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HomeMy WebLinkAboutMarina Park Mobile Home - 7FAMENDMENT AND EXTENSION OF LEASE This Amendment and Extension of Lease (Amended Lease), entered into this of /9 day of 2000 by and between the CITY OF NEWPORT BEACH, a municipal co ration and charter city (City) and A �' (Lessee), is made with reference to the following facts, the materiality and existence of which is stipulated and agreed by the parties: 4 o,'e.Ne (cJh /' T -e- 14,0 C/ A. City is the owner, and is in possession and control, of a parcel of real property, consisting of tidelands and/or uplands, located northerly of Balboa Boulevard and between approximately 16th Street and 18th Street in Newport Beach, commonly known as Marinapark, generally described in Exhibit "A" (Property); B. The Property was under lease prior to the effective date of the Charter of the City of Newport Beach and, pursuant to the provisions of Section 1402 of the City Charter, the City Council is empowered to authorize execution of this Lease by the Mayor; C. Prior to the effective date of this Amended Lease, and pursuant to a lease dated March 24, 1976, (hereinafter "1976 Lease"), the City leased 58 mobilehome spaces on the Property pursuant to a standard lease which would have expired on September 30, 1985, subject to the right of the Lessee to extend the term for a five (5) year period under certain conditions; D. Prior to the expiration of the 1976 Lease, the City leased the same 58 mobilehome spaces on the Property pursuant to a lease that would have expired on March 15, 2000 (1985 Lease) but for this Amended Lease; E. The City Council finds and declares that this Amended Lease will continue to preserve an important and unique housing resource and is a benefit to the citizens of Newport Beach; F. The Parties acknowledge that, subsequent to the effective date of the 1985 Lease, State Lands Commission staff has discovered evidence that suggests, but does not establish, that all of the Property consists of tidelands. The City and Lessee contend that all of the Property leased for mobilehome residency purposes is uplands owned by the City. The Parties also acknowledge that they are awaiting a determination by State Lands Commission staff as to the nature of the Property and that determination may have a bearing on the types of land uses permitted on the Property. City and Lessee, or Lessee's representative(s) will continue to cooperate in good faith to obtain a determination that all or a portion of the Property is uplands; G, The Parties also acknowledge that the City has requested interested parties to submit responses to a Request for Proposal — Marinapark Future Use/Development (RFP) published in November, 1999. The RFP requests interested parties to submit proposals for the future use of the Property, the means by which the proposal would be implemented and the benefits of the proposal to the City. The City has received eight (8) responses to the RFP including at least three proposals that propose a continuation of a mobilehome park use of the Property (Mobilehome Proposals). The Mobilehome Proposals contemplate the continued use of the Property as a mobilehome park; H. The City Council finds and declares that the terms and conditions of this Amended Lease comply, and are consistent, with the Charter of the City of Newport Beach including, without limitation, the provisions of Sections 200 and 1402 of the Charter; The City Council also finds and declares that the provisions of this Amended Lease are consistent with the plans, policies, rules and ordinances of the City of Newport Beach. The City Council also finds that this Amended Lease is consistent with the General Plan and the Land Use Plan of the Local Coastal Program; J. The terms and conditions of this Amended Lease are in compliance, and consistent, with the provisions of the Mobilehome Residency Law (Section 798, et seq. of the Civil Code) and the State Zoning and Planning Act (Sections 65863.7 and 65863.8 of the Government Code). K. The purpose and intent of the Parties is to amend, and extend the term of, the 1985 Lease to give the City and Lessee an opportunity to resolve issues related to the ultimate use of the Property while preserving the benefits accruing to each Party pursuant to the 1985 Lease. NOW, THEREFORE, the Parties do hereby mutually agree as follows 1. DESCRIPTION OF PREMISES. The City leases, and Lessee accepts the lease of, the portion of the Property described as space �7 ff— as shown on Exhibit "A" (Premises). 2. TERM. The tenancy created by this Amended Lease shall extend the expiration date of the 1985 Lease from March 15, 2000 to March 15, 2002, unless earlier terminated in accordance with the terms of this Amended Lease. 3. USE OF PREMISES. A. The Premises shall be used only for residential purposes, and no business or commercial activity shall be conducted on the Premises. Permitted occupants are (i) Lessee; (ii) an additional person if Lessee is living alone; (iii) family members entitled to occupy the premises pursuant to the Mobilehome Residency Law; and (iv) short term guests. The term "short term guest" shall mean any person who does not stay with Lessee for more than a total of twenty (20) consecutive days or a total of thirty (30) days in any calendar year. Other persons may occupy the premises with the prior written consent of the City. 2 B. Lessee agrees that the primary residence requirement is fundamental to this lease, stipulates that the residency requirement will not constitute an undue burden or hardship on Lessee in light of the time allowed for compliance in the 1985 Lease, and, subject to the provisions of Section 8, Lessee agrees that the Premises shall be Lessee's primary residence unless this requirement is waived by the City Council due to hardship. Lessee shall provide satisfactory proof of residency to the City. C. Lessee agrees to comply with the rules and regulations of Marinapark (Exhibit "B") and further agrees these rules and regulations may be amended as provided in the Mobilehome Residency Law or other relevant statute. 4. CONSIDERATION: A. Introduction. The City and Lessee agree that the terms and conditions of the 1985 Lease and this Amended Lease preserve and protect substantial and important rights and advantages, economic and personal, that each Party would not otherwise be entitled to receive. These economic and personal rights and benefits are the consideration for the 1985 Lease and this Amended Lease. The more important rights and benefits gained and given up by each Party are specified in this paragraph and the Parties agree that, like the 1985 Lease, this Amended Lease should be interpreted such that each party receives the benefits and advantages identified in this paragraph. B. Consideration to Lessee. (1) As consideration for Lessee's approval of this Amended Lease, City commits to maintain the Property as a mobilehome park until March 15, 2002. (2) Additional consideration for Lessee's approval of this Amended Lease is the right to occupy the Premises subject to the payment of below market rent as specified in the 1985 Lease and continued in this Amended Lease, and limitations on timing and amount of future rental increases. (3) As additional consideration, this Amended Lease supplements the benefits of the 1985 Lease relative to the value and transferability of Lessee's interest. (4) As additional consideration, Lessee obtains the City's commitment not to close the mobilehome park on, or shortly after, March 2000 as contemplated by the 1985 Lease as well as City's commitment to fairly consider the Mobilehome Proposals. Lessee also obtains City's commitment to cooperate in good faith with any organization representing a majority of lessees of mobilehome spaces on the Property in an effort to obtain a determination from the State Lands Commission that the Property is uplands. K C. Consideration to Citv. As consideration to the City, Lessee agrees and acknowledges that City may convert Marinapark to a different use upon expiration of this Amended Lease, or shortly thereafter. Lessee agrees that if City chooses to close the mobilehome park on the Property it may do so without obligation to pay relocation benefits, or provide other forms of relocation assistance. Lessee acknowledges that the terms of the 1985 Lease and this Amended Lease constitute full and adequate mitigation of any adverse impact on Lessee of any conversion of the Property to a non-mobilehome use, and the extended term of the 1985 Lease and this Amended Lease gives Lessee sufficient time to secure replacement space in another mobilehome park or other alternative housing. Accordingly, LESSEE HEREBY WAIVES, GIVES UP THE RIGHT TO RECEIVE, AND RELEASES CITY FROM ANY OBLIGATION TO PAY, RELOCATION BENEFITS, OR ANY OTHER FORM OF RELOCATION ASSISTANCE OR OTHER PAYMENT OR CONSIDERATION THAT ARISE OUT OF, OR ARE IN ANY WAY RELATED TO: (1) THIS LEASE OR ANY FUTURE TENANCY; (2) THE ULTIMATE TERMINATION OF LESSEE'S TENANCY PURSUANT TO THE 1985 LEASE OR THIS AMENDED LEASE OR THE TERMINATION OR EXPIRATION OF ANY SUBSEQUENT TENANCY HOWEVER CREATED; (3) THE CONVERSION OF THE PREMISES TO ANY USE OTHER THAN A MOBILEHOME USE. (4) THE DISPLACEMENT OF LESSEE' FROM HIS AND/OR HER PRIMARY RESIDENCE; (5) ANY FEDERAL, STATE OR LOCAL LAW, PLAN & POLICY OR RULE WHICH RELATES TO SUCH DISPLACEMENT, OR REQUIRES THE MITIGATION OF THE IMPACTS CAUSED BY DISPLACEMENT. THIS RELEASE BY LESSEE, NOTWITHSTANDING SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH PROVIDES THAT: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED THE SETTLEMENT WITH THE DEBTOR," RELEASES ALL CLAIMS OR LOSSES, WHETHER KNOWN, UNKNOWN, FORESEEN OR UNFORESEEN, WHICH LESSEE MAY HAVE AGAINST CITY. LESSEE 0 UNDERSTANDS AND ACKNOWLEDGES THE SIGNIFICANCE AND CONSEQUENCE OF THIS RELEASE AND OF THIS SPECIFIC WAIVER OF SECTION 1542 AND ASSUMES FULL RESPONSIBILITY FOR ANY DAMAGES, LOSS OR CLAIM THAT LESSEE MAY INCUR AS A RESULT OF THE CONVERSION, TERMINATION, AND/OR DISPLACEMENT REFERRED TO ABOVE. LESSEE