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HomeMy WebLinkAboutBeacon Bay, 55LEASE THIS LEASE is made and entered into as of the day of , 1994, by and between the CITY OF NEWPORT BEACH, a Charter City and nicipa corporation ("Lessor"), and ac.4t kR-el W. 6 0J*? ve (No Keno zi e ("Lessee"), regarding the real property commonly referred to as Beacon Bay Lot 5` RECITALS A. The City of Newport Beach, by virtue of a 1978 legislative grant found in Chapter 74 of the Statutes of 1978 (the 'Beacon Bay Bill"), holds the right, title and interest to certain 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 lease 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 consi&ration paid for the transfer of this Lease is vitally important to the City in that failure 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. NB1-187371.V2 1 05/24/94 46/4Z/S0, Apellw!s aa14j 941 to anlPA salBS lenloy @4110 ueaw o4j aq Ile4s jue8 anl78A saleS lenloy o6e,any •4de,6e,edgns si41 ul pa!l!oads se slowed Aeg uooea8 (,oualu! ,o Impolem) pejenlls Aijulpis a 10 ,alsue,j ldwaxa-uou a4j to enlEA sales lenloy a41 to ueaw 941 10 (%Z/,Z) 3ueo,ed 11784-auo pue oMl ueaw lle4s „,uaa anlen s818S len,od a6eJaAV,, (Z) -uo!joesue,l 4ons 4,!M uolloauuoo u! Apedo,d leuosaad to 1e1su78,l 841,ol pled uoije,aplsuo0 Aue buipnloxa 'uos,ad ,a4,oue of easso-1 juenbesgnS ,o 'eesse-1 ,ua„n0 84, wo,l 'pue-, pesee-1 841 uo slueweAo,dwi 94, buipnloui 'asea-1 6u!ls!xa-a,d a41,o esea-1 s!41lo,alsue,l,dwaxe-uou eqj `,ol pled uo!,e,ap!suo0 pe to pejo, eqj ueaw !!e4s „amen saleS lenlod„ (G) ZA'iLELBi-T9N :seived @4110 sj46p 941 s108l48 le41 a6enbuel aA!leiedo sunnuoo weal @4110 uo!1!ullap 841'seseo u!78j,ao ul -gcluibeled s!41 ui poilloods se p@ugap aq lle4s swaal bulmollol @41 'asee-1 s!41 to sasod,nd eqj ,off -suol,!u!laa d 'lt/1N3a '£ •asea-1 8!41 u1 pep!Ao,d se peleu!wjel,aipue ssolun 'ajea aA110843 941 bu!rnol!ol s,ea�( (Og) A:411 ajep 941 uo andxa p784s pue 'algia aA!joa113 @4101 100 juana ou ui inq ojea uo!jn0ax3 941 uo 00uawwo0 pe48 @seal s!4110 waal 941 Wa31 Z •@poo ledqunNl 4oea8 l,odmON 841 JO J9]JegO Aj!O 4oeag l,odmON 941 ul paipoods seouelsgns uogaeooapA4 je4lo pue wneloiled `sleaau!w 'sub 1p lo uo!lonpo,d pue ',ol 6ulll!,p a41 6u!uaaouoo suo!juinbei pue suoppjsai lie 01 aa4janl loafgns pue 'puel 6upog46!au ,o bu!u!ofpe uo suo!leool ooel,ns woal juawd!nba ,a410 pue smou,ep 's!l@m 10 sueaw Aci puel a4j to aoups o4j woal (,005) 1991 pa,pun4 @All 10 41dop a4j molaq sl@A81 le uo pau,eo aq l!e4s eouu1sgns 4ons Aue to bui>iel pue uo!j08,jxa `uo!j0npo,d luawdolanap 'uoij8,oldxa a4j ,ol suo!j78,ado lie pue Aue le4l uo1181!w1I ssa,dxe 941 of joafgns 'awes 041 Egaj pub lola,jxa pue oonpo.id 'dolan0p ',oj a,oldxa of s146u lua!uanuo0 Pula i(,ess90au lie QM @@410601 'awes 941 ,alsu78,1 pue wea6 01 14611 941 pue pue, pesea-1 941 ,apun pue ui seou78lsgns uogaeooap/(4 ,aglo pus sj4bu s86 leinleu 'sj46u l78,au!w 'slejoulw s86 'sl46u l!o 'lp lie so/ues9, Alssa,dxo ,oss@-1 •uo9,a4j polon,jsuoo sjuawanoadwi Aue Pula pue-1 paseal a4101 jeje, ile4s „saslwa,d„ waal 941 `ass9-1 s141 ul pasn sy •g uo!1oaS u! pa!l!oads esn uo suo!lel!wll 941 of loafgns 'aoua,9la, Aq pel8aodaoou! pue oje,a4 pe4o81,8 4osa `V 1!q!4x3 uo pajo!dop Allsiauab pue '8 1!q!4x3 u! pagposep Ap781n0!u78d a,ow s! 4014M `C.PUel paseal„ eql) 101 AEG u00ea8 se uMouI Aluowwoo Apedo,d lea, 941 easse-1 of seseal I%geja4 ,osso-1 GNVI 43SV3l :sMopOl se 98,678 sa!lmd eqj `as78al s!4j u! sju78u@A00 041 pue slel!oa, 6uio6a,ol 84110 uo!1e,8p!suoo u! `3aOd31=131HI1 `MON quawaa,6e s!41 ui pe!lpeds suon puoo pue sw,al eqj jepun seasse-1 jua„no 4j!M sasea) Mau olu!,alue of pue Ae8 uooea810,a1o78,840 le!luop!sa, a4, u!78lu!ew of 4oea8 l,odMeN 10 suaz!jp a4, to s1s9,aju! lsaq a4j ui si j! pou!w,alep 8784 ,ossa, l •sMel 18001 pue olels algeo!ldde,a4jo Ile 10 pue 'gouag liodMaN to 40 84110 80ueu1p,O bu!uoZ pub ulaid Ie,aue0 ',al,e4O a4j 'll!8 Ae8 u00ea8 a4j 10 suo!slAo,d 4lp luals!suo0 s1 88789-1 8!41 1E41 pau!w,ajap se4 ,ossa, .N situated parcels most recently transferred. Exempt transfers, as defined in Paragraph 3.B(3), shall not be used to calculate Average Actual Sales Value rent. (3) "CPP' 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 Pre-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 (8%) 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. :1i (11) "Transferred" shall mean any sale, assignment, sublease or other transaction, other than an exempt transfer as defined in Paragraph 3.B(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. etg�fi A, Lessee shall pay annual rent i the sum of Vuo lR_tA 51�- �iu payable at the rate of S�� cv, ($ a . 0 )per month. Lessee shall also pay, if applicable, deferred ret in the sum of ry ($ ) upon execution of this Lease. Rent shall(shall not ircle one) be adjusted every seven (7) years after the date of transfer in accordance with the provisions of Paragraph 3.6(4). Annual rent, deferred rent, and periodic adjustments are based upon the following: NB1-187371.V2 3 05/24/94 46/4Z/SO V -Ino a4J aalle as -ea -1 s141 u6ls 01 sa4slm OW aassaq luenbesgnS a of aseaq 6upslxe -gad 041 saalsuejl aassaq luaimo 84l Juana 041 uI :aassaq luenbesgnS (o) (ti)9'E 4dej6eaed to suolsmoid 84141IM eouepJ000e ul uollnoaxa to alep 841 a811e sae9A (L) uanas liana palsnlpe eq IIe4s luai 'mpaie41 'aseaq s141 to uollnoexe 041 4lIm luaaanouoo luau poijele(] lie Aed osie IIegs aassaq luenno 041 -(Z)V-c 4dejbeaed to suolslAoid 043 4110► 93uepj000e ui uoilnoexe to amp 84110 se peleinoleo luau enI8A saleS Ienloy abumv o1 Ienba luai Ienuue Aed IIe4s aassaq luaimo a4J 'ale(] aA1138113 a41001113 sjeOA (g) aAll uegl avow aassaq luaimo 941 Aq palnoaxa sl aseaq s141 luexo 941 UI :ale(] aA1130113 Ja11y SROA aAld ue41 9a0W/aassaq luaamo (q) 4dea6eaed to molsmid a41 6ulpuelsgl!Mlou '4deibeiedgns s!41 ui pallloads se ulewai IIe4s luai 'aassaq luenno 041 Aq aseaq s141 to jalsuen ou uaaq se4 aaa41 se 6uoi os 'ja4eaja41 •aseaq s141 to uo1lnoexe a4141!M luaaanouoo luau paijala(] Ile Aud osle IIe4s aassaq luaaano 041 -Ajx!s Aq paP!Alp 'ale(] uollno8x3 pue ale(] an1138113 041 ueE)mleq sgluow to aagwnu 041 of ienba uolloejl a f%q luau anieA saI8S Ienloy abeaany pue luau Ielllui uE)emlaq eouajalllp a41 6uiAldlllnw Aq poleinoleo wns a snid luau lelilul of Ienba luej Ienuue Aed IIe4s aassaq luaaano 041 'ave(] aA1130113 841 Jalle saeaA (g) aAIJ u1411M aassaq luaaano 941 f%q palnoaxa sl as -ea -1 s!41 luana 041 ui :ave(] OAIJoa113 �a1}y sea,, aAld u1411M/aassaq luaaano (e) :smoliol se pled pue poulwaalop aq Iie4s lua.i 'a1E(] aA1108113 a41 jape palnoaxa lsig sl aseaq S1411uana 041 U 'ale(] aA!1o0113 a4l a011d uo1ln0ax3 (Z) -(Z)y'E 4dea6eaed to suolslAoad a41 y11m eouepl000e ul aalsueal a4l to olep a41 to se paleinoleo luau anIUA saleS Ienloy abeaany 041 o1 Ienba luau Ienuue ked IIe4s aassaq luanbasgnS a41'(E)9'E 4dea6eaed Aepun aalsueal ldwaxa ue ue41aa410 aouelpa4u! Aq aalsueal Ao 1116 a se 4ons 'Aue 11 'pueq paseaq a4l uo sluawanoadwl 94110 ales pue 'aseaq s14110 luewu6lsse 416ual s,wae ue ue41 1a410 uolloesueil e ui aassaq luanbasgnS a o1 aseaq s141 to aalsueal AUR 10 Juana 041 ui (o) 4dea6eaed to suolslAoid ay1 4J!M aouepa000e ul aalsueal 94l to alep a4J la4e saeGA uanas Ajana poisn(pe aq IIe4s Juai 11911e9j941 -(v)V-E 4dea6eaed 10 suolslAoad 041 4v!M aouepa000e ul aalsueal 041 to alep a4l to se paulwaalop enleA sales Ienloy 041 to (%zhZ) luaoied lle4-9uo pue oml of ienba luau Ienuue Aud IIe4s aassaq luanbasgnS 041 'aassaq luanbasgnS a of aseaq s141 to aalsueal Aue 10 lu1A9 a41 ul (q) •(V)8•g 4dea6eaed to suolslnoad a416ulpuelsgl1mlou 4dea6eledgns s141 ui pallloads se ulewaa Reqs luau 1(£)9'£ 4dea6eaed U1 411o1 las se aalsueal ldwaxa ue uegl la4Jo) aassaq vualano 941 Aq aseaq s!4J to aalsueal-ou uaaq se4 ejegi se 6u01 os 'la4e8la41 '(] l!q!4x3 ui pallloads se luau Iell!ul of Ienba luau Ienuue Aed IIe4s aassaq luaaan(] :aassaq lua0ano (e) :smollol se pled aq IIe4s luau 'ale(] aA1138113 a419lolaq to uo aassaq a41 Aq palnoaxa sl aseaq s141 Juana 941 U •0112(] anllaa113 al0188 uo1ln38x3 ( L) ZA'TLELST-T9N off Date, the Subsequent Lessee shall pay annual rent equal to two and one-half percent (21/2%) 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 3.6(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 3.13(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 3.6(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 vivos 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 NB1-187371.V2 5 05/24/94 Wtz/So 9 2V IL£LST-TSN aalle aosse-1 /(q p8nl908a sl `loaaa4l uollaod Am 10 '1uawAed ,uaa a 11 • („pouad 8091E),J apew sl luewAed ayl 4o!4M aol yluow e4l 10 Aep (4151) 14luaal41 ayl uo •w.d 00:9 aaolaq J0 uo aossa-1 Aq panle= sluewAed 01 salldde e6aeyo luawAed elel ON -yluow ,e41 10 Aep lsa!1841 ueyl aa1410 enloege sawoeq uaa seseaaou! 4o!4M uo1oesuml a ue4m yluow Am bulanp paleaoad aq lle4s luaa pled sl hila 4olynn 101 yluow 84110 Aup kill 8141 aaolaq ao uo anp luawAed gjIM 'eouenpe ul 'sluawllelsui A1141uow lenbe ul hila Aed 119ys aassa-1 'polaad aoeaE)/sluawAed luauallelsul (9) -(E)9'E 4dea6eaedgns aapun ldwaxe aq 16u lleys A,aed palyl yons 01 0sea-1 SI41 ul isaaalul ug 10 aalsueal luenbasgns Aue leyl 'aanaMoy `pap►noid 'aseaaoul leluea a141 aulwaalap 01 (%09) paaaalsueal a6eluewed ayl Aq palldlllnw eseaaoul le,uaa,uellnsaa ay1 pue'(e)(ti)8'E 4dea6eaed ul pepinoad se=_dalleejegi pue '(o)(Z)8'E ydej62Jed ul pepinoid se palsnfpe eq Ilg4s ,uaa 8141 '/(lied pnyl a o1 ,s0aa,ul %09 lay/sly sielsueal suosaad yons 10 auo pug slsaaalul }ie14-auo lenbe of se uowwoo ul slueuel se eessa-1 oyl ale suosaad oml 11 'eldwexe and -Alaed palyl a of penelsuml bulaq lsaaalul a6elueoaad 0141 loegaa o, pa,eaoad aq IILgs ,uaw,sn[pe hila 8141 Imme, ,ulof ao uowwoo UI ,ueuel 6ullslxa ue o, ue141 aa1410 uosaad a o, esee-1 s141 ul lsaaalul allyl aalsueal suosaad yons 10 lie uey, ssel pue 'sluuuel ,ulof ao uowwoo ul sluuual se Agejeq poleaao alslse ployassal ey, 6ulunno suosaad aaow ao oNq sI eessa-I Juana 8141 ul (q) •luaa UI aseaaoul us 10 aollou s,aossa-1 10 eassa-1 Aq ldlaoaa ayl of loud sAup (06) Alaulu ueyl aaleaa6 pouad Aue o1 /(ldde 4oI4M saseaaoul luaa Aud o, uo11s6llgo ou ane4 IIe4S easse-1 19141 `jegjjnj papinoid 'pue `ldO 0yl u1 9seaao0p a 10 Juana 0141 UI luaa SS8I Aed of ly6ia ayl ao waa paseaaoul Aed of uolle611go ayl woal eassa-1 an0llaa lou saop 8011ou 'SAep (gt7) an11-Alaol an16 01 aossa-1 10 aanllel 'janaMoy 'pap►noid 'aeaA aseal (4M) 14lu8nas yosa 10 pua 8141 of loud skep (9t) 8n11-A1ao11se8l le sluawlsnfpe leluaa 10 eassa-1 Al13ou of aonsapue Ilgys aossa-1 -alep ,uawlsnfpe leluaa lsel ayl (!!) ao 'aleo uolln09x3 0141 (I) 10 aalel ayl 10 se eassa-1 Aq pled ,uaa ayl 10 (%ot,) ,uawad Alaol ueyl aaleaa6 wns a Aq paseaaoap ao pas9aaoul aq luea pegs ,ulna ou ul .aalel SI aaneyolyM 'aasse-1 luanbasgng ao ,uaaanC) Aue Aq asea-1 sI14110 aalsueal Aue 10 alep 0141 ao 'luawlsn[pe leluaa ,ueoaa ,sow a14110 81ep 8141 ao 'algid uollno8x3 8141 10 se IdO 0141 ul 'Aue lI 'assaaoap ao aseaaoul abeluawad ayl of Ienbe a691uawad e Aq hila luaaano uayl ay, 6ulseemap ao 6ulssaaoul Aq peulwaalep aq llegs pouad MA (L) ulnas bulnsue ayl 6uunp elgeAed ,uaa pue alep luawlsnfpe 0141 o1 loud sf%9p (06) Alaulu alep 814110 se paumalap aq Reqs am6!1 IdO pegsllgnd Alluaoaa ,sow ayl -aa,leulaaay ylaol las s -e pautwielap aq Reqs luawlsnfpe yol14M '6ulnll 10 ,Soo ay, ul aseaaoap ao aseaaoul Aue ,oagaa of pa,snfpe aq IIg14s luaa `easse-1 luanbasgng ao luaaano Aue Aq asea-1 s141 10 aalsugg Aue 10 8,9p 814, 10 Aiesaanluue (41L) ylU8A8S ayl ao '8sg8_1 x14110 8194 uollnoax3 84110 /Gesaanluue (Lill-) 4luanas 8141 uo '(£)9'E pUe (e)(Z)8'E `(ega )(l)q*C syd6saed uI papinoad se,daox3 (e) •sluaw;snfpd luaa (ti) -Aisnoemllnwls asee-1 s141 ul slsaaalul e/uloodsaa a1a141 paalnboe lsa11 slueuel lulof ao uowwoo ul slueuel yons pue 'esee-1 s!141 Aq pal9aao almse p1040seal ayl 10 d14saaumo ul lueua, lulof ao uowwoo ul lu9ual a ao asnods 6ulnlnans 0141 sl eaaa1su9al 0141 ssalun eassa-I yons 10 41eep 0141 uodn Aldde Ilgys O -E 4d9a69aed 10 suolSlnoad ayl lsyl jeAemoq `pep/noid'easse-1 10 Alloedeoul Ieluaw ao IsolsAqd ayl 01 anp palulodds aesse-1 10 uslpolsno ao uelpaenb a of sI aalsusal eyl (y) expiration of the Grace Period, Lessee shall pay Lessor a late payment charge equal to four percent (4%) of each late payment, or portion thereof. Rent payments shall be payable to the City of Newport Beach and sent, or delivered, to the Finance Director at the address specified for service of notices. Rent shall be payable by Lessee to Lessor in such coin or currency to the United States as at the time of payment is legal tender for public and private debts. Lessor and Lessee agree that late charges specified in this paragraph represent a fair and reasonable estimate of the cost Lessor will incur by reason of any late payment by Lessee. Any late or missed payment of rent constitutes a default pursuant to paragraph 13 of this Lease. Any failure by Lessor to declare a default and initiate termination of this Lease due to a late or missed payment shall not be considered a waiver of the right of Lessor to do so for that or any other late or missed payment. C. Credit to Tidelands Fund. In calculating Initial Rent under this Lease, a credit was given to certain of the Current Lessees equal to the annual amortization of the present value of the additional property tax to be paid by such lessees during the remaining period of the Pre-existing Lease. This credit, commonly referred to as the 'tax advantage", is shown on Exhibit D for each affected lot. This credit was extended by Lessor to Current Lessees as consideration for entering into this Lease. As a consideration in its approval of this Lease, the California State Lands Commission required Lessor to credit its State supervised Tidelands Trust Fund by an amount equivalent to the tax advantage derived from those lots in Beacon Bay comprising tidelands. This amount is shown on Exhibit D for each affected lot comprising tidelands. Accordingly, Lessor has unilaterally agreed to annually calculate the amount of such tax advantage derived from the tidelands parcels in Beacon Bay and to credit an equivalent amount as revenue to the State supervised Tidelands Trust Fund. This provision is included in this Lease to acknowledge the agreement of Lessor with the California State Lands Commission, and does not affect the rights and obligations of Lessor or Lessee under this Lease. 4. TRANSFERS. A. Conditions Precedent to Transfer. Lessee may transfer this Lease subject to the prior written consent of Lessor, which consent shall not be unreasonably withheld, delayed or conditioned. Lessor shall consent to any transfer when Lessee and the proposed transferee have complied with the following: (1) Lessee shall furnish Lessor with executed copies of each and every document used to effect the transfer. (2) Lessee or the proposed transferee shall pay to Lessor a transfer fee of one hundred dollars ($100.00); 'Ai (3) Lessee shall execute a 'Termination of Leasehold Interest" for recordation; and (4) The proposed transferee shall execute a new lease and execute a "Memorandum of Lease" for recordation, which lease shall be identical to this Lease and have a term equal to the remaining term of this Lease at the time of the transfer. B. Transfer Information. The parties to any non-exempt transfer of this Lease shall provide Lessor with all information relevant to a determination of the total consideration paid for the transfer, as well as all documents which are relevant to the total consideration paid for the transfer. Lessee and the proposed transferee shall provide this information not later than forty-five (45) days prior to the proposed effective date of the transfer of this Lease. Lessor shall have the right, at its sole discretion, to commission an appraisal of the fair market value of this Lease and improvements NB1-187371.V2 1 05/24/94 46/9Z/90 9 W TLEL9i-IHN sJy6!j s,eassaq loage � m yo!ynn ao!Jou jaylo jo uo!leu!wial to ao!lou 'llnelep to ao!lou ueu!jm Aue l0 � d* 03 a sJapua-I 6uu(Idwo0 Ile 8n46 lieys Jossaq . (Apuaq 6UTAIdwo0„) eouejgwnoue to einleu pue sseippe `eweu sl! to ao!lou uau!jm jossaq uan!6 sey japuaq ay; ssalun aseaq sigl of luensind ao!lou uau!jm Aug japuaq Aue OA16 of uo!le6llgo ou aney Ileys jossaq •aapua-i o; aa!;oN •8 •eouejgwnoue Aue to aollou ueuljm jo!jd jossaq eA16 Ileys aassaq *esee-I s!yi u! pap!Aoid Aissejdxe esimiaylo se ideoxe jossaq to sisaja;ul pue sly6u Ile 01 pue aseaq s!y1 ul suolloulsej pue suo!ilpuoo 'slueuanoo Ile o; loe[gns aq Ileys aouejgwnoue Auy -pueq peseaq ay; u! ;sojalui s,jossaq jegwnoue o; jemod eqj aney Keys jossaq jou aassaq jayi!aN •josses to lsenbei uodn ueol ay; bulujeouoo jepuel ay; pue aassaq ueamleq pelhoexe uo!Jeluawnoop Ile yl!M jossaq ap!Aojd of aaj6e japual ayl pue aossaq 19puel eAquind eqI 01 seslwajd ay1 01 ellll 10 uo!ssessod aLii to jalsuejl jol Juawa6umie ue lou pue `u01loesuml 6ulpual epy euoq a si ueol a jaylew eu!wjalap of "Ossaq to Juesuoo @q1 Jnoyl!M asodjnd Aug jol uo!loesijejl ueol apl euoq a u! („japua-j j jepuel apy euoq Aue to jonel u! 'luawnjlsui jel!w!s J0 'e ebljow 'isnjl to peep Aq aseaq s!Lil jagwnoue � m aassaq •jagwnou3 0; ;y6!a •b 'S3�Nd»8Wf1�N3 'S -9.0 uolloaS to suo!s!Aoid eqi 01 loalgns aseaq s!yl to jalsuejl a se asealgns Lions leajl of aossaq i!wjed (11) jo 'aseaq slLil japun aassaq aLil Aq ilnelep to Juana up eq (!) 'josse-1 to uo!ido ayi 1e 'lleys asealgns paliodjnd jo paldwalle Lions pue 'loage jo eojol ou to pue p!oA eq Ileys easselgns aA!leind 9y1 of aseaq slyl ut isajalu! jay/s!y 10 Ile Ailegueisgns jo lie to aassaq uegl ayl Aq jalsumi a 'asinftp of papuelu, s! jo se loege o!wouooe awes aLil AIle!luelsgns aney jo '01 lualen!nbe � lluiluelsgns eq o1 peumejap s! Lioigm ses!weid ayi to asealgns poiAodind Auy -pueq peseag ayi to aassalgns Aue pue aassaq 841 uaamgeq 'sluawaaj6e Iwo lie to Ilnl ui pas!Ape aq of Pug 'sluawaaj6e uauunn Ile to saldoo aA!aoaj of 'aassaq ay1 of lsenbei uau!jm uodn 'ly61j ayl aney saw!1 Ile le Ileys jossaq -aassalgns aA!leind ayl of aseaq slyl ul iseJOILll jay/s!y 10 Ile AIle1lue1sgns JO Ile to aassaq uayl eqj Aq jelsuejl a 'as!n6slp o1 popualu! We jo 'se loalla olwouooe awes ayi AIleiluelsgns aney lou op '01 lualeA!nbe Alleguelsgns Jou eje seseelgns Lions l! (sluawisn(pe Ieluej to Joedsaj u!) 9.0 Licimbejed to suo!s!Aojd jaylinl ayi wojl idwaxe eq Aluo Ileys (e)(E)90 uo!loes u! 01 pajjejej sjelsuejl leLil sa!ljed ayi to wee aq) s! 11 •sesealgnS to ;!pnd •Q -jelsueil ldwaxa Aue loalla of pasn sluawnoop Ile to sa!doo yi!M aossaq ys!ujnl Ileys aassaq `jeAemoLl `pep►noad :(£)9'E Lideibuied u! peouejejej „sjalsuml ldwaxa„ ayl jol pannbei lou si luasuoo s,jossaq •uo!;ewjolul jelsuejl;dwex3 •3 •elujolpeo ujaylnoS ui slesimcIde lepuap!saj ul peoua!jadxe pue elujol!Ie3 to ajeiS ayi ui sseu!snq lonpuoo 01 pasueo!I jes!ejdde I` Vq up Aq palonpuoo eq Ileys 9-b ydeibuled slyl japun aassaq jo jossaq Aq pauo!ss!wwoo les!ejdde /buy -sleslejdde omi ayi to 96ejane eql (!!) jo 'Jelsuejl ayl j01 uo!lejep!suoo palels ay1 (I) to jaleej6 ayl aq Ileys sluawAed leluaj pue lua)j anleA saleS lenJod ebejany 6upalnoleo to sesodind jol enleA sales Ienloy aLil vo!leldwoo uodn Ies!ejdde 9y1 to Adoo Iinl a yl!M aossaq ap!Aoid Ileys pue aossaq 01 0311ou ayl jaJle sAep (0E) A:p!Lil ueyl jalel ou palaldwoo eq of les!eidde Lions asneo aassaq `Juana Lions ul jas!ejdde Juapuadapu! up Aq palonpuoo eq o1 jalsuml to alep ay; to se uoelegl sluawanojdwi pue aseaq s!yl to enleA 18MJUw j!el ayl to Ies!ejdde us esneo of sioela aassaq leyl jossaq sa!l!lou aassaq ayl liodej ayl pue eo!lou-Lions 6u!Alaoaj jape sAep (91) uaell!l u!yl!m ssalun sluawked Ieluej pue;usH anleA sales lenlod a6ejany 6u!lelnoleo to sesodind jol enIgA saieS Ienlo`d ayi peweep eq Ileys enleA pies pue 'ijodaj Ies!ejdde Lions to Adoo llnl a y;!nn aassaq ep!Aojd pue aassaq ayi /4110u os Ileys JOssaq '(%o l) lueoied uai ueyl ejow Aq aassaq ayi wojl paA!aoaj uo!lewjolu! 8y1 u0 paseq pled aq of uo!lejap!suoo Ielol pejels ayl spaeoxe jossaq Aq pauo!ss!wwoo Jes!ejdde 8y1 Aq peu!wjeleP enleA ayJ ll aassaq ayi wojl uo!lewjolu! pauolluawajole ay1 to jossaq Aq id!eoej jade s�(ep (0E) Alj!yi Ueyi jejel lou pelaldwoo eq Ileys les!ejdde Lions Auy -jelsuea to Enep ayi 10 se uoajayl under this Lease. Notice shall be deemed given by Lessor to Lender five (5) days following deposit in the United States mail, certified and return receipt requested, postage prepaid, and sent to Lender at the address furnished in writing by Lender. C. Modification. Lessor and Lessee agree that they will not modify, surrender or cancel this Lease by mutual agreement without the prior written consent of Lender. D. Rights of Lender. Any Lender holding or the beneficiary of a security interest or lien on this Lease and the leasehold estate created hereby shall have the right, during the term of the Lease, to: (1) perform any act required of Lessee pursuant to this Lease; (2) transfer this Lease to the purchaser at any foreclosure sale, the assignee in the event of an assignment in lieu of foreclosure, or to acquire the interest of Lessee pursuant to foreclosure or assignment and thereafter transfer this Lease to the Lender's successor. Lender shall have no right to transfer this Lease unless and until Lender has cured all defaults requiring the payment or expenditure of money by Lessee. E. Right of Lender to Cure Default. Lessor shall give written notice of any default or breach of this Lease by Lessee to Lender and afford Lender the opportunity, after notice, to: (1) cure the breach or default within ten (10) days after expiration of the time period granted to Lessee for curing the default if the default can be cured by payment of money; (2) cure the breach or default within thirty (30) days after expiration of the time period granted to Lessee for curing the default when the breach or default can be cured within that period of time; or (3) cure the breach or default in a reasonable time when something other than money is required to cure the breach or default and cannot be performed within thirty (30) days after expiration of the time period granted to Lessee for curing the default, provided the acts necessary to cure the breach are commenced within thirty (30) days and thereafter diligently pursued to completion by Lender. F. Foreclosure in Lieu of Cure. Lender may forestall termination of this Lease for a default or breach by Lessee by commencing foreclosure proceedings subject to strict compliance with the following: (1) proceedings are commenced within thirty (30) days after the later of (i) expiration of the time period granted to Lessee for curing the default, or (ii) service on Lender of the notice describing the breach or default; (2) the proceedings are diligently pursued to completion in the manner authorized by law; and (3) Lender performs all of the terms, covenants and conditions of this Lease requiring the payment or expenditure of money by Lessee until the proceedings are complete or are discharged by redemption, satisfaction, payment or conveyance of this Lease to Lender. NB1-187371.V2 9 05/24/94 b6/VZI90 0t ZA'ILEL9T-I8N easse-1 pue 'Aq pannbei eq Am go!gnn sas!waJd ag1 uo luaweAojdwi ao ainlonals Aue of sa!edej Jo suo!leaalle 'suo!l!ppe Aue 'apew eq of asneo jo 'a4ew pegs easse-1 'SmEq 411M aouepdwoo •0 -uo!l!puoo tiel!ues pue ales pue i!edaa pue japio poo6 ui luaweAo.idwi aq1 u!elu!ew of tiessooeu se to Mel Aq pai!nbei luaixe agl 01 sasnuaad 8141 uo sluaweAoidwi jaglo pue 'su!eip 'scannas 'sllenn 'sed!d `sa!l!l!ln Ile pai!edaa pue pou!elu!ew 'polonilsuoo aq of asneo Ilegs e8ss8-I uo!1onalsap jo a6ewep 814101 '6u!1pM u! 'paluasuoo seq fossa -1 pue uo!lonjlsuooei ao 6u!lepowei gl!nn uo!lounfuoo u! p@Aojlsep 6u!aq aie sluawanoidwi e4l ssalun 'joeiagl uo!lonilsep ao a6ewep AUL,6u!Mollol pue, pasea, aql uo sluawanoidw! Aue 1onulsuooaa to a!edai lle14s 98ss9-1 •uoll!puoo Apapio pue tiel!ues 'ales 'uealo a ul pue nedai pue lepio pooh u! 'sluawanoidwi jaglo pue sAuM.* )laed 'sgmo 'sNieM 'sa!l!l!oel 'samlonals Ile 'uo!lel!w!I inogl!M '6u!pnlou! 'sos!waad 041 'u!elu!ew pue Bawl Iossa-1 of asuadxa to lsoo Aue 1no41!M pue asea-1 s!g1 10 waa181416u!anp sawn Ile le 'Ilegs aassaq •sas!waJd aql to lied jo 11e lnoge ao uo ui sj!edaa jo sluaweAoidwi 'suolllppe 'suo!leialle 'sebuego Aue *Mew of pai!nbei eq lou Ilegs josse-i 'sluawanoidwl to eoueuetuleW '8 -Mel Aq pel!nbei l! Aouebe Owns aaglo Aue pue uo!ss!wwo0 lelseoo e!uaol!leo eq1 wal sainlonuls u!elu!ew jo/pue lonalsuoo of uo!sslwied u!elgo osle pegs aassaq •sueld pue 'sa!o!lod 'suo!leln6al 'suo!lnlosel 'saoueu!pio A1!O Ile g1!M Aldwoo Allnl pue l!waed A1!o alepdoidde Aq pezuoglne an uo!lonilsuoo pue sainlonuls eq1 se 6uol os sasodand leguop!sai fol pueq paseaq aql uo sainlonuls ulelu!ew pue lonjlsuooaa 'lapouaaJ 'lonllsuoo 'gs!lowep Aew aassaq •sasodand le!luep!sai col Amos aq Ilegs pueq peseaq 841 •pueq paseaq to ash d 30NVN31NIVW CINV 3sn '9 .Mel alels Aq p0p!Aoid se lsnil to peep Aue japun ales to ao!lou jo/pue l!nelep to a3!1ou Aue 10 Adoo a col lsenbei ua11!aM s jossa-1 `asuadxa alos s,aassa-1 le 'piooai 'luawnilsu! Alpnoas jaglo ao peep lsnal Aue to uo!1ep.io3ai 8141 Salle sARP (00 ual u!gl!M 'pegs easse-1 (Z) :aseaq s!ql 01811!1 sploq aapua-1 0141 se 6uol os Aluo asea-1 s!gl aapun easse-1 aq1 to suo!le6!igo ag1 wioped of algE1l aq llegs aapuaq Auy W :19pue-1 Aug pup aassaq jossa-1 of Aldde Ilegs suo!s!Aad 6u!Mollol 0141 •snoauellaos'W 'N -aseal Mau ag1 6upedaid u! aassaq wal ses!waad agl to uo!ssessod bulaanooaj 'asee-1 s1q1 6UIleUIWJa1 u! pennou! (seal s,AouaoAe bulpnloul) sesuedxa pue slsoo algeuoseai pe �(ed `asuel Mau eql to uollnoexe uodn 'pe14s aapuaq (b) -japue-1 Aq pa!pawai aq Algeuoseal ueo legl aassaq Aq pe:a!wwoo goeajq jo llnelap jaglo Aue 'Apawaa 01 6u!1!Jm ul M6e ao '/%Pewaa AIlnl (legs pue'uo!leulwial sl! fol 1nq 'aseal Mau eql to uo!lnoaxe uodn anp aq pinoM legs swns Ile pue Aue Aed pegs japue-1 jossaq Aq aseel Mau eql l0 uo!lnoexe uo (E) •algeopdde jeOuol ou eie jo pall!llnl ueeq Apeaile OAeg golgm asogl fol ldeoxe eseaq s!ql se suo!l!puoo pue swaal awes eql su!eluoo aseal Mau agl (Z) •asea-1 s1q1 to uolleulwaal eql jade sAup (OI;) A1a!g1 uI1411m japue-1 Aq aosse-1 uo panaas s! aseal Mau eq1 fol lsenbei uaU!Jm a141 (1) :p0p!Aoid aessal se Japua-1 g1!M aseal Mau 8 olul .Ialua llegs jossa-I `aassaq Aq goeajq jo llnelop �(ue to asneoeq paleu!wjal aq Jo aleulwiel aseaq s!ql pinogs 'eseaq slgl to uols!Aojd jaglo Aue bu!puelsgl!M10N -Osea-1 MON •0 shall otherwise observe and comply with, any law, statute, ordinance, plan, resolution or policy applicable to the Premises. Lessee shall indemnify, defend and hold Lessor harmless from and against any loss, liability, action, claim or damage, arising out of, or in any way related, to Lessee's failure to comply with, and perform pursuant to, provisions of this subparagraph C. All repairs, additions, and alterations to the structures or improvements on the Premises shall conform to all applicable laws, ordinances, regulations, plans, policies and resolutions and all work shall be performed with reasonable diligence, completed within a reasonable time, and performed at the sole cost and expense of Lessee. D. As Is Condition of Premises. Lessee expressly accepts the Premises "as is" and acknowledges that Lessor has made no representations or warranties as to the suitability of the property or any construction or improvement. Lessee shall conduct all tests necessary to determine the suitability of the property for any proposed construction or improvement, including, without limitation, the amount and extent of any fill, and related factors. Lessee expressly acknowledges that Lessor shall not be liable for any damage or loss resulting from any subsurface or soil condition in, on, or under the Premises or adjacent property. Lessee expressly acknowledges that, while the legislature of the State of California has purportedly removed the public trust restrictions on use of the Property pursuant to the Beacon Bay Bill, the Leased Land may constitute filled tidelands, and Lessor has made no representation or warranty relative to the validity of the Beacon Bay Bill or the power of the legislature of the State of California to remove public trust restrictions on tidelands through legislation. Notwithstanding the foregoing, in the event of any challenge to the right and power of Lessor to lease the Leased Land for the purposes provided in this Lease, Lessor agrees, at its sole cost and expense, to use all reasonable efforts to resist and defend against such challenge and to seek a ruling or judgment affirming and upholding the right and power of Lessor to lease the Leased Land for the purposes provided in this Lease. 7. TAXES AND UTILITIES. It is understood by Lessor and Lessee that this Lease shall give rise to a possessory interest tax obligation and that the execution of this Lease will constitute a reassessment event which may give rise to a material increase in the possessory interest tax currently payable by Lessee under the Pre-existing Lease. Lessee shall pay, before delinquent, all utility charges and any general and special taxes, assessments or other governmental charges, if any, which may be levied on the Leased Land, and/or any improvements, including, without limitation, any possessory interest tax. Any lien for unpaid utilities, taxes, assessments or charges shall not attach to the leasehold interest but only to improvements located on the Leased Land. USE AND MAINTENANCE OF COMMON AREA. Lessee shall have the right to use the streets, beaches, walkways, tennis courts, docks, piens, and common landscaped areas in Beacon Bay (as depicted on Exhibit A) and which are leased to the Beacon Bay Community Association by Lessor in consideration of the maintenance thereof by such Association and rent to be paid by individual Lessees under their respective leases. 