HomeMy WebLinkAboutC-7254-9 - Beacon Bay, 13 - Termination of Leasehold 2020RECORDING REQUESTED BY
TICOR TITLE
ORANGE COUNTY BRANCH
Recording Requested By
and When Recorded Return To:
City of Newport Beach
100 Civic Center Drive
P.O. Box 1768
Newport Beach, California 92658-8915
Attn: City Clerk
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
1111111111111111111111111111111111110111111 IS IIIII 111111111 Jill I I 1111111 NO FEE
*$ R 0 0 1 1 8 7 0 7 0 9$*
2020000358575 3:07 pm 07124120
105 419A T01 4
0.00 0.00 0.00 0.00 9.00 0.00 0.000.000.00 0.00
(Exempt From Recording Fees Pursuant to Government Code § 27383)
(SPACE ABOVE THIS'LINE FOR RECORDER'S USE)
Exempt from fee per GC 27388.1(a)(2); recorded
concurrently "in connection with" a transfer subject
to the impoiltien of dosdmentery transfer tax. TERMINATION OF LEASEHOLD
This Termination of Leasehold is made this Z day of July, 2020, by and
between the CITY OF NEWPORT BEACH, a California municipal corporation, tideland's
trustee, and charter city, hereinafter called "Lessor', and Lowell C. Martindale, Jr. ppo
R400KVq,19;yq ,1J)6A$1TAW , hereinafter called "Lessee".
RECITALS
A. Lessor and Lessee executed a lease on June 24, 1994, for which a
Memorandum of Lease was recorded December 7, 1994, by the County Recorder of
Orange County, California as Instrument No. 94-0701483. By the terms of the Lease, the
following described property was leased to Lessee until July 1, 2044.
Lot 13 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.
B. Lessee desires to terminate said Lease and all rights to the possession of
the Lease premises and to release Lessor from its obligations under the Lease, and
Lessor desires to accept said termination and to release Lessee from his obligations
under the Lease.
AGREEMENT
Lessee agrees to terminate the Lease as described herein above as of July 24 ,
2020, and Lessor agrees to accept such termination, and Lessor and Lessee agree to
discharge and release each other from all obligations under the Lease as of said date.
[SIGNATURES ON NEXT PAGE]
FIECORDING RLNQUE-STED BY
TICOR TITLE
ORANGE COUNTY BRANCH
Recording Requested By
and When Recorded Return To:
City of Newport Beach
100 Civic Center Drive
P.O. Box 1768
Newport Beach, California 92658-8915
Attn: City Clerk
(Exempt From Recording Fees Pursuant to Government Code § 27383)
Exempt from fee per GC 27388.1(a)(2); recorded (SPACE ABOVE THIS LINE FOR RECORDER'S USE)
concurrently "in connection with" a transfer subject
to the imposition of documentary transfer tax. TERMINATION OF LEASEHOLD
This Termination of Leasehold is made this 2V111- day of July, 2020, by and
between the CITY OF NEWPORT BEACH, a California municipal corporation, tideland's
trustee, and charter city, hereinafter called "Lessor", and Lowell C. Martindale, Jr. ppq
hereinafter called "Lessee".
RECITALS
A. Lessor and Lessee executed a lease on June 24, 1994, for which a
Memorandum of Lease was recorded December 7, 1994, by the County Recorder of
Orange County, California as Instrument No. 94-0701483. By the terms of the Lease, the
following described property was leased to Lessee until July 1, 2044.
Lot 13 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.
B. Lessee desires to terminate said Lease and all rights to the possession of
the Lease premises and to release Lessor from its obligations under the Lease, and
Lessor desires to accept said termination and to release Lessee from his obligations
under the Lease.
Lessee agrees to terminate the Lease as described herein above as of July ,
2020, and Lessor agrees to accept such termination, and Lessor and Lessee agree to
discharge and release each other from all obligations under the Lease as of said date.
[SIGNATURES ON NEXT PAGE]
1
IN WITNESS WHEREOF, the Parties have caused this Termination of Leasehold
to be executed on the dates written below.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
Date: 7 ho / Zo Zo
By: J�2t_
Aaron Harp
City Attorney
ATTEST:
Date: �- l(/ �/„ zo_
CITY OF NEWPORT BEACH,
A California municipal corporation
Date: 7780 1J/O
lip I
By:
Grac . Leung
City nager
LESSEE / ;z
Date:
By: , � By:
/4mA---
Leilani
I. Brown Lowell C. Martindale, Jr.
Citv Clerk Joint Tenant
F O R%
. . .........
