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HomeMy WebLinkAboutC-2637(B) - Whitecliffs Drive, 1 - Amended and Restated Ground Lease 2023AMENDED AND RESTATED GROUND LEASE by and between CITY OF NEWPORT BEACH, a California municipal corporation and charter city "Lessor" NEWPORT AQUATIC CENTER, INC., a non-profit public benefit corporation "Lessee" Dated as of 6CA2o)D&Y .UL, 2023 AMENDED AND RESTATED GROUND LEASE BETWEEN THE CITY OF NEWPORT BEACH AND NEWPORT AQUATIC CENTER, INC. THIS AMENDED AND RESTATED GROUND LEASE ("Lease") is made as of Cca o\3ty 10 , 2023 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("Lessor" or "City") and NEWPORT AQUATIC CENTER, INC., a non-profit public benefit corporation, organized and existing under and by virtue of the laws of the State of California ("Lessee"). Lessor and Lessee are at times individually referred to as "Party" and collectively as "Parties" herein. RECITALS This Lease is made with reference to the following facts, the materiality and existence of which is stipulated and agreed by the Parties: A. Lessor and the County of Orange ("County") are joint owners of approximately twelve (12) acres of tidelands, subject to a public trust, and an approximately four (4) acre parcel located at 1 Whitecliffs Drive (A.P.N. 117-381-06), both of which are located in the City of Newport Beach and are together commonly known as North Star Beach as legally described and more particularly depicted in Exhibit "A" which is attached hereto and incorporated by reference herein ("Property"). B. In November 1982, the qualified electors of the City of Newport Beach approved a Measure, which granted the City Council the authority to lease a portion of North Star Beach for the construction of facilities to promote sports involving human - powered watercraft. C. The portion of North Star Beach selected for the construction of facilities to promote sports involving human -powered watercraft is approximately 3.9 acres of land, as more particularly depicted in Exhibit "B" which is attached hereto and incorporated by reference herein ("Premises"). D. On September 6, 1984, the Planning Commission of the City of Newport Beach approved Lessee's application for a use permit ("Use Permit No. 3104"), as amended August 18, 1988, authorizing the construction of an 18,228 square foot structure to provide facilities for human -powered watercraft and their owners, including boat storage, a multi -purpose area, meeting room, a weight training room, small offices for the conduct and operation of the facility, locker rooms, and such other facilities as may be incidental to sports involving human -powered watercraft. In addition, Lessee proposed to construct a bulkhead along a portion of the beach frontage, build low-lying docks to serve only human -powered craft, landscape the Premises, and provide appropriate public parking, restroom facilities, and access to the beach. Newport Aquatic Center, Inc. Page 1 E. On February 14, 1985, the California Coastal Commission approved Lessee's application for a Coastal Development Permit authorizing the construction of the aquatic center ("Coastal Development Permit No. 5-84-786"), as amended on November 16, 1988 ("Coastal Development Permit No. 5-84-786A"). F. The Property is subject to restrictions, including, but not limited to, limitations specified in Chapter 415 of the California State Statutes of 1975 and Chapter 74 of the California State Statutes of 1978, as amended ("Tidelands Grant"), the Corporation Grant Deed recorded on April 22, 1975 in Book 11382, Page 1923, Official Records of the County of Orange (whereby the Irvine Company granted a portion of the Property to Lessor and County jointly), the Grant Deed recorded on March 13, 1978 in Book 12594, Page 990, Official Records of the County of Orange (whereby the County granted to Lessor an undivided one-half interest in a portion of the Property). G. The Tidelands Grant requires the Tidelands to be used to promote the public's interest in water -dependent or water -oriented activities, as described more fully therein. The Tidelands Grant provides that the Tidelands shall not, at any time, be granted, conveyed, given, or alienated to any individual, firm or corporation for any purpose whatever except pursuant to Lessor's grant of either a franchise or lease. The Tidelands Grant authorizes Lessor to enter into leases of the Tidelands for a period not exceeding fifty (50) years so long as such leases are consistent with Lessor's obligations to hold the Tidelands in trust for the uses and purposes contained in the Tidelands Grant. H. Lessor determined the proposed aquatic center and the uses to which it is put are consistent with the limitations and restrictions imposed on the Property. I. It was determined that the residents of the City, County, and State derive substantial benefit from the construction of the aquatic center in that: 1. Newport Harbor has ideal water conditions for the training and development of world -class rowers, canoers, and kayakers, but no facility existed to accommodate these athletes and there was no organized public program for these specific water sports outside collegiate programs. 2. Construction of the aquatic center would provide a facility for world - class athletes, as well as encourage and provide for public participation in human -powered aquatic sports at all levels of ability; 3. A portion of the aquatic center would be available for use by members of the general public on a daily basis and would be available for use by the City. J. On March 24, 1987, the City and County entered into a North Star Beach — Joint Power Agreement ("Joint Power Agreement") as a means of supervising the Newport Aquatic Center, Inc. Page 2 development, construction and operation of the facility and giving the City the power to execute a ground lease on the County's behalf. K. Lessor and Lessee entered into a Ground Lease on March 24, 1987. L. An Addendum to Ground Lease was fully executed on October 27, 1997, whereby the term of the Existing Lease was extended for twenty-five (25) years after a list of conditions were satisfied, extending the lease term through October 27, 2023 ("Existing Lease"). M. Lessee constructed an access road and an approximately eighteen thousand (18,000) square foot facility on the Premises known as Newport Aquatic Center ("Facility") which includes boat storage, an exercise room, weight room, locker room, meeting room, boat workshop, and dock. N. Lessee is currently occupying and in possession of the Premises and has made and would like to continue to make additional capital investment in the Premises to maintain and upgrade the Facility and therefore desires to enter into this Lease to secure its interest and investment in the Premises. O. Lessor and Lessee waive all notice and other applicable provisions and hereby terminate the Existing Lease and concurrently therewith enter into this Lease. P. On November 20, 2018, the City and County entered into a new North Star Beach — Joint Power Agreement to continue the relationship between City and County as under the previous Joint Power Agreement, and to extend the term of City's power to execute a ground lease on the County's behalf for a maximum of fifty (50) years, under the 2017 North Star Beach - Joint Power Agreement ("2018 JPX) which is attached hereto as Exhibit "C" and incorporated by reference herein. Q. The Parties desire to enter this Lease for a term described herein and to grant Lessee an option to extend the term of this Lease only if the lease term is less than fifty (50) years. NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties hereto agree as follows: 1. LEASED PREMISES Lessor hereby leases to Lessee, for the term specified in Section 2, the Premises. The rights granted to Lessee by this Lease are subject to Lessee's compliance with the terms, covenants and conditions in this Lease. Lessee covenants, as a material part of the consideration for this Lease, to keep and perform each and every term, covenant and condition of this Lease. Newport Aquatic Center, Inc. Page 3 2. TERM 2.1 Initial Term. The "Initial Term" of this Lease shall commence on the Effective Date and shall expire upon the thirtieth (30th) anniversary thereof, unless terminated sooner as provided herein or extended as provided in Section 2.2. 2.2 Option to Extend. Provided Lessee is not then in default, upon Lessee's written request, and upon approval of Lessor, Lessee may extend the term of this Lease for two (2) additional successive terms of ten (10) years ("Option Term" or "Option Terms") commencing on expiration of the Initial Term or the first Option Term, on the same terms and conditions as contained in this Lease as it may be amended. Lessee may exercise each option by giving Lessor written notice of its intention to extend at least six (6) months prior to expiration of the Initial Term or the expiration of the first Option Term, as the case may be. 2.3 Terms of Lease. The "Term" is defined as the Initial Term and, if exercised, the Option Term or Option Term(s). 2.4 Holdover. This Lease shall terminate and become null and void without further notice upon the expiration of the Term of this Lease or any Option Term. Any holding over by Lessee after the expiration of the Term shall not constitute a renewal or extension and shall not give Lessee any rights in or to the Property, as defined herein, or any part thereof except as expressly provided in this Lease. Any holding over after the expiration of the Term with the consent of the Lessor shall be construed to be a tenancy from month -to -month on the same terms and conditions set forth in this Lease insofar as such terms and conditions may be applicable to a month -to -month tenancy ("Holdover Term"). The month -to -month tenancy may be terminated without cause by Lessee or Lessor upon thirty (30) calendar days' prior written notice to the other. 3. BUSINESS PURPOSES AND USE OF PREMISES 3.1 Business Purposes. During the Term of this Lease, Lessee shall use and occupy the Premises solely and exclusively for the operation of an aquatic center and associated ancillary uses. The Premises shall be used for recreational and instructional activities related to human - powered watercraft, such crafts include, but are not limited to vessels used for rowing, kayaking and canoeing, and involving incidental motorboats used by coaches/trainee's during instructional programs. Permitted related activities include safety instruction, Newport Aquatic Center, Inc. Page 4 classroom/outdoor instruction and physical training which directly enhance the individual's ability to operate human -powered watercraft. Sunbathing, swimming, fishing, picnicking and other passive recreational uses shall be permitted at the beach and bayside area, so long as those activities do not interfere with instructional programs or related activities (comprehensively, "Business Purposes"). 