HomeMy WebLinkAboutC-7246-1 - Beacon Bay, 9 - Lease 1986AGREEMENT TO LEASE
THIS AGREEMENT TO LEASE, made and entered into on
the 7th day of JULY , 1986, by and between the CITY OF NEWPORT
BEACH, a chartered municipal corporation, hereinafter "City,"
and FRANK O'BRYAN and DONNA S. O'BRYAN hereinafter
(Co -Trustees of the O'Bryan Family Trust)
"Sublessee."
RECITALS
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
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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
1st day of each month thereafter through the 1st day of December,
1987, a sum determined by subtracting from the fair market rental
value of $32,000 (annualized) on JULY 15, 1986
(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.
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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
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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
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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.
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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:
ty At
5-4-81
CITY OF NEWPORT BEACH
Sublessee
)
ss.
STATE OF CALIF8Yd 0. e i
COUNTY OF
Zt1y 1986 ' ,before me, the undersigned,a Notary Public in and or
O Frank O Br an and Donna S. O' Br an
said State, personally appeare
personally known to me (or proved to me on the basis of satis- 7MAUREEN
ricIAL SEAL)
a E. BIVINS
factory evidence)to be the person(s) whose name(s)is/are sutr> BLIC-CALIFORNIA
scribed to the within instrument and acknowledged to me that NGE COUNTY
he/she/they executed the same. My Coms Aug. 19, 1987
WITNESSmy hand and official seal.
Z/Aa'4"O�" J (This area for official notarial seal)
EXHIBIT "C"
L E A S E
THIS LEASE, made and entered into on the 1st day of
January, 1988, by and between the CITY OF NEWPORT BEACH, a chart-
ered municipal
corporation,
"Lesso"U
and ��
h
��?1\I
/hereinafter
Q► (
Ilb�i1��
J• �`fw' , 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
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 -
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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 rental{ Lessee agrees to pay
'two-}\ICISQKIL 5ftttk �"k6ked
to Lessor the sum of eia1_rl 3DOLLARS, ($Z7O8,3 )
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:
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(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
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(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.
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(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
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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
C
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
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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
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(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
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
$1.00 at�$ 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 /cZ % 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 Takinq 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 -17_% 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
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(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 1 `—% 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
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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
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 in 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:
WANDA E. RAGGtO
City Clerk
APPROVED AS TO FORM:
C"ity � rney '•
13
4-21-81
CITY OF NEWPORT BEACH
BY '
Mayor
EXHIBIT "I"
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.
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EXHIBIT 46217
Lot #9 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
I DEFINITIONS
Pa e
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
11-
Declarant 4
12-
Exhibit 4
13-
Member 4
14-
Lessee 4
15-
Residence 4
16-
Setback 5
II MEMBERSHIP
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
(i)
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 NONPAYMENT
OF ASSESSMENTS 7
1 -
Delinquency 7
-
Notice of Lien 8
3 -
Foreclosure Sale 8
(i)
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
Prope=l_;, maintaining and administering the Common Area
and ad -r nistering and enforcing these covenants,
conditions and restrictions and collecting and disbursing
funds :,_;suant to the assessment and charges hereinafter
create= and referred to and to perform such other acts as
shall generally benefit the Covered Property to the Beacon
Bay Gc;::;_nity Assocation, a California nonprofit
coroo=a-ion.
D. Declarant will hereafter hold title to and lease
all c= _:"._ Covered Property subject to certain protective
covenants, conditions and restrictions hereafter set forth.
Beacon E a%r
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
incu-red in bringing the Lessee and his Residence into
coma l ince 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.
Beaccn Bay
9/20/79
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.
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;
(f) the costs of any other insurance obtained by the
Association;
(g) reasonable reserves as deemed appropriate by the
Boars;
(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;
Beaco-. Bay
9/20/7:
3
Rev. 9/24/79
(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 'q 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 Newport Beach.
Section 12. "Exhibit" shall mean and refer to those
documents so designated herein and attached hereto and
each of such Exhibits is by this reference incorporate::: in
this Declaration.
Section 13. ""Membershall mean and refer to every person
or entity who qualifies for membership pursuant to the
Article of this Declaration entitled "Membership."
Section 14.- "Lessee" shall mean and refer to one or more
persons or entities who are alone or collectively the
lessees of a Residence.
Section 15. "Residence" shall mean and refer to a
nur.�=re- lot shown on the Record of Survey Map of Beacon
Bay 3::ldivision recorded in Book 9, pages 42 and 43,
Recc-cs of Survey, on file in the Office of the County
Rec�-cer, Orange County, California; provided, however,
"R�sice-,ce" shall not include any Common Area.
"Re i__nce" shall include the residential dwelling unit
9/2r'
4 Rev. 9/24/79
z5, ..
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
membership. 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 - Votinq Rights. All voting right shall be
subject to the restrictions and limitations provided
herein and in the Articles, Bylaws and Association Rules.
Section 5 - Classes of Voting Membership. The Association
shall have one (1) class of voting membership.
Sec`_zcn - Approval of Members. Unless elsewhere
specifically provided in this Declaration or the
By.= any provision of this Declaration or the Bylaws
i3 r• r-r�^ ��'�
9 / 2 0 17 9
Rev_ 9/25/79
ZGl
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.
ction 1 -
ARTICLE III
COVENANT FOR MAINTENANCE ASSESSMENTS
of the Li
al Oblication
or 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 p=ayable on such dates as the Board may establish.
Each M;tuber shall be sent written notice of the Regular
Assessment and shall thereafter pay the Association in
inst=17-ments as established by the Board.
Section 4 - Uniform Assessment. Regular Assessments shall
be fixed at an equal amount for each Residence.