P"et0a/U OW
amiIXITAnaOv
0
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of OQAtA(V F- ___)ss.
On �� QL4 10 , 20 ?b before me, liNN(FE02 ANN MV CYC- I
Notary Public, personally appeared &W-44 C E K • LEy 4( -
who proved to me on the basis of satisfactory evidence to be the person(sa-whose nameEs) is/?re
subscribed to the within instrument and acknowledged to me that he/she/thQy executed the same
in his} er/themauthorized capacity(ies), and that by his/her/t4air signatures(.&) on the instrument
the person(s), or the entity upon behalf of which the personFs) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Y7ennifer Ann Mulvey
- 'jj �y- COMM #2214138 v
�:;.. fir,.
Wti,r+M Nota Public - California rn
a� ORANGE COUNTY
��My commission �x Ires 6ct 12, 2021
(seal)
CALIFORNIA ALL- PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity
of the individual who signed the document to which this certificate is attached,
and not the truthfulness, accuracy, or validity of that document.
State of eafffeFnwia Wy°m im9
County of
On �(i({'lC Zai, 220 before me, Ca ark„
,FHere rt name and U e o7.ho of cor�"i=
personally appeared f O iWe LL C • Vyl A r -h n d a (Z 1 A. ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
wyowti'Aq
I certify under PENALTY OF PERJURY under the laws of the State of Gr&f=nis that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal. eaoa'sa tcew sejidx3 uolssltuwop A
Muno0 U0181ONIV40AM - onend AHVION
S113M V live
otary Public Sig ure (Notary Public e51)
ADDITIONAL OPTIONAL INFORMATION
DESCRIPTION OF THE ATTACHED DOCUMENT
(Title or description of attached document)
(Title or description of attached document continued)
Number of Pages Document Date
CAPACITY CLAIMED BY THE SIGNER
❑ Individual (s)
❑ Corporate Officer
(Title) '-
-El Partner(s)
❑ Attorney -in -Fact
❑ Trustee(s)
❑ Other
2015 Version www.NotaryC!asses.com 800-873-9865
INSTRUCTIONS FOR COMPLETING THIS FORM
This form complies with current California statutes regarding notary wording and,
if needed, should be completed and attached to the document. Acknowledgments
front other states may be completed for documents being sent to that stale so long
as the wording does not require the California nolan7, to violate California notary
law.
• State and County information must be the State and County where the document
signer(s) personally appeared before the notary public for acknowledgment.
• Date of notarization must be the date that the signer(s) personally appeared which
must also be the same date the acknowledgment is completed.
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commission followed by a comma and then your title (notary public).
• Print the name(s) of document signer(s) who personally appear at the time of
notarization.
• Indicate the correct singular or plural forms by crossing off incorrect forms (i.e.
Ire/she/4,iey, is /ere ) or circling the correct forms. Failure to correctly indicate this
information may lead to rejection of document recording.
• The notary seal impression must be clear and photographically reproducible.
Impression must not cover text or lines. If seal impression smudges, re -seal if a
sufficient area permits, otherwise complete a different acknowledgment form.
• Signature of the notary public must match the signature on file with the office of
the county clerk.
Additional information is not required but could help to ensure this
acknowledgment is not misused or attached to a different document.
Indicate title or type of attached document, number of pages and date.
Indicate the capacity claimed by the signer. If the claimed capacity is a
corporate officer, indicate the title (i.e. CEO, CFO, Secretary).
• Securely attach this document to the signed document with a staple.
Recording Requested By
and When Recorded Return To:
City of Newport Beach
100 Civic Center Drive
P.O. Box 1768
Newport Beach, California 92658-8915
Attn: City Clerk
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
1111111111111111111111111111111111111111111111111111111111111111111111111 NO FEE
*$ R 0 0 1 2 9 0 0 0 1 1$*
2021000388020 9:28 am 06/11/21
320 PP2A T03 45
0.00 0.00 0.00 0.00 132.00 0.00 0.000.000.00 0.00
(Exempt From Recording Fees Pursuant to Government Code § 27383)
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
TERMINATION OF LEASEHOLD
This Termination of Leasehold is made this 24th day of July, 2020, by and between
the CITY OF NEWPORT BEACH, a California municipal corporation, tideland's trustee,
and charter city, hereinafter called "Lessor", and Lowell C. Martindale, Jr.
