HomeMy WebLinkAboutC-3751 - Lease Agreement for the Beacon Bay Common AreasAMENDMENT NO. ONE TO LEASE AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH AND BEACON BAY COMMUNITY
ASSOCIATION FOR THE BEACON BAY COMMON AREAS
THIS AMENDMENT NO. ONE TO LEASE AGREEMENT ("Amendment No. One")
is made and entered into as of this 1st day of September, 2018 ("Effective Date"), by and
between the CITY OF NEWPORT BEACH, a California municipal corporation and charter
city ("Lessor"), and BEACON BAY COMMUNITY ASSOCIATION, a California nonprofit
corporation ("Lessee"), and is made with reference to the following:
RECITALS
A. On February 8, 2005, Lessor and Lessee entered into a Lease Agreement
("Lease") to allow Lessee the continued use of the Common Areas within Beacon
Bay.
B. In early 2018, Lessee, as a result of damage from a vehicle accident, undertook a
project to replace a block wall, signage, and landscaping at the entryway to Beacon
Bay.
C. At that time, Lessor installed a new irrigation meter to water landscaping located
in the public right-of-way, adjacent to Beacon Bay, previously being served by a
private water meter.
D. The parties now desire to enter into this Amendment No. One to incorporate that
portion of landscaped public right-of-way adjacent to Beacon Bay into the Common
Areas under the Lease so it may be maintained as part of the landscaped entryway
to Beacon Bay.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. MAINTENANCE AND REPAIR OF COMMON AREA.
Section 8 of the Lease is amended in its entirety and replaced with the following:
"8. MAINTENANCE AND REPAIR OF COMMON AREA.
Lessee shall at all times during the term of this Lease and without any costs or expense
to Lessor, keep and maintain the Common Area, including, without limitation, all
structures, facilities, walks, curbs, parkways, beach areas, public access signage, streets
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 Common
Area 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
Common Area to the extent required by law or as necessary to maintain the improvement
in good order and repair and safe and sanitary condition.
For purposes of the obligations set forth in this paragraph and its subparagraphs, Exhibits
B-1 and B-2, attached hereto and incorporated herein by this reference, describe and
depict a supplemental area of real property encroaching a variable distance of up to ten
(10) feet into the Harbor Island Drive public right-of-way ("Supplemental Common Area")
that is adjacent to the real property described and depicted in Exhibits B and C to the
Lease. Specifically, the Supplemental Common Area is adjacent to the real property with
an address of 1 Beacon Bay, Newport Beach, CA 92660. The Supplemental Common
Area generally includes a lateral connection from the Supplemental Common Area to
Lessor's water main located in the center of Harbor Island Road, a water meter for water
service to the Supplemental Common Area, a backflow preventer, landscaping, and an
irrigation system. As of the Effective Date of this Amendment No. One, Lessor and
Lessee agree that:
A. Lessee's maintenance and repair obligations set forth in the first paragraph of this
section 8 shall also apply to the landscaping and irrigation system on the
Supplemental Common Area, and Lessee assumes such obligation with respect
to the landscaping and irrigation system in their "as -is" condition;
B. From the back of the water meter to the backflow preventer and beyond, including
annual certification of the backflow preventer, Lessee shall maintain the irrigation
system for the Supplemental Common Area;
C. Lessor shall maintain and repair the lateral connection from the Supplemental
Common Area's water meter, including the back gasket, to Lessor's water main,
according to Lessor's standard maintenance and repair standards and practices;
D. If the water meter and lateral connection from the Supplemental Common Area to
Lessor's water main are damaged by the presence of the landscaping or irrigation
system within the Supplemental Common Area, Lessee shall be responsible for
the cost of repairs; and
E. Should Lessor be required to enter onto said Supplemental Common Area to
exercise its obligations as to the water meter, or lateral connection from the
Supplemental Common Area to Lessor's water main, Lessor may remove or alter
portions of the landscaping and/or irrigation system, as reasonably required, and
in such event:
1. Lessor shall provide Lessee forty-eight (48) hours advance written notice
of its intention to accomplish such work, provided that an emergency
situation does not exist;
2. Lessee shall be responsible for arranging for any renewal, replacement, or
restoration of the landscaping and/or irrigation system affected by such
work by Lessor;
3. Lessor agrees to bear only the cost of any removal of the landscaping
and/or irrigation system affected by such work by Lessor; and
Amendment No. One to Beacon Bay Common Area Lease Page 2
4. Lessee agrees to pay all costs for the renewal, replacement, or restoration
of the landscaping and/or irrigation system affected by such work by
Lessor."
2. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Lease shall remain unchanged and shall be in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
/ 22120lq
By:, ,
vox. Aaron C. Harp two 4•1.1,'k°1
City Attorney
ATTEST:
Date: 104
By: Lei an4thfi4
Brown
City Clerk
LESSOR:
CITY OF NEWPORT BEACH,
a California municipal corporation and
charter city
Date:
By:
Grac. Leung
City anager
LESSEE:
BEACON BAY COMMUNITY
ASSOCIATION, a California nonprofit
corporation
Date:
Signed in Counterpart
By:
Jim Helfrich
President
Date:
Signed in Counterpart
By:
Ken Crume
Secretary
[END OF SIGNATURES]
Amendment No. One to Beacon Bay Common Area Lease Page 3
4. Lessee agrees to pay all costs for the renewal, replacement, or restoration
of the landscaping and/or irrigation system affected by such work by
Lessor."
2. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Lease shall remain unchanged and shall be in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
L} / 22,/Zotq
By:
C4AUVAAA
.For. Aaron C. Harp rum it•li.t01
City Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
LESSOR:
CITY OF NEWPORT BEACH,
a California municipal corporation and
charter city
Date:
By:
Grace K. Leung
City Manager
BAY COMMUNITY
ON, a California nonprofit
en Crume
Secretary
[END OF SIGNATURES]
Amendment No. One to Beacon Bay Common Area Lease Page 3
Exhibit B-1
40
NBuis
NEWPORT BEACH
0
20
Feet
Disclaimer:
Every reasonable effort has been made to assure the
accuracy of the data provided, however, The City of
Newport Beach and its employees and agents
disclaim any and all responsibility from or relating to
any results obtained in its use.
9/5/2018
Exhibit B-2
NH
NEWPORT BEACH
0
0
100
Feet
200
Disclaimer:
Every reasonable effort has been made to assure the
accuracy of the data provided, however, The City of
Newport Beach and its employees and agents
disclaim any and all responsibility from or relating to
any results obtained in its use.
9/5/2018
LEASE AGREEMENT
BEACON BAY COMMON AREAS
(Beacon Bay Community Association}
THIS LEASE is made and entered into as of the 8th day of February, 2005, by and
between the CITY OF NEWPORT BEACH, a chartered municipal corporation ("City") or
("Lessor"), and BEACON BAY COMMUNITY ASSOCIATION, a California nonprofit
corporation ("Lessee").
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 filled and unfilled tide and submerged lands in trust. The City
also holds title to certain uplands obtained in its municipal capacity in 1929.
These areas are collectively and commonly known as Beacon Bay and described
in Exhibit A attached hereto and incorporated herein by this reference ("Beacon
Bay").
B. The Beacon Bay Bill exempts 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 statutory conditions.
C. Portions of Beacon Bay, including portions of the 'Westerly Portion" thereof, has
been divided into individual residential Tots. Within Beacon Bay are also certain
streets, walkways, beaches, common landscaped areas and tennis courts,
identified as Lots A through J and Lot 62 described in Exhibit B attached hereto
and incorporated by reference and as shown on the Exhibit C, attached hereto
and incorporated herein by this reference (the "Common Area").
