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HomeMy WebLinkAboutC-2682 - Balboa Yacht Basin Lease (see Contract 3090 - new)CERTIFICATE C$ INSURANCE THIS CERTIFICATE IS ISSUED'-AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EX- TEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW COMPANIES AFFORDING COVERAGE COMPANY LETTER A '3. I NA COMPANY_- '-"- .__, _._. LETTER i COMPANY I LETTER C j COMPANY LETTER D ----------- . - -_. -... ..... _. .,,, _..... .__... COMPANY LETTER E ROBERT E. HAPRRT T:ra;ESL.FFIF'ilvCie= AGENCY PO BOY T.RV_TN._. CA ` 271.:3 CODE SUB -CODE INSURED .,. , . SCO_I..T.. i'.lhlL.Y-11 C +� DRA: RAYS1[.)E MART:I`JE :iSAI. -ES 829 HI°HRRIC)R Ti.3l._(;Fll) DR NEWP'I 1:-ICH CA Lr'I:' x: -, ±O ISSUE DATE (MMIDD(Y) 3/29/90 COVERAGES THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD IN- DICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CER- TIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLU- SIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. TYPE OF INSURANCE POLICY NUMBER , POLICY EFFECTIVE POLICY EXPIRATION i ALL LIMITS IN THOUSANDS TR DATE(MWDDN) DATE(MMIDDIYVI s g j ' GENERAL LIABILITY GENERAL AGGREGATE A i '10/72� 1 GJf C L i +r ,cL 1. (i) .Y. COMMERCIAL GENERAL LIABILITY PRODUCTS COMPIOPS AGGREGATE 11 1,0 0 CLAIMS MADE OCCUR. PERSONAL & ADVERTISING INJURY IS O OWNER'S& CONTRACTOR'S PROT. ' EACH OCCURRENCE 50 FIRE DAMAGE (Any one fire) LSCIZI_E1_LLIS" MED. EXPENSE (Any one person)r�' AUTOMOBILE LIABILITY COMBINED I -i :�Vl''DC'r'.:-3'`i�l'L)6C!' ..1. (7I ()iiCiO.I. G) %t }f�ICI .SINGLE �'Y:}�� ANY AUTO .I. ;LIMIT - ALL OWNED AUTOS "BODILY :INJURY SCHEDULED AUTOS { (Per person) -x HIRED AUTOS ;BODILY NON -OWNED AUTOS (Per accident) GARAGE LIABILITY PROPERTY :DAMAGE . .. .. ... .. _. ._... .._.. ..__.... EXCESS LIABILITY - - - ..EACH AGGREGATE - OCCURRENCE OTHER THAN UMBRELLA FORM WORKER'S COMPENSATION STATUTORY (EACH ACCIDENT) AND (DISEASE — PoLICV LIMIT) EMPLOYER'S LIABILITY - (DISEASE — EACH EMPLOYEE) OTHER DESCRIPTION OF OPERATIONSILOCATIONS NEHICLES)SPEGAL ITEMS F I_EASE:D F'RIiiNIGES i._O( A "1`IC) AT 1(329 1 IIARBOR :I:FI_.AND DRS'`.•'Fii:, I' EWPOR..F BEACH CrER'f IT ZC:ATE I-iOi..,DF IR JS MAMET) AS AN ADDITIONAL 7:NSLJRECi:, CERTIFICATE HOLDER CANCELLATION Q +C SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE m m ... `lliii:WF` C)Pi I tCf -I Ol"` BFi::r = EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL C; c:; `T'! -Ii" F}.1.._FY)Rhdr `:.:; OFFICE. ICE MAIL S O DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE g j w i'':, .J, t3C)}( ).. 7fryF{ LEFT, BIYT.i'FX KC(x i�7XILY �1}'GN`%4 iud`EXsNIXI,K)' "�DiO«I�i "'A NEWPORT BF.,,ACHy CA . ............. LYdBidlXdd�iAl6lCd�Ga�k�rX#� Y�:I �CAfi1�nn11rk15�6Q�)Q&�rYtXi(�� �° Q +C _ter .. _ __ ____ ____ ___ �� ..._ .. 7 1. PARTIES: MONTH TO MONTH TENANCY 0 This Lease is made and entered into this first day of January 1993 by and between the City of Newport Beach (hereinafter referred to as "Landlord ") and Finlay Scott, DBA Bayside Marine Sales, (hereinafter referred to as "Tenant "). PREMISES: Landlord hereby leases to Tenant Landlord, on the terms and condition certain commercial office located i n County of Orange, State of California, Island Drive. TERM: and Tenant hereby leases from s hereinafter set forth, that the City of Newport Beach, commonly known as 829 Harbor The term of the Rental shall be month to month commencing on January 1, 1993. 4. RENT: Tenant shall pay to Landlord as rent for the Premises, the sum of $1300.00 (Thirteen Hundred dollars) per month, in advance on the first day of each month. Rent shall be payable without notice or demand and without any deduction, off -set, or abatement in lawful money of the United States to the Landlord at the address stated herein for notices or to such other persons or such other places as the Landlord may designate to Tenant in writing. 5. SECURITY DEPOSIT Tenant shall deposit with Landlord upon execution of the Lease the sum of $1300.00 (Thirteen Hundred dollars) as a security deposit for the Tenant's faithful performance of the provisions of this Agreement. Landlord may use the security deposit, or any portion of it, to cure the default or compensate Landlord for damages sustained by Landlord resulting from Tenant's default. Tenant shall immediately on demand pay to Landlord the sum equal to that portion of the security deposit expended or applied by Landlord which was provided for in this paragraph so as to maintain the security deposit in the sum initially deposited with Landlord. Landlord shall not be required to keep the security deposit separate from its general account nor shall Landlord be required to pay Tenant any interest on the security deposit. If Tenant performs all of Tenant's obligation under this Agreement, the security deposit or that portion thereof which has not previously been applied by the Landlord, shall be returned to Tenant within 1 y E 0 fourteen (14) days after the expiration of the term of this Agreement, or after Tenant has vacated the premises, whichever is later. 6. POSSESSION: If the Landlord for any reason cannot deliver possession of the Premises to Tenant at the commencement of the term, the Landlord shall not be liable to Tenant for any loss or damage resulting therefrom, but there shall be a proportionate deduction of rent; nor shall this Lease be void or voidable for a period of ten (10) days thereafter; and if for any reason the Premises cannot be delivered within said ten (10) day period, the Tenant may, prior to Landlord's delivery of the Premises, declare this Agreement to be null and void and all money paid to Landlord shall be refunded to Tenant. 7. USE: It is agreed that the Premises shall be used only for yacht and insurance sales, and for no other purposes whatsoever. Tenant in his use, possession and occupancy of the Premises agrees to observe and comply with all restrictions, laws and ordinances affecting said property or occupancy thereof, and Tenant further agrees that no use shall be made of the Premises, nor acts done which will increase the existing rate of insurance upon the Premises, or will cause a cancellation of any insurance policy covering the Premises. 8. UTILITIES: Paid by landlord, except telephone. 9. REPAIRS AND MAINTENANCE: The Landlord shall at its sole cost and expense keep and maintain the exterior walls, roof, electrical wiring, heating system, air conditioning system (if any), water heater, built -in appliances, and water lines in good and sanitary order, condition, and repair, except where damage (if any) has been caused by the abuse or negligence of the Tenant, in which event Tenant shall repair same at his sole cost and expense. Except as herein provided, Tenant hereby agrees that the Premises are now in a tenantable and good condition and shall at his sole cost and expense keep and maintain the Premises, appurtenances and every part thereof, in the manner in which they were received, reasonable wear and tear excepted, including household furniture, fixtures, goods and chattels belonging to the Landlord, so that they shall remain in good and satisfactory order, condition and repair. 2 10. ALTERATIONS AND ADDITIONS: Tenant shall not, without the Landlord's prior written consent, make any alterations, improvements or additions in or about the Premises and any additions to or alterations of the Premises (with the exception of movable furniture) shall at once become a part of the realty and belong to the Landlord. The Tenant shall keep the Premises free from any liens arising out of any work performed, materials furnished or obligations incurred by the Tenant. 11. HOLD HARMLESS: Tenant shall indemnify and hold Landlord harmless from and against any and all claims arising from Tenant's use or occupancy of the Premises or from any activity, work, or-things which may be permitted or suffered by Tenant in or about the Premises including all damages, costs, attorney's fees, expenses and liabilities incurred in the defense of any claim or action or proceeding arising there from. Except for Landlord's willful or grossly negligent conduct, Tenant hereby assumes all risks of damage to property, including household furniture and goods, or injury to person in or about the Premises from any cause, and Tenant hereby waives all claims in respect thereof against Landlord. 