RECITALS
A. Lessor and Lowell C. Martindale, Jr. and Pamela C. Gray, Joint Tenants,
hereinafter called "Lessee," executed a lease on June 24, 1994 ("Lease"), for which a
Memorandum of Lease was recorded December 7, 1994, by the County Recorder of
Orange County, California as Instrument No. 94-0701483. By the terms of the Lease, the
following described property was leased to Lessee until July 1, 2044.
Lot 13 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.
B. Pursuant to the Certificate of Death, a copy of which is attached hereto as
Exhibit "A" and incorporated herein by reference, Pamela C. Gray passed away on April
17, 2011, and as such her joint tenancy interest in the Lease transferred to Lowell C.
Martindale, Jr., the surviving sole owner.
C. On May 18, 2011, the surviving Lessee, Lowell C. Martindale Jr., entered
into an Assignment of Lease ("Assignment"), transferring the interest of the Lease to
Lessee as Trustee of the Lowell C. Martindale Living Trust dated January 4, 1996, and
as Trustee of the Pamela C. Gray Bypass Trust a/a/d December 29, 1995, as recorded
on May 19, 2011, under Instrument No. 2011000249675. A copy of the Assignment is
attached hereto as Exhibit "B" and incorporated herein by reference. The Assignment was
made without consent by Lessor, and Lessor hereby recognizes and acknowledges that
the failure of Lessee to obtain Lessor's consent did not impair the effectiveness of the
Lease, and Lessee assumed and agreed to perform and fulfill all the terms, covenants,
conditions and obligations required to be performed and fulfilled as Lessee under the
Lease from and after the date of the Assignment.
1--r-
415 P
Nf. .
D. Lessee is hereby signing this Termination of Leasehold on behalf of himself
as the surviving sole owner.
E. Lessee desires to terminate said Lease and all rights to the possession of
the Lease premises and to release Lessor from its obligations under the Lease, and
Lessor desires to accept said termination and to release Lessee from his obligations
under the Lease.
AGREEMENT
Lessee agrees to terminate the Lease as described herein above as of July 24,
2020, and Lessor agrees to accept such termination, and Lessor and Lessee agree to
discharge and release each other from all obligations under the Lease as of said date.
[SIGNATURES ON NEXT PAGE]
6
IN WITNESS WHEREOF, the Parties have caused this Termination of Leasehold
to be executed on the dates written below.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
Date: Ibl
Aaron Harp '°^' �a•�
City Attorney
ATTEST:
Date: .
By:
Lei
UP
CITY OF NEWPORT BEACH,
A California municipal corporation
Date: APR 3 0 2021
By:
Grace . Leung
City anager
LESSEE
Date:
By:
Lowell C. Martindale, Jr.,
Attachments: Exhibit "A" — Certificate of Death
Exhibit "B" — Assignment of Lease
3
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of C9 A'�'ic,6 ) SS.
On NpRIt- 30 , 20 21 before me, 3eNNtFCW- WNN ft1ULVC—(
Notary Public, personally appeared GrZA-c-E K • Lf,v &LL ,
who proved to me on the basis of satisfactory evidence to be the person(&) whose name(&.) is/are
subscribed to the within instrument and acknowledged to me that he/she/thy executed the same
in bis/herAheir authorized capacity(4s), and that by hia4her/their-signatures(4on the instrument
the person(s); or the entity upon behalf of which the person(&) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Jennifer Ann Mulvey
COMM #2214138 a
Notary Public - California r"
ORANGE COUNTY
rt.
My CommissionFxpiresOct.12,2021�
(seal)
STATE OF WYOMING )
) ss .
COUNTY OF TETON )
On this 5 W- day of April 2021, before me appeared Lowell Martindale to
me known to be the person described in and who executed the foregoing
instrument, and acknowledged that he executed the same as his free act and deed.