9. MAINTENANCE AND IMPROVEMENT OF INFRASTRUCTURE. Lessor has no obligation to install, improve, repair, or maintain streets, curbs, gutters, water lines, sewer lines, drainage facilities, street lighting or other facilities used by the residents of Beacon Bay (Infrastructure). Notwithstanding Section 8 above, Lessor reserves the right, after a five (5) year period following the Effective Date and upon approval by the Lessees representing a majority of the lots in Beacon Bay, to improve and maintain streets, curbs, gutters, water lines, sewer lines', drainage facilities, street lighting, telephone and electricity lines and other Infrastructure facilities in Beacon Bay at its initial cost and to assess Lessee for NB1-187371.V2 11 05/24/94 V6/VZ/90 Z L ZA'LLEL9i-L9N of Ainfu! jo Aliedoid of abewep 10 Nsu Ila sownsse Agaaey easse-1 'bu!o6aaol ayi 10 /(l!leaaue6 ayi bul1!w!I Inoyi!M 'sas!waJd ayi inoge ao u1 easse-1 Aq pajallns jo poulwied aq Am yo!ynn s6u!yl jo Maonn `AlIA110e Aue woal ao easse-1 Aq sas!waJd ayi 10 uolssessod ao asn ay1 of peloeuuoo aauuew Am ui jo woal 6u1sue sallddns ao Iuewdmbe 'sleualew •seowas '>{jom buiAlddns jo 6u!ys!uwnl suo!leaodioo jo swj11 'suosied Ile pua Aue of bulllnsai ao 6ulniooa seel ,sAeuioue algauosuej bulpnpul `Janaoslegm ainleu Aue 10 spumep pue `seil!I!geil 'sw!elo 'sassol sebewep 'sisoo 'suolle6llgo 'uo!loe 10 sasneo 'suolloe Ile pua Am isulebe pue wa1 seeAoldwe pue sluemes 'siva6e 'siaolllo 'suolsslwwoO pue spieog 'llounoO Al!O sl! 'josse-1 sselLuMq ploy Pug pualap 'i4!uwapu! lla14s eessa-1 'ses!waad ayi uo ao u! aesse-1 Aq paaallns jo peu!wled aq Am 14olynn s6ulyi ao lionn `Al!A!loe Aua se Mann se 'saai!Au1 ao sisenb 'saAlleluasaidej `slua6a 'seaftoldwe s,eesse-1 ao 'aasse-1 Aq seslwa'd ayi 10 uolssessod jo asn ayi io 'seslwa'd 814110 uo11lpuo0 ayi of 'paialaa Aum: Aue u! jo '10 Ino 6u!sue 'I!ns jo wlelo yons Am to ewoolno jo iliew ayi to sselpie6aa `seal ,sAeujoua aigauoseai 6ulpnloui •1anaoslegm amieu Aue to spuewep pue se!lll!gell 'swlelo 'sassol 'sa6awep 'sisoo `suolle6llgo 'uolloe to sasneo 'suolloa !le pua Aue lsule6a pue woal seeAoldwe pua simmies 'slua6a `siaoigo 'suolsslwwo0 ipue spieog 'llouno0 Aa!O si! 'josses sselwaey ploy pue pualap '/4!uwapu! Ileys aasse-1 'NOLILVOIdINW3aNl ZL -isaaalut ut sioss000ns s,aasse-1 pua easso-1 uo bulpulq aq hays pua pueq posee-I ayi 14l!nn un.i Ilays suolio!aisaa pue suoli!puoo 'slueuanoo p!eg *aouaaelaj slyl Aq u!aaay paieaodmoui pue oiaaay pa14oeue a 1!q!yx3 u!pauleluoo se suollenaasaJ pue' suollo!JlsaJ 'suoll!puoo 'sivauanoo Ile Aq punoq aq pua ap!ge of saai6e easse-1 'SNOI101alS3a 4NV SNOIlIaNOO 'S1NVN3AOO "LL -aosse-1 10 spiooai I-e!ouaull ayi woal Alelos pue Allenuue paulwaalap aq Ilegs sali!I!oel Al!unwwoo 6ulleaado pue bululelulew 10 sisoo ayi -aseaq slyi 10 yoaaJq leualew a alni!lsuoo ileys Aud of aml!e1 /due pue 'anp lunowe 041 10 aoliou ueu!jm jaile sAep (p£) A1J!y1 u!yl!M pled aq pays josso-1 /(q pennoui sisoo lenuue ayi 10 eiegs elej oad s,easse-1 • (siol omi-Aluanas Alivaiino) /deg uooeag ulyilM siol lelluep!saa 10 aagwnu ayi Aq sisoo s,jossa-i 6ulp!A!p Aq paulwaalap aq flays aaeys eiea oad s,eassa-I •luabe ivawa6euew a Aq pa6ja14o eal ayi ao eel luawa6euew algeuoseei a 6ulpnlou! 'sallll!oel Al!unwwoo ayi 6ulleaado pue 6ululelulew ui sesuadxe algeuosaaa s,iosse-1 to aaeys elei oad a Aed lleys easse-1 'luana yons ul -sa!i!I!3e1 Al!unwwoo eAoidwi ao lleisu! 'aledai 'ulelulew of uolleloossy Al!unwwoO ayi 10 suolle6ligo ayl awnsse 'uo!le6ilgo inoyi!M pue uolido su, le'Am jossa-1 'sall!I!oa1 Al!unwwoo ulelulew of seseeo ao diel uolleloossy Al!unwwoO ayi 1! '6 uolloaS 10 suolslAoad ayi of iuensind Jossa-1 of panJasaa s11461J ayi of uolllppe ul •seeid uowwoO 10 eaueualu!ew aossa-1 •O -eseaq slyi 10 goeaaq Ieualew a ainl!lsuoo Ileus g ydaj6eaed slyi pue y ydej6ered to suolslAad ayi yilnn Aldwoo of einllel s,easse-1 -uolle!oossy ayi Aq possesse ao palAel Aliedoid sa6aego aaylo pue sluawssesse 'seal 'senp p!IeA Ile 'Aouenbullep ajolaq 'uolieloossy ayi of Aed of pue 'uolie!oossV ayi 10 suolieln6ai pue salni Ile pue `snnalAq 'uo!lmodmoul 10 salon_ V ayi Aq ap!ge of saau6e easso-1 •suolleln6aa pue solna yl!m aoue!idwoO •8 •uolieloossy AllunwwoO Aeg uooeog ayi 10 6u!puels pooh u! jegwew a 'ulewaa of esue-1 s1y110 waai ayi 6uunp pue 'awooeq of saaa6e oesse-1 'lueweejbv slyi of luensmd easse-1 10 siy6la eql 10 Aua 10 aouanu!luoo ayi of UOIIIPU03 ssaadxe ue se pup '9sea-1 sly, to uollejap!suoo ayi 10 lied leuaiew a sy •uo!leloossd u! d!ysaagwaW 'v NOI-LVIOOSSV )UlNf1WWOO OL -esea-j slyl 10 weal 6ululawaJ ayi JOAO luaa 10 wJo18141 u1 aassa-1 woal sisoo yons ioalloo of pue 'slsoo yons 10 ejegs em oid e persons in or about the Premises from any cause except for damage or injury resulting from the negligence or willful, fraudulent or criminal conduct by Lessor and/or its officers, employees, agents and representatives, and Lessee hereby waives all claims in respect thereof against Lessor. 13. INSURANCE. A. General Conditions. All insurance required to be carried pursuant to this Section 13 shall be obtained from reputable carriers licensed to conduct business in the State of California. Each policy required to be carried pursuant to this Section 13 shall name Lessee and Lessor as additional named insureds, and shall provide that the policy may not be surrendered, cancelled or terminated, or coverage reduced, without not less than twenty (20) days prior written notice to Lessor. B. Fire Insurance. Lessee shall, during the term of this Lease, insure all structures and improvements on the Leased Land against loss or damage by fire or other risk for residential structures. The insurance shall provide coverage to at least ninety percent (90%) of the full insurable replacement value of all improvements on the Leased Land, with the loss payable to Lessee unless this Lease is terminated by Lessor for default of Lessee in which case the proceeds of insurance shall be paid to Lessor. C. Liability Insurance. Lessee shall, at Lessee's sole cost and expense, procure and maintain during the term of this Lease, a broad form comprehensive coverage policy of public liability insurance which insures Lessee and Lessor against any loss or liability caused by, or in any way related to, the condition, for Lessee's use and occupation, of the premises in amounts not less than: (1) $500,000 per occurrence for injury to, or death of, one person; (2) $100,000 for damage to or destruction of property. 14. DEFAULT. A. Events of Default. The occurrence of any one or more of the following events shall constitute a material default and breach of this Lease by Lessee: (1) the abandonment of the Premises by Lessee; (2) the failure by Lessee to make any payment of rent when due if the failure continues for three (3) days after written notice has been given to Lessee. In the event that Lessor serves Lessee with a Notice to Pay Rent or Quit pursuant to applicable unlawful detainer statutes, such Notice to Pay Rent or Quit shall also constitute the notice-equired by this paragraph; (3) the failure by Lessee to perform any of the provisions of this Lease and any Exhibits attached hereto to be performed by Lessee, other than described in Paragraph 14.14(2) above, if the failure to perform continues for a period of thirty (30) days after written notice thereof has been given to Lessee. If the nature of Lessee's default is such that more than thirty (30) days are reasonably required for its cure, then Lessee shall, not be in default if Lessee commences the cure within said thirty (30) day period and thereafter diligently prosecutes the cure to completion; or (4) the failure of Lessee to provide Lessor with all relevant information regarding the total consideration paid in conjunction with any transfer of this Lease; NB1-167371.V2 13 05/24/94 46/4Z/50 171, aassaq anallaJ lou Ileys 6ulllelaJ ayl 'seslwaJd ayl to uoi:pod a Jo pe slaloi Jossa-, lI -uollos Ie6al /(q anp swns mom of ase@-, ayl to uol3euluua3 illun lieM lou peau Jossaq pue ase@-, ayl ul pal}loads owll ayl le sluewAud yons alsw Keys aassaq 'saslwsJd ayl to uolssassod 03 3y61J s,aassa-, saleulwJal Jossaq legl alep ayl of do aseaq slyl /(q paJlnbaJ slunowe lis /(ed ilsys aassaq `lel@J OR saslwOJd ayl lou Jo JaylegM •alepdoidde sweep 'uoiiejoslp alos sl! le Jossaq se suoli!puOo pue suual yons uo pue `awll of own wolf Jo 'awll Aug le saslwaJd ayl to uorpod a Jo Ile lalaJ 'lou peau inq 'Am Jossa-, '@sea-, slyl of 3uensmd uol,e6ligo Aug to aassaq 6ulnallaJ 'os op of uolloale s,Jossaq to aollou ualllJM ssejdxe to aouasge ay3 ul 'Jo aseaq slyl to einjispol eqi 6ulloage Jo 6uileulwJal 3noy1!M (Z) -pJeMe to awl, eq, le oosloueJd ueg to Nue8 a/uasaH IsJapad ayl to alsJ lunooslp ayl anoge ,ulod e6elueoied ouo le lunowe yons bullunooslp /(q palndwoo aq !let's (!) asnelo ul of paJJalaJ ,unowe ay, to IaeMe to ewll eql le ylJOM ayl -Jossaq o3 annoe s3unowe alep ay3 woe} wnuue Jad (%0 L) ,ueoied uel to aleJ ay, le,saJalul 6ulMolle /(q palndwoo aq Ileys anoge (!) asnelo u, of poijejeJ leyl uey, Jaylo slunowe leluaJ Ile to „pJeMe to awll ayl le y,JOM„ ayl -s,soo algeuoseei Jay,o Aue pue saal ,sAaujoue algsuoseei (uo118Jalle pue uollsnouaJ 'Jnedej /Gessaoau 6ulpnloul) 6uluelaJ to sesuedxe 'uolssassod 6ulaanooaJ 10 1SOo 8y3 'uolleliwil ,noy,lM '6ulpnloul 'yoeaaq ayl woJl llnsaJ of Ale>i!j eq pinoM sbulyl to asJnoo AmulpJo ayl u! yoigm Jo ase@-, s!yl of ,uensJnd suo1186!lgo wJolJad of aJnllel s,eassa-, /(q pasneo AlejewlxoJd luawlalap lie Jol aossaq alesuadwoo o, /(Jessooau lunowe Jaylo Aug (q) pue 'paplons Alcieuoseei aq pinoo sanoid aassaq ueyl ssol ayl to lunowe ayl spaaoxe pJeMe to awl, eq, Ja,le wJal ayl to eoueleq ay, Jol luaJ leuolllppe pue ,uej plsdun ay3 yoigm /(q ,unowe ay, to pjeMe,o awls ayl le y,JOM ayl (e) :6UIM0II01 ayl 'uollellwll lnoyllM 'bulpnloul 'Mel to uolslnoJd Jaylo Aug Jo 'apoO I!n!:D slwol!!e0 ay, to Z1961. uo!,oaS of,usnsand pallljua sl Jossa-, yolyM of s,unowe Ile easse-I wOJI mom of pel,llue aq lleys aossaq 'luana yons ul -Joss@1 of saslw@Jd ay, to uolssassod Japue.uns Alalelpaww! Ileys aassaq pus a,eulwJal Ileys @sea-, slyl aseo yoigm U! 'susaw In!Mel Aug /(q saslwaad pose@-, ay, to uolssassod of ,y6u s,eassa-, aleulwJal W W T L6L81-i9N :6ulMoliol ayl op 'Mel /(q pauiwied salpowei Jo s,y6u Aug of U011!ppe ul '/dew Joss@-, 'y,,t ydeJ6eied u! poullop s,eaassaq /(q linslap AuB to luana ay, uI •salpawaa s,pJolpueq .8 -ao!loN ayl ul sloole os Jossa-, ssalun @sea-, slyl to uolleumal a Jo aJnl!alJol a peweep aq lleys aol3ou yons ON -awll to poped elgeolldde ay3 ulyllM 'aq Am aseo ayl se 'sJeane ul sl leyl 3uej ay3 Aud Jo area-, slyl to suolslnaJd ayl wJolaad aassaq ley3 puewep pet's pue 'suolslnoJd ase@l algeolidde ayl pue llnelep pa6alle ayl A}loeds Ileys d-vL ydeJ68Jsd slyl Japun uanl6 saoRON -sAep (OE) A3a1y3 u!yl!M po6Jeyos!p Sou si aJnzies yons ejegm 'aseaq ayl ul isaJalul s,eassaq to Jo saslwaad ayl le pa3800l slesse s,aassaq to lie -Alls!luelsgns to einzies le!olpnl Jay3o Jo uo!lnoexe 'luewyoe33e ayl Jo 's/(ep (0E) AlJlyl ulyl!M aassaq 03 paJolsaJ lou s! uo!ssessod.ejegm '@sea-, ay3 ul 1saJalul s,aasse-1 to Jo saslwaJd 0141 19 pa3e30l s39sse s,eassa-, to Ile AIleguelsgns to uolssassod oNel of Ja/VaoaJ Jo aalsrul a to luewlulodde ay3 'sAup (09) /4xls ulgvm posslwslp si awes ayl ssalun AoldruNueq o, bul3elaJ Mel Aug l0 3uawebmi a Jo uollezlue6JoaJ Jol uo!lged a Jo 1dniNueq e pa6pnfpe aassaq.aney o3 uo!1ped a to aassaq 3sulube Jo /(q 6ullll ay3'sJollpejo to lllaueq ay3 JO, ,uawa6ueJJe IeJaueb Jo 'Iuawu6issu IeJau96 Aug to aassaq Aq 6upiew ay3 (5) of any obligation pursuant to this Lease; provided, however, Lessor shall apply the rent or other proceeds actually collected by virtue of the reletting against amounts due from Lessee. Lessor may execute any agreement reletting all or a portion of the leased premises and Lessee shall have no right to collect any proceeds due Lessor by virtue of any reletting. Lessor shall not, by any reentry or reletting or other act, be deemed to: (a) Have accepted any surrender by Lessee of this Lease or the leased premises; (b) have terminated this Lease; or (c) have relieved Lessee of any obligation pursuant to this Lease unless Lessor has given Lessee express written notice of Lessor's election to do so. (3) Lessor may terminate this Lease by express written notice to Lessee of its election to do so. The termination shall not relieve Lessee of any obligation which has accrued prior to the date of termination. In the event of termination, Lessor shall be entitled to recover the amount specified in Paragraph 14.6(1). C. Default By Lessor. Lessor shall not be in default unless Lessor fails to perform obligations required of Lessor within a reasonable time, but in no event later than thirty (30) days after written notice by Lessee to Lessor specifying wherein Lessor has failed to perform such obligation. If the nature of Lessor's obligation is such that more than thirty (30) days are required for performance, then Lessor shall not be in default if Lessor commences performance within such thirty (30) day period and thereafter diligently prosecutes the same to completion. D. Stay of Obligations. Neither party shall be under any obligation to perform or comply with its obligations pursuant to this Lease after the date of any default by the other party. E. Determination of Rental Value. In any action or unlawful detainer commenced by Lessor, the reasonable rental value of the Leased Land shall be deemed to be the amount of rent and additional rent (such as reimbursement for costs of Infrastructure improvements or the payment of taxes or assessments) for the period of the unlawful detainer, unless Lessor/Lessee shall prove to the contrary by competent evidence. F. Waiver of Rights. The failure or delay of either party to exercise any right or remedy shall not be construed as a waiver of such right or remedy or any default by the other party. Lessor's acceptance of any rent shall not be considered a waiver of any preexisting breach of default by Lessee other than the failure to pay the particular rent accepted regardless of Leswr's knowledge of the preexisting breach of default at the time rent is accepted. G. Waiver of Right of Redemption. Lessee waives any right of redemption or relief from forfeiture pursuant to Code of Civil Procedure Sections 1174 and 1179 and/or pursuant to' any existing or future statutory or decisional law in the event Lessee is evicted or Lessor takes possession of the Premises by reason of Lessee's default. 15. SURRENDER OF POSSESSION UPON EXPIRATION OR TERMINATION. A. Surrender of Premises. Upon the expiration or termination of this Lease, Lessee agrees to peaceably deliver possession of, and agrees to vacate without contest, legal or otherwise, the Leased Land. Lessor, at its sole discretion, may record a document evidencing the expiration or NB1-187371.V2 15 05/24/94 ZA'TLEL8T-T9N b6/4Z/90 9 1. PUB :8sue-1 s!yl 10 wial 841 to uollealdxe ayi to alae 041016uP{el to alae qyl wal 6u!u!ewej saeaA 10 aagwnu ayi aol lsaaalu! punodwoo wnuue jad (%6) 1uaomadau!u 1e (00' l$) 001101) quo to yljom luesaid ayi jol joloel ay1 Aq amen 194jew i!el Lions buiAld!11nw Ag polunoos!p '6upie1 to elep 041 to se (6u!llemp Lions of saoueualmdde pue 6u111amp ay>` to anlsnloxe) peno.idwi se sas!waJd ay1 to amen 1wlaew nel ayl (e) 6u,mollol 041 to wns ayi of lenbe iunowe ue 01 pall! ue aq Ileys fossa -I aLil W :SM01101 se paleoolle aq IIEys u!ajayl lsaja,ul ployaseal s,aassaq pue sas!waJd 04110 bullel Ielol 041 fol papaenne sabewep pue uoliesuadwoo II`d '6uD181 !8101- pa8nnb 10 u01180011`d 'O -o3ajegj uollelaj ui f%1!I!ge!l aa4lanl Ile woil pesea!ai aq uodnejayl IIe4s sallied ayi pue 'jouwapuoo a41 Aq builel to alep ay1 of do aesse-1 Aq pled aq Ileys u@MB, loejayl uoluod jo pue-i pasea-1 ayl o1 elgeinqulle pue japunejeq aossa-1 01 eassaq Aq a1geAed sa6teyo jaylo pue sleluej Ile 'lied ui jo alogm ul paleu!waal os sl aseaq s!yl ll 'puej pasea-1 p!es 10 bulNe, 10 alep 041 to se eleu!waal pue aseao Ileys uaNel loaaayi uolliod ayi ao pue-I pasea-1 ay101 pue u! @@ssa-1 a41 10 @,else ployaseal ayl uayl 'ulewop luawwo to aamod ay1 aapun 6u!>lel leilied jo bulNel lelol a aq IIe4s ajegl 'loaaay weal ayi buunp 'll '6upjel 10 100113 8 •jouwapuoo ayi ul slsan pue of sassed loaaay, uolliod Jo sas!w@Jd ayl of all!1 yo!LiM uodn alep @yl aq Keys ,builel to alep„ weal 841 (b) •sbulpaeowd Iewaol 10 nail ui ulewop luaulwa to jamod ayi japun bu!Nei a to leaayl aapun Aj!Illn ollgnd jo Alpoylne ,Aoua6e ue 01 Josse-1 /(q @oue/(@nuoo /jelunlon a apnlou! Ileys „6u!)1e1„ Waal ayl (>;) -anoge pau!lap se bulNel le,ol a elnl!lsuoo lou scop yolgm sas!waad a41 to Aluo uo!liod a to 6uiNel 841 ueaw Heys pu!Nel legied„ weal a41 (Z) -sesodind lelluap!saa ayl fol aassa-1 /(q lowayl esn eqj nedw! Allelluelsgns Jo luanaJd of se puej pasea-1 ayl to yonw os 10 bulgy el 04110 ulewop JU@Ulwa to aaMod aLil aapun ses!waad aillue 041 10 6u!Nei 041 ueew IIe4s 9l uo!loag s!yl ui pasn se fimmei 18101„ Luae104-L W 'sw.ial to suo!1!ullaa d 'NIt/WOa 1N3NIW3 '9t •uollejap!suoo ,(ue to luawAed 9y1 lnoyl!M aosse-1 to Apecloid a41 awooeq Ileys 1,ayl '9'91. ydeifted s!y1 ul pap!noid awg aLi1 u!yl!M panowaJ lou OR sluawanadwi pue sbu!pl!nq ayl to Aue luana 841 u! •uo!l!puoo Aliepio pue uealo a u! aosse-1 01 saslwaad ayl to uo!ssassod japueuns pue lenowaI 00118 6u!u!ewai sluawanoadwi ao s6u!pl!nq 041 to shed aaylo pue sugap 'suo!lepunol lie anowaa pue suo!leneoxa Ile II!l Ileys aassa� @sea -I s!Lil to wia1 ay1 to uo!lej!dxa je:ue s�(ep (06) A19ulu ueyi jejei ou alaldwoo aq Ism lenowaa pue aass9-1 to asuedxe pue lsoo alos ay1 ie aq IIe4s luawanadw! ao 6ulpllnq Am jo Ienowa�l pue-I pasea-i 041 uo pallelsu! jo 11!nq sluawanoidwi pue s6ulpl!nq Ile pueq pasea-1 eLil woal anowaJ 01146U 041 aney Heys easse-1 asge-I s!yi to suolsmoid eql to Aue to 11nelep ui uegl lou sl easse-1 ley, u0!1!pu03 uo pue `asea-1 sl4i 10 wiai a41 to uo!lea!dxa ayl uodn •sluawano.idwl to 19AOWOIJ '8 •1uawAud 10 w101 aepw!s ao eouels!sse uo!ie00181 an!aoal 01146u /due sanlEM aassa-I lsa�alu! ployaseal aLil to uo!leu!waal (b) The present worth of rents due during the period from the date of taking to the date of the expiration of the term of this Lease, computed by multiplying the annual rent then payable by the factor for the present worth of one dollar ($1.00) per annum at nine percent (9%) per annum compound interest (Inwood Coefficient) for the number of years in such period. (2) The Lessee shall be entitled to the amount remaining of the total award after deducting therefrom the sums to be paid to Lessor as hereinafter provided. D. Allocation of Award - Partial Taking. All compensation and damages awarded for the taking of a portion of the Leased Premises shall be allocated and divided as follows: (1) The Lessor shall be entitled to an amount equal to the sum of the following: (a) The proportionate reduction of the fair market value of the Premises as improved (exclusive of the dwelling and appurtenances to such dwelling) as of the date of taking, discounted by multiplying such proportionate reduction in fair market value by the factor for the present worth of one dollar ($1.00) at nine percent (9%) per annum compound interest for the number of years remaining from the date of taking to the date of expiration of the term of this Lease; and (b) The present worth of the amount by which the rent is reduced computed by multiplying the amount by which the annual rent is reduced by the factor for the present worth of $1.00 per annum at 9% per annum compound interest (Inwood Coefficient) for the number of years remaining from the date of taking to the date of expiration of the term of this Lease. (2) The Lessee shall be entitled to the amount remaining of the total award after deducting therefrom the sums to be paid to Lessor as hereinabove provided. E. Reduction of Rent on Partial Taking. In the event of a partial taking, the rent payable by Lessee hereunder shall be adjusted from the date of taking to the date of the expiration of the term of this Lease. Such rental adjustment will be made by reducing the basic rental payable by Lessee in the ratio that the Fair Market Rental Value of the Premises at the date of taking bears to the Fair Market Rental Value of the Premises immediately thereafter. 17. ATTORNEYS' FEES. Should either party be required to employ counsel to enforce the terms, conditions and g9venants of this Lease, the prevailing party shall recover all reasonable attorneys' fees and charges (and court costs if applicable) incurred therein, whether or not court proceedings were commenced. 18. REMEDIES CUMULATIVE. The rights, powers, elections and remedies of the Lessor or Lessee contained in this Lease shall be construed as cumulative and no one of them shall be considered exclusive of the other or exclusive of any rights or remedies allowed by law, and the exercise of one or more rights, powers, elections or remedies shall not impair or be deemed a waiver of Lessor's or Lessee's rights to exercise any other. NB1-187371.V2 17 05/24/94 b6/bZ/90 81 ZA'iL£G8i-i9N 'aaylo aql of ao!lou ua111M jopd ,sAep (OE) Alj!gl uodn jossaq jo jossaq Aq palau!wial aq Am Aouepual yluow-of-yluow ayl •/,ouepual gluow-of-yluow a of apeo!!dde eq Am /rayl se jelosui aseaq s!yl jo suo!s!noid ayl of 1oafgns yluow-of-gluow woj1 lueuel a pawaap eq !!eys aassaq uegi 'aassaq woj1 luej sldeooe jossaq pue sallied eql ue@Ageq 6u!1!jm u! luaweei6e Am lnoll!M aseaq slyl to wiel eql 10 uo!lea!dxe aal}e sas!waJd aql 10 uolssessod u! u!ewal I!els aassaq japun 6u!w!e10 auoAue ao 'aassaq 11 'aanaMoH -sallied ile Aq pou61s 6u!1l.iM a ui idaoxa pa!1lpow iauuew Aue u! io 'pepualxe 'paMauej aq louueo aseaq s141 aai6e sallied aq l •uo!loas s!y1 u! pap!nad �(Issa�dxa se idaoxa sas!wa�d ay1 0l ao u! s1g6!a �(ue aassaq an!6 ao aseaq s1410 lemeuaa a alni psuoo lou pegs weal eql 10 uo!lendxe aa:4e aassaq Aq lino 6ulplog Auy 'aseaq sl4110 weal agl 10 uo!lendxe all uodn eollou jay1Jn11noy1!M pion pue pnu awooeq pue eleupiel Ilels aseaq sill 113AO JNla'1OH 'ZZ -uo!leo!unwwoo ao puewep 'oollou yons 10 I!ew saielS Pai!un all u! 1lsodap aqi jap, pue woal sinoq (ZL) oM1-Aluanas 10 uollendxe ayl (!!) ao 'AJan!Iap lenloe (!) to ja!pea aql uodn alaldwoo pawaap aq 11egs aassaq jo jossaq uodn eo!/uas Yong •aassaq all 01 possaippe 1!ew aql y6noayl Adoo a 6u!pues osle pue sespaad all uo weld snono!dsuoo a ul ao!lou eql to Adoo a 6u!x!}1e Aq uall 'punol aq ueo auo ou 11 .d jo :pueq posea-I aql 6uiAdn000 aq Am oqM uo!laaos!p pue obe olquips to uosied awns yl!m Adoo a 6u!ne81 Aq pueq poseaq eql wal luesge si aassaq all 11 .O jo :aassaq Aq pegs!uwnl ssaippe ssou!snq ao eouep!saj aql of 'p!edaid 96elsod yl!M 'paiplaao ao paialsibei 'I!ew salelS Pown aql ul 80110N all builpodep Aq '9 jo 'Alleuosiad aassaq eqi of Adoo a 6ula8n!1ap A8 y :jayl!a pames aq Am 1! 'aassaq uo aossaq Aq pa/uas aq of popualui si ao!lou ll -6ul1 jM u! aassaq of pags!uanl ial;eaaaq eq /,ew se ssaippe aaylo yons 1e ao '89L L-65926 eluaol!IBO 'goea8 jjodMaN '89L l x08 'O'd `Pjenalno8 liodMaN OOEE �aal0 Al!O ao 'aabuuuN 41!0 'aoAeW all 01 passaippe 'goea9 liodMaN 10 40 ayl uo 'p!edaad abulsod qlp 'pa!llpoo ao peials!69J '11ew Aq pa/uas ao uan!6 aq Aew 'aassaq Aq panus ao uanl6 aq of 'Mel Aq ao aseaq s!ql Aq X01 pep!nad sao!lou jo eollou Auy 'S3O11ON 'LZ 'pueq paseaq agl aano uo!1olpsunf 1%mul 6ulneq � o.ua6e ao Apoq leluawuaano6 Jeglo �(ue jo 'yoea8 liodMaN 10 Al!O 'a6ueaO to AlunoO 'e!u�ol!1eO to 81elS aql to sMe1 pue seoueulpio 'salnlels 'suollelnbaa 'sa1ni 11e ql!M Aldwoo 01 saai6e pue slueuanoo aassaq SMVI HIM 3ONVildWOO 'OZ -as-ea-1 slgl 10 suoll!puoo jo suo!lo!alsaj 'sluawaaa6e 'slueuanoo `swjal aqi 10 Aue 10 jo awes eg110 goeaaq 6u!paaoons Aue 10 JanleM a se penjlsuoo eq Keys aseaq s!g110 suo!1!puoo ao suo!loiilsei 'sluawaaj6e `slueuanoo 'swieI aql to Aue 10 goeaaq AUe 10 aan!eM ON •uiejegl ooueosa!nboe Aue ao /(lied aaglo eql 10 1jed aql uo llnelop ao loalbau 'uo!ss!wo qons Aue 10 Jan!eM a se panilsuoo eq pegs jo lemod j01y6u yons Aue nedw! llegs (lied jello eql 10 llnelop jo loal6au uoissiwo Aue woal bulsue laMod j01y6u Aue as!oaaxe 01 i1jed aali!a 10 uolsslwo Jo Aelap ON 'a3AIVM ON 6l 23. QUIET ENJOYMENT. Lessor covenants and agrees that Lessee, upon paying the rent set forth herein and observing and keeping all covenants and agreements to be observed or kept by Lessor hereunder, shall quietly have and enjoy the Leased Land during the term of this Lease without hindrance or molestation by anyone claiming by or through Lessor. 24. SEVERABILITY. If any term or provision of this Lease shall, to any extent be invalid or unenforceable, the remainder of this Lease shall not be affected thereby, and each term and provision of this Lease shall remain valid and enforceable to the fullest extent permitted by law. 25. MISCELLANEOUS. A. Representations. Lessee agrees that no representations as to the Premises have been made by Lessor or by any person or agent acting for Lessor. Lessor and Lessee agrees and acknowledges that this document contains the entire agreement of the parties, that there are no verbal agreements" representations, warranties or other understandings affecting this agreement, and Lessor and Lessee, as a material part of the consideration of this Lease, waives all claims against the other for recision, damages, or otherwise by reason of any alleged covenant, agreement or understanding not contained in this Lease. B. Inurement. Each and all of the covenants, conditions and agreements herein contained shall,' in accordance with the context, inure to the benefit of Lessor and Lessee and apply to and bind Lessor and Lessee, as the case may be, their respective heirs, legatees, devisees, executors and administrators, successors, assigns, licensees, permittees, or any person who may come into possession or occupancy of said Leased Land or any part thereof in any manner whatsoever. Nothing in this paragraph shall in any way alter the provisions herein contained against assignment or subletting. C. Joint Several Liability. If Lessee consists of more than one person, the covenants, obligations and liabilities of Lessee pursuant to this Lease shall be the joint and several covenants, obligations and liabilities of such persons. D. Captions. The section and paragraph captions used in this Lease are for the convenience of the parties and shall not be considered in the construction or interpretation of any provision. E. Gender. In this Lease, the masculine gender includes the feminine and neuter and the singular number includes the plural whenever the context so requires. NB1-187371.V2 19 05/24/94 ZA'SLfL9I—i9N 46/4Z/SO QZ V L i` �s V- 1 :33SS31 I,3Na0i-LV hll l v % :N80d Ol sv (19 0oHddv �'�1a310 1.110 :1S311t/ HOAM :011!1 'HOd38 laOdM3N d0 AIIO :HOSS31 •uauunn anoge 1sig alep aq1 10 se polnoaxa aq o1 aseal slyl pasneo aneq salped aql '303U3HM SS3NlIM NI \ \ XE d s. 0 , 7 Z 4 N N cn • � oa e- u m �, � �o +�+ S .��• � � � o-;� .fie Td o �� ��►� �.{ o •� J60 f � c' � •a � _ O, • �� � ` 3 � ' 0 a4 TIN• � �� � .� .� � Imo-+ `3 Z CL Ma Q1 Al 116 oL 7 T Cs� S ✓ °d a- � s I�� Wkk, m �'I v I1 I i °� (fro S. °d 0 A p' tE �. OAD �f. ,,�� 1 1r nQOR �a gGlldh,�= ./1 'IS'D ` m Of ?jd�• m IN _ g I p. .