HomeMy WebLinkAboutBeacon Bay, 40LEASE
THIS LEASE is made and entered into as of the 2 G day of JU„ id , 1994, by and between the CITY
OF NEWPORT BEACH, a Charter City and municipal corporation ("Lessor"), and
%,( AmA 'y6 wP,Y ("Lessee"), regarding the real property commonly
referred Ao as Beacon Bay Lot A 0 .
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.
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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.
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:
LEASED LAND.
Lessor hereby leases to Lessee the real property commonly known as Beacon Bay Lot (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 (21/2%) 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
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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.
(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 inter 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.
.4
(11) "Transferred" shall mean any sale, assignment, sublease or other transaction, other
than an exempt transfer as defined in Paragraph 3.6(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 I 'v Is S $ 13 , 572 ),
payable at the rate of e v5ah� k 'r �,^1 131. b p ) peY month. Lessee shall
also pay, if applicable, deferred rent in t e sum
($ ) upon execution of this Lease. Rent shall - shall no (circle one) be adjusted every
seven (7) years after the date of transfer in accordance with provisions of Paragraph 3.6(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 3.6(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 (21/2%)
of the Actual Sales Value determined as of the date of the transfer in accordance
with the provisions of paragraph 3.A(t). Thereafter, rent shall be adjusted every
seven years after the date of the transfer in accordance with the provisions of
paragraph 3.B(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.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).
(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 provisioFs of Paragraph
3.B(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.B(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-
NB1-187371.V2 - 4 05/24/94
off Date, the Subsequent Lessee shall pay annual rent equal to two and one-half
percent (2'/2%) 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 3.6(4).
(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 3.6(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 3.6(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
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(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 3.6(I)(a), 3.13(2)(a) and 3.6(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. 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 3.6(2)(c), and thereafteivas provided in
Paragraph 3.6(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
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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
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); .Ai
(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
NB1-187371.V2 1 05/24/94
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
3.6(3)(e) shall only be exempt from the further provisions of Paragraph 3.13 (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
xecutedbetween 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
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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.
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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 makes 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 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
NB1-187371.V2 10 05/24/94
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, pier;, 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, street lighting, telephone and
electricity lines and other Infrastructure facilities in Beacon Bay at its initial cost and to assess Lessee for
N01 -187371.V2 11 05/24/94
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 D 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 anek 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 anyway
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
NB1-187371.V2 12 05/24/94
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.
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 14.14(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;
NB1-187371.V2 13 05/24/94
(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
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 awartil: 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
NB1-187371.V2 14 05/24/94
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 14.13(1).
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
NB1-187371.V2 15 05/24/94
r,-., /1'
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 15.6, 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.
(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
NB1-187371.V2 16 05/24/94
(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 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 ggvenants 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.
NB1-187371.V2 17 05/24/94
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
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.
NB1-187371.V2 18 05/24/94
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 andj neuter and the
singular number includes the plural whenever the context so requires.
N81 -187371.V2 19 05/24/94
IN WITNESS WHEREOF, the parties have caused this Lease to be executed as of the date first above
written.
tiW P24,
ATTEST:
4,
CITY CLERK
APPR07D AS TO FORM:
ti
fffYWIFTORNEY
LESSOR:
CITY OF NEWPORT BEACH,
By:
AVnm
Title: MAYOR
LESSEE:
Zi
NB1-187371.V2 20 05/24/94
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EXHIBIT B
Beacon Bay Lot described as follows:
Lot 40 as shown on the map filed in Book 9, Page 42 and 43 of Record of
Surveys, in the office of the County Recorder, County of Orange, State of
California.
SUMMARY OF SALIENT FACTS AND CONCLUSIONS - continued
SUMMARY OF VALUE INDICATIONS:
Existing
(Istyear)
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
t�
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
r
SUMMARY OF SALIENT FACTS AND CONCLUSIONS - continued
�v
Exhibit C - Page 2
Existing
(1st year)
Unencumbered
Fair Market
Contract
Effective
Lot No.
Fee Lot Value
Rental Value
Rent
Net Rent
Interior Lots
23
$478,000
$14,487
$2,782.32
$6,297.00
24
$501,000
$15,237
$6,125.04
$8,897.00
25
$509,000
$15,537
$3,399.12
$6,977.00
26
$511,000
$15,612
$3,417.72
$6,942.00
27
$519,000
$15,912
$3,436.44
$7,102.00
28
$542,000
$16,775
$4,137.72
$7,785.00
29
$518,000
$15,650
$15,375.00
$15,470.00
30
$510,000
$15,462
$3,551.16
$7,102.00
31
$517,000
$15,725
$8,750.00
$10,515.00
32
$520,000
$15,837
$3,588.48
$7,217.00
33
$528,000
$16,137
$3,607.08
$7,307.00
34
$589,000
$18,200
$4,454.64
$8,490.00
35
$559,000
$17,000
$3,776.28
$7,780.00
36
$548,000
$16,662
$3,795.00
$7,672.00
37
$517,000
$15,725
$14,625.00
$15,005.00
38
$520,000
$15,837
$3,780.36
$7,967.00
39
$528,000
$16,137
$9,125.04
$11,557.00
40
$588,000
$18,162
$11,133.60
$13,572.00
41
$513,000
$15,500
$3,719.64
$7,300.00
42
$548,000
$16,662
$3,795.00
$7,672.00
43
$556,000
$16,962
$11,250.00
$13,232.00
44
$558,000
$17,037
$3,832.20
$7,787.00
45
$565,000
$17,300
$4,056.84
$7,990.00
46
$588,000
$18,162
$4,454.64
$8,492.00
47
$539,000
$16,475
$3,459.36
$7,365.00
48
$551,000
$16,775
$6,249.96
$9,305.00
49
$520,000
$15,837
$3,551.16
$7,197.00
50
$523,000
$15,950
$3,569.76
$7,240.00
51
$520,000
$15,837
$3,780.36
$7,857.00
52
$528,000
$16,137
$12,750.00
$13,927.00
53
$588,000
$18,162
$4,479.00
$8,492.00
54
$530,000
$15,987
$3,344.88
$7,227.00
55
$559,000
$17,075
$10,625.04
$12,865.00
56
$567,000
$17,375
$3,603.96
$7,915.00
57
$546,000
$16,737
$3,551.16
$7,427.00
58
$528,000
$16,137
$6,750.00
$10,007.00
59
$525,000
$16,025
$10,125.00
$12,175.00
60
$533,000
$16,325
$3,533.88
$7,315.00
Exhibit C - Page 2
SUMMARY OF SALIENT FACTS AND CONCLUSIONS - continued
V
Unencumbered Fair Market
Lot No. Fee Lot Value Rental Value
Interior Lots - continued
61
$588,000
ES 3
$474,000
ES 4
$467,000
ES 5
$470,000
ES 6
$468,000
ES 7
$461,000
ES 8
$471,000
Subtotal Int.: $23,786,000
$18,162
$14,225
$13,962
$14,075
$14,000
$13,737
$13,925
Existing
Contract
Rent
$4,436.16
$8,750.04
$3,021.96
$10,000.08
$2,982.96
$2,966.04
$3,118.08
$724,637 $254,617.16
Subtotal W.F.: $31,563,000 $1,160,640 $519,983.08
(1st year)
Effective
Net Rent
$8,482.00
$10,325.00
$6,322.00
$11,415.00
$6,310.00
$6,057.00
$6,455.00
$397,807.00
$705,220.00
Grand Totals: $55,349,000 $1,885,277 $774,600.24 $1,103,027.00
Exhibit C m Page 3'
Distribution of Rents and Tax Advantage between Tidelands and Uplands*
Beacon Bay 6/6/94 - Page 1
Exhibit D
(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
Waterfront 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
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%
0%
$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
Waterfront
Subtotal:
$705,220.00
$500,848
$204,372
$34,710
$24,984
Beacon Bay 6/6/94 - Page 1
Exhibit D
Distribution of Rents and Tax Advantage between Tidelands and Uplands*
Beacon Bay 6/6/94 - Page 2
Exhibit D
(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
Interior Lots
23
$6,297.00
0%
100%
$0
$6,297
$550
$0
24
$8,897.00
0%
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%
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%
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
0%
100%
$0
$7,780
$580
$0
36
$7,672.00
0%
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
$13,232.00
0%
100%
$0
$13,232
$0
$0
44
$7,787.00
0%
100%
$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%
100%
$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%
100%
$0
$12,175
$0
$0
60
$7,315.00
0%
100%
$0
$7,315
$660
$0
Beacon Bay 6/6/94 - Page 2
Exhibit D
Distribution of Rents and Tax Advantage between Tidelands and Uplands*
V
(1st year)
Proportionate
Effective
Lot No.
Net Rent
Interior 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
Interior Lots
$720
Subtotal:
$397,807.00
Add Waterfront:
$705,220.00
Grand Total:
$1,103,027.00
% of Total:
100%
V
*Effective Net Rents consider tax advantage. Discount rate for present value of annual
advantage is 6%. Rate for amortization of advantage is 7%. Rent and advantage
figures are from 10/8/93 appraisal. Lots 3, 7, and 21 have been adjusted for new contract rent real estate taxes.
Beacon Bay 6/6/94 - Page 3
Exhibit D
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%
*Effective Net Rents consider tax advantage. Discount rate for present value of annual
advantage is 6%. Rate for amortization of advantage is 7%. Rent and advantage
figures are from 10/8/93 appraisal. Lots 3, 7, and 21 have been adjusted for new contract rent real estate taxes.
Beacon Bay 6/6/94 - Page 3
Exhibit D
I
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City Manager's Office
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663
MEMORANDUM OF LEASE
OIL
�n e � R r rs ra,n
� ;{ — D E a . _ tip 9 4 € '3 = _a a=: A H
rif iirwit p I_rt;n-y, Califrt'riii.y
Lc- H. fii..,:+_i:: „L}ui;u :tcvvlii+=i
r`•33n i of fees! etit
T;-iX t:Aii:
This MEMORANDUM OF LEASE is entered into as of the _�0 day of June 1994, by and
bp,tyveen ✓THE CITY OF UWPORT BEACH, a chartered municipal corporation ("Lessor"), and
v Xt" pr -j a boluer ("Lessee"), to witness that
Lesspr and Lessee executed a lease dated Joi v ✓V I, 19-8 a memorandum of which was recorded
on 19_U as Instrument No. - 3 0 9 15 I in the Official Records of Orange
County. By said lease, the Real Property described below was leased to Lessee until July 1, 2006. The
parties agree to terminate said lease as of the Commencement Date set forth below, and to discharge and
release each other from all obligations under said lease as of said date (other than delinquent rent or other
charges, if any, owed by Lessee pursuant to said lease as of the termination).
Lessor hereby leases to Lessee, commencing on July 1, 1994 (the "commencement Date"), and ending
on July 1, 2044, on the terms and conditions set forth in that certain lease by and between the parties
hereto executed concurrently herewith, all the terms and conditions of which are made a part hereof as
though fully set forth herein, those certain premises in the City of Newport Beach, County of Orange,
State of California (the "Real Property"), described as follows:
Lot 40 as shown on the map filed in Book 9, Pages 42 and 43 of Record of Surveys, in the
Office of the County Recorder, County of Orange, State of California.
IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the date first about
written.
PORT
ATTEST: >-
/i1 5 _ z
Clerk- `''LIFO
APPRPVED AS TO FORM:
1�6� 4"
Cith Attorney
71
STATE OF CALIFORNIA
COUNTY OF ORANGE
LESSOR:
CITY OF NEWPORT BEACH
B
Y
Mayor
LESSEE:
On June AV, 1994, before me, DA, C S , a Notary Public in and for said
State, personally appeared r wn (or
proved to me on the basis of satisfabibry evidence) to be the erson*whose names ids are subscribed
to the within instrument and acknowledto me thgat #�e` he executed the same in °rear
authorized capacity(ieej; and that b /#tefp si natur on the instrument the person*) or the
entity upon behalf of which the persons) -acted, executed the instrument.
WITNESS my hand and official seal. Monica S. Kutz
Signature al) Comm #1014469
NOTARY' at:EOC C oP .FORMA*
24 ORANGE COUNTY A
Comm t ,CIIP� Jan 13 iM
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
On g j , 1994, b fore me, / 1yao-a �. -a No or said
State, personally appeared Ir i�-714 Lns-f- rgonally known to or
proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are su scribed
to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature�m On OA 's, �:eal) Monic� Ku
tz
U
�n Comm. *1013469
�/ • • NOTARY PUBLIC CALIFORNIA
ORANGE COUNTY Q
pt+ Comm Expires Jan 13, t9sZi '�
ASSIGNMENT OF LEASE
Mary Ann Price ("Lessee") does hereby assign and
transfer to Mary Ann Price -Bower, as Trustee of the Mary Ann
Price -Bower 1991 Revocable Trust, under Declaration of Trust
dated May 23, 1991, the interest of Lessee under that certain
Lease (the "Lease") dated June 1988, and the Memorandum of
Lease dated June, 1988, by and between the City of Newport
Beach, a charter municipal corporation, as Lessor, and Mary
Ann Price, an unmarried woman, as Lessee, concerning the real
property described on Exhibit 2 to the Lease which is attached
hereto as Exhibit A. The term of said Lease is for a period
commencing on January 1, 1988 and ending on July 1, 2006.
Dated: August, 19,91—�
MaryAn Price
Lessee
CONSENT
The City of Newport Beach hereby consents to the Assignment of
the Lease dated June 1988.
City of Newport Beach
By
Lessor
L E A S E
THIS LEASE, made and entered into on the day of
JUNE, 1988, by and between the CITY OF NEWPORT BEACH, a chart-
ered municipal corporation, hereinafter "Lessor",
and t'ARY ANN PRICE, an unmarried woman
herein-
after "Lessee."
RECITALS
A. Lessor holds title to and is the owner of certain
harbor frontage and tidelands, together with certain uplands
# abutting thereon known as Beacon Bay and more particularly
} described in Exhibit "1" attached hereto.. and made a part hereof
by this reference.
B. Carroll B. Beek, Barton Beek, Joseph Allan Beek,
Jr., and Seymour Beek jointly hold a Master Lease to said proper-
ty, dated January 9, 1950, which Master Lease expires on December
31, 1987.
