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HomeMy WebLinkAboutC-7306-1 - Beacon Bay, 52 - - Assignment to LeaseAGREEMENT TO LEASE THIS AGREEMENT TO LEASE, made and entered into on the, I day ofrce- ,-'1981, by and between the CITY OF NEWPORT BEACH, a chartered municipal corporation, hereinafter "City," and MJL,,UKFt7 A__0 l ; Thereinafter "Sublessee." DLIel T T AT C A. City holds title to and is the owner of certain harbor frontage and tidelands, together with certain uplands abutting thereon known as Beacon Bay and more particularly described in Exhibit "1" attached hereto and made a part hereof by this reference. B. Carroll B. Beek, Barton Beek, Joseph Allan Beek, Jr., and Seymour Beek jointly hold a Master Lease to said proper- ty dated January 9, 1950, which Master Lease expires on December 31, 1987. C. The "Westerly Portion" of the Beacon Bay property has been divided into individual lots and subleased for residential purposes. D. All of said subleases expire on the same date as the Master Lease, to wit: December 31, 1987. E. City believes it to be in the best interest and welfare of City: (1) that the portion of Beacon Bay which is currently leased for residential purposes remain residential in character; and (2) to enter into new agreements to lease with the sublessees under the terms, conditions and for the considera- tion as hereinafter set forth. F. It is the judgment of City that the leasing of the property hereinafter described is consistent with the trust pur- poses imposed upon such portions of the leased land which may 1 constitute tidelands as authorized by Chapter 74, Statutes of 1978. G. It is further the judgment of City that in entering into this Agreement to Lease in the future, City is acting pur- suant to its proprietary powers. NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING RECITALS AND THE MUTUAL COVENANTS set forth below, City and Sub- lessee hereby agree as follows: 1. City hereby agrees to lease to Sublessee and Sub- lessee hereby agrees to lease from City the real property described in Exhibit "2" attached hereto and by this reference made a part hereof (hereinafter the "Leased Land") pursuant to a lease substantially in the form of Lease which is attached hereto marked Exhibit "C" and by this reference made a part hereof, and under the terms and conditions as set forth below. 2. In consideration of City's agreement to lease to Sublessee hereunder, Sublessee agrees to pay to City on the lst day of each month following the date of this Agreement and on the lst day of each month thereafter through the lst day of December, 1987, a sum determined by subtracting from the fair market rental value of rJ. A (annualized) on July 1, 1981 (the "Effective Date"), the payments made by Sublessee under a sublease on the Leased Land to the Master Lessee of Beacon Bay described in Paragraph A of the Recitals above. 3. The Base Rental under Paragraph 3 of the Lease, Exhibit "C" attached hereto, shall be the fair market rental value of the land on the Effective Date subject to adjustment of the base rental, hereafter "Adjusted Base Rental", as set forth in paragraphs 4 or 5 hereof. PA ') W 4. Should any Sublessee not execute this Agreement on or prior to the Effective Date, but execute this Agreement after Effective Date and prior to December 31, 1987, the rental sum to be used in paragraph 2 hereof and the Base Rental under Paragraph 3 of the Lease, Exhibit "C" attached hereto, shall be the total of the fair market rental value of the land as established by the Appraisal Report prepared by George Hamilton Jones, M.A.I., dated November 5, 1980, plus an amount equal to the L.A. - Long Beach Consumer Price Index (C.P.I.) increase, from July 1, 1981 to the date of execution, or 1% per month increase from July 1, 1981, whichever is greater, plus an amount equal to the increase in rental value change due to the reduced lease advantage, as of the date of execution, as set forth in the effective rental value change sheet attached hereto as Exhibit "D", said total rental rate shall be referred to as Adjusted Base Rental. The different Adjusted Base Rental provided for in this paragraph is imposed unilaterally by the City out of what is deemed to be fair and equitable to those Sublessees who choose to enter into this Agreement on its Effective Date. Said difference in Adjusted Base Rentals is in no manner to be considered a penalty but moreover a procedure developed solely by City to provide the incentive to enter into this Agreement of Lease at the earliest date possible. Commencing January 1, 1988 City is under no obligation to enter into this Agreement or a Lease in the form of Exhibit "C" attached hereto with any sublessee who has not executed this Agreement and shall be free to deal with respect to the lease of any unleased portions of Beacon Bay on any terms and conditions it deems fit, either with third parties or prior sublessees. 5. Sublessee may sell, assign, exchange or convey his interest in this Agreement without prior written consent of the City, provided that upon any such transfer the provisions of 3 Section 4 of the Lease Exhibit "C" attached hereto, shall determine the amounts to be paid by assignee to City, and further provided that the assignee execute an acceptance of the assignment and an agreement to be bound by all the terms of this Agreement and to make the payments provided for hereunder which Assignment and acceptance shall be delivered to and accepted by City. Upon such assignment and acceptance, Sublessee shall be released of any further obligation and liabilities under this Agreement to Lease. 6. The parties agree to execute the Lease, Exhibit "C" hereto, during the month of December, 1987 and concurrently therewith to execute and record a short form memorandum thereof. 