RECORDED AT THE REQUEST OF
AND WHEN RECORDED MAIL TO:
STATE OF CALIFORNIA
California State Lands Commission
Attn: Land Management Division
100 Howe Avenue, Suite 100-South
Sacramento, CA 95825-8202
STATE OF CALIFORNIA
OFFICIAL BUSINESS
Document entitled to free recordation
pursuant to Government Code Section
27383
SPACE ABOVE THIS LINE FOR RECORDER'S USE
County: Orange
A3750
LEASE NO.
This Lease consists of this summary and the following attached and incorporated parts:
Section 1 Basic Provisions
Section 2 Special Provisions Amending or Supplementing Section 1 or 3 Section 3 General Provisions
Exhibit A Land Description
Exhibit B Site and Location Map
Exhibit C Mitigation Monitoring Program
SECTION 1: BASIC PROVISIONS
THE STATE OF CALIFORNIA, hereinafter referred to as Lessor acting by and through the CALIFORNIA STATE LANDS COMMISSION (100 Howe Avenue, Suite 100-South, Sacramento, California 95825-8202), pursuant to Division 6 of the Public Resources Code and Title 2, Division 3 of the California Code of Regulations, and for consideration specified in this Lease, does hereby lease, demise, and let to CITY OF SAN CLEMENTE hereinafter referred to as Lessee, those certain lands described in Exhibit A hereinafter referred to as Lease Premises, subject to the reservations, terms, covenants, and conditions of this Lease.
ATTACHMENT 14
MAILING ADDRESS:
910 Calle Negocio
San Clemente, CA 92673
LEASE TYPE:
General Lease – Public Agency Use
LAND TYPE:
Sovereign
LOCATION:
In the Pacific Ocean, in the City of San Clemente and near Oceanside, as described in Exhibit A attached and by this reference made a part hereof.
LAND USE OR PURPOSE:
Dredging of the Pacific Ocean from borrow site designated SO-9; placement of a 50- foot-wide beach fill along an approximately 3,400 foot-long stretch of shoreline in the City of San Clemente for 251,000 cubic yards (cy) of compatible sediment with renourishment of 251,000 cy every six years on average; under the San Clemente Shoreline Protection Project.
TERM:
49 years; beginning August 17, 2023; ending August 16, 2072, unless sooner terminated as provided under this Lease.
CONSIDERATION:
The public use and benefit, with Lessor reserving the right at any time to set a monetary rent if Lessor finds such action to be in the State’s best interests. Subject to modification by Lessor as specified in Paragraph 3(c) and (e) of Section 3 - General Provisions.
LIABILITY INSURANCE:
Liability insurance in an amount no less than $1,000,000 per occurrence as specified in Section 3, Paragraph 9 “Insurance”; Lessee may satisfy all or part of the insurance requirement through maintenance of a staff-approved self-insurance program as specified in Section 2, Paragraph 16.
SURETY BOND OR OTHER SECURITY:
$0
SECTION 2: SPECIAL PROVISIONS
BEFORE THE EXECUTION OF THIS LEASE, ITS PROVISIONS ARE AMENDED, REVISED, OR SUPPLEMENTED AS FOLLOWS:
1. Under Lessee’s San Clemente Shoreline Protection Project, Lessee is authorized during the lease term to place a maximum of 2,259,000 cubic yards of sand over 49 years at the City of San Clemente receiver site, as described in Exhibit A attached and by this reference made a part hereof, and as shown on Exhibit B attached for reference purposes only. For purposes of this Lease, each sand placement project performed under the Program is referred to as a “beach replenishment event,” and all beach replenishment events are referred to collectively as “beach replenishment activities.”
2. Prior to each beach replenishment event, Lessee shall provide Lessor a mean high tide line survey of the receiver site for Lessor’s staff review. The survey must meet the following requirements:
a. The survey must be based on the California Coordinate System 1983 and must include a control scheme showing found monuments and coordinates referencing the epoch date.
b. The survey must locate a minimum of two property monuments shown on an official record map.
c. The vertical datum must be shown on the map with the benchmark location and elevation.
d. The mean high tide elevation and tidal epoch must be noted on the survey and Lessor’s staff must approve the elevation prior to the fieldwork. e. Stations used to locate the mean high tide line must be at intervals of 50’±. f. The survey must be performed by or under the supervision of a California Licensed Land Surveyor.
g. Lessee will provide Lessor with a hardcopy map and Autocad drawing file, or equivalent drawing file approved by Lessor’s staff, by electronic file sharing, email, or on disc within 30 days of survey fieldwork completion.
3. Lessee shall undertake the Program substantially in compliance with:
a. The Mitigation Monitoring Program, attached hereto as Exhibit C and by this reference made a part of this Lease, contained in Final Environmental Impact Statement/Environmental Impact Report SCH#2010084002 prepared and adopted by Lessee on July 18, 2023. Lessee agrees to be bound by and fully carry out, implement, and comply with all mitigation measures and reporting obligations identified as Lessee’s, or Responsible Party’s responsibility as set forth in the Mitigation Monitoring Program as stated in Exhibit C or as modified by Lessor as permitted by law; and,
b. The requirements of all other agencies having approval authority over the Program.
4. Lessee shall safely conduct all dredging and disposal operations in accordance with accepted dredging and disposal methods and practices then in effect and with due regard for the protection of life and property and preservation of the environment.
5. Lessee acknowledges that material dredged from the Lease Premises is the property of the State of California and shall not be sold, and that Lessee is not authorized to dredge for purposes of commercial resale, environmental mitigation credits or other private benefit without Lessor’s prior written consent.
6. Prior to the start of each beach replenishment event as described herein, Lessee shall provide Lessor with the name, address, telephone number and contractor’s license number(s) of the contractor(s) selected to implement the beach replenishment program. Should Lessee change contractors, Lessee shall provide Lessor with all pertinent information, as described above.
7. Monitoring Plans
a. Lessee must update its Monitoring Plans to account for the best available climate change science, resource availability, and sea level rise projections. Such monitoring plans when updated will be submitted to Lessor’s staff for review and approval at least two months in advance of Project implementation.
b. One year before each replenishment event, Lessee must provide to Lessor copies of all annual mitigation monitoring compliance reports for replenishment activities within the Lease Premises. Lessor’s staff will review whether the impacts are being addressed as articulated in the environmental document and Mitigation Monitoring Program (Exhibit C) prior to the initiation of any subsequent nourishment cycle. c. Upon Lessor’s staff’s request, Lessee must provide Lessor’s staff with copies of the semiannual beach profile surveys required by the Shoreline Monitoring Plan.
d. Upon Lessor’s staff’s request, Lessee must promptly provide copies of any report, survey, data, or other document required by a mitigation measure or monitoring plan.
e. Lessee must inform Lessor if any monitoring plans result in additional mitigation requirements.
8. Lessee agrees that printed material, such as handouts and signs or other types of printed notices installed to provide notification of the public use and benefit of the project as set forth herein, shall contain and reasonably display a statement acknowledging the California State Lands Commission as having committed lands for the Project. The statement may read as follows: “A portion of the land required
for the San Clemente Shoreline Protection Project, was committed by the California State Lands Commission.”