2
otary Public
GAIL A WELLS'
My commission expires: �(� o� NOTARY PUBLIC - WYOMING
Teton County
My Commission Expires May 29, 2023
EXHIBIT A
EXHIBIT B
O
Recorded In Official Records, Orange County
RECORDING REQUESTED BY Tom Dal , Clerk -Recorder
AND WHEN RECORDED MAIL TO !IlBlllll�flllllll� IINIIiIIIVIIIIIIINIVIN�Il01NIIItli 11 4,00
Russell G. Allen 201100024967611:40 am 05/19/11
2101 East Coast Highway, Suite 215 227 41 S A34 37
Corona del Mar, California 92625 0.00 0.00 0.00 0.00 108.00 0.00 0.00 0.00
APN: 988-88-047
SPACE ABOVE THIS LINE FOR RECORDER'S USE
ASSIGNMENT OF LEASE
4 -
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ASSIGNMENT OF LEASE
This Assignment of Lease ("Assignment") is made as of I t , 2011,
between Lowell C. Martindale, Jr., Trustee of the Gray -Martindale Living Trust dated January 4,
1996 ("Assignor"), and (a) Lowell C. Martindale, Jr., Trustee of the Lowell C. Martindale Living
Trust dated January 4, 1996, as to an undivided one-half (1/2) interest and (b) Lowell C.
Martindale, Trustee of the Pamela C. Gray Bypass Trust u/a/d December 29, 1995, as to an
undivided one-half (1/2) interest ("Assignee").
Assignor assigns and transfers to Assignee all of Lessee's right, title, and interest in the
Lease dated June 24, 1994, with respect to the real property located at 13 Beacon Bay, Newport
Beach, California. A copy of the Lease is attached as Exhibit A. A copy of an Assignment,
Deed and Bill of Sale transferring the leasehold estate to Assignor is attached as Exhibit B.
Assignee assumes and agrees to perform and fulfill all the terms, covenants, conditions
and obligations required to be performed and fulfilled by Assignor as Lessee under the Lease
from and after the date hereof.
Assignor covenants that the copy of the Lease attached as Exhibit A and the Assignment
attached as Exhibit B are true and accurate copies of the Lease as currently in effect and that
there exists no other agreement affecting Assignor's tenancy under the Lease.
Assignor indemnifies Assignee from and against any loss, cost, or expense, including
attorney fees and court costs relating to the failure of Assignor to fulfill Assignor's obligations
under the Lease, and accruing with respect to the period on or prior to the date of this
Assignment. Assignee indemnifies Assignor from and against any loss, cost, or expense,
including attorney fees and court costs relating to the failure of Assignee to fulfill obligations
under the Lease, and accruing with respect to the period subsequent to the date of this
Assignment.
This Assignment shall be binding on and inure to the benefit of the parties to it, their
heirs, executors, administrators, successors in interest, and assigns.
This Assignment shall be governed by and construed in accordance with California Law.
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Doc: OR:2011 00249676
The parties have executed this Assignment as of the date first above written.
Assignor:
Gray -Martindale Living Trust dated 114196
By: - t��
Lowell C. Martindale, Jr., Trustee
STATE OF CALIFORNIA
COUNTY OF ORANGE
Assienee•
Lowell C. Martindale Living Trust
dated 1/4/96
By:
Lowell t. UMntafeTr., Trustee
Pamela C. Gy Bypass Trust u/a/d 12/29/95
By:
, A A
Lowell C. Martin ale, Jr., Trustee
On ms" $ , 2011, before me, �ASOU +6n&Nktary Public, personally
appeared Lowell C. N4irtindale, Jr., who proved to me on the basis of satisfactory evidence to be the person whose
name is subscribed to the within instrument, and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand
(Seal)
USA
7li-EMRSON
$1a+# 4598260
M� Ca r"
E� Iraa,1�12 04�
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EXHIBIT A
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Doc: OR:2011 00249676
Rixich : I0C.i'ser :A D20 Comment: Station Id :A.53-1
Document: I.S 1994.701483
Order: 00702092
Doc: OR:2011 00249676
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Page 1 of I Printed on 5/12/2011 6:31:20 Ph1
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LEASE
THIS LEASE is made and entered into as of the fZday of1994, by and between the CiTY
I= NEWPORT BEACH, a Charter City and mu clpal corporation ("Lessor"), and
M k►,A l '("Lessee"}, regarding the real property commonly
referred to as Beacon Bay Lot ►.
f VL~-
��J; RECITALS
A. The City of Newport Beach, by virtue of a 1978 legislative grant found in Chapter 74 of the Statutes
of 1978 (the "Beacon Bay BUIJ, holds the right, title and interest to certain tidelands and uplands commonly
known as Beacon Bay and generally described in Exhibit A attached hereto and incorporated by reference.