7. Time and each of the terms, covenants and conditions hereof are expressly made the essence of this Agreement. If Sublessee shall fail to comply with any of the terms, covenants or conditions of this Agreement, including making the payments provided for herein at the time and in the amount herein required, and shall fail to remedy such default within sixty (60) days and thereafter diligently prosecute the same to completion, or if a Sublessee shall abandon or vacate the Leased Land, City may, at its option and without further demand, terminate this Agreement. Upon service by City on Sublessee of Notice of Termination of this Agreement to Lease, notice being given in the same manner as provided in paragraph 19 of the Lease appended hereto as Exhibit "C" this Agreement to Lease shall be terminated as to Sublessee and City's obligation to enter into the Lease appended hereto as Exhibit "C" is likewise terminated and City is under no obligation whatsoever to enter into said Lease with Sublessee. In addition to termination of this Agreement to Lease, City may recover from Sublessee all damages incurred by 4 City by reason of said breach, including, without limitation, any payments due and owing from Sublessee to City and any other costs due and owing from Sublessee to City at the date of termination of this Agreement to Lease. Should either City or Sublessee be required to employ counsel to enforce the terms, conditions and covenants of this Agreement to Lease, the prevailing party shall recover all reasonable attorney's fees (and court costs if applicable) incurred therein whether or not court proceedings were commenced. 8. Sublessee agrees that he will hold and save City, its officers, agents and employees harmless from any and all claims or demands of any kind or nature whatsoever arising out of, or incident to, the use and occupancy of the Leased Land, and to indemnify City for any cost, liability or expense caused by or arising out of any injury or death of persons or damage to property which may occur upon or about the Leased Land or caused by or arising out of any activities or omission of Sublessee, his agents, employees, licensees, and/or invitees, including, without limitation, injury or death of Sublessee, his agents, employees, licensees and invitees and damage to his property or Sublessee's property; except for any damage or injury of any kind arising out of the negligence of City, its agents or employees. 9. Each and every covenant, condition and agreement hereof, in accordance with the context, shall inure to the benefit of City and apply to and bind Sublessee, their respective heirs, legatees, devisees, executors, administrators, successors, assigns, licensees, permittees, or any person who may come into possession or occupancy of the Leased Land, or any part thereof in any manner whatsoever. 5 IN WITNESS WHEREOF, the parties have caused this Agree- ment to Lease to be executed on the date first above written. CITY OF NEWPORT BEACH ATTEST: i 4 City Clerk APPROVED AS TO FORM: ity Attorney Sublessee 5-4-81 r EXHIBIT "1" LEGAL DESCRIPTION OF BEACON BAY A parcel of land situated in the Northwest quarter of Section 35, Township 6 South, Range 10 West, S. B. B. & M., Orange County, California, more particularly described as follows, to wit: Beginning at the United States Bulkhead Station No. 200, as shown upon a map entitled "Harbor Lines, Newport Bay Harbor, California," approved May 2, 1936, by the Secretary of War and on file in the office of the United States District Engineer at Los Angeles, California; running thence West along the United States Bulkhead line 147.50 feet to United States Station No. 137; thence North 39048' West along said Bulkhead line 535.53 feet; thence North 23057'30" East 126.34 feet to an angle point in the ordinary high tide line of the Pacific Ocean in Newport Bay, as described in Court Case No. 24026 of the Superior Court of the State of California, in and for the County of Orange; thence South 39048' East along said ordinary high tide line 334.47 feet to the most Westerly corner of that certain parcel of land conveyed to the City of Newport Beach by The Irvine Company, as described in deed recorded September 25, 1929, in Book 306, page 375 of Official Records of Orange County, California; thence North 23057'30" East along the Northwesterly line of said parcel of land 317.57 feet; thence South 71054' East along the Northerly line of said parcel of land 290.24 feet; thence South 85043' East along the Northerly line of said parcel of land, said Northerly line being the Southerly line of Bayside Drive, 606.01 feet; thence South 424.71 feet to a point in the United States Government Bulkhead Line between United States Stations Nos. 101 and 200; thence West along said Bulkhead line 784.25 feet to the point of beginning; containing approximately twelve (12) acres. Said parcel of land is shown on Attachment 2 for identification purposes only and is not to be a part of this document. ` Ci l0i ! 1 _ ! t t i V)-0 ^ 1 1 �t t•i I! •' t t I �-=-J L �---' i I i ��i iii �•�'' �i� � ��; :��� � -.,�;a � -.t •' —� 'I' t •li I ` Ci l0i ! 1 _ ! t t 0 1uZ V)-0 ^ / ;� :i -► t!t �t t•i ci_ 1;c_ "1-J �-=-J L �---' i I `•J l�'- ".J t 0))`r+>m •' —� 'I' t •li I 0 1uZ `; V 1 ANZI70S i I V)-0 ^ / ;� :i -► t!t �t t•i ci_ 1;c_ "1-J �-=-J L �---' `; V 1 ANZI70S i I I V)-0 ^ N i I — -� ".J t 0))`r+>m vi 4- -0 N i m- ce Co W ,-Z I ' I V)-0 ^ N I — -� 0))`r+>m 1� 1 J RR i j tV -0 ct a N rt3 (CS UNM •r Rs � -1— f2 N O 4 - IT U 4- ^ (IS rtY O N 11m 4- •1-) -Ne o 0 Ori-> O U m co E Y C = • o o U U -- , E�-Y -T _-�-�_ t----- i- f' I�i CEt f. m ; &_7Z-1120 mast , •fir , L--L___1__.J 'Cs< 107 71-7✓071. N]UJ_yU a' . ♦i II �� u V \ S z I etc L � N V)-0 ^ N — -� 0))`r+>m vi 4- -0 N i m- ce Co W ,-Z E�-Y -T _-�-�_ t----- i- f' I�i CEt f. m ; &_7Z-1120 mast , •fir , L--L___1__.J 'Cs< 107 71-7✓071. N]UJ_yU a' . ♦i II �� u V \ S z I etc L � N EXHIBIT "7" Lot 52 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 1 - Architectural Committee 2 - Articles and Bylaws 3 - Assessments 4 - Association 5 - Association Rules 6 - Board 7 - City 8 - Common Expenses 9 - Common Area 10- Covered Property 1.1- Declarant 12- Exhibit 13- Member 14- Lessee 15- Residence 16- Setback II MEMBERSHIP 