9. Lessee acknowledges that the lands described in Exhibit A of this Lease are subject to the Public Trust and are presently available to members of the public for recreational use, waterborne commerce, navigation, fisheries, open space, or other recognized Public Trust uses. Consistent with subparagraph 7(a) of Section 3 of this Lease, Lessee agrees that its use of the Lease Premises must not interfere or limit the Public Trust rights of the public except to the extent necessary to protect the public health and safety during the performance of activities authorized under the Lease.
Lessee further agrees that any such temporary interference or limitations will be kept to the minimum duration and extent necessary to ensure public health and safety.
10. Lessee shall limit any vehicles, equipment, or machinery to be used on the Lease Premises to those which are directly required to perform the authorized use. Lessee shall not use any vehicles, equipment, or machinery that may cause damage to the Lease Premises or lands subject to Lessor’s jurisdiction.
11. All vehicles, equipment, machinery, tools or other property taken onto or placed within the Lease Premises or lands subject to Lessor’s jurisdiction shall remain the property of the Lessee or its contractors. Upon completion of any beach replenishment event such property shall be promptly and properly removed by Lessee, at its sole risk and expense.
12. Lessor does not accept any responsibility for any damages to any property, including any vehicles, equipment, machinery, or tools within the Lease Premises or lands subject to Lessor’s jurisdiction.
13. Lessee shall not refuel, maintain, or repair any vehicle or equipment within the Lease Premises or lands subject to Lessor’s jurisdiction.
14. Lessee shall promptly and completely remove all waste material and debris created by Lessee or its contractors from the Lease Premises and lands subject to Lessor’s jurisdiction.
15. Lessee shall ensure its employees, agents, contractors, and invitees (collectively, Lessee’s Agents) comply with all applicable provisions of this Lease. Any breach or default by Lessee’s Agents of any applicable provision of this Lease shall be considered a breach or default of the Lease by Lessee.
16. Lessee may satisfy the requirements of Section 1 “Liability Insurance” and Section 3, Paragraph 9 “Insurance” by providing Lessor with evidence of its self-insurance program being applicable to its activities and improvements authorized by this Lease on the condition that:
a. Lessor’s staff is satisfied that the self-insurance program adopted and maintained provides coverage equivalent to coverage required under Section 1 “Liability Insurance”, and Section 3, Paragraph 9 “Insurance”.
b. For any line of self-insurance that is regulated by the State, Lessee shall provide documentation demonstrating qualification and compliance with all applicable rules and regulations, including self-insurance certification. c. Each year of the Lease, no later than the anniversary date of this Lease, Lessee shall provide Lessor’s staff with any and all evidence that each selfinsurance program is maintained. d. Should Lessee elect to terminate all or any line or lines of self-insurance, Lessee shall, at least 60 days prior to such termination, provide the State with written notice of such termination, accompanied by written evidence of new insurance coverage required by Section 1 “Liability Insurance,” and Section 3, Paragraph 9 “Insurance.”
17. Lessee acknowledges that the Lease Premises and adjacent upland are located in an area that may be subject to effects of climate change, including sea level rise.
To prepare for the potential effects of sea level rise, including flood damage, erosion damage, tsunamis, and damage from waves and storm-created debris, the Lessee acknowledges and agrees to the following:
a. Hazards associated with sea level rise may require additional maintenance or protection strategies regarding the Lease Premises.
b. Any additional maintenance or protection strategies necessitated by such hazards may require additional approval by Lessor pursuant to Section 3, paragraph 5(a) and subject to environmental review.
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Form51.16 (Rev. 10/14)
SECTION 3
GENERAL PROVISIONS
1. GENERAL
In the case of any conflict between these General Provisions and Special Provisions found in Section 2, the Special Provisions control.
2. DEFINITIONS
For the purposes of this Lease, the following terms shall be defined as stated below:
“Additions” shall be defined as any use or Improvements other than those expressly authorized in this Lease.
“Alterations” shall be defined as any material change in the size, scope, density, type, nature, or intensity of Improvements on the Lease Premises from what is authorized in this Lease.
Alterations shall also include any modifications, alterations, or renovations of the land or waterways on the Lease Premises other than those authorized by this Lease. “Breach” shall be defined as a party's unjustified or unexcused nonperformance of a contractual duty the party is required to immediately perform. “Damages” shall include all liabilities, demands, claims, actions or causes of action whether regulatory, legislative or judicial in nature; all assessments, levies, losses, fines, penalties, damages, costs and expenses, including, without limitation: (i) reasonable attorneys’, accountants’, investigators’, and experts’ fees and expenses sustained or incurred in connection with the defense or investigation of any such liability, and (ii) costs and expenses incurred to bring the Lease Premises into compliance with Environmental Laws, a court order, or applicable provisions of a Regulatory Agency. The term “Damages” also includes, expressly, those Damages that arise as a result of strict liability, whether arising under Environmental Laws or otherwise.
“Default” shall be defined as a material Breach of magnitude sufficient to justify termination of the Lease.
“Environmental Law” shall be defined as and include all federal, state, and local environmental, health, and safety laws, statutes, ordinances, regulations, rules, judgments, orders, and notice requirements, which were in effect as of the date of execution of this Lease or are subsequently enacted and lawfully applied hereto, which regulate or relate to (a) the protection or clean-up of the environment; (b) the use, treatment, storage, transportation, handling or disposal of hazardous, toxic or otherwise dangerous substances, wastes or materials; (c) the quality of the air and the discharge of airborne wastes, gases, particles, or other emissions; (d) the preservation or protection of waterways, groundwater, or drinking water; (e) the health and safety of persons or property; or (f) impose liability with respect to any of the foregoing, including without limitation, the California Environmental Form51.16 (Rev. 10/14)
Quality Act (CEQA) [PRC §§ 21000 et seq.]; the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) [42 USCS §§ 9601 et seq.]; the Resource Conservation and Recovery Act of 1976 (RCRA) [42 USCS §§ 6901 et seq.]; the Clean Water Act, also known as the Federal Water Pollution Control Act (FWPCA) [33 USCS §§ 1251 et seq.]; the Toxic Substances Control Act (TSCA) [15 USCS §§ 2601 et seq.]; the Hazardous Materials Transportation Act (HMTA) [49 USCS §§ 1801 et seq.]; the Insecticide, Fungicide, Rodenticide Act [7 USCS §§ 136 et seq.]; the Superfund Amendments and Reauthorization Act [42 USCS §§ 6901 et seq.]; the Clean Air Act [42 USCS §§ 7401 et seq.]; the Safe Drinking Water Act [42 USCS §§ 300f et seq.]; the Solid Waste Disposal Act [42 USCS §§ 6901 et seq.]; the Surface Mining Control and Reclamation Act [30 USCS §§ 1201 et seq.]; the Emergency Planning and Community Right to Know Act [42 USCS §§ 11001 et seq.]; the Occupational Safety and Health Act [29 USCS §§ 655 and 657]; the California Underground Storage of Hazardous Substances Act [H & S C §§ 25280 et seq.]; the California Hazardous Substances Account Act [H & S C §§ 25300 et seq.]; the California Hazardous Waste Control Act [H & S C §§ 25100 et seq.]; the California Safe Drinking Water and Toxic Enforcement Act [H & S C §§ 24249.5 et seq.]; the Porter-Cologne Water Quality Act [Water C §§ 13000 et seq.] together with any amendments of or regulations promulgated under the statutes cited above. “Hazardous Material” shall be defined as and include any substance which falls within the definition of hazardous substance, hazardous waste, hazardous material, toxic substance, solid waste, pollutant, or contaminant, under any Environmental Law. “Improvements” shall be defined as any modification, alteration, addition, or removal of any material, and any other action which serves to change the condition of the Lease Premises from the natural state whether situated above, on, or under the Lease Premises.