D. On January 9, 1950, Lessor first entered into a master lease of Beacon Bay,
including the Common Area, to an individual who thereafter subleased individual
lots to individual homeowners. This original lease expired on December 31,
1987. On January 1, 1988, City leased the individual lots in Beacon Bay to
individual homeowners and leased the Common Area to Lessee, a community
association comprised of the foregoing individual homeowners within Beacon
Bay (the "Existing Common Area Lease"). The leases of individual lots to
individual homeowners were amended, restated and extended on various dates,
each to expire on July 1, 2044 (the "Residential Leases"). The Existing Common
Area Lease will expire on July 1, 2006.
E. On November 3, 1987, a majority of electors of the City approved a measure that
authorized the City Council to enter into new leases of the residential lots in
Beacon Bay for not to exceed fifty (50) years.
F. On November 3, 1992, a majority of electors of the City approved Measure M
that authorized the City Council to lease tidelands and waterfront property
consistent with the provisions of state law.
1
i •
G. In 1994 Lessor determined that maintaining the residential character of Beacon
Bay was in the best interests of the citizens of Newport Beach and State of
California, and agreed to a lease for the residential lots until July 1, 2044. As
with the 1988 leases, the form of those leases and range of consideration were
approved by the Califomia State Lands Commission, pursuant to Chapter 74,
Statutes of 1978.
H. Lessor has further determined it is in the best interests and welfare of the citizens
of Newport Beach and State of California:
1. that the Common Area portions of Beacon Bay which have been leased
for common area purposes appurtenant to the Beacon Bay residential
community continue in that character;
2. to lease the Common Area to Lessee under the terms, conditions and for
the consideration as hereinafter set forth; and
3. for Lessee to continue to use the same high standards of care and
maintenance of the Common Area that Lessee used on the Effective Date
of this Lease to serve the Beacon Bay residents and visitors.
The State Lands Commission has reviewed and approved the form of this Lease
and range of consideration for compliance with the provisions of relevant
statutes, rules and regulations, including, without limitation, the Beacon Bay Bill.
J. 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 all other applicable state and local laws.
K. The Parties intend, through this Lease, to confirm Lessor's right to use any
properties held in trust by the Lessor (including tidelands) for projects that are
intended to enhance the water quality or ecosystem of Newport Bay.
NOW THEREFORE, in consideration of the foregoing recitals, which are hereby
incorporated into and made part of the terms and conditions of this Lease, and the
covenants in this lease, the Lessor and Lessee agree as follows:
1. DESCRIPTION OF LEASED PREMISES.
Lessor hereby leases to Lessee, and Lessee hereby accepts this Lease of, the
Common Area, subject to the terms, covenants and conditions in this Lease.
2. TERM.
The term of this Lease is for a period commencing on the date first above written,
and shall expire on July 1, 2044, the date on which the Residential Leases
expire, unless earlier terminated as provided in this Lease. The Existing Common
Area Lease shall terminate at the time and date this Lease has been approved
by formal action of the governing bodies of Lessor and Lessee and fully executed
by both parties and approved as to form and the range of consideration by the
Califomia State Lands Commission.
2
• •
3. CONSIDERATION.
The consideration for this Lease is the execution and performance of the
Residential Leases and the maintenance and upkeep of the Common Area as
provided in this Agreement, which would otherwise be an expense borne by
Lessor, and the benefit to the public by access to and use of certain portions of
the Common Area.
A. Lessee shall maintain the Common Area at substantially the same high
standard of care and maintenance that Lessee used as of the Execution
Date of this Lease.
B. That portion of the Common Area lying southerly of the waterfront lots
lying between "Beacon Bay" (formerly Rudder Road) and the waters, of
Newport Bay, including the wet and dry -sand portions of the beach, shall
be held open and maintained by Lessee for use by members of the public.
C. The other portions of the Common Area designated as uplands may be
held for the exclusive use and benefit of Lessee and its constituent
homeowner members; provided that nothing herein shall be construed to
limit public access to or passage over the walkways leading from "Beacon
Bay" (formerly Rudder Road) to the beach nor daytime public parking on
the streets designated "Beacon Bay" and "Cutter Road" within Beacon
Bay.
