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HomeMy WebLinkAboutBEACON BAY LEASE LOT 3_02_LEASE_DOCUMETNS&AN FIRST AMENDMENT TO LEASE THIS FIRST AMENDMENT TO LEASE AGREEMENT ("First Amendment") is made and entered into this 104+1 day of December, 2012 ("Effective Date") by and between the City of Newport Beach, a chartered municipal corporation, herein called "Lessor," and PAUL A. RAMSEY AND FLORENCE PATRICIA RAMSEY, Trustees of The Ramsey Family Revocable Trust Established January 17, 1995, herein called "Lessee". RECITALS A. Lessor and Lessee entered into that certain Lease agreement ("Lease") dated the 14th day of March, 1997 for the real property commonly referred to as Beacon Bay Lot 3 ("Leased Land"). B. Lessor and Lessee desire to amend the Lease on the terms and conditions set forth in this First Amendment. NOW THEREFORE, in consideration of the foregoing recitals and the covenants in the Lease, the parties agree as follows: 1. Lease is amended to replace the legal description of the Leased Land, more particularly described in Exhibit B to the Lease, with the following corrected description of the Leased Land: IN WITNESS WHEREOF, the parties hereto have executed this First Amendment on the dates below. By signing below, Lessor and Lessee acknowledge the above information to be true and correct. ATTEST: LESSOR: City of Newport Beach �a-)I.P- City Clerk APPRO D S TO Aaron arp, City Attorney 13de Kiff, City Manager 141L) Date LESSEE: The Ramsey Family Revocable Trust Paul A. Ramsey, Trustee Date Florence Patricia Ramsey, Trust& Date RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Manager's Office City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Recorded L. Granville, Clerk/Recorderalifornia tne county of Orange, IIIIIi lilll lllll lllll lllli lllll lllll illll iltll lllll lllll llll llll 16.0 0 19970208002 4:25pm 05/05/97 005 16004677 16 50 M11 4 7.00 9.00 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 PAUL A. RAMSEY AND FLORENCE PATRICIA RAMSEY, Trustees of the Ramsey Family Revocable Trust, herein called "Lessee", to witness that: Lessor hereby leases to Lessee, commencing on(- ?a•�-I-iy 7 and ending on July 1, 2044, on the terms and conditions set•forth in that certain lease by and between the parties hereto dated*' /4,t—�4- iy / 9 2 ;Z , 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 3 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. EXECUTED on 3 l�� 1997, at Newport Beach, Orange County, California. AMOAS TO FORM: CITY ATTORNEY LESSOR THE CITY OF NEWPORT BEACH 40" CITYWANAGc70' Kevin J. Murphy /' Lessee: Paul A. Ramsey, Trustee Lessee: Florence Patricia Ramsey, Trustee �� I�- qr f State of California County of Orange On. before me, personally appeared Monica S. Kutz. Notary Public, ❑ personally known to me - OR -fTn-proved to me on the basis of satisfactory evidence to be the persons} whose name(-s) is subscribed to the within instr ment and acknowledged to Mp that he hefth,&y executed the same i hi / uthorized capacity(-iesr and that by his her/the' signatures) -on the instrument the personN, orthe entity upon behalf of which the persons) acted, executed the instrument. OF Monica S. Kutz l)Comm #10134690NOTARY PUBLIC CALIFORNIA-ORANGE COUNTY 0 Comm Esplros Jan 13.189E -� CAPACITY CLAIMED BY SIGNER Individual _ Corporate Officer _ Limited Partner General Partner Attorney -in -Fact _ Trustee(s) _ Guardian/Conservator _ Other: Signer is Representing: WITNESS my hand and official seal. DESCRIPTION OF TTACHED DOCUMENT t � �ZL�-ram✓ '� Title or Type of Document Number of Pages Date of Document Signer(s) Other Than Named Above State of California County of Orange On�Q qql before me, It personally appeared Monica S. Kutz. Notary Public, Elpersonally known to me - OR proved to me on the basis of satisfactory evidence to be the persons - whose names) t Yare- subscribed to the within instrument and acknowledged to me that -ha /theq- executed the same in his/her/their authorized capacity(ie. , and that by e /tblmr signature¢s)-sn the instrument the person(s), orthe entity upon behalf of which the person(s)- acted, executed the instrument. Manica S. Kutz ; Comm #1013469 2 NOTARY ORANGE COUNTYORNIA0 o Comm Expires Jan 13.1838 A. CAPACITY CLAIMED BY SIGNER _ Individual _ Corporate Officer _ Limited Partner _ General Partner _ Attorney -in -Fact _ Trustee(s) _ Guardian/Conservator _ Other: Signer Is Representing: WITNESS my hand and official seal. DESCRIPTION OF ATTACHED DOCUMENT & )u �Cea� —I/ I ` Title or Type of Document Number of Date of Document Signer(s) Other Than Named Above m 6 State of California County of Orange On 0� If l / before me, personally appeared I.: M.hl 1501-011 W1 =; . personally known to me - OR - proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the. instrument the person(s), orthe entity upon behalf of which the person(s) acted, executed the instrument. Monica S. I<utz Comm #1013469 NOTARYPUBLIC CALIFORNIA� ORANGE COUNTY 0 Comm Expires Jan 13. 1998 WITNESS my hand and official seal. CAPACITY CLAIMED BY SIGNER - DESCRIPTION OF ATTACHED DOCUMENT Individual Corporate Officer Lin -.;ad Partner _ General Partner _ Attorney -in -Fact _ Trustee(s) _ Guardian/Conservator _ Other: Signer Is Representing: m(Y1emp D� La.Se. _ Titlb or Type of Document Number of Date of Document Signer(s) Other Than Named Above 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 19970208003 4;25pm 05/05/97 005 16004677 16 50 T03 4 7.00 9.00 0.00 0.00 0.00 0.00 TERMINATION OF LEASEHOLD This agreement is made this day of 1997; by and between the CITY OF NEWPORT BEACH, hereinafter called "Lessor", and PAUL A. RAMSEY AND FLORENCE PATRICIA RAMSEY, Husband and Wife, hereinafter called "Lessee". RECITALS A. Lessor and Lessee executed a lease on November 14, 1994, and subsequently recorded February 9, 1995, by the County Recorder of Orange County, California as Instrument No. 95-0055305. By the terms of the lease, the following described property was leased to Lessee until July 1, 2044. Lot 3 as shown on the map filed in Book 9, Pages 42 and 43 of Record of Surveys in the Office of the County Recorder, County of Orange, State of California. B. Lessee desires to terminate said lease and all rights to the possession of the lease premises and to release Lessor from its obligations under the lease, and Lessor desires to accept said termination and to release Lessee from their obligations under the lease. AGREEMENT Lessee agrees to terminate the lease and vacate the premises as described herein above as ofL�/2/e"--I— /</ /9 5 '7 , 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 OF NEWPORT BEACH M BY: {Fein CA Lessee: Paul A. Ramsey Lessee: Florence Patricia Ramsey q' State of California County of Orange Ole 111til PILL b e f o r Is me, personally appeared Monica S. Kutz. Notary Public, ❑ personally known to me - OR --proved to me on the basis of satisfactory evidence to be the person* whose name(e � si are - subscribed to the within instrument and acknowledged to me that/'('4� executed the same ird9Vhe0thelr authorized capacity(i%— and that b his hePA-hE signature(s)-on the instrument the person{s), orthe entity upon behalf of which the persons} acted, executed the instrument. m A. Monica S. Kutz mO Comm #1013469 c &OTA YPPUBLIC CNryORNIAN' WITNESS my hand and official seal. ORANGE CL Comm E:PIMSJan 13. 1888 'a S CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual _ Corporate Officer _ Limited Partner — General Partner _ Attorney -in -Fact _ Trustee(s) Guardian/Conservator _ Other: Signer is Representing: Title or Type of Document Number of Pages Date of Document Signer(s) Other Than Named Above s 11 State of California County of Orange _... II On QY1 -r �1 c'-� 7_before me, Monica S. Kutz, Notary Public, ,personally appeared P. - a 0 ; brsc•;-.a!!y !cl IJvvn ?O ; rle - C41 roved to me on the basis of satisfactory evidence to be the person(}- whose name{ is are - subscribed to the within instrument and acknowledged to me that trey(/tip executed the same in his/her/their authorized capacity(i.&O, and that by •hfsef@VWm-r signature(s)-on the instrument the person(sj- orthe entity upon behalf of which the person(s)- acted, executed the instrument. Monica S. Kutz ; 0 • Comm. 81013469 0 NOTARYFUSLIC CALIFORNIA-' I ORANGE COUNTY n „z • Comm Explros Jan 13,1996 S WITNESS my hand and official seal. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT _ Ind'c•iauai _ Corporate Officer Limited Partner _ General Partner _ Attorney -in -Fact — Trustee(s) _- Guardian/Conservator — Other; Signer Is Representing: Title or Type of Document Number of Pages Date of Document Signer(s) Other Than Named Above v l State of California County of Orange On Dud 12 1997 before me, Monica S, Kutz. Notary Public, personally appeared personally known to me - OR - oroved to me on the basis of satisfactory Evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), orthe entity upon behalf of which the person(s) acted, executed the instrument. > nica S. Kutz 0—i mm, #1013469 PUBLIC CALIFORNIAMANGE COUNTYExpires Jan 13,1998 •� CAPACITY CLAIMED BY SIGNER _ Individual Corporate Officer _ Limited Partner _ General Partner Attorney -in -Fact Trustee(s) _ Guardian/Conservator _ Other: Signer is Representing: WITNESS my hand and official seal• DESCRIPTION OF ATTACHED DOCUMENT Title or Type of Document Number of Pages Date of Document Signer(s) Other Than Named Above LEASE OPY THIS LEASE is made and entered into as of the -& day of 7/%u--u 1997, by and between the CITY OF NEWPORT BEACH, a Charter City and municipal corporation ("Lessor"), and PAUL A. RAMSEY AND FLORENCE PATRICIA RAMSEY Trustees of the Ramsey Family Revocable Trust established 1117195. ("Lessee"), regarding the real property commonly referred to as Beacon Bay Lot 3 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 consideration 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. K. Lessor has determined that this Lease is consistent with provisions of the Beacon Bay Bill, the Charter, General Plan and Zoning Ordinance of the City of Newport Beach, and of all other applicable state and local laws. 14e1.167371.VE=04 L. Lessor has determined it is in the best interests of the citizens of Newport Beach to maintain the residential character of Beacon Bay and to enter into new leases with Current Lessees under the terms and conditions specified in this agreement. NOW, THEREFORE, in consideration of the foregoing recitals and the covenants in this lease, the parties agree as follows: 1. LEASED LAND. Lessor hereby leases to Lessee the real property commonly known as Beacon Bay Lot $ (the "Leased Land")„ which is more particularly described in Exhibit B, and generally depicted on Exhibit A„each attached hereto and incorporated by reference, subject to the limitations on use specified in Section 6. As used in this Lease, the term "Premises" shall refer to the Leased Land and any improvements constructed thereon. Lessor expressly reserves all oil, oil rights, gas, minerals, mineral rights, natural gas rights and other hydrocarbon substances in and under the Leased Land and the right to grant and transfer the same, together with all necessary and convenient rights to explore for, develop; produce and extract and take the same, subject to the express limitation that any and all operations for the exploration, development, production, extraction and taking of any such substance shall be carried on at levels below the depth of five hundred feet (500') from the surface of the land by means of wells, derricks and other equipment from surface locations on adjoining or neighboring land, and subject further to all restrictions and regulations concerning the drilling for, and production of, oil, gas, minerals, petroleum and other hydrocarbon substances specified in the Newport Beach City Charter or the Newport Beach Municipal Code. 2. TERM. The term of this Lease shall commence on the Execution Date, but in no event prior to the Effective Date, and shall expire on the date fifty (50) years following the Effective Date, unless earlier terminated as provided in this Lease. RENTAL. A. Definitions. For the purposes of this Lease, the following terms shall be defined as specified in this paragraph. In certain cases, the definition of the term contains operative language that affects the rights of the parties: (1) "Actual Sales Value" shall mean the total of all consideration paid for the non-exempt transfer of this Lease or the Pre-existing Lease, including the improvements on the Leased Land, from the Current Lessee, or Subsequent Lessee, to another person, excluding any consideration paid for the transfer of personal property in connection with such transaction. (2) "Average Actual Sales Value Rent" shall mean two and one-half percent (2.5 %) of the mean of the Actual Sales Value of the non-exempt transfer of a similarly situated (waterfront or interior) Beacon Bay parcels as specified in this subparagraph. Average Actual Sales Value Rent shall be the mean of the Actual Sales Value of the three similarly 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) "CPI" shall mean the Consumer Price Index - Los Angeles -Anaheim -Riverside Area, All Urban Consumers, All Items, published by the United States Department of Labor, Bureau of Labor Statistics (1982-1984=100). If the 1982-1984 base of said Consumer Price Index should hereafter be changed, then the new base shall be converted to the 1982-1984 base and the base as so converted shall be used. In the event that the Consumer Price Index, as now compiled and published, shall cease to be published, then the successor index shall be used provided that an appropriate conversion from the old index to the new index can feasibly be made. If such conversion cannot be made, or if no such index is published, then another index most nearly comparable thereto recognized as authoritative shall be substituted by agreement. 2 (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. (11) "Transferred" shall mean any sale, assignment, sublease or other transaction, other than,an exempt transfer as defined in Paragraph 3.6(3), pursuant to which the right to possession of the premises and the right to sign a new lease identical to this Lease is transferred to another person. B. Rental Payments. Lessee shall pay annual rent in the sum of thirty-one thousand five hundred and sixty dollars M .� �� payable at the rate of two thousand six hunded any thiU dollars per month. Lessee shall also pay, if applicable, deferred rent in the sum upon execution of this Lease. Re shal shall not (circle one) be adjusted every seven (7) years after the date of transfer in accordance with the provisions of Paragraph 3.13(4). Annual rent, deferred rent, and periodic adjustments are based upon the following: (1) Execution Before Effective Date. In the event this Lease is executed by the Lessee on or before the Effective Date, Rent shall be paid as follows: (a) Current Lessee: Current Lessee shall pay annual rent equal to Initial Rent as specified in Exhibit C. Thereafter, so long as there has been no transfer of this Lease by the Current Lessee (other than an exempt transfer as set forth in Paragraph 33(3), rent shall remain as specified in this subparagraph notwithstanding the provisions of Paragraph 3.8(4). (b) In the event of any transfer of this Lease to a Subsequent Lessee, the Subsequent Lessee shall pay annual rent equal to two and one-half percent (2.5%) of the Actual Sales Value determined as of the date of the transfer in accordance with the provisions of paragraph 3.A(t). Thereafter, rent shall be adjusted every seven years after the date of the transfer in accordance with the provisions of paragraph 3.13(4). (c) In the event of any transfer of this Lease to a Subsequent Lessee in a transaction other than an arm's length assignment of this Lease, and sale of the improvements on the Leased Land, if any, such as a gift or transfer by inheritance other than an exempt transfer under Paragraph 3.13(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). (2) Execution After the Effective Date. In the event this Lease is first executed after the Effective Date, rent shall be determined and paid as follows: (a) Current LesseeMithin Five Years After Effective Date: In the event this Lease is executed by the Current Lessee within five (5) years after the Effective Date, the Current Lessee shall pay annual rent equal to Initial Rent plus a sum calculated by multiplying the difference between Initial Rent and Average Actual Sales Value Rent by a fraction equal to the number of months between the Effective Date and Execution Date, divided by sixty. The Current Lessee shall also pay all Deferred Rent concurrent with the execution of this Lease. Thereafter, so long as there has been no transfer of this Lease by the Current Lessee, rent shall remain as specified in this subparagraph, notwithstanding the provisions of Paragraph 3.B(4). (b) Current Lessee/More Than Five Years After Effective Date: In the event this Lease is executed by the Current Lessee more than five (5) years after the Effective Date, the Current Lessee shall pay annual rent equal to Average Actual Sales Value Rent calculated as of the date of execution in accordance with the provisions of Paragraph 3.A(2). The Current Lessee shall also pay all Deferred Rent concurrent with the execution of this Lease. Thereafter, rent shall be adjusted every seven (7) years after the date of execution in accordance with the provisions of Paragraph 3.6(4). (c) Subsequent Lessee: In the event the Current Lessee transfers the Pre- existing Lease to a Subsequent Lessee who wishes to sign this Lease after the Cut-off Date, the Subsequent Lessee shall pay annual rent equal to two and one-half percent (2.5%) of Actual Sales Value determined as of the date of execution and in accordance with Paragraph 3.A(t). 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 32(4). 4 (d) Subsequent Lessee: In the event of any transfer of this Lease to a Subsequent Lessee who wished to sign this Lease after the Cut-off Date in a transaction other than an arm's length assignment of this Lease, and sale of the improvements on the Leased Land, if any, such as a gift or transfer by inheritance other than an exempt transfer under Paragraph 3.B(3), the Subsequent Lessee shall pay annual rent equal to the Average Actual Sales Value Rent calculated as of the date of the transfer in accordance with the provisions of Paragraph 3.A(2). The Subsequent Lessee shall also pay all Deferred Rent concurrent with the execution of this Lease. The annual rent shall be adjusted every seven (7) years following the Execution Date in accordance with the provisions of Paragraph 3.B(4). (3) Exempt Transfers. The provisions of Paragraph 33 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 (h) the transfer is to a guardian or custodian of Lessee appointed due to the physical or mental incapacity of Lessee; provided, however, that the provisions of Paragraph 3.0 shall apply upon the death of such Lessee unless the transferee is the surviving spouse or a tenant in common or joint tenant in ownership of the leasehold estate created by this Lease, and such tenants in common or joint tenants first acquired their respective interests in this Lease simultaneously. (4) Rent Adjustments. (a) Except as provided in Paragraphs 3.13(I)(a), 3.B(2)(a) and 3.6(3), on the seventh (7th) anniversary of the Execution Date of this Lease, or the seventh (7th) anniversary of the date of any transfer of this Lease by any Current or Subsequent Lessee, rent shall be adjusted to reflect any increase or decrease in the cost of living, which adjustment shall be determined as set forth hereinafter. The most recently published CPI figure shall be determined as of the date ninety 5 (90) days prior to the adjustment date, and rent payable during the ensuing seven (7) year period shall be determined by increasing or decreasing the then current rent by a percentage equal to the percentage increase or decrease, if any, in the CPI as of the Execution Date, or the date of the most recent rental adjustment, or the date of any transfer of this Lease by any Current or Subsequent Lessee, whichever is later. In no event shall rent be increased or decreased by a sum greater than forty percent (40%) of the rent paid by Lessee as of the later of (i) the Execution Date, or (ii) the last rental adjustment date. Lessor shall endeavor to notify Lessee of rental adjustments at least forty-five (45) days prior to the end of each seventh (7th) lease year; provided, however, failure of Lessor to give forty-five (45) days' notice does not relieve Lessee, from the obligation to pay increased rent or the right to pay less rent in the event of a decrease in the CPI; and, provided further, that Lessee shall have no obligation to pay rent increases which apply to any period greater than ninety (90) days prior to the receipt by Lessee of Lessors notice of an increase in rent. (b) In the event Lessee is two or more persons owning the leasehold estate created hereby as tenants in common or joint tenants, and less than all of such persons transfer their interest in this Lease to a person other than to an existing tenant in common or joint tenant, the rent adjustment shall be prorated to reflect the percentage interest being transferred to a third party. For example, if two persons are the Lessee as tenants in common as to equal one-half interests, and one of such persons transfers his/her 50% interest to a third party, the rent shall be adjusted as provided in Paragraph 3.8(2)(c), and thereafter as provided in Paragraph 3.6(4)(a), and the resultant rental increase multiplied by the percentage transferred (50%) to determine the rental increase; provided, however, that any subsequent transfer of an interest in this Lease to such third party shall not be exempt under subparagraph 3.6(3). (5) Installment Payments/Grace Period. Lessee shall pay rent in equal monthly installments, in advance, with payment due on or before the first day of the month for which rent is paid. Rent shall be prorated during any month when a transaction which increases rent becomes effective other than the first day of that month. No late payment charge applies to payments received by Lessor on or before 5:00 P.M. on the fifteenth (15th) day of the month for which the payment is made ("Grace Period") . If a rent payment, or any portion thereof, is received by Lessor after 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 docgment used to effect the transfer. (2) Lessee or the proposed transferee shall pay to Lessor a transfer fee of one hundred dollars ($100.00); (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 thereon as of the date of transfer. Any such appraisal shall be completed not later than thirty (30) days after receipt by Lessor of the aforementioned information from the Lessee. If the value determined by the appraiser commissioned by Lessor exceeds the stated total consideration to be paid based on the information received from the Lessee by more than ten percent (10%), Lessor shall so notify the Lessee and provide Lessee with a full copy of such appraisal report, and said value shall be deemed the Actual Sales Value for purposes of calculating Average Actual Sales Value Rent and rental payments unless within fifteen (15) days after receiving such notice and the report the Lessee notifies Lessor that Lessee elects to cause an appraisal of the fair market value of this Lease and improvements thereon as of the date of transfer to be conducted by an independent appraiser. In such event, Lessee cause such appraisal to be completed no later than thirty (30) days after the notice to Lessor and shall provide Lessor with a full copy of the appraisal upon completion. The Actual Sales Value for purposes of calculating Average Actual Sales Value Rent and rental payments shall be the greater of (i) the stated consideration for the transfer, or (ii) the average of the two appraisals. Any appraisal commissioned by Lessor or Lessee under this Paragraph 43 shall be conducted by an MAI appraiser licensed to conduct business in the State of California and experienced in residential appraisals in Southern California. C. Exempt Transfer Information. Lessor's consent is not required for the "exempt transfers" referenced in Paragraph 3.B(3); provided, however, Lessee shall furnish Lessor with copies of all documents used to effect any exempt transfer. D. Audit of Subleases. It is the intent of the parties that transfers referred to in Section 3.13(3)(e) shall only be exempt from the further provisions of Paragraph 32 (in respect of rental adjustments) if such subleases are not substantially equivalent to, do not have substantially the same economic effect as, or are intended to disguise, a transfer by the then Lessee of all or substantially all of his/her interest in this Lease to the putative sublessee. Lessor shall at all times have the right, upon written request to the Lessee, to receive copies of all written agreements, and to be advised in full of all oral agreements, between the Lessee and any sublessee of the Leased Land. Any purported sublease of the premises which is determined to be substantially equivalent to, or have substantially the same economic effect as, or is intended to disguise, a transfer by the then Lessee of all or substantially all of his/her interest in this Lease to the putative sublessee shall be void and of no force or effect, and such attempted or purported sublease shall, at the option of Lessor, (i) be an event of default by the Lessee under this Lease, or (ii) permit Lessor to treat such sublease as a transfer of this Lease subject to the provisions of Section 3.6. 5. ENCUMBRANCES. A. Right to Encumber. Lessee may encumber this Lease by deed of trust, mortgage, or similar instrument, in favor of any bona fide lender ("Lender") in a bona fide loan transaction for any purpose without the consent of Lessor. To determine whether a loan is a bona fide lending transaction, and not an arrangement for transfer of the possession or title to the Premises to the putative lender, Lessee and the lender agree to provide Lessor with all documentation executed between Lessee and the lender concerning the loan upon request of Lessor. Neither Lessee nor Lessor shall have the power to encumber Lessor's interest in the Leased Land. Any encumbrance shall be subject to all covenants, conditions and restrictions in this Lease and to all rights and interests of Lessor except as otherwise expressly provided in this Lease. Lessee shall give Lessor prior written notice of any encumbrance. B. Notice to Lender. Lessor shall have no obligation to give any Lender any written notice pursuant to this Lease unless the Lender has given Lessor written notice of its name, address, and nature of encumbrance ("Complying Lender") . Lessor shall give all Complying Lenders a copy of any written notice of default, notice of termination or other notice which may affect Lessee's rights 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: Lender: (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. G. New Lease. Notwithstanding any other provision of this Lease, should this Lease terminate or be terminated because of any default or breach by Lessee, Lessor shall enter into a new lease with Lender as lessee provided: (1) the written request for the new lease is served on Lessor by Lender within thirty (30) days after the termination of this Lease. (2) the new lease contains the same terms and conditions as this Lease except for those which have already been fulfilled or are no longer applicable. (3) on execution of the new lease by Lessor, Lender shall pay any and all sums that would be due upon execution of the new lease, but for its termination, and shall fully remedy, or agree in writing to remedy, any other default or breach committed by Lessee that can reasonably be remedied by Lender. (4) Lender shall, upon execution of the new lease, pay all reasonable costs and expenses (including attorney's fees) incurred in terminating this Lease, recovering possession of the premises from Lessee, in preparing the new lease. H. Miscellaneous. The following provisions shall apply to Lessor, Lessee and any (1) Any Lender shall be liable to perform the obligations of the Lessee under this Lease only so long as the Lender holds title to this Lease; (2) Lessee shall, within ten (10) days after the recordation of any trust deed or other security instrument, record, at Lessee's sole expense, Lessor's written request for a copy of any notice of default and/or notice of sale under any deed of trust as provided by state law. USE AND MAINTENANCE. A. Use of Leased Land. The Leased Land shall be solely for residential purposes. Lessee may demolish, construct, remodel, reconstruct and maintain structures on the Leased Land for residential purposes so long as the structures and construction are authorized by appropriate City permit and fully comply with all City ordinances, resolutions, regulations, policies, and plans. Lessee shall also obtain permission to construct and/or maintain structures from the California Coastal Commission and any other state agency if required by law. B. Maintenance of Improvements. Lessor shall not be required to make any changes, alterations, additions, improvements, or repairs in on or about all or part of the Premises. Lessee shall, at all times during the term of this Lease and without any cost or expense to Lessor, keep and maintain, the Premises, including, without limitation, all structures, facilities, walks, curbs, parkways and other improvements, in good order and repair and in a clean, safe, sanitary and orderly condition. Lessee shall repair or reconstruct any improvements on the Leased Land following any damage or destruction thereof, unless the improvements are being destroyed in conjunction with remodeling or reconstruction and Lessor has consented, in writing, to the damage or destruction. Lessee shall cause to be constructed, maintained and repaired all utilities, pipes, walls, sewers, drains, and other improvements on the Premises to the extent required by law or as necessary to maintain the improvement in good order and repair and safe and sanitary condition. C. Compliance with Laws. Lessee shall make, or cause to be made, any additions, alterations or repairs to any structure or improvement on the Premises which may be required by, and Lessee 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. 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 (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. 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 a pro rata share of such costs, and to collect such costs from Lessee in the form of rent over the remaining term of this Lease. 10 10. COMMUNITY ASSOCIATION. A. Membership in Association. As a material part of the consideration of this Lease, and as an express condition to the continuance of any of the rights of Lessee pursuant to this Agreement, Lessee agrees to become, and during the term of this Lease to remain, a member in good standing of the Beacon Bay Community Association. B. Compliance with Rules and Regulations. Lessee agrees to abide by the Articles of Incorporation, bylaws, and all rules and regulations of the Association, and to pay to the Association, before delinquency, all valid dues, fees, assessments and other charges properly levied or assessed by the Association. Lessee�s failure to comply with the provisions of Paragraph A and this Paragraph B shall constitute a material breach of this Lease. C . Lessor Maintenance of Common Areas. In addition to the rights reserved to Lessor pursuant to the provisions of Section 9, if the Community Association fails or ceases to maintain community facilities, Lessor may, at its option and without obligation, assume the obligations of the Community Association to maintain, repair, install or improve community facilities. In such event, Lessee shall pay a pro rata share of Lessors reasonable expenses in maintaining and operating the community facilities, including a reasonable management fee or the fee charged by a management agent. Lessee's pro rate share shall be determined by dividing Lassoes costs by the number of residential lots withia Beacon Bay (currently seventy-two lots) . Lessee's pro rate share of the annual costs incurred by Lessor shall be paid within thirty (30) days after written notice of the amount due, and any failure to pay shall constitute a material breach of this Lease. The costs of maintaining and operating community facilities shall be determined annually and solely from the financial records of Lessor. 11. COVENANTS, CONDITIONS AND RESTRICTIONS. Lessee agrees to abide and be bound by all covenants, conditions, restrictions and reservations as contained in Exhibit D attached hereto and incorporated herein 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. 