Improvements include, but are not limited to buildings, structures, facilities, decks, docks, wharves, piers, walks, curbs, bridges, buoys, landscaping, roadways, shoreline protective structures of all types, foundations, pilings or similar support structures whether above or below the water line, fences, utilities, pipelines, and any other construction of any type situated on the Lease Premises.
“Lease” shall be defined as this lease contract together with all amendments and exhibits. “Lease Premises” shall be defined as the area of land, together with any improvements located thereon, the use and occupancy of which is authorized by this Lease. “Lessor” shall be defined as the state of California, acting by and through the California State Lands Commission, including the Commissioners, their alternates and designates, the Executive Officer, and the staff of the California State Lands Commission. “Regulatory Agency” shall include any Federal, State, County, Municipal, or Local agency having jurisdiction over the Lease Premises.
“Repairs” shall be defined as all work of any kind made to maintain, change, restore, strengthen, replace, alter, or otherwise affect any Improvement on the Lease Premises.
Form51.16 (Rev. 10/14)
“Residence” shall be defined as any Improvement, whether permanent, movable, or temporary, or a portion thereof, which is for the time being a home or place of lodging. A Residence includes any Improvement affixed to the land such as trailers or cabins, built on a raised foundation such as stilts or pilings, and floating residences such as boats, barges, arks, and houseboats, and any combination of such Improvements which provide residential accommodations to the Lessee or others. “Residence” shall not include transitory, intermittent, recreational use of facilities such as campgrounds. “Residential Use” shall be defined as Improvements such as, but not limited to, sundecks, and sunrooms which are extensions of, or additions to, the upland property and are not waterdependent uses. Although the various uses or Improvements which may fall under this definition may vary by geographic area, lease type, or other factors, it is the intention of the parties to include in this definition all uses and Improvements which are not water-dependent but residential in nature, or those uses and Improvements which are not consistent with common law public trust principles and values.
3. CONSIDERATION
(a) Absolute Triple Net Lease
This Lease is an absolute triple net lease, pursuant to which Lessor has no obligation with respect to the payment of taxes, insurance, the cost of maintenance, utilities and repairs or other costs or obligations associated with the Leased Premises, except as expressly stated herein.
(b) Rent
Lessee agrees to pay Lessor rent as stated in this Lease, in annual installments, for the use and occupancy of the Lease Premises. The first installment shall be due on or before the beginning date of this Lease and all subsequent installments shall be due on or before each anniversary of its beginning date during each year of the Lease term, or as otherwise provided in this Lease. Said sums shall be paid in lawful money of the United States of America. Lessee shall send said rent to the mailing address of Lessor. Timeliness of receipt of remittances sent by mail shall be governed by the postmark date as stated in Government Code Section 11002. Invoices for rent due may be provided by Lessor as a courtesy. Lessor’s failure to, or delinquency in, providing invoices shall neither excuse Lessee from paying rent, nor extend the time for paying rent. (c) Modification
Lessor may modify the method, amount, or rate of consideration effective on each fifth anniversary of the beginning date of this Lease. Should Lessor fail to exercise such right effective on any fifth anniversary it may do so effective on any one (1) of the next four (4) anniversaries following such fifth anniversary, without prejudice to its right to effect such modification on the next or any succeeding fifth anniversary of the beginning date. No Form51.16 (Rev. 10/14)
such modification shall become effective unless Lessee is given at least thirty (30) days’ notice prior to the date of the Commission meeting wherein the rent modification is considered, or thirty (30) days’ notice prior to the effective date of the increase, whichever provides a greater notice period.
If the consideration for this Lease is based on a percentage of income, royalties, profits, or any similar business performance indicators, Lessee shall provide Lessor with financial statements and all other documents necessary to determine the relevant basis for income. (d) Penalty and Interest
Any installments of rent accruing under this Lease not paid when due shall be subject to a delinquency charge equal to five percent (5%) of the principal sum due. Annual payments shall bear interest as specified in Public Resources Code Section 6224 and the Lessor's then existing administrative regulations governing penalty and interest. (e) Non-Monetary Consideration
If the consideration to Lessor for this Lease is the public use, benefit, health, or safety, Lessor shall have the right to review such consideration at any time and set a monetary rental if the Lessor, at its sole discretion, determines that such action is in the best interest of the State. Lessee’s assignment or transfer of this Lease pursuant to Section 3 Paragraph 11 below to any third party which results in royalties, profits, or any form of compensation, whether monetary or otherwise, shall give Lessor the right to reevaluate the requirements of this Lease as stated in Section 3 Paragraph 11. Lessee shall be given at least thirty (30) days’ notice prior to the date of the Commission meeting wherein the rent modification is considered, or thirty (30) days’ notice prior to the effective date that this Lease is converted to a monetary rental, whichever provides more notice.
(f) Place for Payment of Rent
All rent that becomes due and payable under this Lease shall be paid to Lessor in person or by United States mail at the Sacramento Offices of the California State Lands Commission, currently at 100 Howe Avenue, Suite 100-South, Sacramento, CA 95825-8202, or at any other place or places that Lessor may designate by written notice to Lessee.
Alternately, Lessee may contact Lessor’s accounting department for Lessor’s current practices for payment by credit card or electronic fund transfer.
4. BOUNDARIES
This Lease is not intended to establish the State's boundaries and is made without prejudice to either party regarding any boundary or title claims which may be asserted presently or in the future.
5. LAND USE
Form51.16 (Rev. 10/14)
(a) General
(1) Lessee shall use the Lease Premises only for the purpose or purposes stated in this Lease and only for the operation and maintenance of the Improvements expressly authorized in this Lease. Lessee shall commence use of the Lease Premises within ninety (90) days of the beginning date of this Lease or within ninety (90) days of the date set for construction to commence as set forth in this Lease, whichever is later. (2) All demolition, construction, remodeling, reconstruction, maintenance, repairs, removal, or remediation performed on the Lease Premises at any time by Lessee shall first be authorized by all appropriate Regulatory Agencies. Lessee is solely responsible for determining what approvals, authorizations, or certifications are required, and shall be solely responsible for all costs incurred thereby. In addition, Lessee shall obtain and comply with preventative or remedial measures required by any environmental reports, assessments, or inspections, including, but not limited to those required by the California Environmental Quality Act and/or the National Environmental Policy Act, or as otherwise required by law or reasonably requested by Lessor. Nothing in this Lease shall be interpreted as a pre-approval of any permit, certification, or any other precondition required for the use of the Lease Premises.
(b) Continuous Use
Lessee's use of the Lease Premises shall be continuous from commencement of the Lease until its expiration. Lessee's discontinuance of such use for a period of ninety (90) days shall be presumed to be an abandonment unless Lessee demonstrates to Lessor’s satisfaction that Lessee’s use of the Lease Premises is consistent with similarly situated properties. In the event of an abandonment, Lessor may elect to terminate the Lease as provided in Paragraph 12(a)(3). Abandonment of the Lease Premises shall not relieve Lessee of any obligations under this Lease.
