HomeMy WebLinkAboutC-7349-17 - Beacon Bay, 66 - Lease 2005LEASE
THIS LEASE is made and entered into as of IL4 Iq , 2005, by and between the CITY
OF NEWPORT BEACH, a Charter City and munici al corporation ("Lessor"), and Rodney F. Emery
and Pamela L. Emery, husband and wife as tenants in common ("Lessee"), regarding the real property
commonly referred to as Beacon Bay Lot 66
RECITALS
A. The City of Newport Beach, by virtue of a 1978 legislative grant found in Chapter 74 of
the Statutes of 1978 (the 'Beacon Bay Bill"), holds the right, title and interest to certain tidelands
and uplands commonly known as Beacon Bay and generally described in Exhibit A attached
hereto and incorporated by reference.
B. The Beacon Bay Bill frees the "Westerly portion" of the filled tidelands from the public
trust and specifically authorizes the lease of the property for residential purposes subject to
certain express statutory conditions.
C. Beacon Bay, including the "Westerly Portion" thereof, has been divided into individual
lots, with each lot leased by the City for residential purposes until December 31, 2005.
D. On November 3, 1987, a majority of electors of the City approved a measure which
authorized the City Council to enter into new leases of residential lots in Beacon Bay for a period
not to exceed fifty (50) years.
E. On November 3, 1992, a majority of electors of the City approved Measure M which
authorized the City Council to lease tidelands and waterfront property consistent with the
provisions of state law.
F. The City Council, pursuant to the authority conferred by the electors, entered into
negotiations with current lessees and the parties have agreed on the terms and conditions of a
new lease with a fifty (50) year term, provision for adjustments in lease payments to reflect
changes in the value of Beacon Bay leaseholds, and a recalculation of lease payments in the
event of a transfer of the Lease by the Current Lessee or any Subsequent Lessee (as defined
herein).
G. Lessee acknowledges that the terms and conditions of this Lease may result in Lessee
paying substantially more or less than another Lessee for similar property depending upon the
date this Lease is executed, the date of any subsequent transfer, and the consideration paid for
transfers of similarly situated property.
H. Lessee acknowledges that accurate and complete reporting to the City of all
consideration paid for the transfer of this Lease is vitally important to the City in that failure to fully
report all consideration could materially reduce the amount of rent received by the City from other
Beacon Bay Lessees.
I. Lessor and Lessee acknowledge that the City has agreed to a fifty (50) year term and
limited lease payment increases in consideration of provisions which require payment of rent
approximating fair market rental value, without regard to any advantage maintained by Current
Lessees, upon transfer by Current Lessees and payment of deferred rent in the event the Lease
is not signed on or before the Effective Date (as defined herein).
J. The California State Lands Commission has reviewed the form of this Lease and
determined that it is in conformance with the provisions of relevant statutes, rules and regulations,
including, without limitation, the Beacon Bay Bill.
K. Lessor has determined that this Lease is consistent with provisions of the Beacon Bay
Bill, the Charter, General Plan and Zoning Ordinance of the City of Newport Beach, and of all
other applicable state and local laws.
NB1.187371.V205/24/94
L. Lessor has determined it is in the best interests of the citizens of Newport Beach to maintain the
residential character of Beacon Bay and to enter into new leases with Current Lessees under the terms
and conditions specified in this agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the covenants in this lease, the parties
agree as follows:
1. LEASED LAND.
Lessor hereby leases to Lessee the real property commonly known as Beacon Bay Lot 66 (the "Leased
Land"), which is more particularly described in Exhibit B, and generally depicted on Exhibit A, each
attached hereto and incorporated by reference, subject to the limitations on use specified in Section 6.
As used in this Lease, the term "Premises" shall refer to the Leased Land and any improvements
constructed thereon.
Lessor expressly reserves all oil, oil rights, gas, minerals, mineral rights, natural gas rights and other
hydrocarbon substances in and under the Leased Land and the right to grant and transfer the same,
together with all necessary and convenient rights to explore for, develop, produce and extract and take the
same, subject to the express limitation that any and all operations for the exploration, development,
production, extraction and taking of any such substance shall be carried on at levels below the depth of
five hundred feet (500') from the surface of the land by means of wells, derricks and other equipment from
surface locations on adjoining or neighboring land, and subject further to all restrictions and regulations
concerning the drilling for, and production of, oil, gas, minerals, petroleum and other hydrocarbon
substances specified in the Newport Beach City Charter or the Newport Beach Municipal Code.
2. TERM.
The term of this Lease shall commence on the Execution Date, but in no event prior to the Effective Date,
and shall expire on the date fifty (50) years following the Effective Date, unless earlier terminated as
provided in this Lease.
3. RENTAL.
A. Definitions. For the purposes of this Lease, the following terms shall be defined as
specified in this paragraph. In certain cases, the definition of the term contains operative
language that affects the rights of the parties:
(1) "Actual Sales Value" shall mean the total of all consideration paid for the
non-exempt transfer of this Lease or the Pre-existing Lease, including the improvements
on the Leased Land, from the Current Lessee, or Subsequent Lessee, to another person,
excluding any consideration paid for the transfer of personal property in connection with
such transaction.
(2) "Average Actual Sales Value Rent" shall mean two and one-half percent (2.5 %)
of the mean of the Actual Sales Value of the non-exempt transfer of a similarly situated
(waterfront or interior) Beacon Bay parcels as specified in this subparagraph. Average
Actual Sales Value Rent shall be the mean of the Actual Sales Value of the three similarly
situated parcels most recently transferred. Exempt transfers, as defined in Paragraph
3.B(3), shall not be used to calculate Average Actual Sales Value rent.
(3) "CPI" shall mean the Consumer Price Index - Los Angeles -Anaheim -Riverside
Area, All Urban Consumers, All Items, published by the United States Department of
Labor, Bureau of Labor Statistics (1982-1984=100). If the 1982-1984 base of said
Consumer Price Index should hereafter be changed, then the new base shall be
converted to the 1982-1984 base and the base as so converted shall be used. In the
event that the Consumer Price Index, as now compiled and published, shall cease to be
published, then the successor index shall be used provided that an appropriate
conversion from the old index to the new index can feasibly be made. If such conversion
cannot be made, or if no such index is published, then another index most nearly
comparable thereto recognized as authoritative shall be substituted by agreement.
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(4) "Current Lessee" shall mean the person or persons who, as of April 1, 1994 (the
"Cut-off Date"), was or were the Lessee under the Pre-existing Lease.
(5) "Deferred Rent" shall mean the total rent that a Current Lessee would have paid
had this Lease been executed on the Effective Date, through and including the date on
which this Lease was first executed, less the rent actually paid pursuant to the Pre-
existing Lease, together with interest at the rate of eight percent (8%) per annum
calculated on the balance due at the end of each Lease Year or portion thereof.
(6) "Effective Date" shall mean July 1, 1994.
(7) "Execution Date" shall mean the date when this Lease is executed by Lessee.
(8) "Initial Rent" shall mean the effective net rent for the Leased Land as determined
by the appraisal of George Hamilton Jones, with due consideration to the leasehold
advantage created by the Pre-existing Lease, all as shown on Exhibit C attached hereto
and incorporated herein by reference.
(9) "Person" shall mean any natural person or natural person(s) and does not
include any corporation, association, or business entity in any form except a financial
institution or other bona fide lender acting in the capacity of a lender or an infer vivos or
living trust.
(10) "Pre-existing Lease" shall mean the Lease for the Leased Land which was
effective on January 1, 1988, and would, absent this Lease, expire on July 1, 2006.
(11) "Transferred" shall mean any sale, assignment, sublease or other transaction,
other than an exempt transfer as defined in Paragraph 3.B(3), pursuant to which the right
to possession of the premises and the right to sign a new lease identical to this Lease is
transferred to another person.
B. Rental Payments.
Lessee shall pay annual rent in the sum of FORTY-ONE THOUSAND TWO HUNDRED FIFTY
($41,250), payable at the rate of THREE THOUSAND FOUR HUNDRED THIRTY-SEVEN
DOLLARS and 50/100s ($3.437.50) per month. Lessee shall also pay, if applicable, deferred rent
in the sum of N/A upon execution of this Lease.
Rent shall be adjusted every seven (7) years after the date of transfer in accordance with the
provisions of Paragraph 3.B(4). Annual rent, deferred rent, and periodic adjustments are based
upon the following:
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(1) Execution Before Effective Date.
In the event this Lease is executed by the Lessee on or before the Effective Date, Rent
shall be paid as follows:
(a) Current Lessee: Current Lessee shall pay annual rent equal to Initial
Rent as specified in Exhibit C. Thereafter, so long as there has been no transfer
of this Lease by the Current Lessee (other than an exempt transfer as set forth in
Paragraph 3.6(3), rent shall remain as specified in this subparagraph
notwithstanding the provisions of Paragraph 3.B(4).
(b) In the event of any transfer of this Lease to a Subsequent Lessee, the
Subsequent Lessee shall pay annual rent equal to two and one-half percent
(2.5%) of the Actual Sales Value determined as of the date of the transfer in
accordance with the provisions of paragraph 3.A(1). Thereafter, rent shall be
adjusted every seven years after the date of the transfer in accordance with the
provisions of paragraph 3.13(4).
(c) In the event of any transfer of this Lease to a Subsequent Lessee in a
transaction other than an arm's length assignment of this Lease, and sale of the
improvements on the Leased Land, if any, such as a gift or transfer by inheritance
other than an exempt transfer under Paragraph 3.13(3), the Subsequent Lessee
shall pay annual rent equal to the Average Actual Sales Value Rent calculated as
of the date of the transfer in accordance with the provisions of Paragraph 3.A(2).
(2) Execution After the Effective Date.
In the event this Lease is first executed after the Effective Date, rent shall be determined
and paid as follows:
(a) Current Lessee/Within Five Years After Effective Date: In the event this
Lease is executed by the Current Lessee within five (5) years after the Effective
Date, the Current Lessee shall pay annual rent equal to Initial Rent plus a sum
calculated by multiplying the difference between Initial Rent and Average Actual
Sales Value Rent by a fraction equal to the number of months between the
Effective Date and Execution Date, divided by sixty. The Current Lessee shall
also pay all Deferred Rent concurrent with the execution of this Lease.
Thereafter, so long as there has been no transfer of this Lease by the Current
Lessee, rent shall remain as specified in this subparagraph, notwithstanding the
provisions of Paragraph 3.13(4).
(b) Current Lessee/More Than Five Years After Effective Date: In the event
this Lease is executed by the Current Lessee more than five (5) years after the
Effective Date, the Current Lessee shall pay annual rent equal to Average Actual
Sales Value Rent calculated as of the date of execution in accordance with the
provisions of Paragraph 3.A(2). The Current Lessee shall also pay all Deferred
Rent concurrent with the execution of this Lease. Thereafter, rent shall be
adjusted every seven (7) years after the date of execution in accordance with the
provisions of Paragraph 3.13(4).
(c) Subsequent Lessee: In the event the Current Lessee transfers the Pre-
existing Lease to a Subsequent Lessee who wishes to sign this Lease after the
Cut-off Date, the Subsequent Lessee shall pay annual rent equal to two and
one-half percent (2.5%) of Actual Sales Value determined as of the date of
execution and in accordance with Paragraph 3.A(1). The Subsequent Lessee
shall also pay all Deferred Rent concurrent with the execution of this Lease. The
annual rent shall be adjusted every seven (7) years following the Execution Date
in accordance with the provisions of Paragraph 3.B(4).
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(d) Subsequent Lessee: In the event of any transfer of this Lease to a
Subsequent Lessee who wished to sign this Lease after the Cut-off Date in a
transaction other than an arm's length assignment of this Lease, and sale of the
improvements on the Leased Land, if any, such as a gift or transfer by inheritance
other than an exempt transfer under Paragraph 3.B(3), the Subsequent Lessee
shall pay annual rent equal to the Average Actual Sales Value Rent calculated as
of the date of the transfer in accordance with the provisions of Paragraph 3.A(2).
The Subsequent Lessee shall also pay all Deferred Rent concurrent with the
execution of this Lease. The annual rent shall be adjusted every seven (7) years
following the Execution Date in accordance with the provisions of Paragraph
3.13(4).
(3) Exempt Transfers.