12. INDEMNIFICATION. Lessee shall indemnify, defend and hold harmless Lessor, its City Council, Boards and Commissions, officers, agents, servants and employees from and against any and all actions, causes of action, obligations, costs, damages, losses, claims, liabilities and demands of any nature whatsoever, including reasonable aftomeys'fees, regardless of the merit or outcome of any such claim or suit, arising out of, or in any way related, to the condition of the Premises, or the use or possession of the Premises by Lessee, or Lessee's employees, agents, representatives, guests or invitees, as well as any activity, work or things which may be permitted or suffered by Lessee in or on the Premises. Lessee shall indemnify, defend and hold harmless Lessor, its City Council, Boards and Commissions, officers, agents, servants and employees from and against any and all actions, causes of action, obligations, costs, damages, losses, claims, liabilities, and demands of any nature whatsoever, including reasonable attorneys'fees, accruing or resulting to any and all persons, firms or corporations furnishing or supplying work, services, materials, equipment or supplies arising from or in any manner connected to the use or possession of the Premises by Lessee or from any activity' work or things which may be permitted or suffered by Lessee in or about the Premises. Without limiting the generality of the foregoing, Lessee hereby assumes all risk of damage to property or injury to 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 11 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 required 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.A(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; (5) the making by Lessee of any general assignment, or general arrangement forthe benefit of creditors; the filing by or against Lessee of a petition to have Lessee adjudged a bankrupt or a petition for reorganization or arrangement of any law relating to bankruptcy unless the same is dismissed within sixty (60) days; the appointment of a trustee or receiver to take possession of substantially all of Lessee's assets located at the Premises or of Lessee's interest in the Lease, where possession is not restored to Lessee within thirty (30) days; or the attachment, execution or other judicial seizure of substantially all of Lesseds assets located at the Premises or of Lessee's interest in the Lease, where such seizure is not discharged within thirty (30) days. Notices given under this Paragraph 14.A shall specify the alleged default and the applicable lease provisions, and shall demand that Lessee perform the provisions of this Lease or pay the rent that is in arrears, as the case may be, within the applicable period of time. No such notice shall be deemed a forfeiture or a termination of this Lease unless Lessor so elects in the Notice; a. Landlord's Remedies. In the event of any default by Lessee as defined in Paragraph 14.A, Lessor may, in addition to any tights or remedies permitted by law, do the following: 12 (1) Terminate Lessee's right to possession of the Leased Premises by any lawful means, in which case this Lease shall terminate and Lessee shall immediately surrender possession of the Premises to Lessor. In such event, Lessor shall be entitled to recover from Lessee all amounts to which Lessor is entitled pursuant to Section 1951.2 of the California Civil Code, or any other provision of law, including, without limitation, the following: (a) The worth at the time of award of the amount by which the unpaid rent and additional rent for the balance of the term after the time of award exceeds the amount of the loss than Lessee proves could be reasonably avoided; and . (b) any other amount necessary to compensate Lessor for all detriment proximately caused by Lessee's failure to perform obligations pursuant to this Lease or which in the ordinary course of things would be likely to result from the breach, including, without limitation, the cost of recovering possession, expenses of reletting (including necessary repair, renovation and alteration) reasonable attorneye fees, and any other reasonable costs. The 'worth at the time of award' of all rental amounts other than that referred to in clause (i) above shall be computed by allowing interest at the rate of ten percent (10%) per annum from the date amounts accrue to Lessor. The worth at the time of award of the amount referred to in clause (i) shall be computed by discounting such amount at one percentage point above the discount rate of the Federal Reserve Bank of San Francisco at the time of award. (2) Without terminating or affecting the forfeiture of this Lease or, in the absence of express written notice of Lessors election to do so, relieving Lessee of any obligation pursuant to this Lease, Lessor may, but need not, relet all or a portion of the Premises at any time, or from time to time, and on such terms and conditions as Lessor, at its sole discretion, deems appropriate. Whether or not the Premises are relet, Lessee shall pay all amounts required by this Lease up to the date that Lessor terminates Lessee's right to possession of the Premises. Lessee shall make such payments at the time specified in the Lease and Lessor need not wait until termination of the Lease to recover sums due by legal action. If Lessor relets all or a portion of the Premises, the reletting shall not relieve Lessee 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 Lessoes 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 14.13(l). 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 Lessors 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. 13 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 �arty. Lessors 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 Lessor'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. 16. 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 termination of the leasehold interest. Lessee waives any right to receive relocation assistance or similar form of payment. B . Removal of Improvements. Upon the expiration of the term of this Lease, and on condition that Lessee is not then in default of any of the provisions of this Lease, Lessee shall have the right to remove from the Leased Land all buildings and improvements built or installed on the Leased Land. Removal of any�building or improvement shall be at the sole cost and expense of Lessee and removal must be complete no later than ninety (90) days after expiration of the term of this Lease. Lessee shall fill all excavations and remove all foundations, debris and other parts of the buildings or improvements remaining after removal and surrender possession of the Premises to Lessor in a clean and orderly condition. In the event any of the buildings and improvements are not removed within the time provided in this Paragraph 15.B, they shall become the property of Lessor without the payment of any consideration. 16. EMINENT DOMAIN. A. Definitions of Terms. (1) 'The term "total taking" as used in this Section 16 shall mean the taking of the entire Premises under the power of eminent domain or the taking of so much of the Leased Land as to prevent or substantially impair the use thereof by Lessee for the residential purposes. (2) The term "partial taking" shall mean the taking of a portion only of the Premises which does not constitute a total taking as defined above. (3) 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. (4) The term "date of taking" shall be the date upon which title to the Premises or portion thereof passes to and vests in the condemnor. 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 14 Leased Land or the portion thereof taken shall cease and terminate as of the date of taking of said Leased 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 Premises and Lessee's leasehold interest therein shall be allocated as follows: The Lessor shall be entitled to an amount equal to the sum of the following: , (a) 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 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 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 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 6y multiplying the amount by which the annual rent is reduced by the factor for the present worth of $1.00 per annurn at 9% per annurn 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 covenants 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. 15 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 eights 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 Lassoes or Lessee's rights to exercise any other. 19. NO WAIVER. No delay or omission of either party to exercise any right or power arising from any omission, neglect or default of the other party 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 other party 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. 20. 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. 21. NOTICES. 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, P.O. Box 1768, Newport Beach, California 92659-1768, 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. By depositing the Notice in the United States Mail, registered or certified, with postage prepaid, to the residence or business address furnished by Lessee; or 0. If the Lessee is 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 D. If no one can be found, then by affixing a copy of the notice in a conspicuous place on the Premises and also sending a copy through the mail addressed to the Lessee. Such service upon Lessor or Lessee shall be deemed complete upon the earlier of (i) actual delivery, or Cii) the expiration of seventy-two (72) hours from and after the deposit in the United States mail of such' notice, demand or communication. 22. HOLDING OVER. This Lease shall terminate and become null and void without further notice upon the expiration of the term of this Lease. Any holding over by Lessee after expiration of the term shall not constitute a renewal of this Lease or give Lessee any rights in or to the Premises except as expressly provided in this Section. The parties agree this Lease cannot be renewed, extended, or in any manner modified except in a writing signed by all parties. However, if Lessee, or anyone claiming under Lessee, shall remain in possession of the Premises after expiration of the term of this Lease without any agreement in writing between the parties and Lessor accepts rent from Lessee, then Lessee shall be deemed a tenant from month -to -month subject to the provisions of this Lease insofar as they may be applicable to a month -to -month tendency. The month -to -month tendency may be terminated by Lessor or Lessor upon thirty (30) days' prior written notice to the other. 16 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. 26. 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 . Gander. In this Lease, the masculine gender includes the feminine and neuter and the singular number includes the plural whenever the context so requires. 17 IN WITNESS WHEREOF, the parties have caused this Lease to be executed as of the date first above written. ATTEST: CITY CLERK D AS TO FORM: 60t'�� tMATTORNEY LESSOR: CITY OF NEWPORT BEACH, By: Title: 'dV MANArGEV LESSEE Paul A. Ramsey, Trustee Florence Patricia Ramsey, Trustee 18 S M T W, T F A [ !] 2 3 4 5 6 7 (4) 9 10 11 2 13 14 15 16 17 18 :9 2OLiflift 23 24 25 26 27 28 29 30 31 FEBRUARY S �t Y,W T F S 1 2 3 4 S 6 7 8 9 10 11 0 13 14 15 16 19 20 21 22 23 24 25 0 27 28 29 MARCH S M T W T F S 2 3 4 5 6 7 8 9 10 0 12 13 14 15 16 17 18 19 20 21 22 23 24 4126 27 28 29 APRIL 'r W T :F 1 2 3 4 5 6 7 CS) 9 10 11 12 13 14 15 16 17 18 IS 20 21 f� 23 24 25 26 27 28 29 30 MAY S tj y YV 't F ",T 1 2 3 4 5 6 7 8 9 10 11 12 0 14 15 16 17 IS 19 20 21 22 23 24 2S M26 0 28 29 30 31 JUNE M T VY T 1 2 3 4 5 6 7 8 9 0 11 12 13 14 15 16 17 IS 19 20 21 22 23025 26 27 28 29 30 JULY SMTWT-FS 1 2 3 AM 5 6 7 (0 9 10 11 12 13 14 15 16 17 18 19 20 21 023 24 25 26 S m T W T It S 1 2 3 4 5 6 7 8 9 10 11 (� 13 14 15 It 17 18 19 20 21 22 Z 24 25 0,6 27 28 29 3( $ M T VV T F A Lit 2 3 4 5 6 7 8 0) 10 11 12 11 14 15 16 17 IS 19 2( 21 '22 0 24 25 26 2-, M T W T F '9 1 2 3 4 5 6 7 8 9 10 11 12 13 -0 15 16 17 It 19 20 21 22 23 24 2! 26 27029 30 31 �MZIIIIAINWAIUIKAW 2 3 4 5 6 7 8 9 to[]][ () 13 14 1! 16 17 18 19 20 21 2: 23 24 0 2611T Liij2i M T-W T F S 1 2 3 4 5 6 7 8 (k� 10 11 12 I� 14 15 16 17 18 19 2( 21 22 23 241� 1. 1. '� 1 P21 26 2; CITY OF NEWPORT BEACH 3300 Newport Boulevard * Post Office Box 1768 Newport Beach, California 92658-8915 www.ciLv,newport-beach.cams FAA 0z . .......... .................... --------- --------------- .... ............... ....... - - -- - --------------------------------- -------- -- - --- - --------- .......................... ...................... ......................... ...... --------------------------------- --------------------- ------------- ---------------- ------------------------ -- ------------------- -------------------------------------- ------ ---------------------------- ------- .......... ......... - ------------------ -.- ........ ....... ------- S m T VY T F S C, 2 3 4 5 6 c 7 0 9 10 11 1: 13 14 15 16 17 18 P 20EO 23 24 25 20 27 28 29 30 31 ,S M T YY T r S 1 2 3 4 5 6 7 8 9 10 11 �D 13 14 15 16 17g8] 19 20 21 22 23 24 2SO27 28 29 MARCH )I T W 'r F' 5 2 3 4 5 6 7 8 9 10 4D 12 13 14 15 16 17 18 19 20 21 22 23 24 0 26 27 28 29 S M T W T F t 1 2 3 4 5 6 7 Z 9 10 11 12 t3 14 15 16 17 18 19 20 21 1# 23 24 25 26 'm Y-W-.f It S 1 2 3 4 5 6 7 8 9 R 11 12 Q 14 15 16 1; IS 19 20 21 22 23 21 2,1122,10 2. 79 30 31 S M T W T F 9 1 2 3 4 5 6 7 8 9 Q 11 12 13 11 15 16 17 18 19 20 21 22 23 * 2S 26 27 21 29 30 JULY S M Y W T F S 1 2 3 5 6 7 a 9 10 11 1; 13 14 15 16 17 18 15 20 21 # 23 24 25 24 27 28 29 30 31 S M T W T P $ 1 2 3 4 S 6 7 8 9 10 11 0 13 14 15 1( 17 18 19 20 21 22 21 24 2S ��6 27 28 29 X S M T VV T P 6 I , 1 2 3 4 5 6 7 8 09 10 It 12 12 14 15 16 17 IS 19 2C 21 22024 2S 26 27 28 29 30 'S� M T W T F S 1 2 3 4 5 6 7 8 9 10 It 12 13 & 15 16 17 IE 19 20 21 22 23 24 2! 26 270 29 30 31 S fl, T W T F S 2 3 4 5 6 7 8 9 10ED0 13 14 15 16 17 18 19 20 21 22 23 24 0 26f2t[22129 S H T W T F S 1 2 3 4 5 6 7 8 (1) 10 11 12 13 14 15 16 17 18 t9 2C 21 22 23 ;ZC�iJ26 27 CITY OF NEWPORT BEACH A/-// 3300 Newport Boulevard - Post Office Box 1768 Newport Beach, California 92658-8915 www.city.newl2ort-beach.ca.us - --------------- --------- ........ 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Geyer ATTACHMENT NO: 2 (IN DECEDENTS' ESTATES. ATTACHMENTS MUST CONFORM. TO PROBATE CODE 601 REGARDING COMMUNITY AND SEPARATE PROPERTY) CASE NUMBER I A-114064 PAGE. 2 OF. . � TOTAL PAGES (ADD PAGES AS REQUIRED) Item No. Description 4. improved Real property in the City of Newport Beach, California, County of Orange, State of California described as: The Westerly 45 feet of Lot 3 and the Easterly 10 feet of Lot 2 as shown upon a Record of Survey Map recorded 9/42 and 43 Record of.Surveys, on fille in the office of the County Recorder, t geiher with certain portions of adjoining Lots I & Said property commonly known as #3 Beacon Bay, Newport Beach, CA, AF 9 Value at Date of Death: qt� Appraised value 01�1 I I 450, 0r.D .0D -7 .00 71 STATE OF CALIFORNIA, ARNOLD SCHWARZENEGGER, Governor CALIFORNIA STATE LANDS COM 100 Howe Avenue, Suite 100-South Sacramento, CA 95825-8202 DRAFT February 2, 2005 Robin Clausen City Attorney City of Newport Beach 3300 Newport Blvd PO Box 176 Newport Beach, CVA 92658-8915 Re: Proposed Beacon Bay Common Area Lease Dear Robin: PAUL D. THAYER, Executive Oft er (916) 574-1800 FAX (916) 574-1810 California Relay Service From TDD Phone 1-800-735-2922 from Voice Phone 1-800-735-2929 Contact Phone: 916-574-1828 Contact FAX., 916-574-1855 Contact Email., fossumc(ftic.ca.gov File Ref: G-09-02 Staff of the California State Lands Commission (CSLC) has reviewed the subject document. We offer the following comments and suggestions and have enclosed a suggested redline version for you. In 1981 the CSLC approved the form and range of consideration as set forth in the Agreements to Lease for both the individual lot leases and the Common Area Lease and the individual lot leases which began in 1988. The 1981 Agreement to Lease and the existing January 1, 1988 Common Area Lease provided in Section 3. Consideration: that in addition to the expense of maintenance and upkeep to be borne by the Lessee the tidelands (non -uplands) common area "shag be held open by Lessee for use by members of the public." This was an essential element of the valuation for the consideration given for the existing lease as stated in the May 28, 1981 staff report recommending approval of the Common Area Lease, which stated in part "(o)f particular importance is the express agreement therein contained to hold open the common areas on tidelands to the public." Had the Common Area Lease been for the exclusive use of the tenants, the consideration for the area would undoubtedly have been very expensive. In reviewing the new proposed lease we note a number of provisions that we believe should be clarified. We are also aware of certain past practices regarding attempts to dissuade members of the public from accessing the common areas that were to be "open to the public" which would negate the value of the consideration (photo enclosed). We hope these suggestions meet with the City and Homeowners' approval. Inasmuch as the CSLC is meeting approximately every other month and its next meeting may be as early as February 17, 2005, with a 10-day notice requirement, please indicate whether you believe that the lease should be agendized for the Commissions review and consideration of the form and range of consideration of the proposed lease. We note the current lease is to expire on July 1, 2006. If you have any questions please do not hesitate to contact me. Thank you. Sincerely, enclosures LEASE AGREEMENT BEACON BAY COMMON AREAS (Beacon Bay Community Association) THIS LEASE is made and entered into as of the _ day of February, 2005, by and between the 61—TY OF NEWPORT BEACH, a chartered municipal corporation ("City") or ("Lessor"), and BEACON BAY COMMUNITY ASSOCIATION, a California nonprofit corporation ("Lessee"). 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 filled _andunfilled tide-pnd submerged lands in trust. The C! also holds title to qg[1gia_,qpj@gqs obtained in its municipal capacitx in 1929,_-----fD,1,t�d-..nd These areas are.collectively and commonly known as Beacon Bay and described in Exhibit A attached hereto and incorporated herein by this reference ("Beacon Bay"). B. The Beacon Bay Bill exempts 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 statutory conditions. C. Portions of Beacon Bay, Including portions of he "Westerly Portion" thereof, has been divided into individual residential lots. Within Beacon Bay are gtso certain streets, walkways, beaches, common landscaped areas and tennis courts, Identified as Lots A through J and Lot 62 described in Exhibit B attached hereto and incorporated by reference and as shown on the Exhibit C, attached hereto and incorporated herein by this reference (the "Common Area"). D. On January 9, 1950, Lessor first entered into a master lease of Beacon Bay, Including the Common Area, to an individual who thereafter subleased individual lots to Individual homeowners. This original lease expired on December 31, 1987. On January 1, 1988, City [eased the individual lots in Beacon Bay to individual homeowners and leased the Common Area to Lessee, a community association comprised of the foregoing individual homeowners within Beacon Bay (the "Existing Common Area Lease"). The leases of individual lots to individual homeowners were amended, restated and extended on various dates, Ceach to expire on July 1, 2044 (the "Residential Leases"). The Existing Common Area Lease will expire on July 1, 2006. E. On November 3, 1987, a majority of electors of the City approved a measure that authorized the City Council to enter into new leases of the residential lots in Beacon Bay for not to exceed fifty (50) years. F. On November 3, 1992, a majority of electors of the City approved Measure M that authorized the City Council to lease tidelands and waterfront property consistent with the provisions of state law. G. In 1994 Lessor determined that maintaining the residential character of Beacon Bay was in the best interests of the citizens of Newport Beach and State of California, and agreed to a lease for the residential lots until July 1, 2044�As with the 1988 leases, the form of those leases and range of consideration were ap.pLovedL by 1hq-QatII5qLnieL pter 74, Statutes of 1978. H. Lessor has further determined it is in the best interests and welfare of the citizens of Newport Beach and State of California: 1. that the Common Area portions of Beacon Bay which have been leased for common area purposes appurtenant to the Beacon Bay residential community continue in that character; 2. to lease the Common Area to Lessee under the terms, conditions and for the consideration as hereinafter set forth; and 3. for Lessee to continue to use the same high standards of care and maintenance of the Common Area that Lessee used on the Effective Date of this Lease to serve the Beacon Bay residents and visitors. 1. The State Lands Commission has reviewed and approved the form of this Lease i1nd ra MA_gf_qgnqA1erg1tLcLn_for compliance with the provisions of relevant statutes, rules and regulations, including, without limitation, the Beacon Bay Bill. J. Lessor has determined that this Lease is consistent with provisions of the Beacon Bay Bill, the Charter, General Plan and Zoning Ordinance of the City of Newport Beach, and all other applicable state and local laws. K. The Parties intend, through this Lease, to confirm Lessors right to use any properties held In trust by the Lessor (including tidelands) for projects that are intended to enhance the water quality or ecosystem of Newport Bay. NOW THEREFORE, in consideration of the foregoing recitals, which are hereby incorporated into and made part of the terms and conditions of this Lease, and the covenants in this lease, the Lessor and Lessee agree as follows: 1. DESCRIPTION OF LEASED PREMISES Lessor hereby leases to Lessee, and Lessee hereby accepts this Lease of, the Common Area,,subject to the terms, covenants and conditions In this Lease. 2. TERM. The term of this Lease is for ' a period commencing on the date first above written, and shall expire on July 1, 2044, the date on which the Residential Leases expire, unless earlier terminated as provided in this Lease. The Existing Common Area Lease shall terminate at the time and date this Lease has been approved by formal action of the governing bodies of Lessor and Lessee and fully executed by both parties and approved as to form and the range. of consideration.by th California State Lands Commission. 3. CONSIDERATION. The consideration for this Lease is the execution and performance of the Residential Leases and the maintenance and upkeep of the Common Area as provided in this Agreement, which would otherwise, py_ D letwel Lasso , and the benefit to -the public b access to and use of certain portions o the Common Area. 4. A. Lessee shall maintain the Common Area at substantially the same high standard of care and maintenance that Lessee used as of the Execution Date of this Lease. B. That oortion of the Common Area lyinci southerly of the waterfront lots N wporlaZ including, the wet and dr)(-qgqq pRrl�iqgq pf jhe beach,shall 'Deleted: consisting of be held open and maintained by Lessee for use by members_6fthe_6661i�-. I elated: (but excluding any upland portion of the Common Area) Is public �._The qt[Mr portions of the Common Area designated as uplands may be--,, tidelands and held for, the exclusive u ' se and benefit of Lessee and its constituent Formatted: Bullets and Numbering homeowner members; provided that nothing herein, shall be construed to limit public access to or passage over the walkways -leading from "Beaco the streets designated "Beacon Bay" and "Cutter. Road" within Beacon Bay. SALE, ASSIGNMENT, SUBLEASE. ' Lessee shall not assign, transfer, sublease, mortgage, hypothecate or give any grant of control of this Lease or the Common Area, or any part hereof, either voluntarily or involuntarily, unless first approved by the City Council. S. ENCUMBRANCES. Lessee shall have the right to assign this Lease as security for financing of Common Area improvements, such as street repairs, undergrounding of utility lines, construction of homeowners' association improvements, and similar capital expenditures. Lessee may adopt and record Covenants, Conditions and Restrictions (CC&R's) against this Lease as authorized in California Civil Code section 1350 at seq. provided Lessee obtains prior written approval of the CC&R's by Lessor's City Attorney. Preparation, management and enforcement of the CC&R's shall be sole responsibility of Lessee. Otherwise, Lessee shall have no fight to encumber this Lease or the Common Area for any purpose whatsoever and any attempt by Lessee to so encumber this Lease or the Common Area shall result in the immediate termination hereof. 6. USE. A. The Common Area shall be used solely and exclusively for vehicular ingress and egress and parking, boat storage and launching, pedestrian walkway purposes, recreational uses for Beacon Bay residents, except as to the beach areas reserVecL public beach recreation, and the property designated as Lot "62" shall be used exclusively for tennis court and park purposes and for construction and maintenance of an office and meeting facilities for Lessee in connection with the maintenance and operation of the, homeowners' association in Beacon Bay. The use by Lessee of any portion of the Common Area for any purpose not expressly permitted gc rMILlred by this Lease is an express violation of this Lease and may be cause for termination, at the sole discretion of Lessor. 1 7 8. D11 B. Lessee shall use and manage the Common Area in a manner that does not violate State or Federal laws, including any law that prohibits discrimination. C. The property designated as beach property on Exhibit C shall be used exclusively for pi�Lblic beach purposes. Lessee shall maintain the Common Area in a manner that allows for open public access to the beach. Lessee may impose parking limitations on use of streets within the Common Area only for pedestrian, fire safety and/or traffic circulation purposes upon prior written approval of the City Traffic Engineer. Lessee shall not post or position any signs or structures in a manner that will discourage or prohibit public access. Lessor retains the right to use the beach portion of the Common Area for any project designed and intended to enhance the water quality or ecosystem of Newport Bay subject to the ordinances and policies adopted by Lessor in its governmental capacity and as XuAt��e 9�thq�g!qte-of-Califomia ----------------------- ----- TAXES AND UTILITIES. Lessee acknowledges 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 Common.Area, including any improvements located thereon or associated therewith, or any possessory interests therein arising out of or based upon the leaseKold interest throughout the term hereof. Satisfactory evidence of such payment shalt be made available to Lessor upon demand. Any lien for unpaid utilities, taxes, assessments or charges shall not attach the leasehold interest but only to the improvements thereon. MAINTENANCE AND REPAIR OF COMMON AREA. Lessee shall at all times during-the,term of this Lease and without any cost or expense to Lessor, keep and maintain the Common Area, including, without limitation, all structures, facilities, walks, curbs, parkways, beach areas, streets and other improvements, in good order and repair and in a clean, safe, sanitary and orderly condition. Lessee shall repair or reconstruct any improvements on the Common Area following any damage or destruction thereof, unless the improvements are being destroyed in conjunction with remodeling or reconstruction and Lessor has consented, in writing, to the damage or destruction. Lessee shall cause to be constructed, maintained and repaired all utilities, pipes, walls, sewers, drains, and other improvements on the Common Area to the extent required by law or as necessary to maintain the improvement in good order and repair and safe and sanitary condition. STRUCTURALIMPROVEMENTS. A. All structural improvements wlth� a cost in excess of five thousand dollars ($5,000) (the "Capital Improvements") that are constructed during the term of this Lease become the property of Lessor upon expiration of the Lease. B. Lessee shall be required to obtain, prior to commencing the construction of any Capital Improvement, all permits, licenses or approvals that may be required by Lessor in its governmental capacity. C. Lessee shall, at all times, indemnify, defend and hold Lessor harmless from any and all claims, liens, damages or fees in any way related to any maintenance, construction, repair, alteration or installation of any structure, improvement, equipment or facilities on the Premises. Lessee's obligation extends to the costs of defending such claims, including reasonable attorney's fees. Lessee shall not suffer or permit to be enforced against all or any portion of the Premises, any lien or any claim for damage in any way relat - ed to any construction, repair, restoration, replacement, maintenance or improvement on the Premises. In the event any lien or stop notices imposed or recorded on the Premises as a result of the construction, repair or alteration of the facility by or on behalf of Lessee, Lessee shall pay or cause to be paid all such liens, claims or demands before any action is brought to enforce the same against the Premises. Lessee may,' in good faith, contest the validity of such lien, claim or demand, In the event of any contest or litigation, Lessee shall, at its sole expense, defend itself and Lessor and shall pay and satisfy any adverse judgment that may be rendered prior to enforcement against Lessor or the Premises. Lessor may require Lessee to furnish a surety bond satisfactory to lessor in an amount equal to any contested lien, claim or demand. D. Lessee shall give Lessor advance written notice of any construction on or improvement on the premises other than ordinary repairs and maintenance of existing improvements. Lessee shall coordinate the scheduling of any work with Lessor to minimize any inconvenience to the public. 10. MAINTENANCE OF IMPROVEMENTS. A. Lessee to Maintain All Improvements: Lessee covenants and agrees that during the term of this Lease itwill, at its own cost and expense, maintain the Premises In good order and repair and in clean, orderly, safe and sanitary condition. Lessee shall be responsible for the repair of any damage. B. Lessor May Elect to Repair and Maintain at Expense of Lessee: If, in the judgment of the Lessor, the standards of maintenance and repair required by this Lease are not being maintained, Lessor may elect to correct any deficiency after written notice thereof to the Lessee and Lessee's failure to cure the default. Lessee shall pay to the Lessor on demand any and all sums expended by Lessdr. in correcting any such deficiency together withr interest at the legal rate -,and a analt a ual to 50�6 of the sums-, Formatted: Highlight gxpgn�ed. If, in the judgment of the Lessor, the disrepair or lack of maintenance constitutes an emergency, the notice shall be a 24-hour notice to remedy; in all other cases is shalFbe a 5-day notice. C. Lessor reserves the right by its authorized agents, employees or representatives to enter the Premises upon forty-eight (48) hours advance notice, to inspect the same or any part thereof at any time to attend to or protect the Lessors interest under this Lease. 11. COMPLIANCE WITH LAWS. Lessee shall make, or cause to be made, any additions, alterations, maintenanc or repairs to any structure or improvement on the Common Area which may be required b this lease or by law, and Lessee shall otherwise observe and comply with, any law, statute, ordinance, plan, resolution or policy applicable to the Common Area. All DMIDtenance repairs, additions, and alterations to the structure or improvements on the Common Area 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. 12. "AS IS" CONDITION OF COMMON AREA. Lessee expressly accepts the'Common Area "as is" and acknowledges that Lessor has made no representations or warranties as to the suitability for any intended purpose or use of the Common Area or any construction or improvement thereon. Lessee shall conduct all tests necessary to determine the suitability of the Common Area. for any proposed construction or improvement thereon, 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 Common Area 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 "Westerly Portion" of property pursuant to the Beacon Bay Bill, the Common Area may constitute filled ticle�arld-aijbjnerged lands, 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 Common Area 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 Common Area for the purposes provided in this Lease. 13. BUSINESS ACTIVITIES. Lessee shall not grant any concession, license, permit or privilege for the conduct of any business or other operation for profit within the Common Area without the prior written approval of the City Manager. 