(c) Repairs and Maintenance
(1) Lessor shall not be required to make any Repairs in, on, or about all or part of the Lease Premises. Lessee shall, at all times during the term of this Lease and without any cost or expense to Lessor, keep and maintain the Lease Premises, including all Improvements, in good order and repair and in a clean, safe, sanitary, and orderly condition.
(2) Lessee shall make, or cause to be made, any Repairs which may be required by any Regulatory Agency. Lessee shall observe and comply with, any law, statute, ordinance, plan, regulation, resolution, or policy applicable to the Lease Premises in making such Repairs. All work shall be performed with reasonable diligence, completed within a reasonable time, and performed at the sole cost and expense of Lessee.
Form51.16 (Rev. 10/14)
(3) Lessee expressly accepts the Lease Premises “as is” and expressly acknowledges that:
(i) Lessor has made no representations or warranties as to the suitability of the Lease Premises for any Improvements. Lessee shall conduct all tests necessary to determine the suitability of the Lease Premises for any proposed use or Improvements authorized; and
(ii) Lessor has made no representations or warranties as to the quality or value of any Improvements found on the Lease Premises, or of their conformity to any applicable building codes, zoning ordinances, or other regulations. Lessee agrees to inspect any preexisting Improvements at its own cost to determine whether such Improvements are safe and suitable for the Lessee’s intended use; and (iii) Lessee shall neither be entitled to any reduction in rent, nor any extension of the terms of this Lease because of damage to or destruction of any Improvements on the Lease Premises.
(iv) Lessee and Lessor agree that any Improvements on the Lease Premises constitute the personal property of Lessee and that fixture law does not apply. (4) In the event that the Lease Premises is partly, or in whole, comprised of tidal, submerged, or waterfront property, Lessee expressly accepts the hazards involved in using or improving such lands. Lessor is not responsible for, and Lessee shall not be reimbursed for nor receive any offset of rent for, any damages or reduced use of the Lease Premises caused by: local or invasive flora or fauna, flooding, erosion, sea level rise, storms, freezing, inclement weather of any kind, acts of god, maintenance or failure of protective structures, and any other such hazards. (d) Additions, Alterations, and Removal
No Improvements other than those expressly authorized in this Lease shall be constructed by the Lessee on the Lease Premises without the prior written consent of Lessor. Any Additions or Alterations are expressly prohibited. Lessee is also prohibited from any Additions or Alterations which cause a material change to the environmental impact on or around the Lease Premises.
(e) Enjoyment
This Lease is non-exclusive, and is subject to the provisions of Section 3, Paragraph 6 below. Lessee shall have the right to exclude persons from the Lease Premises only when their presence or activity constitutes a material interference with Lessee's use and enjoyment of the Lease Premises.
(f) Discrimination
Lessee, in its use of the Lease Premises, shall not discriminate against any person or Form51.16 (Rev. 10/14)
class of persons on any basis protected by federal, state, or local law, including: race, color, creed, religion, national origin, sex, sexual orientation, gender identity, age, marital/parental status, veteran status, or disability. (g) Residential Use
Unless otherwise provided for in this Lease, no portion of the Lease Premises shall be used as a location for a Residence, for the purpose of mooring or maintaining a structure which is used as a Residence, or for Residential Uses. (h) Commercial Use
Unless otherwise provided for in this Lease, the Lease Premises is to be used by Lessee and Lessee’s invitees or guests only. Use of the Lease Premises for commercial purposes; conducting a business, whether for profit or otherwise; and any subleasing, rental, or any transaction whereby Lessee directly or indirectly receives compensation from a third party in exchange for use of the Lease Premises shall constitute an immediate Default of this lease with no cure period.
6. RESERVATIONS, ENCUMBRANCES, AND RIGHTS-OF-WAY
(a) Reservations
(1) Lessor expressly reserves all natural resources in or on the Lease Premises, including but not limited to timber, minerals, and geothermal resources as defined under Public Resources Code sections 6401, 6407, and 6903, respectively; the right to grant and transfer the same; as well as the right to grant leases in and over the Lease Premises which may be necessary or convenient for the extraction of such natural resources.
Such leasing shall be neither inconsistent nor incompatible with the rights or privileges of Lessee under this Lease.
(2) Lessor expressly reserves a right to go on the Lease Premises and all Improvements for any purposes associated with this Lease or for carrying out any function required by law, or the rules, regulations, or management policies of the State Lands Commission.
Lessor shall have a right of reasonable access to the Lease Premises across Lessee owned or occupied lands adjacent to the Lease Premises for any purpose associated with this Lease.
(3) Lessor expressly reserves to the public an easement for convenient access across the Lease Premises to other State-owned lands located near or adjacent to the Lease Premises and a right of reasonable passage across and along any right-of-way granted by this Lease; however, such easement or right-of-way shall be neither inconsistent nor incompatible with the rights or privileges of Lessee under this Lease. (4) Lessor expressly reserves the right to lease, convey, or encumber the Lease Form51.16 (Rev. 10/14)
Premises, in whole or in part, during the Lease term for any purpose not inconsistent or incompatible with the rights or privileges of Lessee under this Lease. (b) Encumbrances
The Lease Premises may be subject to pre-existing contracts, leases, licenses, easements, encumbrances, and claims and is made without warranty by Lessor of title, condition, or fitness of the land for the stated or intended purpose.
7. RULES, REGULATIONS, AND TAXES
(a) Lessee shall comply with and be bound by all presently existing or subsequently enacted rules, regulations, statutes or ordinances of the State Lands Commission or any Regulatory Agency. Occupancy or use of the Lease Premises provides no exemption from applicable regulations including, but not limited to, federal, state, county and local regulations, regulations promoting public health, safety, or welfare, building codes, zoning ordinances, and sanitation regulations. Lessee expressly acknowledges that Regulatory Agencies have jurisdiction over the Lease Premises unless such laws are in direct conflict with state law or public trust principles.
(b) Lessee understands and agrees that a necessary condition for the granting and continued existence of this Lease is that Lessee obtains and maintains all permits or other entitlements. Lessee expressly acknowledges that issuance of this Lease does not substitute for, or provide preference in obtaining authorizations from other Regulatory Agencies.
(c) Taxes
(1) In addition to the rent due under this Lease, Lessee accepts responsibility for and shall pay any and all real and personal property taxes, including possessory interest taxes, assessments, special assessments, user fees, service charges, and other charges of any description levied, imposed on, assessed, or associated with the leasehold interest, Improvements on the Lease Premises, any business or activity occurring on the Lease Premises, the Lease Premises itself, or any portion thereof, levied by any governmental agency or entity. Such payment shall not reduce rent due Lessor under this Lease and Lessor shall have no liability for such payment. (2) In the event that this Lease commences, terminates or expires during a tax year, Lessee shall pay the taxes for the period of such year during which this Lease was in effect.
(3) Any and all taxes and assessments and installments of taxes and assessments required to be paid by Lessee under this Lease shall be paid when due and the official Form51.16 (Rev. 10/14)
and original receipt for the payment of such tax, assessment, or installment shall be delivered to Lessor upon request.
