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,
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19970208002 4:25pm 05/05/97
005 16004677 16 50
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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
��
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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
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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.
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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.
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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
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3300 Newport Boulevard * Post Office Box 1768
Newport Beach, California 92658-8915
www.ciLv,newport-beach.cams
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3300 Newport Boulevard - Post Office Box 1768
Newport Beach, California 92658-8915
www.city.newl2ort-beach.ca.us
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City Manager's Office
(949) 644-3002
VIA FACSIMILE — (675-2673)
Re: Land Lease and utility payments to the City of Newport Beach
in 2002 for 3 Beacon Bav, Newi)ort Beach, CA 92663
D
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ESTATE OF Robert L. 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.
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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.
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�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
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-1*J.H*. .1�10T! 5 P;,CLZ'- U-,;,:Ty CASEMENTS.
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V.-r, A-J A% E OPCN STACE LC-rG.
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'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.
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: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
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61
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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
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ISLAIVD DRIVF
47
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5-3 34 L:
46 40
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r---t r---t ---n I --- -----
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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 <
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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
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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
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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
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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.
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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
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20
21
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U
25
26
27
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29
30
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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
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24
26
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�29
30
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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.
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30.
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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
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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
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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.
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4
10
11
IP,
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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.
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4
10
11
12
13
14
16
17
3.8
20
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23
24
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.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
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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;
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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
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8
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10
11
12
14
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11YV,
A - f 4:-,
MW
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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.
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12
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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.
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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.
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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.
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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
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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.
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(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
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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.
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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:
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(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
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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
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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
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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
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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:
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(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
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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.
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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.
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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.
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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:
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(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.
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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
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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.
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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
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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
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(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).
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(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
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(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
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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,
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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:
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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.
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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
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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