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
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COMPANY
LETTER E
ROBERT E. HAPRRT
T:ra;ESL.FFIF'ilvCie=
AGENCY
PO BOY
T.RV_TN._. CA ` 271.:3
CODE SUB -CODE
INSURED
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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
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GENERAL LIABILITY
GENERAL AGGREGATE
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COMMERCIAL GENERAL LIABILITY
PRODUCTS COMPIOPS AGGREGATE
11
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CLAIMS MADE OCCUR.
PERSONAL & ADVERTISING INJURY
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OWNER'S& CONTRACTOR'S PROT.
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FIRE DAMAGE (Any one fire)
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NON -OWNED AUTOS
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GARAGE LIABILITY
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EXCESS LIABILITY
- - - ..EACH AGGREGATE
- OCCURRENCE
OTHER THAN UMBRELLA FORM
WORKER'S COMPENSATION STATUTORY
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EMPLOYER'S LIABILITY -
(DISEASE — EACH EMPLOYEE)
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DESCRIPTION OF OPERATIONSILOCATIONS NEHICLES)SPEGAL ITEMS
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CERTIFICATE HOLDER
CANCELLATION
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SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE
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EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL
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MAIL S O DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE
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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
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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
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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.
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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.
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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
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TENANT:
By..
By:
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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
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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
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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
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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)
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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
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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
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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
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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
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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
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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
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• •
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
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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.
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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
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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.
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(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
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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
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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
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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.
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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
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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.
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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.
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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.
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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.
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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,
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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.
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(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
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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,
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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
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overru
LESSEE:
F I NLAYJT. SCOTT
doing usiness as
BAYSIDE MARINE SALES
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CITY OF N
OWN.
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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