3.2 This Lease is subject to all of the conditions, covenants, restrictions and limitations of Use Permit No. 3104, as amended and Coastal Development Permit No. 5-84-786, as amended. Any amendments to the Use Permit or Coastal Development Permit shall automatically be incorporated into this Lease without further action by the Parties. Additionally, Lessee agrees to comply with the following conditions and/or any other regulatory requirements or restrictions that may be placed on the Property and/or Premises by local, state, or federal agencies with such jurisdiction: 3.2.1 Parking. Eighty-three (83) parking spaces currently exist at the Facility and shall be maintained by Lessee. These parking spaces shall be secured by a chain or gate at the entrance in accordance with the operating hours of the Facility. All employees shall park their vehicles on -site. If parking is utilized for storage of boat trailers required for Lessee's Business Purposes, such use shall be in addition to the minimum 83 parking spaces provided for motor vehicles. The storage of vehicles, boats, boat trailers for or by third parties is strictly prohibited, with the exception of visiting trailers and boats, which shall be allowed on the Premises for the duration of the event. 3.2.2 Hours of Operation. The hours of operation shall be limited to 6:00 a.m. to 10:00 p.m. daily. No outdoor programs shall be offered after the hour of 7:00 p.m. Only advanced training activities are permitted between 6:00 a.m. and 7:00 a.m. Advanced training activities include only non -beginner, proven advanced ability, serious, dedicated, and committed Newport Aquatic Center ("NAC") members. Only NAC participants and/or NAC programs that have obtained permission from and have been certified by the NAC Director may train from NAC between the hours of 6:00 a.m. and 7:00 a.m. The NAC Director is responsible for maintaining and monitoring the amount of early morning users, which shall be limited in size. No public class offerings shall be allowed prior to 7:00 a.m. All early morning NAC users shall be informed of, and have a clear understanding of the NAC "No Noise Policy," contained in Lessee's Facility Management Plan ("FMP"). Newport Aquatic Center, Inc. Page 5 3.2.3 Boat Fabrication. No new boat fabrication shall occur on -site nor shall major boat maintenance occur including, but not limited to sanding and/or grinding fiberglass. Minor boat maintenance and cleaning is permissible. 3.2.4 Trailers and Trailering. Trailering of boats to or from the site shall occur only between the hours of 9:00 a.m. and 4:00 p.m. 3.2.5 Overnight Accommodations. No overnight sleeping accommodations shall be provided on -site. 3.2.6 Reserved. 3.2.7 Weight Training Facilities. The weight training facilities shall be used by NAC participants, and shall not be available to the general public. 3.2.8 Boat and Vehicle Storage. Outdoor boat and/or vehicle storage shall be limited to seasonal storage of outrigger canoes or other equipment used for Lessee's Business Purposes only. Storage of any boats, vehicles or other equipment not related to Lessee's Business Purposes is strictly prohibited. Visiting trailers and boats shall be allowed on the Premises for the duration of the event. 3.2.9 Parking Lot. The gates shall be locked no later than 10:30 p.m. daily. The parking lot lighting shall be turned off no later than 10:30 p.m. daily. No overnight parking of unauthorized vehicles is permitted. 3.2.10 Public Address System. No outdoor public address system or any amplified outdoor sound shall be permitted without a permit issued by the City. 3.2.11 Restrooms. Restrooms shall be made available free of charge to members and the general public during the aquatic center's hours of operation and shall remain locked during non - operating hours. 3.2.12 Point of Contact. Residents shall be provided with a point of contact with the Facility's management, to handle complaints regarding the Facility, such as noisy vehicles in the parking lots or on local streets. Newport Aquatic Center, Inc. Page 6 3.2.13 Mechanical Equipment and Trash Areas. All mechanical equipment and trash areas shall be screened from public view. 3.2.14 Maximum Usage and Public Use. Use of the Facility shall be limited to a maximum of two hundred fifty (250) persons per day. Twenty percent (20%) of the maximum allowable daily use of the Facility shall be reserved for general public walk-in use of the boat launching facilities. The boat launching facilities, public restrooms and public parking shall be available to the general public during the hours of operation of the Facility. Indoor boat storage shall also be made available for members of the general public without requiring them to enroll into any Facility program. 3.2.15 Reserved. 3.3 Personnel. Lessee shall be responsible for hiring the necessary personnel to conduct the daily operation of Facility. Lessee shall comply with all applicable federal, state, and local laws related to minimum wage, social security, nondiscrimination, ADA, unemployment compensation, and workers' compensation. If required by the Lessor, Lessee's employees shall wear a uniform and/or an identification badge and be subject to a background check. 3.4 Compliance with Applicable Laws. Lessee shall comply with all applicable federal, state and local laws including the City of Newport Beach Municipal Code, which may be amended from time to time. 3.5 This Lease is further subject to all of the conditions, covenants, restrictions and limitations of the following: 3.5.1 The Corporation Grant Deed recorded on April 22, 1975 in Book 11382, Page 1923, Official Records of the County of Orange, whereby the Irvine Company granted a portion of the Property to Lessor and County jointly. 3.5.2 The Grant Deed recorded on March 13, 1978 in Book 12594, Page 990, Official Records of the County of Orange, whereby the County granted to Lessor an undivided one-half interest in a portion of the Property. 3.5.3 The provisions of any and all Statutes of the California Legislature granting any portion of the Property to the City or County. Newport Aquatic Center, Inc. Page 7 3.5.4 The 2018 JPA dated November 20, 2018. Lessee shall permit, and provide for, public access for activities permitted under the Tideland Grant, including fishing, to the extent those activities do not interfere with the activities and programs conducted by Lessee. 4. CONSIDERATION 4.1 The consideration for this Lease shall be the continued maintenance and operation of the Facility and the Premises by the Lessee for the Term of the Lease at no cost to Lessor, the commitment of Lessee to continue to utilize the Facility as an aquatic center for the advancement of marine -oriented athletic, educational, and recreational programs and activities, and the right of Lessor and County to utilize the Facility. 4.2 In accordance with City Council Policy F-7, whenever an open bid process is not conducted or fair market value rent is not received for the use of City property, the City shall make specific findings setting forth the reasons thereof. The City is prevented by the Tideland Grant, Coastal Commission guidelines or other restrictions, from selling the Property or converting it to another use. The City finds that Lessee provides an essential or unique service to the community that might not otherwise be provided were full market value of the property required. Additionally, as the Premises is located upon public tidelands and the rent charged is less than fair market value, the City Council finds this use provides a public benefit to the people of California by providing access to a low-cost aquatic center and is therefore a matter of statewide benefit. These findings by the City are of a statewide concern in that the beneficial uses of the property might not otherwise be provided were full market value of the Premises required. 4.3 City Council Policy F-7 provides that if the lessee is not a statewide or national nonprofit organization, the By -Laws and charter documents of such lessee must (i) establish a procedure wherein the election of directors of such lessee is accomplished by an open, democratic and transparent process that allows members to vote, (ii) has a governance and operational structure that is consistent with best practices for non- profit public benefit corporations as determined by the City Council, and (iii) cannot be amended without the prior written consent of the City as lessor. The City Council hereby waives (i), and correspondingly (iii) to the extent it applies to (i). Lessee's By -Laws and charter documents do not provide for the election of directors that allows members to vote. However, based upon the unique services Lessee provides, its board members are appointed through a process that ensures board Newport Aquatic Center, Inc. Page 8 members maintain the requisite experience and contributions to Lessee. 5. CONSTRUCTION/ALTERATION BY LESSEE 5.1 Lessor's Consent. No structures, improvements, or facilities shall be constructed or altered by Lessee without the prior submittal of plans and specifications for the proposed scope of work approved in writing by Lessor. In the event that any future construction or alteration of facilities, structures, or improvements requires any discretionary approval of the City, any conditions imposed by the City relating to the manner, method, design and construction of the structures, improvements or facilities shall also be conditions of this Lease. 5.2 Permits and Approvals. Lessee shall be required to obtain, prior to any construction, all permits, licenses or approvals that may be required from any local, state or federal entities. 5.3 Strict Compliance. All improvements constructed by Lessee on the Premises shall be constructed at no cost to Lessor, in strict compliance with the plans and specifications approved by the City, and coordinated with Lessor for the scheduling of any work. 5.4 Notice of Non -Responsibility. Lessor shall have the right, at any time, to post and maintain on the Premises, and record, as required by law, any notice or notices of non -responsibility provided for the Mechanics' Lien laws of the State of California. 