
instrument modifying this Agreement within thirty (30) calendar days after
a partial taking, confirming the reduction in Premises and reduction in
Rent.
(d) If a temporary taking of part of the Premises occurs through (i) the
exercise of any government power by Condemnor or (ii) a voluntary sale
or transfer by Lessor to any Condemnor, either under threat of exercise of
eminent domain by a Condemnor or while legal proceedings for
condemnation are pending, Rent shall abate during the time of such taking
but only with respect to that physical portion of the Premises actually
temporarily taken, and all Rent or other compensation paid by the
Condemnor shall be the sole and exclusive property of Lessor.
(e) In the event of a total or partial Condemnation, though the award shall
belong and be paid to Lessor, Lessee shall be entitled to claim and
receive, and Lessor hereby assigns to Lessee, from such award:
(i) A sum attributable to the fair market value of any and all
Improvements made to the condemned portion(s) of the Premises
by Lessee in accordance with this Agreement, which Improvements
Lessee has the right to remove, but elects not to remove; or, if
Lessee elects to remove any such Improvements, a sum
attributable to their reasonable removal and relocation costs not to
exceed the fair market value of such Improvements; and
(ii) A sum attributable to any excess of the present value at the date of
taking of the fair market rental value of the condemned portion(s) of
the Premises, exclusive of any of Lessee's Improvements for which
it is compensated under subsection (i), above, for the remainder of
the term over the present value at the date of taking of the actual
Rent payable by Lessee hereunder for the condemned portion(s)
for the remainder of the term; and
(iii) A sum attributable to any diminution of the present value at the date
of taking of the fair market rental value (i.e., that portion or those
portions not condemned) for the remainder of the term; and
(iv) Any sum awarded or paid to Lessee by any Condemnor for
damage to Lessee's business or for "loss of goodwill."
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22. Indemnification
In addition to any other indemnity provided for in this Agreement, and
notwithstanding any other provisions of this Agreement to the contrary, Lessee
indemnifies, defends (with counsel selected by Lessor) and holds harmless
Lessor, its elected officials, officers, employees, agents, attorneys, volunteers
and representatives from and against all claims, demands, obligations, damages,
actions, causes of action, suits, losses, judgments, fines, penalties, liabilities,
costs and expenses (including, without limitation, attorney's fees, disbursements
and court costs) of every kind that may arise from or in any manner relate to
(directly or indirectly): (i) Lessee's rights, obligations, acts or omissions under
this Agreement, (ii) Lessee's occupancy and use, or Lessee's guests, invitees,
sublessees, or licensees occupancy and use, of the Premises, or Improvements
(individually, each a "Claim" and, collectively, "Claims"). The indemnification in
this Section 22 specifically includes, without limitation, all Claims arising by
reason of:
(a) The death or injury of any person or damage to real or personal property
caused or allegedly caused by the condition of the Premises,
Improvements, or an act or omission of Lessee or an agent, contractor,
subcontractor, supplier, employee, servant, sublessee or concessionaire
of Lessee;
(b) Any work performed on the Premises, Improvements, or materials
furnished to the Premises, Improvements, by or at the request of Lessee
or any agent, contractor, subcontractor, supplier, employee, servant,
sublessee or concessionaire of Lessee, with the exception of maintenance
performed by City; and/or
(c) Lessee's failure to perform any provision of this Agreement or to comply
with any requirement of Applicable Law or any requirement imposed on
the Premises or Improvements by any duly authorized governmental
agency or political subdivision. Lessee's obligations in this Section (or any
other provision providing indemnity in this Agreement) shall not extend to
the degree any Claim is proximately caused by the sole negligence or
willful misconduct of Lessor, subject to any immunities which may apply to
Lessor with respect to such Claims. This indemnification provision and
any other indemnification provided elsewhere in this Agreement shall
survive the termination of this Agreement and shall survive for the entire
time that any third party can make a Claim.
23. Insurance
Without limiting Lessee's indemnification of Lessor, Lessee will obtain, provide
and maintain at its own expense during the Term of this Agreement, a policy or
policies of insurance of the type, amounts and form acceptable to Lessor. The
policy or policies shall provide, at a minimum, those items described in Exhibit 1.
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24. Hazardous Substances
(a) From the Commencement Date and throughout the Term, Lessee will not
use, occupy, or permit any portion of the Premises to be used or occupied
in violation of any Hazardous Substance Laws. Notwithstanding any other
provision in this Section 24, Lessee is not responsible/liable for any
Hazardous Substances that are brought on to the Premises, through
migration or other means, by third -parties not associated with Lessee.
(b) Notwithstanding any contrary provision of this Agreement, and in addition
to the indemnification duties of Lessee set forth elsewhere in this
Agreement, Lessee indemnifies, defends with counsel reasonably
acceptable to Lessor, protects, and holds harmless Lessor, its elected
officials, officers, employees, agents, attorneys, volunteers and
representatives from and against any and all losses, fines, penalties,
claims, demands, obligations, actions, causes of action, suits, costs and
expenses (including, without limitation, attorneys' fees, disbursements and
court costs), damages, judgments, or liabilities, including, but not limited
to, any repair, cleanup, detoxification, or preparation and implementation
of any remedial, response, closure or other plan of any kind or nature
which the Lessor, its officials, officers, employees, agents, attorneys,
volunteers or assigns may sustain or incur, or which may be imposed
upon them, in connection with any breach of Lessee's obligations or
representations in this Agreement or the use of the Premises under this
Agreement, arising from or attributable to the Lessee Parties (defined
below) storage or deposit of Hazardous Substances in violation of
Applicable Laws. This Section is intended to operate as an agreement
pursuant to Section 107(e) of CERCLA, 42 USC Section 9607(e), and
California Health and Safety Code Section 25364, to insure, protect, hold
harmless, and indemnify Lessor for any claim pursuant to the Hazardous
Substance Laws or the common law.
(c) Lessee does not, and will not, authorize any third party to use, generate,
manufacture, maintain, permit, store, or dispose of any Hazardous
Substances in violation of Applicable Laws on, under, about or within the
Premises.
(d) Upon expiration or earlier termination of this Agreement, Lessee shall
deliver possession of the Premises in compliance with Hazardous
Substance Laws subject to the last sentence of Section 24(a) above.
(e) If during the Term of this Agreement, Lessee becomes aware of (i) any
actual or threatened release of any Hazardous Substances on, in, under,
from, or about the Premises in violation of Hazardous Substance Laws; or
(ii) any inquiry, investigation, proceeding, or claim by any government
agency or other person regarding the presence of any Hazardous
Substances in violation of Hazardous Substance Laws on, in, under, from
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or about the Premises, Lessee shall give Lessor written notice of the
release or inquiry within five (5) calendar days after Lessee becomes
aware or first has reason to believe there has been a release or inquiry
and shall simultaneously furnish to Lessor copies of any claims, notices of
violation, reports, warning or other writings received by Lessee that
concern the release or inquiry.
(f) If the presence of any Hazardous Substances brought onto the Premises
by Lessee or Lessee's employees, agents, sublessees, licensees,
concessionaires, contractors, or invitees ("Lessee Parties"), or generated
by same during the Term of this Agreement, results in contamination of
the Premises or adjacent properties or the Newport Harbor in violation of
Hazardous Substance Laws, Lessee shall promptly take all necessary
actions, at Lessee's sole expense, to remove or remediate such
Hazardous Substances in full compliance with Applicable Laws. Lessee
shall provide notice to Lessor prior to performing any removal or remedial
action. Lessee shall not propose nor agree to any covenant of use
restriction as part of any removal or remediation required as a result of this
provision without Lessor's written consent. Lessee shall pay any costs
Lessor incurs in performing Lessee's obligation to clean-up contamination
resulting from Lessee's operations or use of the Premises. Any amounts
not paid when due shall be subject to late charges and delinquency rates
as provided in Section 45.
(i) Should any clean-up of Hazardous Substances for which Lessee is
responsible not be completed prior to the expiration or sooner
termination of the Agreement, including any extensions thereof,
then Lessee shall transfer the amounts required to complete clean-
up into an escrow account, together with Lessor -approved
instructions for the disbursement of such amount in payment of the
costs of any remaining clean-up as it is completed, and (ii) if the
nature of the contamination or clean-up required of Lessee is of
such a nature as to make the Premises untenable or unleaseable,
then Lessee shall be liable to Lessor as a holdover lessee until the
clean-up has been sufficiently completed to make the Premises
suitable for lease to third parties. The estimated cost of the clean-
up shall require approval of the Lessor.
(ii) If Lessor determines, in its reasonable discretion, that Lessee does
not have insurance or other financial resources sufficient to enable
Lessee to fulfill its obligations under this provision, whether or not
accrued, liquidated, conditional, or contingent, then Lessee shall, at
the request of Lessor, procure and thereafter maintain in full force
and effect such environmental impairment liability and/or pollution
liability insurance policies and endorsements, or shall otherwise
provide such collateral or security reasonably acceptable to Lessor
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as is appropriate to assure that Lessee will be able to perform its
duties and obligations hereunder.
(g) Lessee's obligations in this Section 24 shall survive the expiration or
earlier termination of this Agreement.
25. Quiet Possession
(a) So long as no default by Lessee has occurred and is continuing uncured
under this Agreement, and subject to the Tidelands Grant or any
amendment to that grant, Lessee shall peaceably and quietly use and
enjoy the Premises for the Term, without hindrance or interruption by
Lessor.
(b) Lessor shall in no event be liable in damages or otherwise, nor shall
Lessee be released from any obligations hereunder, because of the
interruption or termination of any service provided by Lessor (such as
water or sewer service), or a termination, interruption or disturbance of
any service attributable to any act or neglect (other than gross negligence
or willful misconduct) of Lessor or its servants, agents, employees,
licensees, business invitees, or any person claiming by, through or under
Lessee.
26. Compliance with Applicable Laws
Lessee agrees that, in all activities on or in connection with the Premises, and in
all uses thereof, it will comply with and conform, at its sole cost, to all Applicable
Laws. Lessee is solely responsible for compliance with Applicable Laws. If City
enacts a new tax or imposes a new fee, which exceeds the cost of providing the
service, against the Premises, the Lessee has the right to terminate this
Agreement upon thirty (30) calendar days notice to Lessor.
27. Not Agent of Lessor
Neither anything in this Agreement nor any acts of Lessee shall authorize Lessee
or any of its employees, agents or contractors to act as agent, contractor, joint
venturer or employee of Lessor for any purpose. The parties' relationship under
this Agreement is exclusively that of a lessor and lessee.
28. No Third Party Beneficiaries
Lessor (both as a lessor and as the City of Newport Beach) and Lessee 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.
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29. Limitation of Leasehold / Easements
This Agreement and the rights and privileges granted Lessee in and to the
Premises and Improvements are subject to all covenants, conditions, restrictions,
and exceptions of record, including those which are set out in the Tidelands
Grant by the State of California to Lessor. Nothing contained in this Agreement
or in any related document shall be construed to imply the conveyance to Lessee
of rights in the Premises or Improvements that exceed those owned by Lessor.
This Agreement and the rights and privileges granted Lessee in and to the
Premises shall be further subject to future easements and rights-of-way for
access, gas, electricity, water, sewer, drainage, telephone, telegraph, television
transmission, and such other utilities as Lessor may determine from time to time
to be in the best interests of the development of the lands within Lessor's
jurisdiction, provided, however, that no easements, rights-of-way, or the
installation of such facilities by Lessor, shall materially interfere with Lessee's
business. Easements and rights -of -ways allowed by this section shall be limited
in purpose to providing the utilities contemplated in this section. Nothing in this
section gives a utility a right to attach any item to the Improvements. Lessee is
not entitled to any monetary payment or other remuneration for any such future
easements and rights-of-way.