B. The Beacon Bay Bill frees the "Westerly portion" of the filled tidelands from the public trust and
specifically authorizes the lease of the property for residential purposes subject to certain express statutory
conditions.
C. Beacon Bay, including the `Westerly Portion" thereof, has been divided Into individual lots, with each
lot leased by the City for residential purposes until December 31, 2005.
D. On November 3, 1987, a majority of electors of the City approved a measure which authorized the
City Council to enter into new leases of residential lots In Beacon Bay for a period not to exceed fifty (50)
years.
E. On November 3, 1992, a majority of electors of the City approved Measure M which authorized the
City Council to lease tidelands and waterfront property consistent with the provisions of state law.
F. The City Council, pursuant to the authority conferred by the electors, entered Into negotiations with
current lessees and the parties have agreed on the terms and conditions of a new lease with a Fifty (50) year
term, provision for adjustments In tease payments to reflect changes In the value of Beacon Bay leaseholds,
and a recalculation of lease payments in the event of a transfer of the Lease by the Current Lessee or any
Subsequent Lessee (as defined herein).
G. Lessee acknowledges that the terms and conditions of this Lease may result in Lessee paying
substantially more or less than another Lessee for similar property depending upon the date this Lease Is
executed, the date of any subsequent transfer, and the consideration paid for transfers of similarly situated
property.
H. Lessee acknowledges that accurate and complete reporting to the City of all consderation paid for
the transfer of this Lease is vitally Important to the City in that fallure to fully report all consideration could
materially reduce the amount of rent received by the City from other Beacon Bay Lessees.
I. Lessor and Lessee acknowledge that the City has agreed to a fifty (50) year term and limited lease
payment increases in consideration of provisions which require payment of rent approximating fair market
rental value, without regard to any advantage maintained by Current Lessees, upon transfer by Current
Lessees and payment of deferred rent in the event the Lease is not signed on or before the Effective Date
(as defined herein).
J. The California State Lands Commission has reviewed the form of this Lease and determined that
it is in conformance with the provisions of relevant statutes, rules and regulations, including, without
limitation, the Beacon Bay Bill.
NB3-;8737;.V2 1 06/24/94
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K Lessor has determined that this' Lease Is consistent with provisions of the Beacon Bay Bill, the
Charter, General Plan and Zoning Ordinance of the City of Newport Beach, and of all other applicable state
and local laws.
L Lessor has determined it is in the best interests of the citizens of Newport Beach to maintain the
residential character of Beacon Bay and to enter into new leases with Current Lessees under the terms and
conditions specified in this agreement.
NOW, THEREFORE, in conslderatlon of the foregoing recitals and the covenants in this lease, the parties
agree as follows:
1. LEASED LAND.
Lessor hereby leases to Lessee the real property commonly known as Beacon Bay Lot (the'Leased
Land"), which Is more particularly described in Exhibit B. and generally depicted on Exhibit A, each
attached hereto and Incorporated by reference, subject to the limitations on use specified in Section 6. As
used In this Lease, the term "Premises" shall refer to the Leased Land and any Improvements constructed
thereon.
Lessor expressly reserves all oil, oil rights, gas, minerals, mineral rights, natural gas rights and other
hydrocarbon substances in and under the Leased Land and the right to grant and transfer the same,
together with all necessary and convenient rights to explore for, develop, produce and extract and take the
same, subject to the express limitation that any and all operations for the exploration, development,
production, extraction and taking of any such substance shall be carried on at levels below the depth of five
hundred feet (500') from the surface of the land by means of wells, derricks and other equipment from
surface locations on adjoining or neighboring land, and subject further to all restrictions and regulations
concerning the drilling for, and production of, oil, gas, minerals, petroleum and other hydrocarbon
substances specified in the Newport Beach City Charter or the Newport Beach Municipal Code.