The provisions of Paragraph 3.6 regarding transfers shall not operate to increase rent if:
(a) Lessee is assigning an interest in this Lease to a trustee under a deed of
trust for the benefit of a lender;
(b) the transfer is caused by the death of a spouse and the full interest of the
deceased spouse is transferred to a surviving spouse;
(c) the transfer of an interest in this Lease is between or among tenants in
common or joint tenants in ownership of the leasehold estate created by this
Lease, and such tenants in common or joint tenants first acquired their respective
interests in this Lease simultaneously;
(d) the transfer or assignment is by a bona fide lender acquiring title by
foreclosure or deed in lieu of foreclosure of a trust deed; or
(e) the transfer is a sublease of the premises for three years or less;
provided, however, that in determining the term of a sublease, any options or
rights to renew or extend the sublease shall be considered part of the term
whether or not exercised;
(f) 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;
(g) the transfer is to an inter vivos trust, living trust or other similar estate
planning arrangement of Lessee; provided, however, that the provisions of
Paragraph 3.0 shall apply upon the death of such Lessee if the beneficiary of
such trust or other arrangement is other than the surviving spouse or a tenant in
common or joint tenant in ownership of the leasehold estate created by this
Lease, and such tenants in common or joint tenants first acquired their respective
interests in this Lease simultaneously; or
(h) the transfer is to a guardian or custodian of Lessee appointed due to the
physical or mental incapacity of Lessee; provided, however, that the provisions of
Paragraph 3.0 shall apply upon the death of such Lessee unless the transferee is
the surviving spouse or a tenant in common or joint tenant in ownership of the
leasehold estate created by this Lease, and such tenants in common or joint
tenants first acquired their respective interests in this Lease simultaneously.
(4) Rent Adjustments.
(a) Except as provided in Paragraphs 3.B(1)(a), 3.13(2)(a) and 3.B(3), on the
seventh (7th) anniversary of the Execution Date of this Lease, or the seventh
(7th) anniversary of the date of any transfer of this Lease by any Current or
Subsequent Lessee, rent shall be adjusted to reflect any increase or decrease in
the cost of living, which adjustment shall be determined as set forth hereinafter.
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The most recently published CPI figure shall be determined as of the date ninety
(90) days prior to the adjustment date, and rent payable during the ensuing seven
(7) year period shall be determined by increasing or decreasing the then current
rent by a percentage equal to the percentage increase or decrease, if any, in the
CPI as of the Execution Date, or the date of the most recent rental adjustment, or
the date of any transfer of this Lease by any Current or Subsequent Lessee,
whichever is later. In no event shall rent be increased or decreased by a sum
greater than forty percent (40%) of the rent paid by Lessee as of the later of (i)
the Execution Date, or (ii) the last rental adjustment date. Lessor shall endeavor
to notify Lessee of rental adjustments at least forty-five (45) days prior to the end
of each seventh (7th) lease year; provided, however, failure of Lessor to give
forty-five (45) days' notice does not relieve Lessee from the obligation to pay
increased rent or the right to pay less rent in the event of a decrease in the CPI;
and, provided further, that Lessee shall have no obligation to pay rent increases
which apply to any period greater than ninety (90) days prior to the receipt by
Lessee of Lessor's notice of an increase in rent.
(b) In the event Lessee is two or more persons owning the leasehold estate
created hereby as tenants in common or joint tenants, and less than all of such
persons transfer their interest in this Lease to a person other than to an existing
tenant in common or joint tenant, the rent adjustment shall be prorated to reflect
the percentage interest being transferred to a third party. For example, if two
persons are the Lessee as tenants in common as to equal one-half interests, and
one of such persons transfers his/her 50% interest to a third party, the rent shall
be adjusted as provided in Paragraph 3.13(2)(c), and thereafter as provided in
Paragraph 3.13(4)(a), and the resultant rental increase multiplied by the
percentage transferred (50%) to determine the rental increase; provided,
however, that any subsequent transfer of an interest in this Lease to such third
party shall not be exempt under subparagraph 3.6(3).
(5) Installment Payments/Grace Period.
Lessee shall pay rent in equal monthly installments, in advance, with payment due on or
before the first day of the month for which rent is paid. Rent shall be prorated during any
month when a transaction which increases rent becomes effective other than the first day
of that month. No late payment charge applies to payments received by Lessor on or
before 5:00 P.M. on the fifteenth (15th) day of the month for which the payment is made
("Grace Period") . If a rent payment, or any portion thereof, is received by Lessor after
expiration of the Grace Period, Lessee shall pay Lessor a late payment charge equal to
four percent (4%) of each late payment, or portion thereof. Rent payments shall be
payable to the City of Newport Beach and sent, or delivered, to the Finance Director at the
address specified for service of notices. Rent shall be payable by Lessee to Lessor in
such coin or currency to the United States as at the time of payment is legal tender for
public and private debts. Lessor and Lessee agree that late charges specified in this
paragraph represent a fair and reasonable estimate of the cost Lessor will incur by reason
of any late payment by Lessee. Any late or missed payment of rent constitutes a default
pursuant to paragraph 13 of this Lease. Any failure by Lessor to declare a default and
initiate termination of this Lease due to a late or missed payment shall not be considered
a waiver of the right of Lessor to do so for that or any other late or missed payment.
C. Credit to Tidelands Fund. In calculating Initial Rent under this Lease, a credit was given
to certain of the Current Lessees equal to the annual amortization of the present value of the
additional property tax to be paid by such lessees during the remaining period of the Pre-existing
Lease. This credit, commonly referred to as the "tax advantage", is shown on Exhibit D for each
affected lot. This credit was extended by Lessor to Current Lessees as consideration for entering
into this Lease. As a consideration in its approval of this Lease, the California State Lands
Commission required Lessor to credit its State supervised Tidelands Trust Fund by an amount
equivalent to the tax advantage derived from those lots in Beacon Bay comprising tidelands. This
amount is shown on Exhibit D for each affected lot comprising tidelands. Accordingly, Lessor
has unilaterally agreed to annually calculate the amount of such tax advantage derived from the
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tidelands parcels in Beacon Bay and to credit an equivalent amount as revenue to the State
supervised Tidelands Trust Fund. This provision is included in this Lease to acknowledge the
agreement of Lessor with the California State Lands Commission, and does not affect the rights
and obligations of Lessor or Lessee under this Lease.
4. TRANSFERS.
A. Conditions Precedent to Transfer. Lessee may transfer this Lease subject to the prior
written consent of Lessor, which consent shall not be unreasonably withheld, delayed or
conditioned. Lessor shall consent to any transfer when Lessee and the proposed transferee have
complied with the following:
(1) Lessee shall furnish Lessor with executed copies of each and every document
used to effect the transfer.
(2) Lessee or the proposed transferee shall pay to Lessor a transfer fee of one
hundred dollars ($100.00);
(3) Lessee shall execute a "Termination of Leasehold Interest" for recordation; and
(4) The proposed transferee shall execute a new lease and execute a "Memorandum
of Lease" for recordation, which lease shall be identical to this Lease and have a term
equal to the remaining term of this Lease at the time of the transfer.
B. Transfer Information. The parties to any non-exempt transfer of this Lease shall provide
Lessor with all information relevant to a determination of the total consideration paid for the
transfer, as well as all documents which are relevant to the total consideration paid for the
transfer. Lessee and the proposed transferee shall provide this information not later than forty-
five (45) days prior to the proposed effective date of the transfer of this Lease. Lessor shall have
the right, at its sole discretion, to commission an appraisal of the fair market value of this Lease
and improvements thereon as of the date of transfer. Any such appraisal shall be completed not
later than thirty (30) days after receipt by Lessor of the aforementioned information from the
Lessee. If the value determined by the appraiser commissioned by Lessor exceeds the stated
total consideration to be paid based on the information received from the Lessee by more than ten
percent (10%), Lessor shall so notify the Lessee and provide Lessee with a full copy of such
appraisal report, and said value shall be deemed the Actual Sales Value for purposes of
calculating Average Actual Sales Value Rent and rental payments unless within fifteen (15) days
after receiving such notice and the report the Lessee notifies Lessor that Lessee elects to cause
an appraisal of the fair market value of this Lease and improvements thereon as of the date of
transfer to be conducted by an independent appraiser. In such event, Lessee cause such
appraisal to be completed no later than thirty (30) days after the notice to Lessor and shall provide
Lessor with a full copy of the appraisal upon completion. The Actual Sales Value for purposes of
calculating Average Actual Sales Value Rent and rental payments shall be the greater of (i) the
stated consideration for the transfer, or (ii) the average of the two appraisals. Any appraisal
commissioned by Lessor or Lessee under this Paragraph 4.13 shall be conducted by an MAI
appraiser licensed to conduct business in the State of California and experienced in residential
appraisals in Southern California.
C. Exempt Transfer Information. Lessor's consent is not required for the "exempt
transfers" referenced in Paragraph 3.B(3); provided, however, Lessee shall furnish Lessor with
copies of all documents used to effect any exempt transfer.
D. Audit of Subleases. It is the intent of the parties that transfers referred to in Section
3.13(3)(e) shall only be exempt from the further provisions of Paragraph 3.6 (in respect of rental
adjustments) if such subleases are not substantially equivalent to, do not have substantially the
same economic effect as, or are intended to disguise, a transfer by the then Lessee of all or
substantially all of his/her interest in this Lease to the putative sublessee. Lessor shall at all times
have the right, upon written request to the Lessee, to receive copies of all written agreements, and
to be advised in full of all oral agreements, between the Lessee and any sublessee of the Leased
Land. Any purported sublease of the premises which is determined to be substantially equivalent
to, or have substantially the same economic effect as, or is intended to disguise, a transfer by the
then Lessee of all or substantially all of his/her interest in this Lease to the putative sublessee
shall be void and of no force or effect, and such attempted or purported sublease shall, at the
option of Lessor, (i) be an event of default by the Lessee under this Lease, or (ii) permit Lessor to
treat such sublease as a transfer of this Lease subject to the provisions of Section 3.B.
5. ENCUMBRANCES.
A. Right to Encumber. Lessee may encumber this Lease by deed of trust, mortgage, or
similar instrument, in favor of any bona fide lender ("Lender") in a bona fide loan transaction for
any purpose without the consent of Lessor. To determine whether a loan is a bona fide lending
transaction, and not an arrangement for transfer of the possession or title to the Premises to the
putative lender, Lessee and the lender agree to provide Lessor with all documentation executed
between Lessee and the lender concerning the loan upon request of Lessor. Neither Lessee nor
Lessor shall have the power to encumber Lessor's interest in the Leased Land. Any
encumbrance shall be subject to all covenants, conditions and restrictions in this Lease and to all
rights and interests of Lessor except as otherwise expressly provided in this Lease. Lessee shall
give Lessor prior written notice of any encumbrance.
B. Notice to Lender. Lessor shall have no obligation to give any Lender any written notice
pursuant to this Lease unless the Lender has given Lessor written notice of its name, address,
and nature of encumbrance ("Complying Lender") . Lessor shall give all Complying Lenders a
copy of any written notice of default, notice of termination or other notice which may affect
Lessee's rights under this Lease. Notice shall be deemed given by Lessor to Lender five (5) days
following deposit in the United States mail, certified and return receipt requested, postage prepaid,
and sent to Lender at the address furnished in writing by Lender.
C. Modification. Lessor and Lessee agree that they will not modify, surrender or cancel this
Lease by mutual agreement without the prior written consent of Lender.
D. Rights of Lender. Any Lender holding or the beneficiary of a security interest or lien on
this Lease and the leasehold estate created hereby shall have the right, during the term of the
Lease, to:
(1) perform any act required of Lessee pursuant to this Lease;
(2) transfer this Lease to the purchaser at any foreclosure sale, the assignee in the
event of an assignment in lieu of foreclosure, or to acquire the interest of Lessee pursuant
to foreclosure or assignment and thereafter transfer this Lease to the Lender's successor.
Lender shall have no right to transfer this Lease unless and until Lender has cured all defaults
requiring the payment or expenditure of money by Lessee.
E. Right of Lender to Cure Default. Lessor shall give written notice of any default or
breach of this Lease by Lessee to Lender and afford Lender the opportunity, after notice, to:
(1) cure the breach or default within ten (10) days after expiration of the time period
granted to Lessee for curing the default if the default can be cured by payment of money;
(2) cure the breach or default within thirty (30) days after expiration of the time period
granted to Lessee for curing the default when the breach or default can be cured within
that period of time; or
(3) cure the breach or default in a reasonable time when something other than
money is required to cure the breach or default and cannot be performed within thirty (30)
days after expiration of the time period granted to Lessee for curing the default, provided
the acts necessary to cure the breach are commenced within thirty (30) days and
thereafter diligently pursued to completion by Lender.
F. Foreclosure in Lieu of Cure. Lender may forestall termination of this Lease for a default
or breach by Lessee by commencing foreclosure proceedings subject to strict compliance with the
following:
(1) proceedings are commenced within thirty (30) days after the later of (i) expiration
of the time period granted to Lessee for curing the default, or (ii) service on Lender of the
notice describing the breach or default;
(2) the proceedings are diligently pursued to completion in the manner authorized by
law; and
(3) Lender performs all of the terms, covenants and conditions of this Lease
requiring the payment or expenditure of money by Lessee until the proceedings are
complete or are discharged by redemption, satisfaction, payment or conveyance of this
Lease -to Lender.