12. DAMAGE TO PREMISES: (a) If the Premises are so damaged by fire or from any other cause as to render it untenantable, then either party shall have the right to terminate this Agreement as of the date on which such damage occurs, through written notice to the other party, to be given within fifteen (15) days after the occurrence of such damage; except that should such damage or destruction occur as the result of the abuse or negligence of Tenant, or its invitees, so as to render the Premises untenantable, the Landlord only shall have this right of termination. Should this right be exercised by either ,Landlord or Tenant, then rent for the current month shall be prorated between the parties as of the date on which such damage occurred and any prepaid rent and unused security deposit shall be refunded to Tenant. (b) If this Agreement is not terminated as provided in this Paragraph 13, the Landlord shall promptly repair the Premises and there shall be a proportionate reduction of rent until the Premises are repaired and ready for Tenant's occupancy, such proportionate reduction to be based upon the extent to which the making of repairs interferes with Tenant's reasonable use of the Premises. 3 0 0 13. ASSIGNMENT AND SUBLETTING: Tenant shall not voluntarily or by operation of law assign, transfer, sublet, mortgage, or otherwise transfer or encumber all or any part of Tenant's interest in this Agreement or in the Premises without Landlord's prior written consent which consent shall not be unreasonably withheld. The consent to one assignment or subletting shall not be construed as consent to any subsequent assignment or subletting. 14. DEFAULT: It is agreed between the parties hereto that if any rent shall be due hereunder and unpaid, or if Tenant shall default and breach any other covenant or provision of the Agreement, then the Landlord, after giving the proper notice required by law, may re- enter the Premises and remove any property and any and all persons therefrom in the manner allowed by law. The Landlord, may, at its option, either maintain this Agreement in full force and effect and recover the rent and other charges as they become due, or, in the alternative, terminate this Agreement. In addition, the Landlord may recover all rentals and any other damages and pursue any other rights and remedies which the Landlord may have against the Tenant by reason of such default as provided by law. 15. ABANDONMENT: Tenant shall not vacate or abandon the Premises at any time during the term of this Agreement. 16. ENTRY BY LANDLORD: The Tenant shall permit the Landlord and /or its agents to enter into and upon the Premises at all reasonable times and upon reasonable notice for the purpose of inspecting it or for the purpose of maintaining the Premises, or for the purpose of exhibition the Premises to prospective purchasers or tenants. 17. ATTORNEY'S FEES: If either party commences an action against the other party arising out of or in connection with this Agreement, the prevailing party shall be entitled to have and recover from the losing party reasonable attorney's fees and costs of suit. 18. on termination of this Agreement, Tenant shall surrender the Premises to Landlord in clean and good condition, ordinary wear and tear and damage by fire and the elements excepted. 4 i 0 19. BINDING ON SUCCESSORS AND ASSIGNS: Each provision of this Agreement performable by Tenant shall be deemed both a covenant and a condition. The terms, conditions and covenants of the Agreement shall be binding upon and shall inure to the benefit of each of the parties hereto, their heirs, personal representatives, successors and assigns. 20. NOTICES: Whenever under this Agreement a provision is made for any demand, notice or declaration of any kind, it shall be in writing and served either personally or sent by registered or certified United States mail, postage prepaid, addressed at the address as set forth below: TO LANDLORD AT: City of Newport Beach Marine Department 3300 Newport Boulevard Newport Beach, CA 92663 TO TENANT AT: Finlay Scott, Bayside Marine Sales 829 Harbor Island Drive Newport Beach, CA 93663 Such notice shall be deemed to be received within forty -eight (48) hours from the time of mailing, if mailed as provided for in this paragraph. 21. TAXES: (a) LESSOR shall pay and discharge all taxes, general and specific assessments which during the term of this Lease may be levied upon or assessed against the said Premises and all interest, therein and all improvements and other property thereon. 22. WAIVERS: No waiver by Landlord of any provision hereof shall be deemed a waiver of any other provision hereof or of any subsequent breach by Tenant of the same or any other provisions. 23. TIME: Time is of the essence in this Agreement. 24. JOINT AND SEVERAL OBLIGATIONS: "Party" shall mean Landlord and Tenant; and if more than one person or entity is the Landlord or Tenant, the obligations imposed on the party shall be joint and several. l� �J The parties hereto have executed this Agreement on the date first above written. LANDLORD: o By By: Approv z d as to Form: City Attorney \byblaaaa TENANT: By.. By: F 0 CITY OF NEWPORT BEACH Marine Department 40 November 18, 1992 TO: CITY COUNCIL COMMITTEE /INCOME PROPERTY FROM: Marine Director SUBJECT: OFFICE RENTAL /BAYSIDE MARINE SALES Finley G. Scott is the current Leases of a 781.0 square foot second floor yacht brokerage office located at the Balboa Yacht Basin complex. His lease is due to expire on December 31, 1992. He has requested that the City continue his tenancy on a month to month basis with a reduced rental rate. Background: The subject office at the Balboa Yacht Basin was constructed in the 1987 calendar year when the entire yacht basin was rebuilt. The leased premises (781 sq.ft.) were constructed above the yacht basin restrooms and are adjacent to the marina manager's office. Mr. Scott has been a yacht broker at the Balboa Yacht Basin in excess of 20 years, well before the Irvine Company's lease with the City expired. When the yacht basin was rebuilt by the City, Mr. Scott was relocated from a first floor building to this second floor area. In May, 1987 the city contracted with George Hamilton Jones, MAI, to appraise the property and assist the City in determining fair rental value for these premises. The City entered into a lease on January 1, 1988 with Finley Scott, whereby the initial term of the lease was for a period of five years, commencing January 1, 1988 and ending December 31, 1992. The Leasee, at his option, was permitted two (2) additional periods of three years each to extend the lease. The rent for the property, based on the appraisal, was set at $18,600 per year, payable in monthly installments of $1550. Discussion: The Marine Director and Mr. Scott have discussed tenancy on a month -to month basis and a reduction in the rent, because the boat sale business has been extremely poor for the last three years. The Marine Director has looked at several office space businesses that are on the water with better location and signage, and he believes that square footage rent for this type of office space is between $1.15 and $1.45 per square foot. Mr. Scott, in negotiations with the City, has agreed to pay $1.66 a square foot. This comes to $1300 per month. If the Revenue Producing Committee agrees with the staff analysis, the Marine Department will continue to administer the property and will prepare the appropriate month to month Rental Agreement. The Rental Agreement will state that the 1p. � „yam, S . i •: 'a 1 ., I �. - ... 