D. Lessee shall install and maintain public access signage at the entrance to
Beacon Bay from Harbor Island Road and at each of the walkways leading
from "Beacon Bay" to the beach. The size and exact location of the signs
shall be determined by Lessor.
4. SALE, ASSIGNMENT, SUBLEASE.
Lessee shall not assign, transfer, sublease, mortgage, hypothecate or give any
grant of control of this Lease or the Common Area, or any part hereof, either
voluntarily or involuntarily, unless first approved by the City Council.
5. ENCUMBRANCES.
Lessee shall have the right to assign this Lease as security for financing of
Common Area improvements, such as street repairs, undergrounding of utility
lines, construction of homeowners' association improvements, and similar capital
expenditures. Lessee may adopt and record Covenants, Conditions and
Restrictions (CC&R's) against this Lease as authorized in California Civil Code
section 1350 et seq. provided Lessee obtains prior written approval of the
CC&R's by Lessor's City Attorney. Preparation, management and enforcement of
the CC&R's shall be sole responsibility of Lessee. Otherwise, Lessee shall have
no right to encumber this Lease or the Common Area for any purpose
whatsoever and any attempt by Lessee to so encumber this Lease or the
Common Area shall result in the immediate termination hereof.
3
• •
6. USE.
A. The Common Area shall be used solely and exclusively for vehicular
ingress and egress and parking, boat storage and launching, pedestrian
walkway purposes, recreational uses for Beacon Bay residents, except as
to the beach areas reserved for public beach recreation, and the property
designated as Lot "62" shall be used exclusively for tennis court and park
purposes and for construction and maintenance of an office and meeting
facilities for Lessee in connection with the maintenance and operation of
the homeowners' association in Beacon Bay. The use by Lessee of any.
portion of the Common Area for any purpose not expressly permitted or
required by this Lease is an express violation of this Lease and may be
cause for termination, at the sole discretion of Lessor.
B. Lessee shall use and manage the Common Area in a manner that does
not violate State or Federal laws, including any law that prohibits
discrimination.
C. The property, designated as beach property on Exhibit C shall be used
exclusively for public beach purposes. Lessee shall maintain the
Common Area in a manner that allows for open public access to the
beach. Lessee may impose parking limitations on use of streets within the
Common Area only for pedestrian, fire safety and/or traffic circulation
purposes upon prior written approval of the City Traffic Engineer. Lessee
shall not post or position any signs or structures in a manner that will
discourage or prohibit public access. Lessor retains the right to use the
beach portion of the Common Area for any project designed and intended
to enhancethe water quality or ecosystem of Newport Bay subject to the
ordinances and policies adopted by Lessor in its govemmental capacity
and as trustee of the State of California.
7. TAXES AND UTILITIES.
Lessee acknowledges 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 govemmental charges, if any, which
may be levied on the Common Area, including any improvements located
thereon or associated therewith, or any possessory interests therein arising out
of or based upon the leasehold interest throughout the term hereof. Satisfactory
evidence of such payment shall be made available to Lessor upon demand. Any
lien for unpaid utilities, taxes, assessments or charges shall not attach the
leasehold interest but only to the improvements thereon.
8. MAINTENANCE AND REPAIR OF COMMON AREA.
Lessee shall at all times during the term of this Lease and without any cost or
expense to Lessor, keep and maintain the Common Area, including, without
limitation, all structures, facilities, walks, curbs, parkways, beach areas public
access signage, streets and other improvements, in good order and repair and in
a clean, safe, sanitary and orderly condition. Lessee shall repair or reconstruct
4
• •
any improvements on the Common Area 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
Common Area to the extent required by law or as necessary to maintain the
improvement in good order and repair and safe and sanitary condition.
9. STRUCTURAL IMPROVEMENTS.
A. All structural improvements with a cost in excess of five thousand dollars
($5,000) (the "Capital Improvements") that are constructed during the term
of this Lease become the property of Lessor upon expiration of the Lease.
B. Lessee shall be required to obtain, prior to commencing the construction
of any Capital Improvement, all permits, licenses or approvals that may be
required by Lessor in its govemmental capacity.