IS FREELY AND VOLUNTARILY EXECUTING THIS AMENDED LEASE AND LESSEE, IN EXECUTING THIS RELEASE, HAS NOT RELIED UPON ANY INDUCEMENTS, PROMISES OR REPRESENTATIONS MADE BY CITY OR ITS OFFICERS OR EMPLOYEES, OTHER THAN THE COMMITMENTS AND COVENANTS CONTAINED WITHIN THIS LEASE. D. Provisions related to Consideration (1) Lessee agrees that City's right to convert the premises to a non- mobilehome use may be required if the Property is determined to be tidelands and that the City Council has the right, after due consideration of the Mobilehome Proposals, to terminate the mobilehome use after compliance with applicable law. (2) This Amended Lease constitutes notice that City reserves the right to physically convert the Premises to a non-mobilehome use on or about March 16, 2002. (3a) Upon expiration of the term of this Amended Lease, Lessee shall, within sixty (60) days, remove any mobilehome or recreational vehicle, structure, improvement, personal property or equipment located upon the Premises. Upon the expiration of this sixty (60) day period, the City shall have the right to remove and dispose of any and all property improvement structures or equipment which remain on the Premises. (3b) Notwithstanding subsection (3a) above, City agrees to assume responsibility for costs of removal and disposal of the mobilehome located on the Premises, provided that on or before January 15, 2002, Lessee provides City written notification of Lessee's desire to abandon the mobilehome and transfers all title and interest in the mobilehome clear of all liens and encumbrances to City on or before March 15, 2002. (4) If, subsequent to the expiration of this Amended Lease, Marinapark is still to be operated as a mobilehome park, the City shall be under no obligation to offer written rental agreements or leases other than as may then be required by the Mobilehome Residency Law, specifically, the provisions of Section 798.18 of the Civil Code or such laws as may be enacted subsequent to the effective date of this Amended Lease. The provisions of this Subsection shall not impair, alter or diminish any commitment or obligation undertaken by City in 5 conjunction with the consideration of the Mobilehome Proposals. The Mobilehome Residency Law currently obligates the City to offer a twelve (12) month lease or a lesser term If requested by Lessee. 5. RENT. Lessee shall pay as rent, without deduction or offset, on the 1st day of, �� G, and on the first day of each month thereafter during the term o this lease, the sum of0 /T/o2 �,, e,42 The monthly rental shall be subject to adjustment as of October 1, 2000 and October 1, 2001. In no case shall the adjusted rent be less than the current rent. The adjustment shall be equal to the increase in the Consumer Price Index for the twelve month period (commencing May 1 and ending April 30, hereinafter the "adjustment period") prior to the date of adjustment. The rental adjustment shall be calculated by adding each monthly percentage increase during the adjustment period, subtracting any decreases and multiplying the total by the monthly rent in effect prior to the adjustment. The Consumer Price Index (All Urban Consumers -All Items) for the Los Angeles - Long Beach -Anaheim, California area as published and released by the Bureau of Statistics for the United States Department of Labor shall be the index utilized for calculating rental adjustments. If the Consumer Price Index, as now compiled and published, is superseded by another index, then the new index shall be used to calculate the increase in rent provided that an appropriate conversion from the old index to the new can feasibly be made. If such conversion cannot be made, or if no such index is published, then another index generally recognized as authoritative shall be substituted by agreement. Rent for any fractional part of any month between the commencement date and the first date of the first full calendar month within the Term shall be prorated, and paid by Lessees to City along with the first full month of rent due hereunder. Lessee stipulates and agrees that this Amended Lease constitutes the ninety (90) day written notice of rental increases by the Mobilehome Residency Law and Lessee acknowledges that no additional written notice need be given by City; provided, however, City may provide Lessee with ninety (90) days written notice of the precise amount of any rental increase authorized by this paragraph and City and Lessee agree that such notice shall not constitute a waiver of City's right to rely upon the adequacy of the notice provisions in this paragraph. Lessee acknowledges that this Amended Lease may create a possessory interest subject to property taxation and that Lessee may be subject to the payment of property taxes levied on such interest. Lessee shall pay, in addition to rent and before delinquency, all taxes, assessments, license fees and other charges (Taxes) that are, during the Term, levied or assessed against Lessee's interest in the premises pursuant this Amended Lease or any personal property installed on the premises. 9 6. RELEVANT STATUTES AND RULES. The Mobilehome Residency Law requires this Amended Lease to contain, among other things, the rules and regulations of Marinapark and the language of the Mobilehome Residency Law. The rules and regulations of Marinapark are attached as Exhibit "B," the provisions of the Mobilehome Residency Law are attached as Exhibit "C," and both documents are incorporated into this Amended Lease by reference. The Marinapark rules and regulations and the Mobilehome Residency Law may be amended or modified from time to time, and these amendments and modifications shall be deemed to be incorporated into the documents attached as Exhibits "B" and "C" when effective. 7. LATE CHARGE. If the entire rent owed by Lessee is not received by City by the 10th day following its due date, then, without any requirement for notice to Lessee, Lessee shall pay to City a late charge of thirty five dollars ($35.00). The parties agree that such a late charge represents a fair and reasonable estimate of the costs City will incur by reason of any late payment of rent. An acceptance of a late charge by City shall not constitute a waiver of Lessee's default with respect to rent, or prevent City from exercising any of the rights or remedies granted by this Amended Lease. 8. SALE OR ASSIGNMENT. Lessee may sell the mobilehome located on the premises pursuant to the rights, and subject to the obligations, of Lessee under the Mobilehome Residency Law and any other applicable statutes. If the mobilehome that is the subject of the sale or transfer, is to remain in the park, or if Lessee proposes to assign Lessee's interest in this Lease to any person or persons who is (are) to reside on the premises, Lessee and/or the proposed transferee must do the following: A. Lessee must give notice of the sale or assignment to City prior to close of escrow. B. The sale or assignment shall not be effective unless the City has given prior written approval, the transferee has executed the assignment of lease form provided by City, and the transferee has expressly agreed to be bound by the waivers and releases provided in this Amended Lease. C. Lessee agrees that occupancy of the Premises shall be limited as provided in Section 3 and Lessee agrees not to sublease or otherwise transfer any partial interest in this Amended Lease. The requirement that the Premises constitute Lessee's primary residence shall not apply to any purchaser or transferee of Lessee provided the purchase or transfer occurs on or after March 16, 2000 and the purchaser or transferee complies with the provisions of this Subsection. 7 D. City shall approve any such transfer, if the transferee has the financial ability to pay the rent and charges and otherwise comply with the terms and conditions of this Lease, provided, however, City may withhold approval if it determines that, based upon the transferee's prior tenancies, the transferee will not comply with the Rules and Regulations of Marinapark (Exhibit "B"). E. City shall not approve any transfer or assignment of any interest in this Amended Lease that would permit the installation of any mobilehome or structure that exceeds twelve feet in height. F. Should Lessee, during the term of this Amended Lease, elect to sell or assign its interest in this Amended Lease, City shall have the right of first refusal to acquire the interest on such terms and conditions as may be acceptable to Lessee, and on failure of the parties to agree on terms within ten (10) days after written notice thereof from Lessee, Lessee shall be free to sell or assign Lessee's Interest in this Amended Lease, subject to the terms and conditions of this Amended Lease. G. Notwithstanding any other provision in this Amended Lease, Lessee shall have the right to assign its interest in this Amended Lease to a spouse, son and/or daughter without any requirement that City be given the right of first refusal to acquire the interest, provided, however, the premises shall be used as the primary residence of the assignee and the assignee shall be bound by all provisions of this Amended Lease, including, without limitation, the waiver of relocation assistance. 