HomeMy WebLinkAboutC-8316-3 - Harbor Island Drive, 829 - Lease 2019 (Tenant 4) "Balboa Yacht Basin"1
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DO
1
LEASE AGREEMENT
by and between
CITY OF NEWPORT BEACH,
a California municipal corporation and charter city
"City"
and
PACIFIC METALS GROUP, LLC
a California limited liability company
(D. B.A. Pacmet)
"Tenant"
Dated as of November 1, 2019
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Agreement") is made and entered into as of the 1st
day of November, 2019 ("Effective Date"), by and between the CITY OF NEWPORT
BEACH, a municipal corporation and charter city ("City") and PACIFIC METALS GROUP,
LLC (doing business as PACMET), a California limited liability company ("Tenant"). City
and Tenant are at times individually referred to as "Party" and collectively as "Parties"
herein.
RECITALS
A. City is the owner of certain harbor frontage and tidelands, together with
certain abutting upland property commonly known as the "Balboa Yacht Basin," located
at 829 Harbor Island Drive, Newport Beach, California, Assessor's Parcel Number 050-
210-02. The Balboa Yacht Basin includes a public marina, public restrooms, shipyard,
parking lot, garage buildings used for storage, and buildings with residential apartments,
offices and a restaurant ("Property"), as legally described and further depicted on Exhibit
"A" attached hereto and incorporated herein by reference. The Property includes Suite D-
2, a one hundred thirty six (136) square foot office, which is depicted on Exhibit "B"
attached hereto and incorporated herein by reference ("Premises").
B. City and Tenant desire to enter into this Agreement to allow Tenant to
operate a marine hardware office, not to include retail sales, at the Premises.
C. Pursuant to City Council Policy F-7, City sought the assistance of an
appraiser to determine the maximum or fair market value rent for the Premises and City
sought revenue equivalent to the fair market value of the highest and best use of the
Premises by conducting an open bid process to insure the highest financial return.
D. The uses to be made of the Premises are consistent with provisions of the
Local Coastal Plan and General Plan of the City, and the terms and conditions in this
Agreement are consistent with the provisions of the City Charter and the ordinances of
the City.
E. The uses to be made of the Premises are consistent with provisions of the
Tideland Grant pursuant to which the City obtained title to the Property.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Agreement, City and Tenant agree as follows:
1. DEFINITIONS
1.1. General Definitions. As used in this Agreement, the following words and
phrases shall have the following meanings:
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(a) Alteration — any addition or change to or modification of, the
Premises made by Tenant, its employees, agents, and contractors
including, without limitation, fixtures and signage.
(b) Authorized Representative — any officer, agent, employee, or
independent contractor retained or employed by either Party, acting
within authority given by that Party.
(c) Damage — an injury to or death of any Person, or the damage
destruction, or loss of property caused by another Person's acts or
omissions.
(d) Damages — monetary compensation or indemnity that can be
recovered in the courts by any Person who has suffered Damage.
(e) Days — means calendar days, subject to extension for any weekend
or day when banks are not open in California if a deadline occurs on
any such Day.
(f) Delivery Date — the date the City provides Tenant access to the
Premises upon completion of the City Improvements.
(g) Expiration — the lapse of the time specified as the Term of this
Agreement.
(h) Good Condition — the clean, safe, physical condition of the Premises
and each portion of the Premises in compliance with all applicable
governmental laws and regulations.
(i) Hazardous Materials — shall mean any substance whose nature
and/or quantity of existence, storage, use, manufacture, disposal or
effect, renders such substance and/or the user thereof and/or the
owner of real property affected thereby, subject to or controlled by
federal, state or local law, or regulation because such substance is
actually or potentially injurious or a threat to public health or welfare
or to the environment; or because such substance under federal,
state or local law requires remediation, removal, cleanup or other
action to bring such substance any areas impacted into conformance
with applicable law.
(j) Hold Harmless — to protect, defend, indemnify and hold harmless the
other party (including the employees, agents and other potentially
liable parties) from all liability, losses, penalties, Damage, costs,
attorney fees, expenses, causes of action, claims, or judgments
arising out of or related to any Damage to any Person or property.
(k) Law — any judicial decision, statute, constitution, ordinance,
resolution, regulation, rule, administrative order, or other requirement
of any municipal, county, state, federal, or other government agency
or authority having jurisdiction over the Parties and/or the Premises.
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(1) Lease Year — refers to successive twelve (12) month periods,
commencing with the Effective Date of this Agreement.
(m) Maintenance or Maintain — repairs replacement, maintenance,
repainting, and cleaning.
(n) Person — one (1) or more natural persons, or legal entities, including,
without limitation, partnerships, corporations, trusts, estates,
associations, or a combination of natural persons and legal entities.
(o) Provision — any term, covenant, condition, or clause in this
Agreement that defines, establishes, or limits, the performance
required or permitted by either Party.
(p) Rent— Rent, late payment penalties, interest, taxes, and other similar
monetary amounts and charges payable by Tenant under the
Provisions of this Agreement.
(q) Rent Commencement Date — the date Tenant begins paying Rent,
commencing thirty (30) calendar Days after the Delivery Date.
(r) Successor — assignee, transferee, personal representative, heir, or
other Person succeeding lawfully, and pursuant to the provisions of
this Agreement, to the rights or obligations of either Party.
(s) Termination — the termination of this Agreement, for any reason, prior
to Expiration.
2. LEASE OF PREMISES
City leases the Premises to Tenant and Tenant leases the Premises from City for
the Term and on the conditions contained in this Agreement. Tenant agrees to accept the
Premises in an "as is" condition as tendered by City. Tenant agrees that no
representations with respect to the condition or improvements of the Premises have been
made by City except as specifically set forth in this Agreement, and are otherwise being
delivered in an "as -is" condition.
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3.1. Term. The "Term" of this Agreement shall be three (3) years from the
Effective Date and shall expire on November 1, 2022.
3.2. Hold Over. Should Tenant, upon City's written consent, hold over and
continue in possession of the Premises after Expiration of the Term, Tenant's continued
occupancy of the Premises shall be considered a month-to-month tenancy subject to
termination by either Party upon thirty (30) Days advance notice and shall be subject to
all the terms and conditions of this Agreement, except the provisions of Section 3.1.
3.3. Redevelopment of Property. Should City redevelop the Property or
Premises during the Term of the Agreement, or any extensions thereof, which will
Pacific Metals Group, LLC (DBA Pacmet) Page 4
materially interfere with Tenant's ability to occupy the Premises, City shall provide Tenant
with at least one hundred eighty (180) Days prior written notice of termination of this
Agreement.
4.1. Tenant agrees to pay City for the use and occupancy of the Premises the
sum of Five Hundred Thirty -Three Dollars and 12/100 ($533.12) per month, payable
in advance on or before the first day of the each month. Tenant shall commence payment
of Rent on the Rent Commencement Date.
4.2. Any payment due from Tenant to City under the provisions of this
Agreement which is not paid within five (5) Days of the date due shall be subject to a ten
percent (10%) late charge plus interest on the amount due at the rate of ten percent (10%)
per annum from the date due and payable by the terms of this Agreement until the same
shall be paid. All late charges and interest payments hereunder, shall, as incurred,
become Rent due under this Agreement.
4.3. Periodic Rental Adjustment. Rent may be adjusted annually, on the first day
of each Lease Year, to reflect increases in the cost of living as indicated by the Consumer
Price Index described below. Rent may be adjusted if the Consumer Price Index for the
Los Angeles — Long Beach — Anaheim, CA, All Urban Consumers, All Items ("Index"), as
published by the United States Department of Labor, Bureau of Labor Statistics
("Bureau"), increases over the Base Period Index. The initial "Base Period Index" shall be
the Index for the calendar month which is four (4) months prior to the month of the
Effective Date. The initial Base Period Index shall be compared with the Index for the
same calendar month for each subsequent Lease Year ("Comparison Index"). The
Comparison Index used for a given year's adjustment calculation will become the Base
Period Index for purposes of the next annual Rent adjustment calculation. If the
Comparison Index is higher than the Base Period Index, then Rent for the next Lease
Year shall be increased by the amount of such percentage change. Should the Bureau
discontinue the publication of the above Index, or publish same less frequently, or alter
same in some other manner, then the Parties shall adopt a substitute Index or substitute
procedure which reasonable reflects and monitors consumer prices. City shall notify
Tenant in writing of any annual adjustment pursuant to this Section 4.3 at least thirty (30)
Days prior to the effective date of such adjustment.
4.4. Payment Location. All payments of Rent shall be made in lawful money of
the United States of America and shall be paid to City in person or by United States' mail,
or overnight service, at the Cashier's Office located at 100 Civic Center Drive, Newport
Beach, California, 92660, or to such other address as City may from time to time
designated in writing to Tenant. If requested by City, Tenant shall make payments
electronically (at www.newportbeachca.gov) or by wire transfer (at Tenant's cost). Tenant
assumes all risk of loss and responsibility for late charges and delinquency rates if
payments are not timely received by City regardless of the method of transmittal.