30. Notices
All notices and other communications required or permitted to be given under this
Agreement, including any notice of change of address, shall be in writing and
given by personal delivery, or deposited with the United States Postal Service,
certified and postage prepaid, or by national overnight mail service addressed to
the parties intended to be notified. Notice shall be deemed given as of the date
of personal delivery, or if mailed, two (2) calendar days following the date of
deposit with the United States Postal Service. Notice shall be given as follows:
To Lessor: City of Newport Beach
Attn: City Manager
PO Box 1768
100 Civic Center Drive
Newport Beach, CA 92658
949-644-3153
With Copy To: City Attorney (at same address)
To Lessee: Golden Hills Properties, LLC
C/O: Jackson Tidus
2030 Main Street, Suite 1200
Irvine, CA 92614
Attn: Gregory Powers
-26-
31. Entire Agreement/Amendments
(a) The terms and conditions of this Agreement, all exhibits attached hereto
are incorporated by reference into this Agreement, and all documents
expressly incorporated by reference, represent the entire Agreement of
the parties with respect to the subject matter of this Agreement.
(b) This Agreement may be executed in counterparts, including electronic
counterparts, each of which, after all the parties have signed this
Agreement, shall be deemed to be an original, and such counterparts shall
constitute one Agreement binding on the parties.
(c) This written Agreement shall supersede any and all prior agreements, oral
or written, regarding the subject matter. Notwithstanding the foregoing
sentence, with respect to City Pier Permit No. CP22733331, nothing
herein is a release of any violation of Lessee's duties or obligations, if any,
with respect to City Pier Permit No. CP22733331, whether known or
unknown at this time or upon the effective date of this Agreement. Lessor
acknowledges it is not aware of any known defaults by Lessee.
(d) Except as permitted by Section 33 below, no other agreement, promise or
statement, written or oral, relating to the subject matter of this Agreement,
shall be valid or binding, except by way of a written amendment to this
Agreement.
(e) The terms and conditions of this Agreement shall not be altered or
modified except by a written amendment to this Agreement signed by
Lessee and Lessor.
(f) If any conflicts arise between the terms and conditions of this Agreement,
and the terms and conditions of the attached exhibits or the documents
expressly incorporated by reference, the terms and conditions of this
Agreement shall control.
(g) Any obligation of the parties relating to monies owed, as well as those
provisions relating to limitations on liability and actions, shall survive
termination or expiration of this Agreement.
32. Waivers
The waiver by either party of any breach, default or violation of any term,
covenant or condition of this Agreement, or of any Applicable Law, shall not be
deemed a waiver of any other term, covenant, condition, or Applicable Law, or of
any subsequent breach or violation of the same or other term, covenant,
condition, or Applicable Law. The subsequent acceptance by either party of any
fee, performance, or other consideration which may become due or owing under
this Agreement, shall not be deemed to be a waiver of any preceding breach or
-27-
violation by the other party of any term, condition, covenant of this Agreement or
any Applicable Law.
33. Lessor's Authorized Representative
Unless otherwise specified in this Agreement or unless Applicable Law requires
action of the City Council or some other person or body of Lessor (in its capacity
as the City of Newport Beach), Lessor shall maintain the authority to implement
this Agreement on its behalf through the City Manager of the City of Newport
Beach (or his or her designee). The City Manager (or his or her designee) shall
have authority (but not the obligation) to issue interpretations, waive provisions
(including, without limitation, imposition of late charges and delinquency rates,
Lessee's payment of costs and times of performance), and/or enter into
amendments of this Agreement on behalf of the Lessor.
34. City Business License
Lessee shall obtain and maintain during the duration of this Agreement a City
business license as required by the Newport Beach Municipal Code.
35. Governinq Law & Non -Binding Arbitration
(a) Prior to instituting any legal action in a court, in the event the Lessor and
Lessee shall be unable to agree as to any matter provided for in this
Agreement such dispute shall be submitted to three (3) disinterested
arbitrators (unless the parties can agree on one (1) arbitrator). Such
arbitration shall be conducted upon request of either the Lessor or the
Lessee, before three (3) arbitrators (unless the Lessor or the Lessee
agree to one (1) arbitrator) designated by the American Arbitration
Association and in accordance with the rules of such Association. The
decision(s) of the arbitrator(s) designated and acting under this Agreement
shall be nonbinding and the arbitrator(s) have no power to depart from or
change any of the provisions thereof. The expense of arbitration
proceedings conducted hereunder shall be borne equally by the parties.
(b) This Agreement shall be construed in accordance with the laws of the
State of California. Any action brought relating to this Agreement shall be
adjudicated in a court of competent jurisdiction in the County of Orange.
Lessee is advised that Public Resources Code Section 6308 may require
that the State of California be joined to any action against the City
involving title to or boundaries of the Tidelands.
(c) The prevailing party in any non-binding arbitration or legal action
authorized under this section shall not be entitled to attorneys' fees.
-28-
36. 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 the Agreement or any other rule of construction which
might otherwise apply.
37. Time is of the Essence
Time is of the essence to the performance of each and every act required to be
performed by this Agreement.
38. California Labor Laws
It shall be the obligation of Lessee or any subcontractor under Lessee to comply
with all State of California labor laws, rules and regulations and the parties agree
that the Lessor shall not be liable for any violation thereof.
39. Joint and Several Liability
The term "party" in this section shall mean either Lessor or Lessee, and if more
than one (1) person or entity comprises either Lessor or Lessee, then the
obligations imposed upon such "party" shall be both joint and several.
40. Memorandum of Lease Agreement
A Memorandum of Lease Agreement, in a form and content similar to that
contained in Exhibit J 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.
41. No Pre -commitment / Retention of Discretion / Assumption of Risk and Waiver
(a) By its execution of this Agreement, Lessor is not committing itself or
agreeing to undertake any activity requiring the subsequent exercise of
discretion by the City of Newport Beach, or any department thereof,
including but not limited to the approval of any CEQA documents, the
approval of any development proposal or land use regulation governing
the Premises, or any other act or approval.
(b) Lessee understands and agrees that Lessor in its capacity as the City of
Newport Beach reserves the right to exercise its discretion as to all
matters which it is, by law, entitled or required to exercise its discretion,
including, but not limited to, the consideration of CEQA documents the
consideration of a final development, the consideration of any and all
plans, permits, licenses or regulatory approvals, or any other acts or
activities requiring the subsequent independent exercise of discretion by
-29-
the City of Newport Beach or any agency or department thereof. Lessee
understands and agrees that the City of Newport Beach may, in its sole
and absolute discretion, certify or not certify a CEQA document and
approve, approve with modifications, or not approve or may consider other
alternatives, including those presented in the CEQA documents.
(c) Lessee acknowledges and agrees that the City of Newport Beach or other
governmental agencies (including without limitation the Coastal
Commission) may, at their sole and absolute discretion, approve any and
all plans, permits, licenses or regulatory approvals, only upon the
imposition and performance of additional conditions or mitigation
measures.
(d) Nothing in this Agreement shall obligate the Lessor in its capacity as the
City of Newport Beach to exercise its discretion in any particular manner,
and notwithstanding any provision of this Agreement to the contrary any
exercise of discretion required by law or permitted by this Agreement shall
not be deemed to constitute a breach of Lessor's duties under this
Agreement.
(e) Lessee accepts and assumes the risk that the City of Newport Beach or
other governmental agencies (including without limitation the Coastal
Commission) will not approve or certify the CEQA documents or any and
all plans, permits, licenses or regulatory approvals sought, that the City of
Newport Beach may consider or approve other alternatives to the CEQA
documents, any and all plans, permits, licenses or regulatory approvals, or
CEQA documents might be approved or certified subject to modifications
or the performance of certain additional conditions or mitigation measures
imposed by the City of Newport Beach or other governmental agencies
(including without limitation the Coastal Commission) in their sole and
absolute discretion, or that third parties may file litigation against or
otherwise delay any and all plans, permits, licenses or regulatory
approvals sought, or CEQA documents. Lessee agrees it has no claim,
cause of action, or right to damages, compensation or reimbursement
from Lessor or the City of Newport Beach if (i) CEQA documents or any
and all plans, permits, licenses or regulatory approvals sought are not
approved by the City of Newport Beach or other governmental agencies
(including without limitation the Coastal Commission) for any reason,
(ii) other alternatives to the CEQA documents or any and all plans,
permits, licenses or regulatory approvals sought are approved, (iii) CEQA
documents are approved or certified subject to modification or the
performance of certain additional conditions or mitigation measures,
and/or (iv) third parties file litigation against or otherwise delay the CEQA
documents.
-30-
42. No Damages
Lessee acknowledges that Lessor would not enter into 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,
CEQA documents, and Transfers. Accordingly, Lessee covenants and agrees
on behalf of itself and its successors and assigns, not to sue Lessor (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 Lessor or for any dispute, controversy, or issue
between Lessor and Lessee 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,
Transfers or any future amendments or enactments thereto, the parties agreeing
that declaratory relief, injunctive relief, mandate and specific performance shall
be Lessee's sole and exclusive judicial remedies.
43. Appraisals
Except as otherwise provided in the applicable resolution for the Fair Market
Adjustment of Rent, this Section governs the process for all appraisals required
or permitted in this Agreement. Any time an appraisal is required or permitted by
this Agreement, Lessor and Lessee shall each select an independent appraiser
with qualifications of MAI to appraise Tidelands properties. Each party shall pay
the costs of their selected appraiser. If the two (2) appraisals return with a fair
market value that is within five percent (5%) of each other the two (2) appraisal
fair market values shall be averaged to produce the fair market value of the
affected Premises. For clarity, if one (1) appraiser concludes thirteen percent
(13%) and one (1) appraiser concludes fifteen percent (15%) the difference in
their conclusions is thirteen and 333/1,OOOths percent (13.333%) and therefore a
third appraisal would be needed. If the two (2) appraisers should fail to agree on
the fair market value, and the difference between the two appraisals exceeds five
percent (5%), then the two (2) appraisers thus appointed shall mutually appoint a
third MAI designated appraiser, and in case of their failure to agree on a third
appraiser within thirty (30) calendar days after their individual determination of
the fair market value, either party may apply to the Presiding Judge of the
Superior Court for Orange County, requesting said Judge to appoint the third MAI
designated appraiser. The costs of the third appraiser, if any, shall be split
equally between the Lessor and the Lessee. The third appraiser so appointed
shall meet and confer with the two (2) other appraisers and then conduct its own
analysis to determine the fair market value of the affected Premises within sixty
(60) calendar days of their appointment and the average of the fair market value
-31-
per square foot as set forth in the appraisals of the two (2) closest appraisers
shall be used as the fair market value. All MAI appraisers appointed or selected
pursuant to this subsection shall have at least ten (10) years experience
appraising Tidelands in the Southern California area and shall be free of conflicts
(i.e., no appraisers shall rent a boat slip or office space from Lessor or lessees,
etc.).