9. UTILITIES. A. The City shall not provide electricity or telephone service. Lessee shall make arrangements directly with the utilities furnishing the services and promptly pay all charges. B. The City shall provide Lessee with water and gas service. The charge to Lessee for such service shall be based on the charges paid by Lessee as of February 1, 2000. Charges for gas and water service shall be increased or decreased on the first day of October, 2000, and on the first day of October 2001. C. The charges for gas and water service shall be paid when rent is due, and is in addition to the obligation to pay rent. In the event Lessee fails to pay charges for water or gas service within ten days after the amount is due, Lessee shall pay to City a late charge of thirty five dollars ($35.00). D. In the event City provides both master meter and submeter service of utilities to Lessee, the cost of the charges for each billing period shall be separately stated and shall contain opening and closing readings of the meter. In such event, City shall post rates charged by the appropriate utility in a conspicuous place. E. City shall not be liable for any loss, damage or injury and Lessee shall not be P entitled to any abatement or reduction of rent, by reason of City's failure to furnish any utility or service if the failure is caused by accident, breakage, repairs, maintenance, or any other cause beyond the reasonable control of City. 10. CONSIDERATION OF MOBILEHOME PROPOSALS City commits to consider the Mobilehome Proposals relative to the use of the Property on the same terms and conditions, and using the same criteria, as other proposals submitted in response to the RFP. City and Lessee agree that the City Council shall have sole and complete discretion to accept any, or none, of the Proposals, including Mobilehome's Proposal, submitted pursuant to the RFP. City and Lessee also agree that the City Council has the sole and complete discretion to select portions of any proposal or combine aspects of more than one proposal in making a final decision on the ultimate use of the Property. Lessee acknowledges that a determination that the Property is tidelands will, in the absence of State legislation, require City to terminate the mobilehome use of the Property. City agrees to cooperate, in good faith, with an organization comprised of a majority of lessees of spaces on the Property to obtain a determination from the State Lands Commission that the Property is uplands. 11. MAINTENANCE OF LANDSCAPING AND IMPROVEMENTS. City agrees to maintain, in good working order and conditions, the grounds, common areas, common facilities, streets, City -owned buildings, and any other publicly -owned improvements on the Marinapark property. Lessee shall, at their cost and expense, maintain, in good order and condition, any mobilehome, cabana, or other improvement located on the premises. Lessees also agree that all landscaping on the premises shall be limited to three feet (T) in height to preserve views and open space. The City may charge a reasonable fee for services relating to the maintenance of the premises upon which the mobilehome is located in the event Lessee fails to maintain the property in accordance with the provisions of this Amended Lease and the rules and regulations of Marinapark (Exhibit "B") after giving written notification to Lessee and Lessee's failure to comply within fourteen (14) days from the date of notice. The notice shall contain all information required by the Mobilehome Residency Law. 12. PHYSICAL IMPROVEMENTS AND SERVICES. The physical improvements to be provided Lessee during the term of this Amended Lease include the nonexclusive right to use all of the common areas and common facilities located within Marinapark, such as streets, nonrestricted parking areas, laundry facilities, restrooms and showers located in the common areas and common facilities and designated for use by residents. The services to be provided by City during the term of this Amended Lease include the services to be provided by the Marinapark manager and other employees and officers of City, the utilities to be provided by City specified in 0 Section 9, and the maintenance of all common areas and common facilities in good condition. It is the responsibility of the management to provide and maintain physical improvements in the common facilities in good working order and condition. In the case of a sudden or unforeseeable breakdown or deterioration of these improvements (failure), the management shall have a reasonable period of time to repair the failure after City knows or should have known of the failure. For purposes of this Section a reasonable period to repair the failure shall be as soon as possible in situations affecting a health or safety condition, and shall not exceed thirty (30) days in any other case except where exigent circumstances justify a delay. 13. CHANGES IN MARINAPARK RULES AND REGULATIONS PHYSICAL IMPROVEMENTS AND SERVICES. The City retains the right to amend or modify the Marinapark Rules and Regulations, the terms of this Lease, and the nature of the physical improvements or services to be provided, after complying with the provisions of the Mobilehome Residency Law and other applicable law. The right to amend the terms of this Amended Lease, the Marinapark rules and regulations, and the physical improvements and services to be provided by City, include, without limitation, the right to reduce the size of, or eliminate, any physical improvement, common area, common facility, or equipment, provided, however, no changes shall be made to the provisions of this Amended Lease, specifying the term of the Amended Lease or the rent to be charged unless those changes or amendments are permitted by other provisions of this Amended Lease. 14. RIGHT OF ENTRY. Lessee, subject to the right of revocation as set forth in the Mobilehome Residency Law, hereby grants written consent to City to enter the premises and Lessee's mobilehome for the purpose of improving, maintaining, repairing or replacing gas, water and sewage systems owned and maintained by City. Any damage, loss or injury to Lessee's home, property of Lessee, or the premises which results from efforts of City to maintain, repair, improve or replace the gas, water or sewage systems, shall be the sole responsibility of Lessee, and City shall not be responsible for reimbursing any cost or expense incurred by Lessee as a result of such efforts, nor shall City be responsible for repairing, replacing or otherwise restoring the mobilehome, the premises or any improvements thereon, to the state or condition immediately prior to the maintenance, replacement or repair efforts. The City also reserves the right to enter the premises for other purposes as specified In the Mobilehome Residency Law. 15. HOLD HARMLESS. Lessee covenants to indemnify, defend and hold City, its officers, agents and employees harmless from any and all claims or demands of any name or nature whatsoever arising out of, or incident to, the use and occupancy of 10 the Premises, 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 premises or caused by or arising out of any activities or omission of Lessee, or Lessee's agents, employees, licensees and/or invitees, including, without limitation, injury or death of Lessee, or Lessee's agents, employees, licensees and invitees and damage to their property or Lessee's property, except for any damage or injury of any kind arising out of the sole negligence, fraud or willful misconduct of City, its officers, agents, or employees. Lessees, as a material part of the consideration under this Amended Lease, hereby waive all claims against City for any damage or loss from any cause arising at any time, including, but not limited to fire, theft, Acts of God, vandalism or any physical damage while the mobilehome remains on the Property, unless caused by the negligence, fraud or willful misconduct of City's agents, officers or employees. Lessee agrees to indemnify and hold City, its officers, agents and employees harmless from and on account of any damage or injury to any person or equipment in or on the mobilehome arising from any cause or from the negligence of a Lessee, his or her family or guests. Since a substantial portion of the present value of Lessee's mobilehome or coach Is attributable to the value of the premises and the proximity of the premises to lower Newport Bay, and not the value of the structural improvement, Lessee, in addition to the other commitments specified in paragraph 4, agrees to indemnify and hold City, its officers agents, and employees harmless from any and all loss or injury of any nature whatsoever arising out of or attributable to such a change of use and the requirement that Lessee remove his/her mobilehome and other property from the Property. 16. TERMINATION. A. Lessee may terminate this Amended Lease without any further liability to City, upon sixty (60) days' written notice to City and upon condition that all persons occupying the premises terminate their tenancy within that period and remove the mobilehome and all other improvements, from the premises. B. The City may terminate this Amended Lease for the reasons specified, and according to the procedures set forth, in the Mobilehome Residency Law. C. In addition to the rights specified in subparagraph B, the City reserves the right to terminate this Amended Lease in the event: (1) a court of competent jurisdiction determines that residential use of the property is inconsistent, or in conflict, with the provisions of the public trust imposed upon those portions of the Property that constitute State tidelands, or that the residential use is inconsistent with any provision of the State constitution or State law; (2) there is a major failure in one or more of the public utilities furnished Lessee by City, and, in the opinion of City, the cost of repairing the system is excessive when viewed in light of the highest and best use of the Property. 11 D. The waivers and releases relative to relocation benefits or assistance shall operate to preclude recovery of same by Lessee in the event this Lease is terminated pursuant to the provisions of this paragraph. 17. ATTORNEYS' FEES. Should either City or Lessees be required to employ counsel to enforce the terms, conditions and covenants of the 1985 Lease or this Amended Lease, the prevailing party shall recover all reasonable attorneys' fees (and court fees if applicable) incurred therein whether or not court proceedings were commenced. 18. REMEDIES CUMULATIVE. The rights, powers, elections and remedies of the City contained in this Amended Lease shall be construed as cumulative and no one of them shall be considered exclusive of the other or exclusive of any rights or remedies allowed by law, and the exercise of one or more rights, powers, elections or remedies shall not impair or be deemed a waiver of City's right to exercise any other. 