HomeMy WebLinkAboutC-7347-1 - West Pacific Coast Highway, 3333 and 3335 - Nonexculsive License Agreement 2018NONEXCLUSIVE LICENSE AGREEMENT
This NONEXCLUSIVE LICENSE AGREEMENT ("License") is entered into as of
w& - , 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."
RFrITAI S
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.
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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.
Licensor 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. No payment or reimbursement by
Licensee shall be due or owed for utility services to the Property.
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.
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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: Licensee:
Golden Hills Properties, LLC City of Newport Beach
C/O: Jackson Tidus 100 Civic Center Drive
2030 Main Street, Suite 1200 Newport Beach, CA 92663
Irvine, CA 92614 Attn: Public Works Director
Attn: Gregory Powers
Either party may change its address for purposes of this paragraph by notifying the
other party of such change by the methods herein provided.
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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.
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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
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.
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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.
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LICENSOR: GOLDEN HILLS PROPERTIES, LLC,
A California limited liability company DBA
Newport Marina
By: -
Name: Michael D 'ani
Title: Manager
By:
Name: Shahram D ijani
Title: Manager
LICENSEE: CITY OF NEWPORT BEACH,
a California municipal corporation
Date:'
By:
Name: Da Kiff
Title: City Manager
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 1 113 I &
C
By:
Aaron C. Harp
City Attorney
ATTEST:
Date3 Q,��
:
in
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 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 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 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 110 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)
COAST HWY W
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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 15° 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 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 3680/50
Area contains approximately 2,660 square feet (0.061 acres)
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