44. Reserved
45. Late Charges and Delinquency Rates
A ten percent (10%) late charge shall be added to all payments due but not
received by Lessor with ten (10) calendar days following the due date, unless
another due date is specified in this Agreement. In addition, all unpaid amounts
shall accrue at a delinquency rate of one and a half percent (1'/2%) per month or
any portion of a month until paid in full. Lessor and Lessee hereby agree that
such late charges and delinquency rates represent a fair and reasonable
estimate of the costs Lessor will incur by Lessee's late payment, including,
without limitation, lost opportunities and the cost of servicing the delinquent
account. Lessee agrees that such late charges and delinquency rates are
Additional Rent and are not interest. Acceptance of such late charges and
delinquency rates (and/or any portion of the overdue payment) by Lessor does
not constitute a waiver of Lessee's default with respect to such overdue payment,
or prevent Lessor from exercising any of the other rights and remedies granted in
this Agreement.
46. Reserved
47. Government Claims Act
Lessee and Lessor agree that in addition to any claims filing or notice
requirements in this Agreement, Lessee shall file any claim that Lessee may
have against Lessor in strict conformance with the Government Claims Act
(Government Code sections 900 et seq.).
[SIGNATURES ON NEXT PAGE]
-32-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in duplicate on the date and year first written herein.
LESSOR LESSEE
City of Newport Beach, a California Golden Hills Properties, LLC, a California
municipal corporation limited liability company, DBA Newport
Marina
By:
Dave
City Manager
ATTEST:
By:
Michael Delijani
Manager
By:
Shahram D rani
Manager
APPROVED AS TO FORM:
CITY A Y'S OFFICE
C
Aaron C. Harp UM �►��►��
City Attorney
-33-
EXHIBIT "A"
Parcel 1 (APN 049-130-22)
A parcel of land situated in the City of Newport Beach, County of Orange, State of
California, being a portion of Section 28, T6S, R10W, SBBM, and more particularly
described as follows:
Beginning at a point (P.O.B.) on the Westerly line of Lot L, Tract 919, recorded in
Miscellaneous Map Book 29, Pages 31-34, Official Records of Orange County, California,
said Westerly line bears North 11057'35" East, said point being distant 60.00 feet
measured along said Westerly line of Lot L, and Northerly of U.S. Bulkhead line between
U.S. Bulkhead Station No. 128 and 128A, as said U.S. Bulkhead Lines and Stations are
laid out and shown upon a map titled "Harbor Lines, Newport Bay Harbor", approved by
the Secretary of the Army, February 15, 1951 and on file in the U.S. District Engineer's
Office, Los Angeles, California, a radial line through said point bears North 270 20' East
(and also shown as "North 250 00' East"); thence Westerly along a curve concave to the
South and having a radius of 480.00 feet and a central angle of 46° 16'46" an arc distance
of 387.71 feet to an intersection with the aforementioned U.S. Bulkhead Line a distance
of 49.27 feet more or less to the Southeasterly corner of Parcel No. 2 of that certain
easement described in deed to the State of California from the City of Newport Beach,
recorded in Book 3680, Page 54, and dated October 17, 1956, Official Records of said
Orange County, thence Northeasterly along the Easterly line of Parcel No. 2 to an
intersection with the Southeasterly line of Parcel No. 1, described in deed to the State of
California from the County of Orange, recorded in Book 3680, Page 50, and dated
October 17, 1956, Official. Records of Orange County, thence Northeasterly along the
Easterly line of said Parcel No. 1 to an intersection with the Southerly line of that certain
parcel of land described in deed to the State of California from the County of Orange
recorded in Book 293, Page 158, and dated June 29, 1929, Official Records of Orange
County; thence Easterly along the Southerly line of said last mentioned parcel of land to
an intersection with the Westerly line of the aforementioned Lot L of said Tract 919, thence
South 11 ° 57' 35" West along the Westerly line of said Lot L, to the Point of Beginning
(P.0.B.).
As described in a Grant Deed, recorded July 16, 1997, in OR 19970335011
Area contains approximately 61,140 square feet (1.404 acres)
EXHIBIT "A"
1
- COAST HWY W
10 .77
8.5
386' r
61,140 sq 1f
1.404 acres
0
1 inch = 75 feet
® 0 ]].S 15
5�
la�.«.r A1n.:�a I�M)01.15011 n�.A
ri
Parcel 1
Grant Deed - OR 19970335011
EXHIBIT "A"
2
sm; P.O.B.
t
0 US Bulkhead Stations
Qty of Newport Beach
GIS Mr, -
October 30, 2015
Parcel 2 (APN 049-130-25)
Beginning at a point (P.O.B.) on the U.S. Pierhead and Bulkhead line, between U.S.
Bulkhead Stations No. 227 and 128, as shown on a map, dated March 20, 1936, File No.
958 on file in the U.S. Engineer's Office, Los Angeles, California, entitled "Harbor Lines
Newport Bay Harbor", California:
Distant thereon S 790 02' 20" E, 11.95 feet from said Station No. 227, thence continuing
S 790 02' 20" E, 38.39 feet, thence N 150 14'50" E, 117.14 feet to a non -tangent curve
concave southeasterly, having a radius of 121.00 feet, and a radial line bearing S 390
08'48" E, thence southwesterly along said curve 34.90 feet through an angle of 160 31'
28" to the beginning of a compound curve concave southeasterly having a radius of
286.00 feet, thence southwesterly 46.74 feet along said curve through an angle of 90 21"
49" to the beginning of a reverse curve concave northwesterly, having a radius of 326.00
feet, thence southwesterly 45.23 feet along said curve through an angle of 7° 56'58" to
the point of beginning (P.O.B.).
As described as "Parcel 2" in a Grant Deed, recorded Oct 17, 1956, in OR 3680/50
Area contains approximately 2,660 square feet (0.061 acres)
EXHIBIT "A"
3
COAST HWY W
2,660 sq ft
LU
2
38.39,
Py rLm
P.O. B. S 79-02-20
F �X
1 inch = feet
® pr=o US Bulkhead Stations
Feer� I__.._._._..__ . .... . . . .. ....... .... .._._. _._,
�U
Parcel 2
Grant Deed - OR 368050 Clry of Newpan Beach
GIS Division
�� Ocrober 20, 2015
EXHIBIT "A"
4
EXHIBIT "B"
Parcel 4 (APN 049-130-26)
A parcel of land situated in the City of Newport Beach, County of Orange, State of
California, being a portion of Section 28, T6S, R10W, SBBM, and more particularly
described as follows:
Beginning at the U.S. Bulkhead Station No. 227A (P.O.B.), as U.S. Bulkhead Lines and
Stations are laid out and shown upon a map titled "Harbor Lines, Newport Bay Harbor",
approved by the Secretary of the Army, February 15, 1951, and on file in the U.S. District
Engineer's Office, Los Angeles, California; thence northwesterly along the northwesterly
prolongation of the U.S. Bulkhead Line between U.S. Bulkhead Stations No. 227A and
227B in a direct line, N 79° 02-20 W, a distance of 28.23 feet, to the northeast corner of
that certain parcel of land described in deed to the State of California from the City of
Newport Beach, recorded in Book 3111, Page 125, and dated June 12, 1955, Official
Records of Orange County, California; thence southwesterly along a non -tangent curve
concave to the northwest, a radial line through said point bears North 560 09' 33 West ,
having a radius of 326.00 feet and a central angle of 060 50'46", an arc distance of 38.95
feet; thence S 180 37'40" W, a distance of 39.51 feet, thence S 420 37' 40" W, a distance
of 77.97 feet, thence S 600 26' 17 W, a distance of 90.00 feet to the southwesterly
prolongation of the northwesterly line of said parcel of land, as shown on a Record of
Survey, recorded in RS Book 220, Pages 44-50, and dated June 27, 2007, Official
Records of Orange County, California; thence S 180 37' 40' W, a distance of 34.79 feet
to an intersection with the North Channel Reservation Line as recorded in Book 162, Page
1, Official Records of said Orange County; thence easterly along said Channel
Reservation Line and its northeasterly prolongation, N 88° 54'01" E, a distance of 138.65
feet, to the U.S. Bulkhead Station No.- 226A, as said Bulkhead Stations are laid out and
shown upon a map titled "Harbor Lines, Newport Bay Harbor"; thence northeasterly along
U.S. Bulkhead Line between U.S. Bulkhead Stations No. 226A and 227A, N 180 37' 40"
E ,a distance of 85.88 feet; thence northeasterly in a direct line to U.S. Bulkhead Station
No. 227B, N 360 37' 03" E, a distance of 129.32 feet; thence northwesterly along U.S.
Bulkhead Line, N 790 02' 20" W, a distance of 40.80 feet to U.S. Bulkhead Station No.
227A, the point of beginning (P.O.B.).
Area contains approximately 17,210 square feet (0.395 acres), more or less.
A portion described in a Grant Deed, recorded June 12, 1955, in Book 3111, Page 125
of Official Records of Orange County
A portion described in a Record of Survey, recorded June 27, 2007, in RS Book 220,
Pages 44-50 of Official Records of Orange County
A portion shown on ALTA Survey, filed 01/06/1989 by Douglas R Howard, PLS 6169 (per
Psomas and Associates)
EXHIBIT "B"
1
P-O.B.
.23-
79-02-20g '40.8
A V 79 02-20 F
0
2 i
!
f
t
„ 17,210 M ft
0395 acres
•r
n �
,..-x Ghdrinel Fese,vit on ove -
1 inch = 40 feet
US Bulkhead Stations
Parcel 4 vk=
�o Grant Deeds - OR 162/1, OR 311 1/125 G1yofN—P.11B—h
MAW -
Record of Survey - RS 220/44-50 Frtb vo5 yy 16, 2016
M-1 Ma",x; Pxkf NA +l mad
EXHIBIT "B"
2
.!2
0
3
2
COAST HWY W
3335
T U R N 1 N 1
R A S 1 N
JJ33
313,
31?1
EXHIBIT "B"
3
IMMU :
EXHIBIT "C"
Parcel 3 (APN 049-130-23) - "County Property"
All that parcel of land lying between the southerly line of the parcel described below,
and the U.S. Bulkhead Line between Stations 128A and 227A as said U.S. Bulkhead
Lines and Stations are laid out and shown upon a map titled "Harbor Lines, Newport
Bay Harbor", approved by the Secretary of the Army, February 15, 1951, and on file in
the U.S. District Engineer's Office, Los Angeles, California, and lying westerly of the
westerly line of Lot L of Tract 919, as shown upon a map recorded in Miscellaneous
Map Book 29, Pages 31-34, Official Records of Orange County, California, more
specifically described as:
Beginning at a point (P.O.B.) on the Westerly line of Lot L, Tract 919, recorded in
Miscellaneous Map Book 29, Pages 31-34, Official Records of Orange County,
California, said Westerly line bears North 11'57'35" East, said point being distant 60.00
feet measured along said Westerly line of Lot L, and Northerly of U.S. Bulkhead line
between U.S. Bulkhead Station No. 128 and 128A, as said U.S. Bulkhead Lines and
Stations are laid out and shown upon a map titled "Harbor Lines, Newport Bay Harbor',
approved by the Secretary of the Army, February 15, 1951 and on file in the U.S.
District Engineer's Office, Los Angeles, California, a radial line through said point bears
North 270 20' East (and also shown as "North 250 00' East"), thence Westerly along a
non -tangent curve concave to the South and having a radius of 480.00 feet and a
central angle of 460 16' 46", an arc distance of 387.71 feet, to an intersection with the
aforementioned U.S. Bulkhead Line, Southeasterly from and a distance of 49.27 feet,
more or less (and also shown as 46.80' on ALTA Survey, labeled "Harbor Marina, LLC,
dated 01/06/1989, signed by Douglas R. Howard, PLS 6169) from the Southeasterly
corner of Parcel 2 of that certain easement described in deed to the State of California
from the City of Newport Beach, recorded in Book 3680, Page 54, and dated October
17, 1956, of Official Records of said Orange County, thence Southeasterly along the
aforementioned U.S. Bulkhead Line a distance of 338.89 feet (calculated) to a tangent
curve concave to the South and having a radius of 1910.00 feet, thence along said U.S.