19. NO WAIVER. No delay or omission of the City to exercise any right or power arising from any omission, neglect or default of the Lessees shall impair any such right or power or shall be construed as a waiver of any such omission, neglect or default on the part of the Lessees or any acquiescence therein. No waiver of any breach of any of the terms, covenants, agreements, restrictions or conditions of this Amended Lease shall be construed as a waiver of any succeeding breach of the same or of any of the terms, covenants, agreements, restrictions or conditions of this Amended Lease. 20. COMPLIANCE WITH LAWS. Lessee covenants and agrees to comply with all rules, regulations, statutes, ordinances and laws of the State of California and the City of Newport Beach or any other governmental body or agency having lawful jurisdiction over the premises and/or the Property; and Lessee further agrees to comply with all the Rules and Regulations of Marinapark. The California Department of Justice, sheriffs departments, police departments serving jurisdictions of 200,000 or more and many other local law enforcement authorities mail for public access a date base of the locations of persons required to register pursuant to paragraph (1) of subdivision (a) of section 290.4 of the Penal Code. The data base is updated on a quarterly basis and a source of information about the presence of these individuals in any neighborhood. The Department of Justice maintains a Sex Offender Identification Line through which inquiries about individuals may be made. This is a "900" telephone service. Callers must have specific information about individuals they are checking. Information 12 regarding neighborhoods is not available through the "900" telephone service. 21. MOBILEHOME RESIDENCY LAW/ZONING AND USE PERMIT INFORMATION: A. Lessee acknowledges having received and read a copy of the 1985 Lease or this Amended Lease, the provisions of the Mobilehome Residency Law (Exhibit "C") as presently constituted, and the Marinapark Rules and Regulations (Exhibit "B"). B. The Property is currently zoned unclassified and there are no conditional use permits or other permits required to operate the Property as a mobilehome park. The City of Newport Beach owns the Property except to the extent the property is determined to be tidelands and subject to the public trust applicable to tidelands. 22. ENTIRE AGREEMENT. This Amended Lease and the documents referred to in this Amended Lease represent the entire agreement between City and Lessee. 23. NOTICES. All notices and other communications shall be in writing, shall be sent by first class registered mail or certified United States mail, postage prepaid, and shall be deemed completed at the expiration of seventy-two (72) hours after the day of mailing addressed: A. To Lessor: City Manager City of Newport Beach 3300 Newport Blvd. Newport Beach, CA, 92658 With a copy to: City Clerk's Office City of Newport Beach 3300 Newport Blvd. Newport Beach, CA, 92658 or at such other addresses as Lessor shall have furnished to Lessee; and B. To Lessee: By delivering a copy to the Lessee personally; 13 C. If Lessee be absent from the mobilehome, by leaving a copy with some person of suitable age and discretion who may be occupying the mobilehome; or D, If no one can be found, then by affixing a copy of the notice in a conspicuous place on the premises or mobilehome and also sending a copy through the mail addressed to the Lessee. E. All other provisions of the Lease shall remain in force and effect with their original form. 24. EFFECTIVE DATE The Parties agree that the effective date of this Amended Lease is March 15, 2000 whether executed before or after that date. IN WITNESS WHEREOF, the parties have caused, this Lease to be executed the day and year first above written. LESSEE By.. IIWE ACKNOWLEDGE AND AWARE AWARE OF THE PROVISIONS OF THIS AMENDED LEASE INCLUDING THE RELEASE AND WAIVER PROVISIONS OF SECTION 4 CITY OF NEWPORT BEACH a municipal corporation. By: 'L Homer BI au, City Manager APPROVE AS TO FORM: By: Robin L. Clauson Assistant City Attorney 14 23. NOTICES. It is mutually agreed that any notice or notices provided for by this lease or by law, to be given or served by Lessees, may be given or served by mail, registered or certified, with postage prepaid, on the City of Newport Beach, addressed to the Mayor, City Manager, or City Clerk, 3300 Newport Boulevard, Newport Beach, California 92663, or at such other address as may be hereafter furnished to the Lessee in writing. If notice is intended to be served by City on Lessees, it may be served either: A. By delivering a copy to the Lessee personally; and B. If he be absent from the mobilehome, by leaving a copy with some person of suitable age and discretion who may be occupying the mobilehome; or C. If no one can be found, then by affixing a copy of the notice in a conspicuous place on the premises or mobilehome and also sending a copy through the mail addressed to the Lessee. Such service upon the City or Lessee shall be deemed complete at the expiration of seventy-two (72) hours from and after the deposit in the United States mail of such notice, demand or communication. IN WITNESS WHEREOF, the parties have caused this Lease to be executed the day and year first above written. VPVED AS TO FORM: City Attorney CITY OF NEWPORT BEACH a municipal corporation By ✓viw� ✓wn MAYOR LESSEE: By -16- LEASE This Lease, entered into this day of 1985 by and between the CITY OF NEWPORT BEACH, a mun cipal corpo- ration and charter city (here i after "City") andA/t. irM IPCc4i CXI % _,P (hereinafter "Lessee"), is made with reference to the following facts, the materiality and existence of which is stipulated and agreed by the parties: A. City is the owner, and is in possession and control, of a parcel of real property, consisting of tidelands and uplands, located northerly of Balboa Boulevard and between Fifteenth Street and Nineteenth Street in Newport Beach, commonly known as Marinapark and generally described on the plot plan attached as Exhibit "A" (hereinafter "plot plan"); B. The property within Marinapark was under lease prior to the effective date of the Charter of the City of Newport Beach and, pursuant to the provisions of Section 1402 of the City Charter, the City Council is empowered to authorize execution of this Agreement by the Mayor; C. Prior to the effective date of this lease, and pursu- ant to a lease dated March 24, 1976, (hereinafter 111976 Lease"), the City leased 58 trailer park spaces in Marinapark as shown on the plot plan, under a standard lease which would have expired on the 30th day of September, 1985, subject to the right of the Lessee to extend the term of the lease for a five (5) year period should the City Council determine, prior to that date, Marinapark was not required for any trust, or any public, purpose; D. The City Council presently intends to convert Marina - park to a public recreation area upon expiration of this lease; E. The City Council finds that it is in the best interests of the City of Newport Beach to enter into this Lease because Lessees have agreed that City has the right to convert Marinapark into a public recreation area upon the expiration of this Lease, or shortly thereafter, without payment of relocation benefits or other forms of assistance to persons displaced due to the conversion; -1- F. The City Council finds and declares that this Lease operates to preserve an important and unique housing resource to be occupied by permanent residents and affordable to persons of low and moderate income. As such, the lease of space within Marinapark confers a substantial benefit upon the citizens of Newport Beach and is consistent with, and furthers the objectives of, the 1984 Housing Element of the General Plan of the City of Newport Beach; G. The City Council finds and declares that the terms and conditions of this Lease are not inconsistent with the provi- sions of the public trust imposed upon those portions of Marina - park which constitute tidelands in that: (1) the preservation of a significant amount of rental housing affordable to persons of low and moderate income is a matter of general state-wide interest; (2) the revenue generated by that portion of Marinapark consisting of tidelands is utilized by the City to enhance public use of tidelands in the immediate vicinity of Marinapark; and (3) the City has, through this lease, established its right to convert the property to public recreational use upon expiration of this Lease without obligation to pay relocation benefits, or provide other forms of assistance, to displaced tenants; H. The City Council finds and declares that the terms and conditions of this Lease, as they relate to tidelands and uplands, do not constitute a violation of the gift clause of the Constitution of the State of California, in that the preservation of affordable housing stock is of significant public benefit and the revenues generated by the terms of this Lease are effectively and efficiently used to enhance the public recreational use of nearby tidelands; I. The City Council finds and declares that the terms and conditions of this Lease comply, and are consistent, with the Charter of the City of Newport Beach including, without limitation, the provisions of Section 200 and 1402 of the Charter; J. The City Council also finds and declares that the provisions of this Lease are consistent with the plans, policies, rules and ordinances of the City of Newport Beach and, more specifically, are consistent with the General Plan, which provides that the mobilehome park may be continued until phased out, and the Land Use Plan of the Local Coastal Program which specifies that it is the intent of the City to preserve the mobilehome park as a means of providing a variety of housing opportunities within the City; and -2- K. The terms and conditions of this Lease are in compli- ance, and consistent, with the provisions of the Mobilehome Residency Law (Section 798, et seq. of the Civil Code) and the State Zoning and Planning Act (Sections 65863.7 and 65863.8 of the Government Code). NOW, THEREFORE, the undersigned parties do hereby mutually agree as follows: 1. DESCRIPTION OF PREMISES. The City leases, and Lessee accepts the lease of, the property described as space 7F as shown on the plot plan, attached as Exhibit "A", (hereinafter "Premises"). 