C. The "Westerly Portion" of the Beacon Bay property
has been divided into individual lots and subleased for residen-
tial purposes.
D. All of said subleases expire on the same date as
the Master Lease, to wit: December 31, 1987.
E. Lessor believes it to be in the best interest and
lessees under the terms, conditions and for the consideration as
hereinafter set forth.
F. It is the judgment of Lessor that the leasing of
the property hereinafter described is consistent with the trust
purposes imposed upon such portions of the leased lands which may
constitute tidelands as authorized by Chapter 74, Statutes of
1978.
G. It is further the judgment of City, that in entering
into this Lease in the future, City is acting pursuant to its
proprietary powers.
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING
RECITALS AND THE MUTUAL COVENANTS set forth below, Lessor and
Lessee hereby agree as follows:
1. DESCRIPTION OF LEASED PREMISES. Lessor hereby
leases, and Lessee hereby accepts this lease of the real property
described in Exhibit "2" attached hereto and made a part hereof
by this reference under the terms and conditions as set forth
below (hereinafter the "Leased Land").
2. TERM. Unless terminated sooner as provided herein,
the term of this Lease is for a period commencing on the 1st day
of.January, 1988, and ending on the 1st day of July 2006.
3. BASE RENTAL. As base r.ental,: Lessee agrees to.pay
to Lessor the sum of NINE HUNDRED TWGN'Iy-SEVEN/DO LLARSths($ 927.08
)
per month, payable on the 1st day o8 each month so long as this
Lease remains in effect subject to a base rental adjustment, as
provided in paragraph 4 below. Said rental payment is deemed to
be the fair market rental value of the Leased Land as an improved
subdivision lot.
4 4. SALE, ASSIGNMENT SUBLEASE Lessee may sell,
assign, exchange, convey or sublease his leasehold interest or
encumber such interest without a prior written consent of Lessor;
provided, however, that the Lessee, proposed transferee, assignee
(a) Furnish Tes;or with an executed copy of such
assignment, Trust Deed, or other document used to effect such
transfer;
(b) Furnish to Lessor the express agreement of the
proposed transferee or encumbrance assuming, and agreeing to per-
form, all of the obligations under this Lease;
(c) Pay to Lessor a transfer fee of $50.00; and
(d) Pay to Lessor the adjusted base rental which
shall be the greater of the following:
(i) The base rental as set forth in paragraph
3 above, or
(ii) An amount, equal to two and one half
percent (2 1/2%) of the aatual sales value of the..leasehold
estate, including the improvements thereon, divided by twelve
(12) and payable monthly. The actual sales value shall be the
total value of the transfer, as established by the Assessor of
Orange County or verified by Lessor. The parties to said
transaction shall furnish Lessor with any information regarding
the transaction as Lessor may deem necessary to verify the total
value of the transaction. If said transfer transaction cannot be
verified by normal and accepted methods of verification, Lessor,
at its sole discretion, may cause the leasehold estate and
improvements thereon to be appraised to establish the fair market
value of the property, which value shall be deemed the actual
sales value thereof_, as of the date of transfer, and establish
thereby the adjusted base rental. The adjusted base rental shall
become effective on the date of transfer.
The provisions of this subparagraph shall not
cause an adjustment of rentals if:
(a) Lessee is assigning his interest in this
Lease to a Trustee under a Deed of Trust for the benefit of the
lender as provided in paragraph 5, below; or
n) Furnish i,es:;or •.pith -,n xecu teci copy of such
assignment, ':rust Deeri, or ether document used to effect such
transfer;
(b) Furnish to Lessor the express agreement of the
proposed transferee or encumbrance assuming, and agreeing to per-
form, all of the obligations under this Lease;
(c) Pay to Lessor a transfer fee of $50.00; and
(d) Pay to Lessor the adjusted base rental which
shall be the greater of the following: .
(i) The base rental as set forth in paragraph
3 above, or
(ii) An amount, equal to two and one half
percent (2 1/2%) of the actual sales value of the..leasehold
estate, including the improvements thereon, divided by twelve
(12) and payable monthly. The actual sales value shall be the
total value of the transfer, as established by the Assessor of
Orange County or verified by Lessor. The parties to said
transaction shall furnish Lessor with any information regarding
the transaction as Lessor may deem necessary to verify the total
value of the transaction. If said transfer transaction cannot be
verified by normal and accepted methods of verification, Lessor,
at its sole discretion, may cause the leasehold estate and
improvements thereon to be appraised to establish the fair market
value of the property, which value shall be deemed the actual
sales value thereof_, as of the date of transfer, and establish
thereby the adjusted base rental. The adjusted base rental shall
become effective on the date of transfer.
The provisions of this subparagraph shall not
cause an adjustment of rentals if:
(a) Lessee is assigning his interest in this
Lease to a Trustee under a Deed of Trust for the benefit of the
lender as provided in paragraph 5, below; or
Of, but the
tenancy shall
basis and thereafter
Otherwise r be on a Month
set for th. °n the same terms and Conditions _to
_Mon th
1' MISCELLANEOas herein
Inurem
US
and agreements Each
and all of th
agree
the Context rein .contained shall, in e cOVenants, conditions
Lessee, his'resP respect* inure o the benefit of Lessor accordance with
m.inistrator , 8ucc ve heirs, legatees, dev.and apply to and bind
s
Person who
may co essors, assigns, licensees-lsees, executors, ad
me into
Land or an ° Possessio , Permitees, o
Possession.or
this Part thereof in an or °CCupancy Of said any
Paragraph ShallY manner what Leased
tai' soever. Nothin
ned.against in any way alter the , g in
assignment Provisio
IN WITNESS°r subletting.. ns herein Co._
Lease to be executed ° to WHEREOF, the parties have cause
date.f.irst above written d this
CITY OF NEWPORT BEACH
ATTEST: BY
' Mayor
i
APPROVED AS TO FORM:
C1tY Attorney
essee
essee
A parcel 0f land situated in
Township 6 South, Ran the Northwest
California 9e 10 West, S B 8' & quarter of Section 35,
, more particularly described follows, Orange
9e County,
Beginning at the United States Bulkhead t0 wit.
upon a map entitled Station
approved May "Harbor Lines, New No• -,200, as shown
Office of y 2, 1930' by the Secretary Port Bay Harbor
California- o f the United States DSe retary of War California,"
running thence W Engineer at and on file in the
line 747.50 feet to est along the United Los Angeles,
39048' West along said
States Station No States Bulkhead
23057'30" East
along
(Bulkhead line 535.53 feet-' thence North
tide line of the Pacific to an an eet; thence North
Court Case Ocean glpo ptiBa in the ordinary high
in and f t 24026 of .the Superior New
or the Count Perior Court y' as described in
ordinary high tide lineCounty
of thence South 39048'Ea of California,
the
that certain parcel of land 47 feet to the most W East along
by The Irvine conveyedesterlcorner said
1929 Company, as describedino the City of New ort Beaof.
in Book 306, page 375 sc Official 7deed recorded September
line of North 23057'30" East along t ds of Orange County,
lin said parcel of land 377.57 feet -
along the Northerly the Northwesterly
South 850431 line of said , thence South 71054'
said East along the Northerly
of land 290,24 f East
Northerly line being ortherly line of feet
thence
606.01 feet; thence South the Southerl said parcel iv land,
States Government h 424.71 feet to lane of Bayside Drive,
Nos. Bulkhead Line between Point in the
to the 01 and 200; thence West United StatesUnited
point of beginning; along 9ad'Bulkhead line Stations78425feet
acres, 9•nning; containinne 784.25
approximately twelve -02).
Said parcel of land is shown on Attachment
2 for Purposes only and is not to be a part of this document�fication
EMBli "2"
Lot 40 as sho,in on the map filed in Book 9, Pages 42 and
43 or Record of Surveys, in the office of the County Recorder,
County of Orange, State of California.
IIL
THIS LEASE, made and entered into on the day of
JUNE, 1988, by and between the CITY OF NEWPORT BEACH, a chart-
ered municipal corporation, hereinafter "Lessor",
and MARY ANN PRICE, an unmarried woman
herein-
after "Lessee."
A. Lessor holds title to and is the owner of certain
harbor frontage and tidelands, together with certain uplands
abutting thereon known as Beacon Bay and more particularly
described in Exhibit "1" attached hereto and made a part hereof
by this reference.
B. Carroll B. Beek, Barton Beek, Joseph Allan Beek,
Jr., and Seymour Beek jointly hold a Master Lease to said proper-
ty, dated January 9, 1950, which Master Lease expires on December
31, 1987.
C. The "Westerly Portion" of the Beacon Bay property
has been divided into individual lots and subleased for residen-
tial purposes.
D. All of said subleases expire on the same date as
the Master Lease, to wit: December 31, 1987.
E. Lessor believes it to be in the best interest and
welfare of said Lessor (1) that the portion of Beacon Bay which
is currently leased for residential purposes remain residential
in character, and (2) to enter into new subleases with the sub -
1
I
t
lessees under the terms, conditions and for the consideration as
hereinafter set forth.
F. It is the judgment of Lessor that the leasing of
the property hereinafter described is consistent with the trust
purposes imposed upon such portions of the leased lands which may
constitute tidelands as authorized by Chapter 74, Statutes of
1978.
G. It is further the judgment of City that in entering
into this Lease in the future, City is acting pursuant to its
proprietary powers.
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING
RECITALS AND THE MUTUAL COVENANTS set forth below, Lessor and
Lessee hereby agree as follows: 0
1. DESCRIPTION OF LEASED PREMISES. Lessor hereby
leases, and Lessee hereby accepts this lease of the real property
described in Exhibit "2" attached hereto and made a part hereof
by this reference under the terms and conditions as set forth
below (hereinafter the "Leased Land").
2. TERM. Unless terminated sooner as provided herein,
the term of this Lease is for a period commencing on the lst day
of.January, 1988, and ending on the 1st day of July 2006.
3. BASE RENTAL. As base rental,- Lessee agrees to -pay
& 08/100ths
to Lessor the sum of NINE HUNDRED TWEN'T'Y-SEVEN/DOLLARS, ($ 927.08 )
per month, payable on the 1st day of each month so long as this
Lease remains in effect subject to a base rental adjustment, as
provided in paragraph 4 below. Said rental payment is deemed to
be the fair market rental value of the Leased Land as an improved
subdivision lot.
4. SALE, ASSIGNMENT, SUBLEASE Lessee may sell,
assign, exchange, convey or sublease his leasehold interest or
encumber such interest without a prior written consent of Lessor;
provided, however, that the Lessee, proposed transferee, assignee
or encumbrancer shall:
2
(a) Furnish Lessor with an executed copy of such
assignment, Trust Deed, or other document used to effect such
transfer;
(b) Furnish to Lessor the express agreement of the
proposed transferee or encumbrance assuming, and agreeing to per-
form, all of the obligations under this Lease;
(c) Pay to Lessor a transfer fee of $50.00; and
(d) Pay to Lessor the adjusted base rental which
shall be the greater of the following:
3 above, or
(i) The base rental as set forth in paragraph
(ii) An amount, equal to two and one half
percent (2 1/2%) of the ac.tual sales value of the leasehold
estate, including the improvements thereon, divided by twelve
(12) and payable monthly. The actual sales value shall be the
total value of the transfer, as established by the Assessor of
Orange County or verified by Lessor. The parties to said
transaction shall furnish Lessor with any information regarding
the transaction as Lessor may deem necessary to verify the total
value of the transaction. If said transfer transaction cannot be
verified by normal and accepted methods of verification, Lessor,
at its sole discretion, may cause the leasehold estate and
improvements thereon to be appraised to establish the fair market
value of the property, which value shall be deemed the actual
sales value thereof_, as of the date of transfer, and establish
thereby the adjusted base rental. The adjusted base rental shall
become effective on the date of transfer. .
The provisions of this subparagraph shall not
cause an adjustment of rentals if:
(a) Lessee is assigning his interest in this
Lease to a Trustee under a Deed of Trust for the benefit of the
_lender as provided in paragraph 5, below; or
3
(b) The transfer is caused by the death of a
spouse and the full interest of the deceased spouse is
transferred to the surviving spouse.
5. ENCUMBRANCES. If Lessee assigns his interest in
this Lease to a Trustee under a Deed of Trust (hereinafter called
"Trust Deed") for the benefit of the lender hereinafter called
"Encumbrancer"), such encumbrance shall be upon and subject to
the following covenants and conditions:
(a) Said Trust Deed and all rights acquired there-
under shall be subject to each and all of the covenants, condit-
ions and restrictions set forth in this Lease and to all rights
and.interest of the Lessor hereunder, except as herein otherwise
provided. '
(b) In the event of any conflict between the pro-
visions of this Lease and the provisions of any such Trust Deed,
the provisions of this Lease shall control.
(c) Any Encumbrancer which is an established bank,
savings and loan association or insurance company, and is the
purchaser at a foreclosure sale, or is an assignee under an
assignment in lieu of foreclosure shall be liable to perform the
obligations of the Lessee under the Lease only so long as such
Encumbrancer holds title to the leasehold. -
(d) Lessee shall furnish to Lessor a complete copy
of the Trust Deed and Note secured thereby, together with the
name and the address of the holder thereof.
(e) Upon and immediately after the recording of
the Trust Deed, Lessee, at Lessee's expense, shall cause to be
recorded in the office of the Recorder of Orange County,
California, a written request executed and acknowledged by Lessor
for a copy of any notice of default and of any notice of sale
under the Trust Deed as provided by the statutes of the State of
California relating thereto.