Pacific Metals Group, LLC (DBA Pacmet) Page 5
4.5. Additional Rent. Any provision in this Agreement that requires Tenant to pay
additional amounts classified as "Additional Rent" shall be paid within ten (10) Days of
City's written demand therefore (unless a different time for payment is expressly provided
in this Agreement). Additional Rent does not reduce or offset Tenant's obligations to pay
Rent.
5. BUSINESS PURPOSES AND USE OF PREMISES
5.1. "Approved Use". The Premises are to be used by Tenant:
(a) For the principal operation of a marine hardware office, not to include
any retail sales; and
(b) Tenant may not use the Premises for any other use except with prior
written consent of the City.
5.2. Operation of Premises. Tenant shall operate and manage the Premises in
a manner comparable to other high quality businesses providing similar marine hardware
services. Tenant shall not use or permit the use of the Premises in any manner that: (a)
creates a nuisance; (b) violates any Law; or (c) is not in compliance with all statutes, laws,
permits, use restrictions and regulations of City applicable to the Premises, Tenant,
and/or Tenant's use of the Premises. Tenant assumes the risk of and shall cause all its
workmen, customers and independent contractors to also comply with all laws regarding
their activities at the Premises.
5.3. Sales Restrictions. Tenant shall not display, sell or store merchandise
outside the defined exterior walls and permanent doorways of said Premises, and no sale
by auction in, upon and from said Premises, whether said auction be voluntary,
involuntary, pursuant to any assignment for benefit of creditors or pursuant to any
bankruptcy or other solvency proceedings, shall be conducted except such auctions that
may be conducted by officers of a court with respect to any vessels in custody of Tenant.
5.4. Advertising Display. Tenant may, at its own expense, place signs in or upon
the Premises subject to the prior written consent of the City as to the size, type, design
and method of installation and in compliance with the City's sign code regulations and the
deed restrictions applicable to the Premises. All signage placed by Tenant on, in or about
the Premises shall remain the property of Tenant and shall be removed by Tenant upon
Termination or Expiration of this Agreement at Tenant's expense; and any damage
caused by removal shall be repaired at Tenant's expense.
5.5. Independent Contractor. City shall have no interest in the business of
Tenant, and no liability for the business operations or sales of Tenant, whether or not
caused by City's enforcement of City laws and regulations which apply to the Premises
and/or Tenant.
5.6. No Distress Sales. No auction, fire, bankruptcy, "going out of business" or
other distress sales of any nature may be conducted on the Premises without the prior
written consent of the City Manager or his/her designee, which will not be unreasonably
withheld, conditioned on the condition that such event occurs once during the Term.
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5.7. Parkinq. City grants a non-exclusive right to the use of parking area(s) on
the Property as depicted in Exhibit "A" attached hereto and incorporated herein by
reference. City reserves the right to assign parking in the future, but agrees that any such
assignment of parking shall not materially diminish access to the Premises.
5.8. Balboa Yacht Basin Rules and Regulations. Tenant shall comply with the
Balboa Yacht Basin Rules and Regulations attached hereto and incorporated herein as
Exhibit "C", which may be amended from time to time.
6. TAXES, LICENSES AND OTHER OBLIGATIONS
6.1. Payment of Taxes. Tenant shall pay directly to the appropriate taxing
authorities all taxes applicable to this Agreement, fixtures and Tenant's personal property
on the Premises, that are levied or assessed against Tenant during the Term. Taxes shall
be paid before delinquency and before any fine, interest or penalty is due or imposed by
operation of law. Tenant shall, upon request, promptly furnish to the City satisfactory
evidence of payment. City hereby gives notice to Tenant, pursuant to Revenue and Tax
Code Section 107.6 that this Agreement may create a possessory interest that is the
subject of property taxes levied on such interest, the payment of which taxes shall be the
sole obligation of Tenant. Tenant shall advise in writing any subtenant, licensee, or third
party using the Premises of the requirements of Section 107.6. Tenant shall pay, before
delinquency all taxes, assessments, license fees and other charges ("Taxes") that are
levied or assessed against Tenant's interest in the Premises or any personal property
installed on the Premises.
6.2. Payment of Obligations. Tenant shall promptly pay, when due, any and all
bills, debts, liabilities and obligations incurred by or charged to Tenant in connection with
Tenant's occupation and use of the Premises.
6.3. Challenge to Taxes. Tenant shall have the right in good faith, at its sole cost
and expense, to contest the amount or legality of any Taxes including the right to apply
for reduction. If Tenant seeks a reduction or contests such Taxes, Tenant's failure to pay
the Taxes shall not constitute a default as long as Tenant complies with the provisions of
this Section. City shall not be required to join in any proceeding or contest brought by
Tenant unless the provisions of any Law require that the proceeding or contest be brought
by or in the name of City or any owner of the Premises. In that case, City shall join in the
proceeding or contest or permit it to be brought in City's name and if requested by Tenant,
City shall execute any instrument or document necessary or advisable in connection with
the proceeding or contest as long as City is not required to bear any cost nor be liable for
payment of such Taxes. Tenant, on final determination of the proceeding or contest, shall
immediately pay such disputed tax and also discharge any decision or judgment
rendered, together with all related costs, charges, interest and penalties and provide City
with a copy of Tenant's payment and the underlying bill for such Taxes being paid with
Tenant's next Rent payment. Tenant shall indemnify, defend and Hold Harmless the City,
its council members, boards, commissions, committees, officers, employees, Authorized
Representatives, agents and volunteers from and against any liability, claim, demand,
penalty, cost or expense arising out of or in connection with any contest by Tenant
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pursuant to this Section. Any such contest of Taxes by Tenant shall be concluded
(meaning that such Taxes shall be fully paid or cancelled by the taxing authority) by
Tenant within eighteen (18) months of starting such action, or end of the Term, if earlier.
6.4. No Rent Offset. Any payments under this Section 6 shall not reduce or offset
Rent payments. City has no liability for such payments.
6.5. License. Tenant shall obtain and maintain in good standing all required
licenses and permits required for operation of the business on the Premises, including
but not limited to a City business license as required by the Newport Beach Municipal
Code.
7. UTILITIES AND REFUSE COLLECTION
7.1. Basic Utilities. City shall pay for electricity, gas, water, and trash service.
Tenant shall make all arrangements for and pay for all other utilities furnished to or used
on the Premises, including, without limitation, telephone service, cable television, and
janitorial service. Tenant bears all risk of interruption, cancellation and/or disruption of
utility services on the Premises.
7.2. Refuse Collection. Refuse Collection may occur between 7:00 a.m. and
6:00 p.m. on non -holiday weekdays.
8. ALTERATIONS TO THE PREMISES
8.1. Alterations Requiring Building Permits. Any Alteration that requires a
building permit from City shall require the written consent of the City Manager or his/her
designee which shall not be unreasonably withheld so long as Tenant's Approved Use is
not thereby being changed.
8.2. Non -Structural Alterations Costing Less than $5,000. Tenant shall have the
right to make, at its sole expense, such non-structural changes, Alterations,
improvements and additions, costing less than $5,000 in and to the interior of the
buildings, and Tenant may install therein such trade fixtures and equipment as it may
deem advisable for the conduct of its business for the Approved Use of the Premises.
Any alteration costing more than $5,000 requires the prior written consent of the City.
8.3. Quality of Work Performed. All work shall be performed in a good and
workmanlike manner, shall substantially comply with the plans and specifications
submitted to City and shall comply with all applicable governmental permits and Laws in
force at the time permits are issued. All work shall be performed between 7:00 a.m. and
6:00 p.m. on non -holiday weekdays. Any contractors hired by Tenant shall be fully
licensed, bonded, and insured.
8.4. Payment of Costs. Tenant shall pay all costs related to the construction of
any Alterations by Tenant or its agents. Tenant shall keep the Premises free and clear of
all mechanics' liens resulting from construction performed at the direction of Tenant.
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8.5. Indemnification and Insurance. Tenant shall Hold Harmless City, its elected
or appointed officers, agents, officials, employees, and volunteers, and any person or
entity owning or otherwise in legal control of the Property with respect to any Damage or
Damages related to any work performed on the Premises by Tenant. Tenant's contractors
and any subcontractors shall obtain insurance in an amount and form to be approved by
City's Risk Manager, including workers compensation insurance as required by law,
general liability, automobile liability and builder's risk insurance covering improvements
to be constructed, all pursuant to standard industry custom and practice. City, its elected
or appointed officers, agents, officials, employees, volunteers, and any person or entity
owning or otherwise in legal control of the property shall be named as an additional
insured on the contractor's and any subcontractor's policies. City shall promptly provide
Tenant with a copy of any claim filed by any third party with respect to work performed by
Tenant. City has no obligation to or liability to Tenant incident to City's approval of
Tenant's plans or issuance of permits for any improvements to the Premises.
