HomeMy WebLinkAbout87-148 - Lease of Beacon Bay Residential Lots0
RESOLUTION NO. 87 -148
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH APPROVING AN AGREEMENT TO
LEASE OF BEACON BAY RESIDENTIAL LOTS A, 17, 31
AND 63
WHEREAS, the City owns certain tidelands and uplands in
an area known as Beacon Bay; and
WHEREAS, on January 9, 1950, the City entered into a
master lease to said property with Carroll B. Beek, Barton Beek,
Joseph Allan Beek, Jr. and Seymour Beek jointly, which master
lease expires on December 31, 1987; and
WHEREAS, the westerly portion of the Beacon Bay property
has been divided into individual lots and sublet for residential
purposes; and
WHEREAS, all said subleases will expire on the same date
as the master lease, December 31, 1987; and
WHEREAS, the City Council finds it to be in the public
interest and the welfare of the City that the portion of Beacon
Bay which is currently leased for residential purposes remain
residential in character and that to enter into new agreements to
lease with the sublessees under terms and conditions set forth in
the Agreement to Lease and Lease is in the public interest; and
WHEREAS, the City Council finds that it is in the best
interest and welfare of the City that the streets, walkways,
common areas, landscaped areas, beaches and other areas presently
leased to the Beacon Bay Community Association should remain in
said status in consideration of the Beacon Bay Conmunity
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, Section 1042 of the Charter of the City of
Newport Beach permits the leasing and re- leasing of water front
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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 has negotiated in good faith
with the sublessees of Lots A, 17, 31 and 63 and desires to offer
to these sublessees a new agreement to lease which would commit
the City and sublessees to enter the Lease approved by Resolution
No. 10040; 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 binds the City of Newport Beach to execute the Leases of
said properties in December, 1987, and said execution of said
Leases by and on behalf of the City of Newport Beach constitutes
a ministerial act and a furtherance of the obligation of the City
of Newport Beach hereby created.
NOW, THEREFORE, BE IT RESOLVED by the City Council of
the City of Newport Beach that pursuant to the recitals
hereinabove set forth, the Charter of the City of Newport Beach
and Chapter 74, Statutes of 1978, the form of Agreement to Lease
of the residential lots in Beacon Bay, attached hereto is
approved.
BE IT FURTHER RESOLVED that the approval of the form of
the Agreement to Lease attached hereto is rescinded effective
November 1, 1987 unless such Agreement to Lease is executed by
sublessees prior to that date.
• BE IT FURTHER RESOLVED that the Mayor and the City Clerk
are hereby authorized and directed to execute each individual
Agreement to Lease the respective residential lots in the
westerly portion of the Beacon Bay property and that the Mayor
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WHEREAS,
the City Council by Resolution No. 10040
approved a Lease and Agreement
to Lease of the residential lots
•
in Beacon Bay; and
WHEREAS,
the sublessees
of Lots A, 17, 31 and 63 elected
not to execute the
Agreement to
Lease approved by Resolution No.
10040; and
WHEREAS, the City Council has negotiated in good faith
with the sublessees of Lots A, 17, 31 and 63 and desires to offer
to these sublessees a new agreement to lease which would commit
the City and sublessees to enter the Lease approved by Resolution
No. 10040; 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 binds the City of Newport Beach to execute the Leases of
said properties in December, 1987, and said execution of said
Leases by and on behalf of the City of Newport Beach constitutes
a ministerial act and a furtherance of the obligation of the City
of Newport Beach hereby created.
NOW, THEREFORE, BE IT RESOLVED by the City Council of
the City of Newport Beach that pursuant to the recitals
hereinabove set forth, the Charter of the City of Newport Beach
and Chapter 74, Statutes of 1978, the form of Agreement to Lease
of the residential lots in Beacon Bay, attached hereto is
approved.
BE IT FURTHER RESOLVED that the approval of the form of
the Agreement to Lease attached hereto is rescinded effective
November 1, 1987 unless such Agreement to Lease is executed by
sublessees prior to that date.