1 - Membership 2 - Transfer 3 - Voting Rights 4 - Classes of Voting Membership 5 - Approval of Members III COVENANT FOR MAINTENANCE ASSESSMENTS 1 - Creation of the Lien and Personal Obligation of Assessments 2 - Purpose of Assessments 3 - Regular Assessments 4 - Uniform Assessment 5 - Special Assessments 5 - No Offsets 7 - Reserves IV NO3PAY14ENT OF ASSESSMENTS - Delinquency - Notice of Lien 3 - Foreclosure Sale (i) 2 2 2 3 3 3 3 3 4 4 4 4 4 4 4 5 0 5 5 5 5 5 L 6 6 6 6 6 6 7 7 7 8 8 IX RIGHTS OF ENJOYMENT 1 - Members' Right of Enjoyment 2 - Delegation of Use 3 - Waiver of Use X GENERAL PROVISIONS 1 - Enforcement 2 - No Waiver 3 - Cumulative Remedies 4 - Severability 5 - Covenants to Run with the Land; Term 6 -- Heading 7 - Singular Includes Plural 8 - Attorneys' Fees 9 - Notices 10- Effect of Declaration 1=- Personal Covenant 12- Nonliability of Officials l�- Subleases l- Amendments 13 13 14 14 14 14 15 15 15 15 15 15 16 1.6 16 16 17 17 17 4 - Relationship with Mortgage Liens 8 5 - Curing of Default 9 V ARCHITECTURAL CONTROL 9 1 - Appointment of Architectural Committee 9 2 - General Provisions 9 3 - Approval and Conformity of Plans 10 4 - Nonliability for Approval of Plans 10 VI DUTIES AND POWERS OF THE ASSOCIATION 10 1 - General Duties and Powers 10 2 - General Duties of the Association 11' 3 - General Powers of the Associationon 11 4 - Association Rules 11 VII REPAIR AND MAINTENANCE 12 1 -- Repair and Maintenance by Association 12 2 - Repair and Maintenance by Lessee 12 3 - Maintenance of'Public Utilities 12 VIII USE RESTRICTIONS 12 1 - Commercial Use 12 2 - Signs 13 3 - Nuisance 13 4 - Animals 13 5 - California Vehicle Code 13 IX RIGHTS OF ENJOYMENT 1 - Members' Right of Enjoyment 2 - Delegation of Use 3 - Waiver of Use X GENERAL PROVISIONS 1 - Enforcement 2 - No Waiver 3 - Cumulative Remedies 4 - Severability 5 - Covenants to Run with the Land; Term 6 -- Heading 7 - Singular Includes Plural 8 - Attorneys' Fees 9 - Notices 10- Effect of Declaration 1=- Personal Covenant 12- Nonliability of Officials l�- Subleases l- Amendments 13 13 14 14 14 14 15 15 15 15 15 15 16 1.6 16 16 17 17 17 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS BEACON BAY COMMUNITY ASSOCIATION ORANGE COUNTY, CALIFORNIA THIS DECLARATION is made this day of by the City of Newport Beach a chartered municipal corporation. Said corporation, its successors and assigns, shall hereafter be referred to as "Declarant." R E C I T A L S A. Declarant is the fee owner of the real property described in Exhibit A to this Declaration, which shall be the Covered Property under this Declaration. This Declaration is being imposed by Declarant upon the Covered Property. 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_t-v, maintaining and administering the Common Area and a'7iinistering and enforcing these covenants, condiLiors and restrictions and collecting and disbursing funds :)�-lrsuant to the assessment and charges hereinafter create= Ind referred to and to perform such other acts as shall generally benefit the Covered Property to the Beacon Bay C ',.:pity Assocation, a California nonprofit corno_a - ion. D. Declarant will hereafter hold title to and lease all o` _`e- Covered Property subject to certain protective covenail-�s, conditions and restrictions hereafter set forth. Beacon 9/20/7° 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%he 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: "Regul-ar Assessment" shall mean the amount which is to be Pala by each Member of the Association for Common Expenses. "Spe _al Assessment" shall mean a charge against a part-cular Lessee and his Residence, directly attributable to the Lessee, to reimburse the Association for costs ince-rd in bringing the Lessee and his Residence into compl.ance with the provisions of this Declaration, the Articles, Bylaws or Association Rules, or any other charge desig7-;rated as a Special Assessment, together with attofneys' fees and other charges payable, plus interest thereon as provided for in this Declaration. Beacon Bay 9/20/9 2 Rev. 9/24/79 Zl� Section 4. "Association" shall mean and refer to Beacon Bay Community Assocation, a nonprofit corporation, incorporated under the laws of the State of California, its successors and assigns. Section 5. "Association Rules" shall mean rules adopted by the Association pursuant to the Article hereof entitled "Duties and Powers of the Association." Section 6. "Board" shall mean the Board of Directors of the Association. Section 7. "City" shall mean and refer to the City of Newport Beach, California, a municipal corporation of the State of California. Section 8. "Common Expenses" shall mean and refer to the actual and estimated costs of: (a) maintenance, management, operation, repair and replacement of the Common Area, and all other areas on the Covered Property which are maintained by the Association; (b) maintenance by the Association of areas within the public right-of-way of public streets in the vicinity of the Covered Property as provided in this Declaration or pursuant to agreements with the City; (c) costs of management and administration of the Association, including, but not limited to, compensation paid by the Association to managers, accountants, attorneys and employees; (d) the costs of utilities, gardening and other services which generally benefit and enhance the value and desirability of the Community Facilities; (e) the costs of fire, casualty, liability, workmen's compensation and other insurance covering the Common Area; (,) the costs of any other insurance obtained by tYie Association; (g) reasonable reserves as deemed appropriate by the BcaY�; (h) the costs of bonding of the members of the Board, any professional managing agent or any other person handling the funds of the Association; Beacon. Bay 9/20/79 3 Rev. 9/24/79 �l (i) taxes paid by the Association; (j) amounts paid by the Association for discharge of any lien or encumbrance levied against the Common Area or portions thereof; •(k) costs incurred by the Architectural Committee