8.6. Disposition of Alterations at Expiration or Termination. Any Alterations
made to the Premises shall remain on, and be surrendered with, the Premises on
Expiration or Termination of this Agreement (excluding Tenant's fixtures, equipment,
furniture, movable decorations and the like). However, City may elect, not less than thirty
(30) Days prior to Expiration or Termination of this Agreement, to require Tenant to
remove, at Tenant's cost, any Alterations that Tenant has made to the Premises, except
those Alterations existing as of the Effective Date of this Agreement or approved by City.
If City requires removal of Alterations, Tenant shall, at its cost, remove the Alterations
and restore the Premises to its condition prior to installation of such Alterations, ordinary
wear and tear excepted, before the last day of the Term, or within thirty (30) Days after
notice is given, whichever is later. Prior to Expiration or within fifteen (15) Days after
Termination of this Agreement, Tenant may remove any movable partitions, machinery,
equipment, furniture, and trade fixtures previously installed by and solely paid for by
Tenant, provided that Tenant repairs any damage to the Premises cause by removal and
the structural future of the foundation and bulkhead areas of the Premises are not thereby
worsened by such Tenant removal.
9. REPAIRS AND MAINTENANCE OF PREMISES
9.1. Maintenance and Repair by Tenant and City. Tenant agrees that it shall
keep the non-structural portion of the Premises in Good Condition. City may perform
Maintenance or repairs in the event Tenant fails to commence required Maintenance or
repairs within the time provided by City in the written notice requesting such maintenance
or repair. The cost of any Maintenance or repairs by the City pursuant to this Subsection
shall be payable as Additional Rent upon billing by City with the Tenant's next monthly
Rent payment.
9.2 Entry by City. City and its Authorized Representatives may enter upon and
inspect the Premises at any reasonable time for Maintenance or other purposes. In case
of emergency, City or its Authorized Representatives may enter the Premises by the
master key if Tenant is not present to open and permit an entry. During entry, City and its
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Authorized Representatives shall exercise reasonable care relative to the Premises and
to Tenant's property. Any entry to the Premises by City shall not be construed as a forcible
or unlawful entry into, or a detainer of, the Premises, or an eviction of Tenant from the
Premises or any portion thereof.
10. LIENS
Tenant shall not permit to be enforced against said Premises, or any part thereof,
any mechanics', materialman's, contractors' or other liens arising from, or any claims for
damages growing out of, any work or repair or Alteration (except from the actions of City),
and Tenant shall pay or cause to be paid said liens and claims before any action is
brought to enforce the same against Tenant or the Premises, or shall adequately
indemnify City and the Premises by payment bonds acceptable to City and as provided
for by Law. Tenant agrees to Hold Harmless City and the Premises free and harmless
from all liability for any and all such liens and claims and all costs and expenses in
connection therewith. Tenant shall give City notice in writing before commencing
construction of any kind on the Premises and provide any additional Tenant insurance
required by this Agreement.
11. INDEMNITY AND EXCULPATION; INSURANCE
11.1. Exculpation of City. Except as otherwise expressly provided in this
Agreement, City shall not be liable to Tenant for any damage to Tenant or Tenant's
property goodwill, increased Tenant operating costs, or loss of business or income by
Tenant from any cause other than the gross negligent, intentional or willful acts of City or
its Authorized Representatives. Except as otherwise expressly provided in this
Agreement, Tenant releases and also waives all claims against City for Damages arising
for any reason other than the gross negligent, intentional or willful acts of City or its
Authorized Representatives. City shall not be liable to Tenant for any Damage to the
Premises, Tenant's property, Tenant's goodwill, or Tenant's business income, caused in
whole or in part by acts of nature including, without limitation, waves, wind and tidal flows.
11.2. Tenant Release and Hold Harmless. Tenant releases the City and also
agrees to Hold Harmless the City, its elected or appointed officers, agents, officials,
employees, volunteers and any person or entity owning or otherwise in legal control of
the Property ("Indemnified Parties") from and against any and all claims, liability, loss,
Damage, or expenses resulting from Tenant's occupation and use of the Premises,
specifically including, without limitation, any claim, liability, loss, or Damage arising by and
Tenant assumes all corresponding risk because of:
(a) The death or injury of any Person caused or allegedly caused by the
condition of the Premises or an act or omission of Tenant or an
agent, contractor, employee, servant, sublessee or concessionaire
of Tenant; and
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(b) Any work performed on the Premises or materials furnished to the
Premises at the request of Tenant or any agent or employee of
Tenant, with the exception of Maintenance performed by City; and
(c) Tenant's failure to perform any provision of this Agreement or to
comply with any requirement of Law or any requirement imposed on
the Premises by any duly authorized governmental agency or
political subdivision.
11.3. Tenant's obligation pursuant to this subsection shall not extend to
any claim, loss, liability, Damages, costs or fees that are proximately caused by the sole
gross negligence, willful misconduct, or unlawful or fraudulent conduct on the part of the
Indemnified Parties.
11.4. Insurance. Tenant shall maintain insurance in the types and amounts
specified in Exhibit "D," attached hereto and incorporated herein by this reference.
12. DAMAGE OR DESTRUCTION OF PREMISES
12.1. Destruction of Premises. If the Premises are totally or partially destroyed,
rendering the Premises or any portion thereof totally or partially inaccessible or unusable,
Tenant shall restore the Premises, at Tenant's sole cost and effort, to substantially the
same condition as immediately prior to such destruction (including all trade fixtures,
personal property, improvements and Alterations as are installed by Tenant, which shall
be replaced by Tenant at its expense). Alternatively, Tenant may elect to terminate this
Agreement, provided the damage was not caused by Tenant, without any liability from
the City, by giving notice of such election to City within sixty (60) Days after the date of
the occurrence of any casualty if the cost of the restoration exceeds the amount of any
available insurance proceeds, if the damage has been caused by an uninsured casualty
or event, or if Tenant reasonably estimates that repairs of the Premises will take more
than six (6) months. Upon such termination, all insurance proceeds applicable to
reconstruction (excluding Tenant's personal property therein) shall be paid to City and
Tenant shall have no further liability or obligations under this Agreement.
12.2. Replacement of Tenant's Property. In the event of the damage or
destruction of improvements located on the Premises not giving rise to Tenant's option to
terminate this Agreement under Section 12.1, above, Tenant shall, at its own expense,
replace and repair all Tenant's trade fixtures, equipment, machinery, furnishings, furniture
and inventory as soon as reasonably possible to permit the prompt continuation of
Tenant's business at the Premises for the Approved Use.
12.3. Destruction of Property. In the event that all or a portion of the Property or
access to the Property in areas to be maintained by the City either under this Agreement
or because City owns such other areas, is damaged, deteriorates or destroyed by fire or
any other casualty not attributable to Tenant nor covered by Tenant insurance and as a
result the Premises or a material portion of the Premises becomes inaccessible or
commercially unusable for the Approved Use, and the Damage or destruction cannot
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reasonably be repaired within twelve (12) months after the date of the casualty, City shall
have the right, by notice to Tenant within sixty (60) Days of such casualty, to either:
(a) Terminate this Agreement by giving to Tenant written notice (which
notice shall be given, if at all, within thirty (30) Days following the date
of the casualty), in which case this Agreement shall be terminated
thirty (30) Days following such City notice;
(b) Confirm City's intention to repair such damage as soon as
reasonably possible at City's expense, in which event this
Agreement shall continue in full force and effect; however, Rent shall
be abated in accordance with the procedures set forth in Section 13,
below. Tenant may terminate this Agreement by giving City written
notice at any time prior to the commencement of repairs if City
agrees to repair the Property pursuant to this Section 12.3(b) and
City fails to commence repairs within one hundred twenty (120) Days
after giving Tenant written notice of its intention to repair. In such
event, this Agreement shall terminate as of the date of notice from
Tenant to City, and City shall have no further liability to Tenant under
this Agreement; or
(c) City has no liability to Tenant concerning such casualty or City
election to repair or not repair except solely arising under Section
12. 1, above.
13. ABATEMENT OF RENT
General Rule. In the event of Damage or destruction of the Premises or Damage
to the Property that impacts the Premises and this Agreement is not terminated, Tenant
shall continue to utilize the Premises for the operation of its business for the Approved
Use to the extent it may be practicable and commercially reasonable. Rent shall abate in
proportion to the area of the Premises that is rendered unusable for the Approved Use.
The abatement of Rent shall commence on the date that use of the Premises is impacted
and continue until the completion of those repairs necessary to restore full use of the
Premises and Tenant's re -opening of the Premises. Tenant's obligation to pay Taxes and
other monetary obligations pursuant to this Agreement shall not be abated or reduced.