14. INSURANCE. In addition to Lessee's obligations pursuant to Section 10, Lessee shall provide and maintain, at its own expense, policies of liability insurance as follows: A. All required policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with Lessor, prior to execution of this Lease. Current certification of coverage shall be provided throughout the term of this Lease. Except for workers compensation, all insurance policies shall include Lessor and its elected officials, officers, agents, representatives and employees as additional insureds. B. All insurance policies shelf be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Bests Key Rating Guide: unless otherwise approved by the City's Risk Manager; C. —Lessee shall provide Workers compensation Insurance covering all employees of Lessee, per the laws of the State of California. D. Lessee shall provide Commercial general liability insurance covering third party liability risks, including without limitation, contractual liability, in a minimum amount of $1 million combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to this Lease, or the general aggregate limit shall be twice the occurrence limit. Lessor reserves the right to reasonably increase the minimum coverage specified in this subsection once every five years should the City Manager of Lessor determine that then current coverages do not fully protect Lessor. E. Lessee shall provide Fire and extended coverage for not less than ninety percent (90%) of the cost of replacement of all insurable improvements in the Common Area. F. Except for worker's compensation, the policy or policies shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days' prior notice has been given in writing to Lessor. Lessee shall give Lessor prompt and timely notice of claim made or suit instituted arising out of Lessee's operation hereunder. Lessee shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. G. Lessee agrees that, in the event of loss due to any of the perils for which it has agreed to provide comprehensive general liability insurance, Lessee shall look solely to its insurance for recovery. Lessee hereby grants to Lessor, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Lessee or Lessor With respect to the services of Lessee herein, a waiver of any right of subrogation which any such insurer of said Lessee may acquire against Lessor by virtue of the payment of any loss under such insurance. 15. HOLD HARMLESS. A. Lessee shall indemnify, defend, save and hold harmless Lessor, its City Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other claims arising from any and all negligent acts or omissions of Lessee, its employees, agents or subcontractors in the use and maintenance of the Common Area pursuant to this Lease. B. Lessor shall indemnify, defend, save and hold harmless Lessee, its officers and employees, from and against any and all loss, damages, 16. 17 liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other claims arising from any and all. negligent acts or omissions of Lessor, its employees, agents or subcontractors arising from Lessor's performance under this Lease. RESTORATION. If during the term hereof any building or improvement erected by Lessee on the Common Area, or any part thereof, shall be damaged or destroyed by fire or other casualty, Lessee shall, at its cost and expense, repair or restore the same according to the original plans thereof, or, at Lessee's option, Lessee may elect to replace such building or improvement, provided that if Lessee so elects, Lessee shall obtain the approval of Lessor of the proposed architectural plans. Any such work of repair, restoration or replacement shall be commenced within one hundred and eighty (180) days after the damage or loss occurs and shall be completed with due diligence, but not longer than one (1) year after such work is commenced unless delay is caused by events beyond the control of Lessee. If Lessee elects not to repair or rebuild the improvements, it may terminate this Lease by giving Lessor written notice of termination and by assigning all insurance proceeds relating to the premises to Lessor. If Lessee elects to terminate the Lease it shall be obligated to completely clear and restore the building site to its original condition. DEFAULT AND TERMINATION OF LEASE. A. Default: Time and each of the terms, covenants and conditions hereof are expressly made the essence of this Lease. If the Lessee shall fall to comply with any of the terms, covenants, or conditions of this LeaseJhclqqing,P9!R(clt limited !q th(�_follq4ljin Le�sqLma tqra�inate is g, y th�_ 1 Failure of Lessee to keep current on all utility payments for the Premises; 2. Failure of Lessee to keep the Common Area in state of repair and operation dictated by this lease ("Consideration") and to keep it in a neat, clean, orderly, safe and sanitary condition; 3. Failure to provide certificates of Insurance evidencing insurance coverage as required in paragraph 12 of this Lease; Lessor may, subject to the provisions of Subsectionl 1 (B), terminate this Lease if Lessee falls to remedy any default related to the payment of money within thirty (30) days after service of a written notice from Lessor to do so, or fails to commence the cure of any other default within thirty (30) days and diligently prosecute the same to completion. Lessee may also terminate this Lease if Lessee abandons or vacates the Premises. B. Surrender of Possession upon Termination: Lessee shall, upon the expiration or termination of this Lease, peaceably surrender the Premises with all buildings and improvements, in the same condition as when Deleted:, received or constructed, excepting reasonable use and wear thereof, and damage by fire, acf of God, or by the elements. The provisions of this Subsection shall be effective upon expiration or termination of this Lease regardless of whether Lessee holds over under the provisions of Subsection E. 19. Remedies Cumulative: The rights --------------------------------- _p9V9Es,_@Lqqtlons- and- remedies -of-----LDelet�d-. I Lessor are cumulative and no one of them shall be considered exclusive of the other or exclusive of any rights or remedies allowed by law. Lessor's 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. D. No Waiver: No failure of 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. E. Holding Over: If the Les6ee remains in possession after the expiration of this Lease for any cause, Lessee's possession shall be deemed a tenancy from month -to -month upon the same terms, conditions, and provisions of this Lease. 18. EMINENTDOMAIN. In the event the whole or part of the Premises is condemned by a public entity in the lawful exercise of the power or eminent domain, this Lease shall cease as to the part condemned upon the date possession of that part is taken by the public entity. If only a part is condemned and the taking of does not substantially impair the capacity of the remainder to be used for the purposes required in this Lease, Lessee shall continue to be bound by the terms, covenants and conditions of this Lease. If only a part is condemned and the taking of that part substantially impairs the capacity of the remainder to be used for the purposes required in this Lease, Lessee shall have the election of: (a) terminating this Lease and being absolved of obligations that have not accrued at the date possession is taken by the public entity; or (b) continuing to occupy the remainder of the Premises and to be bound by this Lease. Lessee shall give notice in writing of his election hereunder, within thirty (30) days of the date possession of the part is taken by the public entity. Lessor shall be entitled to receive and shall receive all compensation for the condemnation of all or any portion of the remainder interest in the property by exercise of eminent domain. Lessee shall be entitled to receive Fpeleted: all or any portlon of the and shall receive all compensation for the condemnation of jts leaseh2l(l Irjt9rest_ I Improvements constructed by jn_the_Premises-by'the eXercise of eminent domain -- - - - - - - - - - - - - - - - - - - - - - - - - - - - I Deleted: Lessee on 19. SURRENDER OF POSSESSION UPON EXPIRATION OR TERMINATION. Upon expiration or termination of this Lease, Lessee agrees to peaceably deliver possession of the Common Area to Lessor and unconditionally agrees to vacate the Common Area without contest, legal or otherwise. Im rovements shall, at the election gf.the Lessor. be reMoved by Lessee or accepted as imp-rovements to the pmpprty by Lessor. I 20. ATTORNEYS'FEES. I Should either Lessee or Lessor be required to employ counsel to enforce the terms, conditions and covenants of this Lease, the prevailing party shall recover all reasonable attorneys' fees incurred therein, whether or not court proceedings were commenced, and court costs, if any. 21. NOTICES. It is mutually agreed that any notice or notices provided for in 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 City Manager or City Clerk, 3300 Newport Boulevard, Newport Beach, California 92663. Should Lessor be required to serve notice on Lessee, it may be served upon the President of the Association. Lessee shall be obligated during the term hereof to provide Lessor with current information as to the name, residence and business addresses, and residence and business phone numbers of the president of Lessee from time to time. Service of any notice, demand or communication by either party on the other shall be deemed complete at the expiration of 72 hours from and after the deposit in the United States mail, postage pre -paid, addressed as set forth above. 22. PARTIAL INVALIDITY. If any part of this Lease is declared invalid for any reason, this ruling shall not affect the validity of the rest of this Lease. The other parts of the Lease shall remain in effect as if this Lease had been executed without the invalid part, provided, however, the parties shall immediately thereafter make all reasonable efforts to modify or amend this Lease, consistent with the aforesaid declaration, so as to fully implement and carry out the intent and purposes of the parties in entering into this Lease. IN WITNESS WHEREOF, the parties have caused this Lease to be executed on the day and year first above written. CITY OF NEWPORT BEACH By Mayor ATTEST: LaVonne Harkless, City Clerk BEACON BAY COMMUNITY ASSOCIATION 10 APPROVED AS TO FORM: Robin Clauson, City Attorney By President By Vice President F,.\users\cat\shamdXda\Ag�BeaconBay\CommonAreasOI -28-05draft EXHIBIT "A" LEGAL DESCRIPTION A parcel of land situated in the projected 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 U.S. 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 Angles, California; running thence West along the U.S. Bulkhead line 147.50 feet to U.S. Station No. 137; thence North 390 48' West along said Bulkhead llne,5qq.§�jgE t;_�kqnpq Deieted: _ _�qob 231 57' 30" East 126.34 feet to an angle point in the ordinary high tide 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 391 48' East along said ordinary high tide line 334.47 feet to the most Westerly comer of that certain parcel of land conveyed to the City of Newport Beach by the Irvine Company, as described In deed recorded September 25th, 1929, in Book 306, page 375 of Official Records of Orange County, California; thence North 230 57' 30" East along the Northwesterly line of said parcel of land 317.57 feet; thence South 710 54' East along the Northerly line of said parcel of land 290.24; then South 850 43' 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 U.S. Govt. Bulkhead line between U.S. Stations Nos. 101 and 200; thence West along said Bulkhead line 784.25 feet to the point of beginning containing approximately twelve (12) acres. 12 EXHIBIT "B" COMMON AREA LEGAL DESCRIPTION Lots 62 and A through J as shown on that certain record of Survey filed in the Official Records of the County of Orange, State of California, as Instrument Number 5383 on February 28, 1939 covering a portion of the_pLojected Northwest one -quarter (1/4) of section 35, Township 6 South, Range 10 West, S.B.B.M. I F,.\usem\cafthamdkAg�BeaconBay\CommonAmasO722clean.doc 13 EXHIBIT "C" DEPICTION OF.COMMON AREA LEASE LEASE AGREEMENT BEACON BAY COMMON AREAS (Beacon Bay Community Association) THIS LEASE is. made and entered into as of the 8th day of February, 2005, by and between the CITY OF NEWPORT BEACH, a chartered municipal corporation ("City") or ("Lessor"), and BEACON BAY COMMUNITY ASSOCIATION, a California nonprofit corporation ("Lessee"). - 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 filled and unfilled tide and submerged lands in trust. The City also holds title to certain uplands obtained in its municipal capacity in 1929. These areas are collectively and commonly known as Beacon Bay and described in Exhibit A attached hereto and incorporated herein by this reference ("Beacon Bay"). B. The Beacon Bay Bill exempts 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 statutory conditions. C. Portions of Beacon Bay, including portions of the "Westerly Portion" thereof, has been divided into individual residential lots. Within Beacon� Bay are also certain streets, walkways, beaches, common landscaped areas and tennis courts, identified as Lots A through J and Lot 62 described in Exhibit B attached hereto and incorporated by reference and as shown on the Exhibit C, attached hereto and incorporated herein by this reference (the "Common Area"). D. On January 9, 1950, Lessor first entered into a master lease of Beacon Bay, including the Common Area, to an individual who thereafter subleased individual lots to individual homeowners. This original lease expired on December 31, 1987. On January 1, 1988, City leased the individual lots in Beacon Bay to individual homeowners and leased the Common Area to Lessee, a community association comprised of the foregoing individual homeowners within Beacon Bay (the "Existing Common Area Lease"). The leases of individual lots to individual homeowners were amended, restated and extended on various dates, each to expire on July 1, 2044 (the "Residential Leases"). The Existing Common Area Lease will expire on July 1, 2006. E. On November 3, 1987, a majority of electors of the City approved a measure that authorized the City Council to enter into new leases of the residential lots in Beacon Bay for not to exceed fifty (50) years. F. On November 3, 1992, a majority of electors of the City approved Measure M that authorized the City Council to lease tidelands and waterfront property consistent with the provisions of state law. G. In 1994 Lessor determined that maintaining the residential character of Beacon Bay was in the best interests of the citizens of Newport Beach and State of California, and agreed to a lease for the residential lots until July 1, 2044. As with the 1988 leases, the form of those leases and range of consideration were approved by the California State Lands Commission, pursuant to Chapter 74, Statutes of 1978. H. Lessor has further determined it is in the best interests and welfare of the citizens of Newport Beach and State of California: I that the Common Area portions of Beacon Bay which have been leased for'common area purposes appurtenant to the Beacon Bay residential community continue in that character; 2. to lease the Common Area to Lessee under the terms, conditions and for the consideration as hereinafter set forth; and 3. for Lessee to continue to use the same high standards of care and maintenance of the Common Area that Lessee used on the Effective Date of this Lease to serve the Beacon Bay residents and visitors. The State Lands Commission has reviewed and approved the form of this Lease and range of consideration for compliance with the provisions of relevant statutes, rules and regulations, including, without limitation, the Beacon Bay Bill. J. Lessor has determined that this Lease is consistent with provisions of the Beacon Bay Bill, the Charter, General Plan and Zoning Ordinance of the City of Newport Beach, and all other applicable state and local laws. K. The Parties intend, through this Lease, to confirm Lessor's right to use any properties held in trust by the Lessor (including tidelands) for projects that are intended to enhance the water quality or ecosystem of Newport Bay. NOW THEREFORE, in consideration of the foregoing recitals, which are hereby incorporated into and made part of the terms and conditions of this Lease, and the covenants in this lease, the Lessor and Lessee agree as follows: 1. QESQRIP�ION OF LEASED PREMISES. Lessor hereby leases to Lessee, and Lessee hereby accepts this Lease of, the Common Area, subject to the terms, covenants and conditions in this Lease. 2. TERM. The term of this Lease is for a period commencing on the date first above written, and shall expire on July 1, 2044, the date on which the Residential Leases expire, unless earlier terminated as provided in this Lease. The Existing Common Area Lease shall terminate at the time and date this Lease has been approved by formal action of the governing bodies of Lessor and Lessee and fully executed by both parties and approved as to form and the range of consideration by the California State Lands Commission. 2 3. CONSIDERATION. The consideration for this Lease is the execution and performance of the Residential Leases and the maintenance and upkeep of the Common Area as provided in this Agreement, which would otherwise be an expense borne by Lessor, and the benefit to the public by access to and use of certain portions of the Common Area. A. Lessee shall maintain the Common Area at substantially the same high standard of care and maintenance that Lessee used as of the Execution Date of this Lease. B. That portion of the Common Area lying southerly of the waterfront lots lying between "Beacon Bay" (formerly Rudder Road) and the waters of Newport Bay, including the wet and dry -sand portions of the beach, shall be held open and maintained by Lessee for use by members of the public. C. The other portions of the Common Area designated as uplands may be held for the exclusive use and benefit of Lessee and its constituent homeowner members; provided that nothing herein shall be construed to limit public access to or passage over the walkways leading from "Beacon Bay" (formerly Rudder Road) to the beach nor daytime public parking on the streets designated "Beacon Bay" and "Cutter Road" within Beacon Bay. D. Lessee shall install and maintain public access signage at the entrance to Beacon Bay from Harbor Island Road and at each of the walkways leading from "Beacon Bay" to the beach. The size and exact location of the signs shall be determined by Lessor. 4. SALE, ASSIGNMENT, SUBLEASE. Lessee shall not assign, transfer, sublease, mortgage, hypothecate or give any grant of control of this Lease or the Common Area, or any part hereof, either voluntarily or involuntarily, unless first approved by the City Council. 5. ENCUMBRANCES. Lessee shall have the right to assign this Lease as security for financing of Common Area improvements, such as street repairs, undergrounding of utility lines, construction of homeowners' association improvements, and similar capital expenditures. Lessee may adopt and record Covenants, Conditions and Restrictions (CC&R's) against this Lease as authorized in California Civil Code section 1350 et seq. provided Lessee obtains prior written approval of the CC&R's by Lessor's City Attorney. Preparation, management and enforcement of the CC&R's shall be sole responsibility of Lessee. Otherwise, Lessee shall have no right to encumber this Lease or the Common Area for any purpose whatsoever and any attempt by Lessee to so encumber this Lease or the Common Area shall result in the immediate termination hereof. 9 66 USE. A. The Common Area shall be used solely and exclusively for vehicular ingress and egress and parking, boat storage and launching, pedestrian walkway purposes, recreational uses for Beacon Bay residents, except as to the beach areas reserved for public beach recreation, and the property designated as Lot "62" shall be used exclusively for tennis court and park purposes and for construction and maintenance of an office and meeting facilities for Lessee in connection with the maintenance and operation of the homeowners' association in Beacon Bay. The use by Lessee of any portion of the Common Area for any purpose not expressly permitted or required by this Lease is an express violation of this Lease and may be cause for termination, at the sole discretion of Lessor. B. Lessee shall use and manage the Common Area in a manner that does not violate State or Federal laws, including any law that prohibits discrimination. C. The property designated as beach property on Exhibit C shall be used exclusively for public beach purposes. Lessee shall maintain the Common Area in a manner that allows for open public access to the beach. Lessee may impose parking limitations on use of streets within the Common Area only for pedestrian, fire safety and/or traffic circulation purposes upon prior written approval of the City Traffic Engineer. Lessee shall not post or position any signs or structures in a manner that will discourage or prohibit public access. Lessor retains the right to use the beach portion of the Common Area for any project designed and intended to 6nhance the water -quality or ecosystem of Newport Bay subject to the ordinances and policies adopted by Lessor in its governmental capacity and as trustee of the State of California. 7. TAXES AND UTILITIES. Lessee acknowledges 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 Common Area, including any improvements located thereon or associated therewith, or any possessory interests therein arising out of or based upon the leasehold interest throughout the term hereof. Satisfactory evidence of such payment shall be made available to Lessor upon demand. Any lien for unpaid utilities, taxes, assessments or charges shall not attach the leasehold interest but only to the improvements thereon. 8. MAINTENANCE AND REPAIR OF COMMON AREA. Lessee shall at all times during the term of this Lease and without any cost or expense to Lessor, keep and maintain the Common Area, including, without limitation, all structures, facilities, walks, curbs, parkways, beach areas, Pub-ric access si-griage, streets and other improvements, in good order and repair and in a clean, safe, sanitary and orderly condition. Lessee shall repair or reconstruct 9 any improvements on the Common Area following any damage or destruction thereof, unless the improvements are being destroyed in conjunction with remodeling or reconstruction and Lessor has consented, in writing, to the damage or destruction. Lessee shall cause to be constructed, maintained and repaired all utilities, pipes, walls, sewers, drains, and other improvements on the Common Area to the. extent required by law or as necessary to maintain the improvement in good order and repair and safe and sanitary condition. 9. STRUGMIRALIMPROVEMENTS. A. All structural improvements with a cost in excess of five thousand dollars. ($5,000) (the "Capital Improvements") that are constructed during the term of this Lease become the property of Lessor upon expiration of theLease. B. Lessee shall be required to obtain, prior to commencing the construction of any Capital Improvement, all permits, licenses or approvals that may be required by Lessor in its governmental capacity. C. Lessee shall, at all times, indemnify, defend and hold Lessor harmless from any and all claims, liens, damages or fees in any way related to any maintenance, construction, repair, alteration or installation of any structure, improvement, equipment or facilities on the Premises. Lessee's obligation extends to the costs of defending such claims, including reasonable attorney's fees. Lessee shall not suffer or permit to be enforced against all or any portion of the Premises, any lien or any claim for damage in any way related to any construction, repair, restoration, replacement, maintenance or improvement on the Premises. In the event any lien or stop notices imposed or recorded on the Premises as a result of the construction, repair or alteration of the facility by or on behalf of Lessee, Lessee shall pay or cause to be paid all such liens, claims or demands before any action is brought to enforce the same against the Premises. Lessee may, in good faith, contest the validity of such lien, claim or demand. In the event of any contest or litigation, Lessee shall, at its sole expense, defend itself and Lessor and shall pay and satisfy any adverse judgment that may be rendered prior to enforcement against Lessor or the Premises. Lessor may require Lessee to furnish a surety bond satisfactory to lessor in an amount equal to any contested lien, claim or demand. D. Lessee shall give Lessor advance written notice of any construction on or improvement on the premises other than ordinary repairs and maintenance of existing improvements. Lessee shall coordinate the scheduling of any work with Lessor to minimize any inconvenience to the public. 10. MAINTENANCE OF IMPROVEMENTS. A. Lessee to Maintain All Improvements: Lessee covenants and agrees that during the term of this Lease it will, at its own cost and expense, maintain the Premises in good order and repair and in clean, orderly, safe and R sanitary condition. Lessee shall be responsible for the repair of any damage. B. Lessor May Elect to Repair and Maintain at Expense of Lessee: If, in the judgment of the Lessor, the standards of maintenance and repair required by this- Lease are not being maintained, Lessor may elect to correct any deficiency after written notice thereof to the Lessee and Lessee's failure to cure the default. Lessee shall pay to the Lessor on demand any and all sums expended by Lessor in correcting any such deficiency together with interest at the legal rate. If, in the judgment of the Lessor, the disrepair or lack of maintenance constitutes an emergency, the notice shall be a 24- hour notice to remedy; in all other cases is shall be a 5-day notice. C. Lessor reserves the right by its authorized agents, employees or representatives to enter the Premises upon forty-eight (48) hours advance noti - ce, to inspect the same or any part thereof at any time to attend to or protect the Lessor's interest under this Lease. 11. COMPLIANCE WITH LAWS. Lessee shall make, or cause to be made, any additions, alterations, maintenance or repairs to any structure or improvement on the Common Area which may be required by this lease or by law, and Lessee shall otherwise observe and comply with, any law, statute, ordinance, plan, resolution or policy applicable to the Common Area. All maintenance, repairs, additions, and alterations to the structure or improvements on the Common Area shall conform to all applicable laws, ordinances, regulations, plans, policies and resolutions and all work shall be performed with reasoriable diligence, completed within a reasonable time, and performed at the sole cost and expense of Lessee. 12. "AS IS" CONDITION OF COMMON AREA. Lessee expressly accepts the Common Area "as is" and acknowledges that Lessor has made no representations or warranties as to the suitability for any intended purpose or use of the Common Area or any construction or improvement thereon. Lessee shall conduct all tests necessary to determine the suitability of the Common Area for any proposed construction or improvement thereon, 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 Common Area 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 "Westerly Portion" of property pursuant to the Beacon Bay Bill, the Common Area may constitute filled tide and submerged lands, 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 eve ' nt of any challenge to the right and power of Lessor to lease the Common Area for the purposes provided in this Lease, Lessor agrees, at its sole cost and expense, to use all reasonable efforts to resist and defend n. 13 against such challenge,and to seek a ruling or judgment affirming and upholding the right and power of Lessor to lease the Common Area for the purposes provided in this Lease. BUSINESS ACTIVITIES. Lessee shall not grant any concession, license, permit or privilege for the conduct of any business or other operation for profit within the Common Area without the prior written approval of the City Manager. 14. INSURANCE. In addition to Lessee's obligations pursuant to Section 10, Lessee shall provide and maintain, at its own expense, policies of liability insurance as follows: A. All required policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with Lessor, prior to execution of this Lease. Current certification of coverage shall be provided throughout the term of this Lease. Except for workers compensation, all insurance policies shall include Lessor and its elected bfficials, officers, agents, representatives and employees as additional insureds. B. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Bests Key Rating Guide: unless otherwise approved by the City's Risk Manager; C. Lessee shall provide Workers compensation insurance covering all employees of Lessee, per the laws of the State of California. D. Lessee shall provide Commercial general liability insurance covering third party liability risks, including without limitation, contractual liability, in a minimum amount ' of $1 million combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to this Lease, or the general aggregate limit shall be twice the occurrence limit. Lessor reserves the right to reasonably increase the minimum coverage specified in this subsection once every five years should the City Manager of Lessor determine that then current coverages do not fully protect Lessor. E. Lessee shall provide Fire and extended coverage for not less than ninety percent (90%) of the cost of replacement of all insurable improvements in the Common Area. F. Except for worker's compensation, the policy or policies shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days' prior notice has been given in writing to Lessor. Lessee shall give Lessor prompt and timely notice of claim made or suit instituted arising out of Lessee's operation hereunder. Lessee shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. G. Lessee agrees that, in the event of loss due to any of the perils for which it has agreed to provide comprehensive general liability insurance, Lessee shall look solely to its insurance for recovery. Lessee hereby grants to Lessor, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Lessee or Lessor with respect to the services 6f Lessee herein, a waiver of any right of subrogation which any such insurer of said Lessee may acquire against Lessor by virtue of the payment of any loss under such insurance. 15. HOLD HARMLESS. A. Lessee shall indemnify, defend, save and hold harmless Lessor, its City Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other claims arising from any and all negligent acts or omissions of Lessee, its employees, agents or subcontractors in the use and maintenance of the Common Area pursuant to this Lease. B. Lessor shall indemnify, defend, save and hold harmless Lessee, its officers and employees, from and against any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other claims arising from any and all negligent acts or omissions of Lessor, its employees, agents or subcontractors arising from Lessor's performance under this Lease. 16. RESTORATION. If during the term hereof any building or improvement erected by Lessee on the Common Area, or any part thereof, shall be damaged or destroyed by fire or other casualty, Lessee shall, at its cost and expense, repair or restore the same according to the original plans thereof, or, at Lessee's option, Lessee may elect to replace such building or improvement, provided that if Lessee so elects, Lessee shall obtain the -approval of Lessor of the proposed architectural plans. Any such work of rep6ir,' restoration or replacement shall be commenced within one hundred and eighty (180) days after the damage or loss occurs and shall be completed with due diligence, but not longer than one (1) year after such work is commenced unless delay is caused by events beyond the control of Lessee. If Lessee elects not to repair or rebuild the improvements, it may terminate this Lease by giving Lessor written notice of termination and by assigning all insurance proceeds relating to the premises to Lessor. If Lessee elects to M terminate the Lease it shall be obligated to completely clear and restore the building site to its original condition. 