2. TERM.
The term of this Lease shall commence on the Execution Date, but in no event prior to the Effective Date,
and shaft expire on the date fifty (50) years following the Effective Date, unless earlier terminated as provided
In this Lease.
3. RENTAL_
A. Definitions. For the purposes of this Lease, the following terms shall be defined as
specified in this paragraph. In certain cases, the definition of the term contains oparattve language
that affects the rights of the parties:
nal-2e7371.v2
(1) 'Actual Sales Value" shall mean the total of all consideration paid for, the
non-exempt transfer of this Lease or the Pre-existing Lease, including the Improvements on
the Leased Land, from the Current Lessee, or Subsequent Lessee, to another person,
excluding any consideration paid for the transfer of personal property in connection with
such transaction.
(2) "Average Actual Sales Value Rent" shall mean two and one-half percent (21/t%) of
the mean of the Actual Sales Value of the non-exempt transfer of a similarly situated
(waterfront or Interior) Beacon Bay parcels as specified In this subparagraph. Average
Actual Sales Value Rent shall be the mean of the Actual Sales Value of the three similarly
2
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situated parcels most recently transferred, Exempt transfers, as defined in Paragraph
3.13(3), shall not be used to calculate Average Actual Sales Value rent.
(3) "CPI" shall mean the Consumer Price Index - Los Angeles -Anaheim -Riverside Area,
All Urban Consumers, All Items, published by the United States Department of Labor,
Bureau of Labor Statistics (1982-1984=100). If the 1982-1984 base of said Consumer Price
Index should hereafter be changed, then the new base shall be converted to the 1982-1984
base and the base as so converted shall be used. In the event that the Consumer Price
Index, as now compiled and published, shall cease to be published, then the successor
Index shall be used provided that an appropriate conversion from the old Index to the new
Index can feasibly be made. If such conversion cannot be made, or If no such Index is
published, then another Index most nearly comparable thereto recognized as authoritative
shall be substituted by agreement.
(4) "Current Lessee" shall mean the person or persons who, as of April 1, 1994 (the
"Cut-off Date"), was or were the Lessee under the Pro -existing Lease.
(5) "Deferred Rent" shall mean the total rent that a Current Lessee would have paid
had this Lease been executed on the Effective Date, through and including the date on
which this Lease was first executed, less the rent actually paid pursuant to the Pre-existing
Lease, together with interest at the rate of eight percent (846) per annum calculated on the
balance due at the end of each Lease Year or portion thereof.
(6) "Effective Date" shall mean July 1, 1994.
(7) "Execution Date" shall mean the date when this Lease is executed by Lessee.
(8) "Initial Rent" shall mean the effective net rent for the Leased Land as determined
by the appraisal of George Hamilton Jones, with due consideration to the leasehold
advantage created by the Pre-existing Lease, all as shown on Exhibit C attached hereto
and. incorporated herein by reference.
(9) "Person" shall mean any natural person or natural person(s) and does not include
any corporation, association, or business entity In any form except a financial institution or
other bona fide lender acting in the capacity of a lender or an inter vivos or living trust.
(10) "Pre-existing Lease" shall mean the Lease for the Leased Land which was effective
on January 1, 1988, and would, absent this Lease, expire on July 1, 2006.
it
(11) "Transferred" shall mean any sale, assignment, sublease or other transaction, other
than an exempt transfer as defined in Paragraph 3.13(3), pursuant to which the right to
possession of the premises and the right to sign a new lease Identical to this Lease is
transferred to another person.
B. Rental Payments.
Lessee shall pay annual rent In the sumo r "ho ($ z0 `q g DQa,
payable at the rate of4v, vc fowl""/,j,� ZASA .17 ) er month. Lessee shall
also pay, if applicable, deferred rent in the sum �pprowvis�iions
upon execution of this Lease. Rent shall " hall djusted every
seven (7) years after the date of transfer in accordance with of Paragraph 3.9(4).
Annual rent, deferred rent, and periodic adjustments are based upon the following:
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(�) Execution Before Effective Date.