Rent shall not abate if the Damage or destruction to the Premises is the result of the
negligence or willful conduct of Tenant or its employees, officers, or agents. Tenant's right
to abatement of Rent is contingent on payment of insurance proceeds, if any, equal to the
amount of Rent pursuant to coverage required by Section 11, above.
14. PROHIBITION AGAINST VOLUNTARY ASSIGNMENT, SUBLETTING AND
ENCUMBERING
14.1. Prohibition of Assignment. The Parties acknowledge that City is entering
into this Agreement in reliance upon the business experience and abilities of Tenant and
its principals to operate the Premises for the Approved Use. Consequently, Tenant shall
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not have the right to voluntarily delegate, assign or encumber its interest in this Agreement
or in the Premises, or sublease substantially all or any part of the Premises, or allow any
other person or entity (except Tenant's Authorized Representatives) to occupy or use all
or any part of the Premises without the prior written consent of City, which may be
withheld at the sole discretion of the City unless Tenant provides City with evidence
reasonably satisfactory to City that the: (a) proposed transferee has financial strength and
experience comparable to Tenant; (b) the use of the Premises by the proposed transferee
is consistent with the terms of this Agreement and is for the Approved Use or a use
approved by the City; (c) proposed transferee agrees to assume all current and future
Tenant obligations and agrees that the City is not in default of the Agreement; and (d)
Tenant is not then in Material Default of this Agreement. Except as otherwise expressly
provided herein, any dissolution, merger, consolidation, reorganization of Tenant, or the
sale or other transfer resulting in a transfer of a controlling percentage of the capital stock
of Tenant, shall be deemed a voluntary assignment requiring City's consent above.
However, the sale or transfer of a controlling percentage of the capital stock of Tenant
pursuant to a public offering(s) of equity or debt instruments issued by Tenant, or other
transfers of publicly traded capital stock or debt instruments shall not constitute a
voluntary assignment and shall not require City's consent or approval if there is no change
in the management of Tenant's business and if such successor otherwise maintains the
Approved Use and satisfies the prior experience and business expertise tests above and
is at least as creditworthy as Tenant at the time this Agreement is signed. The phrase
"controlling percentage" means the ownership of, or the right to vote, stock possession of
at least Fifty Percent (50%) of the total combined voting power of all classes of Tenant's
capital stock issued, outstanding, and entitled to vote for the election of directors, except
for ownership of publicly traded shares, warrants or similar equity interests in Tenant
traded on a national exchange or over-the-counter markets.
14.2. Exceptions. Notwithstanding the foregoing paragraphs or anything to the
contrary contained herein, City's consent shall not be required for a transfer or
assignment of any stock or interest by a shareholder or member if the Approved Use of
the Premises is maintained, if such transfer is to a spouse, children or grandchildren or
an assignment or subletting to an Affiliate, Subsidiary, or Successor of Tenant defined as
follows:
(a) An "Affiliate" is any corporation or other entity which directly or
indirectly controls or is controlled or is under common control with
Tenant (for this purpose, "control" shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of
the management and policies of such corporation or other entity,
whether through the ownership of voting securities or by contract or
otherwise);
(b) A "Subsidiary" shall mean any corporation or other entity not less
than Twenty Five Percent (25%) of whose outstanding stock shall, at
the time, be owned directly or indirectly by Tenant and which is at
least as creditworthy as Tenant; and
Pacific Metals Group, LLC (DBA Pacmet) Page 13
(c) A "Successor" shall mean a corporation or other entity in which or
with which Tenant is merged or consolidated, in accordance with
applicable statutory provisions for merger or consolidation of
corporations or a corporation or other entity acquiring a substantial
portion of the property and assets of Tenant.
14.3. Continuing Effect. City's consent to any assignment, encumbrance, or
sublease shall not relieve Tenant from its obligations or liabilities under this Agreement
nor act as a waiver of the requirement that such consent be obtained to any subsequent
assignment, encumbrance or sublease.
15. DEFAULT
15.1. Default by Tenant. The occurrence of any one or more of the following
events shall constitute a default and material breach of this Agreement by Tenant:
(a) Failure of Tenant to pay Rent due hereunder within ten (10) calendar
Days after written notice from Lessor; or
(b) Any failure by Tenant to perform any of the other terms, conditions
or covenants of this Agreement to be observed or performed by
Tenant after thirty (30) Days written notice from Lessor; or
(c) Tenant becoming insolvent or filing any debtor proceedings, or
should any adjudications in bankruptcy be rendered against Tenant,
or should Tenant take or have taken against it, in any court pursuant
to any statute either of the United States or of any State, a petition in
bankruptcy or insolvency or for reorganization or for the appointment
of a receiver or trustee of all or a portion of Tenant's property, and
should the same not be discharged within one hundred twenty (120)
Days thereafter; or
(d) Tenant permitting the Premises to become vacant or unoccupied for
thirty (30) consecutive Days after written notice to Tenant (except for
vacancies caused by any force majeure or by remodeling,
reconstruction, alteration or repairs permitted under this Agreement);
or
(e) The appointment of a trustee or receiver to take possession of
substantially all of the assets of Tenant located at the Premises or
Tenant's interest in this Agreement or the Premises, where
possession is not restored within thirty (30) Days.
15.2. Except for the payment of Rent, if the nature of Tenant's default or breach
under this paragraph is such that more than thirty (30) Days are reasonably required for
its cure, then Tenant shall not be deemed to be in default or breach if Tenant commences
such cure within such thirty (30) day period and diligently proceeds with such cure to
completion.
Pacific Metals Group, LLC (DBA Pacmet) Page 14
15.3. Remedies. In the event of a default or breach by Tenant and Tenant's failure
to cure such default or breach, City may at any time and with or without notice do any or
more of the following:
(a) Re-enter the Premises, remove all persons and property, and
repossess and enjoy such Premises.
(b) Terminate this Agreement and Tenant's right of possession of the
Premises. Such termination shall be effective upon City's giving
written notice and upon receipt of such notice, Tenant shall
immediately surrender possession of the Premises to City.
(c) Maintain this Lease in full force and effect and recover any rental,
royalty, or other consideration as it becomes due, without terminating
Tenant's right of possession, regardless of whether Tenant shall
have abandoned the Premises.
(d) Exercise any other right or remedy which City may have at law or
equity.
15.4. City's Right to Cure Tenant's Default. Upon continuance of any material
default beyond applicable notice and cure periods, City may, but is not obligated to, cure
the default at Tenant's cost. If City pays any money or performs any act required of, but
no paid or performed by, Tenant after notice, the payment and/or the reasonable cost of
performance shall be due as additional Rent not later than Five (5) days after service of
a written demand accompanied by supporting documentation. No such payment or act
shall constitute a waiver of default or of any remedy for default or render City liable for
any loss or damage resulting from performance.
15.5. Waiver of Rights. Tenant waives any right of redemption or relief from
forfeiture under California Code of Civil Procedure Sections 1174 or 1179, or under any
other present or future law, in the event Tenant is evicted or City takes possession of the
Premises by reason of any default by Tenant.
16. CONDEMNATION
16.1 Termination of the Agreement. Tenant or the City shall have the right to
terminate this Agreement as of the date a public agency with lawful authority to condemn
obtains possession or title to ten percent (10%), or more of the land area at the Premises,
or the condemnation materially affects the conduct of Tenant's business in the Premises,
or the Premises will no longer be suitable for the conduct of Tenant's business for the
Approved Use. In the event of Termination pursuant to this subsection, Rent shall be
prorated to the date of Termination, any unearned Rent shall be refunded to Tenant and
Tenant shall have no further obligations under this Agreement. Tenant shall not grant a
right of entry to any condemnor without the written consent of City.
Pacific Metals Group, LLC (DBA Pacmet) Page 15
16.2 No Termination of Agreement. If this Agreement is not terminated under
Section 16. 1, above, then this Agreement shall terminate as to the portion of the Premises
taken upon the date which possession of said portion is taken, but this Agreement shall
continue in force and effect as to the remainder of the Premises. Tenant shall, in the event
of a taking of any portion of the Premises, be entitled to a reduction in the Rent in
reasonable proportion to the area of the Premises so taken verses its impact on Tenant's
continued operations for the Approved Use.
16.3 Allocation of Award. In the event that an award is made for an entire or
partial taking or for damage to the Premises or any interest therein in any action in direct
or inverse condemnation or in the event of a taking under the power of eminent domain,
the Parties hereto agree that their respective rights to the award or compensation paid
shall be as follows:
(a) City shall be entitled to that Portion of the award received for the
taking of the real property within the Premises, the value of this
leasehold, including all buildings and other improvements to which
City is entitled on Expiration or Termination of this Agreement, and
for severance damages.