• BE IT FURTHER RESOLVED that the Mayor and the City Clerk
are hereby authorized and directed to execute each individual
Agreement to Lease the respective residential lots in the
westerly portion of the Beacon Bay property and that the Mayor
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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 during the month of December, 1987, provided that the
sublessees 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 28th day of
ATTEST
City Clerk
•
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AGREEMENT TO LEASE
THIS AGREEMENT TO LEASE, made and entered into on
the _ day of , 1987, by and between the CITY OF NEWPORT
BEACH, a chartered municipal corporation, hereinafter "City,"
• and hereinafter
"Sublessee."
RECITALS
A. City holds title to and is the owner of certain
harbor frontage and tidelands, together with certain uplands
abutting thereon known as Beacon Bay and more particularly
described in Exhibit "1" attached hereto and made a part hereof
by this reference.
B. Carroll B. Beek, Barton Beek, Joseph A11Qn 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
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r
I
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
constitute tidelands as authorized by Chapter 74, Statutes of
1978.
G. It is further the
into this Agreement to Lease in
suant to its proprietary powers.
judgment of City that in entering
the future, City is acting pur-
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING
RECITALS AND THE MUTUAL COVENANTS set forth below, City and Sub-
lessee hereby agree as follows:
1. City hereby agrees to lease to Sublessee and Sub-
lessee hereby agrees to lease from City the real property
described in Exhibit 112" 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. The Base Rental under Paragraph 3 of the Lease,
Exhibit "C" attached hereto, shall be the sum described by
Alternate , hereby selected by the Sublessee as described on
the Schedule of Fees attached hereto as Exhibit "A."
3. Should any Sublessee not execute this Agreement on
or prior to the October 31, 1987, but execute this Agreement
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after October 31, 1987, and prior to December 31, 1987, the
rentat sum to be used in paragraph 2 hereof and the Base Rental
under Paragraph 3 of the Lease, Exhibit "C" attached hereto,
• shall be the total of the fair market rental value of the land as
established by the Appraisal Report prepared by George Hamilton
Jones, M.A.I., dated November 5, 1980, plus an amount equal to
the L.A. - Long Beach Consumer Price Index (C.P.I.) Increase,
from July 1, 1981 to the date of execution, or 1% per month
increase from July 1, 1981, whichever is greater, plus an amount
equal to the increase in rental value change due to the reduced
lease advantage, as of the date of execution, as set forth in the
effective rental value change sheet attached hereto as Exhibit
"D ", said total rental rate shall be referred to as Adjusted Base
Rental. The different Adjusted.Base Rental provided for in this
paragraph is imposed unilaterally by the City out of what is
deemed to be fair and equitable to those Sublessees who choose to
enter into this Agreement on its Effective Date. Said difference
in Adjusted Base Rentals is in no manner to be considered a
penalty but moreover a procedure developed solely by City to pro-
vide the incentive to enter into this Agreement of Lease at the
earliest date possible. Comnencing 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 boa free to deal with respect to
the lease of any unleased portions of Beacon Bay on any terms and
conditions it deems fit, a ither w ith third parties or pr for
sublessees.
4. 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
Section 4 of the Lease Exhibit "C" attached hereto, shall
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Y
determine the Base Rental to be paid
by
assignee to City,
and
further provided
that the assignee execute
an acceptance of
the
assignment and an
agreement to be bound
by
all the terms of
this
Agreement and to make the payments provided for hereunder which
Assignment and acceptance shall be delivered to and accepted by
City. Upon such assignment and acceptance, Sublessee shall be
released of any further obligation and liabilities under this
Agreement to Lease.
5. 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.
6. Time and each of the terms, covenants and
conditions hereof are expressly made the essence of this
Agreement.
If Sublessee shall fail to comply with any of the
terms, covenants or conditions of this Agreement, including
making the payments provided for herein at the time and in the
amount herein required, and shall fail to remedy such default
within sixty (60) days and thereafter diligently prosecute the
same to completion, or if a Sublessee shall abandon or vacate the
Leased Land, City may, at its option and without further demand,
terminate this Agreement. Upon service by City on Sublessee of
Notice of Termination of this Agreement to Lease, notice being
given in the same manner as provided in paragraph 19 of the Lease
appended hereto as Exhibit "C" this Agreement to Lease shall be
terminated as to Sublessee and City's obligation to enter into
the Lease appended hereto as Exhibit "C" is likewise terminated
and City is under no obligation whatsoever to enter into said
Lease with Sublessee.