►iS �, r 6° ' r. T N N��Dy,. A Exhibit A EXHIBIT B Beacon Bay Lot 55 described as follows: Lot 55 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. SUMMARY OF SALIENT FACTS AND CONCLUSIONS - continued SUMMARY OF VALUE INDICATIONS: Existing (1st year) Unencumbered Fair Market Contract Effective Lot No. Fee Lot Value Rental Value Rent Net Rent Water Front Lots A $1,330,000 $48,520 $23,125.08 $31,940.00 B $1,200,000 $43,320 $12,506.85 $22,270.00 C $1,031,000 $37,560 $16,625.04 $22,480.00 1 $947,000 $34,200 $8,020.80 $15,030.00 2 $1,131,000 $41,640 $8,825.40 $17,950.00 3 $1,263,000 $46,920 $24,250.08 $31,560.00 4 $1,318,000 $49,120 $10,458.96 $21,260.00 5 $1,341,000 $50,120 $20,012.04 $28,840.00 6 $1,386,000 $51,680 $25,000.00 $34,260.00 7 $1,210,000 $44,800 $24,999.96 $31,870.00 8 $1,177,000 $43,480 $43,750.00 $43,480.00 9 $1,298,000 $47,840 $42,500.04 $44,350.00 10 $1,342,000 $49,600 $24,999.96 $33,540.00 � 11 $1,122,000 $41,280 $9,020.52 $17,020.00 12 $1,100,000 $40,400 $14,250.00 $22,190.00 13 $1,100,000 $40,400 $23,625.00 $29,450.00 14 $1,243,000 $45,640 $10,312.56 $19,690.00 15 $1,265,000 $46,520 $10,836.47 $20,240.00 16 $1,067,000 $39,080 $8,508.48 $16,480.00 17 $1,067,000 $39,080 $16,250.04 $21,750.00 18 $1,067,000 $39,080 $8,508.48 $16,480.00 19 $1,243,000 $45,640 $10,020.02 $19,500.00 20 $1,147,000 $42,320 $8,727.84 $17,910.00 21 $1,058,000 $38,760 $20,224.50 $26,660.00 22 $1,036,000 $37,880 $41,250.00 $37,880.00 ES 1 $1,037,000 $37,880 $28,749.96 $31,920.00 ES 2 $1,037,000 $37,880 $24,625.00 $29,220.00 Subtotals: $31,563,000 $1,160,640 $519,983.08 $705,220.00 Exhibit C m Page 1 Z aped - 0 l!q!gx3 00'91VL$ 88'££9`£$ SZ£`91$ 000`££9$ 09 00'SLI`ZT$ 00'9ZT`01$ SZO`9I$ 000`9W 69 00'L00`01$ 00'09L`9$ L£I`91$ 000`829$ 89 00'LZ17`L$ 91'199`£$ L£L`91$ 000`9175$ LS 00'916`L$ 96'£09`£$ SL£`LT$ 000`L99$ 95 00'998`Z1$ 170'SZ9`01$ 9L0`LI$ 000`695$ SS 00'LZZ`L$ 88'1717£`£$ L86`91$ 000`0£9$ 179 00'Z617`8$ 00'6L17`17$ Z91`81$ 000`889$ £9 00'LZ6`£1$ 00'09L`Zi$ L£I`91$ 000`8ZS$ ZS 00'LS8`L$ 9£'08L`£$ L£8`S1$ 000`OZ9$ IS 00'Ot7Z`L$ 9L'699`£$ 056'9 1$ 000`£Z9$ OS 00'L6I`L$ 91'155`£$ L£8`5I$ 000`OZS$ 617 00'50£`6$ 96'617Z`9$ 9LL`91$ 000`199$ 817 00'99£`L$ 9£'6917`£$ 9L17`91$ 000`6£S$ L17 00'Z617`8$ 179'17917`17$ Z91`81$ 000`889$ 917 00'066`L$ 178'990`17$ 00£`LT$ 000`995$ 917 00'L8L`L$ OZ'Z£8`£$ L£0`LT $ 000`895$ 1717 00'Z£Z`£T$ 00'09Z`11$ Z96`91$ 000`995$ £17 00'ZL9`L$ 00'96L`£$ Z99`91$ 000`8179$ Z17 00'00£`L$ 179'61L`£$ 009`91$ 000`£IS$ 117 007LS`£1$ 09'££1`11$ Z91`81$ 000`889$ 017 00'LSS`TT$ 170'SZI`6$ L£I`91$ 000`8ZS$ 6£ 00'L96`L$ 9£'08L`£$ L£8`91$ 000`OZS$ 8£ 00'900`91$ 00'SZ9`171$ 9ZL`91$ 000`LTS$ L£ 00'ZL9`L$ 00'56L`£$ Z99`9I$ 000`8179$ 9£ 00'08L`L$ 8Z'9LL`£$ 000`LT$ 000`699$ S£ 00'0617`8$ 179'17917`17$ OOZ`81$ 000`689$ 17£ 00'L0£`L$ 80*L09`£$ L£1`91$ 000`8ZS$ ££ 00'LIZ`L$ 817'889`£$ L£8`93 000`OZ9$ Z£ 00'919`01$ 00'09L`8$ 9ZL`9I$ 000`LT9$ I£ 00'ZOI`L$ 91'199`£$ Z917`91$ 000`019$ 0£ 00'OL17`5I$ 00'9L£`51$ 059`91$ 000`819$ 6Z 00'98L`L$ ZL'L£I`17$ 9LL`91$ 000`Z179$ 8Z 00701`L$ 1717'9£17`£$ Z16`91$ 000`619$ LZ 00'Z176`9$ ZL'LI17`£$ Z19`91$ 000`115$ 9Z 00'LL6`9$ ZI'66£`£$ L£S`ST$ 000`609$ SZ 00'L68`8$ 170'SZI`9$ L£Z`SI$ 000`109$ 17Z 00'L6Z`9$ Z£'Z8L`Z$ L817`171$ 000`8L17$ £Z sio-I ioualul luag laN 1ua21 anI2A I21uaZI anIEA 10I a03 -ON 10-I anpoa33g lo-eiluoD 10:11EW IIE3 palaqumouaun (Max ISI) 8utlsixg FA panuiluoo - SNOISfl IDNOD CNV S LDd3 IN2:['TVS 30 A2IVY0'nS SUMMARY OF SALIENT FACTS AND CONCLUSIONS - continued V . Unencumbered Fair Market Lot No. Fee Lot Value Rental Value Interior Lots - continued 61 $588,000 ES 3 $474,000 ES 4 $467,000 ES 5 $470,000 ES 6 $468,000 ES 7 $461,000 ES 8 $471,000 Subtotal Int.: $23,786,000 $18,162 $14,225 $13,962 $14,075 $14,000 $13,737 $13,925 Existing Contract Rent $4,436.16 $8,750.04 $3,021.96 $10,000.08 $2,982.96 $2,966.04 $3,118.08 (1st year) Effective Net Rent $8,482.00 $10,325.00 $6,322.00 $11,415.00 $6,310.00 $6,057.00 $6,455.00 $724,637 $254,617.16 $397,807.00 Subtotal W.F.: $31,563,000 $1,160,640 $519,983.08 $705,220.00 Grand Totals: $55,349,000 $1,885,277 $774,600.24 $1,103,027.00 Exhibit C = Page 3' Distribution of Rents and Tax Advantage between Tidelands and Uplands* Beacon Bay 6/6/94 - Page 1 Exhibit D (1st year) Proportionate Proportionate Annual Amort. Tidelands Effective % % Rent Rent of PV of Tax Tax Lot No. Net Rent Tidelands Uplands Tidelands Uplands Advantage Advantage Waterfront Lots A $31,940.00 100% 0% $31,940 $0 $0 $0 B $22,270.00 100% 0% $22,270 $0 $930 $930 C $22,480.00 100% 0% $22,480 $0 $1,410 $1,410 1 $15,030.00 100% 0% $15,030 $0 $2,080 $2,080 2 $17,950.00 100% 0% $17,950 $0 $2,260 $2,260 3 $31,560.00 100% 0% $31,560 $0 $560 $560 4 $21,260.00 100% 0% $21,260 $0 $2,610 $2,610 5 $28,840.00 100% 0% $28,840 $0 $1,620 $1,620 6 $34,260.00 100% 0% $34,260 $0 $0 $0 7 $31,870.00 95% 5% $30,276 $1,594 $0 $0 8 $43,480.00 50% 50% $21,740 $21,740 $0 $0 9 $44,350.00 5% 95% $2,217 $42,132 $0 $0 10 $33,540.00 0% 100% $0 $33,540 $0 $0 11 $17,020.00 0% 100% $0 $17,020 $3,200 $0 12 $22,190.00 0% 100% $0 $22,190 $1,130 $0 13 $29,450.00 0% 100% $0 $29,450 $0 $0 v 14 . $19,690.00 0% 100% $0 $19,690 $2,880 $0 15 $20,240.00 20% 80% $4,048 $16,192 $2,980 $596 16 $16,480.00 95% 5% $15,656 $824 $2,640 $2,508 17 $21,750.00 100% 0% $21,750 $0 $2,420 $2,420 18 $16,480.00 100% 0% $16,480 $0 $2,640 $2,640 19 $19,500.00 100% 0% $19,500 $0 $2,880 $2,880 20 $17,910.00 100% 0% $17,910 $0 $2,470 $2,470 21 $26,660.00 100% 0% $26,660 $0 $0 $0 22 $37,880.00 100% 0% $37,880 $0 $0 $0 ES 1 $31,920.00 100% 0% $31,920 $0 $0 $0 ES 2 $29,220.00 100% 0% $29,220 $0 $0 $0 Waterfront Subtotal: $705,220.00 $500,848 $204,372 $34,710 $24,984 Beacon Bay 6/6/94 - Page 1 Exhibit D d l!glgx3 Z 03ud -176/9/9 Ag uoaeag 0$ 099$ 91£'L$ 0$ %OOI %0 00'91VL$ 0$ 0$ SLI'ZI$ 0$ %001 %0 00'9L1'ZT$ 0$ 0$ L00'O1$ 0$ %OO I %0 00'L00'O I $ 0$ OOL$ LZ17'L$ 0$ %001 0/0 00'LZ17'L$ 0$ OL17$ 916'L$ 0$ 010001 %0 00'9I6'L$ 0$ 0$ 998'Z1$ 0$ %001 %0 00'998'ZI$ 0$ 009$ LZZ'L$ 0$ %001 %0 00'LZZ'L$ 0$ 0£L$ Z617'8$ 0$ %001 %0 00'Z617'8$ 0$ 0$ LZ6'£1$ 0$ 0/0001 %0 00'LZ6'£1$ 0$ 011$ L98'L$ 0$ %001 0/00 00'L98'L$ 0$ 0£9$ 017Z'L$ 0$ %001 %0 00'017Z'L$ 0$ OZ9$ L61'L$ 0$ %001 %0 00'L6I'L$ 0$ 009$ 90£'6$ 0$ %001 %0 00'50£`6$ 0$ 019$ 99£'L$ 0$ 0/001 %0 00'99£'L$ 0$ OZL$ Z617'8$ 0$ %001 %0 00'Z617'8$ 66$ 099$ Z6L'9$ 861'1$ %98 0/09I 00'066'L$ 0$ 0£9$ L8L'L$ 0$ MOT %0 00'L8L'L$ 0$ 0$ Z£Z'£T$ 0$ %001 %0 007£Z`£3 0$ 069$ ZL9'L$ 0$ %OOT %0 00'ZL9'L$ 0$ 019$ 00£'L$ 0$ %001 %0 00'00£'L$ 0$ 0$ 0$ ZL9'£1$ %0 %OOT 00'ZL9'£I$ 0$ 0$ 0$ L99'11$ %0 %001 00'L99'II$ 0$ 0$ 08$ L88'L$ %1 %66 00'L96'L$ 0$ 0$ 99Z'17I$ 09L$ %96 %9 00'900'91$ 0$ 069$ ZL9'L$ 0$ %001 %0 00'ZL9'L$ 0$ 089$ 08L'L$ 0$ %OOT 0/00 00'08L'L$ 0£L$ 0£L$ 0$ 0617'8$ %0 %001 00'0617'8$ 099$ 099$ 0$ LO£'L$ %0 %001 00'LO£'L$ OZ9$ OZ9$ 0$ LIZ'L$ %0 %001 00'LIZ'L$ 861$ 099$ T9£`L$ 1791'£$ %OL °100£ 00'919'01$ 0$ 089$ ZOI'L$ 0$ %001 %0 00'ZOI'L$ 0$ 0$ OL17'91$ 0$ %001 %0 00'OL17'91$ 017L$ 017L$ 0$ 98L'L$ 0/00 010001 00'98L'L$ 099$ 099$ 0$ ZOT'L$ %0 %001 00'ZOI'L$ £OL$ OIL$ 69$ £L8'9$ %1 01066 00'Z176'9$ T£$ 0£9$ 829'9$ 617£$ %96 0/09 00'LL6'9$ 0$ 06£$ L68'8$ 0$ %OOT 0100 00'L68'8$ 0$ 099$ L6Z'9$ 0$ %001 %0 00'L6Z'9$ a8eMMApy a8eluenpy spueldfl spuelaM spueldfl spuelaRl, luag laN xe 1, x101 do Ad 30 jua2T 7ua-d % % aAg0Qjjd spuelap!l, •uouzy lenuuy a umpiodosd aleuotuodold (seax1sI) *spuL,Orl pue spuelap!j, uaaN aq 03eluenpy nj pue slu?213o uopngpistQ a 09 69 89 L9 99 99 179 £9 ZS 19 09 617 817 L17 917 917 1717 £17 Z17 I17 017 6£ 8£ L£ 9£ 9£ 17£ ££ Z£ I£ 0£ 6Z 8Z LZ 9Z 9Z 17Z £Z slo'T ioualul .oN l07 Distribution of Rents and Tax Advantage between Tidelands and Uplands* Add Waterfront: $705,220.00 Grand Total: $1,103,027.00 of Total: 100% (1st year) Proportionate Effective Lot No. Net Rent Interior Lots - continued 61 $8,482.00 ES 3 $10,325.00 ES 4 $6,322.00 ES 5 $11,415.00 ES 6 $6,310.00 ES 7 $6,057.00 ES 8 $6,455.00 Interior Lots $720 Subtotal: $397,807.00 Add Waterfront: $705,220.00 Grand Total: $1,103,027.00 of Total: 100% *Effective Net Rents consider tax advantage. Discount rate for present value of annual advantage is 6%. Rate for amortization of advantage is 7%. Rent and advantage figures are from 10/8/93 appraisal. Lots 3, 7, and 21 have been adjusted for new contract rent real estate taxes. Beacon Bay 6/6/94 - Page 3 Exhibit D Proportionate Proportionate Annual Amort. Tidelands % % Rent Rent of PV of Tax Tax Tidelands Uplands Tidelands Uplands Advantage Advantage 0% 100% $0 $8,482 $720 $0 100% 0% $10,325 $0 $320 $320 100% 0% $6,322 $0 $500 $500 85% 15% $9,703 $1,712 $0 $0 0% 100% $0 $6,310 $500 $0 0% 100% $0 $6,057 $650 $0 0% 100% $0 $6,455 $410 $0 $109,592 $288,215 $19,930 $5,251 $500,848 $204,372 $34,710 $24,984 $610,440 $492,587 $54,640 $30,235 55% 45% 100% 55% *Effective Net Rents consider tax advantage. Discount rate for present value of annual advantage is 6%. Rate for amortization of advantage is 7%. Rent and advantage figures are from 10/8/93 appraisal. Lots 3, 7, and 21 have been adjusted for new contract rent real estate taxes. Beacon Bay 6/6/94 - Page 3 Exhibit D RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Manager's Office City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Recorded in the County of Orange, California Gary L. Granville, Clerk/Recorder 22.00 19960103476 08:46am 03/04/96 005 12005338 12 25 1111 3 7.00 6.00 0.00 0.00 0.00 9.00 MEMORANDUM OF LEASE This MEMORANDUM OF LEASE is entered into as of the --:,&, day of June 1994, by and between THE CITY OF NEWPORT BEACH, a chartered municipal corporation ("Lessor'), and GEOFFREY WYETH MC KENZIE AND DOMINIQUE MCKENZIE, ("Lessee"), to witness that Lessor and Lessee executed a lease dated December 1. 1992, a memorandum of which was recorded on , 19_, as Instrument in the Official Records of Orange County. By said lease, the Real Property described below was leased to Lessee until July 1, 2006. The parties agree to terminate said lease as of the Commencement Date set forth below, and to discharge and release each other from all obligations under said lease as of said date (other than delinquent rent or other charges, if any, owed by Lessee pursuant to said lease as of the termination). Lessor hereby leases to Lessee, commencing on July 1, 1994 (the "commencement Date"), and ending on July 1, 2044, on the terms and conditions set forth in that certain lease by and between the parties hereto executed concurrently herewith, all the terms and conditions of which are made a part hereof as though fully set forth herein, those certain premises in the City of Newport Beach, County of Orange, State of California (the "Real Property"), described as follows: Lot 55 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. -• - �� 11 PA - - STATE OF CALIFORNIA COUNTY OF OIRANGE e executed this Memorandum of Lease as of the date first about LESSOR: CITY OF NEWPORT BEACH B 'y Mayor LESSEES: On June 1994, before me, , a Notary Public i nd for said State, personally ppeared personally k wn to me (or proved to me on th basis of satisfactory evid nce) to be the perso (s) whose name(s s/are subscribed to the within instru nt and acknowledgecyto me that he/she/the executed the s me in his/her/their authorized capacity(i ), and that by his/ er/their signature(s) on th instrument a person(s), or the entity upon behalf of w ich the person(s acted, executed the instrume . WITNESS my ha?o and off icip& seal. Signature STATF OF r.Al IFnRNIA (Seal) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No. 5907 State of I I _�rn_La_ County of On before me,C� v �Z 6/(C. DATE NAME, TITLE OF OFFICER - E.G., "J NE DOE, NOTY P BLIC" M r personally appeared U '_.1 NAME(S) OF SIGNE`R(S) I ❑ personally known to me - OR - proved to me on the basis of satisfactory evidence to be the person(�s i whose namea) -i-s subscribed to the within instrument and ac - 1i o 'ni c a c - knowledged to me that f /�- xecuted the same in h_L%hei ' authorized capacit ies , and that by hisser hel signaturcgY-,on the instrument the person -Us or the entity upon behalf of which the persol ; s acted, executed the instrument. Monica S. Kutz ; WITNESS my hand and official seal. Comm #1013469 (� NOTARY PUBLIC CALIFORNIA"' ORANGE COUNTY '4 Gmm Eyiros Jin 13, 1!!1 Ya 1 SIGNATURE OF NOTA OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL 1-1ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) DESCRIPTION OF ATTACHED DOCUMENT Owo �; C �I \ TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE 01993 NATIONAL NOTARY ASSOCIATION • 8236 Remmet Ave., P.O. Box 7184 • Canoga Park, CA 91309-7184 State of California County of Orange On �— before me, Monica S. Kutz. Notary Public, personally appeared 01n Eel 19 personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence CAPACITY CLAIMED BY SIGNER Individual Corporate Officer Limited Partner General Partner Attorney -in -Fact Trustee(s) Guardian/Conservator Other: Si ner is Representing: j� 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), orthe entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. DESCRIPTION OF ATTACHED DOCUMENT `y� SL -*- Titl4jor Type of Document Number of Pages Date of Document Signer(s) Other Than Named Above Mwiica S. Kutz V Comm. 0 #1013469 ^ NOTARY PUBLIC CALIFORNIAN' ORANGE COUNTY Comm Fy;*ns Jan 13. 1998 CAPACITY CLAIMED BY SIGNER Individual Corporate Officer Limited Partner General Partner Attorney -in -Fact Trustee(s) Guardian/Conservator Other: Si ner is Representing: j� 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), orthe entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. DESCRIPTION OF ATTACHED DOCUMENT `y� SL -*- Titl4jor Type of Document Number of Pages Date of Document Signer(s) Other Than Named Above LEASE TRIS LEASE, made and entered into this ( day. of PC PGS /,F 0- , 19 G� by and between the CITY OF NEWPORT BEACH, a chartered municipal corporation, hereinafter "Lessor," and GEOFFREY WYETH MC KENZIE AND DOMINIQUE MC KENZIE, husband and wife hereinafter "Lessee." RECITALS A. Lessor holds title to and is the owner of certain harbor frontage and tidelands, together with certain uplands abutting thereon known as Beacon Bay and more particularly described as Exhibit "1," attached hereto and made a part hereof by this reference. B. The "Westerly Portion" of the Beacon Bay property has been divided into individual lots and leased for residential purposes. C. Lessor believes it to be in the best interest and welfare of said Lessor that the portion of Beacon Bay which is currently leased for residential purposes remain residential in character. D. It is the judgment of Lessor that the leasing of the property hereinafter described is consistent with the trust purposes imposed upon such portions of the leased lands which may constitute tidelands as authorized by Chapter 74, Statutes of 1978. E. It is further the judgment of City that in entering into this Lease in the future, City is acting pursuant to its proprietary powers. NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING RECITALS AND THE MUTUAL AGREEMENTS SET FORTH BELOW, LESSOR AND LESSEE HEREBY AGREE AS FOLLOWS: 1. DESCRIPTION OF LEASED PREMISES. Lessor hereby leases, and Lessee hereby accepts this Lease of the real property described in Exhibit 112," attached hereto and made a part hereof by this reference under the terms and conditions as set forth below ("hereinafter the "Leased Land"). 2. TERM. Unless terminated sooner as provided herein, the term of this Lease is for a period commencing on the day of , 19_, and ending on the 1st day of July, 2006. 3. BASE RENTAL. As base rental, Lessee agrees to pay to Lessor the sum of Eight Hundred and Eighty -Five and 42/100 DOLLARS ($ 885.42 ) per month, payable on the .1st day of each month so long as this Lease remains in effect subject to a base rental adjustment, as provided in paragraph 4 below. Said rental payment is deemed to be the fair market value of the Leased Land as an improved subdivision lot. B. Furnish to lessor the express agreement of the proposed transferee or encumbrance assuming, and agreeing to perform, all of the obligations under this Lease; C. Pay to Lessor a transfer fee of $50.00; and D. Pay to Lessor the adjusted base rental which shall be the greater of the following: (1) The base rental as set forth in paragraph 3 above, or (2) An amount, equal to two and one half percent (2-1/2%) of the actual sales value of the leasehold estate including the improvements thereon, divided by twelve (12) and payable monthly. The actual sales value shall be the total value - of the transfer, as established by the Assessor of Orange County or verified by lessor. The parties to said transaction shall furnish Lessor with any information regarding the transaction as Lessor may deem necessary to verify the total value of the transaction. If said transfer transaction cannot be verified by normal and accepted methods of verification, Lessor, at its sole discretion, may cause the leasehold estate and improvements thereon to be appraised to establish the fair market value of the property, which value shall be deemed the actual sales value thereof, as of the date of transfer, and establish thereby the adjusted base rental. The adjusted base rental shall become effective on the date of transfer. The provisions of this subparagraph shall not cause an adjustment of rentals if: A. Lessee is assigning his interest in this Lease to a Trustee under a Deed of Trust for the benefit of the lender as provided in paragraph 5, below; or B. The transfer is caused by the death of a spouse and the full interest of the deceased spouse is transferred to the surviving spouse. 5. ENCUMBRANCES. If the Lessee assigns his interest in this Lease to a Trustee under a Deed of Trust (hereinafter called "Trust Deed") for the benefit of the lender hereinafter called "Encumbrancer"), such encumbrance shall be upon and subject to the following covenants and conditions: A. Said Trust Deed and all rights acquired thereunder shall be subject to each and all of the covenants, conditions and restrictions set forth in this Lease and to all rights and interest of the Lessor hereunder, except as herein otherwise provided. B. In the event of any conflict between the provisions of this Lease and the provisions of any such Trust Deed, the provisions of this Lease shall control. C. Any Encumbrancer which is an established bank, savings and loan association or insurance company, and is the purchaser at a foreclosure sale, or is an assignee under an assignment in lieu of foreclosure shall be liable to perform the written request executed and acknowledged by lessor for a copy of any notice of default and of any notice of sale under the Trust Deed as provided by the statutes of the State of California relating thereto. F. Lessor agrees that it will not terminate this Lease because of any default or breach hereunder on the part of Lessee if the Encumbrancer under such Trust Deed, within ninety (90) days after service of written notice on the Encumbrancer by Lessor of its intention to terminate this Lease for such default or breach, shall: (1) Cure such default or breach if the same can be cured by the payment or expenditure of money provided to be paid under the terms of this Lease; provided, however, that for the purpose of the foregoing, Encumbrancer shall not be required to pay money to cure the bankruptcy or insolvency of Lessee or to satisfy Lessee's obligations under paragraph 12 hereof, "Indemnification," or (2) If such default or breach is not so curable, cause the Trustee under the Trust Deed to commence and thereafter to diligently pursue to completion steps and proceedings for judicial foreclosure, the exercise of the power of sale under and pursuant to the Trust Deed in the manner provided by law, or accept from the Lessee an assignment in lieu of foreclosure; and (3) Keep and perform all of the covenants and conditions of this Lease requiring the payment or expenditure of money by Lessee until such time as said leasehold shall be sold upon foreclosure pursuant to the Trust Deed, be released or reconveyed thereunder, sold upon judicial foreclosure or transferred by Deed in lieu of foreclosure; provided, however, if the holder of the Trust Deed shall fail to refuse to comply with any and all of the conditions of this paragraph, then and thereupon Lessor shall be released from the covenant of forbearance herein contained. 6. USE. The Leased Land shall be used solely for residential purposes and any appurtenant uses associated therewith. Lessee agrees to comply with all laws, regulations and ordinances of Lessor, the County and State affecting the Leased Land and any improvements located thereon. 7. TAXES AND UTILITIES. It is understood by Lessor and Lessee that this Lease may give rise to a possessory interest tax obligation. Lessee shall pay, before delinquent, all utility charges and any general and special taxes, assessments or other governmental charges, if any, which may be levied on the Leased Land, including any improvements located thereon or associated therewith, or any possessory interest therein arising out of or based upon the leasehold interest throughout the term hereof. Satisfactory evidence of such payments shall be made available to Lessor upon demand. Any lien for unpaid utilities, taxes, assessments or charges shall not attach to the leasehold interest but only to improvements located thereon. 8. USE AND MAINTENANCE OF COMMON AREA. Lessee shall have the right to use the streets, beaches, walkways, tennis courts, docks, piers, and common landscaped areas in Beacon Bav Leased Land and all improvements thereto free of weeds and rubbish, and in a clean, sanitary and neat condition. 9. COMMUNITY ASSOCIATION. Lessee agrees to become and during the term of this Lease remain a member in good standing of the Beacon Bay Community Association, and to abide by the Articles of Incorporation, Bylaws and rules and regulations of the Association, now or hereafter existing, and to pay to said Association before delinquency all dues, fees, assessments and other charges from time to time duly levied or assessed in furtherance of the Association's community purpose. 10. _COVENANTS, CONDITIONS AND RESTRICTIONS. Lessee agrees to abide and be bound by all covenants, conditions, restrictions and reservations as contained in Exhibit "3," attached hereto and made a part hereof by this reference. Said covenants, conditions and restrictions shall run with the Leased Land and shall be binding on Lessee and Lessee's successors in interest. 11. INDEMNIFICATION. Lessee agrees that he will hold and save Lessor, its officers, agents and employees harmless from any and all claims or demands of any kind or nature whatsoever arising out of, or incident to, the use and occupancy of the Leased Land, and to indemnify Lessor for any cost, liability or expense caused by or arising out of any injury or death of persons or damage to property which may occur upon or about the Leased Land or caused by or arising out of any activities or omission of Lessee, his agents, employees, licensees, and/or invitees, including, without limitation, injury or death of Lessee, his agents, employees, licensees and invitees and damage to his property or Lessee's property; except for any damage or injury or any kind arising out of the negligence of Lessor, its agents or employees. 12. NON-COMPLIANCE AND TERMINATION OF LEASE. Time and each of the terms, covenants and conditions hereof are expressly made the essence of this Lease. If Lessee shall fail to comply with any of the terms, covenants or conditions of this Lease, including the payment of rental herein reserved, at the time and in the amount herein required, and shall fail to remedy such default within sixty (60) days and thereafter comply with each and every term of this Lease, or if a Lessee shall abandon or vacate the Leased Land, Lessor may, at its option, and without further notice or demand, terminate this Lease and enter upon the Leased Land and take possession thereof, and remove any and all persons therefrom with or without process of law. Lessor may elect to terminate this Lease for any event of default or breach hereof or of the covenants, conditions and restrictions contained in Exhibit 113." Should Lessor elect to terminate, it may recover from Lessee all damages incurred by Lessor by reason of such breach, including, without limitation, the cost of recovering the Leased land, and the worth at the time of such termination of the excess, if any, of the amount of unpaid rent and unpaid charges reserved under this Lease over the amount of the rental loss which lessee proves could be reasonably avoided, for the remainder of the term of this Lease. Such amount shall be immediately due and payable from Lessee to Lessor, together with interest at the rate of 10% per annum from the date owing until paid. The remedies of Lessor specified herein are in addition to and cumulative of any remedies provided Lessor by statute, including the remedies provided in California Civil Code Sections 1951.2, et sect. 13. SURRENDER OF POSSESSION UPON EXPIRATION OR TERMINATION. Upon the expiration or termination of this Lease, Lessee agrees to peaceably deliver possession of the Leased Land to Lessor and unconditionally agrees to vacate the Leased Land without contest, legal or otherwise. Lessee further expressly agrees to 4 waive any and all legal rights it may have to contest vacating the Leased Land and further agrees to release Lessor from any and all claims it may have of whatever nature. Lessee further agrees to waive any relocation assistance or any other assistance from Lessor resulting from vacating the Leased Land. Lessee shall have the right prior to and for a period of ninety (90) days after the expiration of this Lease to -remove any buildings or improvements appurtenant thereto from the Leased Land, except that all streets, walkways, common area landscaping, docks, piers, and any other installation constructed or installed in the common areas, shall be the property of Lessor. 14. EMINENT DOMAIN. A. Definitions of Terms. The term "total taking" as used in this paragraph means the taking of the entire Leased Land under the power of eminent domain or the taking of so much of said Land as to prevent or substantially impair the use thereof by Lessee for the uses and purposes hereinabove provided. The term "partial taking" means the taking of a portion only of the Leased Land which does not constitute a total taking as defined above. The term "taking" shall include a voluntary conveyance by Lessor to an agency, authority or public utility under threat of a taking under the power of eminent domain in lieu of formal proceedings. The term 'date of taking" shall be the date upon which title to the Leased Land or portion thereof passes to and vests in the condemnor. The term "Leased Land" means the real property belonging to Lessor, together with any and all improvements placed thereon by Lessor or to which lessor has gained title. B. Effect of Taking. If, during the term hereof, there shall be a total taking or partial taking under the power of eminent domain, then the leasehold estate of the Lessee in and to the Leased Land or the portion thereof taken shall cease and terminate, as of the date of taking of said Land. If this Lease is so terminated in whole or in part, all rentals and other charges payable by Lessee to Lessor hereunder and attributable to the Leased Land or portion thereof taken shall be paid by Lessee up to the date of taking by the condemnor, and the parties shall thereupon be released from all further liability in relation thereto. C. Allocation of Award - Total Taking. All compensation and damages awarded for the total taking of the Leased Land and Lessee's leasehold interest therein shall be allocated as follows: (1) The Lessor shall be entitled to an amount equal to the sum of the following: (a) The fair market value of the Leased Land as improved (exclusive of the dwelling and appurtenances to such dwelling) as of the date of taking, discounted by multiplying such fair market value by the factor for the present worth of $1.00 at 9% per annum compound interest for the number of years remaining from the date of taking to the date of the expiration of the term of this Lease; and (b) The present worth of rents due during the period from the date of taking to the date of the expiration of the term of this Lease, computed by multiplying the annual rent then payable by the factor for the present worth of $1.00 per annum at 12% per annum compound interest (Inwood Coefficient) for the number of years in such period. 5 (2 ) The Lessee shall be entitled to the amount remaining of the total award after deducting therefrom the sums to be paid to Lessor as hereinafter provided. D. Allocation of Award - Partial Taking. All compensation and damages awarded for the taking of a portion of the Leased Land shall be allocated and divided as follows: (1) The Lessor shall be entitled to an amount equal to the sum of the following: (a) The proportionate reduction of the fair market value of the Leased Land as improved (exclusive of the dwelling and appurtenances to such dwelling) as of the date of taking, discounted by multiplying such proportionate reduction in fair market value by the factor for the present worth of $1.00 at 9% per annum compound interest for the number of years remaining from the date of taking to the date of expiration of the term of this Lease; and (b) The present worth of the amount by which the rent is reduced computed by multiplying the amount by which the annual rent is reduced by the factor for the present worth of $1.00 perm annum at 12% per annum compound interest (Inwood Coefficient) for the number of years remaining from the date of taking to the date of expiration of the term of this Lease. (2 ) The Lessee shall be entitled to the amount remaining of the total award after deducting therefrom the sums to be paid to Lessor as hereinafter provided. E. Reduction of Rent on Partial Taking. In the event of a partial taking, the rent payable by Lessee hereunder shall be adjusted from the date of taking or to the date of the expiration of the term of this Lease. Such rental adjustment will be made by reducing the basic rental payable by Lessee in the ratio that the fair market rental value of the Leased Land at the date of taking bears to the fair market value of the Leased Land immediately thereafter. 15. ATTORNEYS' FEES. Should either Lessor or Lessee be required to employ counsel to enforce the terms, conditions and covenants of this Lease Agreement, the prevailing party shall recover all reasonable attorneys' fees (and court costs if applicable) incurred therein, whether or not court proceedings were commenced. 16. REMEDIES CUMULATIVE. The rights, powers, elections and remedies of the Lessor contained in this Lease shall be constructed as cumulative and no one of them shall be considered exclusive of the other or exclusive of any rights or remedies allowed by law, and the exercise of one or more rights, powers, elections or remedies shall not impair or be deemed a waiver of Lessor's rights to exercise any other. 17. NO WAIVER. No delay or omission of the Lessor to exercise any right or power arising from any omission, neglect or default of the Lessee shall impair any such right or power or shall be construed as a waiver of any such omission, neglect or default on the part of the Lessor or any acquiescence therein. No waiver of any breach of any of the terms, covenants, agreements, restrictions or conditions of this Lease shall be construed as a waiver of any succeeding breach of the same or of any of the terms, covenants, agreements, restrictions or conditions of this Lease. 