G. New Lease. Notwithstanding any other provision of this Lease, should this Lease
terminate or be terminated because of any default or breach by Lessee, Lessor shall enter into a
new lease with Lender as lessee provided:
(1) the written request for the new lease is served on Lessor by Lender within thirty
(30) days after the termination of this Lease.
(2) the new lease contains the same terms and conditions as this Lease except for
those which have already been fulfilled or are no longer applicable.
(3) on execution of the new lease by Lessor, Lender shall pay any and all sums that
would be due upon execution of the new lease, but for its termination, and shall fully
remedy, or agree in writing to remedy, any other default or breach committed by Lessee
that can reasonably be remedied by Lender.
(4) Lender shall, upon execution of the new lease, pay all reasonable costs and
expenses (including attorney's fees) incurred in terminating this Lease, recovering
possession of the premises from Lessee, in preparing the new lease.
H. Miscellaneous. The following provisions shall apply to Lessor, Lessee and any Lender:
(1) Any Lender shall be liable to perform the obligations of the Lessee under this
Lease only so long as the Lender holds title to this Lease;
(2) Lessee shall, within ten (10) days after the recordation of any trust deed or other
security instrument, record, at Lessee's sole expense, Lessor's written request for a copy
of any notice of default and/or notice of sale under any deed of trust as provided by state
law.
6. USE AND MAINTENANCE.
A. Use of Leased Land. The Leased Land shall be solely for residential purposes. Lessee
may demolish, construct, remodel, reconstruct and maintain structures on the Leased Land for
residential purposes so long as the structures and construction are authorized by appropriate City
permit and fully comply with all City ordinances, resolutions, regulations, policies, and plans.
Lessee shall also obtain permission to construct and/or maintain structures from the California
Coastal Commission and any other state agency if required by law.
B. Maintenance of Improvements. Lessor shall not be required to make any changes,
alterations, additions, improvements, or repairs in on or about all or part of the Premises. Lessee
shall, at all times during the term of this Lease and without any cost or expense to Lessor, keep
and maintain, the Premises, including, without limitation, all structures, facilities, walks, curbs,
parkways and other improvements, in good order and repair and in a clean, safe, sanitary and
orderly condition. Lessee shall repair or reconstruct any improvements on the Leased Land
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following any damage or destruction thereof, unless the improvements are being destroyed in
conjunction with remodeling or reconstruction and Lessor has consented, in writing, to the
damage or destruction. Lessee shall cause to be constructed, maintained and repaired all utilities,
pipes, walls, sewers, drains, and other improvements on the Premises to the extent required by
law or as necessary to maintain the improvement in good order and repair and safe and sanitary
condition.
C. Compliance with Laws. Lessee shall make, or cause to be made, any additions,
alterations or repairs to any structure or improvement on the Premises which may be required by,
and Lessee shall otherwise observe and comply with, any law, statute, ordinance, plan, resolution
or policy applicable to the Premises. Lessee shall indemnify, defend and hold Lessor harmless
from and against any loss, liability, action, claim or damage, arising out of, or in any way related,
to Lessee's failure to comply with, and perform pursuant to, provisions of this subparagraph C. All
repairs, additions, and alterations to the structures or improvements on the Premises shall
conform to all applicable laws, ordinances, regulations, plans, policies and resolutions and all
work shall be performed with reasonable diligence, completed within a reasonable time, and
performed at the sole cost and expense of Lessee.
D. As Is Condition of Premises. Lessee expressly accepts the Premises "as is" and
acknowledges that Lessor has made no representations or warranties as to the suitability of the
property or any construction or improvement. Lessee shall conduct all tests necessary to
determine the suitability of the property for any proposed construction or improvement, including,
without limitation, the amount and extent of any fill, and related factors. Lessee expressly
acknowledges that Lessor shall not be liable for any damage or loss resulting from any
subsurface or soil condition in, on, or under the Premises or adjacent property. Lessee expressly
acknowledges that, while the legislature of the State of California has purportedly removed the
public trust restrictions on use of the Property pursuant to the Beacon Bay Bill, the Leased Land
may constitute filled tidelands, and Lessor has made no representation or warranty relative to the
validity of the Beacon Bay Bill or the power of the legislature of the State of California to remove
public trust restrictions on tidelands through legislation. Notwithstanding the foregoing, in the
event of any challenge to the right and power of Lessor to lease the Leased Land for the purposes
provided in this Lease, Lessor agrees, at its sole cost and expense, to use all reasonable efforts
to resist and defend against such challenge and to seek a ruling or judgment affirming and
upholding the right and power of Lessor to lease the Leased Land for the purposes provided in
this Lease.
7. TAXES AND UTILITIES.
It is understood by Lessor and Lessee that this Lease shall give rise to a possessory interest tax obligation
and that the execution of this Lease will constitute a reassessment event which may give rise to a material
increase in the possessory interest tax currently payable by Lessee under the Pre-existing Lease. Lessee
shall pay, before delinquent, all utility charges and any general and special taxes, assessments or other
governmental charges, if any, which may be levied on the Leased Land, and/or any improvements,
including, without limitation, any possessory interest tax. Any lien for unpaid utilities, taxes, assessments
or charges shall not attach to the leasehold interest but only to improvements located on the Leased Land.
USE AND MAINTENANCE OF COMMON AREA.
Lessee shall have the right to use the streets, beaches, walkways, tennis courts, docks, piers, and
common landscaped areas in Beacon Bay (as depicted on Exhibit A) and which are leased to the Beacon
Bay Community Association by Lessor in consideration of the maintenance thereof by such Association
and rent to be paid by individual Lessees under their respective leases.
9. MAINTENANCE AND IMPROVEMENT OF INFRASTRUCTURE.
Lessor has no obligation to install, improve, repair, or maintain streets, curbs, gutters, water lines, sewer
lines, drainage facilities, street lighting or other facilities used by the residents of Beacon Bay
(Infrastructure). Notwithstanding Section 8 above, Lessor reserves the right, after a five (5) year period
following the Effective Date and upon approval by the Lessees representing a majority of the lots in
Beacon Bay, to improve and maintain streets, curbs, gutters, water lines, sewer lines', drainage facilities,
10
street lighting, telephone and electricity lines and other Infrastructure facilities in Beacon Bay at its initial
cost and to assess Lessee for a pro rata share of such costs, and to collect such costs from Lessee in the
form of rent over the remaining term of this Lease.
10. COMMUNITY ASSOCIATION.
A. Membership in Association. As a material part of the consideration of this Lease, and
as an express condition to the continuance of any of the rights of Lessee pursuant to this
Agreement, Lessee agrees to become, and during the term of this Lease to remain, a member in
good standing of the Beacon Bay Community Association.
B. Compliance with Rules and Regulations. Lessee agrees to abide by the Articles of
Incorporation, bylaws, and all rules and regulations of the Association, and to pay to the
Association, before delinquency, all valid dues, fees, assessments and other charges properly
levied or assessed by the Association. Lessee's failure to comply with the provisions of Paragraph
A and this Paragraph B shall constitute a material breach of this Lease.
C. Lessor Maintenance of Common Areas. In addition to the rights reserved to Lessor
pursuant to the provisions of Section 9, if the Community Association fails or ceases to maintain
community facilities, Lessor may, at its option and without obligation, assume the obligations of
the Community Association to maintain, repair, install or improve community facilities. In such
event, Lessee shall pay a pro rata share of Lessor's reasonable expenses in maintaining and
operating the community facilities, including a reasonable management fee or the fee charged by
a management agent. Lessee's pro rata share shall be determined by dividing Lessor's costs by
the number of residential lots within Beacon Bay (currently seventy-two lots) . Lessee's pro rata
share of the annual costs incurred by Lessor shall be paid within thirty (30) days after written
notice of the amount due, and any failure to pay shall constitute a material breach of this Lease.
The costs of maintaining and operating community facilities shall be determined annually and
solely from the financial records of Lessor.
11. COVENANTS, CONDITIONS AND RESTRICTIONS.
Lessee agrees to abide and be bound by all covenants, conditions, restrictions and reservations as
contained in Exhibit E attached hereto and incorporated herein by this reference. Said covenants,
conditions and restrictions shall run with the Leased Land and shall be binding on Lessee and Lessee's
successors in interest.
12. INDEMNIFICATION.
Lessee shall indemnify, defend and hold harmless Lessor, its City Council, Boards and Commissions,
officers, agents, servants and employees from and against any and all actions, causes of action,
obligations, costs, damages, losses, claims, liabilities and demands of any nature whatsoever, including
reasonable attorneys' fees, regardless of the merit or outcome of any such claim or suit, arising out of, or
in any way related, to the condition of the Premises, or the use or possession of the Premises by Lessee,
or Lessee's employees, agents, representatives, guests or invitees, as well as any activity, work or things
which may be permitted or suffered by Lessee in or on the Premises. Lessee shall indemnify, defend and
hold harmless Lessor, its City Council, Boards and Commissions, officers, agents, servants and
employees from and against any and all actions, causes of action, obligations, costs, damages, losses,
claims, liabilities, and demands of any nature whatsoever, including reasonable attorneys' fees, accruing
or resulting to any and all persons, firms or corporations furnishing or supplying work, services, materials,
equipment or supplies arising from or in any manner connected to the use or possession of the Premises
by Lessee or from any activity, work or things which may be permitted or suffered by Lessee in or about
the Premises. Without limiting the generality of the foregoing, Lessee hereby assumes all risk of damage
to property or injury to persons in or about the Premises from any cause except for damage or injury
resulting from the negligence or willful, fraudulent or criminal conduct by Lessor and/or its officers,
employees, agents and representatives, and Lessee hereby waives all claims in respect thereof against
Lessor.
13. INSURANCE.
11
A. General Conditions. All insurance required to be carried pursuant to this Section 13
shall be obtained from reputable carriers licensed to conduct business in the State of California.
Each policy required to be carried pursuant to this Section 13 shall name Lessee and Lessor as
additional named insureds, and shall provide that the policy may not be surrendered, cancelled or
terminated, or coverage reduced, without not less than twenty (20) days prior written notice to
Lessor.
B. Fire Insurance. Lessee shall, during the term of this Lease, insure all structures and
improvements on the Leased Land against loss or damage by fire or other risk for residential
structures. The insurance shall provide coverage to at least ninety percent (90%) of the full
insurable replacement value of all improvements on the Leased Land, with the loss payable to
Lessee unless this Lease is terminated by Lessor for default of Lessee in which case the
proceeds of insurance shall be paid to Lessor.
C. Liability Insurance. Lessee shall, at Lessee's sole cost and expense, procure and
maintain during the term of this Lease, a broad form comprehensive coverage policy of public
liability insurance which insures Lessee and Lessor against any loss or liability caused by, or in
any way related to, the condition, for Lessee's use and occupation, of the premises in amounts not
less than:
(1) $500,000 per occurrence for injury to, or death of, one person;
(2) $100,000 for damage to or destruction of property.
14. DEFAULT.
A. Events of Default. The occurrence of any one or more of the following events shall
constitute a material default and breach of this Lease by Lessee:
(1) the abandonment of the Premises by Lessee;
(2) the failure by Lessee to make any payment of rent when due if the failure
continues for three (3) days after written notice has been given to Lessee. In the event
that Lessor serves Lessee with a Notice to Pay Rent or Quit pursuant to applicable
unlawful detainer statutes, such Notice to Pay Rent or Quit shall also constitute the notice
required by this paragraph;
(3) the failure by Lessee to perform any of the provisions of this Lease and any
Exhibits attached hereto to be performed by Lessee, other than described in Paragraph
14.A(2) above, if the failure to perform continues for a period of thirty (30) days after
written notice thereof has been given to Lessee. If the nature of Lessee's default is such
that more than thirty (30) days are reasonably required for its cure, then Lessee shall not
be in default if Lessee commences the cure within said thirty (30) day period and
thereafter diligently prosecutes the cure to completion; or
(4) the failure of Lessee to provide Lessor with all relevant information regarding the
total consideration paid in conjunction with any transfer of this Lease;
(5) the making by Lessee of any general assignment, or general arrangement for the
benefit of creditors; the filing by or against Lessee of a petition to have Lessee adjudged a
bankrupt or a petition for reorganization or arrangement of any law relating to bankruptcy
unless the same is dismissed within sixty (60) days; 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 the Lease, where possession is not restored to Lessee within
thirty (30) days; or the attachment, execution or other judicial seizure of substantially all of
Lessee's assets located at the Premises or of Lessee's interest in the Lease, where such
seizure is not discharged within thirty (30) days.
Notices given under this Paragraph 14.A shall specify the alleged default and the applicable lease
provisions, and shall demand that Lessee perform the provisions of this Lease or pay the rent that
12
is in arrears, as the case may be, within the applicable period of time. No such notice shall be
deemed a forfeiture or a termination of this Lease unless Lessor so elects in the Notice.