(4) Lessee shall indemnify and hold Lessor, the Lease Premises, and any Improvements now or hereafter located thereon, free and harmless from any liability, loss, or Damages resulting from any taxes, assessments, or other charges required by this Lease to be paid by Lessee and from all interest, penalties, and other sums imposed thereon and from any sales or other proceedings to enforce collection of any such taxes, assessments, or other charges.
8. INDEMNITY
(a)Lessee’s use of the Lease Premises and any Improvements thereon is at Lessee’s sole and exclusive risk.
(b)In addition to any other obligation to indemnify Lessor as otherwise provided in this Lease, except to the extent caused by the sole negligence and/or willful misconduct of the Lessor, Lessee shall indemnify, hold harmless, and, at the option of Lessor, defend Lessor, its officers, agents, and employees from any and all Damages resulting from Lessee’s occupation and use of the Lease Premises. Lessee shall reimburse Lessor in full for all reasonable costs and attorneys’ fees, specifically including, without limitation, any Damages arising by reason of: (1) The issuance, enjoyment, interpretation, Breach, or Default of this Lease; (2) The challenge to or defense of any environmental review upon which the issuance of this Lease is based; (3) The death or injury of any person, or damage to or destruction of any property from any cause whatever in any way connected with the Lease Premises, or with any of the Improvements or personal property on the Lease Premises; (4) The condition of the Lease Premises, or Improvements on the Lease Premises; (5) An act or omission on the Lease Premises by Lessee or any person in, on, or about the Lease Premises; (6) Any work performed on the Lease Premises or material furnished to the Lease Premises; (7) Lessee’s failure to comply with any material legal or other requirement validly imposed on Lessee or the Lease Premises by a Regulatory Agency. (c) The reimbursement provisions of this Paragraph 8 shall not apply to any claims, litigation, or other actions which may be brought by either Lessee or Lessor against each other. (d)Nothing in this paragraph shall be construed as requiring that Lessor defend itself against all or any aspect of any challenge to this Lease or any associated environmental review. However, Lessee may take whatever legal action is available to it to defend this Lease or any associated environmental review against any challenge by a third party, whether or not Lessor chooses to raise a defense against such a challenge. (e)Lessee shall notify Lessor immediately in case of any accident, injury, or casualty on the Lease Premises.
Form51.16 (Rev. 10/14)
9. INSURANCE
(a)Lessee shall obtain and maintain in full force and effect during the term of this Lease comprehensive general liability insurance and property damage insurance, with such coverage and limits as may be reasonably requested by Lessor from time to time, but in no event for less than the sum(s) specified against any and all claims or liability arising out of the ownership, use, occupancy, condition, or maintenance of the Lease Premises and all Improvements.
(b)The insurance policy shall identify the Lease by its assigned number. The specific Improvements shall also be generally identified, as well as their location on state owned property. The coverage provided shall be primary and non-contributing. Lessee shall keep such policy current. Lessor shall be named as a “certificate holder” and/or an “additional interest” on the policy. Lessee shall provide Lessor with a current certificate of insurance at all times. At Lessor’s request, Lessee shall provide a full copy of the current insurance policy, along with any and all endorsements or other such documents affecting the coverage. Lessor will not be responsible for any premiums or other assessments on the policy.
(c) The insurance coverage specified in this Lease shall be in effect at all times during the Lease term and subsequently until Lessor has either accepted all of the Lease Premises as improved or restored by Lessee as provided elsewhere in this Lease. Lessee shall notify Lessor within five (5) business days if the insurance is canceled for any reason.
10. SURETY BOND
(a) When required by Section 1 of this Lease, Lessee shall provide a surety bond or other security device acceptable to Lessor, for the specified amount, and naming the State of California, California State Lands Commission as the assured, to guarantee to Lessor the faithful observance and performance by Lessee of all of the terms, covenants, and conditions of this Lease.
(b) Lessor may require an increase in the amount of the surety bond or other security device to cover any additionally authorized Improvements, any modification of consideration, or to provide for inflation or other increased need for security. The surety bond or other security device may be increased on each fifth anniversary of the beginning date of this Lease.
Should Lessor fail to exercise such right effective on any fifth anniversary, it may do so effective on any one (1) of the next four (4) anniversaries following such fifth anniversary without prejudice to its right to effect such modification on the next or any succeeding fifth anniversary. No such modification shall become effective unless Lessee is given at least thirty (30) days’ notice prior to the date of the Commission meeting wherein the modification of the bond or security is considered, or thirty (30) days’ notice prior to the Form51.16 (Rev. 10/14)
effective date of the increase, whichever provides more notice. (c) The surety bond or other security device shall be maintained in full force and effect at all times during the Lease term and subsequently until Lessor has either accepted all of the Lease Premises as improved or restored by Lessee as provided elsewhere in this Lease.
Lessee must first seek approval of Lessor before changing the type of security device used, or the bond holder.
11. ASSIGNMENT, ENCUMBRANCING OR SUBLETTING
(a) Lessee shall not either voluntarily or by operation of law, assign, transfer, mortgage, pledge, hypothecate or encumber this Lease and shall not sublet the Lease Premises, in whole or in part, or allow any person other than the Lessee's employees, agents, servants and invitees to occupy or use all or any portion of the Lease Premises without the prior written consent of Lessor, which consent shall not be unreasonably withheld. (1) Notwithstanding the foregoing prohibition against transfer and assignment, the Lease may be transferred by Lessee if the transfer is caused by the death of a spouse and the full interest of the deceased spouse is transferred to a surviving spouse; or the transfer is caused by the dissolution of the marriage of Lessee and the full interest of one of the spouses is transferred to the other spouse. In the event of such a transfer, Lessor shall be notified in writing within 30 days of the transfer.
(2) Notice to Lessor of Successor Trustee(s): In the event this Lease is held in trust, and the Lessee is a trustee thereof, the substitution or succession of a new trustee shall not be an assignment or transfer for the purposes of this Paragraph. Lessee (and by operation of law, any successor trustee) agrees to provide prompt notice to Lessor of any succession or substitution of trustee in accordance with Paragraph 16(c) of General Provisions, no later than sixty (60) days after the named trustee as appears on the face of this Lease becomes unable or ceases to serve as trustee for any reason. (b) The following shall be deemed to be an assignment or transfer within the meaning of this Lease:
(1) If Lessee is a business entity, any dissolution, merger, consolidation or other reorganization of Lessee, or the sale or other transfer of substantially all the assets of Lessee. If Lessee is a publicly traded entity, transfers of interests in Lessee shall not constitute an assignment requiring the consent of Lessor. (2) If Lessee is a partnership, a transfer of any interest of a general partner, a withdrawal of any general partner from the partnership, or the dissolution of the partnership. (c) If this Lease is for sovereign lands appurtenant to adjoining littoral or riparian land, Lessee shall not transfer or assign its ownership interest or use rights in such adjoining lands Form51.16 (Rev. 10/14)
separately from the leasehold rights granted herein without the prior written consent of Lessor.