(b) Tenant shall be entitled to any award that may be made for the taking
of or injury to Tenant's business and profits, including any amount
attributable to Tenant's personal property, fixtures, installations, or
improvements in or on the Premises, Tenant's relocation expenses,
but excluding any "bonus value" attributable to this Agreement.
(c) Any interest payable on the total award shall be divided between City
and Tenant in the same ratio as are the awards granted to them
pursuant to the other provisions of this Section.
17. SUBJECT TO STATE LANDS COMMISSION GRANT
The Premises are located on property that may be the subject of a grant from the
State of California to the City that is administered by the State Lands Commission. Tenant
shall not take any action that would cause the City to be in violation of any provisions of
that grant. If the State Lands Commission terminates this grant for any reason or prevents
the Premises from being used for the Approved Use, this Agreement terminates as a
result and the Parties shall be released from all liabilities and obligations under this
Agreement.
18. WASTE OR NUISANCE
Tenant shall not commit or permit the commission of any waste on the Premises.
Tenant shall not maintain, commit, or permit any nuisance as defined in Section 3479 of
the California Civil Code on the Premises. Tenant shall not use or permit the use of the
Premises for any unlawful purpose.
Pacific Metals Group, LLC (DBA Pacmet) Page 16
19. NO CONFLICTS OF USE, HAZARDOUS MATERIALS
Tenant represents and warrants that, to the best of Tenant's knowledge: (i)
Tenant's use of the Premises does not conflict with applicable Laws; (ii) the Premises
shall not be operated in violation of any environmental laws, rules, or regulations and
Tenant's contemplated uses will not cause any such violation; and (iii) the Premises are
free of any and all Hazardous Materials as of the date of this Agreement. In the event that
the presence of any Hazardous Material caused by Tenant is detected within the
Premises or adjacent to this Premises at any time during the Term of this Agreement, all
remedial or clean-up work shall be immediately performed by Tenant at Tenant's expense
to fully remediate such environmental condition so that the Premises and such affected
area(s) are promptly brought into full compliance with all Laws. This clause and this
Agreement do not restrict or limit Tenant's right to lawfully use Hazardous Materials on
the Premises, if in strict conformance with all Laws.
20. EVENT OF BANKRUPTCY
20.1. If this Agreement is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, 11 U.S.C. Sections 101 et seq. or any similar or
successor statute ("Bankruptcy Code"), any and all monies or other consideration payable
or otherwise to be delivered in connection with such assignment shall be paid or delivered
to City, shall be and remain the exclusive property of City and shall not constitute property
of Tenant or of the estate of Tenant within the meaning of the Bankruptcy Code. Any and
all monies or other consideration constituting City's property under this Section not paid
or delivered to City shall be held in trust for the benefit of City and be promptly paid or
delivered to City.
20.2. Any person or entity to which this Agreement is assigned pursuant to the
provisions of the Bankruptcy Code shall be deemed without further act or deed to have
assumed all of the obligations arising under this Agreement on and after the date of such
assignment, including the obligation to operate the business which Tenant is required to
operate under this Agreement.
21. NOTICES
Any notice, demand, request, consent, approval or communication that either Party
desires or is required to give shall be in writing and shall be deemed given three (3) Days
after deposit into the United States registered mail, postage prepaid, by registered or
certified mail, return receipt requested or upon delivery if personally served. Unless notice
of a different address has been given in accordance with this Section, all notices shall be
address as follows:
If to City: City of Newport Beach
Attention: Real Property Administrator
100 Civic Center Drive
P.O. Box 1768
Pacific Metals Group, LLC (DBA Pacmet) Page 17
Newport Beach, CA 92658
If to Tenant: Pacmet
Attn: Dave Janes
787 S. Wanamaker Avenue
Ontario, CA 91761
(909) 218-8889
Dave.janes@pacificmetalsgroup.com
22. SURRENDER OF PREMISES
At the Expiration or earlier Termination of this Agreement, Tenant shall surrender
to City the possession of the Premises. Tenant shall leave the surrendered Premises,
required personal property and fixtures in good and broom -clean condition, reasonable
wear and tear excepted. All property that Tenant is not required to surrender, but that
Tenant does abandon shall, at City's election, become City's property at Expiration or
Termination.
23. COMPLIANCE WITH ALL LAWS
Tenant shall at its own cost and expense comply with all statutes, ordinances,
regulations and requirements of all governmental entities, including federal, state, county
or municipal, whether now in force or hereinafter enacted. In addition, all work prepared
by Tenant shall conform to applicable City, county, state and federal laws, rules,
regulations and permit requirements and be subject to approval of the City Manager or
his/her designee.
24. WAIVER
The waiver by City or Tenant of any breach of this Agreement by the other shall
not be deemed to be a waiver of any term, covenant, or condition or any subsequent
breach. The acceptance of Rent by City shall not be deemed a waiver of any breach by
Tenant other than the failure to pay the particular rent accepted.
25. PARTIAL INVALIDITY
If any term or Provision of this Agreement is declared invalid or unenforceable, the
remainder of this Agreement shall not be affected.
26. GOVERNING LAW
The laws of the State of California shall govern this Agreement and all matters
relating to it and any action brought relating to this Agreement shall be adjudicated in a
court of competent jurisdiction in the County of Orange, State of California. Neither City's
execution of this Agreement nor any consent or approval given by City in its capacity as
landlord shall affect City's powers and duties as a governmental body. Any consent or
Pacific Metals Group, LLC (DBA Pacmet) Page 18
approval Tenant is required to obtain from City pursuant to this Agreement is in addition
to any permits or approvals Tenant is required to obtain pursuant to law or ordinance.
However, City shall attempt to coordinate its procedures for giving contractual and
governmental approvals so that Tenant's requests and applications are not unreasonable
denied or delayed.
27. ENTIRE AGREEMENT; MODIFICATION
This Agreement contains the entire agreement between the Parties. No verbal
agreement or implied covenant shall be held to vary the provisions of this Agreement.
Each Party has relied on its own investigation of the Premises and examination of this
Agreement, the counsel of its own attorney or other advisors, and has a complete
understanding of the overall warranties, representations, and covenants in this
Agreement. The failure or refusal of either Party to inspect the Premises, to read this
Agreement or other documents, or to obtain legal or other advice relevant to this
transaction shall not be the basis for later claim that all or part of this Agreement is not
enforceable or was not understood by a Party when this Agreement was signed. No
provision of this Agreement may be amended or varied except by an agreement in writing
signed by the Parties or their respective Successors.
28. TIME IS OF THE ESSENCE
Time is of the essence with respect to the performance of every Provision of this
Agreement in which time of performance is a factor. All time deadlines are meant to be
strictly construed. A "day" means a calendar day, with extension if a deadline occurs on
a weekend or day when banks are not open in California.
29. SUCCESSORS
Subject to the Provisions of this Agreement on assignment and subletting, each
and all of the covenants and conditions of this Agreement shall be binding on and shall
inure to the benefit of the heirs, successors, executors, administrators, assigns, and
personal representatives of the respective parties.
30. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning
of the language used and shall not be construed for or against either party by reason of
the authorship of this Agreement or any other rule of construction which might otherwise
apply.
31. HEADINGS
The captions of the various sections of this Agreement are for convenience and
ease of reference only and do not define, limit augment, or describe the scope, content,
or intent of this Agreement.
Pacific Metals Group, LLC (DBA Pacmet) Page 19
32. NO BROKERS
Each party warrants to and for the benefit of the other than it has had no dealings
with any real estate broker or other agent (attorneys excepted) in connection with the
negotiation or making of this Agreement, and that no commission, fee or other
compensation is owed regarding this Agreement by such other Party.
33. GENDER; NUMBER
The neuter gender includes the feminine and masculine, the masculine includes
the feminine and neuter, and the feminine includes the neuter, and each includes
corporation, partnership, or other legal entity whenever the context requires. The singular
number includes the plural whenever the context so requires.
34. EXHIBITS
All exhibits to which reference is made in this Agreement are incorporated by
reference. Any reference to "this Agreement" includes matters incorporated by reference.
35. NO ATTORNEY'S FEES
The prevailing party in any action brought to enforce the terms and conditions of
this Agreement, or arising out of the performance of this Agreement, shall not be entitled
to recover its attorneys' fees.
36. NONDISCRIMINATION
Tenant, for itself and its successors, agrees that in the performance under this
Agreement, Tenant shall not discriminate against any person because of the marital
status or ancestry of that person or any characteristic listed or defined in Section 11135
of the Government Code.
37. MEMORANDUM OF LEASE AGREEMENT
A Memorandum of Lease Agreement, in a form and content similar to that
contained in Exhibit "E" shall be recorded by the parties promptly upon execution of this
Agreement. Upon execution by both parties, the Memorandum of Lease Agreement shall
be recorded against the Premises in the office of the Orange County Clerk -Recorder, as
required by Government Code Section 37393.