5.5 Licensed Contractors. Lessee shall ensure that all construction and/or alterations is/are performed by licensed and fully bonded contractors. Lessee's contractors and any subcontractors shall obtain insurance in an amount and form to be approved by Lessor's Risk Manager, including workers compensation insurance as required by law, general liability, automobile liability and builder's risk insurance covering improvements to be constructed, all pursuant to standard industry custom and practice. Lessor and County shall be named as an additional insured on the contractor's and any subcontractor's policies. Lessor reserves the right to require Lessee to obtain performance and/or labor and materials bonds for Improvements. Lessor shall have the right, in its sole discretion, to require Lessee to furnish a surety bond satisfactory to Lessor to fully protect the Premises and Lessor from the effect or enforcement of any lien, claim or demand. Newport Aquatic Center, Inc. Page 9 5.6 Construction Hours. Lessee shall ensure that all construction or alterations is/are performed between 7:00 a.m. and 6:00 p.m. on non -holiday weekdays. 5.7 Mechanics Liens or Stop Notices. Lessee shall, at all times, indemnify and hold Lessor harmless from any and all claims for labor or materials in connection with the construction, repair, alteration, or installation of the structures, improvements, equipment or facilities on the Property and/or Premises, and from the costs of defending against such claims, including reasonable attorney's fees. In the event any lien or stop notice is imposed or recorded on the Property and/or Premises as a result of the construction, repair, alteration of the Facility and/or the Property and/or Premises, installation of any equipment, Lessee shall, within thirty (30) calendar days from the filing of the lien or stop notice: 5.7.1 Record a valid release of lien or stop notice; 5.7.2 Deposit sufficient cash with Lessor to cover the amount of the claim or lien or stop notice in question and authorize payment to the extent of said deposit to any person or entity that obtains any judgment with respect to said claim or lien or stop notice; or 5.7.3. Procure and record a surety bond in accordance with the provisions of California Civil Code Section 8424, which frees the Property from the claim of lien or stop notice and from any action brought to foreclose the lien or stop notice. Lessee's failure to comply with the provisions of this Section 5 shall constitute a material breach, and this Lease shall be subject to immediate termination, pursuant to the provisions of Section 23 of this Lease. 6. OWNERSHIP OF IMPROVEMENTS The Facility and all buildings, and improvements, exclusive of trade fixtures, constructed or placed on the Property and/or Premises by Lessee must, upon completion of construction or installation, be free and clear of all liens, claims or liability for labor or material, and shall become the property of Lessor and County at the expiration of this Lease, or earlier termination thereof, at no cost to Lessor and County. Lessor retains the right to require Lessee, at Lessee's cost, to remove the Facility and all related buildings, personal property, and improvements, at the expiration or termination of this Lease subject to the provisions of this Lease. 7. UTILITIES Newport Aquatic Center, Inc. Page 10 Lessee shall be responsible for and pay, prior to the delinquency date, all charges for utilities furnished to or used on the Premises including, without limitation, gas, electricity, sewer, water, refuse collection, telephone service, and cable TV. Satisfactory evidence of such payments shall be delivered to Lessor within five (5) business days of a written request for such information. 8. MAINTENANCE OBLIGATIONS 8.1 Maintenance by Lessee: Lessee assumes full responsibility for operation, maintenance, and repair of the Premises and Facility throughout the Term at its sole cost, and without expense to Lessor or County. Lessee agrees to maintain the Premises and all improvements constructed thereon in good order and repair, and to keep the Premises in a neat, clean, orderly, safe, and sanitary condition. This includes, but is not limited to, the prevention of accumulation of any refuse or waste materials that might constitute a fire hazard or a public or private nuisance. After written notice to Lessee, which notice shall specify the unsatisfactory condition and ten (10) calendar days to cure said condition, the failure of Lessee to cure shall constitute a material breach of the terms of this Lease. 8.2 Maintenance by Lessor: Nothing in this Lease requires Lessor or County to perform any maintenance or repair to the Property or Premises or Facility or to make any improvements whatsoever on or for the benefit of the Property or Premises or Facility. However, with no less than twenty-four (24) hours written notice from Lessor to Lessee, Lessor shall have the right, but not the obligation, to make any emergency repairs related to safety or hazard concerns to or on the Property or Premises or Facility. Lessee shall reasonably cooperate with Lessor in any activity undertaken by Lessor on the Property or Premises or Facility. Lessor may collect its cost for emergency repairs from the Lessee. 9. DAMAGE TO OR DESTRUCTION OF IMPROVEMENTS In the event of damage to or destruction of Lessee's buildings, facilities, or improvements located on the Premises or in the event the buildings, facilities, or improvements located on the Premises are declared unsafe or unfit for use or occupancy by a public entity with the authority to make and enforce such declaration, Lessee shall restore the Premises to substantially the same condition as immediately prior to such destruction at Lessee's own expense to permit full use and occupancy of the Premises for the purposes required by this Lease. Lessee may elect to terminate this Lease by giving notice of such election to Lessor within sixty (60) days after the date of the occurrence of any casualty if the cost of the restoration exceeds the amount of any available insurance proceeds, if the damage has been caused by an uninsured casualty or event, or if Lessee reasonably estimates that repairs will take more than twelve (12) months. Repair, replacement, or reconstruction of improvements within the Premises Newport Aquatic Center, Inc. Page 11 shall be accomplished in a manner and according to plans approved by Lessor no later than three hundred sixty-five (365) days following the event or damage to or destruction. Failure of Lessee to complete the repair, replacement, or reconstruction of the structure or improvements necessary to permit full use and occupancy of the Premises for the purposes required by this Lease within the time periods prescribed herein shall constitute a material breach of the terms of this Lease. 10. INSURANCE Without limiting Lessee's indemnification of Lessor and County, Lessee shall obtain, provide, and maintain at its own expense during the Term of this Lease, a policy or policies of insurance of the type, amounts and form acceptable to Lessor. The policy or policies shall provide, at a minimum, those items described in Exhibit "D," which is attached hereto and incorporated herein by reference. Failure of Lessee to maintain the required insurance and provide written evidence of such coverage to Lessor shall constitute a material breach of the terms of this Lease. 11. HAZARDOUS SUBSTANCES 11.1 Hazardous Substance means: (i) any substance, product, waste or other material of any nature whatsoever which is or becomes listed, regulated, or addressed pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. ("CERLCA"); the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; the Resource Conversation and Recovery Act, 42 U.S.C. Section 6901 et seq. "RCRA"); the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et seq.; the California Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq.; the California Hazardous Substance Account Act, Health and Safety Code Sections 25330 et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety Code Sections 25249.5 et seq.; California Health and Safety Code Sections 25280 et seq. (Underground Storage of Hazardous Substances); the California Hazardous Waste Management Act, Health and Safety Code Sections 25170.1 et seq.; California Health and Safety Code Sections 25501 et seq. (Hazardous Materials Response Plans and Inventory); or the Porter -Cologne Water Quality Control Act, Water Code Sections 13000 et seq., all as they, from time -to -time may be amended or re -codified, (the above -cited statutes are here collectively referred to as the "Hazardous Substances Laws") or any other Federal, State or local statute, law, ordinance, resolution, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect; (ii) any substance, product, waste or other material of any nature whatsoever which may Newport Aquatic Center, Inc. Page 12 give rise to liability under any of the above statutes or under any statutory or common law theory, including but not limited to negligence, trespass, intentional tort, nuisance, waste or strict liability or under any reported decisions of a state or federal court; (iii) petroleum or crude oil; and/or (iv) asbestos. 11.2 From the Effective Date and throughout the Term, Lessee shall not use, occupy, or permit any portion of the Premises or Facility to be used or occupied in violation of any Hazardous Substance Laws. 11.3 Notwithstanding any contrary provision of this Lease, and in addition to the indemnification duties of Lessee set forth elsewhere in this Lease, Lessee agrees to indemnify, defend, protect, and hold harmless Lessor and County with legal counsel of their choosing, their elected officials, officers, employees, agents, attorneys, volunteers and representatives from and against any and all losses, fines, penalties, claims, demands, obligations, actions, causes of action, suits, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs), damages, judgments, or liabilities, including, but not limited to, any repair, cleanup, detoxification, or preparation and implementation of any remedial, response, closure or other plan of any kind or nature which the Lessor or County, their officials, officers, employees, agents, attorneys, volunteers or assigns may sustain or incur, or which may be imposed upon them, in connection with any breach of Lessee's obligations or representations in this Lease, the use of the Premises or Facility under this Lease arising from or related to the Lessee Parties (defined below) storage or deposit of Hazardous Substances in violation of Applicable Laws. This section is intended to operate as an agreement pursuant to Section 107(e) of CERCLA, 42 USC Section 9607(e), and California Health and Safety Code Section 25364, to insure, protect, hold harmless, and indemnify Lessor for any claim pursuant to the Hazardous Substance Laws or the common law. 11.4 Lessee does not, and shall not, authorize any third party to use, generate, manufacture, maintain, permit, store, or dispose of any Hazardous Substances in violation of Applicable Laws on, under, about or within the Premises. 