In the event this Lease is executed by the Lessee on or before the Effective Date, Rent shall
be paid as follows:
(a) Current Lessee: Current Lessee shall pay annual rent equal to Initial Rent
as specified in Exhibit C. Thereafter, so long as there has been no. transfer of this
Lease by the Current Lessee (other than an exempt transfer as set forth in
Paragraph 3.13(3), rent shall remain as specified in this subparagraph
notwithstanding the provisions of Paragraph 3.13(4).
(b) In the event of any transfer of this Lease to a Subsequent Lessee, the
Subsequent Lessee shall pay annual rent equal to two and one-half percent (21h%)
of the Actual Sales Value determined as of the date of the transfer in accordance
with the provisions of paragraph 3A(t). Thereafter, rent shall be adjusted every
seven years after the date of the transfer in accordance with the provisions of
paragraph 3.13(4).
(c) In the event of any transfer of this Lease to a Subsequent Lessee In a
transaction other than an arm's length assignment of this Lease, and sale of the
improvements on the Leased Land, if any, such as a gift or transfer by Inheritance
other than an exempt transfer under Paragraph 3. B(3), the Subsequent Lessee shall
pay annual rent equal to the Average Actual Sales Value Rent calculated as of the
date of the transfer in accordance with the provisions of Paragraph 3.A(2).
(2) Execution After the Effective Date.
In the event this Lease is first executed after the Effective Date, rent shall be determined and
paid as follows:
(a) Current Lessee/Within Five Years After Effective Date: In the event this
Lease is executed by the Current Lessee within five (5) years after the Effective
Date, the Current Lessee shall pay annual rent equal to Initial Rent plus a sum
calculated by multiplying the difference between Initial Rent and Average Actual
Sales Value Rent by a fraction equal to the number of months between the Effective
Date and Execution Date, divided by sixty. The Current Lessee shall also pay all
Deferred Rent concurrent with the execution of this Lease. Thereafter, so long as
there has been no transfer of this Lease by the Current Lessee, rent shall remain
as specified In this subparagraph, notwithstanding the provisloae of Paragraph
3.B(4).
(b) Current Lessee/More Than. Five Years After Effective Date: In the event
this Lease is executed by the Current Lessee more than five (5) years after the
Effective Date, the Current Lessee shall pay annual rent equal to Average Actual
Sales Value Rent calculated as of the date of execution in accordance with the
provisions of Paragraph 3.A(2). The Current Lessee shall also pay all Deferred Rent
concurrent with the execution of this Lease. Thereafter, rent shall be adjusted
every seven (7) years after the date of execution in accordance with the provisions
of Paragraph 3.B(4).
(c) Subsequent Lessee: In the event the Current Lessee transfers the Pre-
existing Lease to a Subsequent Lessee who wlshes 'to sign this Lease after the Cut-
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off Date, the Subsequent Lessee shall pay annual rent equal to two and one-half
percent (21A%) of Actual Sales Value determined as of the date of execution and in
accordance with Paragraph 3.A(1). The Subsequent Lessee shall also pay all
Deferred Rent concurrent with the execution of this Lease. The annual rent shall be
adjusted every seven (7) years following the Execution Date In accordance with the
provisions of Paragraph 3.B(4).
(d) Subsequent Lessee: In the event of any transfer of this Lease to a
Subsequent Lessee who wished to sign this Lease after the Cut-off Date in a
transaction other than an arm's length assignment of this Lease, and sale of the
Improvements on the Leased land, if any, such as a gift or transfer by Inheritance
other than an exempt transfer under Paragraph 3.B(3), the Subsequent Lessee shall
pay annual rent equal to the Average Actual Sales Value Rent calculated as of the
date of the transfer in accordance with the provisions of Paragraph 3.A(2). The
Subsequent Lessee shall also pay all Deferred Rent concurrent with the execution
of this Lease. The annual rent shall be adjusted every seven (7) years following the
Execution Date in accordance with the provisions of Paragraph 3.13(4).
,(3) Exempt Transfers.