17. DEFAULT AND TERMINATION OF LEASE. A. Default: Time and each of the terms, covenants and conditions hereof are expressly made the essence of this Lease. Lessor may terminate this Lease and seek other appropriate remedies if Lessee fails to remedy any default related to the payment of money within thirty (30) days after service of a written notice from Lessor to do so, or falls to commence the cure of any other default within thirty (30) days and diligently prosecute the same to completion. Lessee may also terminate this Lease if Lessee abandons or vacates the Premises. The following are examples of material defaults that would warrant termination of this Lease in the event of a failure to cure as specified above:: 1 Failure of Lessee to keep current on all utility payments for the Premises; 2. Failure of Lessee to keep the Common Area in state of repair and operatior� dictated by this lease ("Consideration") and to keep it in a neat, clean, orderly, safe and sanitary condition; Failure to provide certificates of insurance evidencing insurance coverage as required in paragraph 12 of this Lease; B. Surrender of Possession upon Termination: Lessee shall, upon the expiration or termination of this Lease, peaceably surrender the Premises with all buildings and improvements, in the same condition as when received or constructed, excepting reasonable use and wear thereof, and damage by fire, act of God, or by the elements. The provisions of this Subsection shall be effective upon expiration or termination of this Lease regardless of whether Lessee holds over under the provisions of Subsection E. C. Remedies Cumulative: The rights, powers, elections and remedies of Lessor are cumulative and no one of them shall be considered exclusive of the other or exclusive of any rights or remedies allowed by law. Lessors 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. D. No Waiver: No failure of 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. E. Holding Over: If the Lessee remains in possession after the expiration of this Lease for any cause, Lessee's possession shall be deemed a tenancy from month -to -month upon the same terms, conditions, and provisions of this Lease. 4 18. EMINENT DOMAIN. In the event the whole'or part of the Premises is condemned by a public entity in the lawful exercise of the power or eminent domain, this Lease shall cease as to the part condemned upon the date possession of that part is taken by the public entity. If only a part is condemned and the taking of does not substantially impair the capacity of the remalncler to be used for the purposes required in this Lease, Lessee shall continue to be bound by the terms, covenants and conditions of this Lease. If only a part is condemned and the taking of that part substantially impairs the capacity of the remainder to be used for the purposes required in this Lease, Lessee shall have the election of: (a) terminating this Lease and being absolved of obligations that have not accrued at the date possession is taken by the public entity; or (b) continuing to occupy the remainder of the Premises and to be bound by this Lease. Lessee shall give notice in writing of his election hereunder, within thirty (30) days of the date possession of the part is taken by the public entity. Lessor shall be entitled to receive and shall receive all compensation for the condemnation of all or any portion of the remainder interest in the property by exercise of eminent domain. Lessee shall be entitled to receive and shall receive all compensation for the condemnation of its leasehold interest in the Premises by the exercise of eminent domain. 19. SURRENDER OF POSSESSION UPON EXPIRATION OR TERMINATION. Upon expiration or termination of this Lease, Lessee agrees to peaceably deliver possession of the Common Area to Lessor and unconditionally agrees to vacate the Common A(ea without contest, legal or otherwise. Improvements shall become the property of the Lessor upon expiration of this lease. 20. ATTORNEYS'FEES. Should either Lessee or Lessor be required to employ counsel to enforce the terms, conditions and covenants of this Lease, the prevailing party shall recover all reasonable aftorneys'-fees incurred therein, whether or not court proceedings were commenced, and court costs, if any. 21. NOTICES. It is mutually agreed that any notice or notices provided for in 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 City Manager or City Clerk, 3300 Newport Boulevard, Newport Beach, California 92663. Should Lessor be required to serve notice on Lessee, it may be served upon the President of the Association. Lessee shall be obligated during the term hereof to provide Lessor with current information as to the name, residence and business addre§ses, and residence and business phone numbers of the president of Lessee from time to time. Service of any notice, demand or communication by either party on the other shall be deemed complete at'the expiration of 72 hours from and after the deposit in the United States mail, postage pre -paid, addressed as set forth above. 10 �2. PARTIAL INVALIDITY. If any part of this Lease is declared invalid for any reason, this ruling shall not affect the validity of the rest of this Lease. The other parts of the Lease shall remain in effect as if this Lease had been executed without the invalid part, provided, however, the -parties shall immediately thereafter make all reasonable efforts to modify or amend this Lease, consistent with the aforesaid declaration, so as to fully implement and carry out the intent and purposes of the parties in entering into this Lease. IN WITNESS WHEREOF, the parties have caused this Lease to be executed on the day and year first above written. CITY OF NEWPORT BEACH, a Steve Bromberg,Mayor ATTEST: LaVonne Harkless, City Clerk BEACON BAY COMMUNITY ASSOCIATION By President 0 Vice President APPROVED AS TO FORM: Robin Clauson,City Attorney F:\users\cat\shared\da\Ag\BeaconBay\CommonAreasFinaIO3-10-05 11 EXHIBIT "A" LEGAL DESCRIPTION A parcel of land situated in the projected 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 U.S. Bulkhead Station No. 200, as shown upon a map entitled "Harbor Lines, Newport Bay Harbor, California", approved May 2nd, 1936, by the Secretary of War and on file in the office of the United States District Engineer at Los Angles, California; running thence West along the U.S. Bulkhead line 147.50 feet to U.S. Station No. 137; thence North 390 48"West along said Bulkhead line 535.53 feet; thence North 230 57' 30" East 126.34 feet to an angle point in the ordinary high tide 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 390 48' 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 26th, 1929, in Book 306, page 375 of Official Records of Orange County, California; thence North 230 57' 30" East along the Northwesterly line of said parcel ' of land 317.57 feet; thence South 711 54' East along the Northerly line of said parcel of land 290.24; then South 850 43' 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 U.S. Govt. Bulkhead line between U.S. Stations Nos. 101 and 200; thence West along said Bulkhead line 784.25 feet to the point of beginning containing approximately twelve (12) acres. 12 EXHIBIT "B" COMMON AREA LEGAL DESCRIPTION Lots 62 and A through J as shown on that certain record of Survey filed in the Official Records of the County of Orange, State of California, as Instrument Number 5383 on February 28, 1939 covering a portion of the projected Northwest one -quarter (1/4) of section 35, Township 6 South, Range 10 West, S.B.B.M. 13 EXHIBIT 99cil DEPICTION OF COMMON AREA LEASE irji It //f-" '�O- RESOLUTION NO. 10040 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING AN AGREEMENT TO LEASE AND LEASE OF L3EA(ZQN__B4Y--RESIDENTIAL LOTS AND AGREEMENT TO LEASE AND LEASE OF BEACON BAY COMMON AREA CONSISTENT WITH CHAPTER 74r 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 jointlyr 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, 1967; 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, 1 9L 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. I 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. NOWr THEREFORE, BE IT RESOLVED by the City Council of the City of Newport Beach that pursuant to the recitals hereinabove set forth, the Charter of the City of Newport Beach and Chapter 74, Statutes of 1978, the form of Agreement to Lease and Lease of the residential lots in Beacon Bay, respectively attached hereto, be and they are hereby approved. 3 BE IT FURTHER RESOLVED that the Agreement to Lease and Lease of the Common Area of Beacon Bay, respectively attached hereto, be and they are hereby approved. BE IT FURTHER RESOLVED that the Mayor and City Clerk are hereby authorized and directed to execute each individual Agreement to Lease the respective r.esidential lots in the westerly portion of the Beacon Bay property and the common areas in the western portion of the Beacon Bay property and that the Mayor and City Clerk of the City of Newport Beach are further authorized and directed to execute said Lease for the respective residential lots in the westerly portion of the Beacon Bay property and the common areas of the western portion of the Beacon Bay property during the month of December, 1987, provided that the Sublessees and the Beacon Bay Community Association and their heirs, devisees, and assigns, as the case might be, have fully performed and executed their obligation under said Agreements to Lease. ADOPTED this 11thday of May , 1981. ATTEST: City Clerk ?ajyod��� i� 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 AGREEMENT TO LEASE THIS AGREEMENT TO LEASE, made and entered into on the _ day of 1981, by and between the CITY OF NEWPORT BEACH, a chartered municipal corporation, hereinafter "City," and "Sublessee." RECITALS hereinafter 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 11111 attached hereto and made a part hereof by this reference. B. Carroll B. Beek, Barton Beek, Joseph Allan Beek, Jr., and Seymour Beek jointly hold a Master Lease to said proper- ty dated January 9, 1950, which Master Lease expires on December 31, 1987. C. The "Westerly Portion" of the Beacon Bay property has been divided into individual lots and subleased for residential purposes. D. All of said subleases expire on the same date as the Master Lease, to wit: December 31, 1987. E. City believes it to be in the best interest and welfare of City: (1) that the portion of Beacon Bay which is currently leased for residential purposes remain residential in character; and (2) to enter into new agreements to lease with the sublessees under the terms, conditions and for the considera- tion as hereinafter set forth. F. It is the judgment of City that the leasing of the property hereinafter described is consistent with the trust pur- poses imposed upon such portions of the leased land which may 1 constitute tidelands as authorized by Chapter 74, Statutes of 1978. G. It is further the judgment of City that in entering into this Agreement to Lease in the future, City is acting pur- suant to its proprietary powers. NOWr THEREFORE, IN CONSIDERATION OF THE FOREGOING RECITALS AND THE MUTUAL COVENANTS set forth below, City and Sub- lessee hereby agree as follows: 1. City hereby agrees to lease to Sublessee and Sub- lessee hereby agrees to lease from City the real property described in Exhibit "2" attached hereto and by this reference made a part hereof (hereinafter the "Leased Land") pursuant to a lease substantially in the form of Lease which is attached,hereto marked Exhibit "C" and by this reference made a part hereof, and under the terms and conditions as set forth below. 2. In consideration of City's agreement to lease to Sublessee hereunder, Sublessee agrees to pay to City on the lst day of each month following the date of this Agreement and on the lst day of each month thereafter through the lst day of December, 1987, a sum determined by subtracting from the fair market rental value of (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.r 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 executionr 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 advantager as of the date of executionr 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, eithdr 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 IICII attached heretor 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 acceptancer 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 Agreementr 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 completionr or if a Sublessee shall abandon or -vacate the Leased Land, City mayr 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 1� City by reason of said breach, includingr 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 termst 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 agentsf employees, licensees, and/or invitees, includingr without limitation, injury or death of Sublessee, his agentsf employees, licensees and invitees and damage to his property or Sublessee's property; except for any damage gr 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, permitteest or any person who may come into possession or occupancy of the Leased Land, or any part thereof in any manner whatsoever. 6i IN WITNESS WHEREOF, the parties have caused this Agree- ment to Lease to be executed on the date first above written. CITY OF NEWPORT BEACH By, Mayor ATTEST: City Clerk APPROVED AS TO FORM: City Attorney Sublessee 5-4-81 EXHIBIT "C" L E A S E 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 11111 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- 04 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 11211 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 lst day of July 2006. 3. BASE RENTAL. As base rental, Lessee agrees to pay I to Lessor the sum of DOLLARS, ($ 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 transfereer 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 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 leasebold 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 verificationr 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 P (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")f 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 s : uch Trust Deedr 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 expenser 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. 0 (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: 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, howeverr if the holder of the Trust Deed shall fail or refuse to comply with any and all of the conditions of this paragraphy 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 61 la i 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 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 11311 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. I 11. INDEMNIFICATION. Lessee agrees that he will hold and save Lessorl 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, employeesf licensees and invitees and damage to his property or Lessee's property; except for any damage or injury of a ny 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 reservedr at the time and in the amount herein required, and shall fail to remedy such default within 7 I I 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 bovenantst 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 seg. 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 M I �� .. , , A (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's 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. W \10 I I 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 relining 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 3 per annum compound interest for the number of years re- mai7nng 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 at: % per annum compound interest Y_C��, (Inwood Coefficient) for the number of years remaining from the date of taking to the date of expiration of the term of this Lease. (b) The Lessee shall be entitled to the amount remaining of the total award after deducting therefrom the sums to be paid to Lessor as hereinabove provided. E. Reduction of Rent on Partial Taking. In the event of a partial taking, the rent payable by Lessee hereunder shall be adjusted from the date of taking or to the date of the expiration of the term of this Lease. Such rental adjustment will be made by reducing the basic rental payable by Lessee in the ratio that the fair market rental value of the Leased Land at the date of taking bears to the fair market value of the Leased Land immediately thereafter. 15. ATTORNEYS' FEES Should either Lessor or Lessee be required to employ counsel to enforce the terms, conditions and covenants of this Lease Agreement, the prevailing party shall recover all reasonable attorneys' fees (and court fees if applic- able) incurred therein, whether or not court proceeding.s 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 Managerr or City Clerke 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 montb-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. CITY OF NEWPORT BEACH BY Mayor ATTEST: City Clerk APPROVED AS TO FORM: City Attorney Lessee Lessee 13 4-21-81 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 390481 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. 3 k Q) L-4:� 47 40 57 49 CC> GO CC < Iv .LOT H 29 zi 0 L --------- L L -------- J . 2 1 A9 L: 'IL 30 :%i24 C) 43 1 IC' -------- I C:) F --------- Lo 37 31 ?.5 1.4 Ile ---------- CZ C�: I r= — --- — — — 141 Ci I I f>, — C� L— — — — — — — 8 L — — — — — — — — ---------- 39 N C. xN -to L Z5 �4 L— — — — — — - --j : -------- B A y r r A' I Z.2 7 8 13 14 IG 17 13 Li L --- J L-.-J L----J J11L12-J L— IL --- J L----� L EC END 7r, US all -7 STA.ZOO N-UMarrS A113 S-,Ar!- A�,RESSES,IF -.95 SAME: 31 0 "Ar L27TER S?C?,WtHL:S---fiqj Y) .......... . LOT S. 41 C/ K HrA D L hV Z. A-'�P-ZSS V`C'7rZ7.M-- TPAULOT, N0.1S to u S 0 U.S. PICRItCAD a I RP ------- nNOT C5 LE�CAC? LMES Attachment 2 -1*J.H*. .1�10T! 5 P;,CLZ'- U-,;,:Ty CASEMENTS. -%�7*JS V.-r, A-J A% E OPCN STACE LC-rG. "Y' W , 'r DACY, DISTI-CES A;[ S'VN'-tSS SHOWN 07HERWISE. Reterence: R.S. Book 9, pages 42 and 43, R.S. Book 13, page 42 and Eastside Addition to Beacon Bay per Book 2, page 30 of Official Maps. 5CAL C V, FCC T Gj,? *.% ......... :2.�' EXHIBIT 11311 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS BEACON BAY C014MUNITY ASSOCIATION Table of Contents Article I DEFINITIONS Page 2 1 - Architectural Committee 2 2 - Articles and Bylaws 2 3 - Assessments 2 4 - Association 3 5 - Association Rules 3 6 - Board 3 7 - City 3 8 - Common Expenses 3 9 - Common Area 4 10- Covered Property 4 11- Declarant 4 12- Exhibit 4 13- Member 4 14- Lessee 4 15- Residence 4 16- Setback 5 11 MEMBERSHIP 0 1 - Membership 5 2 - Transfer 5 3 - Voting Rights 5 4 - Classes of Voting membership 5 5 - Approval of Members 5 III COVENANT FOR MAINTENANCE ASSESSMENTS 6 1 - Creation of the Lien and Personal obligation of Assessments 6 2 - Purpose of Assessments 6 3 - Regular Assessments 6 4 - Uniform Assessment 6 5 - Special Assessments 6 6 - No offsets 6 7 - Reserves 7 IV NONPAYMENT OF ASSESSMENTS 7 Delinquency 7 Notice of Lien 8 3 Foreclosure Sale 8 (i) I:z 31 I 4 - Relationship with Mortgage Liens 8 5 - Curing of Default 9 V ARCHITECTURAL CONTROL 9 1 - Appointment of Architectural Committee 9 2 - General Provisions 9 3 - Approval and Conformity of Plans 10 4 - Nonliability for Approval of Plans 10 VI DUTIES AND POWERS OF 'THE ASSOCIATION 10 1 - General Duties and Powers 10 2 - General Duties of the Association 11 3 - General Powers of the Associationon 11 4 - Association Rules 11 VII REPAIR AND MAINTENANCE 12 1 - Repair and Maintenance by Association 12 2 - Repair and Maintenance by Lessee 12 3 - Maintenance of -Public Utilities 12 VIII USE RESTRICTIONS 12 1 - Commercial Use 12 2 - Signs 13 3 - Nuisance 13 4 - Animals 13 5 - California Vehicle Code 13 IX RIGHTS OF ENJOYMENT 13 1 - Members' Right of Enjoyment 13 2 - Delegation of Use 14 3 - Waiver of Use 14 X GENERAL PROVISIONS 14 1 - Enforcement 14 2 - No Waiver 15 3 - Cumulative Remedies 15 4 - Severability 15 5 - Covenants to Run with the Land; Term 15 6 Heading 15 7 Singular Includes Plural 15 8 Attorneys' Fees 16 9 Notices 16 10- Effect of Declaration 16 ll-, Personal Covenant 16 12- Nonliability of officials 17 13- Subleases 17 14- Amendments 17 �42A - U DECLARATION Or COVENANTS, CONDITIONS AND RESTRICTIONS BEACON BAY COMMUNITY ASSOCIATION ORANGE COUNTY, CALIFORNIA THIS DECLARATION is made this day of r by the City of Newport Beach a chartered municipal corporation. Said corporation, its successors and assigns, shall hereafter be referred to as "Declarant. 11 R E C I T A L S A. Declarant is the fee owner of the real property described in Exhibit A to this Declaration, which shall be the Covered Property under this Declaration. This Declaration is being imposed by Declarant upon the Covered Property. B. Declarant has deemed it desirable to establish covenants, conditions and restrictions upon the Covered Property and each and every portion thereof, which will constitute a general scheme for the management of the Covered.,Property, and for the use, occupancy and enjoyment thereof, all for the purpose of enhancing and protecting the value, desirability and attractiveness of the Covered Property and enhancing the quality of life within the Covered Property. C. it is desirable for the efficient management of the Covered Property and the preservation of the value, desirability and attractiveness of the Covered Property to delegate and assigned the powers of managing the Covered Property, maintaining and administering the Common Area Y and administering and enforcing these covenants, conditions and restrictions and collecting and disbursing funds ;Du:suant to the assessment and charges hereinafter created and referred to and to perform such other acts as shall qenerally benefit the Covered Property to the Beacon Bay Cars-munity Assocation, a California nonprofit corDo:a---ion. D. Declarant will hereafter hold all of the Covered Property subject to covenants, conditions and restrictions Beacon 9/20/79 title to and lease certain protective hereafter set forth. Rev. 9/24/79 25' 4 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 covenantst 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, conditionst restrictions and easements shall run with said interests and shall be binding upon alI parties having or acquiring any right or title in said interests or any part thereof, and shall inure to the benefit of each owner thereof and are imposed upon said interests and every part thereof as a servitude in favor of each and every of said interests as the dominant tenement or tenements. ARTICLE I DEFINITIONS unless the context clearly indicates otherwise, the following terms used in this Declaration are defined as follows: Section 1. "Architectural Committee" shall mean and refer to the committee or committees provided for in the Article hereof entitled "Architectural Control". Section 2. "Articles" and "Bylaws" shall mean and refer to the Articles ot incorporation and Bylaws of the Association as the same may from time to time be duly amended. Section 3. "Assessments -.'I 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 particular 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 Declarationt the Articles, Bylaws or Association Rules, or any other charge designated as a Special Assessment, together with attorneys' fees and other charges payable, plus interest the.reon as provided for in this Declaration. Beacon Bay 9/20/79 2 Rev. 9/24/79 Section 4. "Association" shall mean and refer to Beacon Bay Community Assocation, a nonprofit corporation, incorporated under the laws of the State of California, its successors and assigns. Section 5. "Association Rules" shall mean rules adopted by the Association pursuant to the Article hereof entitled "Duties and Powers of the Association." Section 6. "Board" shall mean the Board of Directors of Th—eA�—ssoc i at ion. I Section 7. "City" shall mean and -refer to the City of Newport Beach, Californiar a municipal corporation of the state of California. Section S. "Common Expenses" shall mean and refer to the actual and estimated costs of: (a) maintenancer managementf 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 firer casualtyr liability, workmen's compensation and other insurance covering the Common Area; (f) the costs of any other insurance obtained by the Association; (g) reasonable reserves as deemed appropriate by the Board; (h) the costs of bonding of the members of the Board, any professional managing agent or any other person handling the funds of the Association; Beacon Bay 9/20/719 3 Rev. 9/24/79 .A (i) taxes paid by the Association; (j) amount's 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 commoi Arear or the costs of any other item or items designated '-,y this Declaration, the Articles, Bylaws or Association Rulesr or in furtherance of the purposes of the ' Association or in -the discharge of any duties or powers of the Association. Le ion 9. "Common Area" shall mean all streets, beaches, w YL waysj. docks, piers, and common al� tennis courts, landscaped areast including but not limited to Lots A through J inclusive as shown on 'Exhibit 'U". Section 10. "covered Property" shall mean and refer to ��jl �the real property described on Exhibit "I". Section 11. "Declarant" shall mean and refer to the City �Et 'fle�,,port Beach. Section 12. "Exhibit" shall mean and refer to those jo—cu.-jents—so designated herein and attached hereto and each of such Exhibits is by this reference incorporated in this Declaration. Section 13. "Member" -shall mean and refer to every person �;r 'entity who qualifies for membership pursuant to the Article of this Declaration entitled !,membership." - Section 14.' "Lessee" shall persons or entities who are lessees of a Residence. mean and refer to one or more alone or collectively the Sec-:4-on 15. "Residence" shall mean and refer to a rTj—r,. lot shown on the Record of Survey Map of Beacon Bay Su��division recorded in Book 9, pages 42 and 43, Records of Survey, on file in the Office of the County Rec-_r,3er, Orange County, California; provided, however, "RezzlAence" shall not include any Common Area. sha.11 include the residential dwelling unit Be'le-on ��av 9/2rj/7-� 4 Rev. 9/24/79 together with garages, structures and other improvements on the same lot or parcel. Section i6. "Setback" shall mean and refer to those internal distances from the 1�roperty line of each lot as shown on Exhibit "li". ARTICLE Il MEMBERSHIP Section 1 - Membership. Every Lessee shall be a' Member but there sEall 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 Lesse6 shallnot be transferred, pledged or alienated in any way, except th ' at such membership shall automatically be transferred to the transferee'of the interest required for membership. Any attempt to make a prohibited transfer is void and will not be reflected upon the books and records of the Association. The Association shall have the right to record the transfer upon the books of the Association without any further action or consent by the transferring Lessee. Section 3 - 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 shall have one (1) class of voting membership. Sec'-4cn 5 - Appi. I- _Rval of.Mem - bers. Unless elsewbere othetwise specifically proviaed in this Declaration or the Bylaws, any provision of this Declaration or the Bylaws B ea c o n 9/20/79 5 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 - Creation sona of Assessments. Each Lessee is deemeO to covenant ana 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 thereonr late charges, attorneys' fees and court costsr and other costs of collection thereoff 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 i Pr ssments. The Assessments levied by the Os2s2o�cldah`onsssohall 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 Member shall be sent written notice of the Regular Assessment and shall thereafter pay the Association in installments as established by the Board. Secti--n 4 - Uniform Assessment. Regular Assessments shall . be fixed at an equal amount tor each Residence. Section 5 - Special Assessments. Special Assessments may be levied by the Board from time to time. Beacon Bay 9/20/79 Rev. 9/24/79 I Section 6 - No Offsets. All Assessments shall be payable in the amount specified by the Assessment and no offsets against such amount shall be permitted for any reasont 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 maintenancer repair or replacement of all or a portion of the Common Arear or any other purpose as determined by the Board. All amounts collected as reserves, whether pursuant to this Section or otherwiser 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 I D inquency. Any assessment provided for in, :: T t1l this Declar on 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 compliance with the notice provisions set forth in the Section entitled "Notice of Lien" of this Article to foreclose the lien against the Residence. If action is commenced, there shall be added to the amount of such Assessment the late charge, interest, the costs of such action, and attorneys' fees incurred in connection with, such action; and in the event a judgment is obtained, such judgment shall include said late charge, interest and a reasonable attorney's fee, together with the costs of act Ion. Each Member vests in the Association, or its assigns, the right and power to bring all actions all law Beacon Bay 9/20/79 7 Rev. 9/24/79 or lien foreclosure against such Member or other Members for the collection of such delinquent Assessments. st2t6iygs� - Notice of Lien. No action shall be brought to fog e 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 Residencer the record Lessee or reputed Lessee thereof, the amount claimed which shall include interest on the unpaid Assessment at the rate of ten percent (10%) per annum, a late charge as established by the Boardt 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 -�n-forced 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, 2924fr 2924g and 2924h of the Civil Code of the state of California as said statqtes 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 Associationt 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, leaser mortgage and convey the same. Section 4 - Relationship with Mortgage Liens. (a) The lien provided for in the Article hereof entitleA "Nonpayment of Assessments" for the payment of Assessmi!nts shall be subordinate to the lien of any Mortgage which was recorded prior to the date any such Assess;.ent becomes due. (b) If any Residence subject to a monetary lien created by any provision hereof shall be subject to the lien of a Mortgage: (1) the foreclosure of any lien createa by anything set forth in this Declaration shall Z Beacon Bay 9/20/79 8 Rev. 9/24/79 not operate to affect or impair the lien of such Mortgage; and (2) the foreclosure of the lien of said Mortgager 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 hereoft 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 subs�quent to the Events of Foreclosure. Section 5 - Curing 5 Default. upon the timely payment or other satis?_a_ction 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 chargesr 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 recordr 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 - AP 1 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 Members. Section 2. - General provisions. (a) The Architectural Committee may establish reasonable procedural rules and assess a fee in connection with review of plans and specifications including, without limitation, the number of sets of plans to be submitted; Beacon Bay 9/20/79 9 Rev. . 