18. COMPLIANCE WITH LAWS. Lessee covenants and agrees to comply with all rules, regulations, statutes, ordinances and laws A of the State of California, County of Orange, City of Newport Beach, or any other governmental body or agency having lawful jurisdiction over the Leased Land. 19. NOTICES. It is mutually agreed that any notice or notices provided for by this Lease or by law, to be given or served by Lessee, may be given or served by mail, registered or certified, with postage prepaid, on the City of Newport Beach, addressed to the Mayor, City Manager, or City Clerk, 3300 Newport Boulevard, Newport Beach, California 92663, or at such other address as may be hereafter furnished to Lessee in writing. If notice is intended to be served by Lessor on Lessee, it may be served either: A. By delivering a copy to the Lessee personally, or B. If he be absent from the Leased Land by leaving a copy with some person of suitable age and discretion who may be occupying the Leased Land; or C. If no one can be found, then by affixing a copy of the notice in a conspicuous place on the property or also sending a copy through the mail addressed to the Lessee. Such service upon lessor or Lessee shall be deemed complete at the expiration of forty-eight (48) hours from and after the deposit in the United States mail of such notice, demand or communication. 20. HOLDING OVER. This Lease shall terminate and become null and void without further notice upon the expiration of said term. Any holding over shall not constitute a renewal hereof, but the tenancy shall thereafter be on a month-to-month basis and otherwise on the same terms and conditions as herein set forth. 21. MISCELLANEOUS. Inurement. Each and all of the covenants, conditions and agreements herein contained shall, in accordance with the context, inure to the benefit of Lessor and apply to and bind Lessee, his respective heirs, legatees, devisees, executors, administrators, successors, assigns, licensees, permittees, or any person who may come into possession or occupancy of said Leased Land or any part thereof in any manner whatsoever. Nothing in this paragraph shall in any way alter the provisions herein contained against assignment or subletting. 7 IN WITNESS WHEREOF, the parties have caused this Lease to be executed on the date first above written. CITY CLERK APPROVED AS TO: ORM: CITY/ ATTORN Y Lr gr/misc/lease.frm CITY OF NEWPORT BEACH, LESSOR B MAYOR D -� . . Mml= r DOMI UE MC KENZIEV RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO City Manager's Office City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Recorded in the County of Orange, California Gary L. Granville, Clerk/Recorder VIII 111!1!1111!!11!!11111.1! 005 12005338 12 219960,103474 08;45am 03/04/96 M11 2 7.00 3.00 0.00 0.00 0.00 0.00 MEMORANDUM OF LEASE THIS MEMORANDUM OF LEASE is made and entered into by and between THE CITY OF NEWPORT BEACH, a chartered municipal corporation, herein called "Lessor", and GEOFFREY WYETH MC KENZIE AND DOMINIQUE MC KENZIE, husband and wife, herein called "L :ssee", to witness that: Lessor hereby leases to Lessee, commencing on 0 ec C1,V 1P R � a , and ending on July 1, 2006, on the terms and conditions set forth in that certain lease by and between the parties hereto dated U �cP���he�� all the terms and conditions of which lease are made a part hereof as though fully set forth herein, all those certain premises in the County of Orange, State of California, described as follows: Lot 55 as shown on a Record of Survey 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. EXECUTED onN%YrA_ty,r 1l 19fil-, at Newport Beach, Orange County, California. r ATTEST: CITY CLERK APPROVED AS TO FORM: a C I�N ATTO R N EV LESSOR THE CITY OF NEWPORT BEACH MAYOR LESSE . GEOFFREY WYETH MC KENZIE 13W1 _�o CJS' LESSEE: DOMINIQUE MC KENZIEV a t cis - Sy "�° p9eYlB 3 ti a q 'alels p os jol pue i ollgnd AjeloN 'Leas LPLoLJJ�o PUP pueq 4w SS3NlIM -awes aq4 pagnoaxa f'ou062 LP4Uawuaano6 eons 4Pg4 aw 04 pa6paLMOUIoP PUP `f'oUa6P Le4UawUaan06 PCPs ;O JLegaq uo 4uawnA;SUL ULg4. M aq4 pagnoaxa oqM suosaad aq; a q aw o4 uMoul pue goeaq gaodMaN JO 44L3 ago ;o 1,A@LO fi4L3 aq4 aq o4 aw 04 UMoul ` *2 pue goPaq 4.AodMaN }o fi4L3 aqI �O aOf'PW aql aq o4 aw off. uMoul ,, pa.aeadde f'LLeuosaad `a4P4S PCPs aO pue UL oLLgnd f'aP40N P pau6Lsaapun agq'aw aao�aq aP@k aqq UL ` 10 kep ��o sLgq UO 'SS a6ueap 30 AINno3 1nNl1O311VO A 31VIs (leas leuejou lelogjo jol eaje siy_L) S66i'6Zeunrsejjdx3'ww004 ,"" 'vo ajnjuu&S w unsnoo 3otvdao m c A113>1 IAH3H� enNao3nvo anenaxavtoN leas lelol}}o pus puny Aw SS3NlIM zFras z�tior,�o • o _, -juawnijsul agj pajnoaxa 'pajoe (s)uosjad 4j ayj yolgnn to llegaq uodn Ajljua ayj jo (s)uosjad ayj juawnjjsw aqj uo (s)ajnjeubis jlayj/jay/slq r(q jeyj pue m sv (sai)ljiosdeo pazuoy;ns jlayj/jay/sly ul awes ayj pajnoaxa r(ayj/ays/ay jeyj aw of pa6palnnowpe pue juawnjjsul T uiyl!m ayj of paquosgns aje/sl (s)aweu asoyM (s)uosjad ayj aq of (aouapina r(jojoelsiles to slseq ayj uo aw of � panojd jo) aw of uMou� Alleumad ®e —I �G� a pajeadde Alleumad CF �1 aw ajolaq rJr ! uO 3 �1 0 m JO kLNnoo ss{ VINUOJIIVO =10 aLviS { Recorded in the County of Orange, California RECORDING REQUESTED BY AND Gary L. Granville, Clerk/Recorder WHEN RECORDED RETURN TO: il�Il �i I���I �III�I�I! islii �� 10, 00 City Manager's Office 19960103473 08 : 48am 03/04/96 City of Newport Beach 005 12005338 12 25 3300 Newport Boulevard T03 2 7.00 3.00 0.00 0.00 0.00 0.00 Newport Beach, CA 92663 TERMINATION OF LEASEHOLD This agreement is made this 114k day of , 1992, by and between the CITY OF NEWPORT BEACH, hereinafter called "Lessor", and THE FRANCES LEE MC KENZIE REVOCABLE TRUST, hereinafter called "Lessee". RECITALS A. Lessor and Lessee executed a lease on February 21, 1991, and subsequently recorded May 6, 1991 by the County Recorder of Orange County, California as Instrument No. 91-218838. By the terms of the lease, the following described property was leased to Lessee until July 1, 2006. Lot 55 as shown on the Record of Survery 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 their obligations under the lease. AGREEMENT n Lessee agrees to terminate the lease and vacate the premises as described herein above as of tJEcewv�e P- l , 19R a-, and Lessor agrees to accept such termination and the premises, and Lessor and Lessee agree to discharge and release each other from all obligations under the lease as of said date. Executed at Newport Beach, California, on the day and year first above written. Lessee: Allyson Akins, Trustee -L Lessee: Healy, Trustee CITY OF NEWPORT BEACH BY: ZkAW'4---- _on- "Lessor" / mlmz, Xf�r �j Lessee: Frances Lee McKenzie, Trust Lessee: eoffrey McKenzie, Trustee (leas leuelou lelolllo jol Lax sly L W.=3•wwOOAn o ajnleu6lS aanroao , CDonanaAavioN : l }} p p y SS3NliM IAZ:t3HO-leas elol o ue ue Aw aVioI330 quawnjlsw ayl palnoaxa 'paloe (s)uosied CDC ayl golUM to llegaq uodn i(lllua ayl jo (s)uosjad aql luawnjlsul ayl uo (s)ainleubis rayl/jay/sly Aq IL -141 pus m' w '(sal)llloedeo pezijoy1ne jlayl/jay/sly ui awes ayl palnoaxa Aayl/ays/ay leyl aw of pabpalMoumos pue luawnjlsul 2l a u!yl!M ayl of pagljosgns aje/sl (s)aweu esoyM (s)uosied ayl aq of (aouapina �joloelslles to slseq ayl uo aw of panojd jo) aw of uMou>l 1peuosjad S _'z 1111 V---pajsadde Alleuosjad m `aw ajolaq � u LD {ri' ��i� JO AINnoo ` 'ss{ G VlNUO_JI'1VO _JO 31b'1S. { (leas leuelou lepgo jol Sam sly ajnleu6!S w s66t'£Zeunt•sw±Ox3 wwo3An o o uNno* 30NVHO � vlNdo:Invo onand>aysoN 'leas Ielolllo pue puny (w SSgNlIM A113A IA83HO 'Bias ZYI373S0 'luawnjlsul eql palnoaxa `polos (s)uosied G) m ayl golyM to lleyaq uodn Al!lua ayl jo (s)uosiad ayl luawnjlsul ayl uo (s)ainleu6ls jlayl/jay/sly (q leyl pue 'm m `(sal)Allosdeo pazuog1ns rayl/jay/sly ul awes ayl palnoaxa Aayl/ays/ay leyl aw of pa6palMouiloe pue luawnjlsul �! N ulyllM agl of paquosgns aje/sl (s)aweu asogm (s)uosied ayl aq of (aouapina Ajoloelsllss to slssq ayl uo aw of CD panojd jo) aw of uMou� llleumad { a pajeadde AIleuosied m 0 ]) 7ry 1 aw ajolaq u0 0 3 AO kiNnOO ,ss{ VINHOJIIVO _�O 3Ld1S { I State of California County of Orange On 1�.bkayq before me, Monica S. Kutz, Notary Public, personally appeared 'k irPlcr) "�) ML) personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence to be the persons) whose name�s)CWa4v— subscribed to the within instrument and acknowledged to me that executed the same i�heFAI; 1Lauthorized capacity(4&), and that by hiss/ it signaturefss on the instrument the person(; orthe entity upon behalf of which the persons) acted, executed the instrument. f� F:. Monica S. Kutz ; 0 > Comm. #1013469 ^^ 0 "� '» NOTARY PUBLIC CALIFORNIAy, „IFC Comm. E pCe JanN3, 1998 WITNESS my hand and official seal. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual CC Corporate Officer Limited Partner General Partner Attorney -in -Fact Trustee(s) Cuai dian/Conservator Other: Si ner is Representing: i Al Title or Type of Document' Number of Pages :-'//- 9 Date of Document Signer(s) Other Than Named Above LEASE THIS LEASE, made and entered into this 15th day. of January , 19 91, by and between the CITY OF NEWPORT BEACH, a chartered municipal corporation, hereinafter "Lessor," and The Frances Lee McKenzie Revocable Trust hereinafter "Lessee." RECITALS A. Lessor holds title to and is the owner of certain harbor frontage and tidelands, together with certain uplands abutting thereon known as Beacon Bay and more particularly described as Exhibit 111," attached hereto and made a part hereof by this reference. B. Carrol B. Beek, Barton Beek, Joseph Allan Beek, Jr., and Seymour Beek jointly hold a Master Lease to said property, dated January 9, 1950, which Master Lease expires on December 31, 1987. C. The "Westerly Portion" of the Beacon Bay property has been divided into individual lots and subleased for residential purposes. D. All of said subleases expire on the same date as the Master Lease, to -wit: December 31, 1987. E. Lessor believes it to be in the best interest and welfare of said Lessor (1) that the portion of Beacon Bay which is currently leased for residential purposes remain residential in character, and (2) to enter into new subleases with the sublessees under the terms, conditions and for the consideration as hereinafter set forth. F. It is the judgment of Lessor that the leasing of the property hereinafter described is consistent with the trust purposes imposed upon such portions of the leased lands which may constitute tidelands as authorized by Chapter 74, Statutes of 1978. G. It is further the judgment of City that in entering into this Lease in the future, City is acting pursuant to its proprietary powers. NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING RECITALS AND THE MUTUAL AGREEMENTS SET FORTH BELOW, LESSOR AND LESSEE HEREBY AGREE AS FOLLOWS: 1. DESCRIPTION OF LEASED PREMISES. Lessor hereby leases, and Lessee hereby accepts this Lease of the real property described in Exhibit 112," attached hereto and made a part hereof by this reference under the terms and conditions as set forth below ("hereinafter the "Leased Land"). 2. TERM. Unless terminated sooner as provided herein, the term of this Lease is for a period commencing on the ist day of January, 1988, and ending on the 1st day of July, 2006. 4. SALE, ASSIGNMENT, SUBLEASE. Lessee may sell, assign, exchange, convey or sublease his leasehold interest or encumber such interest without a prior written consent of Lessor; provided, however, that the Lessee, proposed transferee, assignee or encumbrancer shall:' A. Furnish Lessor with an executed copy of such assignment, Trust Deed, or other document used to effect such transfer; B. Furnish to lessor the express agreement of the proposed transferee or encumbrance assuming, and agreeing to perform, all of the obligations under this Lease; C. Pay to Lessor a transfer fee of $50.00; and D. Pay to Lessor the adjusted base rental which shall be the greater of the following: (1) The base rental as set forth in paragraph 3 above, or (2) An amount, equal to two and one half percent (2-1/2%) of the actual sales value of the leasehold estate, including the improvements thereon, divided by twelve (12) and payable monthly. The actual sales value shall be the total value of the transfer, as established by the Assessor of Orange County or verified by lessor. The parties to said transaction shall furnish Lessor with any information regarding the transaction as Lessor may deem necessary to verify the total value of the transaction. If said transfer transaction cannot be verified by normal and accepted methods of verification, Lessor, at its sole discretion, may cause the leasehold estate and improvements thereon to be appraised to establish the fair market value of the property, which value shall be deemed the actual sales value thereof, as of the date of transfer, and establish thereby the adjusted base rental. The adjusted base rental shall become effective on the date of transfer. The provisions of this subparagraph shall not cause an adjustment of rentals if: A. Lessee is assigning his interest in this Lease to a Trustee under a Deed of Trust for the benefit of the lender as provided in paragraph 5, below; or B. The transfer is caused by the death of a spouse and the full interest of the deceased spouse is transferred to the surviving spouse. 5. ENCUMBRANCES. If the Lessee assigns his interest in this Lease to a Trustee under a Deed of Trust (hereinafter called "Trust Deed") for the benefit of the lender hereinafter called "Encumbrancer"), such encumbrance shall be upon and subject to the following covenants and conditions: A. Said Trust Deed and all rights acquired thereunder shall be subject to each and all of the covenants, conditions and restrictions set forth in this Lease and to all rights and interest of the Lessor hereunder, except as herein otherwise provided. obligations of the Lessee under the Lease only so long as such Encumbrancer holds title to the leasehold. D. Lessee shall furnish to Lessor a complete copy of the Trust Deed and Note secured thereby, together with the name and address of the holder thereof. E. Upon and immediately after the recording of the Trust Deed, Lessee, at Lessee's expense, shall cause to be recorded in the office of the Recorder of Orange County, California, a written request executed and acknowledged by lessor for a copy of any notice of default and of any notice of sale under the Trust Deed as provided by the statutes of the State of California relating thereto. F. Lessee agrees that it will not terminate this Lease because of any default or breach hereunder on the part of Lessee if the Encumbrancer under such Trust Deed, within ninety (90) days after service of written notice on the Encumbrancer by Lessor of its intention to terminate this Lease for such default or breach, shall: (1) Cure such default or breach if the same can be cured by the payment or expenditure of money provided to be paid under the terms of this Lease; provided, however, that for the purpose of the foregoing, Encumbrancer shall not be required to pay money to cure the bankruptcy or insolvency of Lessee or to satisfy Lessee's obligations under paragraph 12 hereof, "Indemnification," or (2) If such default or breach is not so curable, cause the Trustee under the Trust Deed to commence and thereafter to diligently pursue to completion steps and proceedings for judicial foreclosure, the exercise of the power of sale under and pursuant to the Trust Deed in the manner provided by law, or accept from the Lessee an assignment in lieu of foreclosure; and (3) Keep and perform all of the covenants and conditions of this Lease requiring the payment or expenditure of money by Lessee until such time as said leasehold shall be sold upon foreclosure pursuant to the Trust Deed, be released or reconveyed thereunder, sold upon judicial foreclosure or transferred by Deed in lieu of foreclosure; provided, however, if the holder of the Trust Deed shall fail to refuse to comply with any and all of the conditions of this paragraph, then and thereupon Lessor shall be released from the covenant of forbearance herein contained. 6. USE. The Leased Land shall be used solely for residential purposes and any appurtenant uses associated therewith. Lessee agrees to comply with all laws, regulations and ordinances of Lessor, the County and State affecting the Leased Land and any improvements located thereon. 7. TAXES AND UTILITIES. It is understood by Lessor and Lessee that this Lease may give rise to a possessory interest tax obligation. Lessee shall pay, before delinquent, all utility charges and any general and special taxes, assessments or other governmental charges, if any, which may be levied on the Leased Land, including any improvements located thereon or associated therewith, or any possessory interest therein arising out of or based upon the leasehold interest throughout the term hereof. Satisfactory evidence of such payments shall be made available to Lessor upon demand. Any lien for unpaid utilities, taxes, assessments or charges shall not attach to the leasehold interest but only to improvements located thereon. 8. USE AND MAINTENANCE OF COMMON AREA. Lessee shall have the right to use the streets, beaches, walkways, tennis courts, docks, piers, and common landscaped areas in Beacon Bay which shall be leased to the Beacon Bay Community Association by the City, in consideration of the maintenance thereof by such Association and fair market value rent to be paid by individual lessees. Lessor shall not be obligated to make any repairs, alterations or improvements in or to, or upon or adjoining the Leased Land or any structure or other improvement that may be constructed or installed therein, but Lessee shall, at all times during the terms of this Lease and at its sole cost and expense, keep and maintain all buildings, structures, and other improvements on the Leased Land in good order and repair, and the whole of the Leased Land and all improvements thereto free of weeds and rubbish, and in a clean, sanitary and neat condition. 9. COMMUNITY ASSOCIATION. Lessee agrees to become and during the term of this Lease remain a member in good standing of the Beacon Bay Community Association, and to abide by the Articles of Incorporation, Bylaws and rules and regulations of the Association, now or hereafter existing, and to pay to said Association before delinquency all dues, fees, assessments and other charges from time to time duly levied or assessed in furtherance of the Association's community purpose. 10. COVENANTS. CONDITIONS AND RESTRICTIONS. Lessee agrees to abide and be bound by all covenants, conditions, restrictions and reservations as contained in Exhibit 113," attached hereto and made a part hereof by this reference. Said covenants, conditions and restrictions shall run with the Leased Land and shall be binding on Lessee and Lessee's successors in interest. 11. INDEMNIFICATION. Lessee agrees that he will hold and save Lessor, its officers, agents and employees harmless from any and all claims or demands of any kind or nature whatsoever arising out of, or incident to, the use and occupancy of the Leased Land, and to indemnify Lessor for any cost, liability or expense caused by or arising out of any injury or death of persons or damage to property which may occur upon or about the Leased Land or caused by or arising out of any activities or omission of Lessee, his agents, employees, licensees, and/or invitees, including, without limitation, injury or death of Lessee, his agents, employees, licensees and invitees and damage to his property or Lessee's property; except for any damage or injury or any kind arising out of the negligence of Lessor, its agents or employees. 12. NON-COMPLIANCE AND TERMINATION OF LEASE. Time and each of the terms, covenants and conditions hereof are expressly made the essence of this Lease. If Lessee shall fail to comply with any of the terms, covenants or conditions of this Lease, including the payment of rental herein reserved, at the time and in the amount herein required, and shall fail to remedy such default within sixty (60) days and thereafter comply with each and every term of this Lease, or if a Lessee shall abandon or vacate the Leased Land, Lessor may, at its option, and without further notice or demand, terminate this Lease and enter upon the Leased Land and take possession thereof, and remove any and all persons therefrom with or without process of law. Lessor may elect to terminate this Lease for any event of default or breach hereof or of the covenants, conditions and restrictions contained in Exhibit 113." Should Lessor elect to terminate, it may recover from Lessee all damages incurred by Lessor by reason of such breach, i.nciuding, without limitation, the cost of recovering the Leased land, and the worth at the time of such termination of the excess, if any, of the amount of unpaid rent and unpaid charges reserved under this Lease over the amount of the rental loss which lessee proves could be reasonably avoided, for the remainder of the term of this Lease. Such amount shall be immediately due and payable from Lessee to Lessor, together with interest at the rate of 10% per annum from the date owing until 4 paid. The remedies of Lessor specified herein are in addition to and cumulative of any remedies provided Lessor by statute, including the remedies provided in California Civil Code Sections 1951.2, et sect. 13. SURRENDER OF POSSESSION UPON EXPIRATION OR TERMINATION. Upon the expiration or termination of this Lease, Lessee agrees to peaceably deliver possession of the Leased Land to Lessor and unconditionally agrees to vacate the Leased Land without contest, legal or otherwise. Lessee further expressly agrees to waive any and all legal rights it may have to contest vacating the Leased Land and further agrees to release Lessor from any and all claims it may have of whatever nature. Lessee further agrees to waive any relocation assistance or any other assistance from Lessor resulting from vacating the Leased Land. Lessee shall have the right prior to and for a period of ninety (90) days after the expiration of this Lease to remove any buildings or improvements appurtenant thereto from the Leased Land, except that all streets, walkways, common area landscaping, docks, piers, and any other installation constructed or installed in the common areas, shall be the property of Lessor. 14. EMINENT DOMAIN. A. Definitions of Terms. The term "total taking" as used in this paragraph means the taking of the entire Leased Land under the power of eminent domain or the taking of so much of said Land as to prevent or substantially impair the use thereof by Lessee for the uses and purposes hereinabove provided. The term "partial taking" means the taking of a portion only of the Leased Land which does not constitute a total taking as defined above. The term "taking" shall include a voluntary conveyance by Lessor to an agency, authority or public utility under threat of a taking under the power of eminent domain in lieu of formal proceedings. The term 'date of taking" shall be the date upon which title to the Leased Land or portion thereof passes to and vests in the condemnor. The term "Leased Land" means the real property belonging to Lessor, together with any and all improvements placed thereon by Lessor or to which lessor has gained title. B. Effect of Taking. If, during the term hereof, there shall be a total taking or partial taking under the power of eminent domain, then the leasehold estate of the Lessee in and to the Leased Land or the portion thereof taken shall cease and terminate, as of the date of taking of said Land. If this Lease is so terminated in whole or in part, all rentals and other charges payable by Lessee to Lessor hereunder and attributable to the Leased Land or portion thereof taken shall be paid by Lessee up to the date of taking by the condemnor, and the parties shall thereupon be released from all further liability in relation thereto. C. Allocation of Award - Total Taking. All compensation and damages awarded for the total taking of the Leased Land and Lessee's leasehold interest therein shall be allocated as follows: (1) The Lessor shall be entitled to an amount equal to the sum of the following: (a) The fair market value of the Leased Land as improved (exclusive of the dwelling and appurtenances to such dwelling) as of the date of taking, discounted by multiplying such fair market value by the factor for the present worth of $1.00 5 at 9% per annum compound interest for the number of years remaining from the date of taking to the date of the expiration of the term of this Lease; and (b) The present worth of rents due during the period from the date of taking to the date of the expiration of the term of this Lease, computed by multiplying the annual rent then payable by the factor for the present worth of $1.00 per annum at 12% per annum compound interest (Inwood Coefficient) for the number of years in such period. (2 ) The Lessee shall be entitled to the amount remaining of the total award after deducting therefrom the sums to be paid to Lessor as hereinafter provided. D. Allocation of Award - Partial Taking. All compensation and damages awarded for the taking of a portion of the Leased Land shall be allocated and divided as follows: (1) The Lessor shall be entitled to an amount equal to the sum of the following: (a) The proportionate reduction of the fair market value of the Leased Land as improved (exclusive of the dwelling and appurtenances to such dwelling) as of the date of taking, discounted by multiplying such proportionate reduction in fair market value by the factor for the present worth of $1.00 at 9% per annum compound interest for the number of years remaining from the date of taking to the date of expiration of the term of this Lease; and (b) The present worth of the amount by which the rent is reduced computed by multiplying the amount by which the annual rent is reduced by the factor for the present worth of $1.00 perm annum at 12% per annum compound interest (Inwood Coefficient) for the number of years remaining from the date of taking to the date of expiration of the term of this Lease. (2 ) The Lessee shall be entitled to the amount remaining of the total award. after deducting therefrom the sums to be paid to Lessor as hereinafter provided. E. Reduction of Rent on Partial Taking. In the event of a partial taking, the rent payable by Lessee hereunder shall be adjusted from the date of taking or to the date of the expiration of the term of this Lease. Such rental adjustment will be made by reducing the basic rental payable by Lessee in the ratio that the fair market rental value of the Leased Land at the date of taking bears to the fair market value of the Leased Land immediately thereafter. 15. ATTORNEYS' FEES. Should either Lessor or Lessee be required to employ counsel to enforce the terms, conditions and covenants of this Lease Agreement, the prevailing party shall recover all reasonable attorneys' fees (and court costs if applicable) incurred therein, whether or not court proceedings were commenced. 16. REMEDIES CUMULATIVE. The rights, powers, elections and remedies of the Lessor contained in this Lease shall be constructed 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 cr:e or more sights, powers, elactions or remedies shall not impair or be deemed a waiver of Lessor's rights to exercise any other. 17. NO WAIVER. No delay or omission of the Lessor to exercise any right or power arising from any omission, neglect or default of the Lessee shall impair any such right or power or shall D be construed as a waiver of any such omission, neglect or default on the part of the Lessor or any acquiescence therein. No waiver of any breach of any of the terms, covenants, agreements, restrictions or conditions of this Lease shall be construed as a waiver of any succeeding breach of the same or of any of the terms, covenants, agreements, restrictions or conditions of this Lease. 18. COMPLIANCE WITH LAWS. Lessee covenants and agrees to comply with all rules, regulations, statutes, ordinances and laws of the State of California, County of Orange, City of Newport Beach, or any other governmental body or agency having lawful jurisdiction over the Leased Land. 19. NOTICES. It is mutually agreed that any notice or notices provided for by this Lease or by law, to be given or served by Lessee, may be given or served by mail, registered or certified, with postage prepaid, on the City of Newport Beach, addressed to the Mayor, City Manager, or City Clerk, 3300 Newport Boulevard, Newport Beach, California 92663, or at such other address as may be hereafter furnished to Lessee in writing. If notice is intended to be served by Lessor on Lessee, it may be served either: A. By delivering a copy to the Lessee personally, or B. If he be absent from the Leased Land by leaving a copy with some person of suitable age and discretion who may be occupying the Leased Land; or C. If no one can be found, then by affixing a copy of the notice in a conspicuous place on the property or also sending a copy through the mail addressed to the Lessee. Such service upon lessor or Lessee shall be deemed complete at the expiration of forty-eight (48) hours from and after the deposit in the United States mail of such notice, demand or communication. 