The provisions of Paragraph 3.13 regarding transfers shall not operate to increase rent if:
(a) Lessee is assigning an interest in this Lease to a trustee under a deed of
trust for the benefit of a lender;
(b) the transfer Is caused by the death of a spouse and the full interest of the
deceased spouse Is transferred to a surviving spouse;
(c) the transfer of an interest in this Lease is between or among tenants in
common or joint tenants in ownership of the leasehold estate created by this
Lease, and such tenants in common or joint tenants first acquired their respective
interests in this Lease simultaneously;
(d) the transfer or assignment is by a bona fide lender acquiring title by
foreclosure or deed in lieu of foreclosure of a trust deed; or
(e) the transfer is a sublease of the premises for three years or less; provided,
however, that in determining the term of a sublease, any options or rights to renew
or extend the sublease shall be considered part of the term whether or not
exercised;
(f) the transfer Is caused by the dissolution of the marriage of Lessee and the
full Interest of one of the spouses is transferred to the other spouse;
(g) the transfer is to an Inter Wvos trust, living trust or other similar estate
planning arrangement of Lessee; provided, however, that .the provisions of
Paragraph 3.0 shall apply upon the death of such Lessee if the beneficiary of such
trust or other arrangement is other than the surviving spouse or a tenant in
common or joint tenant in ownership of the leasehold estate created by this Lease,
and such tenants in common or joint tenants first acquired their respective interests
in this Lease simultaneously; or
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(h) the transfer is to a guardian or custodian of Lessee appointed due to the
physical or mental incapacity of Lessee; provided, however, that the provisions of
Paragraph 3.0 shall apply upon the death of such Lessee unless the transferee Is
the surviving spouse or a tenant In common or joint tenant in ownership of the
leasehold estate created by this Lease, and such tenants In common or joint
tenants first acquired their respective interests In this Lease simultaneously.
(4) Rent Adjustments.
(a) Except as provided In Paragraphs 3.80)(a), 3.13(2)(a) and 3.13(3), on the
seventh (7th) anniversary of the Execution Date of this Lease, or the seventh (7th)
anniversary of the date of any transfer of this Lease by any Current or Subsequent
Lessee, rent shall be adjusted to reflect any Increase or decrease in the cost of
living, which adjustment shall be determined as set forth hereinafter. The most
recently published CPI figure shall be determined as of the date ninety (90) days
prior to the adjustment date, and rent payable during the ensuing seven (7) year
period shall be determined by increasing or decreasing the then current rent by a
percentage equal to the percentage increase or decrease, if any, in the CPI as of
the Execution Date, or the date of the most recent rental adjustment, or the date
of any transfer of this Lease.by any Current or Subsequent Lessee, whichever is
later. In no event shall rent be increased or decreased by a sum greater than forty
percent (40%) of the rent paid by Lessee as of the later of (I) the Execution Date,
or (ii) the last rental adjustment date. Lessor shall endeavor to notify Lessee of
rental adjustments at least forty -fire (45) days prior to the end of each seventh (7th)
lease year; provided, however, failure of Lessor to give forty-five (45) days' notice
does not relieve Lessee from the obligation to pay increased rent or the right to pay
less rent In the event of a decrease In the CPI; and, provided further, that Lessee
shall have no obligation to pay rent increases which apply to any period greater
than ninety (90) days prior to the receipt by Lessee of Lessor's notice of an
Increase In rent.
(b) In the event Lessee is two or more persons owning the leasehold estate
created hereby as tenants In common or joint tenants, and less than all of such
persons transfer their Interest In this Lease to a person other than to an existing
tenant In common or joint tenant, the rent adjustment shall be prorated to reflect
the percentage interest being transferred to a third parry. For example, if two
persons are the Lessee as tenants in common as to equal one-half interests, and
one of such persons transfers his/her 50% interest to a third party, the rent shall
be adjusted as provided in Paragraph 3.8(2)(c), and thereafter<;as provided in
Paragraph 3.8(4)(a), and the resultant rental increase multiplied by the percentage
transferred (50%) to determine the rental increase; provided, however, that any
subsequent transfer of an interest in this Lease to such third party shall not be
exempt under subparagraph 3.13(3).
(5) Installment Payments/Grace Period.
Lessee shall pay rent in equal monthly Installments, In advance, with payment due on or
before the first day of the month for which rent is paid. Rent shalt be prorated during any
month when a transaction which increases rent becomes effective other than the first day
of that month. No late payment charge applies to payments received by Lessor on or
before 5:00 P.M. on the fifteenth (15th) day of the month for which the payment Is made
("Grace Period") . If a rent payment, or any portion thereof, Is received by Lessor after
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