4 ry iw.. 1F', i!. .M Yw�. f� • +. Ak • ! . r I u; [, , =4-4t; a= Abr i =, a Y • 0 permitted uses will include yacht brokerage sales and sale of vessel insurance. Additionally, the property expenses, including utilities, taxes and exterior maintenance will be at the expense of the Lessor, with interior maintenance and liability insurance at the expense of the Leasee. The tenant will have no right to assign the property, a condition that was in the original lease. David Harshbarger cc: Kevin Murphy, City Manager Ken Delino, Deputy City Manager Attachment: Photo copies of site OFFICE OF THE CITY ATTORNEY November 13, 1989 TO: Wanda Raggio, City Clerk Dave Harshbarger, Marine Director FROM: Maureen Lewis, Legal Secretary I RE: Lease Between the City of Newport Beach and Finlay G. Scott doing business as Bayside Marine Sales Please file the attached amendment to the above - referenced lease. Paragraph 2 of the above - referenced lease incorrectly states the termination date as December 31, 1993. Since the initial term of the Lease is five (5) years, the termination date should be December 31, 1992. If you have any questions, please do not hesitate to contact the undersigned or Robin Flory, Assistant City Attorney.. Thank you. Maureen Lewis Legal Secretary I MLL /m attachment 0 0 CITY OF NEWPORT BEACH OFFICE OF THE CITY ATTORNEY P.O. BOX 1768, NEWPORT BEACH, CA 92659 -1768 Finlay G. Scott Bayside Marine Sales 829 Harbor Island Drive Newport Beach, CA 92662 (714) 6443131 November 9, 1989 Re: January 1. 1988 LEASE BETWEEN THE CITY OF NEWPORT BEACH AND FINLAY G. SCOTT DOING BUSINESS AS BAYSIDE MARINE SALES Dear Mr. Scott: Thank you for notifying our office that Paragraph 2 of the above - referenced lease incorrectly states the termination date as December 31, 1993. Since the initial term of the Lease is five (5) years, the termination date should be December 31, 1992. By this letter the Lease is hereby amended to reflect the actual termination date of December 31, 1992. We are providing you with two (2) signed originals of this letter. If you agree to the amendment, please sign one original and return it to the undersigned in the enclosed self- addressed, stamped envelope. Thank you for your attention to this matter. Sincerely, Robin Flory Assistant City Att ey LESSEE: FINLAY G ./tSCOTT doing buainess as BAYSIDE MARINE SALES 3300 Newport Boulevard, Newport Beach 0 CITY OF NEWPORT BEACH Marine Department January 11, 1988 TO: MAYOR AND CITY COUNCIL FROM: TIDELAND AFFAIRS COMMITTEE 0 Agenda Item: F -3 b BY THE CITY COUNCIL CITY OF NEWPORT BEACH JAN 111988 APPROVED C - 26Y2- SUBJECT: BAYSIDE MARINE SALES (BALBOA YACHT BASIN) LEASE RecommendatiQn- If desired, amthorize the Mayor and City Clerk to execute the attached lease with Finley G. Scott, owner of the yacht brokerage and marine insurance business. Backgrounds Mr. Scott, by letter dated December. 1986 requested the City to begin lease negotiations for the purpose of entering into a new lease with Bayside Marine Sales. The existing lease with the yacht sales business expires on December 31, 1987. George Hamilton Jones, M.A.I., Appraisal Consultants, were retained by the City of Newport Beach to prepare a Fair Rental Valuation of the Bayside Marine Sales office building. The appraisal report was completed in May of 1987 and has been reviewed by the Tideland Affairs Committee and the Lessee for a period of approximately three months. Existing _Lgasg_Site_and_Synopsisr Bayside Marine Sales is located at 829 Harbor Island Drive, Newport Beach, California. The sales office consists of the major part of the second floor of a wooden frame building which houses the Balboa Yacht Basin restrooms on the first floor. The lease premises comprise 781 square feet. The following table is an existing lease synopsis history: Dated: 8/16/71 Lessor: TIC (assigned to City of Newport Beach in July, 1981) Lessee: Finley G. Scott Property: 1023 sq. ft. building (demolished in 1985; replaced with a 781 sq.ft. space) at 829 Bayside Drive, Newport Beach. Term: 5 yrs. commencing 8/11/71; amended 9/1/73 to run through 12/31/87 0 0 Rental: $8,800 per year; paid in monthly amounts of $733.34, in advance; amended 9/1/73 to be the minimum rental; percentage rental schedule (with aggregate natural breakpoint on an annual basis recalculated monthly): 108 of commissions on boat sales 58 on interest on Lessee boat financing 108 of Lessee's commission on insurance 58 on all other sales and services Taxes: By Lessor Use: Yacht sales, brokerage and insurance sales, no other use without written consent of Lessor Repairs: By Lessor Utilities: By Lessor Insurances: By Lessee Ooerational Rent Historyi The existing lease on the appraised property has a minimum rent versus a percentage rent structure. In 1985, a new building was constructed which replaced the former leased premises, demolished by the City during the reconstruction of the Balboa Yacht Basin. Due to the demolition and the construction, the tenant was displaced into a portable trailer during the major part of 1985. For this reason, the history of percentage rents paid prior to 1986 is of little assistance. In 1986 the Lessor's records indicate that a percentage rent of $11,154.63 was paid in addition to the minimum rent of $8,800, for a total of $19,955. This is equal to $1663 per month, or $2.13 per square foot per month for the 781 square feet of office premises. ProAOSgd leasg and conditions The estimate of Fair Rental Market Rent for the Bayside Marine Sales was based on an analysis of comparable lease data and an analysis of the operating history of the existing lease. The George Hamilton Jones MAI appraisal estimated Fair Market Rent considering both flat rentals and minimum versus percentage arrangements. For the Fair Rental Estimate of the subject premises, the flat rental data was considered to be the most helpful. Cl The primary proposed lease terms and conditions are: 1. A lease term of five years with two 3 year options at Fair Market rent. 2. Annual Cost of Living Adjustments based upon the change in the Consumer Price Index. 3. Monthly rent of $1550 per month, gross ($1.98 per square foot). This is equivalent to $18,600 per year. 4. Permitted uses will include yacht brokerage and sales, insurance sales. 5. Property expenses, including utilities, taxes and interior and exterior maintenance will be at the expense of the Lessor, excepting interior maintenance and liability insurance, which will be at the expense of the Lessee. 6. Parking will be permitted within designated areas within the Balboa Yacht Basin complex. 7. The Lessee will have the right to assign the lease subject to the approval of the Lessor, not to be unreasonably withheld. Other Lease Conditions: The remaining conditions of the lease are considered typical. The lease negotiations were conducted by the Marine Director in conjunction with the Tideland Affairs Committee, comprised of City Council members Ruthelyn Plummer and Phil Maurer. The City Attorney's office prepared the lease based on the Fair Rental Valuation Appraisal prepared by George H. Jones. David Harshbarger Marine Director Attachment: Lease (Council Only) pr J The yacht brokerage office (second floor) in the Balboa Yacht Basin, viewed northeasterly. View northwesterly of yacht brokerage office. The residences seen in the rear at left are in the Beacon Bay community. 0 ! 0 C - 2-6X2- LEASE BETWEEN THE CITY OF NEWPORT BEACH AND FINLAY G. SCOTT DOING BUSINESS AS BAYSIDE MARINE SALES INDEX Page Number 1. LEASED PREMISES 1 2. TERM 2 3. RENTAL 2 4. TAXES 4 5. USE OF PREMISES 5 6. ALTERATIONS: 6 A. Lessor's Approval 6 B. Repairs by Lessee 7 C. No Eviction 8 7. REPAIRS 8 8. UTILITIES 10 9. LIABILITY INSURANCE 10 (a) Liability Insurance 10 (b) Worker's Compensation 11 (c) Subrogation Waiver 11 (d) Failure to Secure 11 (e) Additional Insured 12 10. RECONSTRUCTION 12 11. RIGHT OF ENTRY 14 12. SIGNS 15 13. SALES RESTRICTIONS 15 14. ASSIGNMENTS AND SUBLETTING 16 15. BANKRUPTCY - INSOLVENCY 18 16. HOLD HARMLESS 19 17. LIENS 21 18. LESSOR PAYING CLAIMS 21 19. DEFAULTS 22 20. ATTORNEY'S FEES 23 21. REMOVAL 23 22. PAYMENTS AND NOTICES 24 23. EMINENT DOMAIN 26 (a) Definition of Terms 26 (b) Total Taking 26 (c) Partial Taking 26 (d) Allocation of Award 27 (e) Effect of Termination 27 (f) Voluntary Sales 27 24. HOLDING OVER 28 25. ACCEPTANCE OF PREMISES BY LESSEE 29 26. SCOPE OF THE LEASE 29 27. AMENDMENT OF LEASE 29 28. CONSTRUCTION AND EFFECT 29 LEASE THIS Lease, executed this first day of January, 1988, by and between the CITY OF NEWPORT BEACH, a municipal corporation, hereinafter referred to as "LESSOR ", and FINLAY G. SCOTT, doing business as BAYSIDE MARINE SALES hereinafter referred to as "LESSEE ". 