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• payments due and owing from Sublessee to City and any other costs
due and owing from Sublessee to City at the date of termination
of this Agreement to Lease.
Should either City or Sublessee be required to
employ counsel to enforce the terms, conditions and covenants of
this Agreement to Lease, the prevailing party shall recover all
reasonable attorney's fees (and court costs if applicable)
incurred therein whether or not court proceedings were commenced.
7. 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 Lnnd, and
to indemnify City for any cost, liability or expense caused by or
arising out of any injury or death of persons or damage to
property which may occur upon or about the Leased Land or caused
by or arising out of any activities or omission of Sublessee, his
agents, employees, licensees, and /or invitees, including, without
limitation, injury or death of Sublessee, his agents, employees,
licensees and invitees and damage to his property or Sublessee's
property; except for any damage or injury of any kind arising
out of the negligence of City, its agents or employees.
8. Each and every covenant, condition and agreement
hereof, in accordance with the context, shall inure to the
benefit of City and apply to and bind Sublessee, their respective
heirs, legatees, devisees, executors, administrators, successors,
assigns, licensees, permittees, or any person who may come into
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In
addition to
termination of this Agreement
to
Leased
City may
recover from
Sublessee all damages incurred
by
City by
reason of
said breach,
including, without limitation,
any
• payments due and owing from Sublessee to City and any other costs
due and owing from Sublessee to City at the date of termination
of this Agreement to Lease.
Should either City or Sublessee be required to
employ counsel to enforce the terms, conditions and covenants of
this Agreement to Lease, the prevailing party shall recover all
reasonable attorney's fees (and court costs if applicable)
incurred therein whether or not court proceedings were commenced.
7. 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 Lnnd, and
to indemnify City for any cost, liability or expense caused by or
arising out of any injury or death of persons or damage to
property which may occur upon or about the Leased Land or caused
by or arising out of any activities or omission of Sublessee, his
agents, employees, licensees, and /or invitees, including, without
limitation, injury or death of Sublessee, his agents, employees,
licensees and invitees and damage to his property or Sublessee's
property; except for any damage or injury of any kind arising
out of the negligence of City, its agents or employees.
8. Each and every covenant, condition and agreement
hereof, in accordance with the context, shall inure to the
benefit of City and apply to and bind Sublessee, their respective
heirs, legatees, devisees, executors, administrators, successors,
assigns, licensees, permittees, or any person who may come into
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possession or occupancy of the Leased Land, or any part thereof
in anly manner whatsoever.
_ IN WITNESS WHEREOF, the parties have caused this Agree-
ment to Lease to be executed on the date first above written.
ATTEST:
City Clerk
APPROVED AS TO FORM:
y Attorney
CITY OF NEWPORT BEACH
By
Mayor
ma
Sublessee
SCHEDULE OF FEES
appraisal divided by 12
EXHIBIT A
Alternate
1
• Lot
Lump Sum Payment
and Base Rental
A
$
110,468
$ 2,072.92
17
$
64,442
$ 1,354.17
31
$
27,390
$ 729.17
63
$
60,370
$ 1,354.17
Alternate
2
Constant Additional
Lot
Base Rental and
Payment
A
$
2,072.92
$ 1,104.50
17
$
1,354.17
$ 644.17
31
$
729.17
$ 297.50
63
$
1,354.17
$ 668.42
Alternate
3
Lot
Lump
Sum Payment
and Base Rental
A
$
110,468
2.5% of City approved
appraisal divided by
12
17
$
64,442
2.5% of City
appraisal divided by
12
31
$
27,390
2.5% of City approved
appraisal divided by
12
63
$
60,370
2.5% of City approved
appraisal divided by
12
Alternate
4
Constant
Additional
Lot
Payment
and Base Rental
A
$
1,104.50
2.5% of City approved
appraisal divided by
12
17
$
644.17
2.5% of City approved
appraisal divided by
12
31
$
297.50
2.5% of City approved
appraisal divided by
12
63
$
668.42
2.5% of City approved
appraisal divided by 12