or other committee established by the Board; and (1) other expenses incurred by the Association for any reason whatsoever in connection with the Commo: Area, or the costs of any other item or items designated '>y this Declaration, the Articles, Bylaws or Association Rules, or in furtherance of the purposes of the. Association or in the discharge of any duties or powers of the Association. Section 9. "Common Area" shall mean all streets, beaches, walkways, tennis courts, docks, piers, and common landscaped areas, including but not limited to Lots A through J inclusive as shown on Exhibit 'U". Section 10. "Covered Property" shall mean and refer to all the real property described on Exhibit "I". Section 11. "Declarant" shall mean and refer to the City of 'Newport Beach. Section 12. "Exhibit shall mean and refer to those documents so designated herein and attached hereto and eac' ' of such Exhibits is by this reference incorporate<3 in this Declaration. Section 13. "Member"•shall or entity who qualifies for Article of this Declaration Section 14. "Lessee" shall persons or entities who are lessees of a Residence. mean and refer to every person membership pursuant to the entitled "Membership." mean and refer to one or more alone or collectively the Sec":On 15. "Residence" shall mean and refer to a nu7m—e--2c I.ot shown on the Record of Survey P2ap of Beacon Ba; s,_,'Ddi vision recorded in Book 9, pages 42 and 43, Recc-4s of Survey, on file in the Office of the County Rec-i:Yd?i, Orange County, California; provided, however, "Re ce-:ce" shall not include any Common Area. "Ft _�� : _•- �e" shall include the residential dwelling unit Fac y 9/2C//_ 4 Rev. 9/7.4/79 together with garages, structures and other improvements on the same lot or parcel. Section 16. "Setback" shall mean and refer to those internal distances from the property line of each lot as shown on Exhibit "II', ARTICLE II MEMBERSHIP Section 1 - Membership. Every Lessee shall be a Member but there shall be only one Membership per Residence. The term and provisions set forth in this Declaration, which are binding -upon -all Lessees are not exclusive, as Lessees shall, -in addition, be subject to the terms and provisions of the Articles, Bylaws and Association Rules to the extent the provisions thereof are not in conflict with this Declaration.- Membership of Lessees shall be appurtenant to and may not be separated from the interest of such Lessee in any Residence. Ownership of a Residence shall be the sole qualification for membership; provided, however, a Member's voting rights may be regulated or suspended as provided in this Declaration, the Bylaws or the Association Rules. Section 2 - Transfer. The membership held by any Lessee shall not be transferred, pledged or alienated in any way, except that such membership shall automatically be transferred to the transferee of the interest required for 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 transferrin Lessee. U Section 3 - Voting Rights. All voting right shall be subject to the restrictions and limitations provided herein end in the Articles, Bylaws and Association Rules. Section 4 - Classes of Voting Membership. The Association sha.l? 1�aVe one (1.) class of voting membership. Sect - L�ppr.oval of Members. Unless elsewhere o� �r:tii specifically provided in this Declaration or the B1'la'�s, any provision of this Declaration or the Bylaws Be,1 L r.J iii .� 9/2-0/75 i Rev_ 9/24/79 which requires the vote or written assent of the voting power of the Association shall be deemed satisfied by the following: (a) The vote in person or by proxy of the specified percentage at a meeting duly called and noticed pursuant to the provisions of the Bylaws dealing with annual or special meetings of the Members. (b) Written consents signed by the specified percentage of Members as provided in the Bylaws. ARTICLE III COVENANT FOR MAINTENANCE ASSESSMENTS Section 1 - Creation of the Lien and Personal Obligation of Assessments. Each Lessee is deemed to covenant and agree to pay to the Association: Regular and Special Assessments, such Assessments to be fixed, established and collected from time to time as provided in this Declaration. The Assessments, together with interest thereon, late charges, attorneys' fees and court costs, and other costs of collection thereof, as hereinafter provided, shall be a continuing lien upon the Residence against which each such Assessment is made and shall also be the personal obligation of the Lessee of such Residence at the time when the Assessment becomes due. Notwithstanding the foregoing, the Assessment lien shall not affect the priority of any other existing liens. Section 2 - Purpose of Assessments. The Assessments levied by the Association shall be used exclusively to defray Common Expenses. Section 3 - Regular Assessments. Each year the Board shall determine the amount of the Regular Assessment to be paid by each Member. The Regular Assessment shall be due and payable on such dates as the Board may establish. Each `:ember shall be sent written notice of the Regular Assessment and shall thereafter pay the Association in inst 11mients as established by the Board. Sect -;,,n 4 - Uniform Assessment. Regular Assessments shall be fi>:ed at an equal amount for each Residence. Section 5 - Special Assessments. Special Assessments may be 1;-viccd by the Board from time to time. Beacon Bay 9/20/79 6 Rev. 9/24/79 r 1 L .,. Section 6 - No Offsets. All Assessments shall be payable in the amount specified by the Assessment and no offsets against such amount shall be permitted for any reason, including, without limitation, a claim that (i) the Association is not properly exercising its duties and powers as provided in this Declaration; or (ii) a Member has made and elects to make no use of the Common Areas, Section 7 - Reserves. The Regular Assessments may include reasonable amounts as determined by the Board collected as reserves for the future periodic maintenance, repair or replacement of all or a portion of the Common Area, or