1. LEASED PREMISES: In consideration of the rent herein specified to be paid and the covenants and conditions to be observed and performed by LESSEE, LESSOR does hereby Lease to LESSEE that office space (hereinafter referred to as the "Premises ") delineated in red on the attached Exhibit "A ", within a commercial building located at 829 Bayside Drive, in the City of Newport Beach, County of Orange, State of California, said building being a part of the development known as "Balboa Yacht Basin," together with the non - exclusive right, in common with other lessees and tenants of LESSOR, to the use of any parking area(s) in the Balboa Yacht Basin which LESSOR may from time to time designate for patron and employee parking. -3- 2. TERM: The initial term of this Lease shall be for a period of five (5) years, commencing on the first day of January, 1988, ( "Commencement Date ") and ending on the 31st day of December, 1993, subject, however, to earlier termination as hereinafter provided. LESSEE may, at his option, extend the term of this Lease to two (2) additional periods of three (3) years each provided that LESSEE notifies the LESSOR in writing of his election to extend at least six (6) months prior to expiration of the term of this Lease ( "Extended Term ") and execute a Modification of this Lease to increase the rent during the Extended Term to the current fair market rent. LESSOR, at its sole discretion, will determine the current fair market rent. Notwithstanding anything to the contrary herein, if LESSEE is in default of their obligation under this Lease on the date the Notice to Extend is given or the date the Extended Term is to commence, the Extended Term shall not commence and this Lease shall expire at the end of the last term in effect. 3. RENTAL: (a) LESSEE agrees to pay to LESSOR as rental for the use and occupancy of the said Premises the sum of eighteen thousand six hundred dollars ($18,600) per year payable in -4- monthly installments of fifteen hundred fifty dollars ($1,550) in advance on or before the first day of each month of the term thereof. (b) Any payment due from LESSEE to LESSOR under the provisions of this Lease which shall not be paid when due shall be subject to a late charge at the rate of ten percent (10 %) per annum from the date due and payable by the terms of this Lease until the same shall be paid. All payments hereunder shall be paid in lawful money of the United States. (c) Adjustments to Rent: The yearly rent and monthly payment shall be subject to adjustment each year following the Commencement Date during the initial and any extended term of this Lease. In no case shall the adjusted yearly rent and monthly payment be less than the current yearly rent and monthly payment. The base for computing the adjustment shall be the Consumer's Price Index for All Urban Consumers (Base Year 1967 -100) for the Los Angeles -Long Beach Bureau, published by the United States Department of Labor, Bureau of Labor Statistics (the "Index ") which is published for the month which is fourteen (14) months prior to the commencement of the Lease year in question (the "Beginning Index "). The adjustment date shall be the month which is two (2) months prior to the commencement of the Lease year in -5- question and the Index published that month (the "Adjustment Index ") shall be computed as a percentage of the Beginning Index. For example, assuming the Beginning Index is one hundred ten (110) and the Adjustment Index is one hundred twenty one (121), the percentage to be applied is one hundred twenty one /one hundred ten (121/110) or one hundred ten percent (110 %). In the event that no such index is issued or published within one (1) year previous to an adjustment date or that said bureau should cease to publish said index figure, then any similar index published by any other branch or department of the U.S. Government shall be used. If none is so published, then another index generally recognized authoritative shall be substituted by agreement. 4. TAXES: (a) LESSOR shall pay and discharge all taxes, general and special assessments which during the term of this Lease may be levied upon or assessed against the said Premises and all interest therein and all improvements and other property thereon. (b) During the term hereof LESSEE shall pay prior to delinquency all taxes assessed against and levied upon fixtures, furnishings, equipment and all other personal property of LESSEE contained in said Premises, and when possible LESSEE shall cause said fixtures, furnishings, equipment and other personal property -6- 0 0 to be assessed and billed separately from the real property of LESSOR. In the event any or all of the LESSEE'S fixtures, furnishings, equipment and other personal property shall be assessed and taxed with the LESSOR'S real property, the LESSEE shall pay to LESSOR its share of such taxes within ten (10) days after delivery to LESSEE by LESSOR of a statement in writing setting forth the amount of such taxes applicable to LESSEE'S property. 5. USE OF PREMISES: (a) During the term hereof LESSEE shall use and occupy said Premises for the conduct of the business of yacht sales, brokerage and insurance sales and for no other use or purpose, except by and with the prior written consent of LESSOR. (b) No use shall be made or permitted of said Premises or any part thereof, nor any acts done which shall constitute a nuisance or unreasonable annoyance to other lessees in the Balboa Yacht Basin or which shall violate, make inoperative or increase the existing rate of any insurance policy held by or for the benefit of LESSOR. LESSEE shall not sell, or suffer or permit to be kept, used or sold in, upon or about said Premises, any gasoline, distillate or other petroleum or nuclear product, or any substance or material of an explosive, inflammable or radiological nature which may be prohibited by any insurance -7- 0 0 policy held by or for the benefit of LESSOR, or which may endanger any part of the Balboa Yacht Basin or its occupants, business patrons or invitees, without the written consent of LESSOR and all insurance companies carrying public liability, rental income, fire, extended coverage, plate glass or other casualty insurance pursuant to any provision hereof. (c) LESSEE shall not commit or suffer to be committed any waste upon said Premises, or any nuisance or act or thing which may disturb the quiet enjoyment of any other LESSEE, concessionaire, licensee or occupant in the Balboa Yacht Basin. (d) LESSEE shall at all times comply with all governmental rules, regulations, ordinances, statutes and laws now in force or which may hereafter be in force pertaining to said Premises and to LESSEE`S use thereof, and a finding of guilty by a competent court for any violation thereof shall be conclusively deemed a default under this Subparagraph (d). (e) Occupancy of said Premises after the date of commencement of the term hereof shall constitute the acceptance by LESSEE of the safety and good order and condition thereof. 