B. Landlord's Remedies. In the event of any default by Lessee as defined in Paragraph
14.A, Lessor may, in addition to any rights or remedies permitted by law, do the following:
(1) Terminate Lessee's right to possession of the Leased Premises by any lawful
means, in which case this Lease shall terminate and Lessee shall immediately surrender
possession of the Premises to Lessor. In such event, 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, without limitation, the
following:
(a) The worth at the time of award of the amount by which the unpaid rent
and additional rent for the balance of the term after the time of award exceeds the
amount of the loss than Lessee proves could be reasonably avoided; and
(b) any other amount necessary to compensate Lessor for all detriment
proximately caused by Lessee's failure to perform obligations pursuant to this
Lease or which in the ordinary course of things would be likely to result from the
breach, including, without limitation, the cost of recovering possession, expenses
of reletting (including necessary repair, renovation and alteration) reasonable
attorneys' fees, and any other reasonable costs.
The "worth at the time of award" of all rental amounts other than that referred to in clause
(i) above shall be computed by allowing interest at the rate of ten percent (10%) per
annum from the date amounts accrue to Lessor. The worth at the time of award of the
amount referred to in clause (i) shall be computed by discounting such amount at one
percentage point above the discount rate of the Federal Reserve Bank of San Francisco
at the time of award.
(2) Without terminating or affecting the forfeiture of this Lease or, in the absence of
express written notice of Lessor's election to do so, relieving Lessee of any obligation
pursuant to this Lease, Lessor may, but need not, relet all or a portion of the Premises at
any time, or from time to time, and on such terms and conditions as Lessor, at its sole
discretion, deems appropriate. Whether or not the Premises are relet, Lessee shall pay all
amounts required by this Lease up to the date that Lessor terminates Lessee's right to
possession of the Premises. Lessee shall make such payments at the time specified in
the Lease and Lessor need not wait until termination of the Lease to recover sums due by
legal action. If Lessor relets all or a portion of the Premises, the reletting shall not relieve
Lessee of any obligation pursuant to this Lease; provided, however, Lessor shall apply the
rent or other proceeds actually collected by virtue of the reletting against amounts due
from Lessee. Lessor may execute any agreement reletting all or a portion of the leased
premises and Lessee shall have no right to collect any proceeds due Lessor by virtue of
any reletting. Lessor shall not, by any reentry or reletting or other act, be deemed to:
(a) Have accepted any surrender by Lessee of this
Lease or the leased premises;
(b) have terminated this Lease; or
(c) have relieved Lessee of any obligation pursuant to this Lease unless
Lessor has given Lessee express written notice of Lessor's election to do so.
(3) Lessor may terminate this Lease by express written notice to Lessee of its
election to do so. The termination shall not relieve Lessee of any obligation which has
accrued prior to the date of termination. In the event of termination, Lessor shall be
entitled to recover the amount specified in Paragraph 14.6(1).
13
C. Default By Lessor. Lessor shall not be in default unless Lessor fails to perform
obligations required of Lessor within a reasonable time, but in no event later than thirty (30) days
after written notice by Lessee to Lessor specifying wherein Lessor has failed to perform such
obligation. If the nature of Lessor's obligation is such that more than thirty (30) days are required
for performance, then Lessor shall not be in default if Lessor commences performance within
such thirty (30) day period and thereafter diligently prosecutes the same to completion.
D. Stay of Obligations. Neither party shall be under any obligation to perform or comply
with its obligations pursuant to this Lease after the date of any default by the other party.
E. Determination of Rental Value. In any action or unlawful detainer commenced by
Lessor, the reasonable rental value of the Leased Land shall be deemed to be the amount of rent
and additional rent (such as reimbursement for costs of Infrastructure improvements or the
payment of taxes or assessments) for the period of the unlawful detainer, unless Lessor/Lessee
shall prove to the contrary by competent evidence.
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 default by the other party.
Lessor's acceptance of any rent shall not be considered a waiver of any preexisting breach of
default by Lessee other than the failure to pay the particular rent accepted regardless of Lessor's
knowledge of the preexisting breach of default at the time rent is accepted.
G. Waiver of Right of Redemption. Lessee waives any right of redemption or relief from
forfeiture pursuant to Code of Civil Procedure Sections 1174 and 1179 and/or pursuant to any
existing or future statutory or decisional law in the event Lessee is evicted or Lessor takes
possession of the Premises by reason of Lessee's default.
15. SURRENDER OF POSSESSION UPON EXPIRATION OR TERMINATION.
A. Surrender of Premises. Upon the expiration or termination of this Lease, Lessee agrees
to peaceably deliver possession of, and agrees to vacate without contest, legal or otherwise, the
Leased Land. Lessor, at its sole discretion, may record a document evidencing the expiration or
termination of the leasehold interest. Lessee waives any right to receive relocation assistance or
similar form of payment.
B. Removal of Improvements. Upon the expiration of the term of this Lease, and on
condition that Lessee is not then in default of any of the provisions of this Lease, Lessee shall
have the right to remove from the Leased Land all buildings and improvements built or installed on
the Leased Land. Removal of any building or improvement shall be at the sole cost and expense
of Lessee and removal must be complete no later than ninety (90) days after expiration of the
term of this Lease. Lessee shall fill all excavations and remove all foundations, debris and other
parts of the buildings or improvements remaining after removal and surrender possession of the
Premises to Lessor in a clean and orderly condition. In the event any of the buildings and
improvements are not removed within the time provided in this Paragraph 15.13, they shall become
the property of Lessor without the payment of any consideration.
16. EMINENT DOMAIN.
A. Definitions of Terms.
(1) The term "total taking" as used in this Section 16 shall mean the taking of the
entire Premises under the power of eminent domain or the taking of so much of the
Leased Land as to prevent or substantially impair the use thereof by Lessee for the
residential purposes.
(2) The term "partial taking" shall mean the taking of a portion only of the Premises
which does not constitute a total taking as defined above.
14
(3) The term "taking" shall include a voluntary conveyance by Lessor to an agency,
authority or public utility under threat of a taking under the power of eminent domain in
lieu of formal proceedings.
(4) The term "date of taking" shall be the date upon which title to the Premises or
portion thereof passes to and vests in the condemnor.
B. Effect of Taking. If, during the term hereof, there shall be a total taking or partial taking
under the power of eminent domain, then the leasehold estate of the Lessee in and to the Leased
Land or the portion thereof taken shall cease and terminate as of the date of taking of said Leased
Land. If this Lease is so terminated in whole or in part, all rentals and other charges payable by
Lessee to Lessor hereunder and attributable to the Leased Land or portion thereof taken shall be
paid by Lessee up to the date of taking by the condemnor, and the parties shall thereupon be
released from all further liability in relation thereto.
C. Allocation of Award - Total Taking. All compensation and damages awarded for the
total taking of the Premises and Lessee's leasehold interest therein shall be allocated as follows:
(1) The Lessor shall be entitled to an amount equal to the sum of the following:
(a) The fair market value of the Premises as improved (exclusive of the
dwelling and appurtenances to such dwelling) as of the date of taking, discounted
by multiplying such fair market value by the factor for the present worth of one
dollar ($1.00) at nine percent (9%) per annum compound interest for the number
of years remaining from the date of taking to the date of the expiration of the term
of this Lease; and
(b) The present worth of rents due during the period from the date of taking
to the date of the expiration of the term of this Lease, computed by multiplying the
annual rent then payable by the factor for the present worth of one dollar ($1.00)
per annum at nine percent (9%) per annum compound interest (Inwood
Coefficient) for the number of years in such period.
(2) The Lessee shall be entitled to the amount remaining of the total award after
deducting therefrom the sums to be paid to Lessor as hereinafter provided.
D. Allocation of Award - Partial Taking. All compensation and damages awarded for the
taking of a portion of the Leased Premises shall be allocated and divided as follows:
(1) The Lessor shall be entitled to an amount equal to the sum of the following:
(a) The proportionate reduction of the fair market value of the Premises as
improved (exclusive of the dwelling and appurtenances to such dwelling) as of the
date of taking, discounted by multiplying such proportionate reduction in fair
market value by the factor for the present worth of one dollar ($1.00) at nine
percent (9%) per annum compound interest for the number of years remaining
from the date of taking to the date of expiration of the term of this Lease; and
(b) The present worth of the amount by which the rent is reduced computed
by multiplying the amount by which the annual rent is reduced by the factor for the
present worth of $1.00 per annum at 9% per annum compound interest (Inwood
Coefficient) for the number of years remaining from the date of taking to the date
of expiration of the term of this Lease.
(2) The Lessee shall be entitled to the amount remaining of the total award after
deducting therefrom the sums to be paid to Lessor as hereinabove provided.
E. Reduction of Rent on Partial Taking. In the event of a partial taking, the rent payable
by Lessee hereunder shall be adjusted from the date of taking to the date of the expiration of the
term of this Lease. Such rental adjustment will be made by reducing the basic rental payable by
15
Lessee in the ratio that the Fair Market Rental Value of the Premises at the date of taking bears to
the Fair Market Rental Value of the Premises immediately thereafter.
17. ATTORNEYS' FEES.
Should either party be required to employ counsel to enforce the terms, conditions and covenants of this
Lease, the prevailing party shall recover all reasonable attorneys' fees and charges (and court costs if
applicable) incurred therein, whether or not court proceedings were commenced.
18. REMEDIES CUMULATIVE.
The rights, powers, elections and remedies of the Lessor or Lessee contained in this Lease shall be
construed as cumulative and no one of them shall be considered exclusive of the other or exclusive of any
rights or remedies allowed by law, and the exercise of one or more rights, powers, elections or remedies
shall not impair or be deemed a waiver of Lessor's or Lessee's rights to exercise any other.
19. NO WAIVER.
No delay or omission of either party to exercise any right or power arising from any omission, neglect or
default of the other party shall impair any such right or power or shall be construed as a waiver of any
such omission, neglect or default on the part of the other party or any acquiescence therein.
No waiver of any breach of any of the terms, covenants, agreements, restrictions or conditions of this
Lease shall be construed as a waiver of any succeeding breach of the same or of any of the terms,
covenants, agreements, restrictions or conditions of this Lease.
20. COMPLIANCE WITH LAWS.
Lessee covenants and agrees to comply with all rules, regulations, statutes, ordinances and laws of the
State of California, County of Orange, City of Newport Beach, or any other governmental body or agency
having lawful jurisdiction over the Leased Land.
21. NOTICES.
Any notice or notices provided for by this Lease or by law, to be given or served by Lessee, may be given
or served by mail, registered or certified, with postage prepaid, on the City of Newport Beach, addressed
to the Mayor, City Manager, or City Clerk, 3300 Newport Boulevard, P.O. Box 1768, Newport Beach,
California 92659-1768, or at such other address as may be hereafter furnished to Lessee in writing. If
notice is intended to be served by Lessor on Lessee, it may be served either:
A. By delivering a copy to the Lessee personally; or
B. By depositing the Notice in the United States Mail, registered or certified, with postage
prepaid, to the residence or business address furnished by Lessee; or
C. If the Lessee is absent from the Leased Land by leaving a copy with some person of
suitable age and discretion who may be occupying the Leased Land; or
D. If no one can be found, then by affixing a copy of the notice in a conspicuous place on the
Premises and also sending a copy through the mail addressed to the Lessee.
Such service upon Lessor or Lessee shall be deemed complete upon the earlier of (i) actual delivery, or
(ii) the expiration of seventy-two (72) hours from and after the deposit in the United States mail of such
notice, demand or communication.
22. HOLDING OVER.
This Lease shall terminate and become null and void without further notice upon the expiration of the term
of this Lease. Any holding over by Lessee after expiration of the term shall not constitute a renewal of this
16
Lease or give Lessee any rights in or to the Premises except as expressly provided in this Section. The
parties agree this Lease cannot be renewed, extended, or in any manner modified except in a writing
signed by all parties. However, if Lessee, or anyone claiming under Lessee, shall remain in possession of
the Premises after expiration of the term of this Lease without any agreement in writing between the
parties and Lessor accepts rent from Lessee, then Lessee shall be deemed a tenant from month-to-month
subject to the provisions of this Lease insofar as they may be applicable to a month-to-month tendency.
The month-to-month tendency may be terminated by Lessor or Lessor upon thirty (30) days' prior written
notice to the other.
23. QUIET ENJOYMENT.
Lessor covenants and agrees that Lessee, upon paying the rent set forth herein and observing and
keeping all covenants and agreements to be observed or kept by Lessor hereunder, shall quietly have and
enjoy the Leased Land during the term of this Lease without hindrance or molestation by anyone claiming
by or through Lessor.
24. SEVERABILITY.
If any term or provision of this Lease shall, to any extent 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.