Bulkhead Line through a central angle of 00 58'44", an arc distance of 32.63 feet to the
southwesterly corner of the aforementioned Lot L, Tract 919, thence North 11 ° 57' 35"
East along the Westerly line of the aforementioned Lot L, to the Point of Beginning
(P.0.B.).
Said land is included within a portion of the area shown on a map files in Book 21, Page
44 of Record of Surveys, in the office of the County Recorder of said County.
A portion described as the "Parcel V in Exhibit "C" of a Grant Deed, re-recorded July
28, 1999, in Official Records 19990550385.
Also shown on ALTA Survey, filed 01/06/1989 by Douglas R Howard, PLS 6169 (per
Psomas and Associates).
Area contains approximately 20,890 square feet (0.48 acres), more or less.
EXHIBIT "C"
EXHIBIT "C"
2
i
480'r
j
f is E,e
f I xuin
f
meso syn i
—
P.O.B.
I
I
.y 8.8�. 0.48 ernes
® US Bulkhead Stations
1,/(,
Parcel 3W
:
`
"County Property"
c"YO N- s
Sep•mbs 19,1017
EXHIBIT "C"
2
EXHIBIT "D"
DEFINITIONS
Additional Rent is defined in Section 4.
Agreement is defined in the Preamble.
Applicable Law(s) mean and include, but are not limited to, those prescribed by Title
17 of the Newport Beach Municipal Code; any ordinances of the City of Newport Beach,
including the Building Code thereof; the City Charter of Newport Beach; any regulations,
policies and general rules of the City of Newport Beach; the Tidelands Grant;
Hazardous Substances Laws; CEQA; and any other Federal, State or local statute, law,
ordinance, resolution, code, rule, regulation, order or decree as any of the same now
exist or may hereafter be adopted or amended.
Boat Slip Renters is defined in Section 1(a)(i).
CDP means a Coastal Development Permit.
CEQA means the California Environmental Quality Act, codified at California Public
Resources Code Sections 21000 et seq. as may be amended from time -to -time.
Claim(s) is defined in Section 22.
Commencement Date is defined in Section 3(a).
Condemnation means a permanent taking of the Premises through (i) the exercise of
any government power, by any public or quasi -public authority or by any other party
having the right of eminent domain (Condemnor) or (ii) a voluntary sale or transfer by
Lessor to any Condemnor, either under threat of exercise of eminent domain by a
Condemnor or while legal proceedings for condemnation are pending.
Gross Revenue for Slip Rentals means all receipts of every kind and nature, whether
for cash, credit or barter, received/due for the rental or use of a slip, dock, or pier on the
Premises. Without limiting the breadth of the prior sentence, Gross Revenue for Slip
Rentals shall include, without limitation, receipts of every kind and nature derived from
any promotion, package deal, service, or other item that is associated in any way with
the rental or use of a slip, dock, or pier on the Premises, excluding pass-through of
direct third -party charges (e.g., electricity, cable TV, etc.) without markup by Lessee.
For purposes of determining Gross Revenue for Slip Rentals any fixed, annual, monthly
and/or recurring charge that a person or entity is required to pay shall be counted as
part of the Gross Revenue for Slip Rentals. Gross Revenue for Slip Rentals shall not
be offset or reduced for any reason, including, but not limited to, the payment of taxes,
fees, repairs, maintenance, construction, or inability or failure to collect any cash, credit,
or barter due for the use of a slip, dock, or pier on the Premises.
EXHIBIT "D"
-1-
Hazardous Substance means: (i) any substance, product, waste or other material of
any nature whatsoever which is or becomes listed, regulated, or addressed pursuant to
the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. Section 9601 et seq. (CERLCA); the Hazardous Materials Transportation Act, 49
U.S.C. Section 1801, et seq.; the Resource Conversation and Recovery Act, 42 U.S.C.
Section 6901 et seq. "RCRA"); the Toxic Substances Control Act, 15 U.S.C. Section
2601 et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et seq.; the California
Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq.; the
California Hazardous Substance Account Act, Health and Safety Code Sections 25330
et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and
Safety Code Sections 25249.5 et seq.; California Health and Safety Code Sections
25280 et seq. (Underground Storage of Hazardous Substances); the California
Hazardous Waste Management Act, Health and Safety Code Sections 25170.1 et seq.;
California Health and Safety Code Sections 25501 et seq. (Hazardous Materials
Response Plans and Inventory); or the Porter -Cologne Water Quality Control Act, Water
Code Sections 13000 et seq., all as they, from time -to -time may be amended or re -
codified, (the above-cited statutes are here collectively referred to as lithe Hazardous
Substances Laws") or any other Federal, State or local statute, law, ordinance,
resolution, code, rule, regulation, order or decree regulating, relating to, or imposing
liability or standards of conduct concerning, any hazardous, toxic or dangerous waste,
substance or material, as now or at any time hereafter in effect; (ii) any substance,
product, waste or other material of any nature whatsoever which may give rise to liability
under any of the above statutes or under any statutory or common law theory, including
but not limited to negligence, trespass, intentional tort, nuisance, waste or strict liability
or under any reported decisions of a state or federal court; (iii) petroleum or crude oil;
and (iv) asbestos.
Improvements are owned by Lessee and mean those items described on Exhibit E as
they may be modified, altered, restored, or rebuilt pursuant to this Agreement.
Leasehold Estate means Lessee's interest in the Premises created by this Agreement.
Leasehold Mortgage means a Transfer or security instrument by which the Leasehold
Estate is used to secure a debt or other obligation arising from or related to Lessee's
use or operation of the Premises.
Leasehold Mortgagee means a holder or holders of the Leasehold Mortgage.
Lease Term Year means each twelve (12) month period beginning on the
Commencement Date (or anniversary thereof) and ending on the day prior to the next
anniversary of the Commencement Date.
Lessee is defined in the Preamble.*
Lessor is defined in the Preamble.
Marina Index is comprised of the marinas listed in the resolution incorporated by
Section 4.
EXHIBIT "M
-2-
Market Adjustment Date means March 1, 2026 and every tenth (10th) anniversary
year thereafter.
Option Notice is defined in Section 3(b)(i).
Other Real Property is defined in Section 16(b).
Premises means those Tidelands consisting of both filled and unfilled tidelands of
approximately 75,376 square feet located generally at 3333 West Coast Highway in the
City of Newport Beach, California, including that certain area of tidelands that extends
into Newport Harbor utilized as a commercial marina with docks more particularly
described and depicted as set forth in Exhibit B, excluding any private water and
Improvements.
Property is defined in Recital F and depicted as set forth in Exhibit K.
Renewal Term(s) is defined in Section 3(b).
Rent is defined in Section 4.
Target Indexed Rate is defined in the resolution incorporated by Section 4.
Term is defined in Section 3(a).
Tidelands means certain tidelands and submerged land (whether filled or unfilled),
located in the City of Newport Beach, County of Orange, State of California granted to
the City of Newport Beach, as trustee, by the State of California pursuant to the
Tidelands Grant.
Tidelands Grant means uncodified legislation related to the State of California's grant
of certain rights in the Tidelands to the City of Newport Beach, including, without
limitation, the Beacon Bay Bill (Chapter 74 of the Statutes of 1978, as amended
[citations omitted]).
Transfer(s) means any attempt to sell, convey, assign, transfer, mortgage, pledge,
grant, hypothecate or encumber this Agreement or any interest in this Agreement, or the
Premises or any portion of the Premises, and any attempt to sublet (which shall also
include management and/or operating agreements covering the Premises), license or
grant any concession to the Premises, in whole or in part, or allow any person other
than Lessee's employees, members, agents, servants and invitees to occupy or use all
or any portion of the Premises.
EXHIBIT "D"
-3-
EXHIBIT "E"
IMPROVEMENTS
EXHIBIT "E"
-1-
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EXHIBIT "F"
GRANT OF EASEMENT, LEGAL DESCRIPTION, AND DEPICTION
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
CITY OF NEWPORT BEACH
P.O. BOX 1768
Newport Beach, CA 92658-1768
Attention: Real Property Administrator
WITH A CONFORMED COPY TO:
Golden Hills Properties, LLC
C/O: Jackson Tidus
2030 Main Street, Suite 1200
Irvine, California 92614
Attention: Gregory Powers
Recording Fee: Exempt
(Government Code — Section 6103)
(Space above this line for Recorder's use)
GRANT OF EASEMENT FOR
PUBLIC ACCESS
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, GOLDEN
HILLS PROPERTIES, LLC, a California limited liability company, DBA Newport Marina
("Grantor"), owner of certain interests in the real property described herein situated in the City
of Newport Beach, County of Orange, State of California, hereby grant(s) to the CITY OF
NEWPORT BEACH, a municipal corporation and charter city ("Grantee"), a non-exclusive,
perpetual sidewalk and public access easement for pedestrian access to Newport Harbor, in,
under, over, along, and across certain real property ("Easement") described on Exhibit 1 and
depicted on Exhibit 2 attached hereto (the "Easement Area").
EXHIBIT T"
1
IN WITNESS WHEREOF, Grantor has executed this Grant of Easement as of
, 20_. This Grant of Easement shall not be effective for any purpose unless
and until the Acceptance below has been duly executed by Grantee.
"GRANTOR"
GOLDEN HILLS PROPERTIES, LLC,
a California limited liability company, DBA
Newport Marina
:
Michael Delijani
Manager
Shahram Delijani
Manager
EXHIBIT T"
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 I 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
EXHIBIT T"
3
CERTIFICATE OF ACCEPTANCE
This CERTIFICATE OF ACCEPTANCE is to certify that the interest in real property conveyed
by this Grant of Easement dated , 2018, by and between the City of
Newport Beach, a municipal corporation, as Grantee, and Golden Hills Properties, LLC, a
California limited liability company, DBA Newport Marina as Grantor, is hereby accepted on
, 20_, by the undersigned officer on behalf of the City of Newport
Beach pursuant to authority conferred by Resolution No. 1992-82 of the City Council adopted
on July 27, 1992. The City consents to the recordation of said document in the Office of the
Recorder of Orange County, State of California.
APPROVED AS TO FORM:
CITY ATTORNE FFICE
By: l F•�� By:
Aaron C. Harp 1h o»►qi'K
City Attorney
ATTEST:
5-1
Leilani I. Brown,
City Clerk
EXHIBIT T"
4
CITY OF NEWPORT BEACH,
a California municipal corporation
Dave Kiff
City Manager
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
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.
(seal)
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
EXHIBIT "F"
5
Exhibit 1
Description of Easement Area
Parcel "A" (A six foot wide Pedestrian Access Easement)
A six foot wide easement for pedestrian access purposes, situated in the City of
Newport Beach, County of Orange, State of California, being a portion of Section 28,
T6S, R10W, SBBM, and the centerline of which is described as follows:
Beginning at a the Northwest corner of Lot L, Tract 919, recorded in Miscellaneous Map
Book 29, Pages 31-34, Official Records of Orange County, California, said Westerly line
to point bears North 11057'35" East, and Northerly of U.S. Bulkhead line between U.S.