6. ALTERATIONS: A. Lessor's Approval. No repairs, alterations, changes or additions shall be made to said Premises without LESSOR'S prior written consent and LESSOR'S approval of the plans -8- 0 0 and specifications therefor. All such work which may be done within said Premises by LESSEE shall be done pursuant to LESSOR'S directions. B. Repairs by Lessee. LESSEE shall keep all of said Premises in such repair, order and condition as the same are in on the commencement of the Lease Term or may be put in by subsequent changes, alterations, additions and repairs during the Lease Term, except such damages as shall be due to reasonable use and wear and /or damage by fire or unavoidable casualty. LESSEE shall make such repairs as are required of LESSEE under the foregoing sentence in and about said Premises necessary to preserve said Premises in such repair, order and condition; provided, however, that LESSOR may elect to make any such repairs at the expense of LESSEE, which expense shall be due and payable upon demand therefor by LESSOR and thereupon become a charge under this Lease. Notwithstanding the foregoing, LESSOR shall make, at its expense, all repairs to said Premises occasioned by the act or neglect of LESSOR, its agents or employees. All repairs shall be of the quality and class equal to the original work. LESSEE expressly waives all right to make repairs at LESSOR'S expense under the provision of Sections 1941 and 1942 of the Civil Code of the State of California. Any alterations, improvements, changes or repairs to said Premises shall become the property of LESSOR and shall remain upon and be surrendered -9- • • with said Premises subject to any rights of removal contained in this Lease. LESSEE shall, at the expiration of earlier termination of this Lease, surrender said premises to LESSOR in as good condition and repair as reasonable and proper use thereof will permit. C. No Eviction. Except as otherwise provided in Paragraph 10, there shall be no allowance to LESSEE for diminution of rental value and no claim by LESSEE for eviction from said Premises by reasons of inconvenience, annoyance or injury to LESSEE arising from any repairs, alterations, replacements or improvements made to said Premises. LESSOR shall not be liable to LESSEE for failure to make repairs to said Premises occasioned by the act or neglect of LESSOR or its employees unless LESSOR has received from LESSEE written notice of the need for such repairs and has failed to commence and diligently complete such repairs within a reasonable time thereafter. 7. REPAIRS: LESSOR agrees, at its sole cost and expense, to keep and maintain in good order, condition and repair the foundations, roof, exterior walls and structural portions of the building in which said Premises are located. LESSOR reserves the right at any time and from time to time without the same constituting an actual or constructive eviction and without -10- • 0 incurring any liability to LESSEE therefor or otherwise affecting LESSEE'S obligations under this Lease, to make such changes, alterations, additions, improvements, repairs or replacements in or to the building (including said Premises if required so to do by any law or regulation) and the fixtures and equipment thereof, as well as in or to the street entrances, halls, passages, and stairways thereof, or after reasonable notice, to change the name, number and designation by which the building is commonly known, as LESSOR may deem necessary or desirable, and to change the arrangement or location of entrances or passageways, doors and doorways and corridors, provided, however, that there be no unreasonable obstruction of the right of access to, or unreasonable interference with the use and enjoyment of, said Premises by LESSEE. Nothing contained in this Paragraph shall be deemed to relieve LESSEE of any duty, obligation or liability of LESSEE with respect to making any repair, replacement or improvement or complying with any law, order or requirement of any government or other authority and nothing contained in this Paragraph shall be deemed or construed to impose upon LESSOR any obligation, responsibility or liability whatsoever, for the care, supervision or repair of the building or any part thereof other than as otherwise provided in this Lease. -11- 0 0 S. UTILITIES: LESSOR shall pay for all water, gas, heat, light, power and trash removal services and shall provide minimal interior maintenance and repairs which includes painting, plumbing and electrical repairs and excludes custodial service. 9. LIABILITY INSURANCE. Prior to the Commencement Date of this Lease, LESSEE shall furnish the LESSOR with certificates showing the type, amount, class of operations covered, effective dates and dates of expiration of insurance policies. Such certificates, which do not limit LESSEES' indemnification, shall also contain substantially the following statement: "The Insurance covered by this certificate will not be cancelled or materially altered, except after thirty (30) days' written notice has been received by the LESSOR." It is agreed that LESSEE shall maintain in force at all time during the performance of this Lease all appropriate policies of insurance, and that said policies shall be secured from a good and responsible company or companies, acceptable to LESSOR, doing insurance business in the State of California. LESSEES shall maintain the following insurance coverage: (a) Liability Insurance. The general liability coverage shall provide the following minimum limits: Bodily Injury $250,000 each person $500,000 each occurrence $500,000 aggregate Property Damage $100,000 each occurrence $250,000 aggregate -12- A combined single limit policy with aggregate limits in the amount of one million dollars ($1,000,000) will be considered equivalent to the required minimum limits. All said coverage to include liability for occurrences on the Premises. (b) Worker's Compensation. All employees of the LESSEE must be included under such policy in an amount and with coverage to meet all requirements of the Labor Code of the State of California. (c) Subrogation Waiver. LESSEE hereby waives any and all rights of recovery against LESSOR, or against the employees, agents and representatives of LESSOR, for loss of or damage to LESSEE or its property or the property of others under its control, where such loss or damage is insured against under any insurance policy, whether or not required by this Lease, in force at the time of such loss or damage. (d) Failure to Secure. If LESSEE at anytime during the term hereof, should fail to secure or maintain the foregoing insurance, LESSOR shall, after two (2) days' notice, be permitted to obtain such insurance in the LESSEE'S name or as an agent of the LESSEE and shall be compensated by the LESSEE for the costs of the insurance premiums. LESSEE shall pay LESSOR interest on paid insurance premiums at the maximum rate permitted by law computed from the date written notice is received that the premiums have been paid. -13- (e) Additional Insured. LESSOR, its City Council, boards and commissions, officers, agents, servants, and employees shall be named as an additional insured under the policies of insurance required by this Lease. The naming of an additional insured shall not affect any recovery to which such additional insured would be entitled under this policy if not named as such additional insured; and an additional insured named herein shall not be held liable for any premium or expense of any nature on this policy or any extension thereof. 