25. MISCELLANEOUS.
A. Representations. Lessee agrees that no representations as to the Premises have been
made by Lessor or by any person or agent acting for Lessor. Lessor and Lessee agrees and
acknowledges that this document contains the entire agreement of the parties, that there are no
verbal agreements" representations, warranties or other understandings affecting this agreement,
and Lessor and Lessee, as a material part of the consideration of this Lease, waives all claims
against the other for recision, damages, or otherwise by reason of any alleged covenant,
agreement or understanding not contained in this Lease.
B. Inurement. Each and all of the covenants, conditions and agreements herein contained
shall,' in accordance with the context, inure to the benefit of Lessor and Lessee and apply to and
bind Lessor and Lessee, as the case may be, their respective heirs, legatees, devisees, executors
and administrators, successors, assigns, licensees, permittees, or any person who may come into
possession or occupancy of said Leased Land or any part thereof in any manner whatsoever.
Nothing in this paragraph shall in any way alter the provisions herein contained against
assignment or subletting.
C. Joint Several Liability. If Lessee consists of more than one person, the covenants,
obligations and liabilities of Lessee pursuant to this Lease shall be the joint and several
covenants, obligations and liabilities of such persons.
D. Captions. The section and paragraph captions used in this Lease are for the
convenience of the parties and shall not be considered in the construction or interpretation of any
provision.
E. Gender. In this Lease, the masculine gender includes the feminine and neuter and the
singular number includes the plural whenever the context so requires.
17
IN WITNESS WHEREOF, the parties have caused this Lease to be executed as of the date first
above written.
LESSOR:
CITY OF NEWPORT BEACH,
By:
Title: VTY MANAGER
ATTEST:
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CITY CLERK c�
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EXHIBIT B
Beacon Bay Lot 66 described as follows:
Lot 66 of the eastside addition to Beacon Bay recorded on Official Maps,
Book 2, Page 30 in the Office of the County Recorder, County of Orange, State
of California, sometimes referred to as Beacon Bay Lot 66.
Exhibit B
SUNIIvIARY OF SALIENT FACTS AND CONCLUSIONS - continued
SUMMARY OF VALUE INDICATIONS:
Existing
(lstyear)
Unencumbered,
Fair Market
Contract
Effective
Lot No.
Fee Lot Value
Rental Value
Rent
Net Rent
Water Front Lots
A
$1,330,000
$48,520
$23,125.08
$31,940.00
B
$1,200,000
$43,320
$12,506.85
$22,270.00
C
$1,031,000
$37,560
$16,625.04
$22,480.00
1
$947,000
$34,200
$8,020.80
$15,030.00
2
$1,131,000
$41,640
$8,825.40
$17,950.00
3
$1,263,000
$46,920
$24,250.08
$31,560.00
4
$1,318,000
$49,120
$10,458.96
$21,260.00
5
$1,341,000
$50,120
$20,012.04
$28,840.00
6
$1,386,000
$51,680
$25,000.00
$34,260.00
7
$1,210,000
$44,800
$24,999.96
$31,870.00
8
$1,177,000
$43,480
$43,750.00
$43,480.00
9
$1,298,000
$47,840
$42,500.04
$44,350.00
10
$1,342,000
$49,600
$24,999.96
$33,540.00
11
$1,122,000
$41,280
$9,020.52
$17,020.00
12
$1,100,000
$40,400
$14,250.00
$22,190.00
13
$1,100,000
$40,400
$23,625.00
$29,450.00
14
$1,243,000
$45,640
$10,312.56
$19,690.00
�15
$1,265,000
$46,520
$10,836.47
$20,240.00
16
$1,067,000
$39,080
$8,508.48
$16,480.00
17
$1,067,000
$39,080
$16,250.04
$21,750.00
18
$1,067,000
$39,080
$8,508.48
$16,480.00
19
$1,243,000
$45,640
$10,020.02
$19,500.00
20
$1,147,000
$42,320
$8,727.84
$17,910.00
21
$1,058,000
$38,760
$20,224.50
$26,660.00
22
$1,036,000
$37,880
$41,250.00
$37,880.00
ES 1
$1,037,000
$37,880
$28,749.96
$31,920.00
ES 2
$1,037,000
$37,880
$24,625.00
$29,220.00
Subtotals:
$31,563,000
$1,160,640
$519,983.08
$705,220.00
Exhibit C - Page 1
SUMMARY OF SALIENT FACTS AND CONCLUSIONS - continued
Existing (Istyear)
Unencumbered Fair Market Contract Effective
Lot No. Fee Lot Value Rental Value Rent Net Rent
Interior Lots
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
ss
$478,000
$14,487
$2,782.32
$6,297.00
$501,000
$15,237
$6,125.04
$8,897.00
$509,000
$15,537
$3,399.12
$6,977.00
$511,000
$15,612
$3,417.72
$6,942.00
$519,000
$15,912
$3,436.44
$7,102.00
$542,000
$16,775
$4,137.72
$7,785.00
$518,000
$15,650
$15,375.00
$15,470.00
$510,000
$15,462
$3,551.16
$7,102.00
$517,000
$15,725
$8,750.00
$10,515.00
$520,000
$15,837
$3,588.48
$7,217.00
$528,000
$16,137
$3,607.08
$7,307.00
$589,000
$18,200
$4,454.64
$8,490.00
$559,000
$17,000
$3,776.28
$7,780.00
$548,000
$16,662
$3,795.00
$7,672.00
$517,000
$15,725
$14,625.00
$15,005.00
$520,000
$15,837
$3,780.36
$7,967.00
$528,000
$16,137
$9,125.04
$11,557.00
$588,000
$18,162
$11,133.60
$13,572.00
$513,000
$15,500
$3,719.64
$7,300.00
$548,000
$16,662
$3,795.00
$7,672.00
$556,000
$16,96,2
$11,250.00
$13,232.00
$558,000
$17,037
$3,832.20
$7,787.00
$565,000
$17,300
$4,056.84
$7,990.00
$588,000
$18,162
$4,454.64
$8,492.00
$539,000
$16,475
$3,459.36
$7,365.00
$551,000
$16,775
$6,249.96
$9,305.00
$520,000
$15,837
$3,551.16
$7,197.00
$523,000
$15,950
$3,569.76
$7,240.00
$520,000
$15,837
$3,780.36
$7,857.00
$528,000
$16,137
$12,750.00
$13,927.00
$588,000
$18,162
$4,479.00
$8,492.00
$530,000
$15,987
$3,344.88
$7,227.00
$559,000
$17,075
$10,625.04
$12,865.00
$567,000
$17,375
$3,603.96
$7,915.00
$546,000
$16,737
$3,551.16
$7,427.00
$528,000
$16,137
$6,750.00
$10,007.00
$525,000
$16,025
$10,125.00
$12,175.00
$533,000
$16,325
$3,533.88
$7,315.00
Exhibit C - Page 2
SUMMARY OF SALIENT FACTS AND CONCLUSIONS - continued
Subtotal W.F.: $31,563,000 $1,160,640
Grand Totals: $55,349,000 $1,885,277
0
$519,983.08 $705,220.00
$774,600.24 $1,103,027.00
Exhibit C - Page 3
Existing
(1st year)
Unencumbered
Fair Market
Contract
Effective
Lot No.
Fee Lot Valud
Rental Value
Rent
Net Rent
Interior Lots - continued
61
$588,000
$18,162
$4,436.16
$8,482.00
ES 3
$474,000
$14,225
$8,750.04
$10,325.00
ES 4
$467,000
$13,962
$3,021.96
$6,322.00
ES 5
$470,000
$14,075
$10,000.08
$11,415.00
ES 6
$468,000
$14,000
$2,982.96
$6,310.00
ES 7
$461,000
$13,737
$2,966.04
$6,057.00
ES 8
$471,000
$13,925
$3,118.08
$6,455.00
Subtotal Int.:
$23,786,000
$724,637
$254,617.16
$397,807.00
Subtotal W.F.: $31,563,000 $1,160,640
Grand Totals: $55,349,000 $1,885,277
0
$519,983.08 $705,220.00
$774,600.24 $1,103,027.00
Exhibit C - Page 3
Distribution of Rents and Tax Advantage between Tidelands and Uplands*
Beacon Ba%- 6'6/94 - Page 1
Exhibit D - Page 1
(lstyear)
Proportionate Proportionate
Annual Amort.
Tidelands
Effective
%
%
Rent
Rent
of PV of Tax
Tax
Lot No.
Net Rent
Tidelands
Uplands
Tidelands
Uplands
Advantage
Advantage
laterfront Lots
A
$31,940.00
100%
0%
$31,940
$0
$0
$0
B
$22,270.00
100%
0%
$22,270
$0
$930
$930
C
$22,480.00
100%
0%
$22,480
$0
$1,410
$1,410
1
$15,030.00
100%
0%
$15,030
$0
$2,080
$2,080
2
$17,950.00
100%
0%
$17,950
$0
$2,260
$2,260
3
$31,560.00
100%
0%
$31,560
$0
.$560
$560
4
$21,260.00
100%
0%
$21,260
$0
$2,610
$2,610
5
$28,840.00
100%
0%
$28,840
$0
$1,620
$1,620
6
$34,260.00
100%
0%
$34,260
$0
$0
$0
7
$31,870.00
95%
5%
$30,276
$1,594
$0
$0
8
$43,480.00
50%
50%
$21,740
$21,740
$0
$0
9
$44,350.00
5%
95%
$2,217
$42,132
$0
$0
10
$33,540.00
00/0
100%
$0
$33,540
$0
$0
11
$17,020.00
0%
100%
$0
$17,020
$3,200
$0
12
$22,190.00
0%
100%
$0
$22,190
$1,130
$0
13
$29,450.00
0%
100%
$0
$29,450
$0
$0
v
14
$19,690.00
0%
100%
$0
$19,690
$2,880
$0
15
$20,240.00
20%
80%
$4,048
$16,192
$2,980
$596
16
$16,480..00
95%
5%
$15,656
$824
$2,640
$2,508
17
$21,750.00
100%
0%
$21,750
$0
$2,420
$2,420
18
$16,480.00
100%
0%
$16,480
$0
$2,640
$2,640
19
$19,500.00
100%
0%
$19,500
$0
$2,880
$2,880
20
$17,910.00
100%
0%
$17,910
$0
$2,470
$2,470
21
$26,660.00
100%
0%
$26,660
$0
$0
$0
22
$37,880.00
100%
0170
$37,880
$0
$0
$0
ES 1
$31,920.00
100%
0%
$31,920
$0
$0
$0
ES 2
$29,220.00
100%
0%
$29,220
$0
$0
$0
Vaterfront
subtotal:
$705,220.00
$500,848
$204,372
$34,710
$24,984
Beacon Ba%- 6'6/94 - Page 1
Exhibit D - Page 1
Distribution of Rents and Tax Advantage between Tidelands and Uplands*
Beacon Bay 6'6!94 - Page 2
Exhibit D - Page 2
(1st year)
Proportionate
Proportionate
Annual Amort.
Tidelands
Effective
%
%
Rent
Rent
of PV of Tax
Tax
Lot No.
Net Rent
Tidelands
Uplands
Tidelands
Uplands
Advantage
Advantage
iterior Lots
23
$6,297.00
0%
100%
$0
$6,297
$550
$0
24
$8,897.00
0170
100%
$0
$8,897
$390
$0
25
$6,977.00
5%
95%
$349
$6,628
$630
$31
26
$6,942.00
99%
1%
$6,873
$69
$710
$703
27
$7,102.00
100%
00/0
$7,102
$0
$660
$660
28
$7,785.00
100%
0%
$7,785
$0
$740
$740
29
$15,470.00
0%
100%
$0
$15,470
$0
$0
30
$7,102.00
0%
100%
$0
$7,102
$580
$0
31
$10,515.00
30%
70%
$3,154
$7,361
$660
$198
32
$7,217.00
100%
00/0
$7,217
$0
$620
$620
33
$7,307.00
100%
0%
$7,307
$0
$650
$650
34
$8,490.00
100%
0%
$8,490
$0
$730
$730
35
$7,780.00
0170
100%
$0
$7,780
$580
$0
36
$7,672.00
0170
100%
$0
$7,672
$590
$0
37
$15,005.00
5%
95%
$750
$14,255
$0
$0
38
$7,967.00
99%
1%
$7,887
$80
$0
$0
39
$11,557.00
100%
0%
$11,557
$0
$0
$0
40
$13,572.00
100%
0%
$13,572
$0
$0
$0
41
$7,300.00
0%
100%
$0
$7,300
$510
$0
42
$7,672.00
0%
100%
$0
$7,672
$590
$0
43
$13,23'2.00
00/0
100%
$0
$13,232
$0
$0
44
$7,787.00
0%
100%
5.0
$7,787
$630
$0
45
$7,990.00
15%
85%
$1,198
$6,792
$660
$99
46
$8,492.00
0%
100%
$0
$8,492
$720
$0
47
$7,365.00
0%
100%
$0
$7,365
$610
$0
48
$9,305.00
0%
100%
$0
$9,305
$600
$0
49
$7,197.00
0%
100%
$0
$7,197
$620
$0
50
$7,240.00
0%
100%
$0
$7,240
$630
$0
51
$7,857.00
0%
100%
$0
$7,857
$110
$0
52
$13,927.00
0%
10070
$0
$13,927
$0
$0
53
$8,492.00
0%
100%
$0
$8,492
$730
$0
54
$7,227.00
0%
100%
$0
$7,227
$500
$0
55
$12,865.00
0%
100%
$0
$12,865
$0
$0
56
$7,915.00
0%
100%
$0
$7,915
$470
$0
57
$7,427.00
0%
100%
$0
$7,427
$700
$0
58
$10,007.00
0%
100%
$0
$10,007
$0
$0
59
$12,175.00
0%
1007C,
$0
$12,175
$0
$0
60
$7,315.00
0%
1007C
$0
$7,315
$660
$0
Beacon Bay 6'6!94 - Page 2
Exhibit D - Page 2
Distribution of Rents and Tax Advantage between Tidelands and Uplands*
id Waterfront: $705,220.00
-and Total: $1,103,027.00
of Total: 100%
V
Proportionate Proportionate Annual Amort. Tidelands
% % Rent Rent of PV of Tax Tax
Tidelands Uplands Tidelands Uplands Advantage Advantage
0%
(1st year)
$0
Effective
Lot No.