9/24/79 3- 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 - 2goEm-1 1�� 2 No he structu; Plans. bullding, fence wall or o e snall 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..k Droval of Plans. Plans and jp—ecifica—ti-6—nsshall 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 thereoff the Association the Memberst the Board nor Declarant assumes in liability or responsibility therefor, or for any defect any structure constructed from such plans and specifications. ARTICLE VI RUTIES AND POWERS OF THE ASSOCIATION Section I - General DUti-� P2#! rs. In addition to the _autie.3 an Bylaws, powers enu t,Sn in it Articles and 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 contingency fund in an amount to be determined by the Board. Said fund shall be used by the'Board as it deems fit to carry out the objectives and purposes of the Associ---*ion. Sec"on 4, - Asseclotion Rules. The Board shall have the power tc adopt, amend, and repeal Such rules and regul'a-z'ons as it deems reasonable (the "Association Rules"'. In the event of any conflict between any such Associ.ition Rules and any other provisions of this Dec-', =:-z-on, or the Articles or Bylaws, the provisions of the RUICS shall be deemed to be superseded by the -.jrc--;sionP of this.Decl.aration, the Articles or the Bylaws zc, the extent of any such conflict. Beacon 9/20/79 Il Rev. 9/24/79 5/4/81 I e. -� ARTICLE VII REPAIR AND MAINTENANCE n N I r and Maintenance by Association. The 1 �H! ation shal have tne 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 - R Lessee'. Except as "iia—intain and repair the Associatlon shall be obligatea to as may be provided in this Declaration., every Lessee shall: (a) maintain all portions of the exterior of his Residence, including without'iimitation, 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 I i� E :�: U -6-6—ntained h—erf:111! .:!!,::1.L1 r12(10:1.11E or obligate the Association to maintain, replace or restore the underground facilities or public utilities which are located within easements in the Common Area owned by such public utilities. Howevert the Association shall take such steps as are necessary or convenient to ensure that such facilities are properly maintained, replaced or restored by such public utilities. ARTICLE VIII USE RESTRICTIONS Section 1 - Commercial use. No part of a Residence shall *Fe —used cor—a-17y —busfn—ess, commercial, or nonresidential purposes. Beacon Bay 9/20/79 12 Rev. 9/24/79 Section 2 - Signs. No sign or billboard of any kind shall be displayed to the public view on any portion of the Covered Property; provided, however, that a Member may display on his Residence, a sign advertising its sale or lease so long as such sign shall comply with any customary and reasonable standards promulgated by the Board. I Sect -ion 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 �ny -kind sh'ill -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 I - 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 easements, covenants, conditions, restrictions and other provisions contained in th ' is Declaration, including, without limitation, the following provisions: Beacon Bay 9/20/79 13 Rev. 9/24/79 (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 Canmon Area. Section 2 - Delegation of use. Any Member may delegate his right of_'9�njoyment 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 !or 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 rignt to enforce by proceedings at law or in equity, all restrictions, conditions, covenants and reservations, now or hereafter imposed by the provisions of this Declaration or any amendment thereto, including the right to prevent the violation of such restrictions, conditions, -covenants, or reservations and the right to recover damages or other dues for such violation. The Association or any Lessee shall also have the right to enforce bv proceedings at law or in equity the provisions of the Articles or Bylaws and any amendments thereto. With resnect to architectural control and Association Rules, the Association shall have the exclusive right to the enforcement thereof unless the Association refuses or is unable to effectuate such enforcement, in which case any Lessee who otherwise has standing shall have the right to unde'-take such enforcement. With respect to Assessment Beacon Bay 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 cumulativer 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 6 - Heading. The Article and Section headings have been inserted for convenience only, and shall not be considered or referred to in resolving questions of interpretation or construction. Section 7 - Singular includes Plural. Whenever the context of this Declaration requires same, the singular shall include the plural and the masculine shall include the feminine and the neuter. Beacon Bay 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_;7r_itin� and may be delivered as follows: (a) Nbtice to a Lessee s ' hall be deemed to have been properly delivered when delivered to the Lessee's Residence, or placed -in the first class United States mail, postage prepaid, to the most recent address furnished by such Lessee in writing to the Association for the purpose of giving notice, or if no such address shall have been furnished, then to the street address of such Lessee's Residence. Any notice so deposited in the mail within the City shall be deemed delivered forty-eight (48) hours after such deposit. In the case of co -Lessees any such notice may be delivered or sent to any one of the co -Lessees on behalf of all co -Lessees and shall be deemed delivery on all such co -Lessees. (b) Notice to the Association shall be deemed to have been properly delivered when placed in the first class United States mail, postage prepaid, to the address furnished by the Association or the address of its principal place of business. (c) The affidavit of an officer or authorized agent of the Association declaring under penalty of perjury that a notice has been mailed to any Lessee or Lessees, or to all Members, to the address or addresses shown on the records of the Association,, shall be deemed conclusive proof of such mailing, whether or not such notices are actually received. Section 10 - Effect of Declaration. This Declaration is made for the purposes set forth in the Recitals to this Declaration and Declarant makes no warranties or representations, express or implied as to the binding effect or enforceability of all or any portion of this Declaration, or as to the compliance of any of these Provisions with public laws, ordinances and regulations applicable thereto. Section 11 - Personal. Covenant. To the extent the acceptance or conveyance of a Residence creates a personal covenant between the Lessee of such Residence and Declarant or other Lessees, such personal covenant shall Beacon Bay 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 fficials. 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 damager 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 'Z�r -rental of Residence (hereinafter in this Section referred to as a "lease") shall provide that the terms of such lease shall be subject in all respects to the provisions of this Declaration, the Articles, the Bylaws and the Association Rules. Said lease shall further provide that any failure by the lessee thereunder to comply with the terms of the foregoing documents shall be a default under the lease. All leases shall be in writing. Any Lessee who shall lease his Residence shall be responsible for assuring compliance by such Lessee's lessee with this Declaration, the Articles, the Bylaws and the Association Rules. Section 14 - Amendments. Subject to the other provisions of this Declaration, this Declaration may be amended as follows: (a) Any amendment or modification of the Articles hereof entitled "Covenant for Maintenance Assessments," "Nonpayment of Assessments," "Architectural Control," and "Repair and Maintenance," or of this Section shall require the affirmative vote or written approval of not less than sixty percent (60%) of the Members. (b) Any amendment or modification of any Article other than those specified in subparagraph (a) above shall require the affirmative vote or written approval of a majoritv of the members. (c) An amendment or modification that requires the vote and written assent of the Members as hereinabove Beacon Bay 9/20/79 17 Rev. 9/24/79 , I i provided shall be effective when executed by the President and Secretary of the Association who shall certify that the amendment or modification has been approved as bereinabove 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 FOP24: City Attorney Beacon Bay 9/20/79 CITY OF NEWPORT BEACHr 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 Bay 9/20/79 19 Notary Public Rev. 9/24/79 032381 9'. 13 C.- 1 0 goA0 0 "J S4 57 Q G? r <1 Im 59 -------- so !E', 61 T Z, S.:117 11!8 !1! 9 LE6EAID I us LOT NUMSERS AND STREETADDRESSES, IF THE SAME; —n —ST, ARE S14OWN 7HUS --- 3 PARCEL ID OEM INCKNON LETTER SHOWN THU S --- OB STREET ADC;.SSIFDiFFERE%ITTHAt4tOTNO.)S SHOWNTHUS-0 3ENOTES, SETBACK LINES D-U-.-E.-DE-.%-0T, 5 PUBLIC UTILITY EASEMENTS. 1110TES '-OTS A-J A' E OPEN SPACE LOTS. G-C--YARD S.E BACK D,STANCES ARE S'UNLESS SHOWN OTHERWIS E. I C-N -[��.TSAMOO v t ISLAIVD DRIVF 47 ---------- -qI E-' 29 ------ it 3s 22 S a L --------- I r --------- uu L -------- it -------- 42 F- ----------- 3G 30 sq' L 49 -j J ---------- ----------- 43 -11 r --------- r PZ 50 1 '1-M 37 31 L 25 0 G 44 LEH 2, .......... I ---------- *! a L -------- j a -------- ji I --------- 5? Lj4 I 4S .141 - 1 1; 1 4 2 ---------- r--------- 11 j., ------- I --------- --------- 5-3 34 L: 46 40 L-------- .LOT H B A Y r---t r---t ---n I --- ----- It I it Al L!r 1-i -L�4 JI 11 12 13 14 is 16 1 T18 19 20 21 1 10 11 1 Ii! L.- -J L---� L --- J L---J ------ LOT I V. S. 4 ULKHAFAD LIAIC,:� U..S. PIERIICAII LIME EXHIBIT "I" AND EXHIBIT 'III" FOR THE DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS, 5C� -- 1% PEE - BEACON BAY COMMUNITY ASSOCIATION SKETCH SHOWING SETBACK LINES WIT14IN LOTS i-G2 OF R.S.9/4Z 6,43, PARCIELS A,S &COFR.S.13/42 AND LOTS 1-P OFEASTS)DIEADDITION-TO BEACON BAY PER SODKZ,PAOE30 OF07FICIALMAPS. r i -Z EXHIBIT "D" (INTERIOR LOT 32) EFFECTIVE RENTAL VALUE CHANGE WITH ASSUMED 12% PER YEAR INCREASE BASIC FORMULA: R - A (1-f) + Of R - Effective Net Rent A - Base Rent x CPI Increase -$735 (Comm. Area Adj.) C - Existing Contract Rent I - Combined Present Worth and Annualizing Factor Adjustment Now Months Factor 0 - Time Lease From I%/Mo. Base Adjusted Date 111/81 C;ompounding Rent Rental 7/81 7 1.072135 x 7,750 = 8.309.05 - 12181 12 1.126825 x 7,750 = 8,732.89 - 1182 13 1.138093 x 7,750 = 8,820.22 - 7182 19 1.208109 x 7,750 = 9,362.84 - 12182 24 1.269735 x 7.750 = 9,840.44 - 1183 25 1.282432 x 7,750 = 9,938.85 - 12183 36 1.430769 x 7,750 = 11,088.46 - 1184 37 1.445076 x 7,7SO = 11,199.34 - 12184 48 1.612226 x 7,7SO = 12,494.75 - 1/85 49 1.628348 x 7,750 - 12,619.70 - 12185 60 1.816697 x 7,750 - 14,079.40 - 1186 61 1.834864 x 7.750 = 14,220.19 - 12186 72 2.047099 x 7,750 = 15,865.02 - 1187 73 2.067570 x 7,750 = 16,023.67 - 12187 84 2.306723 x 7,750 = 17,877.10 - 1/88 as 2.329790 x 7,750 = 18.05S.87 - tj 0 W t-h H 01 H F3 to tzl (1) Z to 0 EXAMPLE: INTERIOR PARCEL: LOT 32 Less % Change $ 735 (A X (1-f) + C X f ) 1 R Over $3,860.98 735 7.574 x 0.4876140 + (327.42 x 0.512386) = 3,860.98 735. 7,998 x 0.4876140 + 1327.42 x 0.512386) = 4,067.65 + 5.35 735 8,085 x O.S37849 + (327.42 x 0.462151) = 4,499.9S +16.55 735 8,628 x 0.537849 + (327.42 x 0.462151) = 4,791.79 +24.11 735 9,105 x 0.5371149 + (327.42 x 0.462151) = 5,048.67 +30.76 735 9,204 x 0.593991 + (327.42 x 0.40609) = 5,599.94 +45.04 735 = 10,353 x 0.593991 + (327.42 x 0.406009) = 6,282.80 +62.73 735 = 10,464 x 0.6S6898 + (327.42 x 0.343102) = 6,986.34 +80.95 73S - 11.760 x 0.656898 + (327.42 x 0.343102) = 7,837.30 +102.99 735 - 11,885 x 0.727591 + (533.15 x 0.272409) - 8.792.44 +127.73 735 = 13,344 x 0.727S91 + (533.15 x 0.272409) - 9,854.50 +15S.23 735 = 13,485 x 0.807296 + (S33.15 x 0.192704) = 10.989.28 +184.62 735 = 15,130 x 0.807296 + (S33.15 x 0.192704) = 12,317.14 +219.02 735 = 15,289 x 0.897495 + (533.15 x 0.10250S) = 13.776.16 +256.80 735 = 17,142 x 0.897495 + (533.15 x 0.10250S) - 15,439.60 +299.89 900 = 17,156 x - - 17,155.87 +344.34 EXHIBIT "Ll" (BAYrRONT PARCEL LOT 12) EFFECTIVE RENTAL VALUE CHANGE WITH ASSUMED 12% PER YEAR INCREASE BASIC FORMULA: R - A (1-f) + -Cf R = Effective Net Rent A = Base Rent x GPI Increase - $735 (Common area adjustment) C = Existing Contract Rent I = Conabined Present Worth and Annualizing Factor EXAMPLE: BAYFRONT PARCEL: LOT 12 Adjustment New Months Factor 0 Time Lease From 1%/Mo. Base Adjusted Dam 111/81 Coinpunding Rent Rental 7/81 7 1.072135 x 18,400 = 19,727.29 - 12/81 12 1.126825 x 18,400 = 20,733.58 - 1182 13 1.138093 X 18,400 = 20,940.92 - 7/82 19 1.208109 x 18,40D = 22,229.20 - 12182 24 1.26973S x 18,400 = 23,363.11 - 1/83 2S 1.282432 x 10,400 = 23,596.75 - 12183 36 1.430769 x 18,400 = 26,326.15 - 1184 37 1.445076 X 18,400 = 26,589.41 - 12/84 48 1.612226 x 18.400 29,664.96 - Ilas 49 1.628348 x 18,400 = 29,961.61 - 12185 60 1.816697 x 18,400 = 33,427.22 - 1/86 61 1.834BG4 x 18,400 = 33,761.49 - 12186 72 2.047099 x 18,400 = 37,666.63 - 1187 73 2.067570 x 18,400 = 38.043.29 - 12187 84 2.306723 x 18,400 = 42,443.70 - 1188 85 2.329790 x 18,400 42,868.14 - I-- tZJ X 0 M �3 (D in Less 1 735 1 A X I-f I + C X f I . % Change ) R_ Over $9.667.62 735 = 18,992 x 0.4876140 + (793.76 x 0. 5123B6) = 9,667.62 - 73S = 19,998 x 0.4876140 + (793.76 x 0.512386) = 101ISS.30 + 5.08 735 = 20,206 x 0.537849 + (793.76 x 0.462151) = 11,234.57 +16.21 735 = 21,494 x 0.537849 + (793.76 x 0.462151) = 11,927.47 +23.38 735 = 22,628 x 0.537849 + (793.76 x 0.462151) = 12,537.35 +29.68 735 = 22,862 x 0.593991 + (793.76 x 0.406009) = 13,901.95 +43.80 735 = 25,591 x 0.593991 + (793.76 x 0.406009) = 15,523.18 +60.57 73S = 25.854 x 0.6S6898 + (793.76 _x 0.343102) = 17,256.04 +78.49 735 = 28,930 x 0.656898 + (793.76 x 0.343102) = 19.276.37 +99.39 735 = 29,227 x 0.727591 + (1,292.52 x 0.272409) = 21,617.11 +123.60 735 = 32,692 x 0.727591 + (1,292.52 x 0.272409) = 24,138.69 +149.69 735 = 33,026 x 0.807296 + (1,292.52 x 0.192704) = 26,911.23 +178.36 735 = 35,932 x 0.807296 + (1,292.52 x 0.192704) - 30,063.83 +210.97 735 = 37,308 x 0.897495 + (1,292.52 x 0.10250S) = 33,616.50 +247.72 735 = 41,709 x 0.897495 + (1,292.52 x 0.102505) = 37,565.84 +288.57 900 = 41,968 x - - 41.968.14 + 334.10 ISLAND RoAD < I- kt 7 0 y J [cc: Ciol. < 14 r3 0 > V-r 0 i') -11 55 '1 � 1," 47 F 48 2 57 49 58 50 59 K 51 sz L-------- 61 ���WA j f---------- 42, J I I -16�' ow Ix w Q: 44 :3Z -4 s � 46 L j LOT* H LOT I tOT NUMBERS AND STREET ADDRESSES, IF THE SAME; Pvslmoo 41.19. 9U4.KHEA,0 ARE SHOWN THUS --- 3 PARCEL IDENTIFICATION LETTER SHOWN THUS --- 03 STREET ADDR�SS IFDIFFERENTTHAN LOT NO. IS SHOWN THUS --- 13) ------ � )ENOTES SETBACK LINES I'Ll-E.PEN ISPUCLICUTIUTYEASEMFNTS. I -. A�-J A; E OPCN SPACE LOTS. I S, E, "RD SE BACK DISTANCES ARE YUNLESS SHOWN OTHERWiSE. ISLqNo OqlVE 35 7- f I @; LL 1L --------- 0 - \j24 -7 I I a ! ? @: -------- --------- 10' (Zl 31 10�' r - 37 "K > 1-10' 0 25 6 --------- - ---------- -------- 26 r—el i - Q 32 e L --------- -CL. 33 4" —14* .31 --)Z — >1 114- C - 27 r------- I -------- 40 3 -__34 'rLE 23 A9 A Y ---- ----- ---- I ff r----I r ---- I r- F- IF i I 19 —j L .--J L --- L --- J L --- J I ---- U.S. PIERHCA 0 T11VE so MA H I Bo" IT . 131 SKETCH SHOWING SETBACK LINES WITHIN LOTS I - G2 OF R.S.9/4Z F,43, PARCELS A,13 & C OF R.S. 13/4P AND LOTS 1 -8 OF EASTSIVE ADDITION TO BEACON BAY PER BOOK 2, PAGE 30 OF OFFICIAL MAPS, 20 21 22 1 F=iR �wa- SCALE IN FEET ..... ............ ........ . 0 k .Lei ,_.�rWW(;:mer­­ I C 2/6/59 OITY OF NEWPORT BEACH OFFICE OF THE CITY ATTORNEY I SUMKARY OF CITYfS BBI�K - BEACON BAY LEASE I. GENERAL INFORMATION Parties to Lease City of Newport Beach, Lessor J. A. Beek, Carroll B. Beek, Barton Beek and Joseph Allen Beek, Jr., jointly as Lessee Date of Lease January 9, 1950 City Oouncii approval Original lease 3755A faanmry Da e ado� 1950 (Res. No.) tea) Land Location Bayside Drive Source of Cityls Title Deed from Irvine, dated 4/13/28, and S. C. Case No . 24626 Frontage Approximate Area 19.00 acres Water Street 2,363.621 1,378.16t 11. LEASE DURATION No. years: 38 From: January 1, 1950, to Vecember 31, 1987 III. LEASE -PROVISIONS Rental: '"Wes erl Por�io It: Annual rental for first 13 years - rm, 6g. t5gna Of :Ee" . ash, plus �)�b or all gross returns to Lessee from use thereof, from whatsoever*source, including income from subtenants, payable on January 15 of each year, beginning January 15, 1951, and end- ing January 15, 1963. "Easterly Portion": Annual rental for first 13 years of term, �350.0 sh, Plus 71% of all gross returns to Lessee from use thereof, from whatsoever source, including income from subtenants, payable on January 15 of each year, beginning January'15, 1951, and ending January ��,15, 1963. In addition to above rents, Lessee to pay Lessor $1,000.00 annually during the first 13 years of said term, due on January 15 of each year, beginning January 15, 1951, and ending January 15, 1963. For the last 25 years of the term, 33 1/3% of all gross returns to Lessee from use of both portions, from whatsoever source, including income from all subtenants, payable January 15 of each year, begin- ning January 15, 1964, and ending January 15, 1988. Purpose: "Westerly Portion" for residential purposes; "Easterly Portion" for industrial uses, construction and main- tenance of wharves, docks and piers. Repairs: Lessor not obligated to make any improvements, repairs, or other expenditure respecting the leased property. Assignabil it : LAssee not to assign or sublet any of the "East- 641y eortion- except to present subtenants without written consent of Lessor; subtenants of "Easterly IMP) Portion" may let rooms incidental to their industrial use thereof; Lessee to have right to sublease any part of "Westerly Portion" and also to assign inter- est among themselves and to assign an interest to Seymour Beek. SUMMARY OF CITYIS BEEK - BEACON BAY LEASE (Continued) III. LEASE PROVISIONS (Continued) Renewal: No Provision. Terms of default: Upon default by Lessee, continuing for 30 days aNe—rnotice, Lessor may terminate lease, such default not to affect subtenant provided subtenant pays yearly payments provided in his sublease. Taxes: Lessee to pay all taxes, assessments and levies of every kind and character agains� the demised land or Improvements. Insurance: No provision therefor, except Lessee to hold Lessor harmless from all claims, etc., by reason of Lessee's use of the premises, except those growing out of use of streets, sidewalks, alleys, docks, piers, Or public utilities belonging to Lessor; and Lessee to hold Lessor harmless from litigation, etc., arising from use of premises by Lessee or any sublessee. 2. J) I L E A S E z THIS LEASE made in duplicate this 28th day of April, I 4' liby and between J. A. Beek, hereinafter design t d Lessor, an d:' 5 I.W. J! Wilson and Myrtle E. Wilson, hereinafter designatedLessee W I T N E S S E T H 7 In consideration of the covenants and obligations of the 8 Lessee herein contained, the Lessor hereby leases to Lessee upon 9 the terms and conditions hereinafter set forth, that certain 10 piece of land described as follows, to -wit: 11 Lot 13, as shown upon a Record of Survey Map recorded in Book 9, Pa6es 42 and 43, RECORD OF SURVEYS,'on file 12 in the office of the County Recorder, ORANGE COUNTY, CALIFORNIA, together with certain portions of adjoining 13 Lots I and H as shown upon said map and as described more fully hereinafter. 14 16 This lease Is made for a terra of twenty-two (22.) years, 16 six (6) months and ten (10) days, for a consideration of 17 Two Hundred and twenty-five dollars ($225.00) per 7earp payable' 18 annually in advance on the 28th day of April of each year, first 19 and last year's rental payable in advance, receipt of which is 20 hereby acknowledged. The Lessee agrees to pay said consideration. pl to the Lessor at Balboap California, or at such other place as ZZ Lessor may from time to time direct. 23 This lease is made'upon the following�eovenants and con- Z4 ditions, viz: 25 That said land shall not be used for any public or ze busoiness purpose, but a all be used for residential purposes P7 only, and that not more tha one dwe�llin�g houset shall'be placed 28 upon said lot, provided, however, that a garage may be built - 29 on said lot and that servantst or guests' quarters may be built 30 in connection with such garage. 31 2. Lessee agrees to mal(utain said lot and improvements .32 .�, thereon in a clean and sightly condition and shall make necessary 1. 3, repairs when same shall requ-ire to be made and shall keep 2 impr ovementm painted or otherwise protected from the elements. 3. Lessee agrees not to allow garbage, rubbish'trash, 4 disorderly piles of lumber or other unsanitary or unbight17 5 conditions to exist on said lot, but shall keep said lot in an 6 orderly and sightly condition free from weeds and trash. 7 4. Lessee further agrees not to make or permit to be made a upon this property any loud, unusual or disturbing noises which 9 shall interfere with the peace and happiness of Occupants Of 10 adjacent property and. that'no broadcasting system, loud speaker 11 or other sound producing devices shall be used upon said property 12 to the detriment and annoyance of neighbors. 13 5. Lessee agrees that in the event that he shall fail to 14 make necessary repairs as above agreed to, in order to keep his Ir property in a condition of sightliness and repair, after having 16 received notice from Lessor herein that such reDair is needed, 17 said Lessor shall have the right to have such repairing, painting 18 or cleaning done as to him appears necessary, and to charge the 19 same to Lessee herein. Such charge shall become immediately due 20 and payable. and if not paid wlthin.ninet7 days shall constitute a 21 default of the terms of this lease. Such repair or repainting p,Z shall not exceed the sum of twenty-five dollars (625.00) in any one yearp providing, however, that such cleaning, repainting 23 24 and repair refers only to -exterior JTp�oveme . nts and shall not 26 apply to the interior of any building.,placed upon the property herein demised. ze 6 It is agreed that the property.herain described shall not be leased or occupied by any Jew nor by any one other than.,:kT, 28 29 a member of the White or Caucasian race, and that this lease shall not be assigned or transferred or said premises or any 30 31 part thereof sublet for a period of longer than Pne month to 2. 4 7 to 11 12 13 14 15 16 17 is 19 20 21 22 23 U 25 26 27 28 29 30 31 any one tenant, family or Organization without the prior written consent of the Lessor, which consent the Lessor agrees not to unreasonably withhold; Provided, however, that it shall be permissible to house bona fide servants of families 'occupying the property herein demised, Whic may be of races other k.-servants than White or Caucasian. 7. That Lessee shall perform all the terms, covenants and - obligations of this lease and shall use premises in accordance with all laws, ordinances and regulations of all governmental agencies having Jurisdiction thereof, a nd it is further provided that the Lessee for the term of this leasehold shall, on per- formance of all the terms, conditions, covenants and obligations hereof, have and enjoy quiet and undisturbed possession and occupation of the property herein demised. G.. It is 'understood that Lessor does not own said land, but has the same under a written lease from the City of Newport Beach dated November 9, 1927, as amended March 3, 1930, Suly 18, 1938 and February 6, 1939, and the Lessor hereby covenants, warrants and agrees, (1) that he has the right and title to make this leasehold as his sole and separate property, on the terms provided herein, (2) that thi,s leasehold is conveyed to the Lessee free of all -encumbrances, charges or liens except as are specifically set forth herein. 9. Lessee agrees to pay when due all taxes levied against Lessee's personal Property and impro'Vements locatod,on said,, premises and also to pay to the Less-oxi,'hz,leasehold 'tax which, shall bear the same relationship to the.total-'leasehold tax if any, assessed against Lessor:her"ei"n,for-a'oe'rtain lea96'"�' between the City of Newport Beach and Lessor herein dated November' 9, 1927, and amendments of March 3, 1930, July 18, 1938 and February 6, 1939, as the said Lot 13 bears to the total area of 3. 4 7 8 9 10 11 12 13 14 25 le 17 18 19 zo 21 zz 23 24 26 ze U 28 �29 30 al Property OODVGYed by lease between the City of Newport Beach lessor herein above referred to, which it is agreed is about- One-oneAundredth (1/100) Of said area. It is agreed that so Proportion Of said leasehold tax for the year 1940 is the sum $:L.00. 10. It is agreed that any structure which Lessee shall bujld�upon said lot shall be completed Insofar as the exterior is OOnOOrned within a Period of six Months from the time such construction is commenced. Lessor agrees to Permit Lessee to build# rebuild, Or alter any of tho Improvements made upon the said Promises during the term Of this agreement, if not In default hereunder and may remove the same at any time within six months prior to the date set for termination of this lea . so, but that Paving, sewer pipes, water pipes, gas Pipes and electl lines shall be surrendered to the said Lessor upon the expira- tiOn of this lease or any sooner determination thereof. 12. Lessor agrees to permit Lessee to -walk or drive over such parts of Lots "All to "H"-inOlusive as shall be Paved for street or aidgwalk Purposes and to permit Lessee to use Lot t,In for bathing and recreational and fishing Purposes, and a pier which Lessor agrees to construct at the south side of Lot "I,, Street) as a boat landing and "ohorage. 12- It is agreed that no building Placed uPOn"said lot shall be less than fifteen feet from the South line thereof, three feet from the North linep five feet from the West line, and five feet from the East line thereof and that any dwelling Placed thereon shall front toward'the South. Lessor reserves m easement and right Of way of three feet in width along the iorth end'of said lot for utilities Installation and maintenance, 13- In the event of the default by Lessee in the payment of any rental hereundero or in the event of the breach of any 4. 4 5 10 11 is 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2�7 28 29 30. 31 M of Lessee's covenants herein, or of ally of the conditions of this lease to be kept and performed by Lessee, then the Lessor, at his optionp may terminate this lease it the Lessor shall continue in such default for sixty (60) days after Lessor has given Lessee written notice of such default. 14. Any notice relating to this lease shall be given by either party to the other by depositing the same in a United States Post Office for delivery by mail, postage thereon fully prepaid, and until written notice is given of change of address, any such notice to Lessor shall be addressed to him at Balboa, Californiaj and any such notice to Lessee shall be addressed to Lessee at 15099 Rayneta Drive, Van Nuys, California. As an appurtenance to Lot 13 Lessor also leases to Lessee a portion of Lot "I" described as follows: That bortion of Lot "I" fronting Lot 13 and extending Southward 28 feet to U. S. BuMead line and contain- ing 1140 sq. ft. more or less. ,It is agreed that this parcel of land shall be used by Lessee in common with Lessor, his successors and assigns and officials and employees of the City of Newport Beach, together with other occupants and tenants of Lessor, for beach and re- oreational purposes; that Lessor shall have the right to pave a portion of it for a walkway and may install and maintain utili therein or grant easements for installation and maintenance of such utilities end may plant and maintain shrubbery in such portion thereof as is not paved for such walkwayp and that no obstruction, fence or pier shall be placed thereon without per- mission of the Lessor. All the foregoing covenants contained in this lease per- taining to cleanliness and repair shall apply to the above mentioned portion of Lot "I" the same as to Lot 13 itself. As a further a'ppurtenance to Lot 13 Lessor also leases to Be I Lessee a portion of Lot "H" described as follows: 2 That portion of Lot "H" fronting Lot 13 and extending 3 Northward 32 feet and containing 1286 sq. ft. more or less. 4 It is agreed that this parcel of land shall be used by 6 Lessee in common with Lessor, his successors and assigns and 6 officials and employees of the City of Newport Beach, together 7 with other occupants and tenants of said Lessor, for street 8 purposes; that Lessor shall have the right to pave it and 9 -install,and maintain utilities or may grbLnt easements for 10 the installation and maintenance of such utilities and that 11 no obstruction shall be placed thereon without permission of -12 the Lessor All the foregoing covenants contained In this 3.31 lease pertaining to cleanliness and repair shall apply to the 14 above mentioned portion of Lot 11HII the same as to Lot 13 itself. Lessor agrees that it is his purpose to develop Beacon le Bay Subdivision, of which Lot 13 is a part, as a strictly high 17 class residential community; and that he has installed or :L8 will Install from time to timep as hereinafter provided, 119 necessary sewers, water pipes, walkways and has Paved or will po pave the'same as necessary, and as hereinafter provided the zi parcels Indicated on the map of said subdivision as Lots "All HO f IIEIIP "G" and "H" for use as alloys, and that he will 23. as necessary from time to time as hereinafter provided, pave 24 a five foot walkway along the center of Lots "B". IfD11 and IIFII 26 from Lot "J" to a point on Lot "I", fifty feet south of Lot ze and that he will as hereinafter provided and as conditions-* -'27 Justify, construct Pleasure Piers On the southerly end of 28 Lots "B", I'D" and 'IF"., all of which improvements shall not be build for'publio use, but for the use of Lessor, his successor-, E:Y 30 executors and assigns# officials and employees of the City 33. of Newport Beach and persons to whom"lots shall be leased. 16. lox, N, :j 4 10 11 IP, 14 16 17 18 19 20 21 22 23 Z4 25 zo '30 31 i Lkk2ftXX3="dC. Lessor agrees to improve Lot "J" by planting trees and shrubs thereon to serve as a shield from noise and traffic on i Bayside Drive, to exclude the public and to serve as a windbreak, when twenty- (20) or more lots have been leased in said Beacon Bay Subdivision. It is agreed that Lessor will make the abovereferred to improvements only if, as and when he secures lessees for the various -parcels of property in said subdivision, but that he has constructed or will construct sewer and water lines to the boundary of said Lot 13 , a pier and walkway to said pier and has provided or will provide ingress and egress to a public street over a paved roadways and If Lessor shall fail to complete such improvements within three (3) months from the da:te hereof, Lessee herein may declare this agreement terminated and upon such termination be entitled to"the repayment of any sum or sums he may have paid hereunder. It is understood and agreed that Lessor willivior to the termination of his lease from the City of Newport Beach herein- before.referred to, attempt to secure a renewal or extension there of from said City, and if he shall be successful in doing so, he specifically agrees that he will give to Lessee hereln an option to extend thid lease for the same period of time, providing said parties hereto are able to agree upon the terms of said extension. I It is further agreed and understood between the parties hereto that if the Lessor hereunder should default in hissaid lease to the City of Ne wport Beach, that nevertheless said default shall not affect the Lessee hereunder, if he shall make his payments hereunder abd otherwise perform the terms and 7. I conditions of this lease, directly to the City of Newport Beach, 2 during the term hereof, and it is therefore agreed and understood 8 between said parties that Lessee hereunder may in case of default 4 by Lessor to the City of Newport Beach, make his payments here- 5 under directly to the�City of Newport Beach, during the term 6 hereof. 7 Each and all of the restrictions, conditions and covenants, a reservations, liens and charges are for the benefit of each 9 Lessee of land in said tracto and'the7 and each thereof shall 10 enure to and pass with each and every lot in said tract, and 11 shall apply to and bind the respective parties hereto, their lz heirs, executors, administrators and assigns. Each Lessee of 13 any part or portion of said property by acceptance of such lease' 14 thereon, accepts the same subject to all of the within restriction, 3.5 conditions, reservations, covenants, liens and charges, as well is as the Jurisdiction, rights and powers of the association here- 17 inafter mentioned. 'A breach of any of the restrictions, con - is ditions and covenants herein shall cause the lot, piece or 19 parcel of land upon which said breach occurs to revert to the 20 Lessor, his administrators, executors or assigns, who shall have 21 the right to immediate re-entry upon said real property, in the 22 event of any such breach; and, as to each Lessee in the said 23 property, the said restrictions, conditions and covenants shall 'be covenants running with the land, and the breach of any thereof, Z4 25 and the continuance of any such breach, may be enjoined, abated, 26 and remedied by appropriate proceedings by the Lessor, or by All' any Lessee.of other lots or parcels in said property, or by the za association hereindfter mentioned, which above reversion to 9. the Lessor shall not affect or impair the lien of any bona fide -mortgage or deed of. trust or other�,eneurnbrance upon this lease or pledge thereof which shall have b.een given in good faith and 8. '0 4 10 11 12 13 14 16 17 3.8 20 al 23 24 ze .27 .28., 30 K conditions of this lease, directly to the City of Newport Reach, during the term hereof, and it is therefore agreed and understood between said parties that Lessee 6reunder may in case of default by Lessor to the City Of Newport Beach, make his payments here- -under directly,to th4-City of Newport Beach, during the term hereof. Each and all of the restrictions, conditions and covenants, reservationli, liend'and charges are for the benefit of each Lessee of land in said tract, and'they and each thereof shall enure to and pass with each and every lot in said tract,'and shal . I apply to and bind the respective parties hereto, their heirs, executors, administrators and assigns. Each Lessee of any part or portion of said property by acceptance of such lease thereon, accepts the same subject to all of the within restriction ,conditions, reservations, covenants, liens and charges, as well as the Juriad-iction, rights and powers of the association here- inafter mentioned. A breach of any of the restrictions, con- 'ditions and covenants herein shall cause the lot, piece or parcel ' of land upon which said breach occurs to revert to the Lessorp his administrators, executors or assigns, who shall have the right to immediate re-entry upon said real property, in the event Of any such breach; and, as to each Lessee in the said property, the said restrictions, conditions and covenants shall be covenants running with the land, and the breach of any thereof, and the continuance of any such breach, may be enjoined, abated, and reinedied by appropriate proceedings by the Lessor, or by any Lessee of other late or parcels in said property, or by the association hereinafter mentioned, which above reversion to , the Lessor shall not affect or impair the lien of any bona fide mortgage or dead of. trust or other encumbrance upon this lease or pledge thereof which shall have been given in good faith and a. value; Provided, however, that any subsequent Lessee of z property shall be bound by the said restrictions, conditions and 3 covenants hereof, * whether obtained by foreclosure or trustee's 4 sale or otherwise. 