11.5 Upon expiration or earlier termination of this Lease, Lessee shall deliver possession of the Premises in compliance with Hazardous Substance Laws. 11.6 If during the Term of this Lease, Lessee becomes aware of (i) any actual or threatened release of any Hazardous Substances on, in, under, from, or about the Property or Premises in violation of Newport Aquatic Center, Inc. Page 13 Hazardous Substance Laws; or (ii) any inquiry, investigation, proceeding, or claim by any government agency or other person regarding the presence of any Hazardous Substances in violation of Hazardous Substance Laws on, in, under, from or about the Property or Premises, Lessee shall give Lessor written notice of the release or inquiry within five (5) calendar days after Lessee becomes aware or first has reason to believe there has been a release or inquiry and shall simultaneously furnish to Lessor copies of any claims, notices of violation, reports, warning or other writings received by Lessee that concern the release or inquiry. 11.7 If the presence of any Hazardous Substances brought onto the Property or Premises by Lessee or Lessee's employees, agents, sublessees, licensees, concessionaires, contractors, or invitees ("Lessee Parties"), or generated by same during the Term of this Lease, results in contamination of the Property or Premises or adjacent properties or the Newport Harbor in violation of Hazardous Substance Laws, Lessee shall promptly take all necessary actions, at Lessee's sole expense, to remove or remediate such Hazardous Substances in full compliance with Applicable Laws. Lessee shall provide notice to Lessor prior to performing any removal or remedial action. Lessee shall not propose nor agree to any covenant of use restriction as part of any removal or remediation required as a result of this provision without Lessor's written consent. Lessee shall pay any costs Lessor incurs in performing Lessee's obligation to clean- up contamination resulting from Lessee's operations or use of the Premises. 11.7.1 Should any clean-up of Hazardous Substances not be completed, for which Lessee is responsible, prior to the expiration or sooner termination of the Lease, including any extensions thereof, then Lessee shall transfer the amounts required to complete clean-up into an escrow account, together with Lessor -approved instructions for the disbursement of such amount in payment of the costs of any remaining clean-up as it is completed, and (ii) if the nature of the contamination or clean-up required of Lessee is of such a nature as to make the Premises untenable or unleasable, then Lessee shall be liable to Lessor as a holdover lessee until the clean-up has been sufficiently completed to make the Premises suitable for lease to third parties. The estimated cost of the clean-up shall require approval of the Lessor. 11.7.2 If Lessor determines, in its reasonable discretion, that Lessee does not have insurance or other financial resources sufficient to enable Lessee to fulfill its Newport Aquatic Center, Inc. Page 14 obligations under this provision, whether or not accrued, liquidated, conditional, or contingent, then Lessee shall, at the request of Lessor, procure and thereafter maintain in full force and effect such environmental impairment liability and/or pollution liability insurance policies and endorsements, or shall otherwise provide such collateral or security reasonably acceptable to Lessor as is appropriate to assure that Lessee will be able to perform its duties and obligations hereunder. 11.8 Lessee's obligations in this Section 11 shall survive the expiration or earlier termination of this Lease. 12. ASSIGNING, SUBLETTING AND ENCUMBERING PROHIBITED Lessee shall not mortgage, pledge, hypothecate, encumber, transfer, sublease, or assign its interest in this Lease, the Premises, or any structure located on the Property or Premises. 13. EMINENT DOMAIN In the event the whole or part of the Premises, the Facility or improvements is condemned by a public entity in the lawful exercise of the power of eminent domain, this Lease shall cease as to the part condemned upon the date possession of that part is taken by the public entity. If only a part is condemned and the taking of that part does not substantially impair the capacity of the remainder to be used for the purposes required in this Lease, Lessee shall continue to be bound by the terms, covenants and conditions of this Lease. If only a part is condemned and the taking of that part substantially impairs the capacity of the remainder to be used for the purposes required in this Lease, Lessee shall have the election of: 13.1 Terminating this Lease and being absolved of obligations hereunder which have not accrued at the date possession is taken by the public entity; or 13.2 Continuing to occupy the remainder of the Premises and remaining bound by the terms, covenants, and conditions of this Lease. Lessee shall give notice in writing of his election hereunder within thirty (30) calendar days of the date possession of the part is taken by the public entity. The Lessor shall be entitled to receive and shall receive all compensation for the condemnation of all or any portion of the Premises by exercise of eminent domain. Lessee shall be entitled to receive and shall receive all compensation for the condemnation of all or any portion Newport Aquatic Center, Inc. Page 15 of the improvements constructed by Lessee on the leased Premises by the exercise of eminent domain. 14. FACILITY MANAGEMENT PLAN The purpose of Lessor for entering into this Lease is to promote the development of sports involving human -powered watercraft, as well as facilities, programs, and services related thereto, all to satisfy the needs of the general public. In furtherance of that purpose and to ensure that the operation of the Facility is in accordance with the intent of the Lessor, Lessee shall operate the Facility in accordance with the Facilities Management Plan ("FMP") as described herein. Any changes to the FMP shall be submitted to the City's Recreation and Senior Services Department for prior review and written approval. Lessor has the right to modify the FMP in the event that operation of the Facility is inconsistent with this Lease, Use Permit No. 3104, as amended, Coastal Development Permit No. 5-84-786, as amended, and other applicable law, rule or regulation. The FMP shall, at a minimum, include the following: 14.1 The programs, services and activities to be offered to members of the general public by the Facility; 14.2 The nature of any membership program pursuant to which any dues or fees are charged by Lessee; 14.3 The hours of operation of the Facility; 14.4 The portions of the Facility that are available for use by Lessor for the conduct of public recreation programs, together with the days and times that such space will be available; and 14.5 Such other provisions as City's Recreation and Senior Services Department considers necessary to ensure that the Facility is operated and maintained in accordance with the purpose of this Lease. Lessee is prohibited from using, or permitting others to use, the Facility in any manner that is not authorized by, or inconsistent with, the FMP. The failure of Lessee to comply with the provisions of this paragraph after written notice by Lessor shall be considered a material breach of this Lease. 15. CAPITAL REPAIRS AND REPLACEMENTS Newport Aquatic Center, Inc. Page 16 Lessee shall, on a calendar year basis commencing on January 1 immediately following the Effective Date, expend a sum equal to at least three percent (3%) of Gross Revenues per annum on repairs, maintenance, refurbishments, and improvements to the Facility (including capital improvements, such as replacement of the roof, mechanical, electrical or similar building systems, or major portions thereof). Nothing herein contained shall be construed as a limitation on Lessee's obligations under other provisions of this Lease to repair, maintain and replace the Facility or Premises, and each portion thereof. Lessee shall include in each annual forecast to be submitted to Landlord pursuant to Section 19.4 a reconciliation of funds expended for the foregoing purposes, and evidence of all amounts expended for such work during the preceding calendar year. The annual reports shall also provide a budget for all capital expenditures projected to be made during the current calendar year, projections of the estimated remaining useful life of all major components of the Facility, and a projected schedule for funding and accomplishing the projected capital expenditures to repair, maintain, and replace the Facility in accordance with the terms of this Agreement. Notwithstanding anything to the contrary contained herein, Lessee shall not be obligated to make other than ordinary repairs and replacements of the Facility during the final five (5) years of the Term. 16. UNLAWFUL USE Lessee agrees that no improvement shall be erected, constructed or operated on the Premises, nor any business conducted on the Premises, in violation of the terms of this Lease or of any regulation, order, law, statute, bylaw, charter provision, or ordinance of any governmental agency having jurisdiction. Lessee shall not construct, maintain, or allow any sign upon the Premises, or improvements thereon, except as approved in writing by Lessor, and further, such sign must be in compliance with the provisions of the Newport Beach Municipal Code. Lessee agrees that in its performance under this Agreement, Lessee shall make all of its services, programs and facilities available to the public as required by Coastal Development Permit No. CD5-84-786 and not discriminate in the operation of its programs or facilities, and shall comply with Section 11135 of the Government Code. 17. INDEMNIFICATION Lessee agrees to indemnify, defend and hold harmless Lessor and County, their elected and appointed officers, agents, officials, volunteers, and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a "Claim;" collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to Lessee's, Lessee's employees, contractor, subcontractor, agents, guests, invitees, sublessee's possession, occupation or use of the Premises, specifically including, without limitation, any claim, liability, loss, or damage arising by reason of: Newport Aquatic Center, Inc. Page 17 17.1 The death or injury of any person or damage to personal property related to the condition of the Premises or Facility or an act or omission of Lessee or an agent, contractor, subcontractor, supplier, employee, servant, or sublessee of Lessee; 17.2 Any work performed on the Premises or Facility including the construction and/or maintenance of improvements, or materials furnished to the Premises or Facility; and/or 17.3 Lessee's failure to perform any provision of this Lease or to comply with any requirement of law or any requirement imposed on the Premises or Facility by any duly authorized governmental agency or political subdivision. 