10. RECONSTRUCTION: (a) In the event the building in which the said Premises are located is damaged by fire, or perils covered by extended coverage insurance, the LESSOR shall: (1) In the event of total destruction, within a period of ninety (90) days thereafter, commence repair, reconstruction and restoration of said building and prosecute the same diligently to completion in which event this Lease shall continue in full force and effect; or within said ninety (90) day period elect not to so repair, reconstruct or restore said building, in which event this Lease shall cease and terminate. In either event, LESSOR shall give the LESSEE written notice of its intention within said ninety (90) day period. (2) In the event of a partial destruction of the building to an extent not exceeding twenty -five percent (25 %) of -14- i i the full Insurable value thereof and if the damage thereto is such that the building may be repaired, reconstructed or restored within a period of ninety (90) days from the date of the happening of such casualty, the LESSOR shall commence and proceed diligently with the work of repair, reconstruction and restoration and the Lease shall continue in full force and effect; or if such work of repair, reconstruction and restoration is such as to require a period longer than ninety (90) days or exceed twenty -five percent (25 %) of the full insurable value thereof, the LESSOR may either elect to so repair, reconstruct and restore and the Lease shall continue in full force and effect or said LESSOR may elect not to repair, reconstruct or restore and the Lease shall in such event terminate. Under any of the conditions of this subparagraph provided, the LESSOR shall give written notice to the LESSEE of its intention within the period of ninety (90) days. (3) In the event that a partial or total destruction (as described in (1) and (2) above) of the building takes place during the last six (6) months of the Lease term hereof, either the LESSOR or LESSEE, at its option, may elect to terminate this Lease upon written notice within thirty (30) days after such destruction. (b) In the event of repair, reconstruction and restoration as herein provided, the rental provided to be paid -15- under Paragraph 3 hereof shall be abated proportionately in the ratio which the LESSEE'S use of the Premises is impaired during the period of such repair, reconstruction or restoration. The LESSEE shall continue the operation of its business on the Premises during any such period to the extent reasonably practicable from the standpoint of prudent business management. The LESSEE shall not be entitled to any compensation or damages for loss in the use of the whole or any part of the Premises i and /or any inconvenience or annoyance occasioned by any such damage, repair, reconstruction or restoration. 11. RIGHT OF ENTRY: LESSEE shall permit LESSOR and its agents to enter upon said Premises at all reasonable times for the purpose of inspecting the same and for the purpose of posting any notice deemed necessary by LESSOR for the protection of its interest, and for making any repairs or alterations provided for f in this Lease. During the last ninety (90) days of the term hereof and at any time after notice of termination of this Lease has been given as provided in this Lease, LESSOR may place and maintain on said Premises customary "For Sale" and /or "For Lease" signs and may, at all reasonable times, enter said Premises for the purpose of displaying said Premises to prospective lessees. LESSOR or its agents may, during the progress of any work on the Premises, keep and store upon the Premises all necessary materials, tools and equipment and LESSOR shall not in any such -16- i • event be liable for inconvenience, annoyance, disturbance, loss of business or other damage to LESSEE and the obligations of LESSEE under this Lease shall not be affected. 12. SIGNS: LESSEE shall not erect or maintain or permit to be erected or maintained any sign, marquee or awning on said Premises without the prior written consent of LESSOR. LESSOR shall have the right to approve the type and size, location and color of all signs which LESSEE desires to use or place in or upon said Premises. The LESSEE shall affix and maintain upon the glass panes and supports of the show windows and within twelve (12) inches of any windows or upon the exterior walls of the building only such signs, advertising placards, names, insignia, trademarks and descriptive material as shall have first received the written approval of the LESSOR as to size, type, color, location, copy, nature and display qualities. 13. SALES RESTRICTIONS: Excepting normal sales of moored boats, LESSEE 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 or from said Premises, whether said auction be voluntary, involuntary, pursuant to any assignment for benefit of creditors or pursuant to any bankruptcy or other insolvency proceedings, shall be conducted. -17- 14. ASSIGNMENTS AND SUBLETTING: (a) LESSEE may transfer or assign this Lease, or any right or interest hereunder, or sublet the Leased Premises or any part thereof, after first obtaining the prior written consent and approval of LESSOR. Such consent will not be unreasonably withheld. LESSOR hereby reserves the right to condition any such approval upon LESSOR'S determination that the assignee or sublessee is (1) as financially responsible as LESSEE and (ii) has demonstrated an ability and willingness to pay or to operate a similar business generating a sales volume sufficient to pay the yearly rent and make the monthly payments as defined in Paragraph 3. No transfer or assignment, whether voluntary or involuntary, by operation of law, under legal process or proceedings, by receivership, in bankruptcy, or otherwise, and no subletting, shall be valid or effective without such prior written consent and approval. Should LESSEE attempt to make or suffer to be made any such transfer, assignment or subletting, except as aforesaid, or should any of LESSEE'S rights under this Lease be sold or otherwise transferred by or under court order or legal process or otherwise, or should LESSEE be adjudged insolvent or bankrupt, then and in any of the foregoing events LESSOR may, at its option, terminate this Lease forthwith by -18- written notice thereof to LESSEE, Should LESSOR consent to any I such transfer, assignment or subletting, such consent shall not constitute a waiver of any of the restrictions of this Paragraph and the same shall apply to each successive transfer, assignment or subletting hereunder, if any. (b) If the LESSEE hereunder is a corporation, an unincorporated association, or a partnership, the transfer, assignment or hypothecation of any stock or interest in such corporation, association or partnership in the aggregate in excess of twenty -five percent (25 %) shall be deemed an assignment within the meaning and provisions of this Paragraph; provided, however, a transfer or assignment or any such stock or interest by a shareholder or member to his spouse, children or grandchildren is excepted from the foregoing provision. (c) If the LESSOR consents to an assignment or transfer by LESSEE of all or a portion of LESSEE'S interest under this Lease, LESSEE shall pay, or cause to be paid, a transfer fee of one hundred dollars ($100); provided, however, that such transfer fee shall not be payable upon LESSOR'S consent to a transfer or assignment of LESSEE'S interest hereunder as security for a loan. -19- 15. BANKRUPTCY- INSOLVENCY: The LESSEE agrees that in the event all or substantially all of the LESSEE'S assets are placed in the hands of a receiver or trustee, and such receivership or trusteeship continues for a period of thirty (30) days, or should the LESSEE make an assignment for the benefit of creditors or be adjudicated a bankrupt, or should the LESSEE institute any proceedings under the Bankruptcy Act or under any amendment thereof which may hereafter be enacted, or under any other act relating to the subject of bankruptcy wherein the LESSEE seeks to be adjudicated a bankrupt, or to be discharged of its debts, or to effect a plan of liquidation, composition or reorganization, or should any involuntary proceeding be filed against the LESSEE under any such bankruptcy laws and the LESSEE consent thereto or acquiesce therein by pleading or default, then this Lease or any interest in and to the said Premises shall not become an asset in any of such proceedings and, in any such event and in addition to any and all rights or remedies of the LESSOR hereunder or by law provided, it shall be lawful for the LESSOR to declare the term hereof ended and to re -enter the said Premises and take possession thereof and remove all persons therefrom, and the LESSEE shall have no further claim thereon or hereunder. -20- • i 16. HOLD HARMLESS: LESSEE shall indemnify and hold harmless LESSOR, its City Council, boards and commissions, officers, agents, servants and employees from and against any and all actions, causes of action, obligations, costs, damages, losses, claims, liabilities and demands of any nature whatsoever, including reasonable