any other purpose as determined by the Board. All amounts collected as reserves, whether pursuant to this Section or otherwise, shall be deposited by the Board in a separate bank account to be held in trust for the purposes for which they are collected and are to be segregated from and not commingled with any other funds of the Association. Such reserves shall be deemed a contribution to the capital account of the Association by the Member. ARTICLE IV NONPAYMENT OF ASSESSMENTS Section 1 - Delinquency. Any assessment provided for in this Declaration which is not paid when due shall be delinquent on said date (the "delinquency date"). If any such Assessment is not paid within ten (10) days after delivery of notice of such delinquency from the Association, a late charge as established by the Board shall be levied and the Assessment shall bear interest from the delinquency date at the rate of ten percent (10%) per annum. The Association may at its option, and without waiving the right to judicially foreclose its. lien against the Residence, pursue any available remedies, including, wit;lout 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 Secion entitled "Notice of Lien" of this Article to fore,:-! - ose the lien against the Residence. If action is comMenced, 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 iii c.i,ent shall include said late charge, interest and a re--o:iable attorney's fee, together with the costs of actio;. Each Member vests in the Association, or its assign3, the right and power to bring all actions at law Beat- Bay 9/2iji79 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 J_ate charge as established by the Board, plus reasonable attorneys' fees and expenses of collection in connection with the debt secured by said lien, and the name and address of the claimant. Section 3 - Foreclosure Sale. Said Assessment lien may be enforced by sale by the Association, its attorney or any other person authorized by the Board to make the sale after failure of the Lessee to make the payments specified in the notice of claim of lien within said thirty (30) day period. Any such sale provided for above is to be conducted in accordance with the provisions of Sections 2924, 2924b, 2924c, 2924f, 292.4g and 2924h of the Civil Code of the State of California as said statutes may from time to time be amended, applicable to the exercise of powers of sale in mortgages and deeds of trust, or in any other manner_ permitted or provided by law. Upon the affirmative vote of a majority of the voting power of the Association, the Association, through its duly authorized agents, shall have the power to bid on the Residence, using Association funds, or funds borrowed for such purpose, at the sale, and to acquire and hold, lease, mortgage and convey the same. Section 4 - Relationship with Mortqaqe Liens. (a) The lien provided for in the Article hereof entitle? "Nonpayment of Assessments" for the payment of Assess:-_rnts shall be subordinate to the lien of any Mortc.--e which was recorded prior to the date any such Assesrr-,-,en.t becomes due. (b) If any Residence subject to a monetary lien creates'. ,1.7 any provision hereof shall be subject to the lien of a Mortgage: (1) the foreclosure of any lien creat_.: y anything set forth in this Declaration shall Beacon �a1, 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 11 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 hYc.itectural Committee. Persons appointed by the Board to the Architectural Committee, however, must be Member. Section 1 - General Provisions. (a) The Architectural Committee may establish reasor_able procedural rules and assess a fee in connection with = =,-iew of plans and specifications including, without limitaticn, the number of sets of plans to be submitted; Beacon E�, 9/20/79 r 9 Rev. 9/24/79 however, the Architectural Committee may delegate its plan review responsibilites to one or more members of such Architectural Committee. Upon such delegation, the approval or disapproval of plans and specifications by such persons shall be equivalent to approval or disapproval by the entire Architectural Committee. (b) In the event the Architectural Committee fails to approve or disapprove such plans and specifications within thirty (30) days after the same have been submitted in accordance with any rules regarding such submission adopted by the Architectural Committee, such plans and specifications will be deemed approved. (c) Nothing in this Declaration or in the Association's Articles, Bylaws or Rules shall be construed or amended to allow the Architectural Committee to modify or eliminate the Setback requirements shown on the Beacon Bay Subdivision Survey Map, and any attempt to do so shall have no effect. Section 3 - Approval and Conformity of Plans. No building, fence wall or other structure shall be commenced, erected or maintained upon the Covered Property, nor shall there be any addition to or change to the exterior of any Residence, structure or other improvement except in compliance with plans and specifications therefor which have been submitted to and approved by the Architectural Committee as to harmony of external design and location in relation to surrounding structures and topography. Section 4 - Nonliability for Approval of Plans. Plans and specifications shall be approved by the Architectural Committee as to style, exterior design, appearance and location, and are not approved for engineering design or for can vliance 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 str cture constructed from such plans and specifi ca�ions. ARTICLE VI DUTIES AND POWERS OF THE ASSOCIATION Section 1 - General Duties and Powers. In addition to the duties -_1 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 - General Duties of the Association. The Association through the Board shall have the duty and obligation to: (a) enforce the provisions of this Declaration, the Articles, Bylaws, and Association Rules, by appropriate means and carry out the obligations of the Association