17.4 Lessor shall not be liable to Lessee for any damage to Lessee or Lessee's property, goodwill, increased Lessee operating costs, or loss of business or income by Lessee from any cause other than the gross negligent, intentional or willful acts of Lessor or its elected and appointed officers, agents, officials, volunteers, employees. Except as otherwise expressly provided in this Agreement, Lessee releases and also waives all claims against Lessor for damages arising for any reason other than the gross negligent, intentional or willful acts of City or its elected and appointed officers, agents, officials, volunteers, employees. City shall not be liable to Lessee for any damage to the Premises, Lessee's property, Lessee's goodwill, or Lessee's business income, caused in whole or in part by acts of nature including, without limitation, waves, wind and tidal flows. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. 18. TAXES, ASSESSMENTS, AND OBLIGATIONS 18.1 Lessor hereby gives notice to Lessee, pursuant to Revenue and Taxation Code Section 107.6, that this Lease may create a possessory interest that is subject to the payment of taxes levied on such interest. It is understood and agreed that all taxes and assessments, including but not limited to said possessory interest tax, which become due and payable upon the Premises or Facility or improvements thereon or upon fixtures, equipment or other property installed or constructed thereon shall be the full responsibility of Lessee, and Lessee shall cause said taxes and assessments to be paid before delinquency and before any fine, interest or penalty is due or imposed by operation of law. Lessee shall, upon request, promptly furnish to Lessor satisfactory evidence of payment. Newport Aquatic Center, Inc. Page 18 18.2 Payment of Obligations. Lessee shall promptly pay, when due, any and all bills, debts, liabilities and obligations incurred by Lessee in connection with Lessee's occupation and use of the Premises including the construction and/or maintenance of improvements. 19. INSPECTIONS, ANNUAL REPORT AND FORECAST OF OPERATIONS 19.1 Annual Site Walk. With prior notice, upon each anniversary of the Effective Date and at any other reasonable times, Lessor or its authorized representative shall have the right to walk and inspect the Premises and review the annual reports required in this Section 19, to determine if Lessee is in compliance with the terms and conditions of this Lease and Use Permit No. 3104 or any amendments thereto. Lessee's Executive Director and a member of the Board of Directors shall accompany the Lessor for such inspections of the Premises and review of the reports. Additionally, without prior notice to Lessee, Lessor or its authorized representatives shall have the right to enter upon and inspect the Premises during normal business hours for any lawful purpose, to determine if Lessee is in compliance with the terms and conditions of this Lease and Use Permit No. 3104 or any amendments thereto. Any entry to the Premises by City under this Agreement shall not be construed as a forcible or unlawful entry into, or a detainer of, the Premises, or an eviction of Lessee from the Premises or any portion thereof. 19.2 Annual Report. Lessee shall provide a written report to Lessor on or before February 28 of every calendar year during the Term, including any Option Terms, a list of any and all maintenance, repairs, or other work completed, including the costs incurred thereof, for the prior calendar year. This report shall also contain a list of both short- and long-term capital improvement project plans and a capital repair and replacement schedule for the Premises. 19.3 Annual Programmatic Report. Lessee shall provide a written report to Lessor on or before February 28 of every calendar year during the Term, including any Option Terms, a list of any and all programs and services provided, including the number of people served, revenues and expenses, and any successes or accomplishments of Lessee's programs, for the prior calendar year. 19.4 Annual Forecast of Operations. On or before February 28 of each year during the Term or any extension thereof, Lessee shall provide Lessor, for Lessor's approval, a forecast for the ensuing calendar year of the amount of (i) gross revenues expected to be received by Newport Aquatic Center, Inc. Page 19 Lessee, and (ii) a forecast for the ensuing twelve (12) month period of budgeted capital improvements, replacements, repairs and maintenance that Lessee anticipates expending during such calendar year period to maintain the Facility in a manner consistent with the original quality of the Facility and as required by this Lease. 19.5 Annual Report of Board Members. Lessee shall provide a written report to Lessor on or before February 28 of every calendar year during the Term, including any Option Terms, a list containing the names of all of Lessee's Board Members for the ensuing calendar year. 20. INTERNAL CONTROLS AUDIT & VERIFICATION 20.1 Lessee shall: 20.1.1 Maintain a system of internal accounting procedures and financial controls subject to review by Lessor, upon reasonable notice, to ensure accuracy of financial reporting, the effectiveness and efficiency of operations, and compliance with applicable laws; 20.1.2 Maintain records on a generally accepted accounting principles ("GAAP") basis; 20.1.3 Maintain accounting entries and reports to meet Lessee's reporting requirements under applicable laws; 20.1.4 Hire and consult with an independent, third -party certified public accountant to audit and certify the accuracy of Lessee's financial statements; and 20.1.5 Prepare quarterly financial statements within sixty (60) calendar days of each calendar quarter -end, audited annual financial statements within seven (7) months of each calendar year end, and general ledger journal entries and other information on a regular basis necessary for the Lessee's compliance with applicable laws and in accordance with GAAP to cooperate with Lessee's independent auditing firm in connection with the auditing or review of such financial statements, with the cost of any such audit or review to be borne by the Lessee. 20.2 On or before July 31 of each year, Lessee shall provide to Lessor a verification that: i) the prior calendar year annual audit and report is Newport Aquatic Center, Inc. Page 20 complete; and ii) the audit report resulted in no findings, or that findings were made, but have since been resolved satisfactorily. 20.3 Lessor shall, once per year and at its cost, be entitled to conduct an audit of all records and books of account required to be maintained pursuant to this Agreement and applicable laws. 21. SUCCESSORS -IN -INTEREST Unless otherwise provided in this Lease, the terms, covenants and conditions contained herein shall apply to and bind the heirs, successors, executors, administrators, and assigns of all the parties hereto, all of whom shall be jointly and severally liable hereunder. 22. RESERVED 23. PARTIAL INVALIDITY If any term, covenant, condition or provision of this Lease is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall, in no way, be affected, impaired or invalidated thereby. 24. WAIVER OF RIGHTS The failure of Lessee or Lessor to insist upon strict performance of any of the terms, covenants, or conditions of this Lease shall not be deemed a waiver of any right or remedy that Lessee or Lessor may have, and shall not be deemed a waiver of the right to require strict performance of all of the terms, covenants and conditions of the Lease thereafter, nor a waiver of any remedy for the subsequent breach or default of any term, covenant or condition of the Lease. 25. DEFAULT IN TERMS OF LEASE BY LESSEE 25.1 Default by Lessee. The occurrence of any one or more of the following events shall constitute a default and material breach of this Lease by Lessee: 25.1.1 The vacating or abandonment of the Premises by Lessee for more than fifteen (15) consecutive days that was not otherwise expressly permitted under this Lease or pre - approved in writing by Lessor; Newport Aquatic Center, Inc. Page 21 25.1.2 The revocation of any license, permit, or approval issued by federal, state, or local agency with oversight authority over Lessee; 25.1.3 The failure by Lessee to make any payment of any rent or payment required by this Lease, as and when due, when such failure shall continue for a period of ten (10) days after written notice of default from City to Lessee; 25.1.4 The failure of Lessee to observe or perform any of the material 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 thereof from Lessor to Lessee; provided, however, that if the nature of Lessee's default is such that more than ten (10) days are reasonably required for its cure, then Lessee shall not be deemed to be in default if Lessee commences such cure within said ten (10) day period and thereafter diligently prosecutes such cure to completion; 25.1.5 The making by Lessee of any general arrangement or assignment for the benefit of creditors; 25.1.6 Lessee voluntarily files or has filed against it any petition under any bankruptcy or insolvency act or law, or be adjudicated a bankrupt, and the same is not dismissed within ten (10) days; 25.1.7 The appointment of a trustee or receiver to take possession of substantially all of Lessee's assets located at the Premises or of Lessee's interest in this Lease, where such appointment is not discharged within ten (10) days; and 25.1.8 The attachment, execution or the judicial seizure of substantially all of Lessee's assets located at the Premises or of Lessee's interest in this Lease, where such seizure is not discharged within sixty (60) days. 25.2 Remedies for Uncured Defaults. 25.2.1 Cumulative Nature of Remedies. If any default by Lessee shall continue without cure as required by this Lease, Lessor shall have the remedies described in this Section in addition Newport Aquatic Center, Inc. Page 22 to all other rights and remedies provided by law or equity, to which Lessor may resort cumulatively or in the alternative. 25.2.2 Reentry without Termination. If any of the events identified in Sections 25.1.6 through 25.1.8 occur, Lessor may reenter the Premises, and, without terminating this Lease, re -let all or a portion of the Premises. Lessor may execute any Leases made under this provision in Lessor's name and shall be entitled to all rents from the use, operation, or occupancy of the Premises. Lessee shall nevertheless pay to Lessor on the dates specified in this Lease the equivalent of all sums required of Lessee under this Lease, plus Lessor's expenses in conjunction with re -letting, less the proceeds of any re - letting or attornment. No act by or on behalf of City under this provision shall constitute a Termination of this Lease unless City gives Lessee specific written notice of Termination. 