20. HOLDING OVER. This Lease shall terminate and become null and void without further notice upon the expiration of said term. Any holding over shall not constitute a renewal hereof, but the tenancy shall thereafter be on a month-to-month basis and otherwise on the same terms and conditions as herein set forth. 21. MISCELLANEOUS. Inurement. Each and all of the covenants, conditions and agreements herein contained shall, in accordance with the context, inure to the benefit of Lessor and apply to and bind Lessee, his respective heirs, legatees, devisees, executors, administrators, successors, assigns, licensees, permittees, or any person who may come into possession or occupancy of said Leased Land or any part thereof in any manner whatsoever. Nothing in this paragraph shall in any way alter the provisions herein contained against assignment or subletting. 7 IN WITNESS WHEREOF, the parties have caused this Lease to be executed on the date first above written. 4 ATTEST: 4 CITY CLERK APPR ED AS TO FORM: I Crn ATTORNEY CITY OF NEWPORT BEACH, LESSOR By: MAYOR FRANCES LEE M ENZIE,Tom? ESl E ALLYfON AK'INS, TRUSTEE PAIGE HEMY, TRUST E r�vy RECORDED IN OF= ------------------ - 1766i 10 eunr S84dx3 uopu -wo AW X ALNnOD 39NV80 01w0.AP3-0l1gnd A OMN c SIM *3 AWN 1v3s IVIO330 (TPaS ) o na ,�.zaq.oN •TPas TPTDTJJo PUP puau AM SSSNZIM •q_z pagnoaxa-a,[ai{/�uq -4Pu-4 pabpaTMoH-�[aP PUP ' quautn zq suz u1 q4tM auq oq pagz zosgns P/sem (s) amPu asouM (s) uosaad au -4 aq oq, (auo auz ano.z .zo) am oq. uMoux ATTPuosaad s ya-r oa -P p9apaddL, ATTPuosaad 'o -r axe -4 N paubzs.zapun aqq / ' am a.zo3aq ' X66/ / uo ( aoNVHO 3O 2ZNnOo • ss KIN2iO3I'm 30 aSFIZS peas 116!0!}}o pue pue4 A S /Ni1M '}! pa}noexe }e4; pa6palmou�!0e pue `luaw sup u!41W aqj of paquosgns S (s)aweu aso4m (s)uosied a41 aq o} a0u9p!A9,(lo}0e}sijes }o s!seq a4} uo aw o► panold ❑ aw of uMou� A!!euosied 4 11661 'IZ UVW sandya !"q - t V'InnN'2i0-lll '� V��— paaeadde A!!euosaad `o!!gnd ARION paub!saapun a4} }o A}unoo . •ss `aw alo}aq `I 66L }o Aep-814} s!41 up -VII A�\yV"D }o alels i !_ V I LOZ 'ON 1N3WJU37MON>I�d 7�dti3N3� (leas leuelou Ielolllo Joj e@Je slyll --.-- --—�ainlau519 0 0 Ieas ol o PUE Uue 44w SS3NlI;V t661 l eunr sajNri3 wwo0 Rn N ALNII100 3C>Nyy0 awes ayl palnoaxa Aagl/ays/ay VINHOjIIVO 0116nd AMV10N �. o „3� 1���H.J - 18141 aw of pe6palMourloe pue )uawnilsul uigllro� ayl of paq jos a Tv7s- llvioI33o•J 01 -qns aie/sl (s)aweu asogm (s)uosied ayl aq of (aouaPlne tioloeJ d sues Jo slseq ayl uo aw of Panojd jo) aw of urnou)l /lleuosiad TI - m 3 m pajeadde Alleuosjad 'ale1S Pies �F: joJ Pue ui of1qnd AJ?10N e ` au5lsia un a l'aw Oo / _U0 d 6_v ------- -----30A1Nnoo ^=G G m ss; VINaOAIIVC. AO 31ViS y. Y peas 116!0!}}o pue pue4 A S /Ni1M '}! pa}noexe }e4; pa6palmou�!0e pue `luaw sup u!41W aqj of paquosgns S (s)aweu aso4m (s)uosied a41 aq o} a0u9p!A9,(lo}0e}sijes }o s!seq a4} uo aw o► panold ❑ aw of uMou� A!!euosied 4 11661 'IZ UVW sandya !"q - t V'InnN'2i0-lll '� V��— paaeadde A!!euosaad `o!!gnd ARION paub!saapun a4} }o A}unoo . •ss `aw alo}aq `I 66L }o Aep-814} s!41 up -VII A�\yV"D }o alels i !_ V I LOZ 'ON 1N3WJU37MON>I�d 7�dti3N3� State of California County of Orange M On this 17th day of Apr i 1 , in the year 1991 , before me: Dorothy L. Palen personally appeared Phil Sansone , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument as: Mayor of THE CITY OF NEWPORT BEACH (Tide) and acknowledged to me that the CITY OF NEWPORT BEACH executed it. OF FICLt'�L SEAL, DOROTHY L. EAEEN o NOTARY PUBLIC - CALIFORNIA ,m Y o ORANGE COUNTY °gLIFO My Cmmm. Expires May 25, 1993 " WITNESS my hand and official eal- Notary Public in for said State. Dorothy L. Palen RECORDED IN OFFICIAL RECORDS OF ORANGE COUNTY. CALIFORNIA RECORDING REQUESTED BY J I —� f ��� 4:00 jyjpY 6 1991 AND WHEN RECORDED MAIL TO: Pill City Manager's Office Q, Recorder City of Newport Beach EXEMPT 3300 Newport BoulevardCMING REQUEn pM Newport Beach, CA 92663 1EXEMP-r GOVERNMENT ME 6103 C7 TERMINATION OF LEASEHOLD This agreement is made this 15th day of January , 1991, by and between the CITY OF NEWPORT BEACH, hereinafter called 'Lessor" and FRANCES LEE MC KENZIE hereinafter called Lessee . ' RECTTAT.� • A. Lessor and Lessee executed a lease on October 11 1989 and subsequently recorded October 16, 1989 by the County Recorder of Orange County, California as Instrument No. 89-556564 . By the terms of the lease, the following described property was leased to Lessee until July 1, 2006. Lot 55 as shown on a Record of Survey Map filed in Book 9, Pages 42 and 43 of Record of Surveys in the Office of the County Recorder of Orange County, 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 their obligations under the lease. AC,RFFMFNT • Lessee agrees to terminate the lease and vacate the premises as described herein above as of January 15, 1991 , and Lessor agrees to accept such termination and the premises, and Lessor and Lessee agree to discharge and release each other from all obligations under the lease as of said date. Executed at Newport Beach, California, on the day and year first above written. CITY 0 WPORT BEACH n J B y : Ro ert L. Wynn, City M4 -er "Lessor" r j � 1zi LESSEE LESSEE FRANCES LEE MC KENZI ua L2d .1 410J00 a1g1$ pies ao ue ui oilgnd &e1oN was Temijo pue PuLq Am ssdNmA S66T 'SZ � Ey sall�x3 u:a0 Pqy Na0-40 AINnOD 39NIAO a VIN8031 sV3 - MEN AHVION ° Z yWy IN *1 �ANiOS00 rV r •' �au�a as 1 as 1 V lso.lado y fo 1d ZI palnaM HDddg INOdAkaN dO AM 0q] MP aw 01 pa2palen0ux3e pug (aPt.IJ HDdHg BdOdMaN d0 XJJD aRL3o aa6eueW 4q -Lo :se lummisui sitp pmnaoxo oqm uosrad aqi oq o1(ooueptAa boloe;spm 30 siseq aq1 uo aw 07 panoad so) aw o1 umoux AUMOssad ` paieaddu Alleuosrad uu�fM • � �aagob ua Lpd • I �gIOJoa :ow a]oJaq ` , 66 6 jm aq1 ut ` L �,a d �° �� uq-L I sig? °O .ss ague-zO.lf% Slunoa glu.10pleD ,lo alms b66t 'cz eUnr seAdx3 uolssiwwo0 Ary • > AlNnOD 30NVd0 � olwogoo-olprid NbToN sim •3 AWN Id3s ivlaWO (TuaS) oTqnd AzL'goN ------------ 97 •TPas TPTDTJJO PUP puPq Auz SSSNZIM •qT pagnoaxa q.pgq pabpaTMouxoe PUP 'guaninlgSUT uTggTM aqg og pagi.zosgns az /,E'T (s)amPU asogM TS) UOS -lad aqg aq og ( ouaptna JOgOeJST4PS JO STssq aqg uo auz oz JO) ;DUI 0-4uMoux ATTpuos.zad �� a�y a peapadde ATTEuosaad 'DT AzPgoN paubzszapun aqg 'am a.zojaq ' / �� uo (w d0 AINnoo • ss ��� ( VIN2iO3I'IFIo 30 SZFIiS RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Manager's Office City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 TERMINATION OF LEASEHOLD This agreement is made this 5th day of March , 1990, by and between the CITY OF NEWPORT BEACH, hereinafter called 'Lessor", and FRANCES LEE MCKENZIE , hereinafter called Lessee . RECITALS A. Lessor and Lessee executed a lease on October 11 , 19 89 and subsequently recorded October 16, 1989 by the County Recorder of Orange County, California as Instrument No. 89-556564 . By the terms of the lease, the following described property was leased to Lessee until July 1, 2006. Lot 55 as shown on a Record of Survey Map filed in Book 9, Pages 42 and 43 of Record of Surveys in the Office of the County Recorder of Orange County, 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 their obligations under the lease. AGREEMENT Lessee agrees to terminate the lease and vacate the premises as described herein above as of March 5, 1990 , and Lessor agrees to accept such termination and the premises, and Lessor and Lessee agree to discharge and release each other from all obligations under the lease as of said date. Executed at Newport Beach, California, on the day and year first above written. LESSEE CITY QF--fiEWPORT BE�CH By:� Robert L. Wynn, City Ma6ager "Lessor" o LESSEE FRANCES LEE MCKENZIE 0 V66t TZ AIN Dµ1PODO-�AQ�d � oN 11/3S -3 AbVV4 1VOW40 • q lzE�oN •IEas TEToT33o puE puvq Am SSHNZIM •TT painoaxa (Aatj alts au) gpgq pa2pajmouxoE puE quamnalsuT ulg4Tm 9qq 01 pagTzosgns (aav ST (� amBu asoum uosaad aqq aq of (aouapTna filO�oE�ST�ES �o sTsEq atj� uo am 03 pano.zd ao) am oq umou-)l Allruosiad pajeaddE Klleuos-Tad `ETy�3TT D 90 'a IS auk zo3 oTlgnd BETON V- 'P auk am aao�aq `0661 �o App htW sTu� up ( a2uE.zp Io fjunoD •s•s ( ( ETu.zojTTEJ go ajvgS LEASE THIS LEASE, m de and entered into this day. of , 19 , by and between the CITY OF NEWPORT BEACH, a chartered municipal corporation, hereinafter "Lessor," and Frances Lee McKenzie, a married woman hereinafter "Lessee." RECITALS A. Lessor holds title to and is the owner of certain harbor frontage and tidelands, together with certain uplands abutting thereon known as Beacon Bay and more particularly described as Exhibit 111," attached hereto and made a part hereof by this reference. B. Carrol B. Beek, Barton Beek, Joseph Allan Beek, Jr., and Seymour Beek jointly hold a Master Lease to said property, dated January 9, 1950, which Master Lease expires on December 31, 1987. C. The "Westerly Portion" of the Beacon Bay property has been divided into individual lots and subleased for residential purposes. D. All of said subleases expire on the same date as the Master Lease, to -wit: December 31, 1987. E. Lessor believes it to be in the best interest and welfare of said Lessor (1) that the portion of Beacon Bay which is currently leased for residential purposes remain residential in character, and (2) to enter into new subleases with the sublessees under the terms, conditions and for the consideration as hereinafter set forth. F. It is the judgment of Lessor that the leasing of the property hereinafter described is consistent with the trust purposes imposed upon such portions of the leased lands which may constitute tidelands as authorized by Chapter 74, Statutes of 1978. G. It is further the judgment of City that in entering into this Lease in the future, City is acting pursuant to its proprietary powers. NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING RECITALS AND THE MUTUAL AGREEMENTS SET FORTH BELOW, LESSOR AND LESSEE HEREBY AGREE AS FOLLOWS: 1. DESCRIPTION OF LEASED PREMISES. Lessor hereby leases, and Lessee hereby accepts this Lease of the real property described in Exhibit 112," attached hereto and made a part hereof by this reference under the terms and conditions as set forth below ("hereinafter the "Leased Land"). 2. TERM. Unless terminated sooner as provided herein, the term of this Lease is for a period commencing on the 1st day of January, 1988, and ending on the 1st day of Julv. 2006. 4. SALE, ASSIGNMENT, SUBLEASE. Lessee may sell, assign, exchange, convey or sublease his leasehold interest or encumber such interest without a prior written consent of Lessor; provided, however, that the Lessee, proposed transferee, assignee or encumbrancer shall: A. Furnish Lessor with an executed copy of such assignment, Trust Deed, or other document used to effect such transfer; B. Furnish to lessor the express agreement of the proposed transferee or encumbrance assuming, and agreeing to perform, all of the obligations under this Lease; C. Pay to Lessor a transfer fee of $50.00; and D. Pay to Lessor the adjusted base rental which shall be the greater of the following: (1) The base rental as set forth in paragraph 3 above, or (2) An amount, equal to two and one half percent (2- 1/2%) of the actual sales value of the leasehold estate, including the improvements thereon, divided by twelve (12) and payable monthly. The actual sales value shall be the- total value of the transfer, as established by the Assessor of Orange County or verified by lessor. The parties to said transaction shall furnish Lessor with any information regarding the transaction as Lessor may deem necessary to verify the total value of the transaction. If said transfer transaction cannot be verified by normal and accepted methods of verification, Lessor, at its sole discretion, may cause the leasehold estate and improvements thereon to be appraised to establish the fair market value of the property, which value shall be deemed the actual sales value thereof, as of the date of transfer, and establish thereby the adjusted base rental. The adjusted base rental shall become effective on the date of transfer. The provisions of this subparagraph shall not cause an adjustment of rentals if: A. Lessee is assigning his interest in this Lease to a Trustee under a Deed of Trust for the benefit of the lender as provided in paragraph 5, below; or B. The transfer is caused by the death of a spouse and the full interest of the deceased spouse is .transferred to the surviving spouse. 5. ENCUMBRANCES. If the Lessee assigns his interest in this Lease to a Trustee under a Deed of Trust (hereinafter called "Trust Deed") for the benefit of the lender hereinafter called "Encumbrancer"), such encumbrance shall be upon and subject to the following covenants and conditions: A. Said Trust Deed and all rights acquired thereunder shall be subject to each and all of the covenants, conditions and restrictions set forth in this Lease and to all rights and interest of the Lessor hereunder, except as herein otherwise C. Any Encumbrancer which is an established bank, savings and loan association or insurance company, and is the purchaser at a foreclosure sale, or is an assignee under an assignment in lieu of foreclosure shall be liable to perform the obligations of the Lessee under the Lease only so long as such Encumbrancer holds title to the leasehold. D. Lessee shall furnish to Lessor a complete copy of the Trust Deed and Note secured thereby, together with the name and address of the holder thereof. E. Upon and immediately after the recording of the Trust Deed, Lessee, at Lessee's expense, shall cause to be recorded in the office of the Recorder of Orange County, California, a written request executed and acknowledged by lessor for a copy of any notice of default and of any notice of sale under the Trust Deed as provided by the statutes of the State of California relating thereto. F. Lessee agrees that it will not terminate this Lease because of any default or breach hereunder on the part of Lessee if the Encumbrancer under such Trust Deed, within ninety (90) days after service of written notice on the Encumbrancer by Lessor of its intention to terminate this Lease for such default or breach, shall: (1) Cure such default or breach if the same can be cured by the payment or expenditure of money provided to be paid under the terms of this Lease; provided, however, that for the purpose of the foregoing, Encumbrancer shall not be required to pay money to cure the bankruptcy or insolvency of Lessee or to satisfy Lessee's obligations under paragraph 12 hereof, "Indemnification," or (2) If such default or breach is not so curable, cause the Trustee under the Trust Deed to commence and thereafter to diligently pursue to completion steps and proceedings for judicial foreclosure, the exercise of the power of sale under and pursuant to the Trust Deed in the manner provided by law, or accept from the Lessee an assignment in lieu of foreclosure; and (3) Keep and perform all of the covenants and conditions of this Lease requiring the payment or expenditure of money by Lessee until such time as said leasehold shall be sold upon foreclosure pursuant to the Trust Deed, be released or reconveyed thereunder, sold upon judicial foreclosure or transferred by Deed in lieu of foreclosure; provided, however, if the holder of the Trust Deed shall fail to refuse to comply with any and all of the conditions of this paragraph, then and thereupon Lessor shall be released from the covenant of forbearance herein contained. 6. USE. The Leased Land shall be used solely for residential purposes and any appurtenant uses associated therewith. Lessee agrees to comply with all laws, regulations and ordinances of Lessor, the County and State affecting the Leased Land and any improvements located thereon. 7. TAXES AND UTILITIES. It is understood by Lessor and Lessee that this Lease may give rise to a possessory interest tax obligation. Lessee shall pay, before delinquent, all utility charges and any general and special taxes, assessments or other governmental charges, if any, which may be levied on the Leased Land, including any improvements located thereon or associated therewith, or any possessory interest therein arising out of or based upon the leasehold interest throughout the term hereof. Satisfactory evidence of such payments shall be made available to Lessor upon demand. Any lien for unpaid utilities, taxes, assessments or charges shall not attach to the leasehold interest but only to improvements located thereon. 97 8. USE AND MAINTENANCE OF COMMON AREA. Lessee shall have the right to use the streets, beaches, walkways, tennis courts, docks, piers, and common landscaped areas in Beacon Bay which shall be leased to the Beacon Bay Community Association by the City, in consideration of the maintenance thereof by such Association and fair market value rent to be paid by individual lessees. Lessor shall not be obligated to make any repairs, alterations or improvements in or to, or upon or adjoining the Leased Land or any structure or other improvement that may be constructed or installed therein, but Lessee shall, at all times during the terms of this Lease and at its sole cost and expense, keep and maintain all buildings, structures, and other improvements on the Leased Land in good order and repair, and the whole of the Leased Land and all improvements thereto free of weeds and rubbish, and in a clean, sanitary and neat condition. 9. COMMUNITY ASSOCIATION. Lessee agrees to become and during the term of this Lease remain a member in good standing of the Beacon Bay Community Association, and to abide by the Articles of Incorporation, Bylaws and rules and regulations of the Association, now or hereafter existing, and to pay to said Association before delinquency all dues, fees, assessments and other charges from time to time duly levied or assessed in furtherance of the Association's community purpose. 10. COVENANTS, CONDITIONS AND RESTRICTIONS. Lessee agrees to abide and be bound by all covenants, conditions, restrictions and reservations as contained in Exhibit 113," attached hereto and made a part hereof by this reference. Said covenants, conditions and restrictions shall run with the Leased Land and shall be binding on Lessee and Lessee's successors in interest. 11. INDEMNIFICATION. Lessee agrees that he will hold and save Lessor, its officers, agents and employees harmless from any and all claims or demands of any kind or nature whatsoever arising out of, or incident to, the use and occupancy of the Leased Land, and to indemnify Lessor for any cost, liability or expense caused by or arising out of any injury or death of persons or damage to property which may occur upon or about the Leased Land or caused by or arising out of any activities or omission of Lessee, his agents, employees, licensees, and/or invitees, including, without limitation, injury or death of Lessee, his agents, employees, licensees and invitees and damage to his property or Lessee's property; except for any damage or injury or any kind arising out of the negligence of Lessor, its agents or employees. 12. NON-COMPLIANCE AND TERMINATION OF LEASE. Time and each of the terms, covenants and conditions hereof are expressly made the essence of this Lease. If Lessee shall fail to comply with any of the terms, covenants or conditions of this Lease, including the payment of rental herein reserved, at the time and in the amount herein required, and shall fail to remedy such default within sixty (60) days and thereafter comply with each and every term of this Lease, or if a Lessee shall abandon or vacate the Leased Land, Lessor may, at its option, and without further notice or demand, terminate this Lease and enter upon the Leased Land and take possession thereof, and remove any and all persons therefrom with or without process of law. Lessor may elect to terminate this Lease for any event of default or breach hereof or of the covenants, conditions and restrictions contained in Exhibit 113." Should Lessor elect to terminate, it may recover from Lessee all damages incurred by Lessor by reason of such breach, including, without limitation, the cost of recovering the Leased land, and the worth at the time of such termination of the excess, if any, of the amount of unpaid rent and unpaid charges reserved under this Lease over the amount 4 of the rental loss which lessee proves could be reasonably avoided, for the remainder of the term of this Lease. Such amount shall be immediately due and payable from Lessee to Lessor, together with interest at the rate of 10% per annum from the date owing until paid. The remedies of Lessor specified herein are in addition to and cumulative of any remedies provided Lessor by statute, including the remedies provided in California Civil Code Sections 1951.2, et sea. 13. SURRENDER OF POSSESSION UPON EXPIRATION OR TERMINATION. Upon the expiration or termination of this Lease, Lessee agrees to peaceably deliver possession of the Leased Land to Lessor and unconditionally agrees to vacate the Leased Land without contest, legal or otherwise. Lessee further expressly agrees to waive any and all legal rights it may have to contest vacating the Leased Land and further agrees to release Lessor from any and all claims it may have of whatever nature. Lessee further agrees to waive any relocation assistance or any other assistance from Lessor resulting from vacating the Leased Land. Lessee shall have the right prior to and for a period of ninety (90) days after the expiration of this Lease to remove any buildings or improvements appurtenant thereto from the Leased Land, except that all streets, walkways, common area landscaping, docks, piers, and any other installation constructed or installed in the common areas, shall be the property of Lessor. 14. EMINENT DOMAIN. A. Definitions of Terms. The term "total taking" as used in this paragraph means the taking of the entire Leased Land under the power of eminent domain or the taking of so much of said Land as to prevent or substantially impair the use thereof by Lessee for the uses and purposes hereinabove provided. The term "partial taking" means the taking of a portion only of the Leased Land which does not constitute a total taking as defined above. The term "taking" shall include a voluntary conveyance by Lessor to an agency, authority or public utility under threat of a taking under the power of eminent domain in lieu of formal proceedings. The term 'date of taking" shall be the date upon which title to the Leased Land or portion thereof passes to and vests in the condemnor. The term "Leased Land" means the real property belonging to Lessor, together with any and all improvements placed thereon by Lessor or to which lessor has gained title. B. Effect of Taking. If, during the term hereof, there shall be a total taking or partial taking under the power of eminent domain, then the leasehold estate of the Lessee in and to the Leased Land or the portion thereof taken shall cease and terminate, as of the date of taking of said Land. If this Lease is so terminated in whole or in part, all rentals and other charges payable by Lessee to Lessor hereunder and attributable to the Leased Land or portion thereof taken shall be paid by Lessee up to the date of taking by the condemnor, and the parties shall thereupon be released from all further liability in relation thereto. C. Allocation of Award - Total Taking. All compensation and damages awarded for the total taking of the Leased Land and Lessee's leasehold interest therein shall be allocated as follows: (1) The Lessor shall be entitled to an amount equal to the sum of the following: 9 (a) The fair market value of the Leased Land as improved (exclusive of the dwelling and appurtenances to such dwelling) as of the date of taking, discounted by multiplying such fair market value by the factor for the present worth of $1.00 at 9% per annum compound interest for the number of years remaining from the date of taking to the date of the expiration of the term of this Lease; and (b) The present worth of rents due during the period from the date of taking to the date of the expiration of the term of this Lease, computed by multiplying the annual rent then payable by the factor for the present worth of $1.00 per annum at 12% per annum compound interest (Inwood Coefficient) for the number of years in such period. (2) The Lessee shall be entitled to the amount remaining of the total award after deducting therefrom the sums to be paid to Lessor as hereinafter provided. D. Allocation of Award - Partial Taking. All compensation and damages awarded for the taking of a portion of the Leased Land shall be allocated and divided as follows: (1) The Lessor shall be entitled to an amount equal to the sum of the following: (a) The proportionate reduction of the fair market value of the Leased Land as improved (exclusive of the dwelling and appurtenances to such dwelling) as of the date of taking, discounted by multiplying such proportionate reduction in fair market value by the factor for the present worth of $1.00 at 9% per annum compound interest for the number of years remaining from the date of taking to the date of expiration of the term of this Lease; and (b) The present worth of the amount by which the rent is reduced computed by multiplying the amount by which the annual rent is reduced by the factor for the present worth of $1.00 perm annum at 12% per annum compound interest (Inwood Coefficient) for the number of years remaining from the date of taking to the date of expiration of the term of this Lease. (2) The Lessee shall be entitled to the amount remaining of the total award after deducting therefrom the sums to be paid to Lessor as hereinafter provided. E. Reduction of Rent on Partial Taking. In the event of a partial taking, the rent payable by Lessee hereunder shall be adjusted from the date of taking or to the date of the expiration of the term of this Lease. Such rental adjustment will be made by reducing the basic rental payable by Lessee in the ratio that the fair market rental value of the Leased Land at the date of taking bears to the fair market value of the Leased Land immediately thereafter. 15. ATTORNEYS' FEES. Should either Lessor or Lessee be required to employ counsel to enforce the terms, conditions and covenants of this Lease Agreement, the prevailing party shall recover all reasonable attorneys' fees (and court costs if applicable) incurred therein, whether or not court proceedings were commenced. 16. REMEDIES CUMULATIVE. The rights, powers, elections and remedies of the Lessor contained in this Lease shall be constructed as cumulative and no one of them shall be considered exclusive of the other or exclusive of any rights or remedies allowed by law, and the exercise of one or more rights, powers, elections or remedies shall not impair or be deemed a waiver of Lessor's rights to exercise any other. P 17. NO WAIVER. No delay or omission of the Lessor to exercise any right or power arising from any omission, neglect or default of the Lessee shall impair any such right or power or shall be construed as a waiver of any such omission, neglect or default on the part of the Lessor or any acquiescence therein. No waiver of any breach of any of the terms, covenants, agreements, restrictions or conditions of this Lease shall be construed as a waiver of any succeeding breach of the same or of any of the terms, covenants, agreements, restrictions or conditions of this Lease. 18. COMPLIANCE WITH LAWS. Lessee covenants and agrees to comply with all rules, regulations, statutes, ordinances and laws of the State of California, County of Orange, City of Newport Beach, or any other governmental body or agency having lawful jurisdiction over the Leased Land. 19. NOTICES. It is mutually agreed that any notice or notices provided for by this Lease or by law, to be given or served by Lessee, may be given or served by mail, registered or certified, with postage prepaid, on the City of Newport Beach, addressed to the Mayor, City Manager, or City Clerk, 3300 Newport Boulevard, Newport Beach, California 92663, or at such other address as may be hereafter furnished to Lessee in writing. If notice is intended to be served by Lessor on Lessee, it may be served either: A. By delivering a copy to the Lessee personally, or B. If he be absent from the Leased Land by leaving a copy with some person of suitable age and discretion who may be occupying the Leased Land; or C. If no one can be found, then by affixing a copy of the notice in a conspicuous place on the property or also sending a copy through the mail addressed to the Lessee. Such service upon lessor or Lessee shall be deemed complete at the expiration of forty-eight (48) hours from and after the deposit in the United States mail of such notice, demand or communication. 20. HOLDING OVER. This Lease shall terminate and become null and void without further notice upon the expiration of said term. Any holding over shall not constitute a renewal hereof, but the tenancy shall thereafter be on a month-to-month basis and otherwise on the same terms and conditions as herein set forth. 21. MISCELLANEOUS. Inurement. Each and all of the covenants, conditions and agreements herein contained shall, in accordance with the context, inure to the benefit of Lessor and apply to and bind Lessee, his respective heirs, legatees, devisees, executors, administrators, successors, assigns, licensees, permittees, or any person who may come into possession or occupancy of said Leased Land or any part thereof in any manner whatsoever. Nothing in this paragraph shall in any way alter the provisions herein contained against assignment or subletting. 