Net Rent
tenor Lots - continued
61
$8,482.00
ES 3
$10,325.00
ES 4
$6,322.00
ES 5
$11,415.00
ES 6
$6,310.00
ES 7
$6,057.00
ES 8
$6,455.00
terior Lots
$0
ibtotal:
$397,807.00
id Waterfront: $705,220.00
-and Total: $1,103,027.00
of Total: 100%
V
Proportionate Proportionate Annual Amort. Tidelands
% % Rent Rent of PV of Tax Tax
Tidelands Uplands Tidelands Uplands Advantage Advantage
0%
100%
$0
$8,482
$720
$0
100%
0%
$10,325
$0
$320
$320
100%
0%
$6,322
$0
$500
$500
85%
15%
$9,703
$1,712
$0
$0
0%
100%
$0
$6,310
$500
$0
0%
100%
$0
$6,057
•$650
$0
0%
100%
$0
$6,455
$410
$0
$109,592
$288,215
$19,930
$5,251
$500,848
$204,372
$34,710
$24,984
$610,440
$492,587
$54,640
$30,235
55%
45%
100%
55%
affective Net Rents consider tax advantage. Discount rate for present value of annual
:vantage is 6%. Rate for an-tortization of advantage is 7%. Rent and advantage
aures are from 10/8/93 appraisal. Lots 3, 7, and 21 have been adjusted for new contract rent real estate taxes.
Beacon Bay 6'0194 - Page 3
Exhibit D - Page 3
DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
BEACON BAY COt•IMUNITY ASSOCIATION
Table of Contents
Article
Page
I DEFINITIONS
2
1 -
Architectural Committee
2
2 -
Articles and Bylaws
2
3 -
Assessments
2
4 -
Association
3
5 -
Association Rules
3
6 -
Board
3
7 -
City
3
8 -
Common Expenses
3
9 -
Common Area
4
4
10-
Covered Property
1.1-
Declarant
4
12-
Exhibit
4
13-
Member
4
14-
Lessee
4
15-
Residence
4
16-
Setback
5
II MEMBERSHIP
5
1 -
Membership
5
2 -
Transfer
5
3 -
Voting Rights
5
4 -
Classes of Voting Membership
5
5 -
Approval of Members
5
III COVENANT FOR MAINTENANCE ASSESSMENTS
6
1 -
Creation of the Lien and Personal
Obligation of Assessments
6
2 -
Purpose of Assessments
6
3 -
Regular Assessments
6
4 -
Uniform Assessment
6
5 -
Special Assessments
6
5 -
No Offsets
6
7 -
Reserves
7
IV \0'7PAYMENT
OF ASSESSMENTS
7
1 - Delinquency 7
- Notice of Lien 8
3 - Foreclosure Sale 8
(i) Exhibit E
4 -
Relr onship with Mortgage Lier
g
5 -
Curing of Default
9
V
ARCHITECTURAL CONTROL
9
1 -
Appointment of Architectural Committee
9
2 -
GL -neral Provisions
9
3 -
Approval and Conformity of Plans
10
4 -
Nonliability for Approval of Plans
10
VI
DUTIES
I
AND POWERS OF THE ASSOCIATION
10
1 -
General Duties and Powers
10
2 -
General Duties of the Association
11
3 -
General Powers of the Associationon
11
4 -
Association Rules
11
VII
REPAIR
AND MAINTENANCE
12
1 --
Repair and Maintenance by Association
12
2 -
Repair and Maintenance by Lessee
12
3 -
Maintenance of Public Utilities
12
VIII
USE
RESTRICTIONS
12
1 -
Commercial Use
12
2 -
Signs
13
3 -
Nuisance
13
4 -
Animals
13
5 -
California Vehicle Code
13
IX
RIGHTS
OF ENJOYMENT
13
1 -
Members' Right of Enjoyment
13
2 -
Delegation of Use
14
3 -
Waiver of Use
14
X
G 'ERAL
PROVISIONS
14
1 -
Enforcement
14
2 -
No Waiver
15
3 -
Cumulative Remedies
15
4 -
Severability
15
5 -
Covenants to Run with the Land; Term
15
6 --
Heading
15
7 -
Singular Includes Plural
15
8 -
Attorneys' Fees
16
9 -
Notices
16
lam-
Effect of Declaration
16
11-
Persona]. Covenant
16
l=-
Nonliability of Officials
17
1
Subleases
17
1 -
Amendments
17
DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
BEACON BAY COMMUNITY ASSOCIATION
ORANGE COUNTY, CALIFORNIA
THIS DECLARATION is made this day of
, by the City of Newport Beach
a chartered municipal corporation. Said corporation, its
successors and assigns, shall hereafter be referred to as
"Declarant."
R E C I T A L S
A. Declarant is the fee owner of the real property
described in Exhibit A to this Declaration, which shall be
the Covered Property under this Declaration. This
Declaration is being imposed by Declarant upon the Covered
Property.
S. Declarant has deemed it desirable to establish
covenants, conditions and restrictions upon the Covered
Property and each and every portion thereof, which will
constitute a general scheme for the management of the
Covered. Property, and for the use, occupancy and enjoyment
thereof, all for the purpose of enhancing and protecting
the value, desirability and attractiveness of the Covered
Property and enhancing the qualIt ity of life within the
Covered Property.
C. It is desirable for the efficient management of
the Covered Property and the preservation of the value,
desirability and at tract iven.ess of the Covered Property to
delegate and assigned the powers of managing the Covered
Prope==::, maintaining and administering the Common Area
and a�-.-rLnistering and enforcing these covenants,
conditions and restrictions and collecting and disbursing
funds :Du:-suant to the assessment and charges hereinafter
create= ::nd referred to and to perform such other acts as
shall ge::erally benefit the Covered Property to the Beacon
Bay C:;, —1,1-:.ity Assocation, a California nonprofit
coroo_ 3 --ion.
D. Declarant will. hereafter hold title to and lease
all _". Covered Property subject to certain protective
covenaTits, conditions and restrictions hereafter set forth.
Beacon 72.:v
9/20/79 Rev. 9/29/79
NO'et, THEREFORE, Declarant hereby covenants, agrees and
declares that all of its interest as the same may from
tim.e to time appear in the Covered Property shall be held
and conveyed subject to the following covenants,
conditions, restrictions and easements which are hereby
declared to be for the benefit of said interests in the
Covered Property, and the owners of said interests, their
successors and assigns. These covenants, conditions,
resc.rictions and easements shall run with said interests
and shall be binding upon all parties having or acquiring
any right or title in said interests or any part thereof,
and shall inure to the benefit of each owner thereof and
are imposed upon said interests and every part thereof as
a servitude in favor of each and every of said interests
as the dominant tenement or tenements.
ARTICLE I
DEFINITIONS
Unless the context clearly indicates otherwise, the
following terms used in this Declaration are defined as
follows:
Section 1. "Architectural Committee" shall mean and refer
to the committee or committees provided for in the Article
hereof entitled "Architectural Control".
Section 2. "Articles" and "Bylaws shall mean and refer
to the Articles of Incorporation and Bylaws of the
Association as the same may from time to time be duly
amended.
Section 3. "Assessments:" The following meanings shall
be given to the Assessments hereinafter defined:
"Regular Assessment" shall mean the amount which is to be
paid by each Member of the Association for Common Expenses.
"Stec_=1 Assessment" shall mean a charge against a
part' cular Lessee and his Residence, directly attributable
to the Lessee, to reimburse the Association for costs
in:i r -d in bringing the Lessee and his Residence into
with the provisions of this Declaration, the
Articles, Bylaws or Association Rules, or any other charge
desi7n�ted as a Special Assessment, together with
attc,r: eys' fees and other charges payable, plus interest
therr_-o—n as provided for in this Declaration.
Beaccn Bay
9/20/9 2 Rev. 9/24/79
Section 4. "Association" shall mean and refer to Beacon
Bay Community Assocation, a nonprofit corporation,
incorporated under the laws of the State of California,
its successors and assigns.
Section 5. "Association Rules" shall mean rules adopted
by the Association pursuant to the Article hereof entitled
"Duties and Powers of the Association."
I
Section 6. "Board" shall mean the Board of Directors of
the Association.
Section 7. "City" shall mean and refer to the City of
Newport Beach, California, a municipal corporation of the
State of California.
Section 8. "Common Expenses" shall mean and refer to the
actual and estimated costs of:
(a) maintenance, management, operation, repair and
replacement of the Common Area, and all other areas on the
Covered Property which are maintained by the Association;
(b) maintenance by the Association of areas within
the public right-of-way of public streets in the vicinity
of the Covered Property as provided in this Declaration or
pursuant to agreements with the City;
(c) costs of management and administration of the
Association, including, but not limited to, compensation
paid by the Association to managers, accountants,
attorneys and employees;
(d) the costs of utilities, gardening and other
services which generally benefit and enhance the value and
desirability of the Community Facilities;
(e) the costs of fire, casualty, liability, workmen's
compensation and other insurance covering the Common Area;
(`:) the costs of any other insurance obtained by the
Asz,oc_ation;
(7i reasonable reserves as deemed appropriate by the
Boars;
(h) the costs of bonding of the members of the Board,
anv pra!essional managing agent or any other person
han::lina the funds of the Association;
Beacor: Bay
9/20/79 3 Rev. 9/24/79
(i) taxes _.aid by the Association;
(j) amounts paid by the Association for discharge of
any lien or encumbrance levied against the Common Area or
portions thereof;
. -(k) costs incurred by the Architectural Committee or
other committee established by the Board; and
(1) other expenses incurred by the Association for
any reason whatsoever in connection with the Commo: Area,
or the costs of any other item or items designated. --y this
Declaration, the Articles, Bylaws or Association Ruies, or
in furtherance of the purposes of the .Association or in
the discharge of any duties or powers of the Association.
Section 9. "Common Area" shall
walkways, tennis courts, docks,
landscaped areas, including but
through J inclusive as shown on
mean all streets, beaches,
piers, and common
not limited to Lots A
Exhibit ` V'.
Section 10. "Covered Property" shall mean and refer to
All the real property described on Exhibit "I".
Section 11. "Declarant" shall mean and refer to the City
of �2ewport Beach.
Sectibn 12. "Exhibit" shall mean and refer to those
documents so designated herein and attached hereto and
each or such Exhibits is by this reference incorporat( :l in
this Declaration
Section 13. "Member", shall mean and refer to every person
or entity who qualifies for membership pursuant to the
Article of this Declaration entitled "membership."
Sectic; 14. "Lessee" shall mean and refer to one or more
persons or entities who are alone or collectively the
lessees of a Residence.
Sec =_ :)7, 15 . "Residence" shall. mean and refer to a
lot shown on the Record of Survey t1ap of Beacon
Bav :; ,.;i vision recorded in Book 9, pages 42 and 43,
Recce--� of Survey, on file in the Office of the County
Ree. --?r, Orange County, California; provided, however,
shall not i nc.l. ude any Common Area.
' R shall include the residential dwelling unit
9/2r�/4
Rev. 9/24/79
together with garages, structures and other improvements
on the same lot or parcel.
Section 16. "Setback" shall mean and refer to those
internal distances from the property line of each lot as
shown on Exhibit "II".