15. The Lessee hereunder shall build and construct on 6 said described promises at his sole cost and expense, and shall 7 at all times keep said premises clear and free of all mechanic's 8 liens, and Lessor is given the right Of posting and recording 9 notices of non -responsibility for labor or materials furnished 10 or supplied to the Lessee of said Premises and going into the 11 erection or construction of buildings thereon. lz 16. It is understood and agreed that the insolvency or 13 banliruptoy of the Lessee or an assignment made for the benefit 14 of creditors by Lessee, or the offering of said property at 15 Sheriff's or ConBtablela sale, on account of indebtedness owed 16 by Lessee, shall iPsO facto cancel and terminate this lease, 17 and said Properties together with the improvements �hereon shall 18 Ipso facto become the property of the Lessor. 19 17. In the event of the default of Lessee hereunder the 20 sums.,of, mone7.paid by Lessee to Lessor under the terms hereof, al together with all improvements on said described property, W-3 22 shall be'oonsidered as liquidated damages and rentals for said .23 described promises and become the property of the Lessor. 24 18. All leases hereafter executed by Lessor, his heirs, W; Z5 executors, administrators or assigns, are hereby specifically Ze made subject to the condition that Lesseep by the acceptance 27 ofl,s.aidl,lease? covenants for himselfp his heirs, executors, Z8 administrators or assigns, that the 'association hereafter mentioned, shall have the right and power to do and perform for 36 the benefit, maintenance and improvement of said property, and 31 the peace, health, comfort and safety of the Lessees of said 4 5 6 7 8 9 10 11 12 14 16 17 18 19 zo 21 Z2 23 24 25 26 27 Z8 30 11YV, A - f 4:-, MW X', property, or the residents hereof, all the within named re- strictiOnS, covenants and reservations, and in addition, the following things, tq-wit: (a) To Improve,repairs maintain, operate and care for the park, parkways and community beaches in said tract, as well as all boat landings, floats, piers, open spaces and recreational areas. (b) To improve, light and maintain streets, roads, alleys, courts, Parks, gatewaysj fences and ornamental features now existing or hereafter to be erected or created, and to maintain and ' care for grass plots and trees within the lines of the streets, alleys and sidewalks immediately adjoining said property. (o) To care for any lots and plots In said tract, remove ,and destroy grass and weeds and to perform any labor to keep 'the property neat and in good order. A-4.3(ala T6.'enforo4 charges, restrictions, conditions and I covenants exibting upon and/or created for the benefit of all of the property in the said Beacon Bay Subdivision. ' (a) To approve and/or disapprove all building plans and specifications and to a�prove or disapprove location of buildings, fences, walls, and structures of any kind whatever to be erected, placed or maintained upon said property. M To establish and levy such charges or fees as may be necessary to Parry forth) pay off or otherwise meet the expenses of carrying out and performing any and all of the above enumerated powers and duties or the purpose for which said association was formed, provided, that the amount of such charges or fees shall in no event excee d in any one year one half cent (J�) per square foot of area of Lot 13 . T.o provide that such charges or fees shall be due or payable on the first Monday in the month of February following the levying and fixing of said charges or 10. a 4 7 10 11 12 13 14 15 16 is 19 20 21 22 23 24 26 ze Z7 29- z5o 31 fees and shall become delinquent on the last Monday in March immediatel7 succeeding. (g) To collect such charges or fees annually or oftener if deemed advisable by the*Botrd of Directors. (h)� To provide In the By -Laws that any labor rendered and/or materials,or supplies used or consumed, or equipment, appliances or powers furnished for the maintenance, improvement t hnd develop- ment of the Property or for the general welfare of the lessees thereor, or in the performing or causing to be performed of any of the acts specified herein, shall be deemed to have been rendered, furnished and supplied by the association for the benefit and advantage of every lot in said property and at the special instance and request of Lessee of property therein, and' that the association shall have a lien upon such lot in said property, which lien may be�foreolosed in the manner provided for the foreclosure of mechanic's liens under the laws of the State of California, or suit may be instituted directly in a cour . t of proper Jurisdiction for the collection of said amount. (I) All morigages-and deeds Of trust or other encumbrance upon thi.s.lease or pledge thereof made by the Lessee, however, shall be"at all times paramount and superior liens over all charges, fees and liens of said association. 19. The Lessee of each lot in said Beacon Bay Subdivision shall upon the acceptance of his lease become a member of the Beacon Bay Community Association, a non-profit association, being the association mentioned in paragraph 18 hereof, and agrees by the acceptance of this lease to abide by the By -Laws, r-ules and regulations of said association, and shall by becoming a member ther6of, have the right to vote as in the By -Laws provided. 20. The restrictions, covenants, conditions and reservations 11. I L I 4 7 10 11 lz 13 14 15 16 17 18 19 zi zz 23 Z4 Z5 26 za 29 30 herein contained, shall be covenants,. conditions and restrictions running with the'land and shall be in full force and effect only until the.8th day of November, 1962. . 21. This lease shall enure to the benefit of and be binding upon the heirs, executors, administrators and assigns o f the respective.parties hereto. IN WITNESS WHEREOF, the parties hereto have here'unto set their hands this 9?j�t`day of /Mf/,L , 1940. STATE OF CALIFORNIA ) as County of ORANGE On this2_f '-r?yda7 of &,&Zj. in the year one thousand nine hundred forty, before me, EARL We STANLEY, a Notary Public in and for said County and State, personally appeared known to me to be the persons described in and whose names are subscribed to the within instrument, and acknowledeed that they executed,the same. WITNESS.my hand and official seal the day and year in this certificate first above written. NOTARY pUs- LIU IQ let the cunt, I a,eeg, swa MY Commimon ruites qo 9 987 Ai,*,.--�.�i-i��-�*�t;,-'�'-.,.�. INN't! NW I 0 RESOLUTION NO. 93-48 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING A LEASE FOR THE REAL PROPERTY COMMONLY REFERRED TO AS BEACON BAY. WHEREAS, the City of Newport Beach by virtue of a 1978 legislative grant found In Chapter 74 of the Statues of 1978 (the "Beacon Bay Bill"), hold the right, title and Interest to certain tidelands and uplands commonly known as Beacon Bay; and WHEREAS, 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 expressed statutory conditions; and WHEREAS, Beacon Bay Including the "westerly portion" thereof, has been divided Into Individual lots, with each lot [eased by the City for residential purposes until June 30, 2006; and WHEREAS, 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 years; and WHEREAS, 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; and WHEREAS, 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 therein); and WHEREAS, the Beacon Bay Community Association has approved the form and content of the proposed lease, NOW THEREFORE BE IT RESOLVED by the City Council of the City of Newport Beach that the lease attached hereto and made a part hereof Is hereby approved subject to minor technical revisions as may be necessary and subject to approval by the State Lands Commission. BE IT FURTHER RESOLVED that the Mayor and City Clerk are authorized to execute leases In the form of that attached hereto with each of the Individual leaseholders in Beacon Bay. ADOPTED this 28th ate of AT7EST: crry CLERK June 1993. 11 0 retuq ( - 40� ?, LEASE THIS LEASE, made and entered into an this _ day of 19_, by and between the CITY OF NEWPORT BEACH, a Charter City and municipal corporation, ("Lessor") and ("Lessee[') regards the real property commonly referred to as Beacon Bay Lot —. ' This Lease is made in the context of the following: F*U�)Mhl" A. The City of Newport Beachr by virtue of a 1978 legislative grant found in Chapter 74 of the Statutes of 1978 (the ItBeacon Day Bill"), holds the right, title and interest to certain tidelands and uplands commonly known as Beacon Bay and generally described in Exhibit 11A." D. The Beacon Bay Bill frees the "Westerly portiont' 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. The "Westerly Portion" of Beacon Bay has been divided into individual lots# with each lot leased by the City for truly 1) P000 residential purposes until 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. 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. I 0 0 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 now 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 Sub sequent Lessee. 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 consideration paid for the transfer of this Lease is vitally important in that failure to fully report all consideration could dramatically reduce the amount of rent received by the City from other Beacon Bay Lessees. 1. 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". J. The 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, includ . ing, without limitation, the Beacon Bay Bill. 2 I K. Lessor has determined that this Lease is consistent with provisions of the Beacon Bay Bill, the Charter, General Plan and Zoning ordinance of the city of Newport Beach, and to all other applicable state and local laws. L. Lessor has determined it is in the best interests of the citizens, of Newport Beach to maintain the residential character of that portion of Beacon Bay currently leased for residential purposes and to enter into new leases with Current Lessees under the terms and conditions specified in this document. NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING RECITALS AND THE COVENANTS IN THIS LEASE, THE PARTIES AGREE AS FOLLOWS: LVASED-LAND. ,-'Lessor fieriBy leassh -fo-'tess-ee �Efie real commdrilT kfio-w-n i]s ff-e—adoxi-BbE7 Vdt __::_:,-�the ("Leased Land") which is more particularly described in Exhibit 115,11 and �generally/ rdip`i6tecr d—n---ER1fiJAt - "A� '17 subject to the limitations on use specified in Paragraph 6. As used in this Lease, the term t'Premises" shall refer to the Leased Land and any improvements constructed thereon. Lessor expressly reserves all oil, oil rights, gas, minerals, mineral rights, natural gas rights and other hydrocarbon substances in and under the Leased Land and the right to grant and transfer the same, together with all necessary and convenient rights to explore for, develop, produce and extract and take the same, subject to the express limitation that any and all operations for the exploration, development, production, extraction and taking of any such substance shall be carried on at levels below the depth of five hundred feet (5001) from the surface of the land by means of wells, derricks and other equipment from surface locations on adjoining or neighboring land and subject further to all 3 a 0 0 restrictions and regulations concerning the drilling for, and production of, oil, gas, minerals, petroleum and other hydrocarbon substances specified in the Newport Beach City Charter or the Newport Beach Municipal Code. 2. TER24, The term of this Lease shall commence on the date of execution, but in no event prior to — and shall expire subject to earlier termination as specified in Paragraph 3. RENTAL. A. Definitions, For the purposes of this Lease, the following terms shall be defined as specified in this paragraph. In certain cases, the definition of the term contains operative language that affects the rights of the parties: (1) The term "Effective Date" shall mean the day of 19 .(2) The term "Execution Date" shall mean the date when this Lease is executed by Lessee. (3) The term "Current Lessee" shall mean the 7' uNE 9W) )973 person or persons who, as of tbmtg&fo�,�- ate was the Lessee under the Pre-existing Lease. (4) The term "Pre-existing Lease" shall mean the Lease for the leased premises which was effective an January 11 Johe 36 1 *000 1988, and wouldt absent this Lease, expire on BecaTMerr-31`,-2005� (5) The term "Initial Rent" shall mean the fair market rental value of the leased premises 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 11C.11 (6) The term "Actual Sales Value" shall mean the total of all consideration paid for the non-exempt transfer of this Lease or the Pre-existing Lease from the Current Lessee, or Subsequent Lessee, to another person. 4 0 (7) The term "Average Actual sales Value Rent" shall mean two and one-half percent (2-1/2%) of the mean of the Actual sales Value of the non-exempt transfer of this Lease or the Pre-existing Lease of similarly situated (waterfront or interior) Beacon Bay parcels as specified in this subparagraph. Average Actual Sales Value Rent shall be the mean of the Actual Sales Value of the three similarly situated parcels most recently transferred. If only one or two parcels have transferred during the preceding seven years, that one transfer, or those two transfers, shall be used to calculate the mean. In the event no similarly situated parcel has transferred within the previous seven years, the mean shall be the Actual Sales value of the most recent transfer. Exempt transfers as defined in paragraph (B)3 shall not be used to calculate Average Actual Sales Value rent. (8) The term "Deferred Rent" shall mean the total rent that a Current Lessee would have paid had this Lease been executed on the Ef f active 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 (0) per annum calculated on the balance due at the end of each Lease Year or portion thereof. (9) The term "transferred" shall mean any sale, assignment, sublease or other transaction 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. (10) The term "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 a oting in the capacity of a lender. B. Rental Payments. Leisee shall pay annual rent in the sum of ), payable at the rate of per month. Lessee shall also pay, if applicable, deferred rent in the sum of 5 0 0 ($_) upon execution of this Lease. Rent shall/shall not (circle one) be adjusted every seven (7) years after the date of transfer in accordance with the provisions of subparagraph B. (4). Annual rent, deferred rent, and periodic adjustments are based upon the following: (1) ixecution Before Effective-Da—te. in the event this Lease is fully executed on or before the Effective Date, Rent shall be paid as follows: (a) Current Lessee: Current Lessee shall pay annual rent equal to Initial Rent as specified in Exhibit 11C. It Thereafter, so long as the Current Lessee remains in possession and there has been no transfer of this Lease, rent shall remain as specified in this subparagraph notwithstanding the provisions of subparagraph B.4. (b) In the event of any transfer of this Lease to a Subsequent Lessee, the Subsequent Lessee shall pay annual rent equal to two and one-half percent (2-1/2%) of Actual Sales Value determined as of the date of the transfer in accordance with the provisions of subparagraph A(7). Thereafter, rent snaii be adjusted every seven years after the date of the transfer in accordance with the provisions of subparagraph B.4. 2. Execution After_ the Effective Date: In the event this Lease is first executed after the Effective Date, rent shall be determined and paid as follows: (a) Current Lessee/Within Five Years After Effective Date: in the event this Lease is executed by the Current Lessee within five (5) years after the Effective Date, the Current Lessee shall pay annual rent equal to Initial Rent plus a sum calculated by multiplying the difference between Initial 'Rent and Average Actual Sales Value Rent by a fraction equal to the number of months between the Effective Date and Execution Date, divided by sixty. The Current Lessee shall also pay all deferred rent concurrent with the execution of this Lease. Thereafter, so 6 0 0 long as current Lessee remains in possession and there has been no transfer of this Lease, rent shall remain as specified in this subparagraph, notwithstanding the provisions of subparagraph B(4). (b) Current Lessee/More Than Five Years After Effective Date: in the event this Lease is executed by the Current Lessee more than five (5) years after the Effective Date, the Current Lessee shall pay annual rent equal to Average Actual Sales Value Rent calculated as of the date of execution in accordance with the provisions of subsection A(7). The Current Lessee shall also pay al-1 deferred rent concurrent with the execution of this Lease. Thereafter, rent shall be adjusted every seven (7) years after the date of execution in accordance with the provisions of subparagraph B.4. (c) subsequent Lessee: In the event the Current Lessee.signs this Lease after the Effective Date and transfers this Lease to any Subsequent Lessee, or the Current Lessee transfers the Pro -existing Lease to a Subsequent Lessee who wishes to sign this Lease after the Effective Date, the Subsequent Lessee shall pay annual rent equal to two and one-half percent (2- 1/2%) of Actual Sales value determined as of the date of execution and in accordance with subparagraph A(7). 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 subparagraph B.4. 3. Exempt Transfers. The provisions of this subsection 3.B 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; 7 (c) 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 (d) the transfer is a sublease of the premises for one year or less, provided, however, a sublease of the premises for one year or less shall not be considered an exempt transfer if there is a second or successive sublease of the premises regardless of duration; (e) 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; (f) the transfer is to an inter vivos trust, living trust or other similar estate planning arrangement of Lessee; provided, however,'that the provisions of subsection 3.0 shall apply upon the death of such Lessee if the beneficiary of such t rust or other arrangement is other than the surviving spouse; or (g) the transfer is to a guardian or custodian of Lessee appointed due to the physical or mental inca�acity of, Lessee provided, however, that the provisions of subsection 3.0 shall apply upon the death of such Lessee. 4. Rent Adlustments. Except as provided in subparagraphs S(l)(a) and B(2)(a), on the seventh (7th) anniversary of the Execution Date of this Lease, or the date of any transfer of this Lease by any Current or Subsequent Lessee, rent shall be adjusted to reflect the then current Average Actual Sales Value Rent. However, in no event shall rent be adjusted above a sum equal to the rent paid by Lessee as of the Execution Date increased at the rate of five percent (5%) per annum (compounded annually) , and in no event shall rent be adjusted below a sum equal to the rent paid on the Execution Date reduced by five percent (5!9) per annum. Lessor shall endeavor to notify Lessee of rental adjustments at least forty-five (45) days prior to the end of each seventh (7th) 0 0 lease year; provided, however, failure of Lessor to give forty-five (45) days' notice does not relieve Lessee from the obligation to pay increased rent or the right to pay less rent in the event of a decrease in the Average Actual Sales Value Rent; andf provided further, that Lessee shall have no obligation to pay rent increases which apply to any period greater than ninety (90) days prior to the receipt by Lessee of Lessor's notice of an increase in rent.' 5. Installment PaTments/Grace. Period: Lessee shall pay rent in equal monthly installmentst with payment due on or before the first day of the month preceding the month for which rent is paid. Rent shall be prorated during any month when a transaction which increases rent becomes effective other than the first day of that month. No late payment charge applies to payments received by Lessor on or before 5:00 P.M. on the fifteenth (15th) day of the month for which the payment is made (ItGrace Period"). If a rent payment, or any portion thereof, is received by Lessor after 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 iegal 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 the 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. �j 4. TRANSFER. Lessee may transfer this Lease subject to the prior written consent of Lessor, Lessor shall not unreasonably withhold or delay its consent to transfer. Lessor shall consent to any transfer when Lessee and the proposed Lessee have complied with the following: (a) Lessee shall furnish Lessor with executed 0 copies of each and every document used to effect the transfer. (b) Lessee shall pay to Lessor a transfer fee of one hundred dollars ($100-00); (c) Lessee shall execute a "Termination of Leasehold Interest" for recordation; (d) The new Lessee shall execute a now lease and execute a "Memorandum of Lease'? for recordation. (a) 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. Lessee and the prospective Lessee shall provide this information within ten (10) days after they reach agreement regarding total consideration to be paid for 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 thereon as of the date of transfer and the value as determined by the appraiser shall be deemed the Actual Sales Value for purposes of calculating Average Actual Sales Value Rent and rental payments. (OLD PARAG. TO BE MOVED SOME . WHERE?) (a) Lessee and the prospective Lessee shall furnish Lessor with a statement of the total consideration paid for the transfer as well as all documents which are relevant to the total consideration paid for the transfer. 10 0 Lessor's consent is not required for the "exempt transfers" referenced in subparagraph 3,B(3), providedt however, Lessee shall furnish Lessor with copies of all documents used to effect any exempt transfer. S. ENCUMBRANCES, A. night to Encumbg Lessee may encumber this Lease by deed of trust, mortgage, or similar Instrument, in favor of any institutional lender regulated by state or federal law ("Lender") for any purpose without the consent of Lessor. Neither Lessee nor Lessor shall have the power to encumber Lessor's interest in the premises. Any encumbrance- shall be subject to all covenants, conditions and restrictions in this Lease and to all rights and interests oftessor except as otherwise expressly provided in this Lease. Lessee shall give Lessor prior written notice of any encumbrance as well as a copy of all documents evidencing the encumbrance. B. Notice to Lender. Lessor shall have no obligation to give any Lender any written notice pursuant to this Lease unless the Lender has given Lessor written notice of its name, address, and nature of encumbrance ("Complying Lender"). Lessor shall give all complying Lenders a copy of any written notice of default, notice of termination or other notice which may affect Lessee's rights under this Lease. Notice shall be deemed given by Lessor to Lender when deposited in the United States mail, first class postage pre -paid, and sent to Lender at the address furnished in writing by Lender. C. 14odif ication. Lessor and Lessee agree that they will not modify this Lease by mutual agreement without the prior written consent of Lender. D. Riqhts of Lender. Any Lender with an encumbrance on this Lease shall have th�e right, during the term of the Lease, to: 11 0 0 (1) perform any act required of Lessee pursuant to this Leaser (2) transfer this Lease to the purchaser at any foreclosure sale, the assignee in the event of an assignment in lieu of foreclosurer or to acquire the interest of Lessee pursuant to foreclosure or assignment and thereafter transfer this Lease to the Lenderts 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. gight of Lendgr 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; 1 (2) cure the breach or default within ten (10) days after expiration of the time period granted to Lessee for curing the default when the breach or default can be cul7ed 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 ten (10) 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 ten (10) days and thereafter diligently pursued to completion by Lender. F. Foreclosure in Lieu of gur . Lender may forestall termination of this Lease 10 or a default or breach by Lessee by commencing foreclosure proceedings subject to strict compliance with the following: (1) proceedings are commenced within thirty 12 0. (30) days after service on Lender of the notice describing the breach or defaulty (2) the proceedings are diligently pursued to completion in the manner authorized by law; and (3) Lender perform 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. a. New Lease. Notwithstanding any other provision of this Lease, should this Lease terminate because of any default or breach by Lessee, Lessor shall enter into a new lease with Lender as Losses provided: (1) the written request for the new lease is served on Lessor by Lender within ten (10) days after service on Lender of any notice described in subparagraph (2) the new lease contains the same terms and conditions as this Lease except for those which have already been fulfilled or are no longer applicable. (3) on execution of the new lease by Lessor, Lender shall pay any and all sums that would be due upon execution of the new lease, but for its termination and shall fully remedy, or agree in writing to remedy, any other default or breach committed by Lessee that can be remedied. (4) Lender shall, upon execution or tne new lease, pay all reasonable costs and expenses (including attorney's fees) incurred in terminating this Lease, recovering possession of the premises from Lessee, in preparing the new lease. H. Miscellaneo" . The following provisions shall apply to Lessor, Lessee and any Lender: (1) Any Lender shall be liable to perform the 13 obligations of the Lessee under this Lease only so long as the Lender holds title to this Lease; (2) Lessee shall, within ten (10) days after the recordation of any trust deed or other security instrument, record, at Lesseets sole expense, Lessor's written request for a copy of any notice of default and/or notice of sale under any deed of trust as provided. by state law. 6. USB AND MAINTENANCE, A. The Leased Land shall be solely for residential purposes. Lessee may demolish$ construct, remodelt reconstruct and maintain structures on the Leased Land for residential purposes so long as the structures and construction are authorized by appropriate city permit and fully comply with all City ordinances, resolutions, regulations, policies, and plans. Lessee shall also obtain permission to construct and/or maintain structures from the California Coastal Commission and any other state agency if required by law. B. Lessor shall not be required to make. any changes, alterations, additions, improvements, or repairs in on or about all or part of the Premises. Lessee shall, at all times during the term of this Lease and without any cost or expense to Lessor, keep and maintain, the Premises, including, without limitation, all structures, facilities, walks, curbs, parkways and other improvements, in good order and repair and in a clean, safe, sanitary and orderly'condition. Lessee shall repair or reconstruct any improvements on the Leased Land following any damage or destruction thereof, unless the improvements are being destroyed in conjunction with remodeling or reconstruction and Lessor has consented, in writing, to the damage or destruction. Lessee shall cause to be constructed, maintained and repaired all utilities, pipes, walls, sewers, drains, and other improvements on the premises to the extent required by law or as necessary to maintain the improvement in good order and repair and safe and sanitary 14 9 condition. Lessee shall make, or cause to be made, any additions, alterations or repairs to any structure or improvement on the Premises which may be required by, and Lessee 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, ic Lesseets failure to comply with, and perform I pursuant to, �rovisions of this section. 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. 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 also expressly acknowledges that, while the Legislature has purportedly removed the public trust restrictions on use of the property pursuant to the provisions of the Beacon Bay Bill, the premises may constitute filled tidelands, and Lessor has made no representation or warranty relative to the validity of the Beacon Bay Bill, the power of the Legislature to remove public trust restrictions through legislation, or otherwise guaranteed Lessee's right to the property as against any legal challenge as to the status or 15 suitability of the premises for residential use. 7. TAXES AND UTILITIES, it is ufiders�ood by Lessor and Lessee that this Lease shaU give rise to a possessory interest tax obligation and the potential for a significantly higherpossessory interest ta payment. Lessee shall pay, before delinquent, all utility charge: and any general and special taxest 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 premises. 8. USE AND MA NTENAWCE 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 (as depicted on Exhibit "All) 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. 9. 14AINTERANCE 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 resi dents of Beacon Bay (Infrastructure). Not- withstanding 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 and other Infrastructure facilities in Beacon Bay at its initial cost and to assess Lessee for a pro rate share of such costs, and to collect such costs from Lessee in the form of rent over the remaining term 16 0 0 of this Lease. 10. COMMUNITY A9299CIATION, A. As a material part of the consideration of this Lease, and as an express condition to the continuance of any of the rights of Lessee pursuant to this Agreement, Lessee agrees to become, and during the term of this Lease to remain, a. member in good standing of the Beacon Bay Community Association. Lessee also agrees to abide by the Articles of Incorporation, bylaws, all rules and regulations of the Association and to pay to the Association, before delinquency, all valid dues, fees, assessments and other charges properly levied or assessed by the Association. Lessee's failure to comply with the provisions of this subsection shall constitute a material breach of this Lease. B. In addition to the rights reserved to Lessor pursuant to the provisions of section 9$ if the Community Association fails or ceases to maintain community facilities, Lessor may, at its option and without obligation, assume the obligations of the Community Association to maintain, repair, install or improve community facilities. In such event, Lessee shall pay a pro rats share of Lessor's reasonable expenses in maintaining and operating the community facilities, including a reasonable management fee or the fee charged by a management agent. Lessee's pro rata share shall be determined by dividing Lessor's costs by the number of residential lots within Beacon Bay (currently seventy-two lots). Lessee's pro rata share of the annual costs incurred by Lessor shall be paid within thirty (30) days after written notice of the amount due, and any failure to pay shall constitute a material breach of this Lease. The costs of maintaining and operating community facilities shall be determined annually and solely from the financial records of Lessor. 11. COVENANTS, CoNpXTIONS AND RE TRICTIONS, Lessee agrees to abide and be bound by all 17 0 0 covenants, conditions, restrictions and reservations as contained in Exhibit I_,11 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. 12. INDEMNIFICATIQU, Lessee shall indemnify, defend and hold harmless �Lessor, its City.Council, Boards and Commissions, officers, agents, servants and employees from and against any and all actions, causes of action, obligations, costs, damages, losses, claims, liabilities and demands of any nature whatsoever, including reasonable attorneys' fees, regardless of the merit or outcome of any such claim or suit, arising out of, or in any way related, to the condition of the leased premises, common areas or improvements, or the use or possession of the leased premises, common areas or improvements by Lessee, or Lessee's employees, agents, representatives, guests or invitees, as well as any activity, work or things which may be permitted or suf fared by Lessee in or on the leased premises and improvements. Lessee shall indemnify, defend and hold harmless Lessor, its city council, Boards and commissions, officers, agents, servants and employees from and against any and all actions, causes of action, obligations, costs, damages, losses, claims, liabilities, and demands of any nature whatsoever, including reasonable attorneys' fees, accruing or resulting to any and all personsi firms, or corporations furnishing or supplying work, services, materials, equipment or supplies arising from or in any manner 'connected to the use or possession of the premises by Lessee or from any activity, work or things which may be permitted or suffered by Lessee in or about the Premises. Without limiting the generality of the foregoing, Lessee hereby assumes all risk of damage to property or injury to persons in or about the Premises from any cau;e except for damage or injury resulting from the sole negligence or willful, fraudulent or criminal conduct by Lessor and/or its officers, employees, agents and representatives, and is is 0 0 Lessee hereby waives all claims in respect thereof against Lessor. 