Bulkhead Station No. 128 and 128A, as said U.S. Bulkhead Lines and Stations are laid
out and shown upon a map titled "Harbor Lines, Newport Bay Harbor", approved by the
Secretary of the Army, February 15, 1951 and on file in the U.S. District Engineer's
Office, Los Angeles, California, a radial line through said point bears North 27° 20' East
(and also shown as "North 250 00' East"); thence Westerly along a curve concave to the
South and having a radius of 1550.00 feet and a central angle of 30 24' 34" an arc
distance of 92.22 feet to the True Point of Beginning, thence South 11' 57' 35" West,
a distance of 79.24 feet, thence North 770 41' 03" West, a distance of 14.70 feet,
thence South 11 ° 57' 35" West, a distance of 93.17 feet, to the northerly line of a 10
foot wide Pedestrian Access easement, as described as Parcel B hereon. Said land is
included within a portion of the area shown on a map files in Book 21, Page 44 of
Record of Surveys, in the office of the County Recorder of said County. As described in
a Grant Deed, re-recorded July 28, 1999, in Official Records 19990550385.
Area contains approximately 1,120 square feet (0.026 acres), more or less.
Parcel "B" (A ten foot wide Pedestrian Access Easement)
A ten foot wide strip of land along the bay frontage for public pedestrian access
purposes, situated in the City of Newport Beach, County of Orange, State of California,
being a portion of Section 28, T6S, R10W, SBBM, the Southerly line of which described
as follows:
Beginning at a point (P.O.B.) on the Westerly line of Lot L, Tract 919, recorded in
Miscellaneous Map Book 29, Pages 31-34, Official Records of Orange County,
California, said Westerly line bears North 11057'35" East, said point being distant 40.00
feet measured along said Westerly line of Lot L, and Northerly of U.S. Bulkhead line
between U.S. Bulkhead Station No. 128 and 128A, as said U.S. Bulkhead Lines and
Stations are laid out and shown upon a map titled "Harbor Lines, Newport Bay Harbor",
approved by the Secretary of the Army, February 15, 1951 and on file in the U.S.
District Engineer's Office, Los Angeles, California, thence North 79° 02' 19" West, a
distance of 368.19 feet, thence North 37° 06' 13" E, a distance of 3.05 feet, thence N
52° 53'52" West a distance of 12.5 feet, thence South 370 06' 08" West, a distance of
37.43 feet, thence South 52° 53' 52" East, a distance of 12.5 feet, thence South 37° 06'
08" West, a distance of 137.42 feet, thence South 18° 30' 56" West, a distance of 90.71
EXHIBIT "F"
6
feet, thence South 880 54' 01" West, a distance of 140.33 feet, to the southwesterly
prolongation of the northwesterly line of that certain parcel of land described in deed to
the State of California from the City of Newport Beach, recorded in Book 3111, Page
125, and dated June 12, 1955, Official Records of Orange County, California, and as
shown on a Record of Survey, recorded in RS Book 220, Pages 44-50, and dated June
27, 2007, Official Records of Orange County, California. Said land is included within a
portion of the area shown on a map files in Book 21, Page 44 of Record of Surveys, in
the office of the County Recorder of said County. As described in a Grant Deed, re-
recorded July 28, 1999, in Official Records 19990550385.
Area contains approximately 8,000 square feet (0.184 acres), more or less.
EXHIBIT T"
7
Exhibit 2
Depiction of Easement Area
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Pedestrian Access Easements
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EXHIBIT T"
8
EXHIBIT "G"
SUBORDINATION AGREEMENT
RECORDING REQUESTED BY
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. 6103 and 27383]
SUBORDINATION AGREEMENT
NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN YOUR INTEREST
(INCLUDING ANY SECURITY INTEREST) IN THE PROPERTY BECOMING SUBJECT
TO AND OF LOWER PRIORITY THAN THE LIEN OF A LATER RECORDED
EASEMENT INSTRUMENT.
THIS SUBORDINATION AGREEMENT ("Subordination") made as of this day of
, 2018, by GOLDEN HILLS PROPERTIES, LLC, a California limited
liability company, DBA Newport Marina ("Owner"), owner of the real property located at
3333 and 3335 West Pacific Coast Highway (APNs 049-130-25 and 049-130-22,
respectively), in the City of Newport Beach, County of Orange, State of California, and
as more particularly described and depicted in Exhibit "A," attached hereto
("Property"), and , present holder of a deed of trust and hereinafter
described and referred to as the "Lender."
WHEREAS, Owner has executed a deed of trust dated ,
encumbering that certain Property to secure a note in favor of Lender, which deed of
trust was recorded on as Document No. in the
Official Records of Orange County, California ("Deed of Trust");
WHEREAS, Owner has executed, or is about to execute, a Grant of Easement for
Public Access, which is attached hereto as Exhibit "B," of even date herewith, to the
City of Newport Beach, a municipal corporation and charter city, hereinafter referred to
as "City," subject to the terms and conditions described therein, which Grant of
Easement for Public Access is to be recorded concurrently herewith;
WHEREAS, it is a condition precedent that the Grant of Easement for Public Access
above mentioned shall unconditionally be and remain at all times an encumbrance,
EXHIBIT "G"
1
foreclosure, deed -in -lieu or any other means, and any subsequent sale or transfer of the
Property by shall not be affected so long as any acquisition, transfer or
sale of the Property is made subject to the terms of the Grant of Easement for Public
Access; and
NOW, THEREFORE, in consideration of the mutual benefits accruing to the parties hereto
and other valuable consideration, the receipt and sufficiency of which consideration is
hereby acknowledged, and in order for City to obtain the Grant of Easement for Public
Access, it is hereby declared, understood and agreed as follows:
(1) That said Grant of Easement for Public Access in favor of City shall
unconditionally be and at all times remain an encumbrance, lien and charge on
the property therein described, prior and superior to the lien or charge of the
deeds of trust first above described, and any acquisition, transfer or sale of the
Property made under the provisions of the Deed of Trust, whether by
foreclosure, deed -in -lieu or other means, shall be subject to the Grant of
Easement for Public Access; and
(2) That this Subordination Agreement shall be the whole and only agreement with
regard to the subordination of the lien or charge of the deeds of trust first above
mentioned to the Grant of Easement for Public Access in favor of the City above
referred to and shall supersede and cancel, but only insofar as would affect the
priority between the easement and deeds of trust hereinbefore specifically
described, any prior agreement as to such subordination including, but not
limited, those provisions, if any, contained in the deeds of trust first above
mentioned, which provide for the subordination of the lien or charge thereof to
another deed or deeds of trust subject to the terms of the Grant of Easement for
Public Access.
IN WITNESS WHEREOF, Owner and Lender have executed this Subordination
Agreement as of , 20,.
OWNERS:
GOLDEN HILLS PROPERTIES, LLC,
a California limited liability company,
DBA Newport Marina
in
2
Michael Delijani
Manager
Shahram Delijani
Manager
Shahram Delijani
Manager
LENDER:
A
APPROVP AS TO FORM:
Aaron C. Harp aM °�II°IIIY
City Attorney
EXHIBIT °G"
3
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
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.
(seal)
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
EXHIBIT "G"
4
(seal)
EXHIBIT "A"
Parcel 1 (APN 049-130-22)
A parcel of land situated in the City of Newport Beach, County of Orange, State of
California, being a portion of Section 28, T6S, R10W, SBBM, and more particularly
described as follows:
Beginning at a point (P.O.B.) on the Westerly line of Lot L, Tract 919, recorded in
Miscellaneous Map Book 29, Pages 31-34, Official Records of Orange County,
California, said Westerly line bears North 11 °57'35" East, said point being distant 60.00
feet measured along said Westerly line of Lot L, and Northerly of U.S. Bulkhead line
between U.S. Bulkhead Station No. 128 and 128A, as said U.S. Bulkhead Lines and
Stations are laid out and shown upon a map titled "Harbor Lines, Newport Bay Harbor",
approved by the Secretary of the Army, February 15, 1951 and on file in the U.S.
District Engineer's Office, Los Angeles, California, a radial line through said point bears
North 270 20' East (and also shown as "North 250 00' East"); thence Westerly along a
curve concave to the South and having a radius of 480.00 feet and a central angle of
460 16' 46" an arc distance of 387.71 feet to an intersection with the aforementioned
U.S. Bulkhead Line a distance of 49.27 feet more or less to the Southeasterly comer of
Parcel No. 2 of that certain easement described in deed to the State of California from
the City of Newport Beach, recorded in Book 3680, Page 54, and dated October 17,
1956, Official Records of said Orange County, thence Northeasterly along the Easterly
line of Parcel No. 2 to an intersection with the Southeasterly line of Parcel No. 1,
described in deed to the State of California from the County of Orange, recorded in
Book 3680, Page 50, and dated October 17, 1956, Official Records of Orange County,
thence Northeasterly along the Easterly line of said Parcel No. 1 to an intersection with
the Southerly line of that certain parcel of land described in deed to the State of
California from the County of Orange recorded in Book 293, Page 158, and dated June
29, 1929, Official Records of Orange County; thence Easterly along the Southerly line of
said last mentioned parcel of land to an intersection with the Westerly line of the
aforementioned Lot L of said Tract 919, thence South 11 ° 57' 35" West along the
Westerly line of said Lot L, to the Point of Beginning (P.O.B.).
As described in a Grant Deed, recorded July 16, 1997, in OR 19970335011
Area contains approximately 61,140 square feet (1.404 acres)
EXHIBIT "G"
5
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P.O.B.
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US Bulkhead Stations
Parcell
Grant Deed - OR 19970335011 C1r �GScDiAl.n
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Oct.b- ]0, 2015
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61,140 sq fl
C,
1.404 acres
Z1,
480.00' r
P.O.B.
I Inch 75 feet
F®5
US Bulkhead Stations
Parcell
Grant Deed - OR 19970335011 C1r �GScDiAl.n
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Oct.b- ]0, 2015
N—, Mw.w TM033501—d
Parcel 2 (APN 049-130-25)
Beginning at a point (P.O.B.) on the U.S. Pierhead and Bulkhead line, between U.S.
Bulkhead Stations No. 227 and 128, as shown on a map, dated March 20, 1936, File
No. 958 on file in the U.S. Engineer's Office, Los Angeles, California, entitled "Harbor
Lines Newport Bay Harbor", California:
Distant thereon S 790 02' 20" E, 11.95 feet from said Station No. 227, thence continuing
S 790 02' 20" E, 38.39 feet, thence N 150 14'50" E, 117.14 feet to a non -tangent curve
concave southeasterly, having a radius of 121.00 feet, and a radial line bearing S 39°
08'48" E, thence southwesterly along said curve 34.90 feet through an angle of 160 31'
28" to the beginning of a compound curve concave southeasterly having a radius of
286.00 feet, thence southwesterly 46.74 feet along said curve through an angle of 9°
21" 49" to the beginning of a reverse curve concave northwesterly, having a radius of
326.00 feet, thence southwesterly 45.23 feet along said curve through an angle of 7°
56'58" to the point of beginning (P.O.B.).