attorneys' fees, regardless of the merit or outcome of any such claim or suit, arising from or in any manner connected to the use or possession of the Premises by LESSEE conducted pursuant to this Lease. LESSEE shall indemnify and hold harmless LESSOR, its City Council, boards and commissions, officers, agents, servants and employees from and against any and all actions, causes of action, obligations, costs, damages, losses, claims, liabilities and demands of any nature whatsoever, including reasonable attorneys' fees, accruing or resulting to any and all persons, firms or corporations furnishing or supplying work, services, materials, equipment or supplies in connection with services or work conducted or performed pursuant to this Lease by LESSEE and arising out of such activities or work, and from any and all claims and losses whatsoever, including reasonable attorneys' fees, accruing or resulting to any person, firm or corporation for damage, injury or death arising out of LESSEE'S use and possession of the Premises. -21- r i Without limiting the generality of the foregoing, LESSEE hereby agrees that the LESSOR, its City Council, boards and commissions, officers, agents, servants and employees, shall not be liable for injury to LESSEE'S business or any loss of income therefrom or for damage to the goods, wares, merchandise, improvements or other property of LESSEE, LESSEE'S employees, invitees, customers, or any other person in or about the Premises, nor shall LESSOR, its City Council, boards and commissions, officers, agents, servants and employees be liable for injury to the person of LESSEE, LESSEE'S employees, agents or contractors, whether such damage or injury is caused by or results from fire, steam, electricty, gas, water or rain, or from the breakage, leakage, obstruction or other defects of pipes, sprinklers, wires, applicances, plumbing, air conditioning or lighting fixtures, crime, or from any other cause, whether the said damage or injury results of the building of which the Premises are a part, or from other sources or places and regardless of whether the cause of such damage or injury or the means of repairing the same is inaccessible to LESSEE. LESSOR, its City Council, boards and commissions, officers, agents, servants and employees shall not be liable for any damages arising from any act or neglect of any other LESSEE, if any, of the building in which the Premises are located. -22- • 0 17. LIENS: LESSEE shall not permit to be enforced against said Premises, or any part thereof, any mechanics', materialmen's, contractors' or other liens arising from, or any claims for damages growing out of, any work of repair or alteration as herein authorized or otherwise arising (except from the actions of LESSOR), and LESSEE shall pay or cause to be paid all of said liens and claims before any action is brought to enforce the same against LESSOR or said Premises; and LESSEE agrees to indemnify and hold LESSOR and said Premises free and harmless from all liability for any and all such liens and claims and all costs and expenses in connection therewith. LESSEE shall give LESSOR no less than twenty (20) days' prior notice in writing before commencing construction of any kind on the Premises so that LESSOR may post notices of non - responsibility. 18. LESSOR PAYING CLAIMS: Should LESSEE fail to pay and discharge, when due and payable, any tax or assessment, or any premium or other charge in connection with any insurance policy or policies which LESSEE is obligated to pay, or any lien or claim for labor or material employed or used in, or any claim for damages arising out of the repair, alterations, maintenance and use of said Premises, as provided in this Lease, after ten (10) days' written notice from LESSOR, then LESSOR may, at its option, -23- • 0 and without waiving or releasing LESSEE from any of LESSEE'S obligations hereunder, pay any such tax, assessment, lien, claim, insurance premium or charge, or settle or discharge any action therefor or satisfy any judgment thereon. All costs, expenses and other sums, incurred or paid by LESSOR in connection therewith, together with interest at the rate of ten percent (10 %) per annum on such costs, expenses and sums from the date incurred or paid by LESSOR, shall be deemed to be additional rent hereunder and shall be paid by LESSEE with and at the same time as the next installment of rent hereunder, and any default therein shall constitute a breach of the covenants and conditions of this Lease. 19. DEFAULTS: The occurrence of any one (1) or more of the following events shall constitute a material default and breach of this Lease by LESSEE. (a) The vacating or abandonment of the Premises by LESSEE. (b) The failure by LESSEE to make any payment of rent required to be made by LESSEE hereunder, as and when due, where such failure shall continue for a period of three (3) business days after written notice thereof from LESSOR to LESSEE. -24- (c) Except as specified in Subsection B, the failure by LESSEE to observe or perform any of the covenants, conditions or provisions of this Lease to be observed or performed by LESSEE where such failure shall continue for a period of ten (10) days after written notice hereon from LESSOR to LESSEE; provided, however, that if the nature of LESSEE'S default is such that more than ten (10) days are reasonable required for its cure, then LESSEE shall not be deemed to be in default if LESSEE commenced such cure within said ten (10) day period and thereafter diligently prosecutes such cure to completion. 20. ATTORNEY'S FEES: LESSEE shall pay to LESSOR such amounts for reasonable attorney's fees incurred by LESSOR in connection with LESSEE'S breach or default under this Lease. In addition, in the event that any action shall be instituted by either of the parties hereto for the enforcement of any of its rights or remedies in and under this Lease, the party in whose favor judgment shall be rendered therein shall be entitled to recover from the other party all costs incurred by said prevailing party in said action, including reasonable attorney's fees to be fixed by the court therein. 21. REMOVAL: Upon the expiration of the term of this Lease, or upon any earlier termination of this Lease, LESSEE shall quit and surrender possession of the said Premises to LESSOR in the -25- same condition as upon delivery of possession to LESSEE hereunder, reasonable wear and tear and damage by fire, acts of God, the elements and unavoidable casualty excepted. Before surrendering possession of said Premises as aforesaid, LESSEE shall without expense to LESSOR, remove or cause to be removed from said Premises all signs, furnishings, equipment, trade fixtures, merchandise and other personal property installed or placed therein, and all debris and rubbish, and LESSEE shall repair all damage to said Premises resulting from such removal. If LESSEE fails to remove any of its signs, furnishings, equipment, trade fixtures, merchandise or other personal property within ten (10) days after the expriation or termination of this Lease, then LESSEE may, at its sole option (a) treat LESSEE as a holdover in which event the provisions of Paragraph 24 shall apply; or (b) deem any or all of such items abandoned and the sole property of LESSOR; or (c) remove any or all of such items and dispose of same in any manner or store same for LESSEE, in which event the expense of such disposition or storage shall be borne by LESSEE and shall be immediately due and payable. 