ARTICLE II
MEMBERSHIP
Section 1 - Membership. Every Lessee shall be a Member
but there shall be only one Membership per Residence. The
term and provisions set forth in this Declaration, which
are binding -upon all Lessees are not exclusive, as Lessees
shall, in addition, be subject to the terms and provisions
of the Articles, Bylaws and Association Rules to the
extent the provisions thereof are not in conflict with
this Declaration.- Membership of Lessees shall be
appurtenant to and may not be separated from the interest
of such Lessee in any Residence. Ownership of a Residence
shall be the sole qualification for membership; provided,
however, a Member's voting rights may be regulated or
suspended as provided in this Declaration, the Bylaws or
the Association Rules.
Sect -.ion 2 - Transfer. The membership held by any Lessee
shall not be transferred, pledged or alienated in any way,
except that such membership shall automatically be
transferred to the transferee of the interest required for
mem t:ership. Any attempt. to make a prohibited transfer is
void and will not be reflected upon the books and records
of the Association. The Association shall have the right
to record the transfer upon the books of the Association
without any further action or consent by the transferring
Lessee.
Section 3 - Voting Ri hts. All voting right shall be
subject to the restrictions and limitations provided
herei:: and in the Articles, Bylaws and Association Rules.
Sects 4 - Classes of Voting Membership. The Association
shall Lave one. (1} class 'of voting membership.
Scc`0,.1 3 - 1�p__oval of Members. Unless elsewhere
o` Y'•i�� Spceciiically provided in this Declaration or the
any provision of this Declaration or the Bylaws
B c C:0 ,
9/20/79
Rev. 9/24/79
which requires the vote or written assent of the voting
po;ier of the Association shall be deemed satisfied by the
following:
(a) The vote in person or by proxy of the specified
percentage at a meeting duly called and noticed pursuant
to the provisions of the Bylaws dealing with annual or
special meetings of+the Members.
(b) Written consents signed by the specified
percentage of Members as provided in the Bylaws.
ARTICLE III
COVENANT FOR MAINTENANCE ASSESSMENTS
Section 1 - Creation of the Lien and Personal Obligation
of Assessments. Each Lessee is deemed to covenant and
agree to pay to the Association: Regular and Special
Assessments, such Assessments to be fixed, established and
collected from time to time as provided in this
Declaration. The Assessments, together with interest
thereon, late charges, attorneys' fees and court costs,
and other costs of collection thereof, as hereinafter
provided, shall be a continuing lien upon the Residence
against which each such Assessment is made and shall also
be the personal obligation of the Lessee of such Residence
at the time when the Assessment becomes due.
Notwithstanding the foregoing, the Assessment lien shall
not'affect the priority of any other existing liens.
il
Section 2 - Purpose of Assessments. The Assessments
levied by the Association shall be used exclusively to
defray Common Expenses.
Section 3 - Regular Assessments. Each year the Board
shall determine the amount of the Regular Assessment to be
paid by each Member. The Regular Assessment shall be due
and payable on such dates as the Board may establish.
Each Member shall be sent written notice of the Regular
Ass`7sment and shall thereafter pay the Association in
inst '-rents as established by the Board.
Sect..= 4 - Uniform Assessment. Regular Assessments shall
be fixed at an equal amount for each Residence.
Section 5 - Special_ Assessments. Special Assessments may
be '.,evicd by the Board from time to time.
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9/20/79 6 Rev. 9/24/79
Section G - —) Offsets. All Assessment_ shall be payable
in the amount specified by the Assessment and no offsets
against such amount shall be permitted for any reason,
including, without limitation, a claim that (i) the
Association is not properly exercising its duties and
powers as provided in this Declaration; or (ii) a Member
has made and elects to make no use of the Common Areas.
Section 7 - Reserves. The Regular Assessments may include
reasonable amounts.as determined by the Board collected as
reserves for the future periodic maintenance, repair or
replacement of all or a portion of the Common Area, or any
other purpose as determined by the Board. All amounts
collected as reserves, whether pursuant to this Section or
otherwise, shall be deposited by the Board in a separate
bank account to be held in trust for the purposes for
which they are collected and are to be segregated from and
not commingled with any other funds of the Association.
Such reserves shall be deemed a contribution to the
capital account of the Association by the Member.
ARTICLE IV
NONPAYMENT OF ASSESSMENTS
Section 1 - Delinquency. Any assessment provided for in
this Declaration which is not paid when due shall be
delinquent on said date (the "delinquency date"). If any
such Assessment is not paid within ten (10) days after
delivery of notice of such delinquency from the
Association, a late charge as established by the Board
shall be levied and the Assessment shall bear interest
from the delinquency date at the rate of ten percent (10%)
per annum. The AssociationAmay at its option, and without
waiving the right to judicially foreclose its, lien against
the Residence, pursue any available remedies, including,
without limitation, bringing an action at law against the
Member personally obligated to pay the same, and/or upon
comcliance with the notice provisions set forth in the
Sec-' _ion entitled "Notice of Lien" of this Article to
fo=�1•.:'ose the lien against the Residence. If action is
com-.enced, there shall be added to the amount of such
Ass s:Iment the late charge, interest, the costs of such
action, and attorneys' fees incurred in connection with
su.-.. action; and in the event a judgment is obtained, such
j�ic:c-;,ent shall include said late charge, interest and a
reazonable attorney's fee, together with the costs of
action:. Each Member vests in the Association, or its
assig-3, the right and power to bring all actions at law
Beac:in Bay
Rev. 9/24/79
or lien forecl(--are against such Member or other Members
for the collection of such delinquent Assessments.
Section 2` Notice of Lien. No action shall be brought to
foreclose said Assessment lien or to proceed under the
power of sale herein provided until thirty (30) days after
the date a notice of claim of lien is deposited in the
United States mail, certified or registered, postage
prepaid, to the Lessee, of said Residence, and a copy
thereof is recorded by the Association in the office of
the County Recorder of the County; said notice of claim of
lien must recite a good and sufficient legal description
of any such Residence, the record Lessee or reputed Lessee
thereof, the amount claimed which shall include interest
on the unpaid Assessment at the rate of ten percent (10%)
per annum, a ].ate charge as established by the Board, plus
reasonable attorneys' fees and expenses of collection in
connection with the debt secured by said lien, and the
name and address of the claimant.
Section 3 - Foreclosure Sale. Said Assessment lien may be
enforced by sale by the Association, its attorney or any
other person authorized by the Board to make the sale
after failure of the Lessee to make the payments specified
in the notice of claim of lien within said thirty (30) clay
period. Any such sale provided for above is to be
conducted in accordance with the provisions of Sections
2924, 2924b, 2924c, 2924f, 2924g and 2924h of the Civil
Code of the State of California as said statutes may from
time to time be amended, applicable to the exercise of
powers of sale in mortgages and deeds of trust, or in any
other manner. permitted or provided by law. Upon the
affirmative vote of a majority of the voting power of the
Association, the Association, through its duly authorized
agents, shall have the power to'bid on the Residence,
using t'%ssociation funds, or funds borrowed for such
purpose, at the sale, and to acquire and hold, lease,
mortgage and convey the same.
Section 4 - Relationship with Mortgage Liens.
(a) The lien provided for in the Article hereof
entitle "Nonpayment of Assessments" for the payment of
Assess-;-rts shall be subordinate to the lien of any
H ortca-,e which was recorded prior to the date any such
Assess= -r t becomes due.
(b) If any Residence subject to a monetary .lien
creat --d any provision hereof shall be subject to the
lien of a Mortgage: (1) the foreclosure of any lien
creat,_ -• anything set forth in this Declaration shall
Beacon gal
9/20/79 8 Rev. 9/24/79
not operate to affect or impair the lien or such Mortgage;
and (2) the foreclosure of the lien of said Mortgage, or
the sale under a power of sale included in such Mortgage
(such events being hereinafter referred to as "Events of
Foreclosure") shall not operate to affect or impair the
lien hereof, except that any persons who obtain an
interest through any of the Events of Foreclosure, and the
successors in interest, shall take title free of the lien
hereof or any personal+obligation for said charges as
shall have accrued up "to the time of any of the Events of
Foreclosure, but subject to the lien hereof for all said
charges that shall accrue subsequent to the Events of
Foreclosure.
Section 5 - Curing of Default. Upon the timely payment or
other satisfaction of: (a) all delinquent Assessments
specified in the notice of claim of lien, (b) all other
Assessments which have become due and payable with respect
to the Residence as to which such notice of claim of lien
was recorded, and (c) interest, late charges, attorneys'
fees and other costs of collection pursuant to this
Declaration and the notice of claim of lien which have
accrued, officers of the Association or any other persons
designated by the Board are hereby authorized to file or
record, as the case may be, an appropriate release of such
notice, upon payment by the defaulting Lessee of a fee, to
be determined by the Association, but not to exceed Fifty
Dollars • ($50.00) to cover the costs of preparing and
filing or recording such release.
ARTICLE V
ARCHITECTURAL CONTROL
Section 1 - Appointment of Architectural Committee. The
Architectural Committee shall consist of not less than
three (3) nor more than five (5) persons as fixed from
time to time by resolution of the Board.
The shall have the right to appoint the members of
the Arc::itecturai Committee. Persons appointed by the
Board to the Architectural Committee, however, must be
Member.
Section 2 - General Provisions.
(a; The Architectural Committee may establish
reaso;;able procedural rules and assess a fee in connection
with 4 e of plans and specifications including, without
limitaticn, the number of sets of plans to be submitted;
Beacon -3a
9/20/79 9 Rev. 9/24/79
-however, the Arct,itectural Committee may de --:gate its plan
review responsibilites to one or more members of such
Architectural Committee. Upon such delegation, the
approval or disapproval of plans and specifications by
such persons shall be equivalent to approval or
disapproval by the entire Architectural Committee.
(b) In the event the Architectural Committee fails to
approve or disapprove such plans and specifications within
thirty (30) days after Ahe same have been submitted in
accordance with any rules regarding such submission
adopted by the Architectural Committee, such plans and
specifications will be deemed approved.
(c) Nothing in this Declaration or in the
Association's Articles, Bylaws or Rules shall be construed
or amended to allow the Architectural Committee to modify
or eliminate the Setback requirements shown on the Beacon
Bay Subdivision Survey Map, and any attempt to do so shall
have no effect.
Section 3 - Approval and Conformity of Plans. No
building, fence wall or other structure shall be
commenced, erected or maintained upon the Covered
Property, nor shall there be any addition to or change to
the exterior of any Residence, structure or other
improvement except in compliance with plans and
specifications therefor which have been submitted to and
approved by the Architectural Committee as to harmony of
external design and location in relation to surrounding
structures and topography.
Section 4 - Nonliability for Approval of Plans. Plans and
specifications shall be approved by the Architectural
Committee as to style, exterior design, appearance and
location, and are not approved for engineering design or
for cc,-,i,liance with zoning and building ordinances, and by
approving such plans and specifications neither the
Architectural Committee, the members thereof, the
Association, the Members, the Board nor Declarant assumes
liability or responsibility therefor, or for any defect in
any structure constructed from such plans and
spec i i caz ions.
ARTICLE VI
DUTIES AND POWERS OF THE ASSOCIATION
Section i - General Duties and Powers. In addition to the
duties powers enumerated in its Articles and Bylaws,
Beacon Bav
9/20/79 10 Rev. 9/24/79
or elsewhere p vided for herein, and wit )ut limiting the
generality thereof, the Association shall have the
specific duties and powers specified in this Article.
Section 2 - General Duties of the Association. The
Association through the Board shall have the duty and
obligation to:
(a) enforce the provisions of this Declaration, the
Articles, Bylaws, and'Association Rules, by appropriate
means and carry out the obligations of the Association
hereunder;
(b) maintain and otherwise manage the Common Area;
(c) pay any real and personal property taxes and
other charges assessed to or payable by the Association;
and
(d) obtain and continue in effect during the term of
of the lease, in its own name a comprehensive policy of public
liability insurance proving coveraue for the common area, and
a policy of fire and casualty insurance with coverage as the
Board deems appropriate.
Section 3 - General Powers of the Association. The
Association through the Board shall have the power but not
the obligation to:
(a) employ a inanager or other persons and contract
with independent contractors or managing agents to perform
all or any part of the duties and responsibilities of the
Assc:-Ii.ation;
(b) borrow money as may be needed in connection with
the of tl:c Association's powers and duties; and
( c ) establish and maintain a working capital and
co nting--.cy fund iin an amount to be determined by the
Board. -Said fund shall be used by the' Board as it deems
fit to carry out the objectives and purposes of the
Assoc -.1' _- c
Sect:: - AssccE,tion Rules. The Board shall have the
poser t:_ c o'pt, 'a, -,,end, and repeal such rules and
rein.:: _t . ;:is as it deems reasonable (the "Association
F;uIn e went of any conflict between any such
r sS 'u 1 c- and any other provisions of this
D�•' ::: _=.::n, or tt,e Articles or. B 1aws, the provisions of
ti— ..- : _....i.o, rales shall. he deemed to be superseded by
the = _ ;cion, of this Declaration, the Articles or the
Byla.,;_, the cxt�_•ni: of any such conflict.