C. Lessee shall, at all times, indemnify, defend and hold Lessor harmless
from any and all claims, liens, damages or fees in any way related to any
maintenance, construction, repair, alteration or installation of any
structure, improvement, equipment or facilities on the Premises. Lessee's
obligation extends to the costs of defending such claims, including
reasonable attomey's fees. Lessee shall not suffer or permit to be
enforced against all or any portion of the Premises, any lien or any claim
for damage in any way related to any construction, repair, restoration,
replacement, maintenance or improvement on the Premises. In the event
any lien or stop notices imposed or recorded on the Premises as a result
of the construction, repair or alteration of the facility by or on behalf of
Lessee, Lessee shall pay or cause to be paid all such liens, claims or
demands before any action is brought to enforce the same against the
Premises. Lessee may, in good faith, contest the validity of such lien,
claim or demand. In the event of any contest or litigation, Lessee shall, at
its sole expense, defend itself and Lessor and shall pay and satisfy any
adverse judgment that may be rendered prior to enforcement against
Lessor or the Premises. Lessor may require Lessee to fumish a surety
bond satisfactory to lessor in an amount equal to any contested lien, claim
or demand.
D. Lessee shall give Lessor advance written notice of any construction on or
improvement on the premises other than ordinary repairs and
maintenance of existing improvements. Lessee shall coordinate the
scheduling of any work with Lessor to minimize any inconvenience to the
public.
10. MAINTENANCE OF IMPROVEMENTS.
A. Lessee to Maintain All Improvements: Lessee covenants and agrees that
during the term of this Lease it will, at its own cost and expense, maintain
the Premises in good order and repair and in clean, orderly, safe and
5
sanitary condition. Lessee shall be responsible for the repair of any
damage.
B. Lessor May Elect to Repair and Maintain at Expense of Lessee: If, in the
judgment of the Lessor, the standards of maintenance and repair required
by this Lease are not being maintained, Lessor may elect to correct any
deficiency after written notice thereof to the Lessee and Lessee's failure to
cure the default. Lessee shall pay to the Lessor on demand any and all
sums expended by Lessor in correcting any such deficiency together with
interest at the legal rate. If, in the judgment of the Lessor, the disrepair or
lack of maintenance constitutes an emergency, the notice shall be a 24-
hour notice to remedy; in all other cases is shall be a 5-day notice.
C. Lessor reserves the right by its authorized agents, employees or
representatives to enter the Premises upon forty-eight (48) hours advance
notice, to inspect the same or any part thereof at any time to attend to or
protect the Lessor's interest under this Lease.
11. COMPLIANCE WITH LAWS.
Lessee shall make, or cause to be made, any additions, alterations, maintenance
or repairs to any structure or improvement on the Common Area which may be
required by this lease or by law, and Lessee shall otherwise observe and comply
with, any law, statute, ordinance, plan, resolution or policy applicable to the
Common Area. All maintenance, repairs, additions, and alterations to the
structure or improvements on the Common Area 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.
12. "AS IS" CONDITION OF COMMON AREA.
Lessee expressly accepts the Common Area "as is" and acknowledges that
Lessor has made no representations or warranties as to the suitability for any
intended purpose or use of the Common Area or any construction or
improvement thereon. Lessee shall conduct all tests necessary to determine the
suitability of the Common Area for any proposed construction or improvement
thereon, 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 Common Area 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 "Westerly Portion" of property pursuant to
the Beacon Bay Bill, the Common Area may constitute filled tide and submerged
lands, 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 Califomia 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 Common Area for the purposes provided in this Lease, Lessor agrees,
at its sole cost and expense, to use all reasonable efforts to resist and defend
6
against such challenge and to seek a ruling or judgment affirming and upholding
the right and power of Lessor to lease the Common Area for the purposes
provided in this Lease.
13. BUSINESS ACTIVITIES.
Lessee shall not grant any concession, license, permit or privilege for the
conduct of any business or other operation for profit within the Common Area
without the prior written approval of the City Manager.