(d) If Lessee desires to assign, sublet, encumber or otherwise transfer all or any portion of the Lease Premises, Lessee shall do all of the following:
(1) Give not less than 90 days’ prior written notice to Lessor; (2) Provide the name, complete business organization, operational structure, and formation documents of the proposed assignee, sublessee, secured third party, or other transferee; and the nature of the use of and interest in the Lease Premises proposed by the assignee, sublessee, secured third party or other transferee. (3) Provide the terms and conditions of the proposed assignment, sublease, or encumbrance or other transfer;
(4) Provide audited financial statements for the two most recently completed fiscal years of the proposed assignee, sublessee, secured party or other transferee; and provide pro forma financial statements showing the projected income, expense and financial condition resulting from use of the Lease Premises; and (5) Provide such additional or supplemental information as Lessor may reasonably request concerning the proposed assignee, sublessee, secured party or other transferee.
(6) Lessor will evaluate proposed assignees, sublessees, secured third parties and other transferees and grant approval or disapproval according to standards of commercial reasonableness considering the following factors within the context of the proposed use: the proposed party's financial strength and reliability, their business experience and expertise, their personal and business reputation, their managerial and operational skills, their proposed use and projected rental, as well as other relevant factors. (e) Lessor shall have a reasonable period of time from the receipt of all documents and other information required under this provision to grant or deny its approval of the proposed party. Lessor may reevaluate the rent, insurance and/or bond provisions of this Lease, and may condition its approval of the proposed assignment, sublease, hypothecation, mortgage, or other transfer on the party’s acceptance of the new terms.
Lessee’s rights stated in this paragraph shall apply regardless of whether the proposed transfer coincides with a regular rent review period as stated in Section 3 Paragraph 3(c) above.
(f) Lessee's mortgage or hypothecation of this Lease, if approved by Lessor, shall be Form51.16 (Rev. 10/14)
subject to terms and conditions imposed by a separately negotiated encumbrancing agreement.
(g) Upon the express written assumption of all obligations and duties under this Lease by an assignee approved by Lessor, the Lessee may be released from all liability under this Lease arising after the effective date of assignment and not associated with Lessee's use, possession or occupation of or activities on the Lease Premises; except as to any hazardous wastes, substances or materials as defined under federal, state or local law, regulation, or ordinance manufactured, generated, used, placed, disposed, stored or transported on the Lease Premises during Lessee’s tenancy. (h) If the Lessee files a petition or an order for relief is entered against Lessee, under Chapters 7, 9, 11 or 13 of the Bankruptcy Code (11 USC Sect. 101, et seq.) then the trustee or debtor-in-possession must elect to assume or reject this Lease within sixty (60) days after filing of the petition or appointment of the trustee, or the Lease shall be deemed to have been rejected, and Lessor shall be entitled to immediate possession of the Lease Premises.
No assumption or assignment of this Lease shall be effective unless it is in writing and unless the trustee or debtor-in-possession has cured all Defaults under this Lease (monetary and non-monetary) or has provided Lessor with adequate assurances (1) that within ten (10) days from the date of such assumption or assignment, all monetary Defaults under this Lease will be cured; and (2) that within thirty (30) days from the date of such assumption, all non-monetary Defaults under this Lease will be cured; and (3) that all provisions of this Lease will be satisfactorily performed in the future.
(i) In the event of any transfer or assignment, under this Paragraph 11 or by any other means authorized by this Lease, the Lease terms shall be for the remaining years existing on the Lease prior to the transfer or assignment. A transfer or assignment shall not extend the term of this Lease.
12. DEFAULT AND REMEDIES
(a) Default
The occurrence of any one or more of the following events shall immediately and without further notice constitute a Default of this Lease:
(1) Lessee's failure to make any payment of rent, royalty, or other consideration as required under this Lease; or
(2) Lessee's failure to obtain or maintain liability insurance or a surety bond or other security device as required under this Lease; or
Form51.16 (Rev. 10/14)
(3) Lessee's abandonment of the Lease Premises (including the covenant for continuous use as provided for in Paragraph 5(b)) during the Lease term; or (4) Lessee's failure to obtain and maintain all necessary governmental permits or other entitlements; or
(5) The maintenance of the Lease Premises in violation of, or failure to comply with, any applicable provisions of any Regulatory Agency, Environmental Law, or maintenance of the Lease Premises in a condition constituting nuisance; or (6) Lessee’s Failure to commence to construct and to complete construction of the Improvements authorized by this Lease within the time limits specified in this Lease. (7) Lessee is found to sublet or otherwise surrender daily management and control of the Lease Premises to a third party without the knowledge, expressed written consent or authorization of the Lessor.
(b)Lessee's failure to observe or perform any other term, covenant, or condition of this Lease when such failure shall continue for a period of thirty (30) days after Lessor's giving written notice shall constitute a Default of this lease. However, if the nature of Lessee's Default under this paragraph is such that more than thirty (30) days are reasonably required for its cure, then Lessee shall not be deemed to be in Default if Lessee commences such cure within such thirty (30) day period and diligently proceeds with such cure to completion.
(c)Should Lessee Breach any term, covenant, or condition of this Lease under Paragraph 12(b) above three (3) times in any three hundred and sixty-five (365) day period, the third Breach will be a Default under this Lease and Lessor will be entitled to immediately terminate this Lease, and take other appropriate action. Lessor will provide written notice of each Breach as provided above, and provide written notice that future Breaches will constitute immediate Default with no cure period.
(d)Remedies
In the event of a Default by Lessee and Lessee's failure to cure such Default if such a cure period is applicable, Lessor may at any time and with or without notice do any one or more of the following in addition to any rights or remedies permitted by law:
(1) Re-enter the Lease Premises, remove all persons and property, and repossess and enjoy such premises; or
Form51.16 (Rev. 10/14)
(2) Terminate this Lease and Lessee's right of possession of the Lease Premises by any lawful means. The termination shall not relieve Lessee of any obligation, monetary or otherwise, which has accrued prior to the date of termination. Such termination shall be effective upon Lessor's giving written notice and upon Lessee’s receipt of such notice. Lessee shall immediately surrender possession of the Lease Premises to Lessor.
Lessor shall be entitled to recover from Lessee all amounts to which Lessor is entitled pursuant to Section 1951.2 of the California Civil Code, or any other provision of law, including any necessary Repair, renovation, alteration, remediation, or removal of Improvements; or
(3) Maintain this Lease in full force and effect and recover any rent, royalty, or other consideration as it becomes due without terminating Lessee's right of possession regardless of whether Lessee shall have abandoned the Lease Premises, subject to the conditions imposed by Cal. Civil Code § 1951.2; or
(4) Exercise any other right or remedy which Lessor may have at law or equity. (e) Determination of Rental Value
If rent under this Lease is calculated as a percentage of Lessee’s income attributable to the Lease Premises and Lessee abandons the Lease Premises during some or all of the applicable period, then the reasonable rental value shall be the percentage of proceeds Lessor would have received had Lessee operated the Lease Premises in the usual and customary manner.
(f) Waiver of Rights
The failure or delay of either party to exercise any right or remedy shall not be construed as a waiver of such right or remedy or any Breach by the other party.
Lessor’s acceptance of any rent shall not be considered a waiver of any preexisting Breach by Lessee other than the failure to pay the particular rent accepted regardless of Lessor’s knowledge of the preexisting Breach at the time rent is accepted.