13. INSURANCE. A. Fire Xnsurance. Lessee shall, during the term of this Lease, insure all structures and improvements on the leased premises against loss or damage by fire or other risk typically included in an extended coverage endorsement and common use for residential structures, including, vAndalism and malicious mischief. The insurance shall provide coverage to at least ninety percent (90k) of the full insurhble replacement value of all improvements on the leased land, with the loss payable to Lessee unless this Lease is terminated pursuant to Section in which case the proceeds of insurance shall be paid to Lessor. The policy of insurance shall I provide that Lessor receive at least ten (10) days prior written notice of any cancellation or reduction in coverage. B. Liability insgrgnce. 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) $1 million dollars for injury to, or death of one person, and not less than $2 million dollars for injury to, or death of, two or more persons as a result of any one occurrence, (2) $;Loo,000.00 for damage to or destruction of property. 14. DEFAULTS. A. Events of Qgfaglt. The occurrence of any one or more of the following events shall constitute a material default and breach of this Lease by Lessee: 19 0 9 (1) the vacating or 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 required by this paragraph; (3) the failure by Lessee to perform any of the provisions of this Lease and anj Exhibits attached hereto to be performed by Lessee, other tfian described in paragraph (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; M-q (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, or the execution of this Lease by a current Lessee or subsequent Lessee after the Effective Date of this Leasel (5) the making by Lessee of any general assignment, or general arrangement for the benefit of creditors; the filing by or against Lessee of a petition to have Lessee adjudged a bankrupt or a petition for reorganization or arrangement of any law relating to bankruptcy unless the same is dismissed within sixty (60) days; the appointment of a trustee or receiver to take possession of substantially all of Lessee's assets located at the Premises or of Lessee's interest in the Lease, where possession is not restored to Lessee within thirty (30) days; or the attachment, execution or other judicial seizure of substantially all of Lessee's assets located at the Premises or of Lessee's interest in the Lease, where such seizure is not discharged within 20 0 0 thirty (30) days. Notices given under this paragraph shall specify the alleged default and the applicable lease provisions, and shall demand that Lessee perform the provisions of this Lease or pay the rent that is in arrears as the case may be, within the applicable period of time. No such notice shall be deemed a forfeiture or a termination of this Lease unless Lessor so elects in the Noticee B. Landlord's Remedies. In the event of any default by Lessee as defined in this Section, Lessor may, in addition to any rights or remedies permitted by law, do the following: . 1. Terminate Lessee's right to possession of the Leased Premises by any lawful means, in which case this Lease shall terminate and Lessee shall immediately surrender possession of the Premises to Lessor. In such event, Lessor shall be entitled to recover from Lessee all amounts to which Lessor is entitled pursuant to Section 1951.2 of the California civil Code, or any other provision of law, including, without limitation, the following: (i) The worth at the time of award of the amount by which the unpaid rent and additional rent for the balance of the term after the time of award exceeds the amount of the loss than Lessee proves could be reasonably avoided; and (ii) any other amount necessary to compensate Lessor for all detriment proximately caused by Lessee's failure to perform obligations pursuant to this Lease or which in the ordinary course of things would. be likely to result from the breach, including, wi thout limitation, the cost of recovering possession, expenses of reletting (including necessary repair, renovation and alteration) reasonable attorneys' fees, and any other reasonable costs. 21 0 0 The "Worth at the time of award" of all rental amounts other than that referred to in clause (i) above shall be computed by allowing interest at the rate of ten percent (10%) per annum from the date amounts accrue to Lessor. The worth at the time of award of the hmount referred to in clause (i) shall be computed by discounting such amount at one percentage point above the discount rate of the Federal Reserve Bank of San Francisco L 40 the time of award. 2. Without terminating or affecting the forfeiture of this Lease or, in the absence of express written notice of Lessor's election to do so, relieving Lessee of any obligation pursuant to this Lease, Lessor may, but need not, relet all or a portion of the Premises at any time, or from time to time, and on such terms and conditions as Lessor, at its sole discretion, deems appropriate. Whether or not the Premises are relet, Lessee shall pay all amounts required by this Lease up to the date that Lessor terminates Lessee's right to possession of the Premises. Lessee shall make such payments at the time specified in the Lease and Lessor need not wait until termination of the Lease to recover sums due by legal action. Xf Lessor releta all or a portion of the Premises, the reletting shall not relieve Lessee of any obligation pursuant to this Lease, provide d, 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: (i) Have accepted any surrender by Lessee of this Lease or the leased premises; (ii) have terminated this Lease; or is (iii) 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. 22 0 0 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 1. C. Default BV Lgssq-r. 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. Lessor shall be under no obligation to perform or comply with its obligations pursuant to this Lease after the date of any default by Lessee. E. in any action or unlawful detainer commenced by Lessor, the reasonable rental value of the leased premises 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. The failure or delay of Lessor to exercise any right or remedy shall not be construed as a waiver of such right or remedy or any default by Lessee. 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 Lessorl.s knowledge of the preexisting breach 23 of default at the time rent is accepted. G. ' 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 liw in the event Lessee is evicted or Lessor takes possession by reason of Lessee's default. 15. SURRENDER OF MSSESSION UPON EXPIRATIQH .-M TER�INMOH, A. 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 termination of the leasehold interest. Lessee waives any right to receive relocation assistance or similar form of payment. B. Upon the expiration of the term of this Lease, and on condition that Lessee is not then in default of any of the provisions of this L ease, Lessee shall have the right to remove, from the Premises, all buildings and improvements, exclusive Of plantings, paving and underground installations, built or installed on the Premises by Lessee. Removal of any building or improvement shall'be at the sole cost and expense of Lessee and removal must be complete no later than ninety (90) days after expiration of the term of this Lease. Lessee shall fill all excavations and remove all foundations, debris and other parts of the buildings or improvements 'remaining after removal and surrender possession of the Premises to Lessor in a clean and orderly condition. in the event any of the buildings and improvements are not removed within the time provided in this Section, they shall become the property of Lessor without the payment of any consideration. 24 0 0 16. MINENT DOKAIN. A. Definitions of Terms, 1. The term "total taking" as used in this paragraph shall mean the taking of the entire Premises 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 residential purposes. 2. - The term t1partial taking" shall mean the taking of a portion only of the Premises which does not constitute a total taking as defined above. 3. The term tttaking" shall include a I 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. 4. The term "date of taking" shall be the date upon which title to the Premises or portion thereof passes to and vests in the condemnor. 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 Premises 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 Premises 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 Premises and Lessee's leasehold interest therein shall be allocated as follows: K-1 0 0 (1) The Lessor shall be entitled to an amount equal to the sum of the following: (a) The fair market value of the Premises as improved texclusive 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 one dollar pl.00) at nine percent (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 one dollar ($1.00) per annum at nine percent (9%) per annum compound interest (Xnwood 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-Takinci. 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 d--- expiration of the term of this Lease; and (b) The present worth of the amount by 26 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. 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. ATTORNnYSt 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. 18. REMEDIES CUMULATIVE. The rights, powers, elections and remedies of the Lessor or Le�see 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. 27 0 9 19. 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 or Lessor 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 Lessee or any acquiescence therein. Is 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. 20. COMPLIANCE WITH LAWS, I I 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. 21. 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, P.O. Box 1768, Newport Beach California 92659-1768, 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 0 B. By depositing the Notice in the United States Mail, registered or certified, with postage prepaid, the residence or business address furnished by Lessee; or 2B 0 0 C. 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 D. 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 seventy-two (72) hours from and after the deposit in the United States mail of such notice, demand or communication. 22. HOLDING M . This Lease shall terminate and become null and void without further notice upon the expiration of the term of this Lease. Any holding over by Lessee otter expiration of the term shall not constitute a renewal of this Lease or give Lessee any rights in or to the Leased Premises except as expressly provided in this Section. The parties agree this Lease cannot be renewed, extended, or In any manner modified except in a.writing signed by all parties. However, if Lessee, or anyone claiming under Lessee, shall remain in possession of the Leased Premises after expiration of the term of this Lease without any agreement in writing between the parties and Lessor accepts rent from Lessee, then Lessee shall be deemed a tenant from month -to -month subject to the provisions of this Lease insofar as they may be applicable to a month -to -month tendency. The month -to -month tendency may be terminated by Lessor or Lessor upon thirty (30) days' prior written notice to the other. 23. Q - 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. 29 0 0 24. SEVERABUIT . 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. MISCELLANU 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 �nderstandingG affecting this agreement, and Lessor and Lessee, as a material part of the consideratioh 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, 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. Toint 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. 30 I '1: 0 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 constructioa or interpretation of any provision. E. Gende . In this Lease, the masculine gender includes the feminine and neuter and the singular number includes the plural whenever the context so requires. IN WITNESS WHEREOF, the parties have caused this Lease to be executed on the date first above written. OTTV nr MRWPORT REACH. LESSOR MAP OF BEACON BAY - S, LEASE copy C�n rRiS-LEKS-ifIs-ma-de and entered into as of the -ad— day of 1997, by and between the CITY OF NEWPORT BEACH, a Charter City and municipal corporation ("Lessor"), and PAUL A. RAMSEY AND FLORENCE PATR CIA RAMSEY. Trustees of the Ramsey Family Revocable Trust established JLJZ&5.CLessee"), regarding the real property commonly referred to as Beacon Bay Lot 3 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. 0. 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 ursu the authodly, conferred by the electors, entered into negotiations with current lessees and lihp. p=tielsthoave 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). I 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 consideration 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. 1. Lessor and Lessee acknowledge that the City hasegreed 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. K. Lessor has determined that this Lease is consistent with provisions of the Beacon Bay Bill, the Charter, General Plan and Zoning Ordinance of the City of Newport Beach, and of all other applicable state and local taws. W-187371.V20SO24% 0 4 L. Lessor has determined it is in the best interests of the citizens of Newport Beach to maintain the residential character of Beacon Bay and to enter into new leases with Current Lessees under the terms and conditions specified in this agreement. NOW, THEREFORE, in consideration of the foregoing recitals and the covenants in this lease, the parties agree as follows: LEASED LAND. Lessor hereby leases to Lessee the real property commonly known as Beacon Bay Lot I (the "Leased Land"), which is more particularly described in Exhibit B, and generally depicted on Exhibit A,,each attached hereto and incorporated by reference, subject to the limitations on use specified in Section 6. As used in this Lease, the term "Premises" shall refer to the Leased Land and any improvements constructed thereon. Lessor expressly reserves all oil, oil rights, gas, minerals, mineral rights, natural gas rights and other hydrocarbon substances in and under the Leased Land and the right to grant and transfer the same, together with all necessary and convenient rights to explore for, develop, produce and extract and take the same, subject to the express limitation that any and all operations for the exploration, development, production, extraction and taking of any such substance shall be carried on at levels below the depth of five hundred feet (500') from the surface of the land by means of wells, derricks and other equipment from surface locations on adjoining or neighboring land, and subject further to all restrictions and regulations concerning the drilling for, and production of, oil, gas, minerals, petroleum and other hydrocarbon substances specified in the Newport Beach City Charter or the Newport Beach Municipal Code. 2. TERM. The term of this Lease shall commence on the Execution Date, but in no event prior to the Effective Date, and shall expire on the date fifty (50) years following the Effective Date, unless earlier terminated as provided in this Lease. RENTAL. A. Definitions. For the purposes of this Lease, the following terms shall be defined as specified in this paragraph. In certain cases, the definition of the term contains operative language that affects the rights of the parties: (1) "Actual Sales Value' shall mean the total of all consideration paid for the non-exempt transfer of this Lease or the Pre-existing Lease, including the improvements on the Leased Land, from the Current Lessee, or Subsequent Lessee, to another person, excluding any consideration paid for the transfer of personal property in connection with such transaction. (2) "Average Actual Sales Value Rent" shall mean two and one-half percent (2.5 %) of the mean of the Actual Sales Value of the non-exempt transfer of a similarly situated (waterfront or interior) Beacon Bay parcels as specified in this subparagraph. Average Actual Sales Value Rent shall be the mean of the Actual Sales Value of the three similarly 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) "CPIK 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. 2 (4) $Current Lessee" shall mean the person or persons who, as of April 1, 1994 (the "Out -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 annurn 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. (11) 'Transferred" shall mean any sale, assignment, sublease or other transaction, other than an exempt transfer as defined in Paragraph 3.13(3), pursuant to which the right to possession of the premises and the right to sign a new lease identical to this Lease is transferred to another person. B . Rental Payments. Lessee shall pay annual rent in the sum of thirtlLone lboond five hundred,and sixty dollam [E�:1161--iljyflsmm .. .. . . - . - . 0 1 . M - , MMMMEMS19f. ($2&aQDD_) per month. Lessee shall also pay, if applicable, deferred rent in the sum —) upon execution of this Lease. RenfdsEha�l� shall not (circle one) be adjusted accordance with the provisions of Paragraph adjustments are based upon the following: every seven (7) years after the date of transfer in 3.13(4). Annual rent, deferred rent, and periodic 3 (1) Execution Before Effective Date. In the event this Lease is executed by the Lessee on or before the Effective Date, Rent shall be paid as follows: (a) Current Lessee: Current Lessee shall pay annual rent equal to Initial Rent as specified in Exhibit C. Thereafter, so long as there has been no transfer of this Lease by the Current Lessee (other than an exempt transfer as set forth in Paragraph 3.B(3), rent shall remain as specified in this subparagraph notwithstanding the provlsions�of Paragraph 3.B(4). I (b) In the event of any transfer of this Lease to a Subsequent Lessee, the Subsequent Lessee shall pay annual rent equal to two and one-half percent (2.5%) of the Actual Sales Value determined as of the date of the transfer in accordance with the provisions of paragraph 3.A(l). Thereafter, rent shall be adjusted every seven years after the date of the transfer in accordance with the provisions of paragraph 3.B(4). (c) In the event of any transfer of this Lease to a Subsequent Lessee in a transaction other than an arm's length assignment of this Lease, and sale of the improvements on the Leased Land, if any, such as a gift or transfer by inheritance other than an exempt transfer under Paragraph 3.13(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). (2) Execution After the Effective Date. In the event this Lease is first executed after the Effective Date, rent shall be determined and paid as follows: (a) Current LesseeMithin Five Years After Effective Date: In the event this Lease is executed by the Current Lessee within five (5) years after the Effective Date, the Current Lessee shall pay annual rent equal to Initial Rent plus a sum calculated by multiplying the difference between Initial Rent and Average Actual Sales Value Rent by a fraction equal to the number of months between the Effective Date and Execution Date, divided by sixty. The Current Lessee shall also pay all Deferred Rent concurrent with the execution of this Lease. Thereafter, so long as there has been no transfer of this Lease by the Current Lessee, rent shall remain as specified in this subparagraph, notwithstanding the provisions of Paragraph 3.B(4). (b) Current Lessee/More Than Five Years After Effective Date: In the event this Lease is executed by the Current Lessee more than five (5) years after the Effective Date, the Current Lessee shall pay annual rent equal to Average Actual Sales Value Rent calculated as of the date of execution in accordance with the provisions of Paragraph 3.A(2). The Current Lessee shall also pay all Deferred Rent concurrent with the execution of this Lease. Thereafter, rent shall be adjusted every seven (7) years after the date of execution in accordance with the provisions of Paragraph 3.13(4). (c) Subsequent Lessee: In the event the Current Lessee transfers the Pre- existing Lease to a Subsequent Lessee who wishes to sign this Lease after the Cut-off Date, the Subsequent Lessee shall pay annual rent equal to two and one-half percent (2.5%) of Actual Sales Value determined as of the date of execution and in accordance with Paragraph 3,A(l). The Subsequent Lessee shall also pay all Deferred Rent concurrent with the execution of this Lease. The annual rent shall be adjusted every seven (7) years following the Execution Date in accordance with the provisions of Paragraph 3.B(4). 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 3.13(4). (3) Exempt Transfers. The provisions of Paragraph 3.13 regarding transfers shall not operate to increase rent if: (a) Lessee is assigning an interest in this Lease to a trustee under a deed of trust for the benefit of a lender; (b) the transfer is caused by the death of a spouse and the full interest of the deceased spouse is transferred to a surviving spouse; 1(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; (Q 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 H 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 (h) the transfer is to a guardian or custodian of Lessee appointed due to the physical or mental incapacity of Lessee; provided, however, that the provisions of Paragraph 3.0 shall apply upon the death of such Lessee unless the transferee is the surviving spouse or a tenant in common or joint tenant in ownership of the leasehold estate created by this Lease, and such tenants in common or joint tenants first acquired their respective interests in this Lease simultaneously. (4) Rent Adjustments. (a) Except as provided in Paragraphs 3.13(l)(a), 3.13(2)(a) and 3.B(3), on the seventh (7th) anniversary of the Execution Date of this Lease, or the seventh (7th) anniversary of the date of any transfer of this Lease by any Current or Subsequent Lessee, rent shall be adjusted to reflect any increase or decrease in the cost of living, which adjustment shall be determined as set forth hereinafter. The most recently published CPI figure shall be determined as of the date ninety 0 0 (90) days prior to the adjustment date, and rent payable during the ensuing seven (7) year period shall be determined by increasing or decreasing the then current rent by a percentage equal to the percentage increase or decrease, if anv. in the CPI as of the Execution Date, or the date of the most recent rental adjustment, or the date of any transfer of this Lease by any Current or Subsequent Lessee, whichever is later. In no event shall rent be increased or decreased by a sum greater than forty percent (40%) of the rent paid by Lessee as of the later of (I) the Execution Date, or (ii) the last rental adjustment date. Lessor shall endeavor to notify Lessee of rental adjustments at least forty-five (45) days prior to the end of each seventh (7th) lease year; provided, however, failure of Lessor to give forly4ive (45) days' notice does not relieve Lessee, from the obligation to pay increased rent or the right to pay less rent in the event of a decrease in the CPI; and, provided fuHher, that Lessee shall have no obligation to pay rent increases which apply to any period greater than ninety (90) days prior to the receipt by Lessee of Lassoes notice of an increase in rent. (b) In the event Lessee is two or more persons owning the leasehold estate created hereby as tenants in common or joint tenants, and less than all of such persons transfer their interest in this Lease to a person other than to an existing tenant in common or joint tenant, the rent adjustment shall be prorated to reflect the percentage interest being transferred to a third party. For example, if two persons are the Lessee as tenants in common as to equal one-half interests, and one of such persons transfers his/her 50% interest to a third party, the rent shall be adjusted as provided in Paragraph 3.13(2)(c), and thereafter as provided in Paragraph 3.13(4)(a), and the resultant rental increase multiplied by the percentage transferred (50%) to determine the rental increase; provided, however, that any subsequent transfer of an interest in this Lease to such third party shall not be exempt under subparagraph 3.13(3). (5) Installment Payments/Grace Period. Lessee shall pay rent in equal monthly installments, in advance, with payment due on or before the first day of the month for which rent is paid. Rent shall be prorated during any month when a transaction which increases rent becomes effective other than the first day of that month. No late payment charge applies to payments received by Lessor on or before 5:00 P.M. on the fifteenth (15th) day of the month for which the payment is made ("Grace Period") . If a rent payment, or any portion thereof, is received by Lessor after 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 Otax 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 6 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 doc4ment used to effect the transfer. (2) Lessee or the proposed transferee shall pay to Lessor a transfer fee of one hundred dollars ($100.00); (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 priorto the proposed effective date of the transfer of this Lease. Lessorshallhave the right, at its sole discretion, to commission an appraisal of the fair market value of this Lease and improvements thereon as of the date of transfer. Any such appraisal shall be completed not later than thirty (30) days after receipt by Lessor of the aforementioned information from the Lessee. If the value determined by the appraiser commissioned by Lessor exceeds the stated total consideration to be paid based on the information received from the Lessee by more than ten percent (10%), Lessor shall so notify the Lessee and provide Lessee with a full copy of such appraisal report, and said value shall be deemed the Actual Sales Value for purposes of calculating Average Actual Sales Value Rent and rental payments unless within fifteen (15) days after receiving such notice and the report the Lessee notifies Lessor that Lessee elects to cause an appraisal of the fair market value of this Lease and improvements thereon as of the date of transfer to be conducted by an independent appraiser. In such event, Lessee cause such appraisal to be completed no later than thirty (30) days after the notice to Lessor and shall provide Lessor with a full copy of the appraisal upon completion. The Actual Sales Value for purposes of calculating Average Actual Sales Value Rent and rental payments shall be the greater of (i) the stated consideration for the transfer, or (ii) the average of the two appraisals. Any appraisal commissioned by Lessor or Lessee under this Paragraph 4.13 shall be conducted by an MAI appraiser licensed to conduct business in the State of California and experienced in residential appraisals in Southern California. C . Exempt Transfer Information. Lessor's consent is not required for the "exempt transfers" referenced in Paragraph 3.13(3): provided, however, Lessee shall furnish Lessor with copies of all documents used to effect any exempt transfer. D . Audit of Subleases. It is the intent of the parties that transfers referred to in Section 33(3)(e) shall only be exempt from the further provisions of Paragraph 33 (in respect of rental adjustments) if such subleases are not substantially equivalent to, do not have substantially the same economic effect as, or are intended to disguise, a transfer by the then Lessee of all or substantially all of histher interest in this Lease to the putative sublessee. Lessor shall at all times have the right, upon written request to the Lessee, to receive copies of all written agreements, and to be advised in full of all oral agreements, between the Lessee and any sublessee of the Leased Land. Any purported sublease of the premises which is determined to be substantially equivalent to, or have substantially the same economic effect as, or is intended to disguise, a transfer by the then Lessee of all or substantially all of his/her interest in this Lease to the putative sublessee shall be void and of no force or effect, and such attempted or purported sublease shall, 0 0 at the option of Lessor, (i) be an event of default by the Lessee under this Lease, or (ii) permit Lessor to treat such sublease as a transfer of this Lease subject to the provisions of Section 3.B. 5. ENCUMBRANCES. A . Right to Encumber. Lessee may encumber this Lease by deed of trust, mortgage, or similar instrument, in favor of any bona fide tender CLencler") in a bona fide loan transaction for any purpose without the consent of Lessor. To determine whether a loan is a bona fide lending transaction, and not an arrangement for transfer of the possession or title to the Premises to the putative lender, Lessee and the lender agree to provide Lessor with all documentation executed between Lessee and the lender concerning the loan upon request of Lessor. Neither Lqssee nor Lessor shall have the power to encumber Lessor's interest in the Leased Land. Any encumbrance shall be subject to all covenants, conditions and restrictions in this Lease and to all rights and interests of Lessor except as otherwise expressly provided in this Lease. Lessee shall give Lessor prior written notice of any encumbrance. B . Notice to Lender. Lessor shall have no obligation to give any Lender any written notice pursuant to this Lease unless the Lender has given Lessor written notice of its name, address, and nature of encumbrance (Tomplying Lender') . Lessor shall give all Complying Lenders a copy of any written notice of default, notice of termination or other notice which may affect Lessee's rights 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 cueing 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: 0 0 Lender: (1) Proc :adin'a are commenced within thirty (30) days after the later of (i) expiration of the time p lod granted to Lessee for curing the default, or (H) 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. G . Now Lease. Notwithstanding any other provision of this Lease, should this Lease terminate or be terminated because of any default or breach by Lessee, Lessor shall enter into a new lease with Lender as lessee provided: (1) the written request for the new lease is served on Lessor by Lender within thirty (30) days after the termination of this Lease. (2) the new lease contains the same terms and conditions as this Lease except for those which have already been fulfilled or are no longer applicable. (3) on execution of the new lease by Lessor, Lender shall pay any and all sums that would be due upon execution of the new lease, but for its termination, and shall fully remedy, or agree in writing to remedy, any other default or breach committed by Lessee that can reasonably be remedied by Lender. (4) Lender shall, upon execution of the new lease, pay all reasonable costs and expenses (including attorney's fees) incurred in terminating this Lease, recovering possession of the premises from Lessee, in preparing the new lease. H . Miscellaneous. The following provisions shall apply to Lessor, Lessee and any (1) Any Lender shall be liable to perform the obligations of the Lessee under this Lease only so long as the Lender holds title to this Lease; (2) Lessee shall, within ten (10) days after the recordation of any trust deed or other security instrument, record, at Lessee's sole expense, Lassoes written request for a copy of any notice of default and/or notice of sale under any deed of trust as provided by state law. 6. USE AND MAINTENANCE. A. Use of Leased Land. The Leased Land shall be solely for residential purposes. Lessee may demolish, construct, remodel, reconstruct and maintain structures on the Leased Land for residential purposes so long as the structures and construction are authorized by appropriate City permit and fully comply with all City ordinances, resolutions, regulations, policies, and plans. Lessee shall also obtain permission to construct and/or maintain structures from the California Coastal Commission and any other state agency if required by law. B . Maintenance of Improvements. Lessor shall not be required to make any changes, alterations, additions, improvements, or repairs in on or about all or part of the Premises. Lessee shall, at all times during the term of this Lease and without any cost or expense to Lessor, keep and maintain, the Premises, including, without limitation, all structures, facilities, walks, curbs, parkways and other improvements, in good order and repair and in a clean, safe, sanitary and orderly condition. Lessee shall repair or reconstruct any improvements on the Leased Land following any damage or destruction thereof, unless the improvements are being destroyed in conjunction with remodeling or reconstruction and Lessor has consented, in writing, to the damage or destruction. Lessee shall cause to be constructed, maintained and repaired all utilities, pipes, walls, sewers, drains, and other improvements on the Premises to the extent required by law or as necessary to maintain the improvement in good order and repair and safe and sanitary condition. C . Compliance with Laws. Lessee shall make, or cause to be made, any additions, alterations or repairs to any structure or improvement on the Premises which may be required by, and Lessee 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 0. 