4
(f) Lessor agrees that it will not terminate this
Lease because of any default or breach hereunder on the part of
Lessee if the Encumbrancer under such Trust Deed, within ninety
(90) days after service of written notice on the Encumbrancer by
Lessor of its intention to terminate this Lease for such default
or breach, shall:
(i) Cure such default or breach if the
same can be cured by the payment or expenditure of money provided
to be paid under the terms of this Lease; provided, however,
that for the purpose of the foregoing, Encumbrancer shall not be
required to pay money to cure the bankruptcy or insolvency of
Lessee or to satisfy Lessee's obligations under Paragraph 12
hereof, "Indemnification", or
(ii) If such default or breach is not so
curable, cause the Trustee under the Trust Deed to commence and
thereafter to. diligently pursue to completion steps and proceed-
ings for judicial foreclosure, the exercise of the power of sale
under and pursuant to the Trust Deed in the manner provided by
law, or accept from the Lessee an assignment in lieu of foreclo-
sure; and
(iii) Keep and perform all of the covenants and
conditions of this Lease requiring the payment or expenditure of
money by Lessee until such time as said leasehold shall be sold
upon foreclosure pursuant to the Trust Deed, be released or
reconveyed thereunder, sold upon judicial foreclosure or
transferred by Deed in lieu of foreclosure; provided, however,
if the holder of the Trust Deed shall fail or refuse to comply
with any and all of the conditions of this paragraph, then and
thereupon Lessor shall be released from the covenant of forebear-
ance herein contained.
6. USE. The Leased Land shall be used solely for resi-
dential purposes and any appurtenant uses associated therewith.
Lessee agrees to comply with all laws, regulations and ordinances
5
Of Lessor, the County and State affecting the Leased Land and any
improvements located thereon.
7. TAXES AND UTILITIES. It is understood by Lessor
and Lessee that this Lease may give rise to a possessory interest
tax obligation. 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, including any improvements located thereon or associated
therewith, or any possessory interest therein arising out of or
based upon the leasehold interest throughout the term hereof.
Satisfactory evidence of such payments shall be made available to
Lessor upon demand. Any lien for unpaid utilities, taxes,
assessments or charges shall not attach to the leasehold interest
but only to improvements located thereon.
8. 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
which shall be leased to the Beacon Bay Community Association by
the City, in consideration of the maintenance thereof by such
Association and fair market value rent to be paid by individual
Lessees. Lessor shall not be obligated to make any repairs,
alterations or improvements in or to, or upon or adjoining the
Leased Land or any structure or other improvement that may be
constructed or installed therein, but Lessee shall, at all times
during the terms of this Lease and at its sole cost and expense,
keep and maintain all buildings, structures and other
improvements on the Leased Land in good order and repair, and the
whole of the Leased Land and all improvements thereto free of
weeds and rubbish, and in a clean, sanitary and neat condition.
9. COMMUNITY ASSOCIATION. Lessee agrees to be-
come and during the term of this Lease remain a member in
good standing of the Beacon Bay Community Association, and
R
to abide by the Articles of Incorporation, Bylaws and rules and
regulations of said Association, now or hereafter existing, and
to pay to said Association before delinquency all dues, fees,
assessments and other charges from time to time duly levied or
assessed in furtherance of the Association's community purpose.
10. COVENANTS CONDITIONS AND RESTRICTIONS. Lessee
agrees to abide and be bound by all covenants, conditions,
restrictions and reservations as contained in Exhibit "3" attach-
ed hereto and made a part hereof by this reference. Said cove-
nants, conditions and restrictions shall run with the Leased Land
and shall be binding on Lessee and Lessee's successors in
interest.
11. INDEMNIFICATION. Lessee agrees that he will hold
and save Lessor, its officers, agents and employees harmless from
any and all claims or demands of any kind or nature whatsoever
arising out of, or incident to, the use and occupancy of the
Leased Land, and to indemnify Lessor.for any cost, liability or
expense caused by or arising out of any injury or death of
persons or damage to property which may occur upon or about the
Leased Land or caused by or arising out of any activities or
omission of Lessee, his agents, employees, licensees, and/
or invitees, including, without limitation, injury or death of
Lessee, his agents, employees, licensees and invitees and damage
to his property or Lessee's property; except for any damage or
injury of any kind arising out of the negligence of Lessor, its
agents or employees.
12. NON-COMPLIANCE AND TERMINATION OF LEASE*
Time and each of the terms, covenants and condi-
tions hereof are expressly made the essence of this Lease.
If Lessee shall fail to comply with any of the
terms, covenants or conditions of this Lease, including the pay-
ment of rental herein reserved, at the time and in the amount
herein required, and shall fail to remedy such default within
7
sixty (60) days and thereafter comply with each and every term of
this Lease, or if a Lessee shall abandon or vacate the Leased
Land, Lessor may, at its option, and without further notice or
demand, terminate this Lease and enter upon the Leased Land and
take possession thereof, and remove any and all persons therefrom
with or without process of law.
Lessor may elect to terminate this Lease for any
event of default or breach hereof or of the covenants, conditions
and restrictions contained in Exhibit "3". Should Lessor elect
to terminate, it may recover from Lessee all damages incurred by
Lessor by reason of such breach, including, without limitation,
the cost of recovering the Leased Land, and the worth at the time
of such termination of the excess, if any, of the amount of
unpaid rent and unpaid charges reserved under this Lease over the
amount of the rental loss which Lessee proves could be reasonably
avoided, for the remainder of the term of this Lease. Such
amount shall be immediately due and payable from Lessee to
Lessor, together with interest at the rate of 10% per annum from
the date owing until paid. The remedies of Lessor specified
herein are in addition to and cumulative of any remedies provided
Lessor by statute, including the remedies provided in California
Civil Code Sections 1951.2, et seg.
13. SURRENDER OF POSSESSION UPON EXPIRATION OR
TERMINATION Upon the expiration or termination of this Lease,
Lessee agrees to peaceably deliver possession of the Leased Land
to Lessor and unconditionally agrees to vacate the Leased Land
without contest, legal or otherwise. Lessee further expressly
agrees to waive any and all legal rights it may have to contest
vacating the Leased Land and further agrees to release Lessor
from any and all claims it may have of whatever nature. Lessee
further agrees to waive any relocation assistance or any other
assistance from Lessor resulting from vacating the Leased Land.
Lessee shall have the right prior to and for a period of ninety
111
(90) days after the expiration of this Lease to remove any build-
ings or improvements appurtenant thereto from the Leased Land,
except that all streets, walkways, common area landscaping,
docks, piers and any other installation constructed or installed
in the common areas, shall be the property of Lessor.
14. EMINENT DOMAIN
A. Definition of Terms. The term "total taking"
as used in this paragraph means the taking of the entire Leased
Land Iunder the power of eminent domain or the taking of so much
of said Land as to prevent or substantially impair the use there-
of by Lessee for the uses and purposes hereinabove provided.
The term "partial taking" means the taking of
a portion only of the Leased Land which does not constitute a
total taking as defined above.
The term "taking" shall include avoluntary
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.
The term "date of taking" shall be the date
upon which title to the Leased Land or portion thereof -passes to
and vests in the condemnor.
The term "Leased Land" means the real property
belonging to Lessor, together with any and all improvemens placed
thereon by Lessor or to which Lessor has gained title.
B. Effect of Taking. If durng 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 Land. If this Lease
S
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.
Q
C. Allocation of Award - Total Takinq. All
compensation and damages awarded for the total taking of the
Leased Land and Lessee's leasehold interest therein shall be
allocated as follows:
(a) The Lessor shall be entitled to an amount
equal to the sum of the following:
(i) The fair market value of the Leased
Land as improved (exclusive of the dwelling and appurtenances to
such dwelling) as of the date of taking, discounted by multiply-
ing such fair market value by the factor for the present worth of
$1.00 at �_% 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
(ii) The present worth of rents due dur-
ing the period from the date of taking to the date of the expira-
tion of the term of this Lease, computed by multiplying the
annual rent then payable by the factor for the present worth of
$1.00 per annum at /02,% per annum compound interest (Inwood
Coefficient) for the number of years in such period.
(b) 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.
D. Allocation of Award - Partial Taking All com-
pensation and damages awarded for the taking of a portion of the
Leased Land shall be allocated and divided as follows:
(a) The Lessor shall be entitled to an amount
equal to the sum of the following:
(i) The proportionate reduction of the
fair market value of the Leased Land 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 $1.00
at _�7 $ per annum compound interest for the number of years re-
maining from the date of taking to the date of the expiration of
the term of this Lease; and
10
L
(ii) 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 �/11 0. 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.
(b) 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 or 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 Lessee in
the ratio that the fair market rental value of the Leased Land at
the date of taking bears to the fair market value of the Leased
Land immediately thereafter.
15. ATTORNEYS' FEES Should either Lessor or Lessee be
required to employ counsel to enforce. the terms, conditions and
covenants of this Lease Agreement, the prevailing party shall
recover all reasonable attorneys' fees.(and court fees if applic-
able) incurred therein, whether or not court proceedings were
commenced.
16. REMEDIES CUMULATIVE. The rights, powers, elections
and remedies of the Lessor 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 right to exercise any other.
17. NO WAIVER. No delay or omission of the Lessor to
exercise any right or power arising from any omission, neglect or
default of the Lessee shall impair any such right or power or
shall be construed as a waiver of any such omission, neglect or
11
ti
default on the part of the Lessor or any acquiescence therein.
No waiver of any breach of any of the terms, cove-
nants, 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.
18. 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.
19. NOTICES. It is mutually agreed that 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
Blvd., Newport Beach, California 92663, 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. If he be 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
C. If no one can be found, then by affixing
a copy of the notice in a conspicuous place on the property or
also sending a copy through the mail addressed to the Lessee.
Such service upon Lessor or Les -see shall
be deemed complete at the expiration of forty-eight (48) hours
from and after the deposit in the United States mail of such
notice, demand or communication.
20. HOLDING OVER. This Lease shall terminate and be-
come null and void without further notice upon the expiration of
said term. Any holding over shall not constitute a renewal here -
12
Of,
but the tenancy shall thereafter
basis and otherwise on the s be
on a month-
ame to -month
set forth, terms and conditions as herein
21• MISCELLAN
SOUS
Inurement.
andEach and all
agreements here1 of the covenants. . conditions
the context shall, in accordance rdance with
Lessee to the benefit of Lesso
his res r and apply to bin
Pect.iVe heirs a and d
minis legatee vi
Person gators, successorsf assigns, ' de sees, executors, ad -
who may come licensees, Permitees� or
into Possession -or any
Land or any part thereof in
occupancy of said Leased
this para any manner
Paragraph shall in Whatsoever. Nothing in
tanned any way alter
against assignment the provision
s herein Con-
etting,
IN WITNESS WHER.gOF� the
Lease Parties have
to be executed Caused this
on the date first above written
ATTEST:
CITY OF NEWPORT BEACH
BY
Mayor
APPROVED AS TO FORM:
City Attorney
13.
Lessee
essee f _
EXHIBIT "1"
LEGAL DESCRIPTION OF BEACON BAY
A parcel of land situated in the Northwest quarter of Section 35,
Township 6 South, Range 10 West, S. B. B. & M., Orange County,
California, more particularly described as follows, to wit:
Beginning at the United States Bulkhead Station No.,200, as shown
upon a map entitled "Harbor Lines, Newport Bay Harbor, California,"
approved May 2, 1936, by the Secretary of War and on file in the
office of the United States District Engineer at Los Angeles,
California; running thence West along the United States Bulkhead
line 147.50 feet to United States Station No. 137; thence North
39048' West along said Bulkhead line 535.53 feet; thence North
23057'30" East 126.34 feet to an angle point in the ordinary high
tide line of the Pacific Ocean in Newport Bay, as described in
Court Case No. 24026 of.the Superior Court of the State of California,
in and for the County of Orange; thence South 39048' East along said
ordinary high tide line 334.47 feet to the most Westerly corner of.
that certain parcel of land conveyed to the City of Newport Beach
by The Irvine Company, as described in deed recorded September 25,
1929, in Book 306, page 375 of Official Records of Orange County,
California; thence North 23057'30" East along the Northwesterly
line of said parcel of land 317.57 feet; thence South 71054' East
along the Northerly line of said parcel of land 290.24 feet; thence
South 85043' East along the Northerly line of said parcel of land,
said Northerly line being the Southerly line of Bayside Drive,
606.01 feet; thence South 424.71 feet to a point in the United
States Government Bulkhead Line between United States Stations
Nos. 101 and 200; thence West along said Bulkhead line 784.25 feet
to the point of beginning; containing approximately twelve (12)
acres.
Said parcel of land is shown on Attachment 2 for identification
purposes only and is not to be a part of this document.
s
EXHIBIT 4'21.
Lot 40' as shown on the map filed in Book 9, Pages 42 and
43 of Record of Surveys, in the office of the County Recorder,
County of Orange, State of California.
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EXHIBIT "3"
DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
BEACON BAY COr,1MUNITY ASSOCIATION
Table of Contents
Article
I DEFINITIONS
1 - Architectural Committee
2 - Articles and Bylaws
3 - Assessments
4 - Association
5 - Association Rules
6 - Board
7 - City
8 - Common Expenses
9 - Common Area
10- Covered Property
7.1- Declarant
12- Exhibit
13- Member
14- Lessee
15- Residence
16- Setback
II MEMBERSHIP
1 - Membership
2 - Transfer
3 - Voting Rights
4 - Classes of Voting Member'ship-
5 - Approval of Members
III COVENANT FOR MAINTENANCE ASSESSMENTS
1 - Creation of the Lien and Personal
Obligation of Assessments
2 - Purpose of Assessments
3 - Regular Assessments
4 - Uniform Assessment
5 - Special Assessments
6 - No Offsets
7 - Reserves
s IV tiO 7 PAYMENT OF ASSESSMENTS
1 - Delinquency
- Notice of Lien
3 - Foreclosure Sale
(i)
2
2
2
3
3
3
3
3
4
4
4
4
4
4
4
5
5
5
5
5
5
5
1.1
6
6
6
6
6
6
7
7
7
8
8
s
4 - Relationship with Mortgage Liens
5 - Curing of Default
V ARCHITECTURAL CONTROL
1 - Appointment of Architectural Committee
2 - Gr�neral Provisions
3 - Approval and Conformity of Plans
.4 - Nonliability for Approval of Plans
VI :DUTIES AND POWERS OF THE ASSOCIATION
1 - General Duties and Powers
2 - General Duties of the Association
3 - General Powers of the Associationon
4 - Association Rules
VII REPAIR AND MAINTENANCE
1 - Repair and Maintenance by Association
2 - Repair and Maintenance by Lessee
3 - Maintenance of*Public Utilities
VIII USE RESTRICTIONS
1 - Commercial Use
2 - Signs
3 - Nuisance
4 - Animals
5 - California Vehicle Code
IX RIGHTS OF ENJOYMENT
1 - Members' Right of Enjoyment
2 - Delegation of Use
3 - .Waiver of Use
X G:-:�N'ERAL PROVISIONS
1 - Enforcement
2 - No Waiver
3 - Cumulative Remedies
4 - Severability
5 - Covenants to Run with the Land; Term
6 -- Heading
7 - *Singular Includes Plural
5 - Attorneys' Fees
9 - Notices
lam- Effect of Declaration
11- Personal Covenant
1_- Nonl.i.abil.ity of Officials
1--- Subleases
1'=- Amendments
I.
