Loading...
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 -1- 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 -2- 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 -2- 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 • -3- 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 -1- 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 -2- 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 -3- 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. -4- • 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 -5- 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 -5- 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