As described as "Parcel 2" in a Grant Deed, recorded Oct 17, 1956, in OR 3680/50
Area contains approximately 2,660 square feet (0.061 acres)
EXHIBIT "G"
7
8
1::1:I1-9Yi"
GRANT OF EASEMENT FOR PUBLIC ACCESS
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
CITY OF NEWPORT BEACH
P.O. BOX 1768
Newport Beach, CA 92658-1768
Attention: Real Property Administrator
WITH A CONFORMED COPY TO:
Golden Hills Properties, LLC
C/O: Jackson Tidus
2030 Main Street, Suite 1200
Irvine, California 92614
Attention: Gregory Powers
Recording Fee: Exempt
(Government Code — Section 6103)
(Space above this line for Recorder's use)
GRANT OF EASEMENT FOR
PUBLIC ACCESS
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, GOLDEN
HILLS PROPERTIES, LLC, a California limited liability company, DBA Newport Marina
("Grantor"), owner of certain interests in the real property described herein situated in the City
of Newport Beach, County of Orange, State of California, hereby grant(s) to the CITY OF
NEWPORT BEACH, a municipal corporation and charter city ("Grantee"), a non-exclusive,
perpetual sidewalk and public access easement for pedestrian access to Newport Harbor, in,
under, over, along, and across certain real property ("Easement") described on Exhibit 1 and
depicted on Exhibit 2 attached hereto (the "Easement Area").
EXHIBIT "G"
9
IN WITNESS WHEREOF, Grantor has executed this Grant of Easement as of
, 20_. This Grant of Easement shall not be effective for any purpose unless
and until the Acceptance below has been duly executed by Grantee.
"GRANTOR"
GOLDEN HILLS PROPERTIES, LLC,
a California limited liability company, DBA
Newport Marina
IN
Michael Delijani
Manager
Shahram Delijani
Manager
EXHIBIT "G"
10
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
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.
(seal)
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
EXH I BIT "G"
11
CERTIFICATE OF ACCEPTANCE
This CERTIFICATE OF ACCEPTANCE is to certify that the interest in real property conveyed
by this Grant of Easement dated , 2018, by and between the City of
Newport Beach, a municipal corporation, as Grantee, and Golden Hills Properties, LLC, a
California limited liability company, DBA Newport Marina as Grantor, is hereby accepted on
20_, by the undersigned officer on behalf of the City of Newport
Beach pursuant to authority conferred by Resolution No. 1992-82 of the City Council adopted
on July 27, 1992. The City consents to the recordation of said document in the Office of the
Recorder of Orange County, State of California.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
By:
Aaron C. Harp
City Attorney
ATTEST:
By:
Leilani I. Brown
City Clerk
EXHIBIT "G"
12
CITY OF NEWPORT BEACH,
a California municipal corporation
Dave Kiff
City Manager
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
EXHIBIT "G"
13
Exhibit 1
Description of Easement Area
Parcel "A" (A six foot wide Pedestrian Access Easement)
A six foot wide easement for pedestrian access purposes, situated in the City of
Newport Beach, County of Orange, State of California, being a portion of Section 28,
T6S, R10W, SBBM, and the centerline of which is described as follows:
Beginning at a the Northwest comer of Lot L, Tract 919, recorded in Miscellaneous Map
Book 29, Pages 31-34, Official Records of Orange County, California, said Westerly line
to point bears North 11057'35" East, and Northerly of U.S. Bulkhead line between U.S.
Bulkhead Station No. 128 and 128A, as said U.S. Bulkhead Lines and Stations are laid
out and shown upon a map titled "Harbor Lines, Newport Bay Harbor", approved by the
Secretary of the Army, February 15, 1951 and on file in the U.S. District Engineer's
Office, Los Angeles, California, a radial line through said point bears North 270 20' East
(and also shown as "North 25° 00' East"); thence Westerly along a curve concave to the
South and having a radius of 1550.00 feet and a central angle of 3° 24' 34" an arc
distance of 92.22 feet to the True Point of Beginning, thence South 110 57' 35" West,
a distance of 79.24 feet, thence North 770 41' 03" West, a distance of 14.70 feet,
thence South 110 57' 35" West, a distance of 93.17 feet, to the northerly line of a 10
foot wide Pedestrian Access easement, as described as Parcel B hereon. Said land is
included within a portion of the area shown on a map files in Book 21, Page 44 of
Record of Surveys, in the office of the County Recorder of said County. As described in
a Grant Deed, re-recorded July 28, 1999, in Official Records 19990550385.
Area contains approximately 1,120 square feet (0.026 acres), more or less.
Parcel "B" (A ten foot wide Pedestrian Access Easement)
A ten foot wide strip of land along the bay frontage for public pedestrian access
purposes, situated in the City of Newport Beach, County of Orange, State of California,
being a portion of Section 28, T6S, R1 OW, SBBM, the Southerly line of which described
as follows:
Beginning at a point (P.O.B.) on the Westerly line of Lot L, Tract 919, recorded in
Miscellaneous Map Book 29, Pages 31-34, Official Records of Orange County,
California, said Westerly line bears North 11'57'35" East, said point being distant 40.00
feet measured along said Westerly line of Lot L, and Northerly of U.S. Bulkhead line
between U.S. Bulkhead Station No. 128 and 128A, as said U.S. Bulkhead Lines and
Stations are laid out and shown upon a map titled "Harbor Lines, Newport Bay Harbor",
approved by the Secretary of the Army, February 15, 1951 and on file in the U.S.
District Engineer's Office, Los Angeles, California, thence North 790 02' 19" West, a
distance of 368.19 feet, thence North 37° 06' 13" E, a distance of 3.05 feet, thence N
52° 53'52" West a distance of 12.5 feet, thence South 370 06' 08" West, a distance of
37.43 feet, thence South 520 53' 52" East, a distance of 12.5 feet, thence South 37° 06'
08" West, a distance of 137.42 feet, thence South 180 30' 56" West, a distance of 90.71
feet, thence South 880 54' 01" West, a distance of 140.33 feet, to the southwesterly
EXHIBIT "G"
14
prolongation of the northwesterly line of that certain parcel of land described in deed to
the State of California from the City of Newport Beach, recorded in Book 3111, Page
125, and dated June 12, 1955, Official Records of Orange County, California, and as
shown on a Record of Survey, recorded in RS Book 220, Pages 44-50, and dated June
27, 2007, Official Records of Orange County, California. Said land is included within a
portion of the area shown on a map files in Book 21, Page 44 of Record of Surveys, in
the office of the County Recorder of said County. As described in a Grant Deed, re-
recorded July 28, 1999, in Official Records 19990550385.
Area contains approximately 8,000 square feet (0.184 acres), more or less.
EXHIBIT "G"
15
Exhibit 2
Depiction of Easement Area
COAST HWY W
IPA(taELA
'PAgD:LB �6'wldel
tIIr wide)
Pedestrian Access Easements
(Newport Marina Parcels)
EXHIBIT "G"
16
U.M.
IMA).
34
+� Easement Arca
a US Buftead Stati m
/-` Bulkhead/Pierhead
EXHIBIT "H"
NONEXCLUSIVE LICENSE AGREEMENT
This NONEXCLUSIVE LICENSE AGREEMENT ("License") is entered into as of
2018 ("Effective Date") by and between GOLDEN HILLS
PROPERTIES, LLC, a California limited liability company, DBA Newport Marina
("Licensor"), and the CITY OF NEWPORT BEACH, a municipal corporation and charter
city ("Licensee"). Licensor and Licensee are sometimes referred to herein individually
as a "Party" and collectively as "Parties."
RECITALS
A. Licensor is the fee owner of certain upland parcels located at 3333 and
3335 West Pacific Coast Highway (A.P.N.'s 049-130-25 and 049-130-22, respectively),
in the City of Newport Beach, California, and as more particularly described and
depicted on Exhibit 1 attached hereto and incorporated by reference ("Property").
B. Licensor desires to grant Licensee vehicular access across the Property
owned or controlled by Licensor, in, over, along, and across the Property ("License") to
access adjacent property owned by Licensee.
C. Licensor and Licensee desire to enter into this License in connection with
the Lease Agreement (With Option for Renewal) ("Agreement") dated July 1, 2018,
and recorded via the Memorandum of Lease as Document No. in the
Official Records of Orange County, California.
D. The parties agree that Licensee's right to perform certain acts within the
portions of the Property owned or controlled by Licensor will be upon and subject to the
terms, covenants and conditions herein set forth, and Licensee covenants as a material
part of the consideration for this License to keep and perform each and all said terms,
covenants and conditions and the parties further agree that this License is made upon
condition of such performance.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth, the parties hereto agree as follows:
1. LICENSE OF PROPERTY.
Licensor hereby licenses to Licensee, and Licensee licenses from Licensor,
vehicular access across portions of the property owned or controlled by Licensor, in,
over, along, and across certain real property as more particularly described and
depicted on Exhibit 2. Licensee shall not be permitted to use any other area on the
Property without the prior, express written consent of Licensor.
EXHIBIT "H"
-1-
2. TERM.
The term of the License ("Term") shall commence concurrently with the
Agreement on July 1, 2018 ("Commencement Date") and continue in full force and
effect for as long as the Agreement, or any extension thereof or amendment thereto,
remains in effect ("Expiration Date"). Upon expiration or termination of the Agreement,
this License shall also expire or terminate, as applicable, within thirty (30) calendar days
of such expiration or termination.
3. RESERVED.
4. HOLDING OVER.
If Licensee holds over after the Expiration Date, with or without the express or
implied consent of Licensor, such tenancy shall be from day-to-day only, and shall not
constitute a renewal hereof or an extension for any further term of the Agreement.
5. PERMITTED USE.
Licensee and its agents, guests, invitees shall be allowed vehicular access in,
over, along, and across the Property.
6. TAXES.
No payment of taxes shall be due by or from Licensee in exchange for a
reservation of rights under this non-exclusive License.
7. UTILITY SERVICES.
Licensor shall provide the lighting necessary for the efficient operation of the
Property, as defined by the Agreement. No payment or reimbursement by Licensee
shall be due or owed for utility services to the Property.
8. RESERVED.
9. RESERVED.
10. INDEMNITY.
Licensee agrees to indemnify, defend, and hold Licensor and each of its
subsidiaries, Boards of Directors, Officers, Employees, and Agents and managers
("Indemnities" and "Indemnified Parties"), harmless from any claim, cause of action,
damage, liability or costs, including reasonable attorney's fees and costs of defense,
arising from or related to Licensee's use of the Property.
PYWIRIT "H"
-2-
Licensor agrees to indemnify, defend, and hold Licensee, its City Council, boards
and commissions, officers, volunteers, and employees ("Further Indemnified Parties"),
harmless from any claim, cause of action, damage, liability or costs, including
reasonable attorney's fees and costs of defense, arising from or related to Licensor's
use of the Property.
11. RESERVED.
12. ASSIGNMENT/SUBLETTING.
Licensees may only assign, sublet, mortgage, or otherwise transfer or encumber its
interest in this License or the property Licensed hereunder with the prior written consent
of Licensor.
13. DEFAULT.
It is agreed between the parties hereto that if Licensor shall default and breach any
covenant or provision of this License, then the Licensee, in connection with the License
and after giving the proper notice required by law, shall consider such breach by
Licensor to be a material breach of the Agreement. In addition, the Licensee may
recover all rentals and any other damages and pursue any other rights and remedies
which the Licensee may have against the Licensor under the Agreement and by reason
of such default as provided by law. Any breach of the Agreement by Licensor shall
terminate this License.
14. NOTICES.
Whenever under the License provision is made for notice or demand, it shall be
in writing and signed by or on behalf of the party giving the notice or making the
demand; it shall be served either personally or by registered or certified mail; if served
personally, service shall be conclusively deemed made upon delivery; if served by
registered or certified mail, service shall be conclusively deemed made seventy-two (72)
hours after the deposit thereof in the United States mail, postage prepaid, with return -
receipt requested. Any notice or demand to either party shall be given at the addresses
appearing below:
Licensor:
Golden Hills Properties, LLC
CIO: Jackson Tidus
2030 Main Street, Suite 1200
Irvine, CA 92614
Attn: Gregory Powers
Licensee:
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92663
Attn: Public Works Director
Either party may change its address for purposes of this paragraph by notifying the
other party of such change by the methods herein provided.