10
10
10
10
11
11
11
12
12
12
12
12
12
13
13
13
13
�?
13
14
14
-14 =
14
15
15
15
15
15
15
16
16
16
16
17
17
17
11INJ
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.
B. 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 quality of life within the
Coverer: Property.
C. It is desirable for the efficient management of
the Covered Property and the preservation of the value,
desirability and attractiveness of the Covered Property to
delegat:s and assigned the powers of managing the Covered
Prope�:t.:, maintaining and administering the Common Area
and ad:-zinisteri ng and enforcing these covenants,
conriiticr3 and restrictions and collecting and disbursing
funds ti_:-suant to the assessment and charges hereinafter
create= Ind referred to and to perform such other acts as
shall -,--,-'---ally benefit the Covered Property to the Beacon
Bay Assocation, a California nonprofit
s D. .Declarant will hereafter hold title to and lease
all Covor-ed Property subject to certain protective
coven-_r:t.s, conditions and restrictions hereafter set forth.
Be,aCon
9/20/79
Rev. 9/24/79
NOW, THEREFORE, Declarant hereby covenants, agrees and
declares that all of its interest as the same may from
time 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,
restrictions 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.
"Special Assessment" shall mean a charge against a
part_cular Lessee and his Residence, directly attributable
to the Lessee, to reimburse the Association for costs
incurred in bringing the Lessee and his Residence into
co.,-.ol.,ncc: with the'provisions of this Declaration, the
Articles, Bylaws or Association Rules, or any other charge
deli n :ted as a Special Assessment, together with
atto-rneys' fees and other charges payable, plus interest
thereon as provided for in this Declaration. _
Beaccn Bay
9/20//-V
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." ,
Section 6. "Board" shall mean the Board of Directors of
the Association. Y
4 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
Association;
(7) reasonable reserves as deemed appropriate by the
Boa --c ;
(h) the costs of bonding of the members of the Board,
any professional managing agent or any other person
handlin_, the funds of the Association;
Jr -
Beaco-. Bay
9/20/7; 3 Rev. 9/24/79
�J
(i) taxes paid by the Association;
(j) amounts paid by the Association for discharge of
any lien or encumbrance levied against the Common Area or
portions thereon;
-(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 Rui es, 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 mean all streets, beaches,
walkways, tennis courts, docks, piers, and common
landscaped areas, including but not limited to Lots A
through J inclusive as shown on Exhibit
Section 10. "Covered Property" shall mean and refer to
All the real.property described on Exhibit "I".
`i
Section 11. "Declarant" shall mean and refer to the City
of 11\1et.,port Beach.
Section 12. "Ixht'nit" shall mean and refer to those
documents so designated herein and attached hereto and
eac;, of such Exhibits is by this reference incorporat(-.1 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."
Secticn 14. "Lessee" shall mean and refer to one or more
persons or entities who are alone or collectively the
lessees of a Residence.
Sec -- o: 5. "Residence" shall. mean and refer to a
�l.ot shorn on the Record of Survey Map of Beacon
Bay S•_:,,5ivision recorded in Book 9, pages 42 and 43,
Recz)rcS of Survey, on file in the Office of the County
Rec-;r'er, Orange County, California; provided, however,
shzi 1.1. not include ally Comrnon Area.
shall include the residential dwelling unit
t -
Bc-._ 1�
9/2C/�
4 Rev. 9/24/79
?F � ,
i
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 iponflict 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,
Section 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
meml;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 Rights. All voting right shall be
subject to the restrictions and limitations provided
herei:: and in the Articles, Bylaws and Association Rules.
Section 4 _- Classes of Voting Membership The Association
shall :ave one (1.) class of voting membership.
Sec` is 3 - �)Ppr_oval of Members. Unless elsewhere
of r:�i specifically provided in this Declaration or the
any provision of this Declaration or the Bylaws
9/20/79
5 Rev_ 9/24/79
_-D
which requires the vote or written assent of the voting
power 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 o.f 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.
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 ",lember shall be sent written notice of the Regular
Asse sment and shall thereafter pay the Association in
inst 'lments as established by the Board.
Sect -;-'n 4 - Uniform Assessment. Regular Assessments shall
be nix=ed at an equal amount for each Residence.
Section 5 _ Special_ Assessments. Special Assessments may
be leviedby the Board from time to time.
Beac^:n Bay
/'�/' 6 Rev. 9/24/79
Section 6 - No Offsets. All Assessments 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 (10.2)
per annum. The Association may 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
compliance with the notice provisions set forth in the
Sec,"- on entitled "Notice of Lien" of this Article to
fors•::__ose the lien against the Residence. If action is
co:=.< -:seed, there shall be added to the amount of such
A�,;S,�--sment the late charge, interest, the costs of such
act -ion, and attorneys' fees incurred in connection with
sues: action; and in the event a judgment is obtained, such
ii), -1 . -,hent shall include said late charge, interest and a
reasonable attorney's fee, together with the costs of
action. Each Member vests in the Association, or its
the right and power to bring all actions at law
s- -
Beac.)n
9/21v/i9 7 Rev. 9/21/79
or lien foreclosure against such Member or other Members
for the col -lection of such delinquent Asses; -.ment s.
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 late 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 Association 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 Mortqaqe Liens.
(a) The lien provided for in the Article hereof
entitle? "nonpayment of Assessments" for the payment of
Asscss,-_c:ts shall be subordinate to the lien of any
Hortc .`e -ihich was recorded prior to the date any such
Asses. --:,�r nt becomes due.
(h) If any Residence subject to a monetary .Lien
crcat�r<' 'Dy any provision hereof shall be subject to the
lien of a mortgage: (1) the foreclosure of any lidn
ere t_ b-, anything set forth in this Declaration shall
Beacon ;41,
9/20/79
8 Rev. 9/24/79
r.,
not operate to affect or impair the lien of 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 - Appoint?nent 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 Board shall have the right to appoint the members of
the Arc:;itectural_ Committee. Persons appointed by the
Board to the Architectural Committee, however, must be
Member...
Section 2 - General Provisions.
(a) The Architectural Committee may establish
reasonable procedural_ rules and assess a fee in connection
with = :;-iew of plans and specifications including, without
limitaticn, the number of sets of plans to be submitted;
Beacon
9/20/7') 9 Rev. 9/24/79
Z3,.
however, the Architectural Committee may delegate 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 the 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 brigineering design or
for compliance 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 ir,
any structure constructed from such plans and
speci=icar-ions.
ARTICLE VI
DUTIES AND POWERS OF 'fill: ASSOCIATION
Sec:ti_c_n 1 - General Duties and Powers. In addition to the
duties u powers enumerated in its Articles and Bylaws,
Beacon Blav
9/20/79 10 Rev. 9/24/79
or elsewhere provided for herein, and without 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:
r
(a) enforce the provisions of this Declaration, the
Articles, Byla�-,s, 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 coverage 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 manager or other persons and contract
with independent contractors or managing agents to perform
all or any part of" the duties and -responsibilities of the
Association;
(b) borro:v money as may be needed in connection with
the disc-:arge of the Association's, powers and duties; and
(c) establish and maintain a working capital and
cont i nc _ncy Fund in an amount to be determined by the
Boars. Zaid fund shall be used by the Board as it deems
fit to carry out the objectives and purposes of the
Asso; - -- '-r
Se=L = Assor,, E�tion Ru_;.es. The Board shall have the
and repeal such rules and
rec'_:1�t:.:ls a sit ueems reasonable (tile "Association
RUi.In t`e c'vel-It of any conflict between any such
"-:3 S I-7 and any otter
provisions of this
o:= t,e Artir.l_es or I3yla�;s, the provisions of
the :. :. ;`�.o ; Rules shall- he deemed to be superseded by
the _ _ ons o;: this Decl. arat ion , the Ar t:i c1_es or the
c>:tcnt: of any such conflict.
IZev. 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 or obligate the Association
to maintain, replace or restore th-e-=underground facilities
or public utilities which are .located within easements in
the Ccmmmon Area o;vned by such public utilities. However,
the Association shall take such steps as are necessary or
convenient to ensure that such facilities are properly
maintai::ed, replaced or restored by such public utilities.
ARTICLE VIII
USE RESTRICTIONS
Sect:.^^f_ - Commr.ci.al_ Use. No part of a Residence shall
bf us r2o. for any 1-)Usincss, commercial, or nonresidential
pur,.)o ._.� .
Beacon:
9/20/7
12
Rev. 9/24/79
Section 2 - Signs. No sign or billboard of any kind shall
be displayed to the public view on any portion 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 an 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 ire 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
applicable California Vehicle Code sections on any private
streets within the Covered Property.
ARTICLE IX
RIGHTS OF ENJOYMENT
Section. 1 -_Members' Right of Enjoyment. Every Member
shall ha- *e nonexclusive easement for use and enjoyment in
and to the Common Area and such right shall be appurtenant
to ar..d S^a11 pass with the interest required to be a
Lessee to every Residence, subject to all of the
easements, covenants, conditions, restrictions and other
provisions contained in this Declaration, including,
without limitation, the following provisions:
Beacon Bav
9/20/79
13
Rev. 9/2.4/79
(a) The right of the Association to limit 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. 11
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
aw•or:in equity, all restrictions, conditions, covenants and
reservations, now or hereafter imposed by the provisions
of this Declaration or any amendment thereto, including
the right to prevent the violation of such restrictions,
conditions, covenants, or reservations and the right to
recover d5amages or other dues for such violation. The
Association or any Lessee shall also have the right to
enforce '_,y proceedings at law or in equity the provisions
of the '�rti.cles or. Bylaws and any amendments thereto.
With _SDect to architectural control and Association
Rules, the Association shall. have the exclusive right to
the enE,,:r-cement thereof: unless, the Association refuses or
is unable to effectuate such enforcement, in which case
any Lessee who otherwise has standing shall have the. right
to un!�ertahe such enforcement. With respect to Assessment
Beacon 2,6-j
9/20/79 14 Rev. 9/24/79
Liens, the Association shall have the exclusive right to
the enforcement thereof.
Section 2 - No Waiver. Failure by the Association or by
any Plember 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
instru<<ent, 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
consiuered or referred to in resolving questions of
interpretation or construction.
Section. 7 - Singular Includes Plural. Whenever the
contex= of this Declaration requires same, the singular
shall include the plural and the masculine shall include
the feminine and the neuter.
Beacon 3w�
9/20/79
15 Rev. 9/24/79
Section 8 - Attorn-vs' Fees. Tn the event action 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 Le-ssee 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 mattes no warranties or
representations, express or implied as to the binding
effect or enforceability of all or any portion of this
Declaralr.cn, or as to the compliance of any of these
Provisions with public laws, ordinances and regulations
applicable thereto.
Section 11 - Persona]. Covenant. To the extent the
acceptance or conveyance of a Residence creates a personal
covenant between the Lessee of such Residence and
Declara-;C or other Lessees, such personal covenant shall
Beacon 5ay
9/20/79 r 16 Rev. 9/24/79
1 �.
terminate and be of no further force or effect 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 1.2 - Nonliabil.i.ty o_f_Off ici_als. To the fullest
extent permitted by law, neither the Board, the
Architectural Committee, and other committees of the
Association or any member of such Board or comrii.ttee 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.
Section 14 - Amendments. Subject to the other provisions
of this Declaration, this Declaration may be amended as
follows:
(a) Any amendment or modification of the Articles
hereof entitled "Covenant for Maintenance Assessments,"
"Nonpayrent 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 cercent (60%) of the Members.
(b; Any amendment or modification of any Article
other than those specified in subparagraph (a) above shall
require the affirmative vote or written approval of a
major i tv of the memtcrs.
(c) An amendment or modification that requires the
vote anf written assent of the Members as hereinabove
t
Beacor! _:y
9/2.0/79 17 Rev. 9/24/79
i
provided shall he effective when executed by 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) Notwithstanding 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 WI "NESS WHEREOF, Declarant has executed this
instrument the day and year first herein above written.
ATTEST:
City Clerk
APPROVED AS TO FORM:
C_tv Attorney
Beacon D,
9/20/79
CITY OF NEWPORT BEACH,
a chartered municipal corporation
us
Mayor
18 Rev. 9/21/79
J
t
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 tp be the person who
executed the within Instrument on behalf of the corporation
therein named, and acknowledged 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.
[Seal)
Beaco:-: -:y
9/20/79
032381
19
I
Notary Public
Rev. 9/24/79
t
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EXEMPTRM"DiNG,�AQUE PER
...• 11 [rr[ggee77, r CODE-th'. 88-308151
k n k h A � y
G!bRD`ING .REQ -UE -UE -BY: AND
WHEN RECORDED RETURN TO:
City Manager's Office EXEMPT
City of Newport Beach CIO
3300 Newport Boulevard
Newport Beach, CA 92663
Attn: Kenneth J. Delino
DOCUMENTARY TRANSFER TAX -NONE DAMORANDUM OF LEASE
LEASE LESS THAN 99 YEARS
GUARDAIN TITLE
RECORDING REQUESTED By
GUARDIAN TITLE COMPANY
RECORDED IN OFFICIAL RECORDS
OF ORANGE COUNTY, CALIFORNIA
-3 2s PM JUN Z 8'88
THIS MEMORANDUM OF LEASE is inade and ent:eLed'into by
and between The City of Newport Beach, a chartered municipal
corporation, herein called "Lessor," and MARY ANN PRICE,
an unmarried woman
herein called "Lessee," to witness that:
Lot 40 as shown on the map filed in Book 9,
Page 4T -and 43 of Record of Surveys, in the office
of the County Recorder, County of Orange, State of
California.
EXECUTED on JUNE 1988,_Newport
Beach, Orange County, California.