2. TERM. The tenancy created by this Lease shall commence as of the date on which the Lease is signed by Lessee and shall expire on March 15, 2000, unless earlier terminated in accordance with the terms of this Lease. 3. USE OF PREMISES. A. The Premises shall be used only for residential purposes, and no business or commercial activity shall be conduc- ted on the Premises. No persons other than Lessee, a person in addition to Lessee if Lessee is living alone, and the short term guests (a guest who does not stay with Lessee for more than a total of 20 consecutive days or a total of 30 days in any calen- dar year) of Lessee, may reside or occupy the Premises without the prior written consent of the City. B. The City has found and determined this Lease is consistent with the provisions of the 1984 Housing Element and other relevant state and local laws, policies and plans primarily because it preserves a significant amount of housing affordable to persons of low and moderate income. The finding is based on the assumption that the premises shall serve as the primary resi- dence of Lessee, not as a second, or vacation, home. Lessee agrees that the primary residence requirement is fundamental to this lease, stipulates that the residency requirement will not constitute an undue burden or hardship on Lessee in light of the time allowed for compliance, and Lessee agrees that, on or before October 1, 1990, the Premises shall be Lessee's primary residence unless this requirement is waived by the City Council due to hardship. Lessee shall provide satisfactory proof of residence to the City. -3- C. Lessee agrees to comply with the rules and regulations of Marinapark (Exhibit "B") and further agrees these rules and regulations may be amended as provided in the Mobilehome Residency Law or other relevant statute. 4. FUNDAMENTAL CONSIDERATION AND ESSENTIAL TERMS: A. Introduction. The City and Lessee agree that the terms and conditions of this Lease grant, to both parties, substantial and important rights and advantages, economic and personal, that each would not otherwise be entitled to receive. These economic and personal rights and benefits are the essence of, and constitute the fundamental consideration for, this Lease. The more impor- tant rights and benefits gained and given up by each party are specified in this paragraph and the parties agree that this Lease should be interpreted such that each party receives the benefits and advantages identified in this paragraph. B. Fundamental Interests of Lessee -Rights and Benefits Given Up by City. The overriding motivation for Lessee's approval of this Lease is the commitment by City to maintain the property as a mobilehome park until March 15, 2000, and the long-term nature of the tenancy created by this lease. These commitments of City operate to insure long-term occupancy, protect the finan- cial interest and investment of Lessee in the Premises, and significantly increase the value, and transferability, of that interest or investment. The most significant rights obtained by Lessee, and given up by City, are as follows: (1) Lessee obtains the long-term right to occupy the Premises while City commits to preserve the mobilehome park use until March 15, 2000 and approves a long-term tenancy instead of invoking its right to grant no more than a one year tenancy as provided by the Mobilehome Residency Law; (2) Lessee's right to occupy the Premises is subject to the payment of the moderate rent specified in this Lease and Lessee also obtains the advantage of limited rental increases in the future, while City gives up the right to charge higher rents initially and the right to impose future rental increases in excess of the cost -of -living index; and (3) The value and transferability of Lessee's interest is preserved by the long term nature of the tenancy -4- created by this lease and limitations on the amount of rent a buyer or transferee of Lessee's interest could be charged, while City gives up the right to substantially increase rent for the Premises in the event of a transfer. C. Fundamental Interest of City - Rights and Benefits Given UD by Lessee. The fundamental reason for City to enter into this Lease is the right to convert Marinapark to a public recrea- tional use upon expiration of this Lease, or shortly thereafter, without obligation to pay relocation benefits, or provide other forms of relocation assistance. In consideration of the rights and benefits given up by City, and in addition to the obligation to pay rent and comply with the other terms and conditions of this Lease, Lessee stipulates and agrees as follows: (1) The terms and conditions of this Lease, specifically the commitment of City to grant long-term tenancy rights and to preserve the current use of the Premises until March 15, 2000, constitute full and adequate mitigation of any adverse impact of the proposed conversion on Lessee and the extended term of the Lease gives Lessee sufficient time to secure adequate replacement space in another mobilehome park or other alternative housing; (2) The terms and conditions of the Lease, specifically the extended term of the Lease, is of far greater value to Lessee than any relocation benefits or other form of assistance could be granted to Lessee by City at or near the expiration of the Lease and the conversion of the Premises to public recreational use. The extended term of the Lease signifi- cantly increases the market value of Lessee's interest in the Premises and substantially improves the ability of Lessee to locate potential purchasers or transferees of Lessee's interest; (3) LESSEE HEREBY WAIVES, GIVES UP THE RIGHT TO RECEIVE, AND RELEASES CITY FROM ANY OBLIGATION TO PAY, RELOCATION BENEFITS, OR ANY OTHER FORM OF RELOCATION ASSISTANCE OR OTHER PAYMENT OR CONSIDERATION THAT ARISE OUT OF, OR ARE IN ANY WAY RELATED TO: (A) THIS LEASE OR ANY FUTURE TENANCY; (B) THE ULTIMATE TERMINATION OF LESSEE'S TENANCY PURSUANT TO THIS LEASE OR THE TERMINATION OF EXPIRATION OF ANY SUBSEQUENT TENANCY HOWEVER CREATED; (C) THE CONVERSION OF THE PREMISES TO A PUBLIC RECREATION USE, (D) THE DISPLACEMENT OF LESSEE FROM HIS AND/OR HER PRIMARY RESIDENCE; (E) ANY FEDERAL, STATE OR LOCAL LAW, PLAN, POLICY OR RULE WHICH RELATES TO SUCH DISPLACEMENT, OR REQUIRES -5- THE MITIGATION OF THE IMPACTS CAUSED BY DISPLACEMENT. THIS RELEASE BY LESSEE, NOTWITHSTANDING SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH PROVIDES THAT: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERI- ALLY AFFECTED THE SETTLEMENT WITH THE DEBTOR," RELEASES ALL CLAIMS OR LOSSES, WHETHER KNOWN, UNKNOWN, FORESEEN OR UNFORESEN, WHICH LESSEE MAY HAVE AGAINST CITY. LESSEE UNDER- STANDS AND ACKNOWLEDGES THE SIGNIFICANCE AND CONSEQUENCE OF THIS RELEASE AND OF THIS SPECIFIC WAIVER OF SECTION 1542 AND ASSUMES FULL RESPONSIBILIITY FOR ANY DAMAGES, LOSS OR CLAIM THAT LESSEE MAY INCUR. AS A RESULT OF THE CONVERSION, TERMINATION; AND/OR DISPLACEMENT REFERRED TO ABOVE. LESSEE IS FREELY AND VOLUNTARILY EXECUTING THIS LEASE AND LESSEE, AND IN EXECUTING THIS RELEASE, HAS NOT RELIED UPON ANY INDUCEMENTS, PROMISES OR REPRESENTATIONS MADE BY CITY OR ITS OFFICERS OR EMPLOYEES, OTHER THAN THE COMMIT- MENTS AND COVENANTS CONTAINED WITHIN THIS LEASE. (4) Lessee agrees that City's right to convert the premises to a public recreation area upon expiration of this lease, is now believed to be in the best interests of the citizens of, and visitors to, the City of Newport Beach. (5) This Lease constitutes notice that City reserves the right to convert the Premises to public recreational use on or about March 16, 2000. (6) Upon expiration of the term of this Lease, Lessee shall, within sixty (60) days, remove any mobilehome or recreational vehicle, structure, improvement, personal property or equipment located upon the Premises. Upon the expiration of this sixty (60) day period, the City shall have the right to remove and dispose of any and all property improvement structures or equipment which remain on the Premises without prior notice or judicial action. (7) If, subsequent to the expiration of this Lease, Marinapark is still to be operated as a mobilehome park, the City shall be under no obligation to offer written rental agreements or leases other than as may then be required by the Mobilehome Residency Law, specifically the provisions of Section 798.18 of the Civil Code or such laws as may be ,enacted subsequent to the effective date of this Lease. The Mobilehome Residency Law currently obligates the City to offer a twelve (12) month lease or a lesser term if requested by Lessee. 