EXHIBIT "H"
-3-
15. RESERVED.
16. DAMAGE.
Licensee shall be responsible to repair any damage to the Property that is solely
attributable to Licensee. If Licensee fails to make any repairs to the Licensed property
for more than fifteen (15) days after written notice from Licensor (although notice shall
not be required if there is an emergency), Licensor may make the repairs, and Licensee
shall pay the reasonable cost of the repairs to Licensor within thirty (30) days after
receipt of an invoice.
17. LICENSOR DEVELOPMENT RIGHTS.
Licensor has the right to make such changes to the Property as Licensor deems
appropriate, provided the changes do not, except temporarily during any construction,
materially affect Licensee's ability to use the Property for the Permitted Use. Licensor
shall also have the right (but not the obligation) to temporarily close the Property if
Licensor reasonably determines that there is an imminent danger of significant damage
to the Property or of personal injury to Licensor's employees. The circumstances under
which Licensor may temporarily close the Property shall include, without limitation,
electrical interruptions, hurricanes, civil disturbances, or an internal or regional disaster.
Licensor shall use commercially reasonable efforts to re -open the Property following
such temporary closure as soon as reasonably practicable. Licensor hereby waives any
and all rent offsets, damage claims or claims of constructive eviction which may arise in
connection with such activities. Licensee shall retain the right to access Licensee's
property, regardless of the configuration or construction status of the Parking Areas.
18. RESERVED.
19. LEASE AGREEMENT.
The Property is subject to the Agreement by and between Licensor and the
Lessee. Licensee will not undertake any activities that do not comply with the
Agreement. For the purposes hereof, "claims" is defined to include, without limitation,
obligations, liabilities, claims, liens, encumbrances, actions, causes of action, losses,
damages, costs, expenses and attorneys' fees and costs; and in case any action or
proceeding is brought against Licensor by reason of any such claim, Licensee, upon
notice from Licensor, agrees to defend the same at Licensee's sole cost and expense
by counsel reasonably satisfactory to Licensor.
20. MISCELLANEOUS.
a) Waiver of Default. The waiver of either party of any default in the
performance by the other party of any covenant contained herein shall not be construed
to be a waiver of any preceding or subsequent default of the same or any other
covenant contained herein.
EXHIBIT "H"
-4-
b) Successors. Subject to any restrictions or assignment set forth herein,
each and every covenant and condition of this License shall bind and inure to the
benefit of the parties hereto and their respective heirs, legal representatives,
successors, and assigns.
C) Interpretation. The captions for each of the paragraphs of this License are
inserted for convenience only and shall have no effect upon the interpretation of this
License. If either party consists of more than one person, each person shall be jointly
and severally liable hereunder. No provisions of this License shall be interpreted for or
against either party because that party or that party's legal representative drafted such
provision.
d) Request for Consent of Approval. Whenever under the terms of this
License either Licensor's or Licensee's consent or approval is required as a condition to
action by the other party, the request for such consent or approval shall be in writing.
e) No Benefit to Third Parties. The parties acknowledge and agree that the
provisions of this License are for the sole benefit of Licensor and Licensee and not for
the benefit, directly, or indirectly, of any other person entity, except as otherwise
expressly provided herein.
f) No Brokers. Licensor and Licensee each represents and covenants to the
other that there are no brokerage commissions or finder's fees payable with respect to
the transactions contemplated by this License. Each party agrees to indemnify, defend,
and hold the other party harmless from and against all demands, claims, losses,
liabilities, actions, causes of action or costs and expenses, including, without limitation,
attorney's fees, of any kind arising out of a contention by any person or entity that any
real estate commission or finder's fee is payable because of the acts of such
indemnifying party. If such claim for a real estate commission or finder's fee is claimed
by reason of the actions of both parties, the party whose actions first gave rise to such
claims shall be responsible therefore.
g) Entire Instrument. This License contains the parties entire agreement with
respect to subject matter hereof and the parties agree and acknowledge that any and all
agreements and discussions heretofore or contemporaneously made by the parties with
respect to the subject matter hereof are set forth in this License. This License cannot
be modified in any respect, except by a writing executed by both of the parties hereto.
h) Use of Language. Words of any gender used in this License shall be held
and construed to include any other gender, and words in the singular shall be held to
include the plural, unless the context requires otherwise.
i) Severability. In the event that any provision of this License is found to be
invalid, unenforceable, or illegal, it shall be deemed deleted from the License, and the
EXHIBIT "H"
-5-
balance of the provisions of this License shall be valid and enforceable as to the parties
as if the deleted portion were never a party hereof.
j} No Attorney's Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing party shall not be entitled to attorneys' fees.
[SIGNATURES ON NEXT PAGE]
EXHIBIT "H"
-6-
LICENSOR: GOLDEN HILLS PROPERTIES, LLC,
A California limited liability company, DBA
Newport Marina
By:
Name: Michael Delijani
Title: Manager
By:
Name
Title:
Shahram Delijani
Manager
LICENSEE: CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Name: Dave Kiff
Title: City Manager
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 1431 g
By:
Aaron C. Harp
City Attorney
ATTEST:
Date:
Leilani I. Brown
City Clerk
EXHIBIT "H"
-7-
EXHIBIT 1
Parcel 1 (APN 049-130-22)
A parcel of land situated in the City of Newport Beach, County of Orange, State of
California, being a portion of Section 28, T6S, R10W, SBBM, and more particularly
described as follows:
Beginning at a point (P.O.B.) on the Westerly line of Lot L, Tract 919, recorded in
Miscellaneous Map Book 29, Pages 31-34, Official Records of Orange County,
California, said Westerly line bears North 11 057'35" East, said point being distant 60.00
feet measured along said Westerly line of Lot L, and Northerly of U.S. Bulkhead line
between U.S. Bulkhead Station No. 128 and 128A, as said U.S. Bulkhead Lines and
Stations are laid out and shown upon a map titled "Harbor Lines, Newport Bay Harbor",
approved by the Secretary of the Army, February 15, 1951 and on file in the U.S.
District Engineer's Office, Los Angeles, California, a radial line through said point bears
North 270 20' East (and also shown as "North 250 00' East'); thence Westerly along a
curve concave to the South and having a radius of 480.00 feet and a central angle of
460 16' 46" an arc distance of 387.71 feet to an intersection with the aforementioned
U.S. Bulkhead Line a distance of 49.27 feet more or less to the Southeasterly corner of
Parcel No. 2 of that certain easement described in deed to the State of California from
the City of Newport Beach, recorded in Book 3680, Page 54, and dated October 17,
1956, Official Records of said Orange County, thence Northeasterly along the Easterly
line of Parcel No. 2 to an intersection with the Southeasterly line of Parcel No. 1,
described in deed to the State of California from the County of Orange, recorded in
Book 3680, Page 50, and dated October 17, 1956, Official Records of Orange County,
thence Northeasterly along the Easterly line of said Parcel No. 1 to an intersection with
the Southerly line of that certain parcel of land described in deed to the State of
California from the County of Orange recorded in Book 293, Page 158, and dated June
29, 1929, Official Records of Orange County; thence Easterly along the Southerly line of
said last mentioned parcel of land to an intersection with the Westerly line of the
aforementioned Lot L of said Tract 919, thence South 11* 57' 35" West along the
Westerly line of said Lot L, to the Point of Beginning (P.O.B.).
As described in a Grant Deed, recorded July 16, 1997, in OR 19970335011
Area contains approximately 61,140 square feet (1.404 acres)
EXHIBIT "H"
-8-
COAST HWY W
ri
r
1 inch = 75 feet
a vs 75
Parcel I
Grant Deed - OR 19970335011
EXHIBIT "H"
-9-
o US Bulkhead Stations
to
air of N—pw..h
GIs VM'.
0,10-30,2015
61,140 sq A
1.404 acres
Uj Cr;
F, In
PC
480.00, r
1 inch = 75 feet
a vs 75
Parcel I
Grant Deed - OR 19970335011
EXHIBIT "H"
-9-
o US Bulkhead Stations
to
air of N—pw..h
GIs VM'.
0,10-30,2015
Parcel 2 (APN 049-130-25)
Beginning at a point (P.O.B.) on the U.S. Pierhead and Bulkhead line, between U.S.
Bulkhead Stations No. 227 and 128, as shown on a map, dated March 20, 1936, File
No. 958 on file in the U.S. Engineer's Office, Los Angeles, California, entitled "Harbor
Lines Newport Bay Harbor", California:
Distant thereon S 790 02' 20" E, 11.95 feet from said Station No. 227, thence continuing
S 790 02' 20" E, 38.39 feet, thence N 150 14'50" E, 117.14 feet to a non -tangent curve
concave southeasterly, having a radius of 121.00 feet, and a radial line bearing S 39°
08'48" E, thence southwesterly along said curve 34.90 feet through an angle of 160 31'
28" to the beginning of a compound curve concave southeasterly having a radius of
286.00 feet, thence southwesterly 46.74 feet along said curve through an angle of 90
21" 49" to the beginning of a reverse curve concave northwesterly, having a radius of
326.00 feet, thence southwesterly 45.23 feet along said curve through an angle of 70
56'58" to the point of beginning (P.O.B.).
As described as "Parcel 2" in a Grant Deed, recorded Oct 17, 1956, in OR 3680150
Area contains approximately 2,660 square feet (0.061 acres)
EXHIBIT "H"
-10-
0
0 COAST HWY W
2,660 sq ft
s,5
39.
P.O. B. s 79.38-02-20
I inch = feet
0 20 US Bulkhead Stations
Parcel 2
Ory f N. -p- 8-h
Grant Deed - OR 3680/50 GIS DN61—
3crob a 20, 2015
L
EXHIBIT "H"
-11-
EXHIBIT "I"
INSURANCE
Without limiting Lessee's indemnification of Lessor, Lessee will obtain, provide and
maintain at its own expense during the Term of this Agreement, a policy or policies of
insurance of the type, amounts and form acceptable to Lessor. The policy or policies
shall provide, at a minimum, those items described below.
(a) Coverage Requirements
(i) Workers' compensation insurance providing statutory benefits and
Employer's Liability Insurance in an amount not less than One
Million Dollars ($1,000,000) each accident, each employee and
policy limit. Coverage shall include USL&H and Maritime
Coverages as appropriate. In addition, Lessee shall require each
subtenant or subcontractor to similarly maintain workers
compensation insurance and employer's liability insurance,
including USL&H and Maritime Coverages as appropriate, in
accordance with the laws of the State of California for all of the
subtenant's or subcontractor's employees. The insurer shall agree
to waive all rights of subrogation against Lessor, its officers, agents,
employees and volunteers for losses arising from work performed
by Lessee for Lessor, by endorsement to the policy.
(ii) Commercial general liability insurance in an amount not less than
Two Million Dollars ($2,000,000) per occurrence and Four Million
Dollars ($4,000,000) General Aggregate for bodily injury, personal
injury, and property damage. Coverage shall be at least as broad
as that provided by Insurance Services Office form CG 00 01 and
may be arranged through any combination of primary and excess
insurance as required to achieve the limits specified provided that
any excess liability policy does not restrict coverage provided in the
primary policy. Other policy forms may be acceptable if more
appropriate to the exposures, such as Marina Operator's Liability
insurance. None of the policies required herein shall be in
compliance with these requirements if they include any limiting
endorsement that has not been first submitted to City and approved
in writing.