hereunder; (b) maintain and otherwise manage the Common Area; (c) pay any real and personal property taxes and other charges assessed to or payable by the Association; and (d) obtain and continue in effect during the term of of the lease, in its own name a comprehensive policy of public liability insurance proving coverage for the common area, and a policy of fire and casualty insurance with coverage as the Board deems appropriate. Section 3 - General Powers of the Association. The Association through the Board shall have the power but not the obligation to: (a) employ a manager or other persons and contract with independent contractors or managing agents to perform all or any part 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 coati --.cy fund in an amount to be determined by the Board. Ezaid fund shall be used by the Board as it deems fit to carry out the objectives and purposes of the Asst_ __. _on. a --';=_ Assc_c� + , L Ru]_ea. The Board shall have the Sec,.- =.-?opt, am,end, and repeal such rules and as it deems reasonable (the "Association Rule: " In t:n-- e-1 -nt of any conflict between any such .ule7 and any other provisions of this D -,-:_:)n, o:. e Articles or i3ylacos, the provisions of ti1e:. at .. Rules shall_ he deemed to be superseded by the _ s.on of this Declaration, the Articles or the ByI_Gws, the extent of any such conflict. 13e�icu:: Rev. 9/24,/79 5/4/81 f J 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 Ce:,non 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 Sectio 1 - Commercial Use. No part of a Residence shall be used `or any business, commercial, or nonresidential purposes. Beacon. , 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' Right of Enjoyment. Every Member shall have 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 ease'ents, covenants, conditions, restrictions and other provisions contained in this Declaration, including, without limitation, the following provisions: Beacon Bav 9/20/79 13 Rev. 9/2.4/79 (a) The right of the Association to limit the number of guests of Members and to limit the use of the Common Area by persons not in possession of a Residence, but owning a portion of the interest in a Residence required for membership. (b) The right of the Association to establish reasonable rules and regulations pertaining to the use of the Common Area. Section 2 - Delegation of Use. Any Member may delegate his right of enjoyment to the Common Areas to the members of his family or his tenants -who reside on his Residence, or to his guests, subject to the rules and regulations adopted by the Board. In the event and for so long as a Lessee delegates said rights of enjoyment to his tenants, said Lessee shall not be entitled to said rights unless both he and the tenant reside on the Residence in separate dwelling units which conform to all applicable municipal laws and regulations. Section 3 - Waiver of Use. No member may exempt himself from personal liability for assessments duly levied by the Association, or release the Residence owned by him from the liens, charges and other provisions of this Declaration, the Articles, Bylaws and Association Rules, by waiver of the use and enjoyment of the Common Area, or the abandonment of his Residence. ARTICLE X GENERAL PROVISIONS Section 1 - Enforcement. The Association, or any Lessee, shall have the right to enforce by proceedings at law or in equity, all restrictions, conditions, covenants and reserva`ions, 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 proceedings at law or in equity the provisions of the Articles or Bylaws and any amendments thereto. With resoect to architectural control and Association Rules, the Association shall have the exclusive right to the enF-rcement 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 =2ertahe such enforcement. With respect to Assessment Beacon 8.av 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 instrument, signed by the Declarant and a majority of the then Lessees, has been recorded at least one (1) year prior to the end of any such period, agreeing to change said covenants, conditions and restrictions in whole or in part. Section o -_Heading. The Article and Section headings have been inserted for convenience only, and shall not be considered or referred to in resolving questions of interpretation or construction. Section. 7 - Singular Includes Plural. Whenever the content o this Declaration requires same, the singular shall include the plural and the masculine shall include the f_emninine and the neuter. Beacon. Bav 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 acceptance or conveyance of a Residence creates a personal covenant between the Lessee of such Residence and Declara-t or other Lessees, such personal covenant shall Beacon 3v 9/20/79 16 Rev. 9/24/79 terminate and be of no further force or effect from or after the date when a person or entity ceases to be an Lessee except to the extent this Declaration may provide otherwise with respect to the payment of money to the Association. Section 12 - Nonliability of Officials. To the fullest extent permitted by law, neither the Board, the Architectural Committee, and other committees of the Association or any member of such Board or committee shall be liable to any Member or the Association for any damage, loss or prejudice suffered or claimed on account of any decision, approval or disapproval of plans or specifications (whether or not defective), course of action, act, omission, error, negligence or the like made in good faith within which such Board, committees or persons reasonably believed to be the scope of their duties. Section 13 - Subleases. Any agreement for the subleasing or rental of Residence (hereinafter in this Section referred to as a "lease") shall provide that the terms of such lease shall be subject in all respects to the provisions of this Declaration, the Articles, the Bylaws and the Association Rules. Said lease shall further provide that any failure by the lessee thereunder to comply with the terms