25.2.3 Termination. Lessor may terminate this Lease by giving Lessee notice of Termination. In the event Lessor terminates this Lease, Lessor may recover possession of the Premises (which Lessee shall surrender and vacate upon demand) and remove all persons and property. Lessor shall be entitled to recover the following as damages: 25.2.3.1 The value of any rent or other charges that are unpaid at the time of Termination; 25.2.3.2 The value of any rent and other charges that would have accrued after Termination less the amount of rent and charges Lessor received or could have received through the exercise of reasonable diligence as of the date of the award; 25.2.3.3 Any other amount necessary to reasonably compensate Lessor for the detriment proximately caused by Lessee's failure to perform its obligations under this Lease; and 25.2.3.4 At Lessor's election, such other amounts in addition to or in lieu of the foregoing as may be permitted from time -to -time by applicable California law. Lessor shall be entitled to interest at the rate of ten percent (10%) per annum on all rent and other charges from the date due or the date they would have accrued. Lessor shall also be entitled to an award of the costs and expenses incurred by Lessor in Newport Aquatic Center, Inc. Page 23 maintaining or preserving the Premises after default, preparing the Premises for re -letting, or repairing any damage caused by the act or omission of Lessee. 25.2.4 Use of Lessee's Personal Property. Lessor may use Lessee's personal property and trade fixtures located on the Premises or any of such property and fixtures without compensation or liability to Lessee for use or damage. In the alternative Lessor may store the property and fixtures at the cost of Lessee. Lessor shall not operate the Premises in any manner tending to indicate that the Premises are affiliated with, part of or operated in conjunction with Lessee's business. 25.3 Lessor's Right to Cure Lessee's Default. Upon continuance of any default beyond applicable notice and cure periods, Lessor may, but is not obligated to, cure the default at Lessee's cost. If Lessor pays any money or performs any act required of, but not paid or performed by, Lessee after notice, the payment and/or the reasonable cost of performance shall be due to Lessor not later than five (5) days after service of a written demand accompanied by supporting documentation. No such payment or act shall constitute a waiver of default or of any remedy for default or render Lessor liable for any loss or damage resulting from performance. 26. RESERVATIONS TO LESSOR The Premises is accepted "as is, where is" by Lessee, subject to any and all existing easements and encumbrances. Lessor reserves the right to install, lay, construct, maintain, repair and operate such sanitary sewers, drains, storm water sewers, pipelines, manholes and connections; water, oil and gas pipelines; telephone and telegraph power lines and the appliances and appurtenances necessary or convenient in connection therewith in, over, upon, through, across and along the Premises or any part thereof, and to enter the Premises for any and all such purposes. Lessor also reserves the right to grant franchises, easements, rights -of -way and permits in, over, upon, through, across and along any and all portions of the Premises. No right reserved by Lessor in this clause shall be so exercised as to interfere unreasonably with Lessee's operations hereunder or to impair the security of any secured creditor of Lessee. 27. QUITCLAIM OF LESSEE'S INTEREST UPON TERMINATION Upon the expiration or lawful termination of this Lease, including but not limited to, termination because of default by Lessee, Lessee shall execute, acknowledge and deliver to Lessor, within thirty (30) calendar days after receipt of written demand therefor, a good and sufficient deed, whereby all right, title and interest of Lessee in the Newport Aquatic Center, Inc. Page 24 Premises and Facility is quitclaimed to Lessor. Should Lessee fail or refuse to deliver the required deed to Lessor, Lessor may prepare and record a notice, reciting the failure of Lessee to execute, acknowledge and deliver such deed and said notice shall be conclusive evidence of the lawful termination of this Lease and of all right of Lessee or those claiming under Lessee in and to the Premises. 28. LESSOR'S RIGHT TO REENTER Lessee agrees to yield and peaceably deliver possession of the Premises to Lessor on the date of expiration or lawful termination of this Lease, whatsoever the reason for such lawful termination. Upon giving written notice of the expiration or lawful termination to Lessee, Lessor shall have the right to reenter and take possession of the Premises on the date such lawful termination becomes effective without further notice of any kind and without institution of summary or regular legal proceedings. Lawful termination of the Lease and reentry of the Premises by Lessor shall, in no way, alter or diminish any obligation of Lessee under the Lease terms, and shall not constitute an acceptance or surrender. 29. TERMINATION OF EXISTING LEASE Concurrently with Effective Date of this Lease, the Existing Lease is hereby terminated. 30. NOTICES All notices required by this lease shall be deemed to have been given when deposited in the United States mail, first class, postage prepaid, and addressed as follows: If to Lessor: City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92658 Attention: City Manager With copy to: City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92658 Attention: Real Property Administrator If to Lessee: Newport Aquatic Center, Inc. 1 Whitecliffs Drive Newport Beach, CA 92660 Newport Aquatic Center, Inc. Page 25 31. CITY BUSINESS LICENSE Lessee shall obtain and maintain during the Term of this Lease, a City business license as required by the Newport Beach Municipal Code. 32. NO ATTORNEY'S FEES The prevailing Party in any action brought to enforce the terms and conditions of this Lease, or arising out of the performance of this Lease, shall not be entitled to recover its attorneys' fees. 33. MEMORANDUM OF LEASE AGREEMENT A Memorandum of Amended and Restated Ground Lease Agreement ("Memorandum"), in a form and content similar to that contained in Exhibit "E", which is attached hereto and incorporated by reference, shall be recorded by the parties promptly upon execution of this Lease. Upon execution by both Parties, the Memorandum shall be recorded against the Property in the office of the Orange County Clerk -Recorder, as required by Government Code Section 37393. 34. NO DAMAGES Lessee acknowledges that Lessor would not enter into this Lease if it were to be liable for damages (including, but not limited to, actual damages, economic damages, consequential damages, lost profits, loss of rents or other revenues, loss of business opportunity, loss of goodwill or loss of use) under, or relating to, this Lease or any of the matters referred to in this Lease, including, without limitation, any and all plans, permits, licenses or regulatory approvals, and CEQA documents. Accordingly, Lessee covenants and agrees on behalf of itself and its successors and assigns, not to sue Lessor (either in its capacity as Lessor in this Lease or in its capacity as the City of Newport Beach) for damages (including, but not limited to, actual damages, economic damages, consequential damages, lost profits, loss of rents or other revenues, loss of business opportunity, loss of goodwill or loss of use) or monetary relief for any breach of this Lease by Lessor or for any dispute, controversy, or issue between Lessor and Lessee arising out of or connected with this Lease or any of the matters referred to in this Lease, including, without limitation, any and all plans, permits, licenses or regulatory approvals, CEQA documents, or any future amendments or enactments thereto, the parties agreeing that declaratory relief, injunctive relief, mandate and specific performance shall be Lessee's sole and exclusive judicial remedies. Newport Aquatic Center, Inc. Page 26 35. ENTIRE LEASE: AMENDMENTS 35.1 The terms and conditions of this Lease, all exhibits attached, and all documents expressly incorporated by reference, represent the entire agreement of the Parties with respect to the subject matter of this Lease. 35.2 This Lease may be executed in counterparts, including electronic counterparts, each of which, after all the Parties have signed this Lease, shall be deemed to be an original, and such counterparts shall constitute one Lease binding on the Parties. 35.3 This Lease shall supersede any and all prior agreements, oral or written, regarding the subject matter between Lessee and Lessor. 35.4 No other agreement, promise or statement, written or oral, relating to the subject matter of this Lease, shall be valid or binding, except by way of a written amendment to this Lease. 35.5 The terms and conditions of this Lease shall not be altered or modified except by a written amendment to this Lease signed by Lessee, the City Manager, and approved as to form by the City Attorney. 35.6 If any conflicts arise between the terms and conditions of this Lease, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Lease shall control. 35.7 Severability. If any term or portion of this Lease is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Lease shall continue in full force and effect. 35.8 Any obligation of the Parties relating to monies owed, as well as those provisions relating to limitations on liability and actions, shall survive termination or expiration of this Lease. 