13 C. z cc;:-, _
9/20/-/ ` 1 .l.
Rev. 9/24/79
5/4/81
ARTICLE VII
REPAIR AND MAINTENANCE
Section 1 - Repair and Maintenance by Association. The
Association shall have the, duty to:
(a) maintain, repair, restore, replace and make
necessary improvements to the Common Area;
(b) maintain all other facilities, equipment,
services or aesthetic components of whatsoever nature as
may from time to time be requested by the vote or written
consent of a majority of the voting power of the Members;
(c) pay out of the general funds of the Association
the costs of any maintenance and repair made pursuant to
this section, except as otherwise herein specified as
payable by particular Lessees.
Section 2 -_Repair and Maintenance by Lessee. Except as
the Association shall be obligated to maintain and repair
as may be provided in this Declaration, every Lessee shall:
(a) maintain all portions of the exterior of his
Residence, including without limitation, the walls, fences
and roof of such Residence in good condition and repair;
and
(b) install and thereafter maintain in attractive
condition yard landscaping in accordance with the
provisions of this Article.
Section 3 - Maintenance of Public Utilities. Nothing
contained herein shall require br obligate the Association
to maintain, replace or restore the underground facilities
or public utilities which are located within easements in
the Ccmmon Area owned by such public utilities. However,
the Association shall take such steps as are necessary or
convenient to ensure that such facilities are properly
mciintai:�.--f:, replaced or restored by such public utilities.
ARTICLE VIII
USE RESTRICTIONS
Commercial Use. No part of a Residence shall
be us�c for any business, commercial, or nonresidential
purpose -s.
Beacon Sa,
9/20/19 12 Rev. 9/24/79
Section 2 - Sio-s. No sign or billboard o` any kind shall
be displayed tc zhe public view on any poL ..on of the
Covered Property; provided, however, that a Member may
display on his Residence, a sign advertising its sale or
lease so long as such sign shall comply with any customary
and reasonable standards promulgated by the Board.
Section 3 - Nuisance. No noxious or offensive activity
shall be carried on upon any Residence, or any part of the
Covered Property nor shall anything be done thereon which
may be, or may become lan annoyance or nuisance to the
neighborhood, or which shall in any way interfere with the
quiet enjoyment of each of the Lessees of his respective
Residence.
Section 4 - Animals. No animals, livestock or poultry of
any kind shall be raised, bred or kept upon the Covered
Property, except that dogs, cats or other household pets
may be kept on the Residences, provided they are not kept,
bred or maintained for any commercial purpose, or in
numbers deemed unreasonable by the Board.
Notwithstanding the foregoing, no animals or fowl may be
kept on the Residences which in the good faith judgment of
the Board or a committee selected by the Board for this
purpose, result in any annoyance or are obnoxious to
residents in the vicinity. All animals except cats
permitted to be kept by this Section shall be kept on a
leash when on any portion of the Covered Property except
within a Residence.
Section 5 - California Vehicle Code. The City may be
allowed to impose and enforce all provisions of the
appl}c?ble California Vehicle Code sections on any private
streets within the Covered Property.
ARTICLE IX
RIGHTS OF ENJOYMENT
Section 2 -_Members' Right of Enjoyment. Every Member
shall na:e nonexclusive easement for use and enjoyment in
and to t'L e Common. Area and such right shall be appurtenant
to and. pass witil the interest required to be a
Lessee to every Residence, subject to all of the
easements, covenants, conditions, restrictions and other
provision's contained in this Declaration, including,
without limitation, the following provisions:
Beacon Bav
9/20/79 13 Rev. 9/24/79
(a) The ri t of the Association to 1 it the number
of guests of Members and to limit the use of the Common
Area by persons not in possession of a Residence, but
owning a portion of the interest in a Residence required
for membership.
.(b) The right of the Association to establish
reasonable rules and regulations pertaining to the use of
the Common Area.
Section 2 - Delegation of Use. Any Member may delegate
his right of enjoyment to the Common Areas to the members
of his family or his tenants -who reside on his Residence,
or to his guests, subject to the rules and regulations
adopted by the Board. In the event and for so long as a
Lessee delegates said rights of enjoyment to his tenants,
said Lessee shall not be entitled to said rights unless
both he and the tenant reside on the Residence in separate
dwelling units which conform to all applicable municipal
laws and regulations.
Section 3 - Waiver of Use. No member may exempt himself
from personal liability for assessments duly levied by the
Association, or release the Residence owned by him from
the liens, charges and other provisions of this
Declaration, the Articles, Bylaws and Association Rules,
by waiver of the use and enjoyment of the Common Area, or
the abandonment of his Residence.
ARTICLE X
GENERAL PROVISIONS
Section 1 - Enforcement. The Association, or any Lessee,
shall have the right to enforce"by proceedings at law or
in egaity, all restrictions, conditions, covenants and
reservations, now or hereafter imposed by the provisions
of this Declaration or any amendment thereto, including
the ri' ght to prevent the violation of such restrictions,
conditions, covenants, or reservations and the right to
recover damages or other dues for such violation.. The
Association or any Lessee shall also have the right to
enforce nv proceedings at law or in equity the provisions
of the yrticles or Bylaws and any amendments thereto.
With respect to architectural control and Association
Rules, -he Association shall have the exclusive right to
the -m.fc_rcement thereof unless the Association refuses or
is unb'e to effectuate such enforcement, in which case
any Lessee who otherwise has standing shall have the right
to un�2ertake such enforcement. With respect to Assessment
Beacon Bav
9/20/79 14 Rev. 9/24/79
Liens, the Asso ation shall have the excl '_ve right to
the enforcement thereof.
Section 2 --No Waiver. Failure by the Association or by
any Member to enforce any covenant, condition, or
restriction herein contained, or the Articles, Bylaws or
Association Rules, in any certain instance or on any
particular occasion shall not be deemed a waiver of such
right on any such future breach of the same or any other
covenant, condition or restriction.
Section 3 - Cumulative Remedies. All rights, options and
remedies of Declarant, the Association, or the Lessees
under this Declaration are cumulative, and no one of them
shall be exclusive of any other, and Declarant, the
Association, and the Lessees shall have the right to
pursue any one or all of such rights, options and remedies
or any other remedy or relief which may be provided by
law, whether or not stated in this Declaration.
Section 4 - Severability. Invalidation of any one or a
portion of these covenants, conditions or restrictions by
judgment or court order shall in no way affect any other
provisions which shall remain in full force and effect.
Section 5 - Covenants to Run with the Land; Term. The
covenants, conditions and restrictions of this Declaration
shall run with and bind the Covered Property and shall
inure to the benefit of and be enforceable by the
Association or any Lessee, their respective legal
representatives, heirs, successors and assigns, for a term
of twenty five (25) years from the date this Declaration
is recorded, after which time said covenants, conditions
and restrictions shall be automatically extended for
successive periods of ten (10) years, unless an
instrument, signed by the Declarant and a majority of the
then Lessees, has been recorded at least one (1) year
prior to the end of any such period, agreeing to change
said covenants, conditions and restrictions in whole or in
part.
Section 5 -_Heading. The Article and Section headings
have been inserted for convenience only, and shall not be
consiu-ared or referred to in resolving questions of
interpretation or construction.
Section. 7 - Sinqular Includes Plural. Whenever the
contest c this Declaration requires same, the singular
shall iDclude the plural and the masculine shall include
the feminine and the neuter.
Beacon
9/20/79 15 Rev. 9/24/79
Section 8 - At 'ncys' Fees. In the event ction is
instituted to enforce any of the provisions contained in
this Declaration, the party prevailing in such action
shall be entitled to recover from the other party thereto
as part of the judgment, reasonable attorneys' fees and
costs of such suit.
Section 9 - Notices. Any notice to be given hereunder
shall -be in writing and may be delivered as follows:
(a) Notice to a Lessee shall be deemed to have been
properly delivered when delivered to the Lessee's
Residence, or placed in the first class United States
mail, postage prepaid, to the most recent address
furnished by such Lessee in writing to the Association for
the purpose of giving notice, or if no such address shall
have been furnished, then to the street address of such
Lessee's Residence. Any notice so deposited in the mail
within the City shall be deemed delivered forty-eight (48)
hours after such deposit. In the case of co -Lessees any
such notice may be delivered or sent to any one of the
co -Lessees on behalf of all co -Lessees and shall be deemed
delivery on all such co -Lessees.
(b) Notice to the Association shall be deemed to have
been properly delivered when placed in the first class
United States mail, postage prepaid, to the address
furnished by the Association or the address of its
principal place of business.
(c) The affidavit of an officer or authorized agent
of the Association declaring under penalty of perjury that
a notice has been mailed to any Lessee or Lessees, or to
all Members, to the address or addresses shown on the
records of the Association, shall be deemed conclusive
proof of such mailing, whether or not such notices are
actually received.
Section 10 - Effect of Declaration. This Declaration is
made for the purposes set forth in the Recitals to this
Declaration and Declarant makes no warranties or
representations, express or implied as to the binding
effect or enforceability of all or any portion of this
Declaration, or as to the compliance of any of these
Provisions with public laws, ordinances and regulations
applicable thereto.
Section 11 - Personal Covenant. To the extent the
acce?ta.-ce or conveyance of a Residence creates a personal
covenant between the Lessee of such Residence and
Declara-t or other Lessees, such personal covenant shall
Beacon Pay
9/20/79 16 Rev. 9/24/79
terminate and be f no further force or eff c from or
after the date when a person or entity ceases to be an
Lessee except to the extent this Declaration may provide
otherwise with respect to the payment of money to the
Association.
Section 12 - Nonliability of Officials. To the fullest
extent permitted by law, neither the Board, the
Architectural Committee, and other committees of the
Association or any membtr of such Board or committee shall
be liable to any Member or the Association for any damage,
loss or prejudice suffered or claimed on account of any
decision, approval or disapproval of plans or
specifications (whether or not defective), course of
action, act, omission, error, negligence or the like made
in good faith within which such Board, committees or
persons reasonably believed to be the scope of their
duties.
Section 13 - Subleases. Any agreement for the subleasing
or rental of Residence (hereinafter in this Section
referred to as a "lease") shall provide that the terms of
such lease shall be subject in all respects to the
provisions -of this Declaration, the Articles, the Bylaws
and the Association Rules. Said lease shall further
provide that any failure by the lessee thereunder to
comply with the terms of the foregoing documents shall be
a default under the lease. All leases shall be in
writing. Any Lessee who shall lease his Residence shall
be responsible for assuring compliance by such Lessee's
lessee with this Declaration, the Articles, the Bylaws and
the Association Rules.
Sectio: 14 - Amendments. Subject to the other provisions
of this Declaration, this Declaration may be amended as
follo,tis :
(a) Any amendment or modification of the Articles
hereof_ entitled "Covenant for Maintenance Assessments,"
"Nonpay;,?,^,t of Assessments," "Architectural Control," and
"Repair and Maintenance," or of this Section shall require
the affirmative vote or written approval of not less than
sixty percent (60%) of the Members.
(b) Any amendment or modification of any Article
other t , those specified in subparagraph (a) above shall
require the affirmative vote or written approval of a
major i t\:• of the members.
(c) An amendment or ,codification that requires the
vote ani' written assent of the Members as hereinabove
Beacon: Eof
9/20/79 17 Rev. 9/24/79
provided shall -e effective when executed oy the President
and Secretary of the Association who shall certify that
the amendment or modification has been approved as
hereinabove provided, and when recorded in the Official
Records of the County. The notarized signatures of the
Members shall not be required to effectuate an Amendment
of this Declaration.
(d) Notwithstandipg the foregoing, any provision of
this Declaration, or the Articles, Bylaws or Association
Rules which expressly requires the approval of a specified
percentage of the voting power of the Association for
action to be taken under said provision can be amended
only with the affirmative vote or written assent of not
less than the same percentage of the Voting Power of the
Association.
IN WITNESS WHEREOF, Declarant has executed this
instrument the day and year first herein above written.
ATTEST:
CITY OF NEWPORT BEACH,
a chartered municipal corporation
Mayor
City Clerk
APPROVED AS TO FORM:
City Attorney
Beacon Bay
9/20/79 18 Rev. 9/24/79
STATE OF )
COUNTY OF ) ss.
On , 19 , before me the undersigned, a
Notary Public in and for said State, personally
appeared , known to me to be
the of the corporation that
executed the within Instrument, known to me to be the person who
executed the within Instrument on behalf of the corporation
therein named, and aclhowledged to me that such corporation
executed the within instrument pursuant to its bylaws or a
resolution of its board of directors.
WITNESS my hand and official seal.
Notary Public
[Seal)
3
Beacon BDy
9/20/79 19 Rev. 9/24/79
3
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