of the foregoing documents shall be a default under the lease. All leases shall be in writing. Any Lessee who shall lease his Residence shall be responsible for assuring compliance by such Lessee's lessee with this Declaration, the Articles, the Bylaws and the Association Rules. Section 14 - Amendments. Subject to the other provisions of this Declaration, this Declaration may be amended as follows: (a) Any amendment or modification of the Articles hereof entitled "Covenant for Maintenance Assessments," "Nonpayment of Assessments," "Architectural Control," and "Repair and Maintenance," or of this Section shall require the affirmative vote or written approval of not less than sixty percent (60%) of the Members. (b) Any amendment or modification of any Article other thin those specified in subparagraph (a) above shall require the affirmative vote or written approval of a major i tv of the memlo yrs. (c) An amendment or modification that requires the vote and :Yritten assent of the Members as hereinabove Beacon Bad 9/20/79 17 Rev. 9/24/79 i�\ '' I provided shall be effective when executed by the President and Secretary of the Association who shall certify that the amendment or modification has been approved as hereinabove provided, and when recorded in the Official Records of the County. The notarized signatures of the Members shall not be required to effectuate an Amendment of this Declaration. (d) Notwithstanding the foregoing, any provision of this Declaration, or the Articles, Bylaws or Association Rules which expressly requires the approval of a specified percentage of the voting power of the Association for action to be taken under said provision can be amended only with the affirmative vote or written assent of not less than the same percentage of the Voting Power of the Association. IN WITNESS WHEREOF, Declarant has executed this instrument the day and year first herein above written. ATTEST: City Clerk APPROVED AS TO FOP14: City Attorney Beacon Ba% 9/20/79 CITY OF NEWPORT BEACH, a chartered municipal corporation By: Mayor 18 Rev. 9/24/79 I 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. 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N v I to ~ In } �Ll >- K N t0 O l0 C 0 � O N t0+f t0 COO N T M t00 U N 1 ,am . !\ T N . O } } } } } } } Go to tp N m N CD ai nCp 'V' I\ I, l0 'r M t0 l0 ti O .-1 M l0 N CO H M N M O N lA n l0 N O1 IA 0� to N N t0 Ol O t0 In 01 O� O ti ti .Mr .w .^r ,OI.1 •� v' t0 O M r. .--� ^ N N N M M M Q EXHIBIT "D" I of 2 Pages N I II 11 II It II II II 11 II 11 II 11 N II 11co 11 t0 N l0• M N .�-1 N N-1 N • N OOH C0 10 O O� C0 w O N O M V' N O M lT M O� O N 1� N Of O N n N c, O N Of a O N Of N O N O iA O N O xl 0 x 0 x 0 x 0 x 0 x 0 x 0 x 0 x 0 x 0 x 0 x 0 x 0 x 0 x 0 x 1 r I. r E r r r, r r N N N N N N (J vl M Ot M 01 M O1 M Of M Ol M Ol M Of M Ot M cm N Of N N m N N m N N O1 N N Ol N N m N 1 i-1 } + } } } } } } + } + } } } } } F p o 0 I l0 t0 o+ v CO rn c 00 m w N r. rn Ol .. O1 m o w 07 aD o+ W o+ N .. m N m rn m co co M M M Ot m ,� ,n N N r\ O mm O t. n 01 w I\ Of co 1 U o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 a a a xl x x x x x x x x x x x x x x x x F Zp N W (D Q' CD N .r QcD Q Of 0� N v l0 l0 CD Ol lA lA CD m O1 N N Of l0 to O M T O M O w CD O1 Q � II II II II 11 II 11 11 II 11 11 11 11 II II 11 w y � y M an N v N to N N l0 N VI aA N l/7 N O P� fOi N t\ n n n n n n n n n n n n n n O Q x b O� CO N N Of O N .ti lA n ti d' t0 O� .--i l0 N N O1 Q M l0 Oi N O 1� C F •-• N n !\ M O O1 M M l0 t0 Of V' l0 .r t0 n N _ 1p tD Q Q Fm a 'o x 'Q n O N 0"1 O N N N M h M M t0 In l0 to Ol m Of v M M to c e t0 co y N N N N N N N M M M M T Q a II 11 II 11 II It II 11 II 11 II It II II 11 b w O 4 y V O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O C Co M W ao W W M w W M ao m m ao m m x x x x x x x x x x x x x x x x .n c a to M Of In N Of l0 N Q' O 'O M N Ol O M M t0 1, l0 N sA g n O1 ? w 01 01 O I, M N O Ol } I 1.� C y 0 7 N N t0 W COD w CD 01 N N O N Nr M l0 00 O o t\ n d ID U .r O O N l0 N CD N tO'1 tT V' s}' l0 N l0 CD m O 10 O w M M M .wl-1 II �a3 rK ma � c �o ad x ooci Z U w N N M C V' t0 t0 I� n CD m O�C U wcnwU II II If _ 11 < 3 I MLL' Q U w 2 .�1 O n .N-1 .-. n .Nr ... .N.. EXHIBIT "D" I of 2 Pages m 11 I 11 LID m M II m M 11 N II to 11 N II O 11 O II O 11 O Y O N II O N II O 0 11 N O II 11 N O xl O x O x O x O x O x 10 O x t0O O x M O x M O x O x O x N O x N O x N O x N 1 O x VI N N N N N N f'�7 N N 7 N N 7 N a OD M N M n O n O+ Oi t\ N t0 O m m M + } } } } } f } } } } } a O O •• a ti rO 10 V' m eT m V' m T O1 Ot Ol Or m Ot m Or N O) N Ot N OP Ot Ot n l, n 0 N a Q U m m M M M Or m N N m n V O - O Or m Or n 10 Or m M M a O h Of .-+ m - N t I, N d' O1 n m Or h tO 10 Ol m C' m m m M m m O V n O N N m m 1, m m M s1� V' lt' N N rO tO (� m Qf O N M V1 n EXHIBIT "D" 2 of 2 Pages 11 I 11 LID m M II m M 11 N II to 11 N II O 11 O II O 11 O Y O N II O N II O II O 11 N O II 11 N O xl O x O x O x O x O x 10 O x t0O O x M O x M O x O x O x N O x N O x N O x N 1 O x VI N N N N N N f'�7 N N 7 N N 7 N N N N N N N M M M M M M M 0 + I } } } + } } } } } f } } } } } a O O •• a ti rO 10 V' m eT m V' m T O1 Ot Ol Or m Ot m Or N O) N Ot N Of Ot Ot n l, n N a Q U m m M M M Or 01 U7 � N N O O Of 01 a v n n n n o m n n m m m m Q o 0 0 0 0 0 0 C. 0 0 0 0 0 m 0 a a xl x x x x x x x x x x x x x x x x O IX W n O+ m N O O N tO lD m T m M m V' N z ri f\ c m Oi O1 O O .. .. 11 M-. 1 .mi .Ni � W II II II 11 11 II 11 II II 11 11 11 II 11 II II a a W.4 1` n M n M n N M rl N M I, N M I. M n V1 M I. N M n rO M 1l M N, M h M O M O I. m N I 1 1 1 I 1 r r 1 1 1 1 I 1 I r Y 7 F 'O a ✓1 Ol M Of N n N O m C' N M V' O m N m c t0 m O V' m N aT O m O Ol O Ot O N N �1 m t� M O O t` n N m O Q m m m m m O1 N N :T Q 2 tO n m v Q y n n n It n it u II n n n n u u n u O d y N G r� N oo N N N 0o N tOA N N 1� 0o N N Q W a I n f\ n n n n n n n n n n n a E S I: x x x x x x x x x x x x x x x x U 17 7 C C a n QF® L N M Of N N Ot rO tD m n v Of O rl M O N Or N ZJ y L 7 7 N O N n O rO N m M m O OI tO N m O M Itco d' N m N tD ti Q M Q n r0 'o ONi O N } C rtl bAE N N rti N .