(iii) Contractor's pollution liability insurance for contractors or
subcontractors performing construction work written on a form
acceptable to City providing coverage for liability arising out of
sudden, accidental and gradual pollution. The policy limit shall be
no less than One Million Dollars ($1,000,000) per claim and in the
aggregate for contractors and between Two Million Dollars
PY141PIT "I"
an
($2,000,000) and Five Million Dollars ($5,000,000) for Lessee, as
determined by Lessor depending on services offered by Lessee on
the Premises (e.g., fuel dock, boat repair, etc.). When this
insurance is required, all activities comprising the work shall be
specifically scheduled on the policy as "covered operations." The
policy shall provide coverage for the hauling of waste from the
Premises to the final disposal location, including non -owned
disposal sites. Products/completed operations coverage shall
extend a minimum of three (3) years after completion of the work.
(iv) Pollution legal liability applicable to bodily injury; property damage,
including loss of use of damaged property or of property that has
not been physically injured or destroyed; cleanup costs; and
defense, including costs and expenses incurred in the investigation,
defense, or settlement of claims; all in connection with any loss
arising from the insured facility. Coverage shall be maintained in an
amount of at least One Million Dollars ($1,000,000) per loss, with
an annual aggregate of at least One Million Dollars ($1,000,000).
(b) Endorsements: Policies shall contain or be endorsed to contain the
following provisions:
(i) Lessor, its elected or appointed officers, officials, employees,
agents and volunteers are to be covered as an additional insured
under all general and pollution liability policies with respect to
liability arising out of lessee's activities related to this Agreement
and with respect to use or occupancy of the Premises.
(ii) The insurer waives all rights related to workers' compensation
subrogation against Lessor, its elected or appointed officers,
officials, employees, agents and volunteers.
(iii) The insurance required by this agreement shall not be suspended,
voided, canceled, or reduced in coverage or in limits.
(c) Additional Requirements
(i) All insurance shall be written on an occurrence -made form, except
the Pollution Liability policy which is on a claims -made form of
insurance requiring the Lessee to provide proof of coverage
(extending reporting) for a minimum of three (3) years following
termination of lease agreement; and
(ii) In the event Lessor determines that (i) the Lessee's activities in the
Premises creates an increased or decreased risk of loss to the
Lessor, (ii) greater insurance coverage is required due to the
passage of time, or (iii) changes in the industry require different
coverages be obtained, Lessee agrees that the minimum limits of
PYWIRIT "I"
Irz
any insurance policy required to be obtained by Lessee may be
changed accordingly upon receipt of written notice from Lessor;
provided that Lessee shall have the right to appeal a determination
of increased coverage to the City Council within fourteen (14)
calendar days of receipt of notice from the Risk Manager in the
manner provided in Municipal Code Section 17.65.010 et seq. (or
any amended or successor Code section or ordinance) If Lessee
fails to timely appeal a decision, it shall be deemed final. With
respect to changes in insurance requirements that are available
from Lessee's then -existing insurance carrier, Lessee shall deposit
certificates evidencing acceptable insurance policies with Lessor
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 Lessee's then- existing
insurance carrier, Lessee shall deposit certificates evidencing
acceptable insurance policies with Lessor, incorporating such
changes, within ninety (90) calendar days of receipt of such notice.
All insurance policies shall be issued by an insurance company
currently authorized by the California 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 Lessor.
(iv) All licensees, sub -lessees (not including slip renters) and
concessionaires shall be subject to the insurance requirements
contained herein unless written approval is granted by the Lessor.
(v) Lessee shall provide certificates of insurance, with original
endorsements as required above, to Lessor as evidence of the
insurance coverage required herein. Insurance certificates must be
approved by Lessor prior to commencement of performance or
issuance of any permit. Current certification of insurance shall be
kept on file with Lessor at all times during the Term of this
Agreement.
(vi) All required insurance shall be in force on the Commencement
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 Lessee.
(vii) If Lessee fails or refuses to maintain insurance as required in this
Agreement, or fails to provide proof of insurance, Lessor has the
right to declare this Agreement in default without further notice to
Lessee, and Lessor shall be entitled to exercise all available
remedies.
PYWIRIT "I"
162
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
City Clerk's Office
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
EXHIBIT "J"
[Exempt from Recordation Fee - Govt. Code Sec. 61031
MEMORANDUM OF LEASE AGREEMENT
(WITH OPTION FOR RENEWAL)
This Memorandum of Lease Agreement (With Option for Renewal) ("Memorandum") is
dated July 1, 2018, and is made between City of Newport Beach, a California municipal
corporation and charter city ("Lessor' or "City") and Golden Hills Properties, LLC, a
California limited liability company, DBA Newport Marina ("Lessee"), concerning the
Premises described and depicted in Exhibit "1" attached hereto and by this reference
made a part hereof.
For good and adequate consideration, Lessor leases the Premises to Lessee, and
Lessee hires them from Lessor, for the term and on the provisions contained in the
Lease Agreement (With Option for Renewal) ("Agreement") dated July 1, 2018,
including without limitation, provisions prohibiting assignment, subleasing, and
encumbering said leasehold without the express written consent of Lessor in each
instance, all as more specifically set forth in said Agreement, which said Agreement is
incorporated into this Memorandum by this reference.
The tern of the Agreement is ten (10) years, beginning July 1, 2018, and ending June
30, 2028, If Lessee is not in default of its obligations under the Agreement, has
completed improvements to the docks as outlined in the Agreement, and upon the
agreement of the City, then Lessee shall have the option to extend the Term of the
Lease Agreement for one (1) additional successive Renewal Term of thirty (30) years,
on the same terms and conditions contained in the Agreement. As provided by the
Tidelands Grant, in no event shall the Term and any Renewal Terms exceed a total of
fifty (50) years.
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
shall control. Execution hereof constitutes execution of the Agreement itself.
[Signatures on the next page]
EXHIBIT "J"
-1-
City of Newport Beach
A California municipal corporation
By:
Dave Kiff
City Manager
Uu t-*ts
Leilani I. Brown
City Clerk
APPROVED AS TO FORM:
Aaron C. Harp �^^ ou��i►�
City Attorney
LESSEE
Golden Hills Properties, LLC, a California
limited liability corporation, DBA Newport
Marina
Bv:
Michael Delijani
Manager
By:
Shahram Delijani
Manager
EXHIBIT "J"
-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
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.
(seal)
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
EXHIBIT "J"
-3-
EXHIBIT 1
Parcel 4 (APN 049-130-26)
A parcel of land situated in the City of Newport Beach, County of Orange, State of
California, being a portion of Section 28, T6S, R10W, SBBM, and more particularly
described as follows:
Beginning at the U.S. Bulkhead Station No. 227A (P.O.B.), as U.S. Bulkhead Lines and
Stations are laid out and shown upon a map titled "Harbor Lines, Newport Bay Harbor",
approved by the Secretary of the Army, February 15, 1951, and on file in the U.S.
District Engineer's Office, Los Angeles, California; thence northwesterly along the
northwesterly prolongation of the U.S. Bulkhead Line between U.S. Bulkhead Stations
No. 227A and 227B in a direct line, N 79° 02-20 W, a distance of 28.23 feet, to the
northeast comer of that certain parcel of land described in deed to the State of
California from the City of Newport Beach, recorded in Book 3111, Page 125, and dated
June 12, 1955, Official Records of Orange County, California; thence southwesterly
along a non -tangent curve concave to the northwest, a radial line through said point
bears North 560 09' 33 West , having a radius of 326.00 feet and a central angle of 060
50' 46", an arc distance of 38.95 feet; thence S 18° 37' 40" W, a distance of 39.51 feet,
thence S 42° 37' 40" W, a distance of 77.97 feet, thence S 60° 26' 17 W, a distance of
90.00 feet to the southwesterly prolongation of the northwesterly line of said parcel of
land, as shown on a Record of Survey, recorded in RS Book 220, Pages 44-50, and
dated June 27, 2007, Official Records of Orange County, California; thence S 180 37'
40' W, a distance of 34.79 feet to an intersection with the North Channel Reservation
Line as recorded in Book 162, Page 1, Official Records of said Orange County; thence
easterly along said Channel Reservation Line and its northeasterly prolongation, N 880
54' 01" E, a distance of 138.65 feet, to the U.S. Bulkhead Station No. 226A, as said
Bulkhead Stations are laid out and shown upon a map titled "Harbor Lines, Newport Bay
Harbor"; thence northeasterly along U.S. Bulkhead Line between U.S. Bulkhead
Stations No. 226A and 227A, N 180 37' 40" E ,a distance of 85.88 feet; thence
northeasterly in a direct line to U.S. Bulkhead Station No. 227B, N 360 37' 03" E, a
distance of 129.32 feet; thence northwesterly along U.S. Bulkhead Line, N 790 02' 20"
W, a distance of 40.80 feet to U.S. Bulkhead Station No. 227A, the point of beginning
(P.O.B.).
Area contains approximately 17,210 square feet (0.395 acres), more or less.
A portion described in a Grant Deed, recorded June 12, 1955, in Book 3111, Page 125
of Official Records of Orange County
A portion described in a Record of Survey, recorded June 27, 2007, in RS Book 220,
Pages 44-50 of Official Records of Orange County
A portion shown on ALTA Survey, filed 01/06/1989 by Douglas R Howard, PLS 6169
(per Psomas and Associates)
EXHIBIT "J"
-4-
�orth Channel Reservation Line
1
1 inch = 40 feet
US Bulkhead Stations
Parcel 44
Grant Deeds - OR 162/ 1, OR 311 1/125
c1r °r Ne.° ee° ti
1 Record of Survey - RS 220/44-50cls o;.hh.
F.U,—,, 16, 7016
EXHIBIT "J"
-5-
1
P.O.B. j
79.02-20E 40.g
N 79 02-20
`
E
/
f
l ,y
�
pA�'b
�
1 �
2
f
A
1
f
f
.
/
1hr j
4#ta�i� �,. T ^bf
•. '"`^qtr.'..
k
�'+ 03D5 aaas
1 e y a
1
f
g0
�
f
V%
�y
139,85
88-54-01 E 2'
�orth Channel Reservation Line
1
1 inch = 40 feet
US Bulkhead Stations
Parcel 44
Grant Deeds - OR 162/ 1, OR 311 1/125
c1r °r Ne.° ee° ti
1 Record of Survey - RS 220/44-50cls o;.hh.
F.U,—,, 16, 7016
EXHIBIT "J"
-5-
COAST HWY W
JJJS
JJJJ
J/J}
m
ti
O
T V R N I N I G
B A 5 1 N
t
f of p F
�
Laasad Tidelands
D US Bulkhead Stations
-
e '�
N Bulkhud/Plerhod
Jr
Leased Tidelands
)�
4
(Newport Marina - Golden Hills Properties, LLC)
f
s.a.Ts.•a'.:ov
EXHIBIT "J"
-6-
EXHIBIT "T
-7-
EXHIBIT "K"
DEPICTION OF PROPERTY
COAST HWY W
'! '-13023
58,166 sf
0.34 .Cres)
AFN (Tidelands)
TURNING
BASIN
3333
3f3t
AVN 049 3121
13022
Sv
e
2
at lr Newport Marina (Overall prope rty)
I�
e T
Cj Leased Tidelands �.
Site Property & Leased Tidelands
(Newport Marina - Golden Hills Properties, LLC)
`'°o. --°'°°
J
'-'-07,2017
EXHIBIT "K"
-1-
EXHIBIT "K"
-2-