14. INSURANCE.
In addition to Lessee's obligations pursuant to Section 10, Lessee shall provide
and maintain, at its own expense, policies of liability insurance as follows:
A. All required policies shall be signed by a person authorized by that insurer
to bind coverage on its behalf and must be filed with Lessor, prior to
execution of this Lease. Current certification of coverage shall be provided
throughout the term of this Lease. Except for workers compensation, all
insurance policies shall include Lessor and its elected officials, officers,
agents, representatives and employees as additional insureds.
B. All insurance policies shall be issued by an insurance company currently
authorized by the Insurance Commissioner to transact business of
insurance in the State of Califomia, with an assigned policyholders'
Rating of A (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Bests Key Rating Guide: unless
otherwise approved by the City's Risk Manager;
C. Lessee shall provide Worker's compensation insurance covering all
employees of Lessee, per the laws of the State of California.
D. Lessee shall provide Commercial general liability insurance covering third
party liability risks, including without limitation, contractual liability, in a
minimum amount of $1 million combined single limit per occurrence for
bodily injury, personal injury and property damage. If commercial general
liability insurance or other form with a general aggregate is used, either
the general aggregate shall apply separately to this Lease, or the general
aggregate limit shall be twice the occurrence limit. Lessor reserves the
right to reasonably increase the minimum coverage specified in this
subsection once every five years should the City Manager of Lessor
determine that then current coverages do not fully protect Lessor.
E. Lessee shall provide Fire and extended coverage for not less than ninety
percent (90%) of the cost of replacement of all insurable improvements in
the Common Area.
F. Except for worker's compensation, the policy or policies shall be endorsed
to state that coverage shall not be canceled by either party, except after
thirty (30) days' prior notice has been given in writing to Lessor. Lessee
7
shall give Lessor prompt and timely notice of claim made or suit instituted
arising out of Lessee's operation hereunder. Lessee shall also procure
and maintain, at its own cost and expense, any additional kinds of
insurance, which in its own judgment may be necessary for its proper
protection and prosecution of the work.
G. Lessee agrees that, in the event of loss due to any of the perils for which it
has agreed to provide comprehensive general liability insurance, Lessee
shall look solely to its insurance for recovery. Lessee hereby grants to
Lessor, on behalf of any insurer providing comprehensive general and
automotive liability insurance to either Lessee or Lessor with respect to
the services of Lessee herein, a waiver of any right of subrogation which
any such insurer of said Lessee may acquire against Lessor by virtue of
the payment of any loss under such insurance.
15. HOLD HARMLESS.
A. Lessee shall indemnify, defend, save and hold harmless Lessor, its City
Council, boards and commissions, officers and employees from and
against any and all loss, damages, liability, claims, allegations of liability,
suits, costs and expenses for damages of any nature whatsoever,
including, but not limited to, bodily injury, death, personal injury, property
damages, or any other claims arising from any and all negligent acts or
omissions of Lessee, its employees, agents or subcontractors in the use
and maintenance of the Common Area pursuant to this Lease.
B. Lessor shall indemnify, defend, save and hold harmless Lessee, its
officers and employees, from and against any and all loss, damages,
liability, claims, allegations of liability, suits, costs and expenses for
damages of any nature whatsoever, including, but not limited to, bodily
injury, death, personal injury, property damages, or any other claims
arising from any and all negligent acts or omissions of Lessor, its
employees, agents or subcontractors arising from Lessor's performance
under this Lease.
16. RESTORATION.
If during the term hereof any building or improvement erected by Lessee on the
Common Area, or any part thereof, shall be damaged or destroyed by fire or
other casualty, Lessee shall, at its cost and expense, repair or restore the same
according to the original plans thereof, or, at Lessee's option, Lessee may elect
to replace such building or improvement, provided that if Lessee so elects,
Lessee shall obtain the approval of Lessor of the proposed architectural plans.