ATTEST:
City Clerk
APPROVED AS TO FORM:
C'ty Attorn y
LESSOR
The CLty
COUNTY
RECORDER
of Newport Beach
LESSEE
i' r
tMARY NN C
e.LEASE SIGN & RETURN
Lessor hereby leases to
Lessee for a term of eighteen
(18) years
commencing on January
1, 1988, and ending on July 1,
2006, on
the terms and conditions
set forth in that certain
lease by
and between the parties
hereto dated January 1, 1988,
all the
terms and conditions of which lease are made a part
hereof as
though fully set forth
herein, all those certain
premises
in the County of Orange,
State of California.
.J
Lot 40 as shown on the map filed in Book 9,
Page 4T -and 43 of Record of Surveys, in the office
of the County Recorder, County of Orange, State of
California.
EXECUTED on JUNE 1988,_Newport
Beach, Orange County, California.
ATTEST:
City Clerk
APPROVED AS TO FORM:
C'ty Attorn y
LESSOR
The CLty
COUNTY
RECORDER
of Newport Beach
LESSEE
i' r
tMARY NN C
e.LEASE SIGN & RETURN
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RECORDING REDUES ED BY
no— GUARDIAN TITLE COMPANY
Ju
UU RECORDED IN OFFICIAL RECORDS
RECORDING REQUESTED BY OF ORANGE COUNTY, CALIFORNIA
AND WHEN RECORDED MAIL TO: ______—
City of Newport Beach $7.00' 25 P ,jU(� 2$'8
3300 Newport Boulevard C1Q y
Newport Beach, CA 92663 0, COUNTY
Attn: Kenneth J. Delino RECORXp
TERMINATION OF LEASEHOLD
This agreement is made this 6--'4A day of June, 1988, by and
between the CITY OF NEWPORT BEACH, hereinafter called "Lessor;"
and MARY ANN FORBES, hereinafter called "Lessee."
RECITALS
A. Lessor and Lessee executed a lease on January 1, 1988
and subsequently recorded in Book N /A, Page NIA of the
County Recorder of Orange County, California as Instrument No.
88-137686. By the terms of the lese, the following described
property was leased to Lessee for a term of eighteen (18) years,
commencing on January 1, 1988, and ending on July 1, 2006, 40
Beacon Bay, Newport Beach, California 92660; and
B. Lessee desires to terminate said lease and all rights
to the possession of the lease premises and to release Lessor from
its obligations under the lease, and Lessor desires to accept said
termination and to release Lessee from their obligations under the
lease.
Lessee agrees to terminate the lease and vacate the
pre -raises as described hereinabove as of July 28, 1988, and Lessor
agrees to accept such termination and the premises, and Lessor and
Lessee agree to discharge and release each other from all
obligations under the lease as of said date.
Executed at Newport Beach, California, on the day and year
first above written.
CITY OFF"NEWPORT BEACH
Robert L. Wynn,
City Manager
"Lessor" G
MARY APN FORBES
STATE OF CALIFORNIA
ss.
COUNTY OF ORANGE
88-308150
On this /6p, day of June, 1988, before me, the
undersigned, a Notary Public in and for said State, personally
appeared ROBERT L. WYNN, known to me to be the City Manager of the
City of Newport Beach, known to be to be the person whose name is
subscribed to the within instrument, and acknowledged to me that
he executed the same.
STATE OF CALIFORNIA
COUNTY OF ORANGE
WITNESS my hand and official seal.
i
Notary Pu 6lic in and for said State.
On the /_ day of;� 1988, before me, the
undersigned, a notary Public in and for said State, personally
appeared MARY ANN FORBES, known to me (or proved to me on the
basis of satisfactory evidence; to be the person that executod
this instrument, and acknowledged to me that she executed the
same.
..• �• r, OFFICIAL SEAL
CLAIRE WESTSERG
Notary Public -California
ORANGE COUNTY
c
a ,•o�+' My Comm. Exp. Sep. 7, 1591
( SEAL)
WITNESS py hand and official seal.
Notary—public in and f r said State.
OFFICIAL SEAL r
DOROTHY L. RALEN
NOTARY PUBLIC - CALIFORNIA
~
PRINCIPAL OFFICE IN
ORANGE COUNTY
°+�,,,.. •
My Commission Exp. Apr. 5, 1989
( SEAL)
STATE OF CALIFORNIA
COUNTY OF ORANGE
WITNESS my hand and official seal.
i
Notary Pu 6lic in and for said State.
On the /_ day of;� 1988, before me, the
undersigned, a notary Public in and for said State, personally
appeared MARY ANN FORBES, known to me (or proved to me on the
basis of satisfactory evidence; to be the person that executod
this instrument, and acknowledged to me that she executed the
same.
..• �• r, OFFICIAL SEAL
CLAIRE WESTSERG
Notary Public -California
ORANGE COUNTY
c
a ,•o�+' My Comm. Exp. Sep. 7, 1591
( SEAL)
WITNESS py hand and official seal.
Notary—public in and f r said State.
U N20
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
City Manager ►s Office
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663
Attn: Kenneth J. Delino
88-31240"
I
Space above line for Recorder's use only
CONSENT TO ASSIGNMENT
OF
AGREEMENT TO LEASE
Recorded at the request of
GUARDIAN TITLE COMPANY
8:00
A.M. JUN 3 0 1988
Official Records
Orange County, California
Q c/&,AecWer
THIS CONSENT is given this 27th day of April ,
1988, by the CITY OF NEWPORT BEACH, a chartered municipal cor-
poration (hereinafter the "City") on the following terms and
conditions:
RECITALS
A. The City entered into a Lease dated
January 1, 1988 ("the Lease"), with
MARY ANN FORBES
("Lessee") covering certain real property described as
Lot 40 in the City.of Newport Beach, County of Orange,
�l
�J Stare offvrn s, rtvr Rn�rr
d of Survey Map i l l-1 ir
Book 9, Pages 42 and 43
of Record of Surveys, in the Office
of the County Recorder of said County (the "Property").
B. Lessee is currently leasing the Property from The
City. The lease expires July 1, 2006.
C. Lessee has applied to FIRST FEDERAL SAViNGS
—DANK OF CACIFOP,NTA ( "Lender") for a- real
estate loan to be secured by Lessee's interest in the
Property. Lessee has also agreed to assign Lessee's rights
under the Lease to Lender. As a condition to making such
loan, Lender has required that the City consent to such
assignment ofthe Lease according to the terms hereof.
CONSENT
NOW, THEREFORE, the City does hereby consent to the
assignment to Lender of Lessee's rights under the Lease and
further agrees in favor of Lender as follows:
1. Should Lessee default under the loand--scribed above
and Lender foreclose on the leasehold interest under the Lease,
the City cag_ec o that it Ghall confirm in writing to Lender or
any other purchaser of Lender or such other parchci6e. Las Liil-_-
rights of Lessee under the Lease and is entitled to enter into
a lease with the City pursuant to the terms and conditions
of the Lease. The foregoing agreement of the City shall apply
with equal force if the leasehold interest under the lease is
assigned to Lender in lieu of foreclosure. The amounts to be
paid to the City pursuant to the Lease shall be adjusted pursuant
to Section 4 of the Lease upon the earlier of (a) any transfer
by Lender of the leasehold interest under the lease and the rights
of Lessee under the Lease, or (b) a date six months after
acquisition by Lender of the leasehold interest under the Lease
by foreclosure or in lieu of foreclosure.
88-3! L499
2. Said assignment of the Lease to Lender and all rights
acquired thereunder shall be subject to each and all of the
covenants, conditions and restrictions set forth in the
Lease and to all rights and interest of the City thereunder, except
as herein otherwise provided.
3. In the event of any conflict between the provisions
of the Lease and the provisions of any such assignment to
Lender, the provisions of the Lease shall control.
4. Lender shall be liable to perform the obligations of
Lessee under the Agreement only so long as Lender holds title
to the leasehold interest under the Lease.
9.
5. The City agrees that it will not terminate the Lease
because of any default or breach thereunder on the part of
Lessee if Lender, within sixty (60) days after service of
written notice on Lender by the City of its intention to
terminate the Lease for such default or breach, shall:
(a) Cure such default or breach if the same can
be cured by the payment or expenditure of money pro-
vided to be paid under the terms of the Agreement; or
(b) If such default or breach is not curable,
cause the Trustee under the Trust Deed securing Lender's
loan to Lessee to commence and thereafter to diligently
pursue to completion steps and proceedings for judicial
foreclosure, the exercise of the power of sale under
and pursuant to said Trust Deed in the manner provided
by law, or accept from the Lessee an assignment in lieu
of foreclosure; and
(c) Keep and perform all of the covenants and
conditions of the Lease requiring the payment or ex-
penditure of money by Lessee until the time as said
leasehold shall be sold upon foreclosure pursuant to said
Trust Deed, be released or reconveyed thereunder, sold
upon judicial foreclosure or transferred by assignment
in lieu of foreclosure; provided, however, if Lender shall
fail or refuse to comply with any and all of the conditions
of this paragraph, then and thereupon the City shall be
released from the covenant of forebearance herein
contained.
6. The prior written consent of the City shall not be
required:
(a) To a further assignment by Lender of its
rights under the Lease in connection with
a transfer of the leasehold interest under
the Lease at foreclosure sold under Lender's
Trust Deed, under judicial foreclosure, or
(b) To any subsequent assignment by Lender if
Lender is the purchaser at such foreclosure
sale;
provided that in either such event Lender forthwith gives
notice to the City in writing of any such assignment setting
forth the name and address of the assignee, the effective
date of such assignment and the express agreement of the
assignee assuming and agreeing to perform all of the ob-
ligations of the Lease together with a copy of the document
by which such assignment was made.
Any assignee under the above shall be liable to perform
the obligations of Lessee under the Lease only so long as such
assignee holds title to the leasehold interest under the Lease.
Any subsequent assignment of the Lease shall be made subject
to the conditions relating thereto as set forth in the Lease.
2.
88-J 12499
7. The City hereby represents and warrants to Lender
that there exists no default under the Lease by any party
thereto. Without limiting the generality of the foregoing
sentence, there is no defense or offset to the enforcement
of any of the rights of Lessee under the Lease and Lessee
is not in default of any of Lessee's monetary obligations
thereunder.
8. All notices and other communications required or
permitted under this Consent to Assignment shall be in
writing, served personally on, or mailed by certified or
registered United States mail to, the party to be charged with
receipt thereof. Notices and other communications served by
mail or communication in a United States post office in Orange
County, California, as certified or registered mail with
postage prepaid, and duly addressed to the party to whom
such notice or communication is to be given, in the case
of Lender: FIRST FED.ERAa__SAVTNGS [SANK OE CgETEORNIA
ani Ji-14s1r-_rA I-1v.d_._S& tor�nj_r,...-_CA 9UQn1
In the case of the City: City of Newport Beach, 3300 Newport
Boulevard, Newport Beach, California 92663, Attention: City
Manager. Any such party may change.said party's address for
purposes of this Section 8 by giving the party intended to
be bound hereby, in the manner provided herein, a written
notice of such change.
9. The provisions hereof shall be binding upon and inure
to: the benefit of the Lender and its transferee(s). In this
context, the City acknowledges that Lender intends to assign
its interest under the Lease and the loa.D- to.Lessee, and the
City consents thereto under the terms hereof.
IN-WITNESS.WHEREOF, the City has executed this Consent
as of the day and year first above written.
CITY OF NEWPORT BEACH
Robert L. Wynn`
City Manager
ATTEST:
3.
State of CALIFORNIA )
County of ORANGE ) ss.
On thi s 29th day of June
88-312499
, in the year 1988 , before me
Dorothy L. Palen, Notary Public ,
here insert the name and quality of the officer
personally appeared Robert L. Wynn __ personal:ly known to me
(or proved to me on the basis of satisfactroy evidence) to
be the person who executed this instrument as
City Man ager
here insert title of officer)of
THE CITY OF NEWPORT BEACH
(name of the public corporation, agency or political subdivision)
and acknowledged to me that the
CITY OF NEWPORT BEACH
public, corporation, agency or political subdivision
executed it.
OFFICIAL SEAL
DOROTHY L. PALEN
NOTARY PUBLIC - CALIFORNIA
PRINCIPAL OFFICE IN
ORANGE COUNTY
MY Commission Exp. Apr. 3, 1989
(seal)
c
Dorothy L. tfilen
Notary Public
4. i
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City Manager's Office
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663
Attn: Kenneth J. Delino
88-1307686
-EXEfVIP'f
Ci6
MEMORANDUM OF LEASE
aECORDED IN OFFICIAL RECORDS
OF ORANGE COUNTY. CALIFORNIA
a4 22 PM MAR 2 5 '88
COUNTY
RECORDER
THIS MEMORANDUM OF LEASE is made and entered into by
and between The City of Newport Beach, a chartered municipal
corporation, herein called "Lessor," and MARY ANN FORBES
herein called "Lessee," to witness that:
Lessor hereby leases to Lessee for a term of eighteen
(18) years commencing on January 1, 1988, and ending on July 1,
2006, on the terms and conditions set forth in that certain
lease by and between the parties hereto dated January 1, 1988,
all the terms and conditions of which lease are made a part
hereof as though fully set forth herein, all those certain
premises in the County of Orange, State of California.
Lot 40 as shown on the map filed in Book 9,
Page -T7 -and 43 of Record of Surveys, in the office
of the County Recorder, County of Orange, State of
California.
EXECUTED on `A`ftdv /' , 19_88 , Newport
Beach, Orange County, California.
LESSOR
The City of Newport Beach
MARY
� O"icer's �iC�ab
JIM DUMBECK�Lre
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YINN0311Y0 10 31VIS
AGREEMENT TO LEASE
THIS AGREEMENT TO LEASE, made and entered into on
the '��' day of , 1981, by and between the CITY OF NEWPORT
BEACH, a chartered municipal corporation, hereinafter "City,"
and 1 jhi1� �C9%?� hereinafter
"Sublessee."
DVOTTTT C
A. City holds title to and is the owner of certain
harbor frontage and tidelands, together with certain uplands
abutting thereon known as Beacon Bay and more particularly
described in Exhibit "1" attached hereto and made a part hereof
by this reference.