38. NO THIRD PARTY BENEFICIARIES
City (both as a lessor and as the City of Newport Beach) and Tenant do not intend,
by any provision of this Agreement, to create in any third party, any benefit or right owed
by one party, under the terms and conditions of this Agreement, to the other party.
Pacific Metals Group, LLC (DBA Pacmet) Page 20
39. CALIFORNIA LABOR LAWS
It shall be the obligation of Tenant to comply with all laws, including, but not limited
to, State of California labor laws, rules and regulations and the parties agree that the City
shall not be liable for any violation by Tenant (or Tenant's agent, sublessee or any party
affiliated with Tenant) thereof.
40. NO DAMAGES
Tenant acknowledges that City would not enter this Agreement if it were to be liable
for damages (including, but not limited to, actual damages, economic damages,
consequential damages, lost profits, loss of rents or other revenues, loss of business
opportunity, loss of goodwill or loss of use) under, or relating to, this Agreement or any of
the matters referred to in this Agreement, including, without limitation, any and all plans,
permits, licenses or regulatory approvals, and CEQA documents. Accordingly, Tenant
covenants and agrees on behalf of itself and its successors and assigns, not to sue City
(either in its capacity as lessor in this Agreement or in its capacity as the City of Newport
Beach) for damages (including, but not limited to, actual damages, economic damages,
consequential damages, lost profits, loss of rents or other revenues, loss of business
opportunity, loss of goodwill or loss of use) or monetary relief for any breach of this
Agreement by City or for any dispute, controversy, or issue between City and Tenant
arising out of or connected with this Agreement or any of the matters referred to in this
Agreement, including, without limitation, any and all plans, permits, licenses or regulatory
approvals, CEQA documents, or any future amendments or enactments thereto, the
parties agreeing that declaratory relief, injunctive relief, mandate and specific
performance shall be Tenant's sole and exclusive judicial remedies.
41. GOVERNMENT CLAIMS ACT
Tenant and City agree that in addition to any claims filing or notice requirements
in this Agreement, Tenant shall file any claim that Tenant may have against City in strict
conformance with the Government Claims Act (Government Code sections 900 et seq.),
or any successor statute.
[SIGNATURES ON NEXT PAGE]
Pacific Metals Group, LLC (DBA Pacmet) Page 21
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: X/((%).0
/_
By:
Aaron C. Harp
City Attorney
ATTEST:
Date: C1 - 3o - ZD Z o
1.1
Is
By:
.�— Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: 9-21 ZO26
By:
Grac Leung
City anager
TENANT: PACIFIC METALS GROUP,
LLC (DBA PACMET), a California limited
liability company
Date: ''
Attachments: Exhibit A — Property Legal Description and Depiction
Exhibit B
— Premises Depiction
Exhibit C
— Balboa Yacht Basin Rules and Regulations
Exhibit D
— Insurance Requirements
Exhibit E —
Memorandum of Lease
Pacific Metals Group, LLC (DBA Pacmet) Page 22
EXHIBIT "A"
Property Legal Description and Depiction
Pacific Metals Group, LLC (DBA Pacmet) Page A-1
EXHIBIT "A"
Property Legal Description and Depiction
A parcel of land situated in the Northwest quarter (NW 114) of Section Thirty Five (35),
Township Six (6) South, Range Ten (10) West, S.B.B.& M., Orange County, California,
more particularly described as follows, to -wit:
Beginning at a point in the U.S. Bulkhead line between Station No. 200 and Station No.
101 as shown upon a map entitled "Harbor Lines, Newport Bay Harbor, California,"
approved May 2, 1936, by the Secretary of War, and on file in the office of the U.S. District
Engineer at Los Angeles, California, said point of beginning being East 754.25 feet of
said bulkhead Station No. 200, running thence North 424.71 feet to a point in the Northerly
line of that certain parcel of land conveyed to City of Newport Beach by the Irvine
Company, as described in a deed recorded September 25, 1929, in Book 306, Page 375,
of official records of Orange County, California; thence South 850 43' East 772.15 feet to
the Northeasterly corner of the last mentioned parcel of land; thence South along the
Easterly line of the last mentioned parcel of land 367.01 feet to a point in said U.S.
Bulkhead line between Station No. 200 and Station No. 101, thence West along said
bulkhead line 770 feet to the point of beginning, containing approximately seven (7) acres.
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EXHIBIT "B"
Premises' Depiction
Pacific Metals Group, LLC (DBA Pacmet) Page B-1
EXHIBIT B
Office RSF: 136 sf
SCALE: 1/2" = 1'-0" SHEET SIZE: 11x17
10' 5' 0' 10'
GRAPHIC SCALE
1614
829 Harbor Island Drive
Newport Beach, CA a Work ;;Plans
kim@workspaceplans.com jill@workspaceplans.com
EXHIBIT "C"
Balboa Yacht Basin Rules and Regulations
Pacific Metals Group, LLC (DBA Pacmet) Page C-1
BALBOA YACHT BASIN
829 Harbor Island Drive
Newport Beach, CA 92660
(949) 673-0360
Rules and Regulations
When a boat enters the Balboa Yacht Basin ("BYB"), it immediately comes under the
jurisdiction of BYB and shall be berthed only where ordered and maneuvered as directed.
Vessels may be relocated within BYB at City's discretion. The City ordinances, rules and
regulations, summarized herein and as amended from time to time, and all other regulations
established by regulatory bodies having jurisdiction at BYB, shall form a part of all Slip Rental
Agreements as though printed thereon.
The Balboa Yacht Basin is owned by the City of Newport Beach ("City") and managed by Basin
Marine Inc., located onsite at 829 Harbor Island Drive.
There is no warranty of any kind as to the condition of the floats, walks, gangways, ramps or
mooring gear, nor shall City be responsible therefore, or for injuries to persons or property
occurring thereon or for any other reason, whether herein specifically stated or not.
1. No Vessel may be moored at the BYB unless a current Slip Rental Agreement or
Temporary Slip Rental Agreement (collectively, the "Agreements") is in effect between
Vessel Owner and City. All defined terms herein shall have the same meaning as in the
Agreements.
2. Only the Vessel described in the Agreements and registered to Vessel Owner may occupy
the assigned Slip. Only one boat is permitted to occupy a slip at any one time, unless
otherwise approved by the Marina Manager.
3. Use of boats moored at BYB for unauthorized commercial purposes is prohibited.
4. No major repairs or complete overhauls shall be made on boats in BYB. Extent of the
permitted repairs shall be at the discretion of the City. Disc sanding and spray painting
are strictly forbidden.
5. Supplies, materials, accessories or gear of all kinds shall not be stored within BYB except
in approved lockers. No additional locker boxes shall be placed on the docks by Vessel
Owner. Maximum weight in lockers shall not exceed 70 pounds.
6. City reserves the right to inspect all boats to determine if they are properly identified and
equipped for safe operation in accordance with Coast Guard and other applicable
regulations.
7. No Vessel Owner shall throw, discharge, pump or deposit from any boat or float any
refuse, oil, spirits, flammable liquid, or other polluting matter into BYB. All such matter
shall be deposited in appropriately marked containers within BYB.
Page 1 of 4
8. Use of boat toilets not equipped with storage devices approved by the state or local health
departments is not permitted within BYB. City reserves the right to inspect all boats for
installation and proper operation of such devices and holding tanks.
9. Unnecessary operation of engines in berths is not permitted. No excessive noise is
allowed. Halyards should be tied away from masts.
10. Except for entering or leaving slips, marine engines, power generating equipment or other
noise making machinery shall not be operated between the hours of 5:00 P.M. and 9:00
A.M. Engines may not be operated in gear while boats are secured to dock.
11. Water or power lines shall not cross main walks.
12. All boats shall be moored by Vessel Owner in a safe manner, on cleats, with strong and
adequate lines.
13. The speed limit within BYB shall be dead slow, or wakeless speed, whichever is slower.
14. Fishing from the slips is not allowed. No cleaning of fish is permitted in BYB.
15. There shall be no laundering or drying of wearing apparel on the docks or on the dock or
rigging of a boat in BYB.
16. Restrooms will remain locked at all times. All keys must be returned to the Marina
Manager office upon termination of the Agreement. If not returned, the Key Deposit will
be retained by the City. Keys must not be duplicated.
17. Vessel Owner shall notify the Marina Manager when they expect Vessel to be away from
the Slip for any period in excess of thirty (30) days. Vessel Owner shall not sublet or
otherwise grant others the use of the Slip. During any absence of the Vessel, City may
use the Slip for any purpose without credit or compensation to Vessel Owner.
18. For security reasons, no dinghy, sabot, float or other similar boat shall be permitted to
cruise up and down the fairways. All such boats must be kept on Vessel. The use of
another slip at any time, for ANY non -emergency reason is not permitted.