7 IN WITNESS WHEREOF, the parties have caused this Lease to be executed on the date first above written. CITY OF NEWPORT BEACH, LESSOR fY�By: MAYOR ATTEST: CIT CLERK 1 LESSEE FRANCES LEE MCKENZ D AS TO FORM: ATTORNEY N. EXHIBIT "2" Lot 55 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. �������4 RECORDING REQUESTED BY -IRST AMERICAN TITLE INS. CO. <!E0UR0E01N'0FRCrAE-RECDAD3- OF ORANGE COUNTY, CALIFORNIA RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: -2:35 PM OCT 16'89 City Manager's Office [77 Q �VCity of Newport Beach 44� RECORDER 3300 Newport Boulevard No Consideration. Lease less than Newport Beach, CA 92663 100 years MEMORANDUM OF LEASE yJ THIS MEMORANDUM OF LEASE is made and entered into by and between THE CITY OF NEWPORT BEACH, a chartered municipal corporation, herein called "Lessor", and FRANCES LEE MCKENZIE a 45 married woman , herein called "Lessee", to witness that: Lessor hereby leases to Lessee, commencing on October 11, 1989 and ending on July 1, 2006, on the terms and conditions set forth in that certain lease by and between the parties hereto dated October 1!, 1989 , all the terms and conditions of which lease are made a part hereof as though fully set forth herein, all those certain premises in the County of Orange, State of California, described as follows: L o t 55 as shown on a Licensed Surveyor's Map filed in Book 9, Pages 42 and 43 of Record of Surveys in the office of the County Recorder of Orange County, State of California. EXECUTED on /-, / , 19,�'y, at Newport Beach, Orange County, California. �TTT LESSOR THE CITY OF NEWPORT BEACH IT Mayor ATTEST: City Clerk APP OVED AS TO FORM: Lessee FRANCES LEE MCKENZIE icy,' Attorney (Inas ieuelou MOW Jo; ease sly!) 1661 'E1 Al "13 uaspwwo0 Rw . AAM 30WSO Nt 3013!01Vd10NISd V1N2iOJt1V3-3i1811d AHV10N m mos *w ianr ajnjeu61� l T., e!o!}�o putP.L4 SS3N11N awes 9y1 palnoaxe C941/8ys/al ie41 aw 01 p96paimomioe pue luawmisul u1411m a4101 pagpos -qns aje/sl (s)aweu asoym (s)uosjad ay; aq 01(9ou9pin9 Ajoloel -sues ;o slseq a41 uo aw 01 panojd io) aw o1 umou)i AIleuosaad eadde 1peuosjad 'a1e1g Ales jot pus ul ollgnd AJLION e'pau6lsjapun ay1 `aw ajo;aq' 86T TT ,zago;OQ u0 �O AiNn00 ssl VI FIHOJI_1VO jO 31V1S ua Lpd ' *10 91e1S p!ES sol pue u, oll n meloN leas lelolllo pue puey Aw SS3N11M "1! palnoam —au ley, aw of p96palmoui oe pue 'luawmlsu! ulgl!M ag, of paquosgns -Taweu asogm ­sjosiad aql aq of (aouap!Aa AJoloelsl,es to slseq agl uo aw o, panojd Jo) aw of umou� Alleuosiad ` pup �Iaa L� �� upas �ssy aye C4 aw 04 uMOU `aaL;n8 auaal pup gopaq q.AodMaN Jo Aq�o aye �}o ao pW auk. aq oq aw off. uMoul `SSr,vj4S •1 PLuUOG pajead a Alleumad 'ale1S pies jol pue u! o!lgnd AReloN e paubisiapun aq, aw ajolaq 68 gG JeaA ay1 u! ` Aagoq-op to APP slid �o (Z-8 ssel7 aoud) -DNI SiiUJ IUM 61JMU Z8 -S .A88—VOCEZ WJOA sllooloM—leJauag-1N3W003lMONNOV sa�d><3 'wwo0 FfN [E66trlSZ WA1Nn00 39NV80 3i1V0 - WON ALIV10N1ivd '1 W10306 VHS IODI,4ao a6upap 30 AlNnOO VIN80311VO 30 RViS RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Manager's Office City of Newport Beach 3300 Newp6rt'Boulevard Newport Beach, CA 92663 89-556563 TERMINATION OF LEASEHOLD IRECORDINC REQUESTED BY FIRST AMEMICA� i TIT LE INS. CO. RECORDED IN OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA -2n °M OCT 16'89 V6t-a" ju RECORDER This agreement is made this 1, day of October ' 19 89, by and between the CITY OF NEWPORT BEACH, hereinafter called 'Lessor", and Helen C. Shepardson and Mary Helen Swing, Executor Of the estate, of hereinafter called "Lessee". Dorothy B. Dean RECITALS A. Lessor and Lessee executed a lease on January 1 , 1988 and subsequently recorded May 16, 1988 by the County Recorder of Orange County, California as Instrument No. 88-227427 . By the terms of the lease, the following described property was leased to Lessee until July 1, 2006. a liscensed surveyor's Lot 55 as shown on/ 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 their obligations under the lease. AGREEMENT Lessee agrees to terminate the lease and vacate the premises as described herein above as of October 13, 1989 , and Lessor agrees to accept such termination and the premises, and Lessor and Lessee agree to discharge and release each other from all obligations under the lease as of said date. Executed at Newport Beach, California, on the day and year first above written. / �,fjlw 1�1 144,4� LESSEE Helen C. Sheph rdson CITY BY: NE�,7P0 �ftjjno. BY� � ecting City Mgr. �ebe�l:-F-- nn;-Eit�-A4anager "Lessor" LE-SSLE-SSE7 Mary Helen wing, ecutor of the last will of Dorothy B. Dean, deceased. STATE OF CALIFORNIA ss. COUNTY OF SAN BERNARDINO 89-556553 On this 6th day of October 1989, before me, Sandra L. Getchell, a Notary Public in and for said County and State, personally appeared Mary Helen Swing, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to this instrument, and acknowledged to me that she executed the same. WITNESS my hand and official (OFFICIAL SEAL) i F114 SAi�U�r', i_. GST�`xiEsf': �° NOTARY PU M • CALrrL2NIA My Comm(ssion Expires Ncv. 20, 1392 STATE OF CALIFORNIA COUNTY OF Orange 'E�fIEK • H OFFI�lA.I, DOROT y NOTARY PUBLIC . CALIFORNA ORANGE COUNTY tFOFI Aly Comm. Expu•es May 25.1993^ ACKNOWLEDGMENT—General—Wolcotts Form 233CA—Rev. 5-82 ©1982 WOLCOTTS, INC. (price class 8 2) S. seal. Notary Public in and for said County and State 69-556563 On this 13th day of October , in the year 19 89, before me, the undersigned, a Notary Public in and for said State, personally appeared Kenneth J Delino, known to me to be the Acting City Manager and , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person_ whose name_ i S subscribed to the within instrument, and acknowledged to me that _he_ executed it. WITNESS my hand and official seal. &9PT(14�� Notary Pubh i and for said State. Dorothy L. Palen RECORDING REQUESTED BY AND 88-22T427 WHEN RECORDED RETURN TO: City Manager's Office City of Newport Beach EXEMPT 3300 Newport Boulevard C10 Newport Beach, CA 92663 Attn: Kenneth J. Delino MEMORANDUM OF LEASE RECORDED IN OFFICIAL RECORDS OF ORANGE COUNTY. CALIFORNIA -235 PM MAY 16'88 COUNTY RECORDER THIS MEMORANDUM OF LEASE is made and entered into by and between The City of Newport Beach, a chartered municipal corporation, herein called "Lessor," and DOROTHY B. DEAN and HELEN C. SHEPARDSON herein called "Lessee," to witness that: Lessor hereby leases to Lessee for a term of eighteen (18) years commencing on January 1, 1988, and ending on July 1, 2006, on the terms and conditions set forth in that certain lease by and between the parties hereto dated January 1, 1988, all the terms and conditions of which lease are made a part hereof as though fully set forth herein, all those certain premises in the County of Orange, State of California. Lot 55 as shown on the map filed in Book 9, Page 7f—and 43 of Record of Surveys, in the office of the County Recorder, County of Orange, State of California. EXECUTED on Beach, Orange County, ATTEST: City Clerk APPROVED AS TO FORM: r f, k , 19_d_g, Newport Califor ia. cgc/Foa�'``� LESSOR The City.Af NewuArt 3�QI* 1 �0�,f/J Y painoaxa aiI IeyJ pa6palnnou>loe pue juawnaisui siy4 �2 iV3SlY13Id30 pagljosgns sZ (s)aweu asoynn (s)uosiad ay} aq 01 aouapina (leas leuetou �eloi;;o jo; eajy siyi) A10joe}sljes jo siseq ay1 uo aw 01 panoid� aw 01 unnouil Alleuosiad ❑ _ �I UL, C[ pa�eadde Alleuos�ad 'a�e�g pies �o� pue ul oilgnd A�eION a 'pau6isiapun ayj 'aw aao}aq 8861 8Z 'I'JJUW UO ( a u>;ap d0 AlNnoo se{ VINaOdITdO dO 3iViS (lenpinipul) 6861 'S •IdV *d)(3 uolss(w1uo0 6W M• ►, aIeIS Pies �o� pue ul . qnd A�e}oN A1NnOO 30NVao 0 A NI 301dd01VdiON18d VINzlodilvo - Oliand AaVION N31Vd 'l AHIOHOCI = ` ! lVasitli^iEdo "a^,., , • Leas LeLDLJJO pue pueq Rw SS3NiIM -owes aqq pagnoaxa f'oua6e Le4uawuAano6 Bons 4eq4 aw o4 pa6paLMouj3e pue °fioua6e LP4Uawuaano6 piles _}o �l.egaq uo 4uawnaIsuL uLgjLM aq4 pa4noaxo oqM suos.aad aq4 aq o4 aw oq uMoul pue goeaq 4aodMaN �O fi4�3 aq4 Jo WL0 fi4�3 aq4 aq o; aw 04 uMoul ` OLHPe •3 LpuLM pue goea8 gaodMaN 10 fi4�8 aqq jo AoieW aq4 aq o4 aw 04 uMoul ` •ap I XOD 'D ugop paAeadde fiL Leuosaad 1 a4e4S p des JOJ pue UL o L Lgnd fiJPION P pau6 Lsaapun aq4 aw aaolaq ` 886T aeai aq4 UL L SAV Jo A'ep ggCT s Lgq. up �Z�1ZZ"gg a6ueap A uNnw ss 'VIN803I1V0 30 31VIS jpits JOI pue ul oil d PRION leas ItIoIIIo pup pueg AW SS3NilM •l! palnoaxe —aye Wall aw 01 pabpalmou�oe pue 'Iuawn,lsul ulgl!m ayl of pagljosgns ST —aweu asogm—uosiad aqj aq oI (aouapina AJoloe}slles Io slseq agl uo aw oI panojd jo) aw 01 umou� Alleumad ` uosp.zp aus •Z) u010H panadde Alleumad 91EIS pies joI pue ul ollgnd PRION a paubisiapun agl 'aw ajolaq Io A,2p slgl u0 8861 RGA agl ul ' Zza LPS SS Z9 -S 'Aad—VO££Z w;od sllooloM—le;auag—iN3lN9031MONNOV aDNVUO 30 AlNf100 VINHOAIIV0 30 3WS •dx3 uolss<wwo0 6wnOO 3°01MO ddOlVdIONINdO F -olland AaVION 'l AHI.OaOan iv[31dd0 aDNVUO 30 AlNf100 VINHOAIIV0 30 3WS AGREEMENT TO LEASE THIS AGREEMENT TO LEASE, made and entered into on li the Zl/-.— day of , 1981, by and between the CITY OF NEWPORT BEACH, a chartered municipal corporation, hereinafter "City," and OOZQZ;` ?- 045"�/f/ , hereinafter "Sublessee." V d e-C.Srd sly DL, -T TTT C A. City holds title to and is the owner.of certain harbor frontage and tidelands, together with certain uplands abutting thereon known as Beacon Bay and more particularly described in Exhibit "1" attached hereto and made a part hereof by this reference. B. Carroll B. Beek, Barton Beek, Joseph Allan Beek, Jr., and Seymour Beek jointly hold a Master Lease to said proper- ty dated January 9, 1950, which Master Lease expires on December 31, 1987. C. The "Westerly Portion" of the Beacon Bay property has been divided into individual lots and subleased for residential_ purposes. D. All of said subleases expire on the same date as the Master Lease, to wit: December 31, 1987. E. City believes it to be in the best interest and welfare of City: (1) that the portion of Beacon Bay which is currently leased for residential purposes remain residential in constitute tidelands as authorized by Chapter 74, Statutes of 1978. G. It is further the judgment of City that in entering into this Agreement to Lease in the future, City is acting pur- suant to its proprietary powers. NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING RECITALS AND THE MUTUAL COVENANTS set forth below, City and Sub- lessee hereby agree as follows: 1. City hereby agrees to lease to Sublessee and Sub- lessee hereby agrees to lease from City the real property described in Exhibit "2" attached hereto and by this reference made a part hereof (hereinafter the "Leased Land") pursuant to a lease substantially in the form of Lease which is attached hereto marked Exhibit "C" and by this reference made a part hereof, and under the terms and conditions as set forth below. 2. In consideration of City's agreement to lease to Sublessee hereunder, Sublessee agrees to pay to City on the 1st day of each month following the date of this Agreement and on the 1st day of each month thereafter through the lst day of December, 1987, a sum determined by subtracting from the fair market rental value of00".3 fkd, Yt_ (annualized) on July 1, 1981 (the "Effective Date"), the payments made by Sublessee under a sublease on the Leased Land to the Master Lessee of Beacon Bay described in Paragraph A of the Recitals above. 3. The Base Rental under Paragraph 3 of the Lease, Exhibit "C" attached hereto, shall be the fair market rental value of the land on the Effective Date subject to adjustment of the base rental, hereafter "Adjusted Base Rental", as set forth in paragraphs 4 or 5 hereof. 2 4. Should any Sublessee not execute this Agreement on or prior to the Effective Date, but execute this Agreement after Effective Date and prior to December 31, 1987, the rental sum to be used in paragraph 2 hereof and the Base Rental under Paragraph 3 of the Lease, Exhibit "C" attached hereto, shall be the total of the fair market rental value of the land as established by the Appraisal Report prepared by George Hamilton Jones, M.A.I., dated November 5, 1980, plus an amount equal to the L.A. - Long Beach Consumer Price Index (C.P.I.) increase, from July 1, 1981 to the date of execution, or 1% per month increase from July 1, 1981, whichever is greater, plus an amount equal to the increase in rental value change due to the reduced lease advantage, as of the date of execution, as set forth in the effective rental value change sheet attached hereto as Exhibit "D", said total rental rate shall be referred to as Adjusted Base Rental. The different Adjusted Base Rental provided for in this paragraph is imposed unilaterally by the City out of what is deemed to be fair and equitable to those Sublessees who choose to enter into this Agreement on its Effective Date. Said difference in Adjusted Base Rentals is in no manner to be considered a penalty but moreover a procedure developed solely by City to provide the incentive to enter into this Agreement of Lease at the earliest date possible. Commencing January 1, 1988 City is under no obligation to enter into this Agreement or a Lease in the form of Exhibit "C" attached hereto with any sublessee who has not executed this Agreement and shall be free to deal with respect to the lease of any unleased portions of Beacon Bay on any terms and conditions it deems fit, either with third parties or prior sublessees. 5. Sublessee may sell, assign, exchange or convey his interest in this Agreement without prior written consent of the City, provided that upon any such transfer the provisions of 3 Section 4 of the Lease Exhibit "C" attached hereto, shall determine the amounts to be paid by assignee to City, and further provided that the assignee execute an acceptance of the assignment and an agreement to be bound by all the terms of this Agreement and to make the payments provided for hereunder which Assignment and acceptance shall be delivered to and accepted by City. Upon such assignment and acceptance, Sublessee shall be released of any further obligation and liabilities under this Agreement to Lease. 6. The parties agree to execute the Lease, Exhibit "C" hereto, during the month of December, 1987 and concurrently therewith to execute and record a short form memorandum thereof. 7. Time and each of the terms, covenants and conditions hereof are expressly made the essence of this Agreement. If Sublessee shall fail to comply with any of the terms, covenants or conditions of this Agreement, including making the payments provided for herein at the time and in the amount herein required, and shall fail to remedy such default within sixty (60) days and thereafter diligently prosecute the same to completion, or if a Sublessee shall abandon or vacate the Leased Land, City may, at its option and without further demand, terminate this Agreement. Upon service by City on Sublessee of Notice of Termination of this Agreement to Lease, notice being given in the same manner as provided in paragraph 19 of the Lease appended hereto as Exhibit "C" this Agreement to Lease shall be terminated as to Sublessee and City's obligation to enter into the Lease appended hereto as Exhibit "C" is likewise terminated and City is under no obligation whatsoever to enter into said Lease with Sublessee. In addition to termination of this Agreement to Lease, City may recover from Sublessee all damages incurred by 4 City by reason of said breach, including, without limitation, any payments due and owing from Sublessee to City and any other costs due and owing from Sublessee to City at the date of termination of this Agreement to Lease. Should either City or Sublessee be required to employ counsel to enforce the terms, conditions and covenants of this Agreement to Lease, the prevailing party shall recover all reasonable attorney's fees (and court costs if applicable) incurred therein whether or not court proceedings were commenced. 8. Sublessee agrees that he will hold and save City, its officers, agents and employees harmless from any and all claims or demands of any kind or nature whatsoever arising out of, or incident to, the use and occupancy of the Leased Land, and to indemnify City for any cost, liability or expense caused by or arising out of any injury or death of persons or damage to property which may occur upon or about the Leased Land or caused by or arising out of any activities or omission of Sublessee, his agents, employees, licensees, and/or invitees, including, without limitation, injury or death of Sublessee, his agents, employees, licensees and invitees and damage to his property or Sublessee's property; except for any damage or injury of any kind arising out of the negligence of City, its agents or employees. 9. Each and every covenant, condition and agreement hereof, in accordance with the context, shall inure to the benefit of City and apply to and bind Sublessee, their respective heirs, legatees, devisees, executors, administrators, successors, assigns, licensees, permittees, or any person who may come into possession or occupancy of the Leased Land, or any part thereof in any manner whatsoever. 5 IN WITNESS WHEREOF, the parties have caused this Agree- ment to Lease to be executed on the date first above written. ATTEST: h r/� F City Clerk APPROVED AS TO FORM:- 5-4-81 2 CITY OF NEWPORT BEACH Sublessee F; * Sublessee EXHIBIT "C" THIS LEASE, made and entered into on the lst day of January, 1988, by and between the CITY OF NEWPORT BEACH, a chart- ered municipal corporation, hereinafter "Lessor", and after "Lessee." RECITALS herein - A. Lessor holds title to and is the owner of certain harbor frontage and tidelands, together with certain uplands abutting thereon known as Beacon Bay and more particularly described in Exhibit "1" attached hereto and made a part hereof by this reference. B. Carroll B. Beek, Barton Beek, Joseph Allan Beek, Jr., and Seymour Beek jointly hold a Master Lease to said proper- ty, dated January 9, 1950, which Master Lease expires on December 31, 1987. C. The "Westerly Portion" of the Beacon Bay property has been divided into individual lots and subleased for residen- tial purposes. D. All of said subleases expire on the same date as the Master Lease, to wit: December 31, 1987. E. Lessor believes it to be in the best interest and welfare of said Lessor (1) that the portion of Beacon Bay which is currently leased for residential purposes remain residential in character, and (2) to enter into new subleases with the sub - M1 (a) Furnish Lessor with an executed copy of such assignment, Trust Deed, or other document used to effect such transfer; (b) Furnish to Lessor the express agreement of the proposed transferee or encumbrance assuming, and agreeing to per- form, all of the obligations under this Lease; (c) Pay to Lessor a transfer fee of $50.00; and (d) Pay to Lessor the adjusted base rental which shall be the greater of the following: 3 above, or (i) The base rental as set forth in paragraph (ii) An amount, equal to two and one half percent (2 1/2%) of the actual sales value of the leasehold estate, including the improvements thereon, divided by twelve (12) and payable monthly. The actual sales value shall be the total value of the transfer, as established by the Assessor of Orange County or verified by Lessor. The parties to said transaction shall furnish Lessor with any information regarding the transaction as Lessor may deem necessary to verify the total value of the transaction. If said transfer transaction cannot be verified by normal and accepted methods of verification, Lessor, at its sole discretion, may cause the leasehold estate and improvements thereon to be appraised to establish the fair market value of the property, which value shall be deemed the actual sales value thereof_, as of the date of transfer, and establish thereby the adjusted base rental. The adjusted base rental shall become effective on the date of transfer. The provisions of this subparagraph shall not cause an adjustment of rentals if: (a) Lessee is assigning his interest in this Lease to a Trustee under a Deed of Trust for the benefit of the lender as provided in paragraph 5, below; or 3 lessees under the terms, conditions and for the consideration as hereinafter set forth. F. It is the judgment of Lessor that the leasing of the property hereinafter described is consistent with the trust purposes imposed upon such portions of the leased lands which may constitute tidelands as authorized by Chapter 74, Statutes of 1978. G. It is further the judgment of City that in entering into this Lease in the future, City is acting pursuant to its proprietary powers. NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING RECITALS AND THE MUTUAL COVENANTS set forth below, Lessor and Lessee hereby agree as follows: 1. DESCRIPTION OF LEASED PREMISES. Lessor hereby leases, and Lessee hereby accepts this lease of the real property described in Exhibit "2" attached hereto and made a part hereof by this reference under the terms and conditions as set forth below (hereinafter the "Leased Land"). 2. TERM. Unless terminated sooner as provided herein, the term of this Lease is for a period commencing on the lst day of January, 1988, and ending on the lst day of July 2006. 3. BASE RENTAL. As base rental, Lessee agrees to pay to Lessor the sum of�— -JDOLLARS, ($ a. ) per month, payable on the lst day of each month so long as this Lease remains in effect subject to a base rental adjustment, as provided in paragraph 4 below. Said rental payment is deemed to be the fair market rental value of the Leased Land as an improved subdivision lot. 4. SALE, ASSIGNMENT, SUBLEASE Lessee may sell, assign, exchange, convey or sublease his leasehold interest or encumber such interest without a prior written consent of Lessor; provided, however, that the Lessee, proposed transferee, assignee or encumbrancer shall: 2 (b) The transfer is caused by the death of a spouse and the full interest of the deceased spouse is transferred to the surviving spouse. 5. ENCUMBRANCES. If Lessee assigns his interest in this Lease to a Trustee under a Deed of Trust (hereinafter called "Trust Deed") for the benefit of the lender hereinafter called "Encumbrancer"), such encumbrance shall be upon and subject to the following covenants and conditions: (a) Said Trust Deed and all rights acquired there- under shall be subject to each and all of the covenants, condit- ions and restrictions set forth in this Lease and to all rights and interest of the Lessor hereunder, except as herein otherwise provided. (b) In the event of any conflict between the pro- visions of this Lease and the provisions of any such Trust Deed, the provisions of this Lease shall control. (c) Any Encumbrancer which is an established bank, savings and loan association or insurance company, and is the purchaser at a foreclosure sale, or is an assignee under an assignment in lieu of foreclosure shall be liable to perform the obligations of the Lessee under the Lease only so long as such Encumbrancer holds title to the leasehold. (d) Lessee shall furnish to Lessor a complete copy of the Trust Deed and Note secured thereby, together with the name and the address of the holder thereof. (e) Upon and immediately after the recording of the Trust Deed, Lessee, at Lessee's expense, shall cause to be recorded in the office of the Recorder of Orange County, California, a written request executed and acknowledged by Lessor for a copy of any notice of default and of any notice of sale under the Trust Deed as provided by the statutes of the State of California relating thereto. 4 (f) Lessor agrees that it will not terminate this Lease because of any default or breach hereunder on the part of Lessee if the Encumbrancer under such Trust Deed, within ninety (90) days after service of written notice on the Encumbrancer by Lessor of its intention to terminate this Lease for such default or breach, shall: (i) Cure such default or breach if the same can be cured by the payment or expenditure of money provided to be paid under the terms of this Lease; provided, however, that for the purpose of the foregoing, Encumbrancer shall not be required to pay money to cure the bankruptcy or insolvency of Lessee or to satisfy Lessee's obligations under Paragraph 12 hereof, "Indemnification", or (ii) If such default or breach is not so curable, cause the Trustee under the Trust Deed to commence and thereafter to diligently pursue to completion steps and proceed- ings for judicial foreclosure, the exercise of the power of sale under and pursuant to the Trust Deed in the manner provided by law, or accept from the Lessee an assignment in lieu of foreclo- sure; and (iii) Keep and perform all of the covenants and conditions of this Lease requiring the payment or expenditure of money by Lessee until such time as said leasehold shall be sold upon foreclosure pursuant to the Trust Deed, be released or reconveyed thereunder, sold upon judicial foreclosure or transferred by Deed in lieu of foreclosure; provided, however, if the holder of the Trust Deed shall fail or refuse to comply with any and all of the conditions of this paragraph, then and thereupon Lessor shall be released from the covenant of forebear- ance herein contained. 6. USE. The Leased Land shall be used solely for resi- dential purposes and any appurtenant uses associated therewith. Lessee agrees to comply with all laws, regulations and ordinances 9 of Lessor, the County and State affecting the Leased Land and any improvements located thereon. 7. TAXES AND UTILITIES. It is understood by Lessor and Lessee that this Lease may give rise to a possessory interest tax obligation. Lessee shall pay before delinquent all utility charges and any general and special taxes, assessments or other governmental charges, if any, which may be levied on the Leased Land, including any improvements located thereon or associated therewith, or any possessory interest therein arising out of or based upon the leasehold interest throughout the term hereof. Satisfactory evidence of such payments shall be made available to Lessor upon demand. Any lien for unpaid utilities, taxes, assessments or charges shall not attach to the leasehold interest but only to improvements located thereon. 8. USE AND MAINTENANCE OF COMMON AREA. Lessee shall have the right to use the streets, beaches, walkways, tennis courts, docks, piers, and common landscaped areas in Beacon Bay which shall be leased to the Beacon Bay Community Association by the City, in consideration of the maintenance thereof by such Association and fair market value rent to be paid by individual Lessees. Lessor shall not be obligated to make any repairs, alterations or improvements in or to, or upon or adjoining the Leased Land or any structure or other improvement that may be constructed or installed therein, but Lessee shall, at all times during the terms of this Lease and at its sole cost and expense, keep and maintain all buildings, structures and other improvements on the Leased Land in good order and repair, and the whole of the Leased Land and all improvements thereto free of weeds and rubbish, and in a clean, sanitary and neat condition. 9. COMMUNITY ASSOCIATION. Lessee agrees to be- come and during the term of this Lease remain a member in good standing of the Beacon Bay Community Association, and 0 to abide by the Articles of Incorporation, Bylaws and rules and regulations of said Association, now or hereafter existing, and to pay to said Association before delinquency all dues, fees, assessments and other charges from time to time duly levied or assessed in furtherance of the Association's community purpose. 10. COVENANTS, CONDITIONS AND RESTRICTIONS. Lessee agrees to abide and be bound by all covenants, conditions, restrictions and reservations as contained in Exhibit 113" attach- ed hereto and made a part hereof by this reference. Said cove- nants, conditions and restrictions shall run with the Leased Land and shall be binding on Lessee and Lessee's successors in interest. 11. INDEMNIFICATION. Lessee agrees that he will hold and save Lessor, its officers, agents and employees harmless from any and all claims or demands of any kind or nature whatsoever arising out of, or incident to, the use and occupancy of the Leased Land, and to indemnify Lessor for any cost, liability or expense caused by or arising out of any injury or death of persons or damage to property which may occur upon or about the Leased Land or caused by or arising out of any activities or omission of Lessee, his agents, employees, licensees, and/ or invitees, including, without limitation, injury or death of Lessee, his agents, employees, licensees and invitees and damage to his property or Lessee's property; except for any damage or injury of any kind arising out of the negligence of Lessor, its agents or employees. 