13. RESTORATION OF LEASE PREMISES AND ENVIRONMENTAL MATTERS (a)Restoration of Lease Premises
(1) Upon expiration or sooner termination of this Lease, Lessee must immediately surrender possession of the Lease Premises to Lessor. Prior to the time of surrender, Lessee must remove all or any Improvements together with the debris and all parts of any such Improvements at its sole expense and risk, regardless of whether Lessee Form51.16 (Rev. 10/14)
actually constructed or placed the Improvements on the Lease Premises; or Lessor, at its sole and absolute discretion, may itself remove or have removed all or any portion of such Improvements at Lessee's sole expense. Lessor may waive all or any part of this obligation in its sole discretion if doing so is in the best interests of the State. (2) As a separate and related obligation, Lessee shall restore the Lease Premises as nearly as possible to the conditions existing prior to the installation or construction of any Improvements. For purposes of this Lease, restoration includes removal of any landscaping; removal of any Hazardous Materials; and to the extent possible, undoing any grading, fill, excavation, or similar alterations of the natural features of the Lease Premises. Lessor may waive all or any part of this obligation in its sole and absolute discretion.
(3) Unless otherwise provided for in this Lease, Lessee shall submit to Lessor no later than one (1) year prior to the expiration of this Lease either: (a) an application and minimum expense deposit for a new lease for the continued use of the Lease Premises, or (b) a plan for the restoration of the Lease Premises to be completed prior to the expiration of the lease term together with a timeline for obtaining all necessary permits and conducting the work prior to the expiration of this Lease. (4) In removing any or all Improvements, or conducting any restoration work, Lessee shall be required to obtain any permits or other governmental approvals as may then be required by any Regulatory Agency, including, without limitation, any Environmental Law.
(5) Lessor may, upon written notice, in its sole and absolute discretion, accept title to any or all Improvements at the termination of this Lease. Lessor shall notify Lessee that Lessor intends to take title to any or all Improvements within six (6) months of Lessee submitting a plan for restoration under Paragraph 13(a)(3)(b) above. If Lessor elects to take title to any such Improvements, Lessee shall deliver to Lessor such documentation as may be necessary to convey title to such Improvements to Lessor free and clear of any liens, mortgages, loans, or any other encumbrances. Lessor shall not pay, and Lessee shall not be entitled to compensation for Lessor’s taking title to such property.
(b) Environmental Matters
(1) Lessee’s Obligations:
(i) Lessee will not use, occupy, or permit any portion of the Lease Premises to be used or occupied in violation of any Environmental Law. Lessee shall not manufacture or generate or store Hazardous Material on the Lease Premises unless Form51.16 (Rev. 10/14)
specifically authorized under other terms of this Lease. (ii) Lessee shall practice conservation of water, energy, and other natural resources. (iii) Lessee shall notify Lessor and the appropriate governmental emergency response agency, or agencies immediately in the event of any release or threatened release of any Hazardous Material.
(2) Lessor may at any time during the Lease term require Lessee to conduct at its own expense and by a contractor approved by Lessor an independent environmental site assessment or inspection for the presence or suspected presence of Hazardous Material generated, used, placed, disposed, stored, or transported on the Lease Premises during the term of the Lease. Lessee shall provide the results of the assessment or inspection to Lessor and the appropriate governmental response agency or agencies and shall further be responsible for removing or taking other appropriate remedial action regarding such Hazardous Material in accordance with applicable Environmental Law.
(3) Environmental Indemnity.
Lessee shall indemnify, defend, and hold Lessor and Lessor’s, officer, appointees, volunteers, employees, agents, successors and assigns free and harmless from and against all Damages that may at any time be imposed upon, incurred by, or asserted or awarded against Lessor in connection with or arising from any Breach of Lessee’s obligations hereunder; or out of any violation by Lessee of any Environmental Law; or resulting in the imposition of any lien or claim for the recovery of any costs for environmental cleanup or other response costs relating to the release or threatened release of Hazardous Materials on the Lease Premises during the Lessee’s tenancy. This obligation shall include any prior leases between Lessor and Lessee and will continue through any periods Lessee is in holdover, unlawful detainer, or any subsequent monthto-month tenancies created by operation of law. Lessee’s obligations hereunder will survive the expiration or sooner termination of this Lease. (4) Violation of this section shall constitute grounds for termination of the Lease. Lessor, shall notify Lessee when, in Lessor’s opinion, Lessee has violated the provisions of this section. Lessee shall immediately discontinue the conduct and respond within five (5) business days. Lessee shall take all measures necessary to remedy the condition.
14.QUITCLAIM
Lessee shall, upon the early termination of this Lease and at Lessor’s request, execute and Form51.16 (Rev. 10/14)
deliver to Lessor in a form provided by Lessor a good and sufficient release of all rights under this Lease. Should Lessee fail or refuse to deliver such a release, Lessor may record a written notice reciting such failure or refusal. This written notice shall, from the date of its recordation, be conclusive evidence against Lessee of the termination of this Lease and all other claimants.
15.HOLDING-OVER
(a)This Lease shall terminate without further notice upon the expiration of the term of this Lease. Lessee shall have removed any Improvements and completed any restoration as required by Lessor prior to the expiration of this Lease, and shall surrender possession of the Lease Premises. Any failure by the Lessee to remove Improvements, restore the Lease Premises, and/or surrender possession of the Lease Premises at the expiration or sooner termination of this Lease shall not constitute a renewal or extension and shall not give Lessee any rights in or to the Lease Premises or any part thereof except as expressly provided in this Lease. Lessee shall be deemed in unlawful detainer of the Lease Premises and Lessor shall be entitled to all resulting legal remedies. (b)Lessor may, in its sole discretion, choose to accept Rent for the Lease Premises instead of immediately taking legal action to recover possession of the Lease Premises. Any tenancy created by operation of law on Lessor’s acceptance of rent shall be deemed a month-to-month tenancy regardless of what sum or sums Lessee delivers to Lessor. Except as set forth below, any subsequent tenancy created in this manner shall be on the same terms, covenants, and conditions set forth in this Lease insofar as such terms, covenants, and conditions can be applicable to a month-to-month tenancy (c)In recognition of the increased accounting, land management, and supervisory staff time required for month-to-month tenancies, the rent for each month or any portion thereof during such holdover period may be an amount equal to one hundred fifty percent (150%) of one-twelfth (1/12) of the total compensation for the most recent year paid. In the event this Lease does not require monetary compensation, Lessor shall have the right to establish rent based on the fair market value of the Lease Premises. The month-to-month tenancy may be terminated by Lessee or Lessor upon thirty (30) calendar days’ prior written notice to the other.
16.ADDITIONAL PROVISIONS
(a) Waiver
(1) No term, covenant, or condition of this Lease and no omission, neglect, Default or Breach of any such term, covenant or condition shall be deemed to have been waived by Lessor's acceptance of a late or nonconforming performance or otherwise, unless such a waiver is expressly acknowledged by Lessor in writing. No delay or omission of Lessor to exercise any right or power arising from any omission, neglect, Form51.16 (Rev. 10/14)
Default or Breach of term, covenant, or condition of this Lease shall be construed as a waiver or any acquiescence therein.
(2) Any such waiver shall not be deemed to be a waiver of any other term, covenant or condition; of any successive Breaches of the same term, covenant, or condition; or of any other Default or Breach of any term, covenant or condition of this Lease. (b) Time
Time is of the essence for this Lease and each and all of its terms, covenants or conditions in which performance is a factor.