Section 5 - Special Assessments.
be levied by the Board from time
Beacon Fray
9/20/79
Special Assessments may
to time.
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 (l0%)
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
Section entitled "Notice of Lien" of this Article to
foreclose the lien against the Residence. If action is
co^ -.need, 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
.ent 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
assig^s; the right and power to bring all actions at law
Beacon Bay
9/20/73 7 Rev. 9/24/79
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 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) day
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 Mortgage Liens.
(a) The lien provided for in the Article hereof
entitled "Nonpayment of Assessments" for the payment of
AssessT=rts shall be subordinate to the lien of any
fdortcuge which was recorded prior to the date any such
Asses!=ent becomes due.
(b) If any Residence subject to a monetary lien
created by any provision hereof shall be subject to the
lien of a Mortgage: (1) the foreclosure of any lien
create: by anything set forth in this Declaration shall
Beacon w y
9/20/79 8 Rev. 9/24/79
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 Arcitectural Committee. Persons appointed by the
Board to the Architectural Committee, however, must be
Members.
Sectio- 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 -Bav
9/20/79 9 Rev. 9/24/79
however, the Architectural Committee may delegate its plan
review resoonsibilites 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
liability or responsibility therefor, or for any defect in
any structure constructed from such plans and
specifics -ions.
ARTICLE VI
DUTIES AND POSERS OF THE ASSOCIATION
Section. 1 - General Duties and Powers. In addition to the
dutie.; =-.d powers enumerated in its Articles and Bylaws,
Beacon Bay
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 - Genera
Association throug
obligation to:
sties of t;
e Board s
iation. The
e the duty and
(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 Co, on 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 - Genera! 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) borrow money as may be needed in connection with
the discharge of the Association's powers and duties; and
(c) establish and maintain a working capital and
contin ncy fund in an amount to be determined by the
Boars. Said fund shall be used by the Board as it deems
fit to carry out the objectives and purposes of the
Association Rules. The Board shall have the
po,;e adopt, amend, and repeal such rules and
reg;; := ns as it deems reasonable (the "Association
Rule_ In t.ne event of any conflict between any such
rssc _=_:on Rulea and any other provisions of this
or tt,e Articles or Byla1;s, the provisions of
the Rules shall he deemed to be superseded by
the 70!17of this Declaration, the Articles or the
B Y I the extent of any such conflict.
9/20/._. ] 1.
12ev. 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 the underground facilities
or public utilities which are located within easements in
the Cermon 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
maintained, replaced or restored by such public utilities.
ARTICLE VIII
USE RESTRICTIONS
Section 1 - Commercial Use. No part of a Residence shall
be used for, any business, commercial, or nonresidential
purposes.
Beacon. Bay
9/20/79 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 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' Riqht of Enjoyment. Every Member
shall nave nonexclusive easement for use and enjoyment in
and to the Common Area and such right shall be appurtenant
to and shall 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
of guests of Members and to limit the
Area by persons not in possession of
owning a portion of the interest in a
for membership.
to limit the number
use of the Common
a Residence, but
Residence required
.(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.
ARTTrT,R X
GENERAL PROVISIONS
Section. 1 - Enforcement. The Association, or any Lessee,
shall 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 yrticles or Bylaws and any amendments thereto.
With respect to architectural control and Association
Rules, the Association shall have the exclusive right to
the enforcement 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 undertake such enforcement. With respect to Assessment
Beacon. Bav_
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 Member to enforce any covenant, condition, or
restriction herein contained, or the Articles, Bylaws or
Association Rules, in any certain instance or on any
particular occasion shall not be deemed a waiver of such
right on any such future breach of the same or any other
covenant, condition or restriction.
Section 3 - Cumulative Remedies. All rights, options and
remedies of Declarant, the Association, or the Lessees
under this Declaration are cumulative, and no one of them
shall be exclusive of any other, and Declarant, the
Association, and the Lessees shall have the right to
pursue any one or all of such rights, options and remedies
or any other remedy or relief which may be provided by
law, whether or not stated in this Declaration.
Section 4 - Severability. Invalidation of any one or a
portion of these covenants, conditions or restrictions by
judgment or court order shall in no way affect any other
provisions which shall remain in full force and effect.
Section 5 - Covenants to Run with the Land; Term. The
covenants, conditions and restrictions of this Declaration
shall run with and bind the Covered Property and shall
inure to the benefit of and be enforceable by the
Association or any Lessee, their respective legal
representatives, heirs, successors and assigns, for a term
of twenty five (25) years from the date this Declaration
is recorded, after which time said covenants, conditions
and restrictions shall be automatically extended for
successive periods of ten (10) years, unless an
instrumient, 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
considered or referred to in resolving questions of
interpretation or construction.
Section. 7 -Singular Includes Plural. Whenever the
content of this Declaration requires same, the singular
shall include the plural and the masculine shall include
the feminine and the neuter.
Beacon.u av
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
accepta,ce or conveyance of a Residence creates a personal
covena-t between the Lessee of such Residence and
Declarant or other Lessees, such personal covenant shall
Beacon >v
9/20/75 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 (60%) of the Members.
(b) Any amendment or modification of any Article
other titan those specified in subparagraph (a) above shall
require the affirmative vote or written approval of a
majority of the members.
(c) An amendment or modification that requires the
vote and ;arftten assent of the Members as hereinabove
Beacon Pay
9/20/79 17 Rev. 9/24/79
provided shall be effective when execute 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 OF NEWPORT BEACH,
a chartered municipal corporation
By:
City Clerk
APPROVED AS TO FOP14:
ty Attorney
Mayor
Beacon Ba.,
9/20/79 18 Rev. 9/21/79
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]
Beaco.^. �_✓
9/20/79
032381
Notary Public
19 Rev. 9/24/79
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