12. NON-COMPLIANCE AND TERMINATION OF LEASE Time and each of the terms, covenants and condi- tions hereof are expressly made the essence of this Lease. If Lessee shall fail to comply with any of the terms, covenants or conditions of this Lease, including the pay- ment of rental herein reserved, at the time and in the amount herein required, and shall fail to remedy such default within 7 sixty (60) days and thereafter comply with each and every term of this Lease, or if a Lessee shall abandon or vacate the Leased Land, Lessor may, at its option, and without further notice or demand, terminate this Lease and enter upon the Leased Land and take possession thereof, and remove any and all persons therefrom with or without process of law. Lessor may elect to terminate this Lease for any event of default or breach hereof or of the covenants, conditions and restrictions contained in Exhibit "311. Should Lessor elect to terminate, it may recover from Lessee all damages incurred by Lessor by reason of such breach, including, without limitation, the cost of recovering the Leased Land, and the worth at the time of such termination of the excess, if any, of the amount of unpaid .rent and unpaid charges reserved under this Lease over the amount of the rental loss which Lessee proves could be reasonably avoided, for the remainder of the term of this Lease. Such amount shall be immediately due and payable from Lessee to Lessor, together with interest at the rate of 10% per annum from the date owing until paid. The remedies of Lessor specified herein are in addition to and cumulative of any remedies provided Lessor by statute, including the remedies provided in California Civil Code Sections 1951.2, et seq. 13. SURRENDER OF POSSESSION UPON EXPIRATION OR TERMINATION Upon the expiration or termination of this Lease, Lessee agrees to peaceably deliver possession of the Leased Land to Lessor and unconditionally agrees to vacate the Leased Land without contest, legal or otherwise. Lessee further expressly agrees to waive any and all legal rights it may have to contest vacating the Leased Land and further agrees to release Lessor from any and all claims it may have of whatever nature. Lessee further agrees to waive any relocation assistance or any other assistance from Lessor resulting from vacating the Leased Land. Lessee shall have the right prior to and for a period of ninety N. (90) days after the expiration of this Lease to remove any build- ings or improvements appurtenant thereto from the Leased Land, except that all streets, walkways, common area landscaping, docks, piers and any other installation constructed or installed in the common areas, shall be the property of Lessor. 14. EMINENT DOMAIN A. Definition of Terms. The term "total taking" as used in this paragraph means the taking of the entire Leased Land under the power of eminent domain or the taking of so much of said Land as to prevent or substantially impair the use there- of by Lessee for the uses and purposes hereinabove provided. The term "partial taking" means the taking of a portion only of the Leased Land which does not constitute a total taking as defined above. The term "taking" shall include a voluntary conveyance by Lessor to an agency, authority or public utility under threat of a taking under the power of eminent domain in lieu of formal proceedings. The term "date of taking" shall be the date upon which title to the Leased Land or portion thereof passes to and vests in the condemnor. The term "Leased Land" means the real property belonging to.Lessor, together with any and all improvemens placed thereon by Lessor or to which Lessor has gained title. B. Effect of Taking. If durng the term hereof there shall be a total taking or partial taking under the power of eminent domain, then the leasehold estate of the Lessee in and to the Leased Land or the portion thereof taken shall cease and terminate, as of the date of taking of said Land. If this Lease is so terminated in whole or in part, all rentals and other charges payable by Lessee to Lessor hereunder and attributable to the Leased Land or portion thereof taken shall be paid by Lessee up to the date of taking by the condemnor, and the parties shall thereupon be released from all further liability in relation thereto. D C. Allocation of Award - Total Taking. All compensation and damages awarded for the total taking of the Leased Land and Lessee's leasehold interest therein shall be allocated as follows: (a) The Lessor shall be entitled to an amount equal to the sum of the following: (i) The fair market value of the Leased Land as improved (exclusive of the dwelling and appurtenances to such dwelling) as of the date of taking, discounted by multiply- ing such fair market value by the factor for the present worth of $1.00 at -,?_% per annum compound interest for the number of years remaining from the date of taking to the date of the expiration of the term of this Lease, and (ii) The present worth of rents due dur- ing the period from the date of taking to the date of the expira- tion of the term of this Lease, computed by multiplying the annual rent then payable by the factor for the present worth of $1.00 per annum at _$.per annum compound interest (Inwood Coefficient) for the number of years in such period. (b) The Lessee shall be entitled to the amount remaining of the total award after deducting therefrom the sums to be paid to Lessor as hereinabove provided. D. Allocation of Award - Partial Taking All com- pensation and damages awarded for the taking of a portion of the Leased Land shall be allocated and divided as follows: (a) The Lessor shall be entitled to an amount equal to the sum of the following: (i) The proportionate reduction of the fair market value of the Leased Land as improved (exclusive of the dwelling and appurtenances to such dwelling) as of the date of taking, discounted by multiplying such proportionate reduction in fair market value by the factor for the present worth of $1.00 at —F—$ per annum compound interest for the number of years re- maining from the date of taking to the date of the expiration of the term of this Lease; and 10 (ii) The present worth of the amount by which the rent is reduced computed by multiplying the amount by which the annual rent is reduced by the factor for the present worth of $1.00 per annum a14 t . per annum compound interest (Inwood Coefficient) for the number of years remaining from the date of taking to the date of expiration of the term of this Lease. (b) The Lessee shall be entitled to the amount remaining of the total award after deducting therefrom the sums to be paid to Lessor as hereinabove provided. E. Reduction of Rent on Partial Takinq. In the event of a partial taking, the rent payable by Lessee hereunder shall be adjusted from the date of taking or to the date of the expiration of the term of this Lease. Such rental adjustment will be made by reducing the basic rental payable by Lessee in the ratio that the fair market rental value of the Leased Land at the date of taking bears to the fair market value of the Leased Land immediately thereafter. 15. ATTORNEYS' FEES Should either Lessor or Lessee be required to employ counsel to enforce the terms, conditions and covenants of this Lease Agreement, the prevailing party shall recover all reasonable attorneys' fees (and court fees if applic- able) incurred therein, whether or not court proceedings were commenced. 16. REMEDIES CUMULATIVE. The rights, powers, elections and remedies of the Lessor contained in this Lease shall be construed as cumulative and no one of them shall be considered exclusive of the other or exclusive of any rights or remedies allowed by law, and the exercise of one or more rights, powers, elections or remedies shall not impair or be deemed a waiver of Lessor's right to exercise any other. 17. NO WAIVER. No delay or omission of the Lessor to exercise any right or power arising from any omission, neglect or default of the Lessee shall impair any such right or power or shall be construed as a waiver of any such omission, neglect or 11 default on the part of the Lessor or any acquiescence therein. No waiver of any breach of any of the terms, cove- nants, agreements, restrictions or conditions of this Lease shall be construed as a waiver of any succeeding breach of the same or of any of the terms, covenants, agreements, restrictions or conditions of this Lease. 18. COMPLIANCE WITH LAWS. Lessee covenants and agrees to comply with all rules, regulations, statutes, ordinances and laws of the State of California, County of Orange, City of Newport Beach, or any other governmental body or agency having lawful jurisdiction over the Leased Land. 19. NOTICES. It is mutually agreed that any notice or notices provided for by this Lease or by law, to be given or served by Lessee, may be given or served by mail, registered or certified, with postage prepaid, on the City of Newport Beach addressed to the Mayor, City Manager, or City Clerk, 3300 Newport Blvd., Newport Beach, California 92663, or at such other address as may be hereafter furnished to Lessee in writing. If notice is intended to be served by Lessor on Lessee, it may be served either: personally, or A. By delivering a copy to the Lessee B. If he be absent from the Leased Land by leaving a copy with some person of suitable age and discretion who may be occupying the Leased Land, or C. If no one can be found, then by affixing a copy of the notice in a conspicuous place on the property or also sending a copy through the mail addressed to the Lessee. Such service upon Lessor or Lessee shall be deemed complete at the expiration of forty-eight (48) hours from and after the deposit in the United States mail of such notice, demand or communication. 20. HOLDING OVER. This Lease shall terminate and be- come null and void without further notice upon the expiration of said term. Any holding over shall not constitute a renewal here - 12 of, but the tenancy shall thereafter be on a month-to-month basis and otherwise on the same terms and conditions as herein set forth. 21. MISCELLANEOUS Inurement. Each and all of the covenants, condi- tions and agreements herein contained shall, in accordance with the context, inure to the benefit of Lessor and apply to and bind Lessee, his respective heirs, legatees, devisees, executors, ad- ministrators, successors, assigns, licensees, permittees, or any person who may come into possession or occupancy of said Leased Land or any part thereof in any manner whatsoever. Nothing in this paragraph shall in any way alter the provisions herein con- tained against assignment or subletting. IN WITNESS WHEREOF, the parties have caused this Lease to be executed on the date first above written. ATTEST: WANDA E. RAGG;C; t City Clerk APPROVED AS TO FORM: Af torney 13 4-21-81 C IXY OF NEWPORTBEACH gn BY Mayor Lessee EXHIBIT "1" LEGAL DESCRIPTION OF BEACON BAY A parcel of land situated in the Northwest quarter of Section 35, Township 6 South, Range 10 West, S. B. B. & M., Orange County, California, more particularly described as follows, to wit: Beginning at the United States Bulkhead Station No. 200, as shown upon a map entitled "Harbor Lines, Newport Bay Harbor, California," approved May 2, 1936, by the Secretary of War and on file in the office of the United States District Engineer at Los Angeles, California; running thence West along the United States Bulkhead line 147.50 feet to United States Station No. 137; thence North 39048' West along said Bulkhead line 535.53 feet; thence North 23057'30" East 126.34 feet to an angle point in the ordinary high tide line of the Pacific Ocean in Newport Bay, as described in Court Case No. 24026 of the Superior Court of the State of California, in and for the County of Orange; thence South 39048' East along said ordinary high tide line 334.47 feet to the most Westerly corner of that certain parcel of land conveyed to the City of Newport Beach by The Irvine Company, as described in deed recorded September 25, 1929, in Book 306, page 375 of Official Records of Orange County, California; thence North 23057'30" East along the Northwesterly line of said parcel of land 317.57 feet; thence South 71054' East along the Northerly line of said parcel of land 290.24 feet; thence South 85043' East along the Northerly line of said parcel of land, said Northerly line being the Southerly line of Bayside Drive, 606.01 feet; thence South 424.71 feet to a point in the United States Government Bulkhead Line between United States Stations Nos. 101 and 200; thence West along said Bulkhead line 784.25 feet to the point of beginning; containing approximately twelve (12) acres. Said parcel of land is shown on Attachment 2 for identification purposes only and is not to be a part of this document. 11 ('_ r dL POP, H1nOS ? -- - 1 -:: c , � III •.JI I � •� -1 1 r ) ' � I •� ' - -- 1-' ti. i< •. J.01 c I � ! 1 1 , I I III `�I - .._.1. _.�.__.__._• Y�! I. I .^ j 101 Q � O- 1 I `� t , — 1 (I "' ,. i `^ •`.I I 4- 1 y'- � • 1 - - -! 1 I- --•-- Q l—J Z---- -'------ T- +fir!- 3 101 G;'Od U��IOOH✓S �'3nd.5 ; - --: `1 - i!j I�' ! '� ! 1 �!! 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L-3 4 - Relationship with Mortgage Liens 5 - Curing of Default V ARCHITECTURAL CONTROL 1 - Appointment of Architectural Committee 2 - General Provisions 3 - Approval and Conformity of Plans 4 - Nonliability for Approval of Plans VI DUTIES AND POWERS OF THE ASSOCIATION 1 - General Duties and Powers 2 - General Duties of the Association 3 - General Powers of the Associationon 4 - Association Rules VII REPAIR AND MAINTENANCE 1 -- Repair and Maintenance by Association 2 Repair and Maintenance by Lessee 3 Maintenance of'Public Utilities VIII USE RESTRICTIONS 1 - Commercial Use 2 - Signs 3 - Nuisance 4 - Animals 5 - California Vehicle Code IX RIGHTS OF ENJOYMENT 1 - Members' Right of Enjoyment 2 - Delegation of Use 3 - Waiver of Use X GENERAL PROVISIONS 1 - Enforcement 2 No Waiver 3 - Cumulative Remedies 4 - Severability 5 - Covenants to Run with the Land; Term 6 -- Heading 7 - Singular Includes Plural 8 - Attorneys' Fees 9 - Notices 1�- Effect of Declaration 11- Personal Covenant l�- Nonliability of Officials 13- Subleases ?- Amendments 8 9 9 9 9 10 10 10 10 11` 11 11 12 12 12 12 12 12 13 13 13 13 13 13 14 14 14 14 15 15 15 15 15 15 16 16 16 16 17 17 17 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS BEACON BAY COMMUNITY ASSOCIATION ORANGE COUNTY, CALIFORNIA THIS DECLARATION is made this day of by the City of Newport Beach a chartered municipal corporation. Said corporation, its successors and assigns, shall hereafter be referred to as "Declarant." R E C I T A L S A. Declarant is the fee owner of the real property described in Exhibit A to this Declaration, which shall be the Covered Property under this Declaration. This Declaration is being imposed by Declarant upon the Covered Property. B. Declarant has deemed it desirable to establish covenants, conditions and restrictions upon the Covered Property and each and every portion thereof, which will constitute a general scheme for the management of the Covered..Property, and for the use, occupancy and enjoyment thereof, all for the purpose of enhancing and protecting the value, desirability and attractiveness of the Covered Property and enhancing the quality of life within the Coverer; Property. C. It is desirable for the efficient management of the Covered Property and the preservation of the value, desirability and attractiveness of the Covered Property to delegate and assigned the powers of managing the Covered Propertv, maintaining and administering the Common Area and ad7l-nistering and enforcing these covenants, conditions and restrictions and collecting and disbursing funds :)�':.suant to the assessment and charges hereinafter create= and referred to and to perform such other acts as shall ge^erally benefit the Covered Property to the Beacon Bay C:<:: -;°.unity Assocation, a California nonprofit corco_a ion. D. Declarant will. hereafter hold title to and lease all c- =! Covered Property subject to certain protective covenants, conditions and restrictions hereafter set forth. Beacon =v 9/20/7° Rev. 9/24/79 NOW, THEREFORE, Declarant hereby covenants, agrees and declares that all of its interest as the same may from time to time appear in the Covered Property shall be held and conveyed subject to the following covenants, conditions, restrictions and easements which are hereby declared to be for the benefit of said interests in the Covered Property, and the owners of said interests, their successors and assigns. These covenants, conditions, restrictions and easements shall run with said interests and shall be binding upon all parties having or acquiring any right or title in said interests or any part thereof, and shall inure to the benefit of each owner thereof and are imposed upon said interests and every part thereof as a servitude in favor of each and every of said interests as the dominant tenement or tenements. ARTICLE I DEFINITIONS Unless the context clearly indicates otherwise, the following terms used in this Declaration are defined as follows: Section 1. "Architectural Committee" shall mean and refer to the committee or committees provided for in the Article hereof entitled "Architectural Control Section 2. "Articles" and "Bylaws" shall mean and refer to she Articles of Incorporation and Bylaws of the Association as the same may from time to time be duly amended. ` Section 3. "Assessments:" The following meanings shall be given to the Assessments hereinafter defined: "Regular Assessment" shall mean the amount which is to be paid by each Member of the Association for Common Expenses. "Special Assessment" shall mean a charge against a part- cular Lessee and his Residence, directly attributable to the Lessee, to reimburse the Association for costs incurred in bringing the Lessee and his Residence into compli..ance with the provisions of this Declaration, the Artie --s, Bylaws or Association Rules, or any other charge designed as a Special Assessment, together with attofneys' fees and other charges payable, plus interest thereon as provided for in this Declaration. Beacon Bay 9/20/79 2 Rev. 9/24/79 ZC� Section 4. "Association" shall mean and refer to Beacon Bay Community Assocation, a nonprofit corporation, incorporated under the laws of the State of California, its successors and assigns. Section 5. "Association Rules" shall mean rules adopted by the Association pursuant to the Article hereof entitled "Duties and Powers of the Association." Section 6. "Board" shall mean the Board of Directors of the Association. Section 7. "City" shall mean and refer to the City of Newport Beach, California, a municipal corporation of the State of California. Section 8. "Common Expenses" shall mean and refer to the actual and estimated costs of: (a) maintenance, management, operation, repair and replacement of the Common Area, and all other areas on the Covered Property which are maintained by the Association; (b) maintenance by the Association of areas within the public right-of-way of public streets in the vicinity of the Covered Property as provided in this Declaration or pursuant to agreements with the City; (c) costs of management and administration of the Association, including, but not limited to, compensation paid by the Association to managers, accountants, attorneys and employees; (d) the costs of utilities, gardening and other services which generally benefit and enhance the value and desirability of the Community Facilities; (e) the costs of fire, casualty, liability, workmen's co:,pensation and other insurance covering the Common Area; ,L) the costs of any other insurance obtained by the Association; (g) reasonable reserves as deemed appropriate by the Boar; (;) the costs of bonding of the members of the Board, any, professional managing agent or any other person handling the funds of the Association; Beacon: Bay 9/20/;: 3 Rev. 9/24/79 (i) taxes paid by the Association; (j) amounts paid by the Association for discharge of any lien or encumbrance levied against the Common Area or portions thereof; •(k) costs incurred by the Architectural Committee or other committee established by the Board; and (1) other expenses incurred by the Association for any reason whatsoever in connection with the Commo: Area, or the costs of any other item or items designated .,y this Declaration, the Articles, Bylaws or Association Rules, or in furtherance of the purposes of the -Association or in the discharge of any duties or powers of the Association. Section 9. "Common Area" shall mean all streets, beaches, walkways, tennis courts, docks, piers, and common landscaped areas, including but not limited to Lots A through J inclusive as shown on Exhibit'U". Section 10. "Covered Property" shall mean and refer to all the real property described on Exhibit Section 11. "Declarant" shall mean and refer to the City of 1,lewport Beach. Section 12. "Exhibit" shall mean and refer to those documents so designated herein and attached hereto and eac�� of such Exhibits is by this reference incorporate.. in this Declaration. Section 13. "Member shall mean and refer to every person or entity who qualifies for membership pursuant to the Article of this Declaration entitled "Membership." Secticn IL4. "Lessee" shall mean and refer to one or more persons or entities who are alone or collectively the lessees of a Residence. Sec=_o: 15. "Residence" shall_ mean and refer to a n;;,,.:-,�-er'_ lot shown on the Record of Survey Pap of Beacon Bay ;•_,:�dlvision recorded in Book 9, pages 42 and 43, Rec�r�� of Survey, on file in the office of the County Rec';rf?r, Orange County, California; provided, however, ��Resic--,ce" shall not include any Common Area. 'Ijl _•-:c� " shall include the residential dwelling unit Ber. cc . .Y 4 Rev. 9/24/79 together with garages, structures and other improvements on the same lot or parcel. Section 16. "Setback" shall mean and refer to those internal distances from the property line of each lot as shown on Exhibit "II". ARTICLE II MEMBERSHIP Section 1 - Membership. Every Lessee shall be a Member but there shall be only one Membership per Residence. The term and provisions set forth in this Declaration, which are binding -upon all Lessees are not exclusive, as Lessees shall, -in addition, be subject to the terms and provisions of the Articles, Bylaws and Association Rules to the extent the provisions thereof are not in conflict with this Declaration.- Membership of Lessees shall be appurtenant to and may not be separated from the interest of such Lessee in any Residence. Ownership of a Residence shall be the sole qualification for membership; provided, however, a Member's voting rights may be regulated or suspended as provided in this Declaration, the Bylaws or the Association Rules. Section 2 - Transfer. The membership held by any Lessee shall not be transferred, pledged or alienated in any way, except that such membership shall automatically be transferred to the transferee of the interest required for meml;ership. Any attempt: to make a prohibited transfer is void and will not be reflected upon the books and records of the Association. The Association shall have the right to record the transfer upon the books of the Association without any further action or consent by the transferring Lessee. Section 3 - Voting Rights. All voting right shall be subject to the restrictions and limitations provided herein and i'n the Articles, Bylaws and Association Rules. Section 4_- Classes of Voting Membership. The Association shill :ave one (1.) class of voting membership. Sec" ic - A_proval _of Members. Unless elsewhere o-'e-:.iSe specifically provided in this Declaration or the any provision of this Declaration or the Bylaws Beacon 9/20/79 Rev. 9/24/79 which requires the vote or written assent of the voting power of the Association shall be deemed satisfied by the following: (a) The vote in person or by proxy of the specified percentage at a meeting duly called and noticed pursuant to the provisions of the Bylaws dealing with annual or special meetings of the Members. (b) Written consents signed by the specified percentage of Members as provided in the Bylaws. ARTICLE III COVENANT FOR MAINTENANCE ASSESSMENTS Section 1 - Creation of the Lien and Personal Obligation of Assessments. Each Lessee is deemed to covenant and agree to pay to the Association: Regular and Special Assessments, such Assessments to be fixed, established and collected from time to time as provided in this Declaration. The Assessments, together with interest thereon, late charges, attorneys' fees and court costs, and other costs of collection thereof, as hereinafter provided, shall be a continuing lien upon the Residence against which each such Assessment is made and shall also be the personal obligation of the Lessee of such Residence at the time when the Assessment becomes due. Notwithstanding the foregoing, the Assessment lien shall not affect the priority of any other existing liens. Section 2 - Purpose of Assessments. The Assessments levied by the Association shall be used exclusively to defray Common Expenses. Section 3 - Regular Assessments. Each year the Board shall determine the amount of the Regular Assessment to be paid by each Member. The Regular Assessment shall be due and :payable on such dates as the Board may establish. Each 'iember shall be sent written notice of the Regular Asse=-,lent and shall thereafter pay the Association in inst .!Invents as established by the Board. Sect:,:: 4 - Uniform Assessment. Regular Assessments shall be fxed at an equal amount for each Residence. Section 5 - Special Assessments. Special Assessments may be 1::vic:d by the Board from time to time. Beacon Bay 9/20/79 6 Rev. 9/24/79 Section G - No Offsets. All Assessments shall be payable in the amount specified by the Assessment and no offsets against such amount shall be permitted for any reason, including, without limitation, a claim that (i) the Association is not properly exercising its duties and powers as provided in this Declaration; or (ii) a Member has made and elects to make no use of the Common Areas. Section 7 - Reserves. The Regular Assessments may include reasonable amounts as determined by the Board collected as reserves for the future periodic maintenance, repair or replacement of all or a portion of the Common Area, or any other purpose as determined by the Board. All amounts collected as reserves, whether pursuant to this Section or otherwise, shall be deposited by the Board in a separate bank account to be held in trust for the purposes for which they are collected and are to be segregated from and not commingled with any other funds of the Association. Such reserves shall be deemed a contribution to the capital account of the Association by the Member. ARTICLE Iv NONPAYMENT OF ASSESSMENTS Section 1 - Delinquency. Any assessment provided for in this Declaration which is not paid when due shall be delinquent on said date (the "delinquency date"). If any such Assessment is not paid within ten (10) days after delivery of notice of such delinquency from the Association, a late charge as established by the Board shall be levied and the Assessment shall bear interest from the delinquency date at the rate of ten percent (10%) per annum. The Association may at its option, and without waiving the right to judicially foreclose its. lien against the Residence, pursue any available remedies, including, without limitation, bringing an action at law against the Member personally obligated to pay the same, and/or upon comoliance with the notice provisions set forth in the Sect -ion entitled "Notice of Lien" of this Article to fore,' or e:;'_ose the lien against the Residence. If action is ^ co-;_ced, there shall be added to the amount of such Assessment the late charge, interest, the costs of such action, and attorneys' fees incurred in connection with suc- action; and in the event a judgment is obtained, such juc;sent shall include said late charge, interest and a re-7-Zonable attorney's fee, together with the costs of action. Each Member vests in the Association, or its 4ssig:.