MEMORANDUM ON DRISCOLL’S MARINA LLC’S (DRISCOLL’S) FAILURE TO ABIDE BY THE MASTER LEASE WITH THE PORT AS AMENDED, RULINGS BY THE CALIFORNIA COASTAL COMMISSION AND THE GENERAL PLAN OF THE SAN DIEGO UNIFIED PORT DISTRICT. A. MASTER LEASE DATED MAY 17, 1983, AS AMENDED THROUGH AUGUST 2014 This lease was originally executed on May 17, 1983 for forty years with North Harbor Landing Ltd. Through a series of events not here relevant the lease was assigned to Driscoll Marina Ltd. on or about December 22, 1992. The master lease, its prior amendments, as well as California Coastal Commission’s permits for development are all relevant since the conditions under which the lease was assigned were that “The assignee, Driscoll, Ltd., assumes each and every obligation under said lease and the conditions contained in this resolution. On the same day as the lease was assigned to Driscoll Marina, Ltd., Amendment 3 of the lease was entered into which made changes to 13 of the original 42 paragraph lease, and added 5 new paragraphs. 1. Amended Para. 3 STORAGE OF FISHING GEAR. This paragraph states “USE: Lessee agrees that the leased premises shall be used only and exclusively for mooring of fishing boats; storage of fishing gear;” and some other uses not here relevant such as a restaurant, retail shop, deli, etc. We realize that under certain circumstances Driscoll’s can lease to pleasure boats, however, the important point here is that the second “use” called for is the storage of fishing gear. Driscoll’s has refused to store fishermen’s gear, has removed all gear from the storage area, put it behind lock and key, and made it only available to the owners of the gear if they sign a form saying they are accessing the gear to remove it to another location, and will not return it to Driscoll’s. 2. Amended Para. 3 PAVED AREA FOR NET REPAIR. The same paragraph states that “ Lessor agrees that a minimum of 5,083 linear feet of mooring space shall be available at all times for the mooring of bona fide active fishing boats; a minimum of 19,800 square feet of paved area shall be available at all times for fishing net repair and other fishermen activities”. Driscoll’s has informed the fishermen that they will not be allowed to store their nets or mend their nets, nor carry out other activities in an area (size uncertain) where they traditionally have done this, and no alternate areas have been made available. 3. Amended Para. 3 PARKING. The same paragraph states “and a minimum of sixty automobile parking spaces shall be available at all times for fishing boat owners and employees through reserved parking spaces, permit parking, and/or exclusive gate controlled area. Driscoll’s has not provided permit parking nor a gate controlled facility. Since they are not marked, it is unclear whether Driscoll’s has provided 60 parking spaces of any type. 4. Amended Para 5 and Para 15 MAINTENANCE. Paragraph 5 gives all existing facilities to Driscoll’s –“owned by and title thereto is vested in Lessee.” Paragraph 15 states in relevant part: “Lessee agrees to assume full responsibility for the operation, maintenance, including painting and repair of the premises, throughout the term . . . . Lessee will perform all 1 maintenance, repairs, and replacements necessary to maintain and preserve the premises in a good, safe, healthy and sanitary condition satisfactory to Lessor and in compliance with all applicable laws. Lessee further agrees to provide approved containers for trash and garbage and to keep premises free and clear of rubbish and litter, or any other fire hazards” In later parts of the paragraph it states that the Lessee is responsible to complete repair work which is listed out as replacing wood plank pier decks and the connection of rail piles to the bents, rebuilding the slope at the shoreline, and removing all underwater pile stubs. This must be done by June 30, 1993. The fishermen allege that none of the work called for by this paragraph was completed. Furthermore, a walk-through of the premises, WHICH WE ASSUME HAS BEEN COMPLETED BY NOW, makes crystal clear the premises have not been maintained for years. 5. New Para. 48 ACCEPTENCE OF PREMISES. This paragraph states that the Driscoll’s has examined the premises and accepts the premises and the improvements as “satisfactory and useable for Lessee’s purposes . . . .” B. CALIFORNIA COASTAL COMMISSION PERMIT FOR DEVELOPMENT. During the period of roughly June 1984 through October 1986 the Coastal Commission issued development permits with conditions. While somewhat confusing, the conditions on these permits required the following: a. 3,950 sq.ft. for overhead storage of swordfish planks; b. 4,640 sq. ft. for laundry, storage etc.; c. 700 sq. ft. for bait storage tanks; d. A net repair and public walkway of 12,000 sq. ft.; e. An additional paved net area of 9,856 sq. ft.; f. Paved areas for work of 19,800 sq. ft.; and g. 1,260 sq. ft. for restrooms and lockers. The fishermen allege that none of the above requirements have been met. Driscoll’s in accepting the lease assignment in 1992 should have known of these requirement which were never waived by the Coastal Commission and has been under a continuing obligation to see that these facilities exist and are maintained. Instead Driscoll’s has refused space for bait tanks, net, repair, lockers, storage of swordfish plank, and as noted above storage of any fishing equipment. C. GENERAL PLAN OF SAN DIEGO UNIFIED PORT DISTRICT. As brought to the attention of the Port previously, the General Plan, approved by the California Coastal Commission, provides inter alia that commercial fishing facilities shall include a number of things such as: a. Access to freezers b. Access to affordable ice c. Offloading facilities d. Floating work dock While some of these facilities are available at Driscoll’s – ice, offloading equipment, floating work dock – they are available only on a very limited basis if at all. There have been numerous 2 instances of delays in unloading because the hoist was locked up and no one at the facility had access to it. This has resulted in the ruin of several fish catches which are sensitive to not being unloaded right away. There have been missed trips due to the ice machine not being turned on by Driscoll’s even when ice was promised for the next day. This has resulted in fishermen not being able to go fishing during good weather and good fishing. The floating work dock is locked and frequently no one can be reached to open it when it is needed by the fishermen. There is no working freezer area. All these failures make it impossible for the commercial fishermen at Driscoll’s to pursue their profession. 3