19. The maximum distance by which any boat (including all projections such as transom
platforms, booms, gait tanks, bowsprits, etc.) may extend beyond the end of the berth
may not be more than ten percent (10%) of the length of the Slip beyond the end of the
Slip. No part of the Vessel shall at any time extend over any portion of any dock at BYB.
No part of any boat shall extend over the main walkway.
20. All equipment and electrical connections made by Vessel Owner must be approved by
the Marina Manager.
21. No fueling or transferring of fuel from docks shall be permitted at any time.
22. Vessel Owner shall be responsible for any oil, paint, or other materials spilled, dripped or
otherwise applied to the concrete fingers or walks adjacent to the boat slip.
Page 2 of 4
23. Boat boarding steps shall be a maximum of one-half (1/2) the width of the finger and shall
be of lightweight, open construction. No storage will be allowed under the boarding steps.
24. No dinghies, masts, bicycles, hibachis, etc. shall be stored on the docks. Items left or
stored on the docks will be confiscated.
25. Trash containers are provided. Vessel Owners shall not place their own trash containers
on the docks.
26. No cleats, dock wheels or other accessories shall be installed by Vessel Owner. The
dockmaster should be contacted if additional accessories are necessary.
27. Any paint, varnish, etc. spilled on the docks or lockers shall be cleaned up immediately.
If the spill cannot be removed by Vessel Owner, he should contact the Marina Manager
for assistance.
28. Vessel Owner is encouraged to inform the Marina Manager of any leaks or other
malfunctions with water or electricity, etc., so that they may be corrected as soon as
possible.
29. ANIMALS SHALL BE LEASHED AT ALL TIMES. Should the size or temperament of a
pet disturb others or should the pet commit any nuisance on the property of BYB, such
animal shall be removed from BYB by Vessel Owner.
30. Children under twelve (12) years of age are not permitted on docks without the immediate
presence of a parent or other responsible adult.
31. Disorderly or discourteous conduct by Vessel Owner or guests that might injure a person,
cause damage to property or harm the reputation of BYB shall be cause for termination
of the Vessel Owner's Agreement.
32. Vessel Owner shall park vehicles in areas designated for Basin parking. Parking areas
shall not be used for storage of trailers without City's consent.
33. Vessel Owners are advised that it will be unlawful for any unauthorized person to solicit
business or to offer goods, wares, merchandise or services for sale on the premises of
BYB without the consent of the City.
34. "For Sale" or other unauthorized advertising signs are prohibited in BYB.
35. City is not responsible for any losses or damage to boats at BYB. Each Vessel Owner is
responsible for damage which he and/or his boat may cause to other boats or
improvements in BYB.
36. No swimming is permitted in BYB waters.
37. The City will not provide space for the storage of dinghies or miscellaneous Vessel Owner
equipment on Basin property.
Page 3 of 4
38. Hydro -lift hoists will not be allowed in BYB.
39. The Marina Manager may ascertain that strangers aboard yachts are authorized by
Vessel Owner to be aboard.
40. Riding of skateboards, bicycles or motorcycles on the docks is not permitted.
Slip Fees specified in the Agreement are determined by the size of the slip space or vessel
size and permitted overhang. Rent is due in advance, payable by the first of the month.
Electricity is charged for the previous month's use. Vessel is subject to impound if the account
is delinquent. Vessel Owner will be liable for any cost of impounding and collection of account.
These rules and regulations are subject to change upon five day's notice.
Dave New
Balboa Yacht Basin Manager
Dave1 CcD-BasinMarine.com
(949) 673-0360
Revised February 4, 2013
Page 4 of 4
EXHIBIT "D"
Insurance Requirements
Pacific Metals Group, LLC (DBA Pacmet) Page D-1
EXHIBIT "D"
Insurance Requirements
Without limiting Tenant's indemnification of City, Tenant shall obtain, provide, and
maintain at its own expense during the Term of this Agreement, a policy or policies of
insurance of the type, amounts, and form acceptable to City. The policy or policies shall
provide, at a minimum, those items described below.
1. Provision of Insurance. Without limiting Tenant's indemnification of City, and prior
to commencement of work on Premises by Tenant or Tenant's agents,
representatives, consultants, contractors and/or subcontractors, Tenant shall
obtain, provide and maintain at its own expense during the term of this Agreement
policies of insurance of the type and amounts described below and in a form
satisfactory to City. Tenant agrees to provide insurance in accordance with
requirements set forth here. If Tenant uses existing coverage to comply and that
coverage does not meet these requirements, Tenant agrees to amend,
supplement or endorse the existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the insurance commissioner to transact business
of insurance in the State of California, with an assigned policyholders' rating of A -
(or higher) and Financial Size Category Class VII (or larger) in accordance with the
latest edition of Best's Key Rating Guide, unless otherwise approved by the City's
Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Tenant and Tenant's agents,
representatives, consultants, contractors and/or subcontractors, shall
maintain Workers' Compensation Insurance, statutory limits, and
Employer's Liability Insurance with limits of at least one million dollars
($1,000,000) each accident for bodily injury by accident and each employee
for bodily injury by disease in accordance with the laws of the State of
California, Section 3700 of the Labor Code.
Tenant and Tenant's agents, representatives, consultants, contractors
and/or subcontractors, shall submit to City, along with the certificate of
insurance, a Waiver of Subrogation endorsement in favor of City, its officers,
agents, employees and volunteers.
B. General Liability Insurance. Tenant and Tenant's agents, representatives,
consultants, contractors and/or subcontractors, shall maintain commercial
general liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars and 00/100
($1,000,000) per occurrence, two million dollars and 00/100 ($2,000,000)
Pacific Metals Group, LLC (DBA Pacmet) Page D-1
general aggregate. The policy shall cover liability arising from premises,
operations, personal and advertising injury, and liability assumed under an
insured contract (including the tort liability of another assumed in a business
contract) with no endorsement or modification limiting the scope of
coverage for liability assumed under a contract.
C. Fire and Extended Coverage. Tenant shall maintain fire and extended
coverage insurance, together with insurance against vandalism, theft and
malicious mischief, on the improvements and fixtures, alterations, trade
fixtures, signs, equipment, personal property and inventory on or upon the
Premises from loss or damage to the extent of their full replacement value.
D. Loss of Rent. Tenant shall maintain loss of rent insurance insuring that the
Rent will be paid to City for a period up to six (6) months if the Premises are
destroyed or rendered unusable or inaccessible for commercial purposes
by a risk insured under a special form property coverage policy including
vandalism and malicious mischief endorsements.
E. Automobile Liability Insurance. Tenant and Tenant's consultants,
contractors and/or subcontractors shall maintain automobile insurance at
least as broad as Insurance Services Office form CA 00 01 covering bodily
injury and property damage for all activities of Tenant or all activities of
Tenant's consultants, contractors and/or subcontractors arising out of or in
connection with work to be performed on the Premises, including coverage
for any owned, hired, non -owned or rented vehicles, in an amount not less
than one million dollars and 00/100 ($1,000,000) combined single limit each
accident.
F. Builder's Risk Insurance. During construction, Tenant shall require that
Tenant's construction contractors and subcontractors maintain Builders
Risk insurance or an installation floater as directed by City, covering
damages to the work for "all risk" or special causes of loss form with limits
equal to one hundred percent (100%) of the completed value of the work,
with coverage to continue until final acceptance of the work by Tenant and
City. City shall be included as an insured on such policy, and Tenant shall
provide City with a copy of the policy.
G. Pollution Liability Insurance. Tenant shall require that Tenant's construction
contractors and subcontractors maintain a policy providing contractor's
pollution liability ("CPL") coverage with a total limit of liability of no less than
one million dollars and 00/100 ($1,000,000) per loss and in the aggregate
per policy period dedicated to this project. The CPL shall be obtained on
an occurrence basis for a policy term inclusive of the entire period of
construction. If all or any portion of CPL coverage is available only on a
claims -made basis, then a 10 -year extended reporting period shall also be
purchased. The CPL policy shall include coverage for cleanup costs, third -
party bodily injury and property damage, including loss of use of damaged
Pacific Metals Group, LLC (DBA Pacmet) Page D-2
property or of property that has not been physically injured or destroyed,
resulting from pollution conditions caused by contracting operations.
Coverage as required in this paragraph shall apply to sudden and non -
sudden pollution conditions resulting from the escape or release of smoke,
vapors, fumes, acids, alkalis, toxic chemicals, liquids, or gases, waste
materials, or other irritants, contaminants, or pollutants. The CPL shall also
provide coverage for transportation and off-site disposal of materials. The
policy shall not contain any provision or exclusion (including any so-called
"insured versus insured" exclusion or "cross -liability" exclusion) the effect of
which would be to prevent, bar, or otherwise preclude any insured or
additional insured under the policy from making a claim which would
otherwise be covered by such policy on the grounds that the claim is
brought by an insured or additional insured against an insured or additional
insured under the policy.