�, the right and power to bring all actions at law Bea c n Bay 9/2o',/-/9 7 Rev. 9/24/79 or lien foreclosure against such Member or other Members for the collection of such delinquent Assessments. Section 2 - Notice of Lien. No action shall be brought to foreclose said Assessment lien or to proceed under the power of sale herein provided until thirty (30) days after the date a notice of claim of lien is deposited in the United States mail, certified or registered, postage prepaid, to the Lessee of said Residence, and a copy thereof is recorded by the Association in the office of the County Recorder of the County; said notice of claim of lien must recite a good and sufficient legal description of any such Residence, the record Lessee or reputed Lessee thereof, the amount claimed which shall include interest on the unpaid Assessment at the rate of ten percent (10%) per annum, a ]_ate charge as established by the Board, plus reasonable attorneys' fees and expenses of collection in connection with the debt secured by said lien, and the name and address of the claimant. Section 3 - Foreclosure Sale. Said Assessment lien may be enforced by sale by the Association, its attorney or any other person authorized by the Board to make the sale after failure of the Lessee to make the payments specified in the notice of claim of lien within said thirty (30) day period. Any such sale provided for above is to be conducted in accordance with the provisions of Sections 2924, 2924b, 2924c, 2924f, 2924g and 2924h of the Civil Code of the State of California as said statutes may from time to time be amended, applicable to the exercise of powers of sale in mortgages and deeds of trust, or in any other manner_ permitted or provided by law. Upon the affirmative vote of a majority of the voting power of the Association, the Association, through its duly authorized agents, shall have the power to bid on the Residence, using Association funds, or funds borrowed for such purpose, at the sale, and to acquire and hold, lease, mortgage and convey the same. Section 4 - Relationship with Mortgage Liens. (a) The lien provided for in the Article hereof entitle? "Nonpayment of Assessments" for the payment of Assesses-nts shall be subordinate to the lien of any Mortc=-e which was recorded prior to the date any such Assess --e t becomes due. (b) If any Residence subject to a monetary lien created ,1.any provision hereof shall be subject to the lien oL a Mortgage: (1) the foreclosure of any lien creat_•: not operate to affect or impair the lien of such Mortgage; and (2) the foreclosure of the lien of said Mortgage, or the sale under a power of sale included in such Mortgage (such events being hereinafter referred to as "Events of Foreclosure") shall not operate to affect or impair the lien hereof, except that any persons who obtain an interest through any of the Events of Foreclosure, and the successors in interest, shall take title free of the lien hereof or any personal obligation for said charges as shall have accrued up to the time of any of the Events of Foreclosure, but subject to the lien hereof for all said charges that shall accrue subsequent to the Events of Foreclosure. Section 5 - Curing of Default. Upon the timely payment or other satisfaction of: (a) all delinquent Assessments specified in the notice of claim of lien, (b) all other Assessments which have become due and payable with respect to the Residence as to which such notice of claim of lien was recorded, and (c) interest, late charges, attorneys' fees and other costs of collection pursuant to this Declaration and the notice of claim of lien which have accrued, officers of the Association or any other persons designated by the Board are hereby authorized to file or record, as the case may be, an appropriate release of such notice, upon payment by the defaulting Lessee of a fee, to be determined by the Association, but not to exceed Fifty Dollars ($50.00) to cover the costs of preparing and filing or recording such release. ARTICLE V ARCHITECTURAL CONTROL Section 1 - Akppointment of Architectural Committee. The Architectural Committee shall consist of not less than three (3) nor more than five (5) persons as fixed from time to time by resolution of the Board. The Board shall have the right to appoint the members of the Architectural Committee. Persons appointed by the Board to the Architectural Committee, however, must be Member. Section 2 - General Provisions. (a) The Architectural Committee may establish reasc;nable procedural rules and assess a fee in connection with r:°view of plans and specifications including, without limitation, the number of sets of plans to be submitted; Beacon 9/20/79 9 Rev. 9/24/79 however, the Architectural Committee may delegate its plan review responsibilites to one or more members of such Architectural Committee. Upon such delegation, the approval or disapproval of plans and specifications by such persons shall be equivalent to approval or disapproval by the entire Architectural Committee. (b) In the event the Architectural Committee fails to approve or disapprove such plans and specifications within thirty (30) days after the same have been submitted in accordance with any rules regarding such submission adopted by the Architectural Committee, such plans and specifications will be deemed approved. (c) Nothing in this Declaration or in the Association's Articles, Bylaws or Rules shall be construed or amended to allow the Architectural Committee to modify or eliminate the Setback requirements shown on the Beacon Bay Subdivision Survey Map, and any attempt to do so shall have no effect. Section 3 - Approval and Conformity of Plans. No building, fence wall or other structure shall be commenced, erected or maintained upon the Covered Property, nor shall there be any addition to or change to the exterior of any Residence, structure or other improvement except in compliance with plans and specifications therefor which have been submitted to and approved by the Architectural Committee as to harmony of external design and location in relation to surrounding structures and topography. Section 4 - Nonliability for Approval of Plans. Plans and specifications shall be approved by the Architectural Committee as to style, exterior design, appearance and location, and are not approved for engineering design or for compliance with zoning and building ordinances, and by approving such plans and specifications neither the Architectural Committee, the members thereof, the Association, the Members, the Board nor Declarant assumes liabilit- or responsibility therefor, or for any defect in any structure constructed from such plans and speci-ications. ARTICLE VI DUTIES AND POWERS OF THE ASSOCIATION Section l - General Duties and Powers. In addition to the dutipowers enumerated in its Articles and Bylaws, Beacon Bay 9/20/79 10 Rev. 9/24/79 or elsewhere provided for herein, and without limiting the generality thereof, the Association shall have the specific duties and powers specified in this Article. Section 2 - General Duties of the Association. The Association through the Board shall have the duty and obligation to: (a) enforce the provisions of this Declaration, the Articles, Bylaws, and Association Rules, by appropriate means and carry out the obligations of the Association hereunder; (b) maintain and otherwise manage the Common Area; (c) pay any real and personal property taxes and other charges assessed to or payable by the Association; and (d) obtain and continue in effect during the term of of the lease, in its own name a comprehensive policy of public liability insurance proving coverage for the common area, and a policy of fire and casualty insurance with coverage as the Board deems appropriate. Section 3 - General Powers of the Association. The Association through the Board shall have the power but not the obligation to: (a) employ a manager or other persons and contract with independent contractors or managing agents to perform all or any part of the duties and responsibilities of the Association; (b) borrow money as may be needed in connection with the discharge of the Association's powers and duties; and (c) establish and maintain a working capital and conting_ncy fund in an amount to be determined by the Boarca. Said fund shall be used by the Board as it deems fit to carry out the objectives and purposes of the As F, o_. _ _- I on . Sect an_ - Association Rules. The Board shall have the c?opt, a,, end, and repeal such rules and reg._:i as it -eems reasonable (the "Association Rul In the event of any conflict between any such Assc: _,--i )n Rule: and any other provisions of this or the Articles or Bylaws, the provisions of the pati. ?.. Rules shall- be deemed to be superseded by the _ _ .,ion of this Declaration, the Articles or the Bylaws the extent: of any such conflict. 9/20/7c-. 11. Rev. 9/24/79 5/4/81 ARTICLE VII REPAIR AND MAINTENANCE Section 1 - Repair and Maintenance by Association. The Association shall have the duty to: (a) maintain, repair, restore, replace and make necessary improvements to the Common Area; (b) maintain all other facilities, equipment, services or aesthetic components of whatsoever nature as may from time to time be requested by the vote or written consent of a majority of the voting power of the Members; (c) pay out of the general funds of the Association the costs of any maintenance and repair made.pursuant to this section, except as otherwise herein specified as payable by particular Lessees. Section 2 -_Repair and Maintenance by Lessee. Except as the Association shall be obligated to maintain and repair as may be provided in this Declaration, every Lessee shall: (a) maintain all portions of the exterior of his Residence, including without limitation, the walls, fences and roof of such Residence in good condition and repair; and (b) install and thereafter maintain in attractive condition yard landscaping in accordance with the provisions of this Article. Section 3 - Maintenance of Public Utilities. Nothing contained herein shall require or obligate the Association to maintain, replace or restore the underground facilities or public utilities which are located within easements in the Ccmimton Area owned by such public utilities. However, the Association shall take such steps as are necessary or convenient to ensure that such facilities are properly maintained, replaced or restored by such public utilities. ARTICLE VIII USE RESTRICTIONS Section1 - Commercial Use. No part of a Residence shall be us -d for any business, commercial, or nonresidential purposes. Beacon 3 ay 9/20/79 12 Rev. 9/24/79 Section 2 - Signs. No sign or billboard of any kind shall be displayed to the public view on any portion of the Covered Property; provided, however, that a Member may display on his Residence, a sign advertising its sale or lease so long as such sign shall comply with any customary and reasonable standards promulgated by the Board. Section 3 - Nuisance. No noxious or offensive activity shall be carried on upon any Residence, or any part of the Covered Property nor shall anything be done thereon which may be, or may become an annoyance or nuisance to the neighborhood, or which shall in any way interfere with the quiet enjoyment of each of the Lessees of his respective Residence. Section 4 - Animals. No animals, livestock or poultry of any kind shall be raised, bred or kept upon the Covered Property, except that dogs, cats or other household pets may be kept on the Residences, provided they are not kept, bred or maintained for any commercial purpose, or in numbers deemed unreasonable by the Board. Notwithstanding the foregoing, no animals or fowl may be kept on the Residences which in the good faith judgment of the Board or a committee selected by the Board for this purpose, result in any annoyance or are obnoxious to residents in the vicinity. All animals except cats permitted to be kept by this Section shall be kept on a leash when on any portion of the Covered Property except within a Residence. Section 5 - California Vehicle Code. The City may be allowed to impose and enforce all provisions of the applicable California Vehicle Code sections on any private streets within the Covered Property. ARTICLE IX RIGHTS OF ENJOYMENT. Section_ 1 —Members' Right of Enjoyment. Every Member shall have nonexclusive easement for use and enjoyment in and to the Common Area and such right shall be appurtenant to and shall pass with the interest required to be a Lessee to every Residence, subject to all of the ease;e ts, covenants, conditions, restrictions and other provisions contained in this Declaration, including, without limitation, the following provisions: Beacon Bay 9/20/79 13 Rev. 9/2.4/79 (a) The right of the Association to limit the number of guests of Members and to limit the use of the Common Area by persons not in possession of a Residence, but owning a portion of the interest in a Residence required for membership. . .(b) The right of the Association to establish reasonable rules and regulations pertaining to the use of the Common Area. Section 2 - Delegation of Use. Any Member may delegate his right of enjoyment to the Common Areas to the members of his family or his tenants -who reside on his Residence, or to his guests, subject to the rules and regulations adopted by the Board. In the event and for so long as a Lessee delegates said rights of enjoyment to his tenants, said Lessee shall not be entitled to said rights unless both he and the tenant reside on the Residence in separate dwelling units which conform to all applicable municipal laws and regulations. Section 3 - Waiver of Use. No member may exempt himself from personal liability for assessments duly levied by the Association, or release the Residence owned by him from the liens, charges and other provisions of this Declaration, the Articles, Bylaws and Association Rules, by waiver of the use and enjoyment of the Common Area, or the abandonment of his Residence. ARTICLE X GENERAL PROVISIONS Section 1 - Enforcement. The Association, or any Lessee, shall have the right to enforce by proceedings at law or in equity, all restrictions, conditions, covenants and reservations, now or hereafter imposed by the provisions of this Declaration or any amendment thereto, including the right to prevent the violation of such restrictions, conditions, covenants, or reservations and the right to recover �amages or other dues for such violation. The Association or any Lessee shall also have the right to enforce proceedings at law or in equity the provisions of the 'articles or Bylaws and any amendments thereto. With r Soect to architectural control and Association Rules, the Association shall have the exclusive right to the enf-:rcement thereof unless the Association refuses or is unable to effectuate such enforcement, in which case any Lessee who otherwise has standing shall have the right to undertake such enforcement. With respect to Assessment Beacon 0;ay 9/20/79 14 Rev. 9/24/79 Liens, the Association shall have the exclusive right to the enforcement thereof. Section 2 - No Waiver. Failure by the Association or by any Member to enforce any covenant, condition, or restriction herein contained, or the Articles, Bylaws or Association Rules, in any certain instance or on any particular occasion shall not be deemed a waiver of such right on any such future breach of the same or any other covenant, condition or restriction. Section 3 - Cumulative Remedies. All rights, options and remedies of Declarant, the Association, or the Lessees under this Declaration are cumulative, and no one of them shall be exclusive of any other, and Declarant, the Association, and the Lessees shall have the right to pursue any one or all of such rights, options and remedies or any other remedy or relief which may be provided by law, whether or not stated in this Declaration. Section 4 - Severability. Invalidation of any one or a portion of these covenants, conditions or restrictions by judgment or court order shall in no way affect any other provisions which shall remain in full force and effect. Section 5 - Covenants to Run with the Land; Term. The covenants, conditions and restrictions of this Declaration shall run with and bind the Covered Property and shall inure to the benefit of and be enforceable by the Association or any Lessee, their respective legal representatives, heirs, successors and assigns, for a term of twenty five (25) years from the date this Declaration is recorded, after which time said covenants, conditions and restrictions shall be automatically extended for successive periods of ten (10) years, unless an instrument, signed by the Declarant and a majority of the then Lessees, has been recorded at least one (1) year prior to the end of any such period, agreeing to change said covenants, conditions and restrictions in whole or in part. Section o'—_Heading. The Article and Section headings have been inserted for convenience only, and shall not be consiuered or referred to in resolving questions of interpretation or construction. Section 7 - Singular Includes Plural. Whenever the context of this Declaration requires same, the singular shall include the plural and the masculine shall include the f emi nine and the neuter. Beacon Ba,i 9/20/79 15 Rev. 9/24/79 Section 8 - Attorneys' Fees. In the event action is instituted to enforce any of the provisions contained in this Declaration, the party prevailing in such action shall be entitled to recover from the other party thereto as part of the judgment, reasonable attorneys' fees and costs of such suit. Section 9 - Notices. Any notice to be given hereunder shall -be in writing and may be delivered as follows: (a) Notice to a Lessee shall be deemed to have been properly delivered when delivered to the Lessee's Residence, or placed in the first class United States mail, postage prepaid, to the most recent address furnished by such Lessee in writing to the Association for the purpose of giving notice, or if no such address shall have been furnished, then to the street address of such Lessee's Residence. Any notice so deposited in the mail within the City shall be deemed delivered forty-eight (48) hours after such deposit. In the case of co -Lessees any such notice may be delivered or sent to any one of the co -Lessees on behalf of all co -Lessees and shall be deemed delivery on all such co -Lessees. (b) Notice to the Association shall be deemed to have been properly delivered when placed in the first class United States mail, postage prepaid, to the address furnished by the Association or the address of its principal place of business. (c) The affidavit of an officer or authorized agent of the Association declaring under penalty of perjury that a notice has been mailed to any Lessee or Lessees, or to all Members, to the address or addresses shown on the records of the Association, shall be deemed conclusive proof of such mailing, whether or not such notices are actually received. Section 10 - Effect of Declaration. This Declaration is made for the purposes set forth in the Recitals to this Declaration and Declarant makes no warranties or representations, express or implied as to the binding effect or enforceability of all or any portion of this Declaration, or as to the compliance of any of these Provisions with public laws, ordinances and regulations applicable thereto. Section 11 - Personal. Covenant. To the extent the acce^tance or conveyance of a Residence creates a personal covenant between the Lessee of such Residence and Declarant or other Lessees, such personal covenant shall Beacon -.av 9/20/79 16 Rev. 9/24/79 terminate and be of no further force or effect from or after the date when a person or entity ceases to be an Lessee except to the extent this Declaration may provide otherwise with respect to the payment of money to the Association. Section 12 - Nonliability of Officials. To the fullest extent permitted by law, neither the Board, the Architectural Committee, and other committees of the Association or any member of such Board or committee shall be liable to any Member or the Association for any damage, loss or prejudice suffered or claimed on account of any decision, approval or disapproval of plans or specifications (whether or not defective), course of action, act, omission, error, negligence or the like made in good faith within which such Board, committees or persons reasonably believed to be the scope of their duties. Section 13 - Subleases. Any agreement for the subleasing or rental of Residence (hereinafter in this Section referred to as a "lease") shall provide that the terms of such lease shall be subject in all respects to the provisions of this Declaration, the Articles, the Bylaws and the Association Rules. Said lease shall further provide that any failure by the lessee thereunder to comply with the terms of the foregoing documents shall be a default under the lease. All leases shall be in writing. Any Lessee who shall lease his Residence shall be responsible for assuring compliance by such Lessee's lessee with this Declaration, the Articles, the Bylaws and the Association Rules. Section 14 - Amendments. Subject to the other provisions of this Declaration, this Declaration may be amended as follows: (a) Any amendment or modification of the Articles hereof entitled "Covenant for Maintenance Assessments," "Nonpayment of Assessments," "Architectural Control," and "Repair and Maintenance," or of this Section shall require the affirmative vote or written approval of not less than sixty percent (600) of the Members. (b) Any amendment or modification of any Article other 4.---n those specified in subparagraph (a) above shall require the affirmative vote or written approval of a major i tv of the memIcers. (c) An amendment or modification that requires the vote and written assent of the Members as hereinabove Beacon E_y 9/20/79 17 Rev. 9/24/79 provided shall be effective when executed by the President and Secretary of the Association who shall certify that the amendment or modification has been approved as hereinabove provided, and when recorded in the Official Records of the County. The notarized signatures of the Members shall not be required to effectuate an Amendment of this Declaration. (d) Notwithstanding the foregoing, any provision of this Declaration, or the Articles, Bylaws or Association Rules which expressly requires the approval of a specified percentage of the voting power of the Association for action to be taken under said provision can be amended only with the affirmative vote or written assent of not less than the same percentage of the Voting Power of the Association. IN WITNESS WHEREOF, Declarant has executed this instrument the day and year first herein above written. ATTEST: City Clerk APPROVED AS TO FORM: City Attorney Beacon Lav 9/20/79 CITY OF NEWPORT BEACH, a chartered municipal corporation By: Mayor 18 Rev. 9/24/79 STATE OF ) ss. COUNTY OF ) On , 19 , before me the undersigned, a Notary Public in and for said State, personally appeared , known to me to be. the of the corporation that executed the within Instrument, known to me to be the person who executed the within Instrument on behalf of the corporation therein named, and acknowledged to me that such corporation executed the within instrument pursuant to its bylaws or a resolution of its board of directors. WITNESS my hand and official seal. [Seal) Beacon: 'B y 9/20/79 032381 19 Notary Public Rev. 9/24/79 1 J I I ... .. ��� - � ,..I � I .., ���•,� III �• �.�-, 1� 1 �-n� -, ? , i—_ -�- ='•i i �—'-�- '. I I m I 1 I I m 1 1 m I I I I t 4 •. t.. .. I I LJ I j 1---J l L_io_II _J i II • " _J - 9 J.0-1 UL/OU 71vi VA I z I i l H i to 1, H I 1-0 t. 3 10-1 (3AOOA-13a 1!031 , VM,'17V/AI H o: a n I I .-.•- I I cuI I m`;i I n7 L i L 1 LA-_ - --! ---J .I ---J. ----J --1J. 3 101 OVO?J ?I_71VOOHOS ani •s T_T_T 1 11^ --_ I I ----- - I I I i i—_ -�- ='•i i �—'-�- '. 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In (Lm � K2 cv7 i n Q �o r- - l I i to 1, o I Lo I I 1-0 •Q ci �n �� I o: � n _ V 1071 GVO&' (Y-Y—/-Z/?O 107 7V1V011Y3TJ03U E `� -- sr � /1, �.\ Off) . • cx n O P 3 Ln QN c ,'� N U7 O / ♦ \ 7 ~ N ✓ \ v lit 1 J Li vi :Lu z / `, / J Q i`� 31/G \� •'\ / 5' / 0 CJ J W W V = Q (J O • � _ � W J Z Q r 7 /. K2 cv7 i n Q �o / V •Q ci �n �� I o: � n EXHIBIT "D" 1 of 2 Pages N t0 m O't^p C t0 O N M tp m 1n T M t0 t0 M Ol 1� N 4 > + N N P w 1, Ol m m O_ O + + + + + + + a N t0 10 l0 Co M N 1- to M N n P N Ol W M M N Ol O Ol N V1 O N N M 10 N r t0 t0 N Ol m O h t0 W N W N I II 11 11 11 II II II II II II II II N 11 II II mm N N N N N tO0 tOD M M N N N N N N [y] W N O N O P O t0 P O t0 P ON O P O P O P M O P M O N O N O O O O O I Wa XI x X X X x x x x x x x x x x x U Z t0 t\ t0 n t0 !\ t0 t\ t0 n t0 !\ t0 n t0 n t0 !\ N Vf N V1 N W N N N lA N h a U M Ol M M M M M M M M N N N N N N Q' vl .N.. 0) 0f .N.. Ol .N.. 0) v Ol .N.. Ot .^... 0f v Ol .N.. 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Q W .-, — — — .-I — — — — N N N N Q 4 C 4 U If pyo ca3 a c v c Q m x oaa �,o 2 C N P 1A t0 1� W O1 cl a d 4 ti 1++ .-� .M-, .-� N N f") M P P O t0 .r t0 N l" M 1, P W 1n co o �aS U wmwU N II II II °.Z _ m M P 1A 10 m 11"'^ 3 ,p m N N W M m P m 1n W 10 aaU zao m -- - - m EXHIBIT "D" 1 of 2 Pages l m a+ II I II 1D m M 11 t0 m M 11 In 11 In II IA 11 Ol O II Ot O II N O 11 N O Y Of O II OZ O N II V'V' O 0 II In O 11 II In O N W XI In O x In O x eT O x V' O x Q O x w ? 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EXHIBIT "D" 2 of 2 Pages RESOLUTION NO. 10040 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING AN AGREEMENT TO LEASE AND LEASE OF BEACON BAY RESIDENTIAL LOTS AND AGREEMENT TO LEASE AND LEASE OF BEACON BAY COMMON AREA CONSISTENT WITH CHAPTER 74, STATUTES OF 1978 AND THE CHARTER OF THE CITY OF NEWPORT BEACH WHEREAS, the City owns certain tidelands and uplands in an area known as Beacon Bay; and WHEREAS, on January 9, 1950 City entered into a master lease to said property with Carroll B. Beek, Barton Beek, Joseph Allan Beek, Jr. and Seymour Beek jointly, which master lease expires on December 31, 1987; and WHEREAS, the westerly portion of the Beacon Bay property has been divided into individual lots and sublet for residential purposes; and WHEREAS, all said subleases will expire on the same date as the master lease, December 31, 1987; and WHEREAS, the City Council finds it to be in the public interest and the welfare of the City that the portion of Beacon Bay which is currently leased for residential purposes remain residental in character and that to enter into new agreements to lease with the sublessees under terms and conditions set forth in the Agreement to Lease and Lease is in the public interest; and WHEREAS, the City Council finds that it is in the best interest and welfare of the City that the streets, walkways, common areas, landscaped areas, beaches and other areas presently leased to the Beacon Bay Community Association should remain in said status in consideration of the Beacon Bay Community Association maintaining said areas at no expense to the City and further providing that the areas designated as tidelands within said leased area remain open, available and accessible to the public; and WHEREAS, Chapter 74, Statutes of 1978 permits the leasing of the residential lots in Beacon Bay which are located on tidelands; and WHEREAS, said Statute provides that the maximum term of leases of residential lots in Beacon Bay located on tidelands shall not exceed fifty years; and WHEREAS, Section 1402 of the Charter of the City of Newport Beach permits the leasing and re-leasing of water front property, provided the property was under lease as of January 11, 1957, the date of adoption of said provision of the Charter of the City of Newport Beach; and WHEREAS, the City Council hereby finds that the maximum lease term for the residential lots in Beacon Bay shall not exceed twenty-five years for the following reasons: A. Section 420 of the Charter of the City of Newport Beach prohibits the City entering into a lease in excess of twenty-five years without voter approval. B. The City Council finds it undesirable to commit the residential portion of Beacon Bay to residential use for a period longer than twenty-five years. At the termination of a twenty- five year lease renewal, the City Council of the City of Newport 2 Beach will be given another opportunity to determine whether or not residential uses on that property are appropriate or whether other uses are more appropriate. A lease term longer than twenty-five years would be an excessive commitment for this particular residential use of tidelands and uplands property owned by the City of Newport Beach. C. The extension of the residential lease term beyond twenty-five years would provide very little financial advantage to the City. An analysis of rental values has shown that a 35 year Lease will only increase the rental by 12.4% per annum. Therefore, the modest increase in lease payments to the City do not offset the disadvantage of committing the land to residential uses for a period longer than twenty-five years; and WHEREAS, the City Council hereby finds and determines that the leasing of the subject property is an act by the City of Newport Beach in its proprietary capacity and further that the execution of the Agreements to Lease the respective residential lots and the common areas in the westerly portion of Beacon Bay binds the City of Newport Beach to execute the Leases of said properties in December, 1987, and said execution of said Leases by and on behalf of the City of Newport Beach constitutes a ministerial act and a furtherance of the obligation of the City of Newport Beach hereby created. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newport Beach that pursuant to the recitals hereinabove set forth, the Charter of the City of Newport Beach and Chapter 74, Statutes of 1978, the form of Agreement to Lease and Lease of the residential lots in Beacon Bay, respectively attached hereto, be and they are hereby approved. 3 L� T BE IT FURTHER RESOLVED that the Agreement to Lease and Lease of the Common Area of Beacon Bay, respectively attached hereto, be and they are hereby approved. BE IT FURTHER RESOLVED that the Mayor and City Clerk are hereby authorized and directed to execute each individual Agreement to Lease the respective residential lots in the westerly portion of the Beacon Bay property and the common areas in the western portion of the Beacon Bay property and that the Mayor and City Clerk of the City of Newport Beach are further authorized and directed to execute said Lease for the respective residential lots in the westerly portion of the Beacon Bay property and the common areas of the western portion of the Beacon Bay property during the month of December, 1987, provided that the Sublessees and the Beacon Bay Community Association and their heirs, devisees, and assigns, as the case might be, have fully performed and executed their obligation under said Agreements to Lease. ATTEST: City Clerk ADOPTED this llthday of May , 1981. 1 f 41JLI- � 0 1 ayo -I, WANDA E. ANDERSEN, City Clerk, do hereby certify the foregoing to be a full, true and correct copy of Resolution No. 10040 adopted by the City Council at their regular meeting held May 11, 1981. City Clerk