5. RENT. Lessee shall pay as rent, without deduction or offset, on the 1st day of October, 1985, and on the first day of each month thereafter during the term of this lease, the sum of $732.00, provided, however, in the event this lease is signed after the 1st day of November, 1985, and prior to December 1, 1985, rent shall be $769.00, and provided further, that in the event this lease is signed after December 1, 1985, and prior to January 1, 1986, the rent shall be $807.00 and in each case rent shall be subject to increase as specified in this paragraph. The monthly rental shall be subject to adjustment as of October 1, 1986 and as of October 1st of each year thereafter during the term of this Lease. In no case shall the adjusted rent be less than the current rent. The adjustment shall be equal to the increase in the Consumer Price Index for the twelve month period (commencing May 1 and ending April 30, hereinafter the "adjustment period") prior to the date of adjustment. The rental adjustment shall be calculated by adding each monthly percentage increase during the adjustment period, subtracting any decreases and multiplying the total by the monthly rent in effect prior to the adjustment. The Consumer Price Index (All Urban Consumers -All Items) for the Los Angeles -Long Beach -Anaheim, California area as published and released by the Bureau of Statistics for the United States Department of Labor shall be the index utilized for calculating rental adjustments. If the Consumer Price Index, as now compiled and published, is superseded by another index, then the new index shall be used to calculate the increase in rent provided that an appropriate conversion from the old index to the new can feasibly be made. If such conversion cannot be made, or if no such index is published, then another index generally recognized as authori- tative shall be substituted by agreement. Rent for any fractional part of any month between the commencement date and the first date of the first full calendar month within the Term shall be prorated, and paid by Lessees to City along with the first full month of rent due hereunder. Lessee stipulates and agrees that this lease constitutes the sixty (60) days' written notice of rental increases required by the Mobilehome Residency Law and Lessee acknowledges that no additional written notice need be given by City; provided, -7- however, City may provide Lessee with sixty (60) days' written notice of the precise amount of any rental increase authorized by this paragraph and City and Lessee agree that such notice shall not constitute a waiver of City's right to rely upon the adequacy of the notice provisions in this paragraph. 6. RELEVANT STATUTES AND RULES. The Mobilehome ''. i.er:,-y Law requires this Lease to contain, among other things, the rules and regulations of Marina - park and the language of the Mobilehome Residency Law. The rules and regulations of Marinapark are attached as Exhibit "B," the provisions of the Mobilehome Residency Law are attached as Exhibit "C," and both documents are incorporated into this Lease by reference. The Marinapark rules and regulations and the Mobilehome Residency Law may be amended or modified from time to time, and these amendments and modifications shall be deemed to be incorporated into the documents attached as Exhibits "B" and "C" when effective. 7. LATE CHARGE. If the entire rent owed by Lessee is not received by City by the 10th day following its due date, then, without any requirement for notice to Lessee, Lessee shall pay to City a late charge of $35.00. The parties agree that such a late charge represents a fair and reasonable estimate of the costs City will incur by reason of any late payment of rent. An acceptance of a late charge by City shall not constitute a waiver of Lessee's default with respect to rent, nor prevent City from exercising any of the rights or remedies granted by this Lease. 8. SALE OR ASSIGNMENT. Lessee may sell the mobilehome located on the premises pursuant to the rights, and subject to the obligations, of Lessee under the Mobilehome Residency Law and any other appli- cable statutes. If the mobilehome that is the subject of the sale or transfer, is to remain in the park, or if Lessee proposes to assign Lessee's interest in this Lease to any person or persons who is (are) to reside on the premises, Lessee and/or the proposed transferee must do the following: A. Lessee must give notice of the sale or assignment to City prior to close of escrow; Mi4 B. The sale or assignment shall not be effective unless the City has given prior written approval, the transferee has executed the assignment of lease form provided by City, and the transferee has expressly agreed to be bound by the waivers and releases provided in the Lease. C. Lessee, in view of the requirement that the Premises shall constitute Lessee's primary residence, agrees not to sublease or otherwise transfer any partial interest in this Lease, except to the extent that the right to sublet or transfer is specifically provided by law and, in no event to a person or persons not using the premises as a primary residence. D. City shall approve any such transfer, if the transferee has the financial ability to pay the rent and charges and otherwise comply with the terms and conditions of this Lease, provided, however, City may withhold approval if it determines that, based upon the transferee's prior tenancies, the transferee will not comply with the rules or regulations of Marinapark (Exhibit "B"). E. The City, in the event of a sale of a mobilehome to a third party, and in order to upgrade the quality of the park, may require that a mobilehome be removed from the park, when: (1) it is less than ten feet wide; (2) it is more than twenty (20) years old, or more than twenty-five (25) years old if manufactured after September 15, 1971, and is twenty (20) feet wide or more, and the mobilehome does not comply with the health and safety standards provided in Section 18550, 18552 and 18605 of the Health & Safety Code and the regulations established thereunder; (3) the mobilehome is more than seventeen (17) years old, or more than twenty-five (25) years old if manufactured after September 15, 1971, and is less than twenty (20) feet wide and the mobilehome does not comply with the construction safety standards under Sections 18850, 18852 and 18605 of the Health & Safety Code and the regulations established thereunder; or (4) it is in a significantly run down condition or in disrepair, as determined by the general condition of the mobilehome and its acceptability of the health and safety of the occupants and the public exclusive of its age. F. Should Lessee, during the term of this Lease, elect to sell or assign its interest in this Lease, City shall have the right of first refusal to acquire the interest on such terms and conditions as may be acceptable to Lessee, and on failure of the parties to agree on terms within ten (10) days after written notice thereof from Lessee, Lessee shall be free to ! sell or assign Lessee's interest in this Lease, subject to the terms and conditions of this Lease. G. Notwithstanding any other provision in this Lease, Lessee shall have the right to assign its interest in this Lease to a spouse, son and/or daughter without any requirement that City be given the right of first refusal to acquire the interest and without payment of the transfer fee specified in paragraph 10, provided, however, the premises shall be used as the primary residence of the assignee and the assignee shall be bound by all provisions of this Lease, including, without limitation, the waiver of relocation assistance. 9. iTfILITIES. A. The City shall not provide electricity or tele- phbhe service. Lessee shall make arrangements directly with the utilities furnishing the services and promptly pay all charges; B. The City shall provide Lessee with water and gas service. The initial charge to Lessee for such service shall be based upon the expenses incurred by City for gas and water utili- zed within Marinapark, for all purposes, ("total cost") for the period commencing August 1, 1984 and ending July 31, 1985 (rating period). The initial monthly charge to Lessee shall be calcula- ted by dividing the "total cost" by twelve (monthly cost) and then dividing the monthly cost by the number of tenancies with Marinapark (total tenancies). Charges for gas and water service shall be increased or decreased on the first day of October, 1986, and on the first day of October during each subsequent year of this Lease in accordance with increases or decreases in "total cost" or "total tenancies" during the preceding rating period (August 1st through July 31st). C. The charges for gas and water service shall be paid when rent is due, and is in addition to the obligation to pay rent. In the event Lessee fails to pay charges for water or gas service within ten days after the amount is due, Lessee shall pay to City a late charge of $35.00; D. In the event City provides both master meter and submeter service of utilities to Lessee, the cost of the charges for each billing period shall be separately stated and shall contain opening and closing readings of the meter. In such event, City shall post rates charged by the appropriate utility in a conspicuous place; -10- E. City shall not be liable for any loss, damage or injury and Lessee shall not be entitled to any abatement or reduction of rent, by reason of City's failure to furnish any utility or service if the failure is caused by accident, break- age, repairs, maintenance, or any other cause beyond the reason- able control of City. 10. TRANSFER FEE. Lessee requests that City perform certain services in connection with the sale of any mobilehome to remain within the Park, and/or the sale or assignment of Lessee's interest in this Lease. The services to be performed by City, at Lessee's request, include, but are not necessarily limited to, the prepar- ation of the documents by which the leasehold interest is assigned and the inspection of the property to be transferred. The City and Lessee agree that a reasonable fee for the perfor- mance of these services is the sum of $2,500.00. 11. MAINTENANCE OF LANDSCAPING AND IMPROVEMENTS. City agrees to maintain, in good working order and conditions, the grounds, common areas, common facilities, streets, City -owned buildings, and any other publicly -owned improvements on the Marinapark property. Lessee shall, at their cost and expense, maintain, in good order and condition, any mobilehome, cabana, or other improvement located on the premises. Lessees also agree that all landscaping on the premises shall be limited to three (3) feet in height to preserve views and open space. The City may charge a reasonable fee for services relating to the maintenance of the premises upon which the mobilehome is located in the event Lessee fails to maintain the property in accordance with the provisions of this Lease and the rules and regulations of Marinapark (Exhibit "B") after giving written notification to Lessee and Lessee's failure to comply within fourteen (14) days from the date of notice. The notice shall contain all information required by the Mobilehome Residency Law. 12. PHYSICAL IMPROVEMENTS AND SERVICES. The physical improvements to be provided Lessee during the term of this Lease include the nonexclusive right to use all of the common areas and common facilities located within Marinapark, such as streets, nonrestricted parking areas, recrea- tional facilities and equipment, laundry facilities and other -11- facilities, equipment and conveniences located in the common areas and common facilities and designated for use by residents. The services to be provided by City during the term of this Agreement include the services to be provided by the Marinapark manager and other employees and officers of City, the utilities to be provided by City specified in Paragraph 9, and the maintenance of all common areas and common facilities in good working order and condition. 