4. Endorsements: Policies shall contain or be endorsed to contain the following
provisions:
A. Additional Insured Status. City, its elected or appointed officers, officials,
employees, agents and volunteers are to be covered as an additional
insured under all general liability and pollution liability policies with respect
to liability arising out of Tenant's activities related to this Agreement and
with respect to use or occupancy of the Premises. City, its elected or
appointed officers, officials, employees, agents and volunteers shall be
named as an additional insured on any of Tenant's contractor's and
subcontractor's policies.
B. Primary and Non Contributory. Policies shall be considered primary
insurance as respects to City, its elected or appointed officers, officials,
employees, agents and volunteers as respects to all claims, losses, or
liability arising directly or indirectly from Tenant's operations. Any insurance
maintained by City, including any self-insured retention City may have, shall
be considered excess insurance only and not contributory with the
insurance provided hereunder.
C. Liability Insurance. Liability insurance shall act for each insured and
additional insured as though a separate policy had been written for each,
except with respect to the limits of liability of the insuring company.
D. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its elected or appointed officers, agents, officials, employees and
volunteers or shall specifically allow Tenant or others providing insurance
evidence in compliance with these requirements to waive their right of
recovery prior to a loss. Tenant hereby waives its own right of recovery
against City, and shall require similar written express waivers from each of
its consultants, contractors or subcontractors.
Pacific Metals Group, LLC (DBA Pacmet) Page D-3
E. Reporting Provisions. Any failure to comply with reporting provisions of the
policies shall not affect coverage provided to City, its elected or appointed
officers, officials, employees, agents or volunteers.
F. Notice of Cancellation. The insurance required by this Agreement shall not
be suspended, voided, canceled, or reduced in coverage or in limits except
after thirty (30) calendar Days (ten (10) calendar Days written notice of non-
payment of premium) written notice has been received by City. It is Tenant's
obligation to ensure that provisions for such notice have been established.
G. Loss Payee. City shall be included a loss payee under the commercial
property insurance.
5. Additional Requirements.
A. In the event City determines that (i) the Tenant's activities on the Property
creates an increased or decreased risk of loss to the City, (ii) greater
insurance coverage is required due to the passage of time, or (iii) changes
in the industry require different coverage be obtained, Tenant agrees that
the minimum limits of any insurance policy required to be obtained by
Tenant or Tenant's consultants, contractors or subcontractors, may be
changed accordingly upon receipt of written notice from City. With respect
to changes in insurance requirements that are available from Tenant's then -
existing insurance carrier, Tenant shall deposit certificates evidencing
acceptable insurance policies with City incorporating such changes within
thirty (30) calendar Days of receipt of such notice. With respect to changes
in insurance requirements that are not available from Tenant's then- existing
insurance carrier, Tenant shall deposit certificates evidencing acceptable
insurance policies with City, incorporating such changes, within ninety (90)
calendar Days of receipt of such notice.
B. Any deductibles applicable to the commercial property or insurance
purchased in compliance with the requirements of this section shall be
approved by City.
C. Tenant and Tenant's consultants, contractors and/or subcontractors shall
be subject to the insurance requirements contained herein unless otherwise
specified in the provisions above or written approval is granted by the City.
Tenant shall verify that all consultants, contractors and/or subcontractors
maintain insurance meeting all the requirements stated herein, and Tenant
shall ensure that City is an additional insured on insurance required from
contractors, consultants and/or subcontractors.
D. For General Liability coverage, contractors, consultants and/or
subcontractors shall provide coverage with a format at least as broad as
provided by Insurance Services Office form CG 203 80413.
Pacific Metals Group, LLC (DBA Pacmet) Page D-4
E. If Tenant maintains higher limits than the minimums shown above, the City
requires and shall be entitled to coverage for the higher limits maintained
by the tenant. Any available insurance proceeds in excess of the specified
minimum limits of insurance and coverage shall be available to the City.
F. Tenant shall give City prompt and timely notice of any claim made or suit
instituted arising out of or resulting from Tenant or Tenant's agents,
representatives, consultants, contractors or subcontractors performance
under this Agreement.
G. Tenant shall provide certificates of insurance, with original endorsements
as required above, to City as evidence of the insurance coverage required
herein. Insurance certificates must be approved by City prior to
commencement of work or issuance of any permit. Current certification of
insurance shall be kept on file with City at all times during the term of this
Agreement.
H. All required insurance shall be in force on the Effective Date, and shall be
maintained continuously in force throughout the term of this Agreement. In
addition, the cost of all required insurance shall be borne by Tenant or by
Tenant's consultants, contractors or subcontractors.
If Tenant or Tenant's consultants, contractors or subcontractors fail or
refuse to maintain insurance as required in this Agreement, or fail to provide
proof of insurance, City has the right to declare this Agreement in default
without further notice to Tenant, and City shall be entitled to exercise all
available remedies.
J. Tenant agrees not to use the Premises in any manner, even if use is for
purposes stated herein, that will result in the cancellation of any insurance
City may have on the Premises or on adjacent premises, or that will cause
cancellation of any other insurance coverage for the Premises or adjoining
premises. Tenant further agrees not to keep on the Premises or permit to
be kept, used, or sold thereon, anything prohibited by any fire or other
insurance policy covering the Premises. Tenant shall, at its sole expense,
comply with all reasonable requirements for maintaining fire and other
insurance coverage on the Premises.
Pacific Metals Group, LLC (DBA Pacmet) Page D-5
EXHIBIT "E"
Memorandum of Lease
Pacific Metals Group, LLC (DBA Pacmet) Page E-1
EXHIBIT "E"
Memorandum of Lease
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
City Clerk's Office
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
[Exempt from Recordation Fee - Govt. Code Sec. 6103]
MEMORANDUM OF LEASE AGREEMENT
This Memorandum of Lease Agreement ("Memorandum") is dated 12019,
and is made between City of Newport Beach, a California municipal corporation and
charter city ("City") and Pacific Metals Group, LLC (doing business as Pacmet), a
California limited liability company ("Tenant"), concerning the Property and Premises as
legally described and depicted in Attachment "A" attached hereto and by this reference
made a part hereof.
For good and adequate consideration, City leases the Premises to Tenant, and Tenant
leases the Premises from City, for the term and on the provisions contained in the
Agreement dated November 1, 2019, including without limitation provisions prohibiting
assignment, subleasing, and encumbering said leasehold without the express written
consent of City in each instance, all as more specifically set forth in said Agreement,
which said Agreement is incorporated in this Memorandum by this reference.
The term is three (3) years, beginning November 1, 2019, and ending November 1, 2022.
This Memorandum is not a complete summary of the Agreement. Provisions in this
Memorandum shall not be used in interpreting the Agreement's provisions. In the event
of conflict between this Memorandum and other parts of the Agreement, the other parts
of the Agreement shall control. Execution hereof constitutes execution of the Agreement
itself.
[SIGNATURES ON NEXT PAGE]
Pacific Metals Group, LLC (DBA Pacmet) Page E-1
IN WITNESS WHEREOF, the Parties hereto have executed this Memorandum as
of the date first written above.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By:
Aaron C. Harp
City Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
ATTACHMENTS
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Grace K. Leung
City Manager
TENANT: PACIFIC METALS GROUP,
LLC (DBA PACMET), a California limited
liability comp ny
Date:
By:
Da)
Ma
[END OF SIGNATURES]
Attachment A — Legal Description and Depictions of Property
and Premises
Pacific Metals Group, LLC (DBA Pacmet) Page E-2
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of }ss.
On 20 before me,
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
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 (seal)
Pacific Metals Group, LLC (DBA Pacmet) Page E-3
ATTACHMENT A
PROPERTY AND PREMISES DESCRIPTION AND DEPICTIONS
A parcel of land situated in the Northwest quarter (NW 1/4) of Section Thirty Five (35),
Township Six (6) South, Range Ten (10) West, S.B.B.& M., Orange County, California,
more particularly described as follows, to -wit -
Beginning at a point in the U.S. Bulkhead line between Station No. 200 and Station No.
101 as shown upon a map entitled "Harbor Lines, Newport Bay Harbor, California,"
approved May 2, 1936, by the Secretary of War, and on file in the office of the U.S. District
Engineer at Los Angeles, California, said point of beginning being East 754.25 feet of
said bulkhead Station No. 200, running thence North 424.71 feet to a point in the Northerly
line of that certain parcel of land conveyed to City of Newport Beach by the Irvine
Company, as described in a deed recorded September 25, 1929, in Book 306, Page 375,
of official records of Orange County, California; thence South 85° 43' East 772.15 feet to
the Northeasterly corner of the last mentioned parcel of land; thence South along the
Easterly line of the last mentioned parcel of land 367.01 feet to a point in said U.S.
Bulkhead line between Station No. 200 and Station No. 101, thence West along said
bulkhead line 770 feet to the point of beginning, containing approximately seven (7) acres.
Page 1
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