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 perf8rmed 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 v6411 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 A:REA. Lessee shall have the right to use the streets, beaches, walkways, tennis courts, docks, piers, 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 KND 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 a pro rata share of such costs, and to collect such costs from Lessee in the form of rent over the remaining term of this Lease. 10 10. COMMUNITY ASSOCIATION. A. Membership in Association. As a material part of the consideration of this Lease, and as an express condition to the continuance of any of the rights of Lessee pursuant to this Agreement, Lessee agrees to become, and during the term of this Lease to remain, a member in good standing of the Beacon Bay Community Association. B . Compliance with Rules and Regulations. Lessee agrees to abide by the Articles of Incorporation, bylaws, and all rules and regulations of the Association, and to pay to the Association, before delinquency, all valid dues, fees, assessments and other charges properly levied or assessed by the Association. Lessee's failure to comply with the provisions of Paragraph A and this Paragraph B shall constitute a material breach of this Lease. C . Lessor Maintenance of Common Areas. In addition to the rights reserved to Lessor pursuant to the provisions of Section 9, if the Community Association falls or ceases to maintain community facilities, Lessor may, at its option and without obligation, assume the obligations of the Community Association to maintain, repair, install or improve community facilities. In such event, Lessee shall pay a pro rata share of Lessors reasonable expenses in maintaining and operating the community facilities, including a reasonable management fee or the fee charged by a management agent. Lessee's pro rata share shall be determined by dividing Lessor's costs by the number of residential lots within Beacon Bay (currently seventy-two lots) . Lessee's pro rate share of the annual costs incurred by Lessor shall be paid within thirty (30) days after written notice of the amount due, and any failure to pay shall constitute a material breach of this Lease. The costs of maintaining and operating community facilities shall be determined annually and solely from the financial records of Lessor. 1. COVENANTS, CONDITIONS AND RESTRICTIONS. Lessee agrees to abide and be bound by all covenants, conditions, restrictions and reservations as contained in Exhibit D attached hereto and incorporated herein 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. 12. INDEMNIFICATION. Lessee shall indemnify, defend and hold harmless Lessor, its City Council, Boards and Commissions, officers, agents, servants and employees from and against any and all actions, causes of action, obligations, costs, damages, losses, claims, liabilities and demands of any nature whatsoever, including reasonable aftomeys'fees, regardless of the merit or outcome of any such claim or suit, arising out of, or in any way related, to the condition of the Premises, or the use or possession of the Premises by Lessee, or Lessee's employees, agents, representatives, guests or invitees, as well as any activity, work or things which may be permitted or suffered by Lessee in or on the Premises. Lessee shall indemnify, defend and hold harmless Lessor, its City Council, Boards and Commissions, officers, agents, servants and employees from and against any and all actions, causes of action, obligations, costs, damages, losses, claims, liabilities, and demands of any nature whatsoever, including reasonable attorneys'fees, accruing or resulting to any and all persons, firms or corporations furnishing or supplying work, services, materials, equipment or supplies arising from or in any manner connected to the use or possession of the Premises by Lessee or from any activity, work or things which may be permitted or suffered by Lessee in or about the Premises. Without limiting the generality of the foregoing, Lessee hereby assumes all risk of damage to property or injury to 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 I I 0 0 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 Lesseds use and occupation, of the premises in amounts not less than: $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 required 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.A(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; (5) the making by Lessee of any general assignment, or general arrangement for the benefit of creditors; the filing by or against Lessee of a petition to have Lessee adjudged a bankrupt or a petition for reorganization or arrangement of any law relating to bankruptcy unless the same is dismissed within sixty (60) days; the appointment of a trustee or receiver to take possession of substantially all of Lessee's assets located at the Premises or of Lessee's interest in the Lease, where possession is not restored to Lessee within thirty (30) days; or the attachment, execution or other judicial seizure of substantially all of Lessee's assets located at the Premises or of Lessee's interest in the Lease, where such seizure is not discharged within thirty (30) days. Notices given under this Paragraph 14.A shall specify the alleged default and the applicable lease provisions, and shall demand that Lessee perform the provisions of this Lease or pay the rent that is in arrears, as the case may be, within the applicable period of time. No such notice shall be deemed a forfeiture or a termination of this Lease unless Lessor so elects in the Notice. B . Landlord's Remedies. In the event of any default by Lessee as defined in Paragraph 14.A, Lessor may, in addition to any rights or remedies permitted by law, do the following: 12 (1) Terminate Lessee's right to possession of the Leased Premises by any lawful means, in which case this Lease shall terminate and Lessee shall immediately surrender possession of the Premises to Lessor. In such event, Lessor shall be entitled to recover from Lessee all amounts to which Lessor is entitled pursuant to Section 1951.2 of the California Civil Code, or any other provision of law, including, without limitation, the following: (a) The worth at the time of award of the amount by which the unpaid rent and additional rent for the balance of the term after the time of award exceeds the amount of the loss than Lessee proves could be reasonably avoided; and , (b) any other amount necessary to compensate Lessor for all detriment proximately caused by Lessee's failure to perform obligations pursuant to this Lease or which in the ordinary course of things would be likely to result from the breach, including, without limitation, the cost of recovering possession, expenses of reletting (including necessary repair, renovation and alteration) reasonable attorneys' fees, and any other reasonable costs. The �worth at the time of award" of all rental amounts other than that referred to in clause (I) above shall be computed by allowing interest at the rate of ten percent (10%) per annum from the date amounts accrue to Lessor. The worth at the time of award of the amount referred to in clause (1) shall be computed by discounting such amount at one percentage point above the discount rate of the Federal Reserve Bank of San Francisco at the time of award. (2) Without terminating or affecting the forfeiture of this Lease or, in the absence of express written notice of Lessoes election to do so, relieving Lessee of any obligation pursuant to this Lease, Lessor may, but need not, relet all or a portion of the Premises at any time, or from time to time, and on such terms and conditions as Lessor, at its sole discretion, deems appropriate. Whether or not the Premises are relet, Lessee shall pay all amounts required by this Lease up to the date that Lessor terminates Lessee's right to possession of the Premises. Lessee shall make such payments at the time specified in the Lease and Lessor need not wait until termination of the Lease to recover sums due by legal action. If Lessor relets all or a portion of the Premises, the reletting shall not relieve Lessee 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 14.13(l). 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. 13 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. Lessoes 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 Lessors 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. 11 S. 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 termination of the leasehold interest. Lessee waives any right to receive relocation assistance or similar form of payment. B. Removal of Improvements. Upon the expiration of the term of this Lease, and on condition that Lessee is not then in default of any of the provisions of this Lease, Lessee shall have the flght to remove from the Leased Land all buildings and improvements built or installed on the Leased Land. Removal of any building or improvement shall be at the sole cost and expense of Lessee and removal must be complete no later than ninety (90) days after expiration of the term of this Lease. Lessee shall fill all excavations and remove all foundations, debris and other parts of the buildings or improvements remaining after removal and surrender possession of the Premises to Lessor in a clean and orderly condition. In the event any of the buildings and improvements are not removed within the time provided in this Paragraph 15B, they shall become the property of Lessor without the payment of any consideration. 16. EMINENT DOMAIN. A. Definitions of Terms. (1) The term "total taking" as used in this Section 16 shall mean the taking of the entire Premises under the power of eminent domain or the taking of so much of the Leased Land as to prevent or substantially impair the use thereof by Lessee for the residential purposes. (2) The term "partial taking" shall mean the taking of a portion only of the Premises which does not constitute a total taking as defined above. (3) 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. (4) The term "date of taking" shall be the date upon which title to the Premises or portion thereof passes to and vests in the condemnor. 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 14 9 9 Leased Land or the portion thereof taken shall cease and terminate as of the date of taking of said Leased 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 Premises and Lessee's leasehold interest therein shall be allocated as follows: The Lessor shall be entitled to an amount equal to the sum of the following:. (a) 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 fair market value by the factor for the present worth of one dollar ($1.00) at nine percent (9%) per annurn 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 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: 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 annurn 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 covenants 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. 15 0 0 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 Lessors or Lesseds rights to exercise any other. 19. NO WAIVER. No delay or omission of either party to exercise any right or power arising from any omission, neglect or default of the other party 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 other party 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. 20. 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. 21. NOTICES. 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, P.O. Box 1768, Newport Beach, California 92659-1768, 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. By depositing the Notice in the United States Mail, registered or certified, with postage prepaid, to the residence or business address furnished by Lessee; or 0. If the Lessee is 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 D. If no one can be found, then by affixing a copy of the notice in a conspicuous place on the Premises and also sending a copy through the mail addressed to the Lessee. Such service upon Lessor or Lessee shall be deemed complete upon the earlier of (i) actual delivery, or (ii) the expiration of seventy-two (72) hours from and after the deposit in the United States mail of such notice, demand or communication. 22. HOLDING OVER. This Lease shall terminate and become null and void without further notice upon the expiration of the term of this Lease. Any holding over by Lessee after expiration of the term shall not constitute a renewal of this Lease or give Lessee any rights in or to the Premises except as expressly provided in this Section. The parties agree this Lease cannot be renewed, extended, or in any manner modified except in a writing signed by all parties. However, if Lessee, or anyone claiming under Lessee, shall remain in possession of the Premises after expiration of the term of this Lease without any agreement in writing between the parties and Lessor accepts rent from Lessee, then Lessee shall be deemed a tenant from month -to -month subject to the provisions of this Lease insofar as they may be applicable to a month -to -month tendency. The month -to -month tendency may be terminated by Lessor or Lessor upon thirty (30) days' prior written notice to the other. 16 23. QUIET ENJOYMENT. Lessor covenants and agrees that Lesseeupon paying the rent set forth herein and observing and keeping all covenants and agreements to b 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. a. 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. 17 IN WITNESS WHEREOF, the parties have caused this Lease to be executed as of the date first above written. LESSOR: CITY OF NEWPORT BEACH, 0 . . . . . . . . . . By: Title.. ATTEST: -'z�' I 0'� 07wv- CITY CLERK JUPWOVED AS TO FORM: MV�A�TfTORNEY LESSEE C, Paul A. Ramsey, Trustee Florence Patricia Ramsey, Trustee iju RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Manager's Office City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 � 0 Recorded in the county Of Orange, California Gary L. Granville , Clerk/Recorder 19970208002 C25PM 05/05/97 005 16004677 16 5000 0.00 0.00 0.00 Pill 4 7.00 9 . 00 0- UM 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 PAUL A. RAMSEY AND FLORENCE PATRICIA RAMSEY, Trustees of the Ramsey Family Revocable Trust, herein called "Lessee", to witness that: Lessor hereby leases to Lessee, commencing onL171a-�,I- p/ ,, /7 �� 7 and ending on July 1, 2044, on the terms and conditions set forth in that certain lease by and between the parties hereto dated I-,V / 2 9;z , 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 3 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. EXECUTED on_3///-/ 1997, at Newport Beach, Orange County, California. ATTEST - -9:2 CLERK -1 . UZU it F7111".ul, LESSOR THE CITY OF NEWPORT BEACH CITY%4ANAGI--111- Kevin J. Murphy r* Pc—,—�o C.:P- Lessee: Paul A. Ramsey, Trustee Lessee: Florence Patricia Ramsey tee 11 State of California County of Orange On before me, Monica S. Kutz, Notary Public, personally appeared Elpersonally known to me - OR J P�roved to me on the basis of satisfaciory evidence to be the person* whose name(s)� subscribed to the within instr me t d acknowledged to qZg that ��hehefthey- executed the same i ON '/11164149�uthorized capacityoe-s)-, and that by his herlthemir signature(s�on the instrument the personW, orthe entity upon behalf of which the person(4 acted, executed the instrument. ------------ Monica S. Kutz 0 Comm #1013469 NOTARYPUBLIC CALIFORNIA ORANGE COUNTY F to Comm ExplrosJan 1% 1998 CAPACITY CLAIMED BY SIGNER Individual Corporate Officer Limited Partner General Partner Aftorney-in-Fact Trustee(s) Guardian/Conservator Other: Signer Is Representing: WITNESS my hand and official -seal. DESCRIPTION OF TTACHED DOCUMENT Title or Type of Document Number of Pages Date of Document Signer(s) Other Than Named Above 7-. State of California County of Orange On ff�AdA /y �qq I before me, Monica S. Kutz, Notary Public, personally appeared personally known to me - OR - roved to me on the basis of satisfactory evidence p to be the personks�y whose nameW&Yare- subscribed to the within instrument and acknowledged to me that -149�/thiar executed the same in his/her/their authorized e thvl-r capacity(ks�, and that by 1-14:� signature(&�w the instrument the person(s), orthe entity upon behalf of whichthe person(s)- acted, executed the instrument. lea S. Kutz 0 M 01013469 0T�jj'-NOTA0F1Q0YTPU8L1C CALIFORNIAM' ORANGE COUNTY 0 Comm Expires Jan 13. 1996 CAPACITY CLAIMED BY SIGNER Individual Corporate Officer Limited Partner General Partner Aftorney-in-Fact Trustee(s) Guardian/Conservator Other: Signer Is Representing: WITNESS my hand and official seal. DESCRIPTION OF ATTACHED DOCUMENT a4l'o 6f (eaqz--,, y , , Title or Type of Document Number of Pages Date of Document Signer(s) Other Than Named Above State of California County of Orange On . wah )17,4 RVbefore me, Monloa ... S, - Kutz.....Notary Public, personally appeared personally known to me - OR - proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the, instrument the person(s), orthe entity upon behalf of which the person(s) acted, executed the instrument. "on Ca S. Kutz 092 C 0 #1013469 NOTARYMPIUMBLIC CALIFORNIAN' 0 iE COUNTY MsJan 13.1998 6 CAPACITY CLAIMED BY SIGNER — Individual Corporate Officer Limizad Partner General Partner Attotney-in-Fact Trustee(s) Guardian/Conservator Other: Signer Is Representing: WITNESS my hand and official seaL DESCRIPTION OF ATTACHED DOCUMENT --ffleM6 , D� Lca"�e,, Title or Type of Document 'Number of Pages Date of Document Slgner(s) Other Than Named Above 0 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 1. Iranville. Clerk/Recorder 19970208003 4:25pm 05/05/97 005 16004677 16 50 T03 4 7.00 9.00 0.00 0.00 0.00 0.00 TERMINATION OF This agreement is made this , A/ ' day of 1997" by and between the CITY OF NEWPORT BEACH, hereindfter called "Lessor", and PAUL A. RAMSEY AND FLORENCE PATRICIA RAMSEY, Husband and Wife, hereinafter called ul-essee". RECITALS A. Lessor and Lessee executed a lease on November 14, 1994, and subsequently recorded February 9, 1995, by the County Recorder of Orange County, California as Instrument No. 95-0055305. By the terms of the lease, the following described property was leased to Lessee until July 1, 2044. Lot 3 as shown on the map filed in Book 9, Pages 42 and 43 of Record of Surveys in the Office of the County Recorder, County of Orange, State of California. B. Lessee desires to terminate said lease and all rights to the possession of the lease premises and to release Lessor from its obligations under the lease, and Lessor desires to accept said termination and to release Lessee from their obligations under the lease. AGREEMENT Lessee agrees to terminate the lease and vacate the premises as described herein above as ofc:2& /,/ z 2 2 -Z , 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 OF NEWPORT BEACH O"V Manager BY: ip", Lessee: Paul A. Ramsey BY: Lessee: Florence Patricia Ramsey 2)r Yf- q1 State of California County of Orange On before me, Monica S. Kutz, Notary Public, personally appeared personally known to me OR A:A ,.�roved to me on the basis of satisfactory evidence to be the personts)- whose name(saarer subscribed to the within instrument and - acknowledged to me thatd&sl� executed the same in�ghe##vetr authorized capacity(is�, and that by��heAhair' signature��n the instrument the personks), orthe entity upon behalf of which the person* acted, executed the instrument. 00 Monica S. Kutz COMM #1013469 0 NOTARY PUBLIC CALIFORNIA) WITNESS my hand and official seal. I ORANGE COUNTY COMM ExPlres,lan 13,1 CAPACITY CLAIMED BY SIGNER — Individual Corporate Officer Limited Partner General Partner Attorney -In -Fact Trustee(s) Guardian/Conservator — Other: Signer Is Representing: DESCRIPTION OF ATTACHED DOCUMENT Title or Type of Document Number of Pages Date of Document Signer(s) Other Than Named Above r *r�� —7� State of California County of Orange OnALdirdL-A �297 before m e, Monica S. Kutz, Notary Public, ,personal ly*appeared -F-(.b yut� P 0 66rsc.. ��aliy m ow;,, lo V:Fnroved to me on the basis of satisfactory evidence to be the person(* whose nameM<0aren subscribed to the within instrument and .acknowledged to me that trel(gy/th-ay executed the same in his/her/their authorized capaclty�W, and that by +Iwi-s4owt�ry signaturefs)-on the instrument the person(*—, orthe entity upon behalf of which the person(a)— acted, executed the instrument. -------------- Monica S. Kutz 46", Comm.#1013469 NOTARY PUDLIC CALIFORNIA" P. � ORANGS COUNTY 0 Com expires Jan M. 1998 6 WITNESS my hand and official seal. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Inc!;,-iouni , Corporate Officer Limited Partiler General Partner — Attorney -In -Fact — Trustee(s) — Guardian/Conservator — Other: Signer Is Representing: Title or Type of Document Number of Pages Date of Document Signer(s) Other Than Named Above S rd State of California County of Orange On before me, Monloa S. Kutz. Notary Public, personally appeared ersonally known to me - OR - proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), orthe entityupon behalf of whichthe person(s) acted, executed the instrument. monic S. Utz 0 COMM. #1013489 0 NOTARY PUBLIC CALIFORNIA 2 ORANGE COUNTY 0 1 COMM EXPIras Jan 13,1998 CAPACITY CLAIMED BY SIGNER Individual Corporate Office, Limited Partner General Partner — Attorney -In -Fact — Trustee(s) Guardian/Conservator Other: Signer Is Representing: WITNESS my hand and official seal. DESCRIPTION OF ATTACHED DOCUMENT Title or Type of Document Number of Pages Date of Document Signer(s) Other Than Named Above LEASE THIS LEASE Is made and entered into as of the _ IV"7 day of,&,)-.�l 994, by and between the CITY OF NEWPORT BEACH, a Charter City and munkilpalcorporation ("Lessor"), and - ("Lessee"), regarding the real property commonly referred to as Beacon Bay Lot 3 (THREE) 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 ref lect 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 consideration 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. 1. Lessor and Lessee acknowledge that the City has agreed to a f ifty (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. K. Lessor has determined that this Lease Is consistent with provisions of the Beacon Bay Bill, the Charter, General Plan and Zoning Ordinance of 4he City of Newport Beach, and of all other applicable state and local laws. L. Lessor has determined it is in the best interests of the citizens of Newport Beach to maintain the residential character of Beacon Bay and to enter into now leases with Current Lessees under the terms and conditions specified in this agreement. NOW, THEREFORE, in consideration of the foregoing recitals and the covenants in this lease, the parties agree as follows: 1. LEASED LAND. Lessor hereby leases to Lessee the real property commonly known as Beacon Bay Lot 3 (three) (the "Leased Land"), which is more particularly described in Exhibit B, and generally depicted on Exhibit A, each attached hereto and incorporated by reference, subject to the limitations on use specified in Section 6. As used in this Lease, the term "Premises" shall refer to the Leased Land and any improvements constructed thereon. Lessor expressly reserves all oil, oil rights, gas, minerals, mineral rights, natural gas rights and other hydrocarbon substances In and under the Leased Land and the right to grant and transfer the same, together with all necessary and convenient rights to explore for, develop, produce and extract and take the same, subject to the express limitation that any and all operations for the exploration, development, production, extraction and taking of any such substance shall be carried on at levels below the depth of five hundred feet (500') from the surface of the land by means of wells, derricks and other equipment from surface locations on adjoining or neighboring land, and subject further to all restrictions and regulations 0 concerning the drilling for, and production of, oil, gas, minerals, petroleum and other hydrocarbon substances specified In the Newport Beach City Charter or the Newport Beach Municipal Code. TERM. The term of this Lease shall commence on the Execution Date, but in no event prior to the Effective Date, and shall expire on the date fifty (50) years following the Effective Date, unless earlier terminated as provided in this Lease. 3. RENTAL. A. Definitions. For the purposes of this Lease, the following terms shall be defined as specified In this paragraph. In certain cases, the definition of the term contains operative language that affects the rights of the parties: (1) "Actual Sales Value" shall mean the total of all consideration paid for the non-exempt transfer of this Lease or the Pre-existing Lease, including the Improvements on the Leased Land, from the Current Lessee, or Subsequent Lessee, to another person excluding any consideration paid for the transfer of personal property in connecilon with such transaction. (2) "Average Actual Sales Value Rent" shall mean two and one-half percent (2L_0/6) of the mean of the Actual Sales Value of the non-exempt transfer of a similarly situated (waterfront or Interior) Beacon Bay parcels as specified in this subparagraph. Average Actual Sales Value Rent shall be the mean of the Actual Sales Value of the three similarly situated parcels most recently transferred. Exempt transfers, as defined In Paragraph 3.13(3), shall not be used to calculate Average Actual Sales Value rent. (3) "CPI" shall mean the Consumer Price Index - Los Angeles -Anaheim -Riverside Area, All Urban Consumers, All Items, published by the United States Department of Labor, Bureau of Labor Statistics (1982-1984=100). If the 1982-1984 base of said Consumer Price Index should hereafter be changed, then the new base shall be converted to the 1982-1984 base and the base as so converted shall be used. In the event that the Consumer Price Index, as now compiled and published, shall cease to be published, then the successor index shall be used provided that an appropriate conversion from the old index to the new Index can feasibly be made. 'If such conversion cannot be made, or if no such index is published, then another index most nearly comparable thereto recognized as authoritative shall be substituted by agreement. (4) "Current Lessee" shall mean the person or persons who, as of April 1, 1994 (the "Cut-off Date"), was or were the Lessee under the 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. (11) "Transferred" shall mean any sale, assignment, sublease or other transaction, other than an exempt transfer as def ined 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. Lessee shall pay annual rent in the sum of thirty-one thousand five -hundred and sixty dollars ($2152M), payable at the rate of two thousand six hundred and thirty dollam—M&IM) per month. Lessee shall also pay, N applicable, deferred rent in the sum of ) upon execution of this Lease. Rent shall -(�(circle one) be adjusted every seven (7) years after the date of transfer in accordance with the provisions of Paragraph 3.13(4). Annual rent, deferred rent, and periodic adjustments are based upon the following: (1) Execution Before Effective Date. In the event this Lease is executed by the Lessee on or before the Effective Date, Rent shall be paid as follows: (a) Current Lessee: Current Lessee shall pay annual rent equal to Initial Rent as specified in Exhibit C. Thereafter, so long as there has been no transfer of this Lease by the Current Lessee (other than an exempt transfer as set forth in Paragraph 3.13(3), rent shall remain as specified in this subparagraph notwithstanding the provisions of Paragraph 3.13(4). (b) In the event of any transfer of this Lease to a Subsequent Lessee, the Subsequent Lessee shall pay annual rent equal to two and one-half percent (2_-/.) of the Actual Sales Value determined as of the date of the transfer in accordance with the provisions of paragraph 3.A(l). Thereafter, rent shall be adjusted every seven years after the date of the transfer in accordance with the provisions of paragraph 3.13(4). (c) In the event of any transfer of this Lease to a Subsequent Lessee in a transaction other than an arm's length assignment of this Lease, and sale of the Improvements on the Leased Land, if any, such as a gift ortransfer 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). (2) Execution After the Effective Date. In the event this Lease is first executed after the Effective Date, rent shall be determined and paid as follows: (a) Current Lessee/Within Five Years After Effective Date: In the event this Lease Is executed by the Current Lessee within I Iva (5) years after the Effective Date, the Current Lessee shall pay annual rent equal to Initial Rent plus a sum calculated by multiplying the difference between Initial Rent and Average Actual Sales Value Rent by a fraction equal to the number of months between the Effective Date and Execution Date, divided by sixty. The Current Lessee shall also pay all Deferred Rent concurrent with the execution of this Lease. Thereafter, so long as there has been no transfer of this Lease by the Current Lessee, rent shall remain as specified In this subparagraph, notwithstanding the provisions of Paragraph 3.B(4). (b) Current Lessee/More Than Five Years After Effective Date: In the event this Lease Is executed by the Current Lessee more than five (5) years after the Effective Date, the Current Lessee shall pay annual rent equal to Average Actual Sales Value Rent calculated as of the date of execution In accordance with the provisions of Paragraph 3.A(2). The Current Lessee shall also pay all Deferred Rent concurrent with the execution of this Lease. Thereafter, rent shall be adjusted every seven (7) years after the date of execution in accordance with the provisions of Paragraph 3.B(4). (c) Subsequent Lessee: In the event the Current Lessee transfers the Pre- existing Lease to a Subsequent Lessee who wishes to sign this Lease after the Out -off Date, the Subsequent Lessee shall pay annual rent equal to two and one-half percent (2 — %) of Actual Sales Value determined as of the date of execution and In accordance with Paragraph 3.A(l). The Subsequent Lessee shall also pay all Deferred Rent concurrent with the execution of this Lease. The annual rent shall be adjusted every seven (7) years following the Execution Date In accordance with the provisions of Paragraph 3.B(4). (d) Subsequent Lessee: In the event of any transfer of this Lease to a Subsequent Lessee who wished to sign this Lease after the Cut-off Date in a transaction other than an arm's length assignment of this Lease, and sale of the Improvements on the Leased Land, if any, such as a gift or transfer by Inheritance other than an exempt transfer under Paragraph 3.B(3), the Subsequent Lessee shall pay annual rent equal to the Average Actual Sales Value Rent calculated as of the date of the transfer in accordance with the provisions of Paragraph 3.A(2). The Subsequent Lessee shall also pay all Deferred Rent concurrent with the execution of this Lease. The annual rent shall be adjusted every seven (7) years following the Execution Date In accordance with the provisions of Paragraph 3.B(4). (3) Exempt Transfers. The provisions of Paragraph 33 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; 6 EXHIBIT A The WESTERLY 45 FEET of Lot 3 and the EASTERLY 10 FEET of Lot 2, in the CITY OF Newport Beach, COUNTY OF ORANGE, STATE OF CALIFORNIA, as shown upon a Record of Survey Map RECORDED in BOOK 9, Pages 42 and 43 Record of Surveys, on file IN THE OFFICE OF THE COUNTY RECORDER, ORANGE COUNTY, CALIFORNIA, together with certain portions of adjoining Lots I and H as shown upon said Map and as DESCRIBED more fully hereinafter. GOVERNMENT CODE 27361.7 I certify undetI-penalty of perjury that the notary seal on the document to which this statement is attached reads as follows: Name of Notary C/g,252)r Date Commission Expires 2. 67 County where bond is fiAd Pl�te �of xecutioO Date CHICAGO TITLE 10 F 0662-1