(c) Notice
All notices required to be given under this Lease shall be given in writing, sent by U.S.
Mail with postage prepaid, to Lessor at the offices of the State Lands Commission and the Lessee at the address specified in this Lease. Lessee shall give Lessor notice of any change in its name or address.
(d)Consent
Where Lessor's consent is required under this Lease its consent for one transaction or event shall not be deemed to be a consent to any subsequent occurrence of the same or any other transaction or event.
(e)Changes
This Lease may be terminated and its term, covenants, and conditions amended, revised, or supplemented only by mutual written agreement of the parties. (f) Successors
The terms, covenants, and conditions of this Lease shall extend to and be binding upon and inure to the benefit of the heirs, successors, and assigns of the respective parties.
(g) Joint and Several Obligation
If more than one Lessee is a party to this Lease, the obligations of the Lessees shall be joint and several.
(h) Captions
The section and paragraph captions used in this Lease are for the convenience of the parties. The captions are not controlling and shall have no effect upon the construction or interpretation of this Lease.
Form51.16 (Rev. 10/14)
(i) Severability
If any term, covenant or condition of this Lease is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Lease shall not be affected thereby, and each term and provision of this Lease shall remain valid and enforceable to the fullest extent permitted by law.
(j) Representations
Lessee agrees that no representations have been made by Lessor or by any person or agent acting for Lessor. Lessor and Lessee agree and acknowledge that this document contains the entire agreement of the parties, that there are no verbal agreements, representations, warranties or other understandings affecting this Lease, and Lessor and Lessee, as a material part of the consideration of this Lease, waive all claims against the other for rescission, damages, or otherwise by reason of any alleged covenant, agreement or understanding not contained in this Lease.
(k) Gender and Plurality
In this Lease, the masculine gender includes both the feminine and neuter, and the singular number includes the plural whenever the context so requires. (l) Survival of Certain Covenants
All covenants pertaining to bond, insurance, indemnification, restoration obligations, Breach, Default, and remedies shall survive the expiration or earlier termination of this Lease until Lessee has fulfilled all obligations to restore the Lease Premises as required by this Lease.
(m) Counterparts
This agreement may be executed in any number of counterparts and by different parties in separate counterparts. Each counterpart when so executed shall be deemed to be an original and all of which together shall constitute one and the same agreement. (n) Delegation of Authority
Lessor and Lessee acknowledge Lessor as defined herein includes the Commission Members, their alternates or designees, and the staff of the Commission. The ability of staff of the Commission to give consent, or take other discretionary actions described herein will be as described in the then-current delegation of authority to Commission staff. All other powers are reserved to the Commission.
Form51.16 (Rev. 10/14)
STATE OF CALIFORNIA - STATE LANDS COMMISSION
LEASE NO.
This Lease shall become effective only when approved by and executed on behalf of the State Lands Commission of the State of California and a duly executed copy has been delivered to Lessee. The submission of this Lease by Lessor, its agent, or representative for examination by Lessee does not constitute an option or offer to lease the Lease Premises upon the terms and conditions contained herein, or a reservation of the Lease Premises in favor of Lessee. Lessee's submission of an executed copy of this Lease to Lessor shall constitute an offer to Lessor to lease the Lease Premises on the terms and conditions set forth herein.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the date hereafter affixed.
LESSEE:
CITY OF SAN CLEMENTE
By: ____________________________
Title: ____________________________
Date: ____________________________
ATTACH ACKNOWLEDGMENT
LESSOR:
STATE OF CALIFORNIA
STATE LANDS COMMISSION
By: ____________________________
Title: ____________________________
Date: ____________________________
Execution of this document was authorized
by the California State Lands Commission
on _______________________________.
EXHIBIT A
A 3750
LAND DESCRIPTION
Two Parcels of tide and submerged land, in the bed of the Gulf of Santa Catalina, Pacific Ocean adjacent to San Clemente State Beach State Park, County of Orange, State of California, and particularly described as follows:
PARCEL 1 (Beach Fill Site)
Bounded on the northeast by the centerline of the A.T. & S.F. Railroad train track;
Bounded on the southwest by a line parallel with and 450 feet southwesterly of the centerline of the A.T. & S.F. Railroad train track; Bounded on the northwest by a line parallel with and 1350 feet northwesterly of the centerline of the San Clemente Pier and its northeasterly prolongation;
Bounded on the southeast by a line parallel with and 2400 feet southeasterly of the centerline of the San Clemente Pier and its northeasterly prolongation.
EXCEPTING THEREFROM any portion lying landward of the ordinary high water mark of the Pacific Ocean.
PARCEL 2 (Dredging (Borrow) Site)
BEGINNING at a point in the Pacific Ocean which bears North 71° 12’ 32” West 7133.67 feet from the NGS monument “OCEANSIDE HBR TURNING BASIN LT” (PID DX4025) having California State Plane Coordinate System, of 1983, Zone 6 (Epoch 1991.35) coordinates of N = 2021505.19 feet, E = 6211210.42 feet; thence South 54° 23’ 57” West 2401.10 feet; thence North 35° 35’ 59” West 2586.30 feet; thence North 54° 24’ 01” East 2401.00 feet; thence South 35° 36’ 07” East 2586.25 feet to the POINT OF BEGINNING.
THE BASIC OF BEARINGS AND COORDINATES shown are based on California State Plane Coordinate System, of 1983, Zone 6 (Epoch 1991.35).
END OF DESCRIPTION
The above description is based on that San Clemente Shoreline Coastal Storm Damage Reduction Project maps and descriptions provided by the applicant.
Prepared 01/10/2023 by the California State Lands Commission Boundary Unit.
JAMES A . KOEPKE
P
R
O
FE S S I ONAL LAND
SURVEY
O
R
STATE OF CAL I FORN I N
A
o . 84 87
PACIFIC
OCEAN
APPROXIMATE
BEACH FILL
SITE
APPROX. SHORELINE
SAN CLEMENTE PIER
APPROX. SHORELINE
A.T. & S.F. RAILROAD
PACIFIC
OCEAN
APPROXIMATE
DREDGING
(BORROW) SITE
OCEANSIDE
HARBOR
APPROX. SHORELINE
SANTA
MARGARITA
RIVER
A 3750
CITY OF SAN CLEMENTE
GENERAL LEASE -
PUBLIC AGENCY USE
ORANGE COUNTY
MAP SOURCE: USGS QUAD
PACIFIC OCEAN NEAR SAN
CLEMENTE PIER, ORANGE COUNTY
THIS EXHIBIT IS SOLELY FOR PURPOSES OF GENERALLY DEFINING THE
LEASE PREMISES, IS BASED ON UNVERIFIED INFORMATION PROVIDED BY
THE LESSEE OR OTHER PARTIES AND IS NOT INTENDED TO BE, NOR
SHALL IT BE CONSTRUED AS, A WAIVER OR LIMITATION OF ANY STATE INTEREST IN THE SUBJECT OR ANY OTHER PROPERTY. SITE
TS 01/10/2023
NO SCALE EXHIBIT B
NO SCALE SITES
LOCATION
SITE
SITE
PACIFIC OCEAN NEAR OCEANSIDE
HARBOR, SAN DIEGO COUNTY
N
N