B. Carroll B. Beek, Barton Beek, Joseph Allan Beek,
Jr., and Seymour Beek jointly hold a Master Lease to said proper-
ty dated January 9, 1950, which Master Lease expires on December
31, 1987.
C. The "Westerly Portion" of the Beacon Bay property
has been divided into individual lots and subleased for
residential purposes.
D. All of said subleases expire on the same date as
the Master Lease, to wit: December 31, 1987.
E. City believes it to be in the best interest and
welfare of City: (1) that the portion of Beacon Bay which is
currently leased for residential purposes remain residential in
character; and (2) to enter into new agreements to lease with
the sublessees under the terms, conditions and for the considera-
tion as hereinafter set forth.
F. It is the judgment of City that the leasing of the
property hereinafter described is consistent with the trust pur-
poses imposed upon such portions of the leased land which may
1
constitute tidelands as authorized by Chapter 74, Statutes of
1978.
G. It is further the judgment of City that in entering
into this Agreement to Lease in the future, City is acting pur-
suant to its proprietary powers.
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING
RECITALS AND THE MUTUAL COVENANTS set forth below, City and Sub-
lessee hereby agree as follows:
1. City hereby agrees to lease to Sublessee and Sub-
lessee hereby agrees to lease from City the real property
described in Exhibit "2" attached hereto and by this reference
made a part hereof (hereinafter the "Leased Land") pursuant to a
lease substantially in the form of Lease which is attached hereto
marked Exhibit "C" and by this reference made a part hereof, and
under the terms and conditions as set forth below.
2. In consideration of City's agreement to lease to
Sublessee hereunder, Sublessee agrees to pay to City on the 1st
day of each month following the date of this Agreement and on the
lst day of each month thereafter through the 1st day of December,
1987, a sum determined by subtracting from the fair market rental
value of '7! y�~�. ob"'% (annualized) on July 1, 1981
(the "Effective Date"), the payments made by Sublessee under a
sublease on the Leased Land to the Master Lessee of Beacon Bay
described in Paragraph A of the Recitals above.
3. The Base Rental under Paragraph 3 of the Lease,
Exhibit "C" attached hereto, shall be the fair market rental
value of the land on the Effective Date subject to adjustment of
the base rental, hereafter "Adjusted Base Rental", as set forth
in paragraphs 4 or 5 hereof.
2
4. Should any Sublessee not execute this Agreement on
or prior to the Effective Date, but execute this Agreement after
Effective Date and prior to December 31, 1987, the rental sum to
be used in paragraph 2 hereof and the Base Rental under Paragraph
3 of the Lease, Exhibit "C" attached hereto, shall be the total
of the fair market rental value of the land as established by the
Appraisal Report prepared by George Hamilton Jones, M.A.I., dated
November 5, 1980, plus an amount equal to the L.A. - Long Beach
Consumer Price Index (C.P.I.) increase, from July 1, 1981 to the
date of execution, or 1% per month increase from July 1, 1981,
whichever is greater, plus an amount equal to the increase in
rental value change due to the reduced lease advantage, as of the
date of execution, as set forth in the effective rental value
change sheet attached hereto as Exhibit "D", said total rental
rate shall be referred to as Adjusted Base Rental. The different
Adjusted Base Rental provided for in this paragraph is imposed
unilaterally by the City out of what is deemed to be fair and
equitable to those Sublessees who choose to enter into this
Agreement on its Effective Date. Said difference in Adjusted
Base Rentals is in no manner to be considered a penalty but
moreover a procedure developed solely by City to provide the
incentive to enter into this Agreement of Lease at the earliest
date possible. Commencing January 1, 1988 City is under no
obligation to enter into this Agreement or a Lease in the form of
Exhibit "C" attached hereto with any sublessee who has not
executed this Agreement and shall be free to deal with respect to
the lease of any unleased portions of Beacon Bay on any terms and
conditions it deems fit, either with third parties or prior
sublessees.
5. Sublessee may sell, assign, exchange or convey his
interest in this Agreement without prior written consent of the
City, provided that upon any such transfer the provisions of
3
Section 4 of the Lease Exhibit "C" attached hereto, shall
determine the amounts to be paid by assignee to City, and further
provided that the assignee execute an acceptance of the
assignment and an agreement to be bound by all the terms of this
Agreement and to make the payments provided for hereunder which
Assignment and acceptance shall be delivered to and accepted by
City. Upon such assignment and acceptance, Sublessee shall be
released of any further obligation and liabilities under this
Agreement to Lease.
6. The parties agree to execute the Lease, Exhibit "C"
hereto, during the month of December, 1987 and concurrently
therewith to execute and record a short form memorandum thereof.
7. Time and each of the terms, covenants and
conditions hereof are expressly made the essence of this
Agreement.
If Sublessee shall fail to comply with any of the
terms, covenants or conditions of this Agreement, including
making the payments provided for herein at the time and in the
amount herein required, and shall fail to remedy such default
within sixty (60) days and thereafter diligently prosecute the
same to completion, or if a Sublessee shall abandon or vacate the
Leased Land, City may, at its option and without further demand,
terminate this Agreement. Upon service by City on Sublessee of
Notice of Termination of this Agreement to Lease, notice being
given in the same manner as provided in paragraph 19 of the Lease
appended hereto as Exhibit "C" this Agreement to Lease shall be
terminated as to Sublessee and City's obligation to enter into
the Lease appended hereto as Exhibit "C" is likewise terminated
and City is under no obligation whatsoever to enter into said
Lease with Sublessee.
In addition to termination of this Agreement to
Lease, City may recover from Sublessee all damages incurred by
4
City by reason of said breach, including, without limitation, any
payments due and owing from Sublessee to City and any other costs
due and owing from Sublessee to City at the date of termination
of this Agreement to Lease.
Should either City or Sublessee be required to
employ counsel to enforce the terms, conditions and covenants of
this Agreement to Lease, the prevailing party shall recover all
reasonable attorney's fees (and court costs if applicable)
incurred therein whether or not court proceedings were commenced.
8. Sublessee agrees that he will hold and save City,
its officers, agents and employees harmless from any and all
claims or demands of any kind or nature whatsoever arising out
of, or incident to, the use and occupancy of the Leased Land, and
to indemnify City for any cost, liability or expense caused by or
arising out of any injury or death of persons or damage to
property which may occur upon or about the Leased Land or caused
by or arising out of any activities or omission of Sublessee, his
agents, employees, licensees, and/or invitees, including, without
limitation, injury or death of Sublessee, his agents, employees,
licensees and invitees and damage to his property or Sublessee's
property; except for any damage or injury of any kind arising
out of the negligence of City, its agents or employees.
9. Each and every covenant, condition and agreement
hereof, in accordance with the context, shall inure to the
benefit of City and apply to and bind Sublessee, their respective
heirs, legatees, devisees, executors, administrators, successors,
assigns, licensees, permittees, or any person who may come into
possession or occupancy of the Leased Land, or any part thereof
in any manner whatsoever.
5
IN WITNESS WHEREOF, the parties have caused this Agree-
ment to Lease to be executed on the date first above written.
ATTEST:
City Clerk
APPROVED AS TO FORM:
Citv' At
5-4-81
Gj
CITY OF NEWPORT BEACH
ta�yyTo�4�
Sublessee
EXHIBIT "C"
L E A S E
THIS LEASE, made and entered into on the lst day of
January, 1988, by and between the CITY OF NEWPORT BEACH, a chart-
ered municipal corporation, hereinafter "Lessor",
and
after "Lessee."
RECITALS
herein -
A. Lessor holds title to and is the owner of certain
harbor frontage and tidelands, together with certain uplands
abutting thereon known as Beacon Bay and more particularly
described in Exhibit "1" attached hereto and made a part hereof
by this reference.
B. Carroll B. Beek, Barton Beek, Joseph Allan Beek,
Jr., and Seymour Beek jointly hold a Master Lease to said proper-
ty, dated January 9, 1950, which Master Lease expires on December
31, 1987.
C. The "Westerly Portion" of the Beacon Bay property
has been divided into individual lots and subleased for residen-
tial purposes.
D. All of said subleases expire on the same date as
the Master Lease, to wit: December 31, 1987.
E. Lessor believes it to be in the best interest and
welfare of said Lessor (1) that the portion of Beacon Bay which
is currently leased for residential purposes remain residential
in character, and (2) to enter into new subleases with the sub -
1
yC�
lessees under the terms, conditions and for the consideration as
hereinafter set forth.
F. It is the judgment of Lessor that the leasing of
the property hereinafter described is consistent with the trust
purposes imposed upon such portions of the leased lands which may
constitute tidelands as authorized by Chapter 74, Statutes of
1978.
G. It is further the judgment of City that in entering
into this Lease in the future, City is acting pursuant to its
proprietary powers.
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING
RECITALS AND THE MUTUAL COVENANTS set forth below, Lessor and
Lessee hereby agree as follows:
1. DESCRIPTION OF LEASED PREMISES. Lessor hereby
leases, and Lessee hereby accepts this lease of the real property
described in Exhibit "2" attached hereto and made a part hereof
by this reference under the terms and conditions as set forth
below (hereinafter the "Leased Land").
2. TERM. Unless terminated sooner as provided herein,
the term of this Lease is for a period commencing on the 1st day
of January, 1988, and ending on the 1st day of July 2006.
3. BASE RENTAL. As base ental, Lessee agrees to pay
to Lessor the sum o OLLARS,
per month, payable on the lst day of each month so long as this
Lease remains in effect subject to a base rental adjustment, as
provided in paragraph 4 below. Said rental payment is deemed to
be the fair market rental value of the Leased Land as an improved
subdivision lot.
4. SALE, ASSIGNMENT, SUBLEASE Lessee may sell,
assign, exchange, convey or sublease his leasehold interest or
encumber such interest without a prior written consent of Lessor;
provided, however, that the Lessee, proposed transferee, assignee
or encumbrancer shall:
(a) Furnish Lessor with an executed copy of such
assignment, Trust Deed, or other document used to effect such
transfer;
(b) Furnish to Lessor the express agreement of the
proposed transferee or encumbrance assuming, and agreeing to per-
form, all of the obligations under this Lease;
(c) Pay to Lessor a transfer fee of $50.00; and
(d) Pay to Lessor the adjusted base rental which
shall be the greater of the following:
3 above, or
(i) The base rental as set forth in paragraph
(ii) An amount, equal to two and one half
percent (2 1/2%) of the actual sales value of the leasehold
estate, including the improvements thereon, divided by twelve
(12) and payable monthly. The actual sales value shall be the
total value of the transfer, as established by the Assessor of
Orange County or verified by Lessor. The parties to said
transaction shall furnish Lessor with any information regarding
the transaction as Lessor may deem necessary to verify the total
value of the transaction. If said transfer transaction cannot be
verified by normal and accepted methods of verification, Lessor,
at its sole discretion, may cause the leasehold estate and
improvements thereon to be appraised to establish the fair market
value of the property, which value shall be deemed the actual
sales value thereof_, as of the date of transfer, and establish
thereby the adjusted base rental. The adjusted base rental shall
become effective on the date of transfer.
The provisions of this subparagraph shall not
cause an adjustment of rentals if:
(a) Lessee is assigning his interest in this
Lease to a Trustee under a Deed of Trust for the benefit of the
lender as provided in paragraph 5, below; or
3
\V,
(b) The transfer is caused by the death of a
spouse and the full interest of the deceased spouse is
transferred to the surviving spouse.
5. ENCUMBRANCES. If Lessee assigns his interest in
this Lease to a Trustee under a Deed of Trust (hereinafter called
"Trust Deed") for the benefit of the lender hereinafter called
"Encumbrancer"), such encumbrance shall be upon and subject to
the following covenants and conditions:
(a) Said Trust Deed and all rights acquired there-
under shall be subject to each and all of the covenants, condit-
ions and restrictions set forth in this Lease and to all rights
and interest of the Lessor hereunder, except as herein otherwise
provided.
(b) In the event of any conflict between the pro-
visions of this Lease and the provisions of any such Trust Deed,
the provisions of this Lease shall control.
(c) Any Encumbrancer which is an established bank,
savings and loan association or insurance company, and is the
purchaser at a foreclosure sale, or is an assignee under an
assignment in lieu of foreclosure shall be liable to perform the
obligations of the Lessee under the Lease only so long as such
Encumbrancer holds title to the leasehold.
(d) Lessee shall furnish to Lessor a complete copy
of the Trust Deed and Note secured thereby, together with the
name and the address of the holder thereof.
(e) Upon and immediately after the recording of
the Trust Deed, Lessee, at Lessee's expense, shall cause to be
recorded in the office of the Recorder of Orange County,
California, a written request executed and acknowledged by Lessor
for a copy of any notice of default and of any notice of sale
under the Trust Deed as provided by the statutes of the State of
California relating thereto.
4
(f) Lessor agrees that it will not terminate this
Lease because of any default or breach hereunder on the part of
Lessee if the Encumbrancer under such Trust Deed, within ninety
(90) days after service of written notice on the Encumbrancer by
Lessor of its intention to terminate this Lease for such default
or breach, shall:
(i) Cure such default or breach if the
same can be cured by the payment or expenditure of money provided
to be paid under the terms of this Lease; provided, however,
that for the purpose of the foregoing, Encumbrancer shall not be
required to pay money to cure the bankruptcy or insolvency of
Lessee or to satisfy Lessee's obligations under Paragraph 12
hereof, "Indemnification", or
(ii) If such default or breach is not so
curable, cause the Trustee under the Trust Deed to commence and
thereafter to diligently pursue to completion steps and proceed-
ings for judicial foreclosure, the exercise of the power of sale
under and pursuant to the Trust Deed in the manner provided by
law, or accept from the Lessee an assignment in lieu of foreclo-
sure; and
(iii) Keep and perform all of the covenants and
conditions of this Lease requiring the payment or expenditure of
money by Lessee until such time as said leasehold shall be sold
upon foreclosure pursuant to the Trust Deed, be released or
reconveyed thereunder, sold upon judicial foreclosure or
transferred by Deed in lieu of foreclosure; provided, however,
if the holder of the Trust Deed shall fail or refuse to comply
with any and all of the conditions of this paragraph, then and
thereupon Lessor shall be released from the covenant of forebear-
ance herein contained.
6. USE. The Leased Land shall be used solely for resi-
dential purposes and any appurtenant uses associated therewith.