-� v ti .-y zo .-� m .-+ m '-I m .r O N O N M M N N V.-1 y C y Q rz 0 u � a CD A c WL) Q a,x�°: N Z •r •y •-� N N M M d O� a O 4" C' aT iO tO n f\ m m �a 0 wQ�A 9 In t a u 3 M .. m N N OND M OMD V' m lA Ip omp t` m m EXHIBIT "D" 2 of 2 Pages RESOLUTION NO. 10040 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING AN AGREEMENT TO LEASE AND LEASE OF BEACON BAY RESIDENTIAL LOTS AND AGREEMENT TO LEASE AND LEASE OF BEACON BAY COMMON AREA CONSISTENT WITH CHAPTER 74, STATUTES OF 1978 AND THE CHARTER OF THE CITY OF NEWPORT BEACH WHEREAS, the City owns certain tidelands and uplands in an area known as Beacon Bay; and WHEREAS, on January 9, 1950 City entered into a master lease to said property with Carroll B. Beek, Barton Beek, Joseph Allan Beek, Jr. and Seymour Beek jointly, which master lease expires on December 31, 1987; and WHEREAS, the westerly portion of the Beacon Bay property has been divided into individual lots and sublet for residential purposes; and WHEREAS, all said subleases will expire on the same date as the master lease, December 31, 1987; and WHEREAS, the City Council finds it to be in the public interest and the welfare of the City that the portion of Beacon Bay which is currently leased for residential purposes remain residental in character and that to enter into new agreements to lease with the sublessees under terms and conditions set forth in the Agreement to Lease and Lease is in the public interest; and WHEREAS, the City Council finds that it is in the best interest and welfare of the City that the streets, walkways, MJ common areas, landscaped areas, beaches and other areas presently leased to the Beacon Bay Community Association should remain in said status in consideration of the Beacon Bay Community Association maintaining said areas at .no expense to the City and further providing that the areas designated as tidelands within said leased area remain open, available and accessible to the public; and WHEREAS, Chapter 74, Statutes of 1978 permits the leasing of the residential lots in Beacon Bay which are located on tidelands; and WHEREAS, said Statute provides that the maximum term of leases of residential lots in Beacon Bay located on tidelands shall not exceed fifty years; and WHEREAS, Section 1402 of the Charter of the City of Newport Beach permits the leasing and re-leasing of water front property, provided the property was under lease as of January 11, 1957, the date of adoption of said provision of the Charter of the City of Newport Beach; and WHEREAS, the City Council hereby finds that the maximum lease term for the residential lots in Beacon Bay shall not exceed twenty-five years for the following reasons: A. Section 420 of the Charter of the City of Newport Beach prohibits the City entering into a lease in excess of twenty-five years without voter approval. B. The City Council finds it undesirable to commit the residential portion of Beacon Bay to residential use for a period longer than twenty-five years. At the termination of a twenty- five year lease renewal, the City Council of the City of Newport 2 r Beach will be given another opportunity to determine whether or not residential uses on that property are appropriate or whether other uses are more appropriate. A lease term longer than twenty-five years would be an excessive commitment for this particular residential use of tidelands and uplands property owned by the City of Newport Beach. C. The extension of the residential lease term beyond twenty-five years would provide very little financial advantage to the City. An analysis of rental values has shown that a 35 year Lease will only increase the rental by 12.4% per annum. Therefore, the modest increase in lease payments to the City do not offset the disadvantage of committing the land to residential uses for a period longer than twenty-five years; and WHEREAS, the City Council hereby finds and determines that the leasing of the subject property is an act by the City of Newport Beach in its proprietary capacity and further that the execution of the Agreements to Lease the respective residential lots and the common areas in the westerly portion of Beacon Bay binds the City of Newport Beach to execute the Leases of said properties in December, 1987, and said execution of said Leases by and on behalf of the City of Newport Beach constitutes a ministerial act and a furtherance of the obligation of the City of Newport Beach hereby created. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newport Beach that pursuant to the recitals hereinabove set forth, the Charter of the City of Newport Beach and Chapter 74, Statutes of 1978, the form of Agreement to Lease and Lease of the residential lots in Beacon Bay, respectively attached hereto, be and they are hereby approved. 3 BE IT FURTHER RESOLVED that the Agreement to Lease and Lease of the Common Area of Beacon Bay, respectively attached hereto, be and they are hereby approved. BE IT FURTHER RESOLVED that the Mayor and City Clerk are hereby authorized and directed to execute each individual Agreement to Lease the respective residential lots in the westerly portion of the Beacon Bay property and the common areas in the western portion of the Beacon Bay property and that the Mayor and City Clerk of the City of Newport Beach are further authorized and directed to execute said Lease for the respective residential lots in the westerly portion of the Beacon Bay property and the common areas of the western portion of the Beacon Bay property during the month of December, 1987, provided that the Sublessees and the Beacon Bay Community Association and their heirs, devisees, and assigns, as the case might be, have fully performed and executed their obligation under said Agreements to Lease. ADOPTED this llthday of May , 1981. a0 yo ATTEST: City Clerk I, WANDA E. ANDERSEN, City Clerk, do hereby certify the foregoing to be a full, true and correct copy of Resolution No. 10040 adopted by the City Council at their regular meeting held May 11, 1981. City Clerk