Any such work of repair, restoration or replacement shall be commenced within
one hundred and eighty (180) days after the damage or loss occurs and shall be
completed with due diligence, but not longer than one (1) year after such work is
commenced unless delay is caused by events beyond the control of Lessee. If
Lessee elects not to repair or rebuild the improvements, it may terminate this
Lease by giving Lessor written notice of termination and by assigning all
insurance proceeds relating to the premises to Lessor. If Lessee elects to
8
• •
terminate the Lease it shall be obligated to completely clear and restore the
building site to its original condition.
17. DEFAULT AND TERMINATION OF LEASE.
A. Default: Time and each of the terms, covenants and conditions hereof are
expressly made the essence of this Lease. Lessor may terminate this
Lease and seek other appropriate remedies if Lessee fails to remedy any
default related to the payment of money within thirty (30) days after
service of a written notice from Lessor to do so, or fails to commence the
cure of any other default within thirty (30) days and diligently prosecute the
same to completion. Lessee may also terminate this Lease if Lessee
abandons or vacates the Premises. The following are examples of
material defaults that would warrant termination of this Lease in the event
of a failure to cure as specified above::
1. Failure of Lessee to keep current on all utility payments for the
Premises;
2. Failure of Lessee to keep the Common Area in state of repair and
operation dictated by this lease ("Consideration") and to keep it in a
neat, clean, orderly, safe and sanitary condition;
3. Failure to provide certificates of insurance evidencing insurance
coverage as required in paragraph 12 of this Lease;
B. Surrender of Possession upon Termination: Lessee shall, upon the
expiration or termination of this Lease, peaceably surrender the Premises
with all buildings and improvements, in the same condition as when
received or constructed, excepting reasonable use and wear thereof, and
damage by fire, act of God, or by the elements. The provisions of this
Subsection shall be effective upon expiration or termination of this Lease
regardless of whether Lessee holds over under the provisions of
Subsection E.
C. Remedies Cumulative: The rights, powers, elections and remedies of
Lessor are cumulative and no one of them shall be considered exclusive
of the other or exclusive of any rights or remedies allowed by law. Lessors
exercise of one or more rights, powers, elections or remedies shall not
impair or be deemed a waiver of Lessors right to exercise any other.
D. No Waiver No failure of 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.
E. Holding Over: If the Lessee remains in possession after the expiration of
this Lease for any cause, Lessee's possession shall be deemed a tenancy
from month -to -month upon the same terms, conditions, and provisions of
this Lease.
9
18. EMINENT DOMAIN.
In the event the whole or part of the Premises is condemned by a public entity in
the lawful exercise of the power or eminent domain, this Lease shall cease as to
the part condemned upon the date possession of that part is taken by the public
entity. If only a part is condemned and the taking of does not substantially impair
the capacity of the remainder to be used for the purposes required in this Lease,
Lessee shall continue to be bound by the terms, covenants and conditions of this
Lease. If only a part is condemned and the taking of that part substantially
impairs the capacity of the remainder to be used for the purposes required in this
Lease, Lessee shall have the election of: (a) terminating this Lease and being
absolved of obligations that have not accrued at the date possession is taken by
the public entity; or (b) continuing to occupy the remainder of the Premises and
to be bound by this Lease. Lessee shall give notice in writing of his election
hereunder, within thirty (30) days of the date possession of the part is taken by
the public entity. Lessor shall be entitled to receive and shall receive all
compensation for the condemnation of all or any portion of the remainder interest
in the property by exercise of eminent domain. Lessee shall be entitled to receive
and shall receive all compensation for the condemnation of its leasehold interest
in the Premises by the exercise of eminent domain.
19. SURRENDER OF POSSESSION UPON EXPIRATION OR TERMINATION.
Upon expiration or termination of this Lease, Lessee agrees to peaceably deliver
possession of the Common Area to Lessor and unconditionally agrees to vacate
the Common Area without contest, legal or otherwise. Improvements shall
become the property of the Lessor upon expiration of this lease.