13. CHANGES IN MARINAPARK RULES AND REGULATIONS, PHYSICAL IMPROVEMENTS AND SERVICES. The City retains the right to amend or modify the Marinapark rules and regulations, the terms of this Lease, and the nature of the physical improvements for services to be provi- ded, after complying with the provisions of the Mobilehome Resi- dency Law and other applicable law. The right to amend the terms of this Lease, the Marinapark rules and regulations, and the physical improvements and services to be provided by City, include, without limitation, the right to reduce the size of, or eliminate, any physical improvement, common area, common facility, or equipment, provided, however, no changes shall be made to the provisions of this Lease, specifying the term of the Lease or the rent to be charged unless those changes or amendments are permitted by other provisions of this Lease. 14. RIGHT OF ENTRY. Lessee, subject to the right of revocation as set forth in the Mobilehome Residency Law, hereby grants written consent to City to enter the premises and Lessee's mobilehome for the purpose of improving, maintaining, repairing or replacing gas, water and sewage systems owned and maintained by City. Any damage, loss or injury to Lessee's home, property of Lessee, or the premises which results from efforts of City to maintain, repair, improve or replace the gas, water or sewage systems, shall be the sole responsibility of Lessee, and City shall not be responsible for reimbursing any cost or expense incurred by Lessee as a result of such efforts, nor shall City be responsible for repairing, replacing or otherwise restoring the mobilehome, the premises or any improvements thereon, to the state or condition immediately prior to the maintenance, replacement or -12- repair efforts. The City also reserves the right to enter the premises for other purposes as specified in the Mobilehome Residency Law. 15. HOLD HARMLESS. Lessees covenant that they will indemnify, defend and hold City, its officers, agents and employees harmless from any and all claims or demands of any name or nature whatsoever arising out of, or incident to, the use and occupancy of the Premises, 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 premises or caused by or arising out of any activities or omission of Lessees, their agents, employees, licensees and/or invitees, including, without limitation, injury or death of Lessees, their agents, employees, licensees and invitees and damage to their property or Lessee's property, except for any damage or injury of any kind arising out of the negligence of City, its officers, agents, or employees. Lessees, as a material part of the consideration under this Lease, hereby waive all claims against City for any damage or loss from any cause arising at any time, including, but not limited to fire, theft, Acts of God, vandalism or any physi- cal damage while the coach remains in the mobilehome park, other than the negligence of City's agents, officers or employees. Lessees do hereby agree to indemnify and hold City, its officers, agents and employees harmless from and on account of any damage or injury to any person or equipment on the coach arising from any cause or from the negligence of a Lessee, his or her family or guests. Since a substantial portion of the present value of Lessee's mobilehome or coach is attributable to the value of the premises and the and the proximity of the premises to lower Newport Bay, and not the value of the structural improvement, Lessee, in addition to the other commitment specified in paragraph 4, agrees to indemnify and hold City, its officers agents, and employees harmless from any and all loss or injury of any nature whatsoever arising out of or attributable to such a change of use and the requirement that Lessee remove his home and other property from the Marinapark. 16. TERMINATION. A. Lessee may terminate this Lease without any -13- further liability to City, upon sixty (60) days' written notice to City and upon condition that all persons occupying the premises terminate their tenancy within that period and remove the mobilehome or recreational vehicle and all other improvements, from the premises. B. The City may terminate this Lease for the reasons specified, and according to the procedures set forth, in the Mobilehome Residency Law. C. In addition to the rights specified in subpara- graph B, the City reserves the right to terminate this Lease in the event: (1) a court of competent jurisdiction determines that residential use of the property is inconsistent, or in conflict, with the provisions of the public trust imposed upon those por- tions in Marinapark that constitute state tideland, or that the residential use is inconsistent with any provision of the state constitution or state law; (2) there is a major failure in one or more of the public utilities furnished Lessee by City, and, in the opinion of City, the cost of repairing the system is exces- sive when viewed in light of the contemplated conversion to public recreation use at the expiration of this Lease. D. The waivers and releases relative to relocation benefits or assistance shall operate to preclude recovery of same by Lessee in the event this Lease is terminated pursuant to the provisions of this paragraph. 17. ATTORNEYS' FEES. Should either City or Lessees be required to employ counsel to enforce the terms, conditions and covenants of this Lease, the prevailing party shall recover all reasonable attorneys' fees (and court fees if applicable) incurred therein whether or not court proceedings were commenced. 18. REMEDIES CUMULATIVE. The rights, powers, elections and remedies of the City contained in this Lease shall be construed as cumulative and no one of them shall be considered exclusive of the other or exclusive of any rights or remedies allowed by law, and the exercise of one or more rights, powers, elections or remedies shall not impair or be deemed a waiver of City's right to exer- cise any other. -14- 19. NO WAIVER. No delay or omission of the City to exercise any right or power arising from any omission, neglect or default of the Lessees shall impair any such right or power or shall be construed as a waiver of any such omission, neglect or default on the part of the Lessees or any acquiescence therein. No waiver of any breach of any of the terms, cove- nants, agreements, restrictions or conditions of this lease shall be construed as a waiver of any succeeding breach of the same or of any of the terms, covenants, agreements, restrictions or conditions of this lease. 20. COMPLIANCE WITH LAWS. Lessees covenant and agree to comply with all rules, regulations, statutes, ordinances and laws of the State of California and the City of Newport Beach or any other governmental body or agency having lawful jurisdiction over the leased property; and Lessee further agrees to comply with all the Rules and Regulations of Marinapark. 21. MOBILEHOME RESIDENCY LAW/ZONING AND USE PERMIT INFORMATION: A. Lessee acknowledges having received and read a copy of this Lease, the provisions of the Mobilehome Residency Law (Exhibit ° C ") as presently constituted, and the Marinapark Rules and Regulations (Exhibit it B"). B. Marinapark is currently zoned unclassified and there are no conditional use permits or other permits required to operate Marinapark as a mobilehome park. The City of Newport Beach owns the ground on which Marinapark is located except to the extent the property is subject to the public trust applicable to tidelands. 22. ENTIRE AGREEMENT. This Lease and the documents referred to herein constitute the entire agreement between City and Lessee and terminates and supersedes all prior and contemporaneous agreements, representations and understandings of the parties, whether written or oral, including, without limitation, the termination of any rights of either party under the 1976 Lease. -15- 23. NOTICES. It is mutually agreed that any notice or notices provided for by this lease or by law, to be given or served by Lessees, may be given or served by mail, registered or certified, with postage prepaid, on the City of Newport Beach, addressed to the Mayor, City Manager, or City Clerk, 3300 Newport Boulevard, Newport Beach, California 926639 or at such other address as may be hereafter furnished to the Lessee in writing. If notice is intended to be served by City on Lessees, it may be served either: A. By delivering a copy to the Lessee personally; and B. If he be absent from the mobilehome, by leaving a copy with some person of suitable age and discretion who may be occupying the mobilehome; or C. If no one can be found, then by affixing a copy of the notice in a conspicuous place on the premises or mobilehome and also sending a copy through the mail addressed to the Lessee. Such service upon the City or Lessee complete at the expiration after the deposit in the demand or communication. IN WITNESS WHEREOF, be executed the day and year of seventy-two (72) United States mail shall be deemed hours from and of such notice, the parties have caused this Lease to first above written. CITY OF NEWPORT BEACH a mya+c4pal corporation APP VED AS TO FORM: � v City Attorney LESSEE: By -16- EXHIBIT "A" NEWPORT MARINAPARK RULES AND REGULATIONS The following Rules and Regulations are established pursuant to Paragraph 13 the Newport Marinapark Master Lease Agreement. 