Lessee agrees to comply with all laws, regulations and ordinances
5
i�
of Lessor, the County and State affecting the Leased Land and any
improvements located thereon.
7. TAXES AND UTILITIES. It is understood by Lessor
and Lessee that this Lease may give rise to a possessory interest
tax obligation. 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, including any improvements located thereon or associated
therewith, or any possessory interest therein arising out of or
based upon the leasehold interest throughout the term hereof.
Satisfactory evidence of such payments shall be made available to
Lessor upon demand. Any lien for unpaid utilities, taxes,
assessments or charges shall not attach to the leasehold interest
but only to improvements located thereon.
8. 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
which shall be leased to the Beacon Bay Community Association by
the City, in consideration of the maintenance thereof by such
Association and fair market value rent to be paid by individual
Lessees. Lessor shall not be obligated to make any repairs,
alterations or improvements in or to, or upon or adjoining the
Leased Land or any structure or other improvement that may be
constructed or installed therein, but Lessee shall, at all times
during the terms of this Lease and at its sole cost and expense,
keep and maintain all buildings, structures and other
improvements on the Leased Land in good order and repair, and the
whole of the Leased Land and all improvements thereto free of
weeds and rubbish, and in a clean, sanitary and neat condition.
9. COMMUNITY ASSOCIATION. Lessee agrees to be-
come and during the term of this Lease remain a member in
good standing of the Beacon Bay Community Association, and
R
to abide by the Articles of Incorporation, Bylaws and rules and
regulations of said Association, now or hereafter existing, and
to pay to said Association before delinquency all dues, fees,
assessments and other charges from time to time duly levied or
assessed in furtherance of the Association's community purpose.
10. COVENANTS, CONDITIONS AND RESTRICTIONS. Lessee
agrees to abide and be bound by all covenants, conditions,
restrictions and reservations as contained in Exhibit "3" attach-
ed hereto and made a part hereof by this reference. Said cove-
nants, conditions and restrictions shall run with the Leased Land
and shall be binding on Lessee and Lessee's successors in
interest.
11. INDEMNIFICATION. Lessee agrees that he will hold
and save Lessor, its officers, agents and employees harmless from
any and all claims or demands of any kind or nature whatsoever
arising out of, or incident to, the use and occupancy of the
Leased Land, and to indemnify Lessor for any cost, liability or
expense caused by or arising out of any injury or death of
persons or damage to property which may occur upon or about the
Leased Land or caused by or arising out of any activities or
omission of Lessee, his agents, employees, licensees, and/
or invitees, including, without limitation, injury or death of
Lessee, his agents, employees, licensees and invitees and damage
to his property or Lessee's property; except for any damage or
injury of any kind arising out of the negligence of Lessor, its
agents or employees.
12. NON-COMPLIANCE AND TERMINATION OF LEASE
Time and each of the terms, covenants and condi-
tions hereof are expressly made the essence of this Lease.
If Lessee shall fail to comply with any of the
terms, covenants or conditions of this Lease, including the pay-
ment of rental herein reserved, at the time and in the amount
herein required, and shall fail to remedy such default within
7
sixty (60) days and thereafter comply with each and every term of
this Lease, or if a Lessee shall abandon or vacate the Leased
Land, Lessor may, at its option, and without further notice or
demand, terminate this Lease and enter upon the Leased Land and
take possession thereof, and remove any and all persons therefrom
with or without process of law.
Lessor may elect to terminate this Lease for any
event of default or breach hereof or of the covenants, conditions
and restrictions contained in Exhibit "3". Should Lessor elect
to terminate, it may recover from Lessee all damages incurred by
Lessor by reason of such breach, including, without limitation,
the cost of recovering the Leased Land, and the worth at the time
of such termination of the excess, if any, of the amount of
unpaid .rent and unpaid charges reserved under this Lease over the
amount of the rental loss which Lessee proves could be reasonably
avoided, for the remainder of the term of this Lease. Such
amount shall be immediately due and payable from Lessee to
Lessor, together with interest at the rate of 10% per annum from
the date owing until paid. The remedies of Lessor specified
herein are in addition to and cumulative of any remedies provided
Lessor by statute, including the remedies provided in California
Civil Code Sections 1951.2, et seq.
13. SURRENDER OF POSSESSION UPON EXPIRATION OR
TERMINATION
Upon the expiration or termination of this Lease,
Lessee agrees to peaceably deliver possession of the Leased Land
to Lessor and unconditionally agrees to vacate the Leased Land
without contest, legal or otherwise. Lessee further expressly
agrees to waive any and all legal rights it may have to contest
vacating the Leased Land and further agrees to release Lessor
from any and all claims it may have of whatever nature. Lessee
further agrees to waive any relocation assistance or any other
assistance from Lessor resulting from vacating the Leased Land.
Lessee shall have the right prior to and for a period of ninety
N.
(90) days after the expiration of this Lease to remove any build-
ings or improvements appurtenant thereto from the Leased Land,
except that all streets, walkways, common area landscaping,
docks, piers and any other installation constructed or installed
in the common areas, shall be the property of Lessor.
14. EMINENT DOMAIN
A. Definition of Terms. The term "total taking"
as used in this paragraph means the taking of the entire Leased
Land under the power of eminent domain or the taking of so much
of said Land as to prevent or substantially impair the use there-
of by Lessee for the uses and purposes hereinabove provided.
The term "partial taking" means the taking of
a portion only of the Leased Land which does not constitute a
total taking as defined above.
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.
The term "date of taking" shall be the date
upon which title to the Leased Land or portion thereof passes to
and vests in the condemnor.
The term "Leased Land" means the real property
belonging to Lessor, together with any and all improvemens placed
thereon by Lessor or to which Lessor has gained title.
B. Effect of Taking. If durng 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 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.
E
t
V
C. Allocation of Award - Total Taking. All
compensation and damages awarded for the total taking of the
Leased Land and Lessee's leasehold interest therein shall be
allocated as follows:
(a) The Lessor shall be entitled to an amount
equal to the sum of the following:
(i) The fair market value of the Leased
Land as improved (exclusive of the dwelling and appurtenances to
such dwelling) as of the date of taking, discounted by multiply-
ing such fair market value by the factor for the present worth of
$1.00 at —!7--% 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
(ii) The present worth of rents due dur-
ing the period from the date of taking to the date of the expira-
tion of the term of this Lease, computed by multiplying the
annual rent then payable by the factor for the present worth of
$1.00 per annum at _/.t $ per annum compound interest (Inwood
Coefficient) for the number of years in such period.
(b) 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.
D. Allocation of Award - Partial Taking All com-
pensation and damages awarded for the taking of a portion of the
Leased Land shall be allocated and divided as follows:
(a) The Lessor shall be entitled to an amount
equal to the sum of the following:
(i) The proportionate reduction of the
fair market value of the Leased Land 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 $1.00
at g % per annum compound interest for the number of years re-
maining from the date of taking to the date of the expiration of
the term of this Lease; and
10
�V
(ii) 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 . 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.
(b) 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 or 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 Lessee in
the ratio that the fair market rental value of the Leased Land at
the date of taking bears to the fair market value of the Leased
Land immediately thereafter.
15. ATTORNEYS' FEES Should either Lessor or Lessee be
required to employ counsel to enforce the terms, conditions and
covenants of this Lease Agreement, the prevailing party shall
recover all reasonable attorneys' fees (and court fees if applic-
able) incurred therein, whether or not court proceedings were
commenced.
16. REMEDIES CUMULATIVE. The rights, powers, elections
and remedies of the Lessor 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 right to exercise any other.
17. NO WAIVER. No delay or omission of the Lessor to
exercise any right or power arising from any omission, neglect or
default of the Lessee shall impair any such right or power or
shall be construed as a waiver of any such omission, neglect or
11
default on the part of the Lessor or any acquiescence therein.
No waiver of any breach of any of the terms, cove-
nants, 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.
18. 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.
19. NOTICES. It is mutually agreed that 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
Blvd., Newport Beach, California 92663, 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:
personally, or
A. By delivering a copy to the Lessee
B. If he be 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
C. If no one can be found, then by affixing
a copy of the notice in a conspicuous place on the property or
also sending a copy through the mail addressed to the Lessee.
Such service upon Lessor or Lessee shall
be deemed complete at the expiration of forty-eight (48) hours
from and after the deposit in the United States mail of such
notice, demand or communication.
20. HOLDING OVER. This Lease shall terminate and be-
come null and void without further notice upon the expiration of
said term. Any holding over shall not constitute a renewal here -
12
19
of, but the tenancy shall thereafter be on a month-to-month basis
and otherwise on the same terms and conditions as herein set
forth.
21. MISCELLANEOUS
Inurement. Each and all of the covenants, condi-
tions and agreements herein contained shall, in accordance with
the context, inure to the benefit of Lessor and apply to and bind
Lessee, his respective heirs, legatees, devisees, executors, ad-
ministrators, successors, assigns, licensees, permittees, or any
person who may come into possession or occupancy of said Leased
Land or any part thereof ire any manner whatsoever. Nothing in
this paragraph shall in any way alter the provisions herein con-
tained against assignment or subletting.
IN WITNESS WHEREOF, the parties have caused this
Lease to be executed on the date first above written.
ATTEST:
NANDA E. RACGIO
City Clerk
7APPVED AS TO FORM:
City Attorney
13
4-21-81
CITY OF NEWPORT BEACH
3
III-yi
BY
Mayor
Lessee
EXHIBIT "1"
LEGAL DESCRIPTION OF BEACON BAY
A parcel of land situated in the Northwest quarter of Section 35,
Township 6 South, Range 10 West, S. B. B. & M., Orange County,
California, more particularly described as follows, to wit:
Beginning at the United States Bulkhead Station No. 200, as shown
upon a map entitled "Harbor Lines, Newport Bay Harbor, California,"
approved May 2, 1936, by the Secretary of War and on file in the
office of the United States District Engineer at Los Angeles,
California; running thence West along the United States Bulkhead
line 147.50 feet to United States Station No. 137; thence North
39048' West along said Bulkhead line 535.53 feet; thence North
23057'30" East 126.34 feet to an angle point in the ordinary high
tide line of the Pacific Ocean in Newport Bay, as described in
Court Case No. 24026 of the Superior Court of the State of California,
in and for the County of Orange; thence South 39048' East along said
ordinary high tide line 334.47 feet to the most Westerly corner of
that certain parcel of land conveyed to the City of Newport Beach
by The Irvine Company, as described in deed recorded September 25,
1929, in Book 306, page 375 of Official Records of Orange County,
California; thence North 23057'30" East along the Northwesterly
line of said parcel of land 317.57 feet; thence South 71054' East
along the Northerly line of said parcel of land 290.24 feet; thence
South 85043' East along the Northerly line of said parcel of land,
said Northerly line being the Southerly line of Bayside Drive,
606.01 feet; thence South 424.71 feet to a point in the United
States Government Bulkhead Line between United States Stations
Nos. 101 and 200; thence West along said Bulkhead line 784.25 feet
to the point of beginning; containing approximately twelve (12)
acres.
Said parcel of land is shown on Attachment 2 for identification
purposes only and is not to be a part of this document.
J
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EXHIBIT "2„
Lot 40 as shown on the map filed in Book 9, Pages 42 and
43 of Record of Surveys, in the office of the County Recorder,
County of Orange, State of California.
EXHIBIT "3"
DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
BEACON BAY COMMUNITY 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
10-
Covered Property
4
7.1-
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 NO 4PAYMENT OF ASSESSMENTS
7
1 -
Delinquency
7
2 -
Notice of Lien
8
3 -
Foreclosure Sale
8
(i)
4 - Relationship with Mortgage Liens
1 - Commercial Use
2 - Signs
3 - Nuisance
4 - Animals
5 - California Vehicle Code
IX RIGHTS OF ENJOYMENT
1 - Members' Right of Enjoyment
2 - Delegation of Use
3 - Waiver of Use
X GENERAL PROVISIONS
1 - Enforcement
2 - No Waiver
3 - Cumulative Remedies
4 - Severability
5 - Covenants to Run with the Land; Term
6 -- Heading
7 - Singular Includes Plural
8 - Attorneys' Fees
9 - Notices
lam- Effect of Declaration
ll- Personal Covenant
12- Nonliability of Officials
3- Subleases
l- Amendments
8
9
9
9
9
10
10
10
10
11'
11
11
12
12
12
12
12
12
13
13
13
13
13
13
14
14
14
14
15
15
15
15
15
15
16
16
16
16
17
17
17
5 -
Curing of Default
V
ARCHITECTURAL CONTROL
1 -
Appointment of Architectural Committee
2 -
General Provisions
3 -
Approval and Conformity of Plans
4 -
Nonliability for Approval of Plans
VI
DUTIES AND POWERS OF THE ASSOCIATION
1 -
General Duties and Powers
2 -
General Duties of the Association
3 -
General Powers of the Associationon
4 -
Association Rules
VII
REPAIR AND MAINTENANCE
1 -
Repair and Maintenance by Association
2 -
Repair and Maintenance by Lessee
3 -
Maintenance of -Public Utilities
VIII
USE
RESTRICTIONS
1 - Commercial Use
2 - Signs
3 - Nuisance
4 - Animals
5 - California Vehicle Code
IX RIGHTS OF ENJOYMENT
1 - Members' Right of Enjoyment
2 - Delegation of Use
3 - Waiver of Use
X GENERAL PROVISIONS
1 - Enforcement
2 - No Waiver
3 - Cumulative Remedies
4 - Severability
5 - Covenants to Run with the Land; Term
6 -- Heading
7 - Singular Includes Plural
8 - Attorneys' Fees
9 - Notices
lam- Effect of Declaration
ll- Personal Covenant
12- Nonliability of Officials
3- Subleases
l- Amendments
8
9
9
9
9
10
10
10
10
11'
11
11
12
12
12
12
12
12
13
13
13
13
13
13
14
14
14
14
15
15
15
15
15
15
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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.
B. 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 quality 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 attractiveness of the Covered Property to
delegate and assigned the powers of managing the Covered
Property, maintaining and administering the Common Area
and ad:-iinistering and enforcing these covenants,
condit-icr3 and restrictions and collecting and disbursing
funds uu~suant to the assessment and charges hereinafter
create= ::nd referred to and to perform such other acts as
shall -,--n--rally benefit the Covered Property to the Beacon
Bay C';; ^ity Assocation, a California nonprofit
coroo_a-ion.