20. ATTORNEYS' FEES.
Should either Lessee or Lessor be required to employ counsel to enforce the
terms, conditions and covenants of this Lease, the prevailing party shall recover
all reasonable attorneys' fees incurred therein, whether or not court proceedings
were commenced, and court costs, if any.
21. NOTICES.
It is mutually agreed that any notice or notices provided for in 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
City Manager or City Clerk, 3300 Newport Boulevard, Newport Beach, California
92663. Should Lessor be required to serve notice on Lessee, it may be served
upon the President of the Association. Lessee shall be obligated during the term
hereof to provide Lessor with current information as to the name, residence and
business addresses, and residence and business phone numbers of the
president of Lessee from time to time. Service of any notice, demand or
communication by either party on the other shall be deemed complete at the
expiration of 72 hours from and after the deposit in the United States mail,
postage pre -paid, addressed as set forth above.
10
22. PARTIAL INVALIDITY.
If any part of this Lease is declared invalid for any reason, this ruling shall not
affect the validity of the rest of this Lease. The other parts of the Lease shall
remain in effect as if this Lease had been executed without the invalid part,
provided, however, the parties shall immediately thereafter make all reasonable
efforts to modify or amend this Lease, consistent with the aforesaid declaration,
so as to fully implement and carry out the intent and purposes of the parties in
entering into this Lease.
IN WITNESS WHEREOF, the parties have caused this Lease to be executed on the
day and year first above written.
CITY OF NEWPORT BEACH
By
eve :romberg,May
ATTEST:
LaVonne Harkless, City Clerk
BEACON BAY COMMUNITY ASSOCIATION
By
ByN,----'
Vice Preside
APPROVED AS TO FORM:
Robin Clauson,City Attorney
F:\users\catshared\da\Ag\BeaconBay\CommonAreas F inal03-10-05
11
• •
EXHIBIT "A"
LEGAL DESCRIPTION
A parcel of land situated in the projected 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 U.S. Bulkhead Station No. 200, as shown upon a map entitled "Harbor
Lines, Newport Bay Harbor, Califomia", approved May 2"d, 1936, by the Secretary of
War and on file in the office of the United States District Engineer at Los Angles,
California; running thence West along the U.S. Bulkhead line 147.50 feet to U.S. Station
No. 137; thence North 39° 48' West along said Bulkhead line 535.53 feet; thence North
23° 57' 30" East 126.34 feet to an angle point in the ordinary high tide 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 39° 48' 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 25th, 1929, in Book 306, page 375 of Official
Records of Orange County, California; thence North 23° 57' 30" East along the
Northwesterly line of said parcel of land 317.57 feet; thence South 71° 54' East along
the Northerly line of said parcel of land 290.24; then South 85° 43' 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 U.S. Govt.
Bulkhead line between U.S. Stations Nos. 101 and 200; thence West along said
Bulkhead line 784.25 feet to the point of beginning containing approximately twelve (12)
acres.
12
EXHIBIT "B"
COMMON AREA
LEGAL DESCRIPTION
Lots 62 and A through J as shown on that certain record of Survey filed in the Official
Records of the County of Orange, State of California, as Instrument Number 5383 on
February 28, 1939 covering a portion of the projected Northwest one -quarter (1/4) of
section 35, Township 6 South, Range 10 West, S.B.B.M.
13
0)
1
N
Er
0
5
co
0
co
cc
cr
0 101
Oa 1MVA
CO
241
N
CO'N
.[V
CV
N
1'lll
NN
WOD
N N
N N
N N
3AO0 333a
I
33
33 1/2
34
34 v2
N
co
0,
N
co
3 JAY!
Oa 83NOOH3S
CO
CO
a>
.0)
O
7
a SO'1
CO •
CO:
N
N
rn
r
N
r
CO
ID
3A00 213113HS
N
N
NF
vr
yr
Oa H013N 0 10'!
47 1l2
4)
4)
1
u
ID
3AO0 3dV3 g 1°7
/
N
.
tO 10
tO
!a
In
CO.
CO
Ina
V S01
m
m
m
O—