1. FIRES. Open fires on the beach area adjacent to Marinapark are prohibited. 2. TRAFFIC. All drivers are required to observe the traffic regulation signs posted in the Park. The maximum speed limit for any vehicle is 10 MPH. 3. PARKING. Each tenant shall park in the space assigned to him and shall have a Marinapark sticker attached to rear bumper. Two stickers will be issued to each Mobile Park Homeowner. Registered guests of the tenants shall park only as follows: (Tenants shall inform their guests of speed limits, Parking Regulations and TOW -AWAY signs). A. Registered guests' parking area; B. Tenants expecting guests shall advise the Manager in advance. C. Guest parking shall be assigned by the Manager only. D. Guests will be limited to no more than two cars on holidays and weekends. E. All guests must register, on arrival, at the office for Parking Permits. F. Failure to obtain Parking Pass, guests' cars are subject to TOW -AWAY. 4. NOISE. No unnecessary noises (loud radios, televisions, etc.T between the hours of 10:00 P.M. and 8:00 A.M. No disturbing noises at any time. 5. MOTORCYCLES, POWERED SCOOTERS, SKATE BOARDS, ROLLER SKATES AND BICYCLES. No motorcycles, powered scooters, skate boards or roller skates allowed to be used within Marinapark at any time or any place. Bicycles okay on rear drive only. 6. CONSTRUCTION. Construction, either by tenants or their contractors, is prohibited on Sundays and holidays and is permitted on other days only between the hours of 8:00 A.M. and 5:00 P.M. During and on completion of construction tenants shall be responsible for the following: A. Construction must meet with all uniform building codes - state, county and city. B. Removal of waste products (lumber scraps, saw dust, etc.) C. Maintaining their leased areas in a clean and sanitary condition. D. Stopping any excessive noise caused by construction machinery--(unmuffled gasoline engines, smoke or fumes, etc.) -1- EXHIBIT B 7. LAWNS AND PATIOS. Tenants shall not leave water hoses, boats, clothing, beach toys, surfboards, bicycles, etc. on the grass or patio areas. 8. SAND. Tenants and guests are required to wash sand off their bodies and bathing suits before entering showers, rest rooms or laundry facilities. Do not use lawn hydrants to wash sand off. An outside shower is provided for this purpose and is located opposite the ladies rest room. 9. RESTROOMS AND LAUNDRY ROOM. These conveniences in Marinapark are maintained as a part of your home. Your cooperation in keeping them clean and sanitary is expected. Washing and drying hours are 7:00 A.M. to 7:00 P.M. Clogged drains, defective dryers, etc., or any irregularities should immediately be reported to the Management. All facilities must be left clean after use. Clothes shall be removed from the laundry room as soon as they are dry. Responsibility for maintenance of private utilities rests with tenants. 10. CHILDREN. Children under six (6) years of age are not permitted in service rooms, toilets or showers unless accompanied by an adult; also children in this age group are prohibited from playing in and around these areas. Children, under eighteen (18) years of age, shall not be left unattended in trailer or trailer space. An adult must be in attendance at all times. 11. SHRUBS. Tenants are responsible for weed removal and maintenance of flowers and other shrubs in their own spaces. Use of the area under trailers for storage purposes is prohibited. 12. PETS. No pets are allowed in Marinapark. Instruct your guests not to bring dogs or cats with them when they visit you. 13. PHONE CALLS. Check your mailbox daily for any phone messages and packages delivered to the Marinapark Office. They will not be delivered to trailers, except in extreme emergencies. 14. TRAILERS. Trailers are to be equipped with current license plates and license stickers as required by State law. 15. GARBAGE AND TRASH. All garbage and refuse must be placed in proper containers provided by the Park for this purpose. Put trash only in the large bins. If you have fish to dispose of, put in plastic trash bags properly secured. 16. MARINAPARK BUSINESS HOURS. 8:00 A.M. to 12:00 P.M. and 1:00 P.M. to 5:00 P.M., weekdays. Weekends and holidays our Attendant will be on duty for your convenience from 9:00 A.M. to 5:00 P.M. 17. VIOLATIONS OF LAW. Violations of law will not be tolerated. Violations by a tenant, or any guest of a tenant, will be deemed a breach of the lease agreement. 18. DOMESTIC HELP. Domestic help must not remain overnight except when tenant is in occupancy. 19. COMPLAINTS. Any tenant desiring to register a complaint with the office must put the complaint in writing and sign it in order for management to act upon the complaint. 20. GUESTS. All guests who are occupying trailers during absence of tenant must register at the office during -2- business hours. Lessee agrees that the Park Manager has the right to determine whether the park facilities can accommodate all the tenants and guests in the Park and, therefore, may at his discretion refuse a guest permission to stay. In no event will a guest be allowed to stay in the Park for an unreasonable length of time. 21. NEW CONSTRUCTION. All mobilehome, cabanas, porches, skirtings, ramadas, awnings, storage cabinets, fences, or other structures must be approved by the Park Manager before construction or installation. 22. MOBILEHOME WIDTH. No mobilehome, including cabana, shall exceed a width of twenty-four (24) feet. Landscaping located adjacent to mobilehomes shall be limited to three (3) feet in height and width and shall not obstruct another tenant's view. 23. CHILDREN AND ADULT SECTION. Marinapark is divided into an adult section and a children's section as depicted in Exhibit "A" of the Lease Agreement. Permanent residency in the adult section is limited to adults only. Children, persons under eighteen (18) years of age, are permitted in the adult section only as visitors and only on a temporary basis (not more than a few days at a time). Lessees shall not permit children to occupy the trailer or space hereby leased in the adult section except as hereinbefore specifically permitted. In the event one or more children become members of an individual Lessee's family during the term of this Lease, if Lessee is located in the adult section, then this Lease and all Lessee's rights hereunder shall terminate at the end of the month during which such event happens. 24. USE OF NAME OR ADDRESS OF PARK. This Park or its name or address shall not be used for the purpose of advertisement or sale of automobiles, trailers or merchandise, or for any other commercial purpose except with the specific written consent of the Lessor. 25. OUTSIDE APPEARANCE. Patio furniture and one storage cabinet are the only items permitted outside the trailer. No towels, bathing suits, rugs, wearing apparel or laundry of any description may be hung outside of trailers. 26. CALIFORNIA CIVIL CODE PROVISIONS RELATIVE TO MOBILEHOME PARK RESIDENCY. Pursuant to the California Civil Code Section 789.9, you are hereby notified and advised of the following Civil Code Sections: "Section 789.5(a) Termination of Tenancy or lease in mobilehome waiver; void. or other estate at will park; notice; manner; (a) No tenancy or other estate at will or lease, however created on or after the effective date of this section, in a mobilehome park may be terminated except upon the landlord's giving notice in writing to the tenant, in the manner prescribed by Section 1162 of the Code of Civil Procedure, to remove from the premises within a period of not less than 60 days, to be specified in this notice. No lease shall contain any provision by which the tenant waives his rights under this section, and any such waiver shall be -3- deemed contrary to public policy and shall be unenforceable and void. However, any lease may provide that the tenancy may be terminated upon the landlord's giving notice in writing to the tenant, in such prescribed manner, to remove from the premises within a period of not more than 60 days, to be specified in the notice." "Section 789.6 Restriction on termination of tenancy, etc. in mobilehome park; space for purchaser of mobilehome from owner of park Notwithstanding the provisions of Section 789.59 a tenancy or other estate at will or lease in a mobilehome park may not be terminated for the purpose of making the tenant's space in the park available for a person who purchased a mobilehome from the owner of the mobilehome park or his agents." "Section 789.7 Fees The owner of a mobilehome park or his agents shall not charge any fees to tenants other than charges for rent, utilities, or incidental reasonable service charges." "Section 789.8 Mobilehome park; entry charge or transfer or selling fee; prohibition There shall be no entry charge as a condition of tenancy in a mobilehome park, nor shall there be any transfer or selling fee as a condition of sale of a mobilehome within a mobilehome park, even if such mobilehome is to remain within the park, if the park management performs no service in the sale of the mobilehome." 27. NO SUBLETTING OF LEASED SPACES. Mobilehome owners shall not rent or sublease their mobilehomes without express written permission from the Newport Beach City Manager or Marinapark Manager. 28. RENTAL DUE. All space rents are due on the first day of each month. Rents received after the 10th day of the month at the Marinapark Office, is subject to a late fee as stated in Paragraph 7 of the Lease Agreement. 29. SLEEPING IN CARS PROHIBITED. Sleeping in cars or recreational vehicles in Marinapark is prohibited. These Rules and Regulations may be revised, amended or modified by lessor from time to time during the term of this lease or conditions warrant. Any such revision, amendment or modification of these Rules and Regulations shall be effective when posted in the office of Marinapark. -4-