D. Declarant will hereafter hold title to and lease
all o` =':e Covered Property subject to certain protective
covenants, conditions and restrictions hereafter set forth.
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it
NOW, THEREFORE, Declarant hereby covenants, agrees and
declares that all of its interest as the same may from
time 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,
restrictions 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.
"Special Assessment" shall mean a charge against a
particular Lessee and his Residence, directly attributable
to the Lessee, to reimburse the Association for costs
incurred in bringing the Lessee and his Residence into
com ol..ance with the provisions of this Declaration, the
Articles, Bylaws or Association Rules, or any other charge
designated as a Special Assessment, together with
attorneys' fees and other charges payable, plus interest
thereon as provided for in this Declaration.
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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."
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
Association;
(g) reasonable reserves as deemed appropriate by the
BoaYc ;
(h) the costs of bonding of the members of the Board,
any professional managing agent or any other person
hank-]Iiii,c, the funds of the Association;
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(i) taxes paid 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 Rules, 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 mean all streets, beaches,
walkways, tennis courts, docks, piers, and common
landscaped areas, including but not limited to Lots A
through J inclusive as shown on Exhibit -'U".
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 �2e%.,port Beach.
Section 12. "Exhibit" shall mean and refer to those
documents so designated herein and attached hereto and
eacil-A of such Exhibits is by this reference incorporate3 in
this Declaration.
Section 13. "Member shall
or entity who qualifies for
Article of this Declaration
mean and refer to every person
membership pursuant to the
entitled "Membership."
Section 14. "Lessee" shall mean and refer to one or more
per -ons or entities who are alone or collectively the
lessees of a Residence.
Sect_on 15. "Residence" shall mean and refer to a
n�;,,;��Ye�'_ lot shown on the Record of Survey Map of Beacon
Ba; 3'_,:�d i vi Sion recorder] in Book 9, pages 42 and 43,
Recoy_s of Survey, on file in the Office of the County
Rec-�;rOrange County, California; provided, however,
shall not include any Common Area.
shall include the residential dwelling unit
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.
Section 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
meml;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 Rights. All voting right shall be
subject to the restrictions and limitations provided
herei and in the Articles, Bylaws and Association Rules.
Section 4 - Classes of Voting Membership. The Association
shal? :ave one (1) class of voting membership.
Sec`�ic - Approval of Members. Unless elsewhere
C)- -Zn. specifically provided in this Declaration or the
Bye a°rs, any provision of this Declaration or the Bylaws
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which requires the vote or written assent of the voting
power 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 -creat-ion 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.
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 Davable on such dates as the Board may establish.
Each :•fie; ober shall be sent written notice of the Regular
Assessment and shall thereafter pay the Association in
instl7=ents 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 levied by the Board from time to time.
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Section 6 - No Offsets. All Assessments 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 Association may 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
Section entitled "Notice of Lien" of this Article to
foreclose the lien against the Residence. If action is
com-:e n ced, there shall be added to the amount of such
Assessment the late charge, interest, the costs of such
action, and attorneys' fees incurred in connection with
suc: action; and in the event a judgment is obtained, such
shall include said late charge, interest and a
reonable attorney's fee, together with the costs of
actio:. Each Member vests in the Association, or its
assigns, the right and power to bring all actions at law
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or lien foreclosure 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 J_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) day
period. Any such sale provided for above is to be
conducted in accordance with the provisions of Sections
2924, 2924b, 2924c, 2924f, 29248 and 2924h of the Civil
Code of the State of California as said statgtes 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 Association 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? ",'Jonpayment of Assessments" for the payment of
Assess^_r:ts shall be subordinate to the lien of any
iiortc=�� which was recorded prior to the date any such
Assess-e,t becomes due.
(b) If any Residence subject to a monetary lien
creates' 1-)y any provision hereof shall be subject to the
lien of a mortgage: (1) the foreclosure of any lien
create.41- by anything set forth in this Declaration shall
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not operate to affect or impair the lien of 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 Board shall have the right to appoint the members of
the Arc,itectural Committee. Persons appointed by the
Board to the Architectural Committee, however, must be
Members.
Section 2. - General Provisions.
(a) The Architectural Committee may establish
reasonable procedural rules and assess a fee in connection
with review of plans and specifications including, without
limitaticn, the number of sets of plans to be submitted;
Beacon a,Y
9/20/79 9 Rev. 9/24/79
however, the Architectural Committee may delegate 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 the 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 compliance 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
liabilitv or responsibility therefor, or for any defect in
any structure constructed from such plans and
specifications.
ARTICLE VI
DUTIES AND POWERS OF THE ASSOCIATION
Section 1 - General Duties and Powers. In addition to the
duties powers enumerated in its Articles and Bylaws,
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or elsewhere provided for herein, and without 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 coverage 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 manager or other persons and contract
with independent contractors or managing agents to perform
all or any part o the duties and responsibilities of the
Association;
(b) borrow money as may be needed in connection with
the di_sc-:arge of the Association's powers and duties; and
(c) establish and maintain a working capital and
conting_ncy fund in an amount to be determined by the
Boas. Said fund shall be used by the Board as it deems
fit to carry out the objectives and purposes of the
Assoc =�- �,..
Sec t'c - Assoc-,ation Rules. The Board shall have the
po;; =r c?opt, arena, and repeal such rules and
rea_.1a —.-,ns as it ueems reasonable (the "Association
F;ulec" In th- event of any conflict between any such
.ul.E:7 and any other provisions of this
or t_,e Articles or Bylaws, the provisions of
the =: ic;t).n,. Rules shall_ be deemed to be superseded by
the -siOn7, of this Declaration, the Articles or the
F;yl_aw=- 4-1-,e extent: of any such conflict.
9/20/-,
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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 or obligate the Association
to maintain, replace or restore the underground facilities
or public utilities which are located within easements in
the Ccranton 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
maintair:ed, replaced or restored by such public utilities.
ARTICLE VIII
USE RESTRICTIONS
Section1 -_Commercial Use. No part of a Residence shall
be us -a _`or any business, commercial, or nonresidential
purposes.
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Section 2 - Signs. No sign or billboard of any kind shall
be displayed to the public view on any portion 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 an 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
applicable California Vehicle Code sections on any private
streets within the Covered Property.
ARTICLE IX
RIGHTS OF ENJOYMENT
Section. 1 —Members' Right of Enjoyment. Every Member
shall ha -e nonexclusive easement for use and enjoyment in
and to tea Common Area and such right shall be appurtenant
to annd sna11 pass with the interest required to be a
Lessee to every Residence, subject to all of the
easements, covenants, conditions, restrictions and other
provisions contained in this Declaration, including,
without limitation, the following provisions:
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(a) The right of the Association to limit 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,
shah have the right to enforce by proceedings at law or
in equity, all restrictions, conditions, covenants and
reservations, now or hereafter imposed by the provisions
of this Declaration or any amendment thereto, including
the right 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 by proceedings at law or in equity the provisions
of the articles or Bylaws and any amendments thereto.
With resoect to architectural control and Association
Rules, she Association shall have the exclusive right to
the enfcr-cement thereof unless the Association refuses or
is un -able to effectuate such enforcement, in which case
any Lessee who otherwise has standing shall have the right
to unc?er:.ake such enforcement. With respect to Assessment
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Liens, the Association shall have the exclusive 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 dale 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 o -_Heading. The Article and Section headings
have been inserted for convenience only, and shall not be
consiu--red or referred to in resolving questions of
interpretation or construction.
Section. 7 - Singular Includes Plural. Whenever the
context of this Declaration requires same, the singular
shall include the plural and the masculine shall include
the feminine and the neuter.
Beacon. Ba
9/20/79
15 Rev. 9/24/79
Section 8 - Attorneys' Fees. In the event action 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_,tance or conveyance of a Residence creates a personal
cove:ant between the Lessee of such Residence and
Declara-t or other Lessees, such personal covenant shall
Beacon >>v
9/20/79 16 Rev. 9/24/79
terminate and be of no further force or effect 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 member 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.
Section 14 - Amendments. Subject to the other provisions
of this Declaration, this Declaration may be amended as
follows:
(a) Any amendment or modification of the Articles
hereof_ entitled "Covenant for Maintenance Assessments,"
"Nonpayment 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 (600) of the Members.
(b) Any amendment or modification of any Article
other t:?n those specified in subparagraph (a) above shall
require the affirmative vote or written approval of a
major i `v of the members.
(c) An amendment or modification that requires the
vote an—do written assent of the Members as hereinabove
Beacon E�_y
9/20/79 17 Rev. 9/24/79
q1
'' I
provided shall be effective when executed by 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) Notwithstanding 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 Clerk
APPROVED AS TO FORM:
City Attorney
Beacon Lav
9/20/79
CITY OF NEWPORT BEACH,
a chartered municipal corporation
By:
Mayor
18 Rev. 9/24/79
STATE OF )
ss.
COUNTY OF )
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 acknowledged 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.
[Seal]
Beacon B'—%y
9/20/79
032381
Notary Public
19 Rev. 9/24/79
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2 of 2 Pages
RESOLUTION NO. 10040
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH APPROVING AN AGREEMENT TO
LEASE AND LEASE OF BEACON BAY RESIDENTIAL LOTS
AND AGREEMENT TO LEASE AND LEASE OF BEACON BAY
COMMON AREA CONSISTENT WITH CHAPTER 74,
STATUTES OF 1978 AND THE CHARTER OF THE CITY
OF NEWPORT BEACH
WHEREAS, the City owns certain tidelands and uplands in
an area known as Beacon Bay; and
WHEREAS, on January 9, 1950 City entered into a master
lease to said property with Carroll B. Beek, Barton Beek, Joseph
Allan Beek, Jr. and Seymour Beek jointly, which master lease
expires on December 31, 1987; and
WHEREAS, the westerly portion of the Beacon Bay
property has been divided into individual lots and sublet for
residential purposes; and
WHEREAS, all said subleases will expire on the same
date as the master lease, December 31, 1987; and
WHEREAS, the City Council finds it to be in the public
interest and the welfare of the City that the portion of Beacon
Bay which is currently leased for residential purposes remain
residental in character and that to enter into new agreements to
lease with the sublessees under terms and conditions set forth in
the Agreement to Lease and Lease is in the public interest; and
WHEREAS, the City Council finds that it is in the best
interest and welfare of the City that the streets, walkways,
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common areas, landscaped areas, beaches and other areas presently
leased to the Beacon Bay Community Association should remain in
said status in consideration of the Beacon Bay Community
Association maintaining said areas at no expense to the City and
further providing that the areas designated as tidelands within
said leased area remain open, available and accessible to the
public; and
WHEREAS, Chapter 74, Statutes of 1978 permits the
leasing of the residential lots in Beacon Bay which are located
on tidelands; and
WHEREAS, said Statute provides that the maximum term of
leases of residential lots in Beacon Bay located on tidelands
shall not exceed fifty years; and
WHEREAS, Section 1402 of the Charter of the City of
Newport Beach permits the leasing and re-leasing of water front
property, provided the property was under lease as of January 11,
1957, the date of adoption of said provision of the Charter of
the City of Newport Beach; and
WHEREAS, the City Council hereby finds that the maximum
lease term for the residential lots in Beacon Bay shall not
exceed twenty-five years for the following reasons:
A. Section 420 of the Charter of the City of Newport
Beach prohibits the Ci-ty entering into a lease in excess of
twenty-five years without voter approval.
B. The City Council finds it undesirable to commit the
residential portion of Beacon Bay to residential use for a period
longer than twenty-five years. At the termination of a twenty-
five year lease renewal, the City Council of the City of Newport
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Beach will be given another opportunity to determine whether or
not residential uses on that property are appropriate or whether
other uses are more appropriate. A lease term longer than
twenty-five years would be an excessive commitment for this
particular residential use of tidelands and uplands property
owned by the City of Newport Beach.
C. The extension of the residential lease term beyond
twenty-five years would provide very little financial advantage
to the City. An analysis of rental values has shown that a 35
year Lease will only increase the rental by 12.4% per annum.
Therefore, the modest increase in lease payments to the City do
not offset the disadvantage of committing the land to residential
uses for a period longer than twenty-five years; and
WHEREAS, the City Council hereby finds and determines
that the leasing of the subject property is an act by the City of
Newport Beach in its proprietary capacity and further that the
execution of the Agreements to Lease the respective residential
lots and the common areas in the westerly portion of Beacon Bay
binds the City of Newport Beach to execute the Leases of said
properties in December, 1987, and said execution of said Leases
by and on behalf of the City of Newport Beach constitutes a
ministerial act and a furtherance of the obligation of the City
of Newport Beach hereby created.
NOW, THEREFORE, BE IT RESOLVED by the City Council of
the City of Newport Beach that pursuant to the recitals
hereinabove set forth, the Charter of the City of Newport Beach
and Chapter 74, Statutes of 1978, the form of Agreement to Lease
and Lease of the residential lots in Beacon Bay, respectively
attached hereto, be and they are hereby approved.
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BE IT FURTHER RESOLVED that the Agreement to Lease and
Lease of the Common Area of Beacon Bay, respectively attached
hereto, be and they are hereby approved.
BE IT FURTHER RESOLVED that the Mayor and City Clerk
are hereby authorized and directed to execute each individual
Agreement to Lease the respective residential lots in the
westerly portion of the Beacon Bay property and the common areas
in the western portion of the Beacon Bay property and that the
Mayor and City Clerk of the City of Newport Beach are further
authorized and directed to execute said Lease for the respective
residential lots in the westerly portion of the Beacon Bay
property and the common areas of the western portion of the
Beacon Bay property during the month of December, 1987, provided
that the Sublessees and the Beacon Bay Community Association and
their heirs, devisees, and assigns, as the case might be, have
fully performed and executed their obligation under said
Agreements to Lease.
ATTEST:
City Clerk
ADOPTED this llthday of May , 1981.
)aly o
I, WANDA E. ANDERSEN, City Clerk, do
hereby certify the foregoing to be a
full, true and correct copy of Resolution
No. 10040 adopted by the City Council at
their regular meeting held May 11, 1981.
City Clerk