22. PAYMENTS AND NOTICES: All rents and other sums payable by LESSEE to LESSOR hereunder shall be paid to LESSOR at its business office at CITY OF NEWPORT BEACH, FINANCE DEPARTMENT, -26- 0 0 3300 NEWPORT BOULEVARD, P.O. BOX 1768 NEWPORT BEACH, CALIFORNIA, 92658 -8915, or at such other place as LESSOR may hereafter designate in writing. Any notice to be given or other document to be delivered by either party to the other hereunder may be delivered in person to an officer of LESSOR or to LESSEE or any officer of LESSEE, if a corporation, or may be deposited in the United States mail in Orange County, State of California, duly registered or certified, postage prepaid, and addressed to LESSOR at its said business office and to LESSEE at the addresses designated below. Either party hereto may from time to time, by written notice to the other, served in the manner herein provided, designate a different address. If any notice or other document is sent by mail, as aforesaid, the same shall be deemed served or delivered twenty -four (24) hours after the mailing thereof. If more than one (1) lessee is named under this Lease, service of any notice upon any one of said lessees shall be deemed as service upon all of said LESSEES. Address of LESSEE: Finlay G. Scott, doing business as BAYSIDE MARINE SALES, 829 HARBOR ISLAND DRIVE, NEWPORT BEACH, CALIFORNIA 92660. -27- 23. EMINENT DOMAIN: (a) Definition of Terms: The term "total taking" as used in this Paragraph means the taking of the entire Premises under the power of eminent domain or a taking of so much of said Premises as to prevent or substantially impair the conduct of LESSEE'S business therein. The term "partial taking" means the taking of a portion only of said Premises which does not constitute a total taking as above defined. (b) Total Takinir: If during the term hereof there shall be a total taking by public authority under the power of eminent domain, then the Leasehold estate of LESSEE in and to said Premises shall cease and terminate as of the date actual physical possession thereof shall be so taken. (c) Partial Taking.: If during said term there shall be a partial taking of said Premises, this Lease shall terminate as to the portion of said Premises taken upon the date upon which actual possession of said portion of said Premises is taken pursuant to said eminent domain proceedings, but said Lease shall continue in force and effect as to the remainder of said Premises. The yearly rent and monthly payment by LESSEE for the balance of said term shall be abated in the ratio that the square footage of floor area of said Premises taken bears to the total floor area of said Premises at the time of such taking. -28- (d) Allocation of Award: All compensation and damages awarded for the taking of said Premises or any portion or portions thereof, shall, except as otherwise herein provided, belong to and be the sole property of LESSOR, and LESSEE shall not have any claim or be entitled to any award for diminution in value of its Leasehold hereunder or for the value of any unexpired term of this Lease; provided, however, LESSEE shall be entitled to any award that may be made for the taking of or injury to on account of any cost or loss LESSEE may sustain in the removal of LESSEE'S fixtures, equipment and furnishings. (e) Effect of Termination: If this Lease is terminated, in whole or in part, pursuant to any of the provisions of this Paragraph, all rentals and other charges payable by LESSEE to LESSOR hereunder and attributable to the Premises taken, shall be paid up to the date upon which actual physical possession shall be taken by the condemnor, and the parties shall thereupon be released from all further liability in relation thereto. (f) Voluntary Sales: A voluntary sale by LESSOR to any public body or agency having the power of eminent domain, either under threat of condemnation or while condemnation proceedings are pending, shall be deemed to be a taking under the power of eminent domain for the purposes of this Paragraph. -29- L 0 24. HOLDING OVER: This Lease shall terminate and become null and void without further notice upon the expiration of the term herein specified, and any holding over by LESSEE after such expiration shall not constitute a renewal hereof or give LESSEE any rights under this Lease, except as otherwise herein provided, LESSOR and LESSEE understand and agree that this Lease cannot be renewed, extended or in any manner modified except in writing signed by both parties hereto; provided, however, that nothing in this Paragraph shall be construed to alter or impair the provisions of Paragraph 21 hereof. If LESSEE shall hold over for any period after the expiration of said term, LESSOR may, at its option, exercised by written notice to LESSEE, treat LESSEE as a tenant from month -to -month commencing on the first day following the expiration of this Lease and subject to the terms and conditions herein contained except that the monthly payments, which shall be payable in advance, shall be one hundred fifty percent (150 %) of said monthly payments applicable at the date of expiration. If LESSEE fails to surrender the Premises upon the expiration of this Lease despite demand to do so by LESSOR, LESSEE shall indemnify and hold LESSOR harmless from all loss or liability, including without limitation, any claims made by any succeeding LESSEE founded on or resulting from such failure to surrender. -30- 25. ACCEPTANCE OF PREMISES BY LESSEE: By taking possession of the said Premises, LESSEE accepts the improvements in the condition in which they may then be, and waives any right or claim against LESSOR arising out of the condition of the said Premises, including the improvements thereon, the appurtenances thereto, and the equipment thereof. 26. SCOPE OF THE LEASE: This Lease is and shall be considered to be the only agreement between the parties hereto. All negotiations and oral agreements acceptable to both parties are included herein. 27. AMENDMENT OF LEASE: No amendment or other ratification of this Lease shall be effective unless in a writing signed by all parties to this Lease. 28. CONSTRUCTION AND EFFECT: Time is of the essence of this Lease. The Paragraph headings herein are used only for the purpose of convenience and shall not be deemed to contain or limit the subject matter of the Paragraphs hereof, nor to be considered in the construction thereof. Each and all of the obligations, convenants, conditions and restrictions of this Lease shall inure to the benefit of and be binding upon and enforceable against, as the case may require, the successors and assigns of LESSOR, and subject to the restrictions of Paragraph 14 hereof, any authorized assignee, transferee, sublessee and other successor in interest of LESSEE. -31- In this Lease the neuter gender includes the feminine and masculine and the singular number includes the plural wherever the context so requires. If more than one LESSEE is named above, the obligation of each of such LESSEES hereunder shall be and is joint and several. IN WITNESS WHEREOF, each of the parties hereto has caused this Lease to be executed on the day and year first above written. ROVED AS • •' ATTEST: y(�l�i/ CITY CLERK -32- LESSOR: CITY OF a -aHn i c P overru LESSEE: F I NLAYJT. SCOTT doing usiness as BAYSIDE MARINE SALES w ATV u• s i �'y'./�IO♦ /It VdCNT ,4QGB8 ( I CITY OF N OWN. I 1 BCd L G•' 1 ~ �.3P7C � DATE PUBLIC WORKS DEPARTMENT APPROVED AMAVA q Y4dCl-17- 9G[. G'9 L EG.9E Punic WORKS_ DIRECTOR F,(20A'1 R.E. ND. 7'He CoTY 0,r-'WffWP047* 6E4CN DRAWING RO. Z. CITY OF NEWPORT B&CH OFFICE OF THE CITY ATTORNEY P.O. BOX 1768, NEWPORT BEACH, CA 92658 -8915 (714) 644 -3131 January 18, 1988 Bayside Marine Sales 829 Harbor Island Drive Newport Beach, CA 92660 Re: Lease Between the Citv of Newport Beach and Finlav G. S Dear Mr. Scott: Enclosed please find two (2) originals and one (1) copy of the above - mentioned Lease. Carol A. Korade, Assistant City Attornev, has approved them as to form. Please sign the two (2) original Leases and return them to me in the enclosed self - addressed, stamped envelope. I will route them to the City Clerk wherein she will sign each Lease and obtain the signature of the Mayor. As soon as the Lease has been fully executed, I will return an original Lease to you. If you have any questions, please do not hesitate to contact the undersigned or Carol A. Korade, Assistant City Attorney. Very truly yours, Maureen L. Huffman Legal Administrative Clerk MLH /m enclosures cc: Dave Harshbarger, Marine Director Wanda Raggio, City Clerk 3300 Newport Boulevard, Newport Beach