35.9 Each Party has relied on its own inspection of the Premises and examination of this Lease, the counsel of its own advisors, and the warranties, representations, and covenants in this Lease. The failure or refusal of either Party to inspect the Premises, to read this Lease or other documents, or to obtain legal or other advice relevant to this transaction constitutes a waiver of any objection, contention, or claim that might have been based on such reading, inspection, or advice. [SIGNATURES ON NEXT PAGE] Newport Aquatic Center, Inc. Page 27 IN WITNESS WHEREOF, the parties hereto have executed this Lease, the day and year first above written. LESSOR: CITY OF NEWPORT BEACH, a California municipal corporation and charter city By: --0— Gr. Leung Manager ATTEST: Lenani-I. Brown �� City Clerk APPROVED AS TO FORM: NN �q7, oR �P CITY ATTORNEY'S OFFICE M Aaron C. rp City Attorlhey LESSEE: NEWPORT AQUATIC CENTER, INC., a non- profit public benefit corporation By: c'cjnPd in Counterpart Name: Its: By: S��n ed in Counterpart Name: Its: Attachments: Exhibit A — Property Description and Depiction Exhibit B — Premises Depiction Exhibit C — 2018 JPA dated November 20, 2018 Exhibit D — Insurance Requirements Exhibit E — Memorandum of Amended and Restated Ground Lease Newport Aquatic Center, Inc. Page 28 IN WITNESS WHEREOF, the parties hereto have executed this Lease, the day and year first above written. LESSOR: CITY OF NEWPORT BEACH, a California municipal corporation and charter city Grace K. Leung City Manager ATTEST: 21 Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE By: -1 f]—===M +�'� Aaron a V z5 z3 wl- City 16mey LESSEE: NEWPORT profit public benefit corpo By: Nam Its: AQUATIC CENTER, INC., a non- By: ✓i Name: 4Y c c Ac N'-,>ERS,---,j Its:--rr2-clfflSv9-C 9- Attachments: Exhibit A - Property Description and Depiction Exhibit B - Premises Depiction Exhibit C - 2018 JPA dated November 20, 2018 Exhibit D - Insurance Requirements Exhibit E - Memorandum of Amended and Restated Ground Lease Newport Aquatic Center, Inc. Page 28 CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California 1 County of Orange J} On 10 '� ! l%0 YZ before me, Damian E Delgado, Notary Public Date ,/� )) Her Insert ame and Title of the ficer -Itpersonally appeared i,( /�* A- _,4 �� tr%I-` � ,� Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. r^y�veyFr DAMIAN E. DELGADO Comm.# 2443509 �n NOTARY PUBLIC -CALIFORNIA U! l ORANGE COUNTY y �tiFox� MY Comm. EXP. APR, 7, 2027 Place Notary Seal and/or Stamp Above I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature l AM Ek A&F�l M Signature of Notary Public Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: 11pp Document Date: l d " 3 6 —ate% Number of Pages: Signer(s) Other Than Named Above: 4e�)IA- Capacity(ies) Chaiyned by �5(s►� { Signer's Name:_ ci ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General 6Individual ElAttorney in Fact Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: ©2019 National Notary Association Signer's Name:�T� .S. Ao,.� ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General Individual El Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: EXHIBIT "A" Property Description and Depiction Parcel 1: A parcel of land in Upper Newport Bay adjacent to Block 53, Irvine's Subdivision in the City of Newport Beach, County of Orange, state of California, as shown on a map recorded in book 1, page 88 of Miscellaneous Maps in the office of the County Recorder of said Orange County being bounded as follows: Bounded northerly and northwesterly by the southerly and southeasterly boundary lines of the land described in parcel 3 in a deed to the County of Orange, et al. recorded April 22, 1975 in book 11382, page 1923 of Official Records in the office of said county Recorder. Bounded southwesterly by the northeasterly line of North Star Lane as shown on a map of Tract No. 4224, recorded in book 157, pages 1 through 14 of said Miscellaneous Maps. Bounded easterly and southeasterly by the westerly line of that certain parcel of land described in a deed to the State of California, recorded May 30, 1976 in book 11688, page 1455 of said Official Records. Parcel 2: Beginning at Station 109 of the Ordinary High Tide Line as described in the final decree entered in Case No. 20436 Superior Court of said Orange County, said Station begin in the boundary of Tract No. 4224, as per map filed in Book 157, pages 1 through 14, Miscellaneous Maps, records of said County; thence along: said boundary the following described courses: 1. North 45' 21' 40" West 114.37 feet; 2. Northerly 23.56 feet along a 15.00 foot radius curve that is concave Easterly through an angle of 900 00' 00"; 3. North 450 21' 40" West 60.00 feet; 4. North 44' 38' 20" East 487.52 feet; 5. North 56' 00" 00" West 49.94 feet; 6. North 510 23' 24" East 71.00 feet; 7. North 430 05' 44" East 72.38 feet; 8. North 340 55' 00" East 78.24 feet; 9. North 540 28' 12" East 144.11 feet; 10. North 68' 23' 00" East 214.41 feet; Newport Aquatic Center, Inc. Page A-1 11. North 87' 39' 32" East 364.50 feet; 12. South 740 08' 02" East 124.04 feet to the Southwesterly corner of Lot 80 of said Tract; thence leaving said boundary. 13. South 160 16' 54" West 100.14 feet, more or less, to said Ordinary High Tide Line; thence along said Line the following described courses: 14. North 800 02' 37" West 152.20 feet; 15. South 870 32' 32" West 164.98 feet; 16. South 820 17' 13" West 209.11 feet; 17. South 590 23' 39" West 213.64 feet; 18. South 32' 52' 42" West 725.03 feet to the point of beginning. Newport Aquatic Center, Inc. Page A-2 Property Depiction Newport Aquatic Center, Inc. Page A-3 EXHIBIT "B" Premises Depiction Newport Aquatic Center, Inc. Page B-1 EXHIBIT "C" 2018 NORTH STAR BEACH - JOINT POWER AGREEMENT Newport Aquatic Center, Inc. Page C-1 EXHIBIT "D" Insurance Requirements Without limiting Lessee's indemnification of Lessor, Lessee will obtain, provide and maintain at its own expense during the Term of this Lease, a policy or policies of insurance of the type, amounts and form acceptable to Lessor. The policy or policies shall provide, at a minimum, those items described below. 1. Provision of Insurance. Without limiting Lessee's indemnification of Lessor, and prior to commencement of work on Premises by Lessee or Lessee's agents, representatives, consultants, contractors and/or subcontractors, Lessee shall obtain, provide and maintain at its own expense during the Term of this Lease policies of insurance of the type and amounts described below and in a form satisfactory to Lessor. Lessee agrees to provide insurance in accordance with requirements set forth here. If Lessee uses existing coverage to comply and that coverage does not meet these requirements, Lessee agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the insurance commissioner to transact business of insurance in the State of California, with an assigned policyholders' rating of a - (or higher) and financial size category class vii (or larger) in accordance with the latest edition of best's key rating guide, unless otherwise approved by Lessor's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Lessee and Lessee's agents, representatives, consultants, contractors and/or subcontractors, shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Lessee and Lessee's agents, representatives, consultants, contractors and/or subcontractors, shall submit to Lessor, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of Lessor, its officers, agents, employees and volunteers. B. General Liability Insurance. Lessee and Lessee's agents, representatives, consultants, contractors and/or subcontractors, shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than two million dollars and 00/100 ($2,000,000) per occurrence, five million dollars and 00/100 ($5,000,000) Newport Aquatic Center, Inc. Page D-1 general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. C. Fire and Extended Coverage. Lessee shall maintain fire and extended coverage insurance, together with insurance against vandalism, theft and malicious mischief, on the improvements and fixtures, alterations, trade fixtures, signs, equipment, personal property and inventory on or upon the Premises from loss or damage in an amount not less than one million dollars and 00/100 ($1,000,000) per occurrence. D. Automobile Liability Insurance. Lessee and Lessee's consultants, contractors and/or subcontractors shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Lessee or all activities of Lessee's consultants, contractors and/or subcontractors arising out of or in connection with work to be performed on the Premises, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than two million dollars and 00/100 ($2,000,000) combined single limit each accident. E. Builder's Risk Insurance. During construction, Lessee shall require that Lessee's construction contractors and subcontractors maintain Builders Risk insurance or an installation floater as directed by Lessor, covering damages to the work for "all risk" or special causes of loss form with limits equal to one hundred percent (100%) of the completed value of the work, with coverage to continue until final acceptance of the work by Lessee and Lessor. Lessor and County shall be included as an insured on such policy, and Lessee shall provide Lessor with a copy of the policy. F. Pollution Liability Insurance. Lessee shall require that Lessee's construction contractors and subcontractors maintain a policy providing contractor's pollution liability ("CPL") coverage with a total limit of liability of no less than two million dollars and 00/100 ($2,000,000) per loss and in the aggregate per policy period dedicated to this project. The CPL shall be obtained on an occurrence basis for a policy term inclusive of the entire period of construction. If all or any portion of CPL coverage is available only on a claims -made basis, then a 10-year extended reporting period shall also be purchased. The CPL policy shall include coverage for cleanup costs, third -party bodily injury and property damage, including loss of use of damaged property or of property that has not been physically injured or destroyed, resulting from pollution conditions caused by contracting operations. Coverage as required in this paragraph shall apply to sudden and non -sudden pollution conditions resulting from the escape or release of smoke, vapors, fumes, acids, alkalis, toxic chemicals, liquids, or gases, waste materials, or other irritants, contaminants, or pollutants. The CPL Newport Aquatic Center, Inc. Page D-2 shall also provide coverage for transportation and off -site disposal of materials. The policy shall not contain any provision or exclusion (including any so-called "insured versus insured" exclusion or "cross -liability" exclusion) the effect of which would be to prevent, bar, or otherwise preclude any insured or additional insured under the policy from making a claim which would otherwise be covered by such policy on the grounds that the claim is brought by an insured or additional insured against an insured or additional insured under the policy. 4. Endorsements: Policies shall contain or be endorsed to contain the following provisions: A. Additional Insured Status. Lessor, its elected or appointed officers, officials, employees, agents, volunteers, and County are to be covered as additional insureds under all general liability and pollution liability policies with respect to liability arising out of Lessee's activities related to this Lease and with respect to use or occupancy of the Premises. Lessor and County shall be named as an additional insured on any of Lessee's contractor's and subcontractor's policies. B. Primary and Non -Contributory. Policies shall be considered primary insurance as respects to Lessor, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from Lessee's operations. Any insurance maintained by Lessor, including any self -insured retention Lessor may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. C. Liability Insurance. Liability insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. D. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Lease shall be endorsed to waive subrogation against Lessor, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Lessee or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Lessee hereby waives its own right of recovery against Lessor and County, and shall require similar written express waivers from each of its consultants, contractors or subcontractors. E. Reporting Provisions. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to Lessor, its elected or appointed officers, officials, employees, agents or volunteers. F. Notice of Cancellation. The insurance required by this Lease shall not be suspended, voided, canceled, or reduced in coverage or in limits except after thirty (30) calendar days (ten (10) calendar days written notice of non - Newport Aquatic Center, Inc. Page D-3 payment of premium) written notice has been received by Lessor. It is Lessee's obligation to ensure that provisions for such notice have been established. G. Loss Payee. Lessor shall be included a loss payee under the commercial property insurance. 5. Additional Reauirements. A. In the event Lessor determines that (i) the Lessee's activities on the Premises creates an increased or decreased risk of loss to the Lessor, (ii) greater insurance coverage is required due to the passage of time, or (iii) changes in the industry require different coverage be obtained, Lessee agrees that the minimum limits of any insurance policy required to be obtained by Lessee or Lessee's consultants, contractors or subcontractors, may be changed accordingly upon receipt of written notice from Lessor. With respect to changes in insurance requirements that are available from Lessee's then -existing insurance carrier, Lessee shall deposit certificates evidencing acceptable insurance policies with Lessor incorporating such changes within thirty (30) calendar days of receipt of such notice. With respect to changes in insurance requirements that are not available from Lessee's then- existing insurance carrier, Lessee shall deposit certificates evidencing acceptable insurance policies with Lessor, incorporating such changes, within ninety (90) calendar days of receipt of such notice. B. Any deductibles applicable to the commercial property or insurance purchased in compliance with the requirements of this section shall be approved by Lessor. C. Lessee and Lessee's consultants, contractors and/or subcontractors shall be subject to the insurance requirements contained herein unless otherwise specified in the provisions above or written approval is granted by Lessor. Lessee shall verify that all consultants, contractors and/or subcontractors maintain insurance meeting all the requirements stated herein, and Lessee shall ensure that Lessor and County is an additional insured on insurance required from contractors, consultants and/or subcontractors. D. For General Liability coverage, contractors, consultants and/or subcontractors shall provide coverage with a format at least as broad as provided by Insurance Services Office form CG 203 80413. E. If Lessee maintains higher limits than the minimums shown above, the Lessor requires and shall be entitled to coverage for the higher limits maintained by the Lessee. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to Lessor. F. Lessee shall give Lessor prompt and timely notice of any claim made or suit instituted arising out of or resulting from Lessee or Lessee's agents, Newport Aquatic Center, Inc. Page D-4 representatives, consultants, contractors or subcontractors performance under this Lease. G. Lessee shall provide certificates of insurance, with original endorsements as required above, to Lessor as evidence of the insurance coverage required herein. Insurance certificates must be approved by Lessor prior to commencement of work or issuance of any permit. Current certification of insurance shall be kept on file with Lessor at all times during the Term of this Lease. H. All required insurance shall be in force on the Effective Date, and shall be maintained continuously in force throughout the Term of this Lease. In addition, the cost of all required insurance shall be borne by Lessee or by Lessee's consultants, contractors or subcontractors. If Lessee or Lessee's consultants, contractors or subcontractors fail or refuse to maintain insurance as required in this Lease, or fail to provide proof of insurance, Lessor has the right to declare this Lease in default without further notice to Lessee, and City shall be entitled to exercise all available remedies. J. Lessee agrees not to use the Premises in any manner, even if use is for purposes stated herein, that will result in the cancellation of any insurance Lessor may have on the Premises or on adjacent property, or that will cause cancellation of any other insurance coverage for the Premises or adjoining property. Lessee further agrees not to keep on the Premises or permit to be kept, used, or sold thereon, anything prohibited by any fire or other insurance policy covering the Premises. Lessee shall, at its sole expense, comply with all reasonable requirements for maintaining fire and other insurance coverage on the Premises. Newport Aquatic Center, Inc. Page D-5 RECORDING REQUESTED AND WHEN RECORDED RETURN TO: Office of the City Clerk City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 [Exempt from Recordation Fee - Govt. Code Sec. 27383] MEMORANDUM OF AMENDED AND RESTATED GROUND LEASE This Memorandum of Amended and Restated Ground Lease ("Memorandum") is dated , 2023, and is made between City of Newport Beach, a California municipal corporation and charter city ("Lessor" or "City") and Newport Aquatic Center, Inc. ("Lessee"), concerning the Property legally described and depicted in Exhibit 1", and concerning the Premises depicted in Exhibit "2", both of which are attached hereto and by this reference made a part hereof. For good and adequate consideration, Lessor leases the Premises to Lessee, and Lessee hires them from Lessor, for the term and on the provisions contained in the Lease dated 2023, including without limitation provisions prohibiting assignment, subleasing, and encumbering said leasehold without the express written consent of Lessor in each instance, all as more specifically set forth in said Lease, which said Lease is incorporated in this Memorandum by this reference. The term is thirty (30) years, beginning , 2023, and ending , 20 , and two (2) additional successive "Option Terms" of ten (10) years, on the same terms and conditions contained in the Lease. This Memorandum is not a complete summary of the Lease. Provisions in this Memorandum shall not be used in interpreting the Lease's provisions. In the event of conflict between this Memorandum and other parts of the Lease, the other parts shall control. Execution hereof constitutes execution of the Lease itself. [SIGNATURES ON NEXT PAGE] Newport Aquatic Center, Inc. Page E-1 ATTEST: in Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE 0 Aaron C. Harp City Attorney LESSOR: CITY OF NEWPORT BEACH, a California municipal corporation and charter city Grace K. Leung City Manager LESSEE: NEWPORT AQUATIC CENTER, INC., a non- profit public benefit corporation By: _ Name: Its: By: Name: Its: Attachments: Exhibit 1 — Property Legal Description and Depiction Exhibit 2 — Premises Depiction Newport Aquatic Center, Inc. Page E-2 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of } ss. On 20 before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. (seal) State of California County of } ss. On , 20 before me, , Notary Public, personally appeared proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) Newport Aquatic Center, Inc. Page E-3 EXHIBIT "1" Property Legal Description and Depiction Parcel 1: A parcel of land in Upper Newport Bay adjacent to Block 53, Irvine's Subdivision in the City of Newport Beach, County of Orange, state of California, as shown on a map recorded in book 1, page 88 of Miscellaneous Maps in the office of the County Recorder of said Orange County being bounded as follows: Bounded northerly and northwesterly by the southerly and southeasterly boundary lines of the land described in parcel 3 in a deed to the County of Orange, et al. recorded April 22, 1975 in book 11382, page 1923 of Official Records in the office of said county Recorder. Bounded southwesterly by the northeasterly line of North Star Lane as shown on a map of Tract No. 4224, recorded in book 157, pages 1 through 14 of said Miscellaneous Maps. Bounded easterly and southeasterly by the westerly line of that certain parcel of land described in a deed to the State of California, recorded May 30, 1976 in book 11688, page 1455 of said Official Records. Parcel 2: Beginning at Station 109 of the Ordinary High Tide Line as described in the final decree entered in Case No. 20436 Superior Court of said Orange County, said Station begin in the boundary of Tract No. 4224, as per map filed in Book 157, pages 1 through 14, Miscellaneous Maps, records of said County; thence along: said boundary the following described courses: 19. North 45' 21' 40" West 114.37 feet; 20. Northerly 23.56 feet along a 15.00 foot radius curve that is concave Easterly through an angle of 900 00' 00"; 21. North 45' 21' 40" West 60.00 feet; 22. North 440 38' 20" East 487.52 feet; 23. North 560 00" 00" West 49.94 feet; 24. North 51 ° 23' 24" East 71.00 feet; 25. North 430 05' 44" East 72.38 feet; 26. North 340 55' 00" East 78.24 feet; 27. North 540 28' 12" East 144.11 feet; Newport Aquatic Center, Inc. Page E-4 28. North 680 23' 00" East 214.41 feet; 29. North 870 39' 32" East 364.50 feet; 30. South 740 08' 02" East 124.04 feet to the Southwesterly corner of Lot 80 of said Tract; thence leaving said boundary. 31. South 160 16' 54" West 100.14 feet, more or less, to said Ordinary High Tide Line; thence along said Line the following described courses: 32. North 80' 02' 37" West 152.20 feet; 33. South 870 32' 32" West 164.98 feet; 34. South 820 17' 13" West 209.11 feet; 35. South 590 23' 39" West 213.64 feet; 36. South 320 52' 42" West 725.03 feet to the point of beginning. Newport Aquatic Center, Inc. Page E-5 �•-- 1 ♦ j WA .+ r do fi i �� � rya t • .\\ \ .; 77-1,4111ft N . • o m. ' ' r • 'y i� s. Newpoi `i :'Aquatic >. Center, y -4° :r LC _ • NBA_ Disclaimer: N E W P O R T B E n Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of �ETwPp� Newport Beach and its employees and agents O� 0 200 400 disclaim any and all responsibility from or relating to any results obtained in its use. u _ .� Feet f•�L/FORNTr � nronron EXHIBIT "2" Premises Depiction Newport Aquatic Center, Inc. Page E-6