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HomeMy WebLinkAboutC-6243(M) - Beacon Bay, 62 - Lease 1991LEASE THIS LEASE, made and entered into this lst day. of July , 19 91, by and between the CITY OF NEWPORT BEACH, a chartered municipal corporation, hereinafter "Lessor," and C. KENT FREUNDT and BARBARA CASEY FREUNDT, husband and wife hereinafter "Lessee." RECITALS A. Lessor holds title to and is the owner of certain harbor frontage and tidelands, together with certain uplands abutting thereon known as Beacon Bay and more particularly described as Exhibit 111," attached hereto and made a part hereof by this reference. B. Carrol B. Beek, Barton Beek, Joseph Allan Beek, Jr., and Seymour Beek jointly hold a Master Lease to said property, dated January 9, 1950, which Master Lease expires on December 31, 1987. C. The "Westerly Portion" of the Beacon Bay property has been divided into individual lots and subleased for residential purposes. D. All of said subleases expire on the same date as the Master Lease, to -wit: December 31, 1987. E. Lessor believes it to be in the best interest and welfare of said Lessor (1) that the portion of Beacon Bay which is currently leased for residential purposes remain residential in character, and (2) to enter into new subleases with the sublessees under the terms, conditions and for the consideration as hereinafter set forth. F. It is the judgment of Lessor that the leasing of the property hereinafter described is consistent with the trust purposes imposed upon such portions of the leased lands which may constitute tidelands as authorized by Chapter 74, Statutes of 1978. G. It is further the judgment of City that in entering into this Lease in the future, City is acting pursuant to its proprietary powers. NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING RECITALS AND THE MUTUAL AGREEMENTS SET FORTH BELOW, LESSOR AND LESSEE HEREBY AGREE AS FOLLOWS: 1. DESCRIPTION OF LEASED PREMISES. Lessor hereby leases, and Lessee hereby accepts this Lease of the real property described in Exhibit 112," attached hereto and made a part hereof by this reference under the terms and conditions as set forth below ("hereinafter the "Leased Land"). 2. TERM. Unless terminated sooner as provided herein, the term of this Lease is for a period commencing on the 1st day of July , 19_2L and ending on the 1st day of July, 2006. 3. BASE RENTAL. As base rental, Lessee agrees to pay to Lessor the sum of Two Thousand Three Hundred and Ninety -Five and 83/100 DOLLARS ($ 2,395.83 ) per month, payable on the 1st day of each month so long as this Lease remains in effect subject to a base rental adjustment, as provided in paragraph 4 below. Said rental payment is deemed to be the fair market value of the Leased Land as an improved subdivision lot. 1 199, 4. SALE, ASSIGNMENT, SUBLEASE. Lessee may sell, assign, exchange, convey or sublease his leasehold interest or encumber such interest without a prior written consent of Lessor; provided, however, that the Lessee, proposed transferee, assignee or encumbrancer shall: A. Furnish Lessor with an executed copy of such assignment, Trust Deed, or other document used to effect such transfer; B. Furnish to lessor the express agreement of the proposed transferee or encumbrance assuming, and agreeing to perform, all of the obligations under this Lease; C. Pay to Lessor a transfer fee of $50.00; and D. Pay to Lessor the adjusted base rental which shall be the greater of the following: (1) The base rental as set forth in paragraph 3 above, or (2) An amount, equal to two and one half percent (2-1/2%) of the actual sales value of the leasehold estate, including the improvements thereon, divided by twelve (12) and payable monthly. The actual sales value shall be the total value of the transfer, as established by the Assessor of Orange County or verified by lessor. The parties to said transaction shall furnish Lessor with any information regarding the transaction as Lessor may deem necessary to verify the total value of the transaction. If said transfer transaction cannot be verified by normal and accepted methods of verification, Lessor, at its sole discretion, may cause the leasehold estate and improvements thereon to be appraised to establish the fair market value of the property, which value shall be deemed the actual sales value thereof, as of the date of transfer, and establish thereby the adjusted base rental. The adjusted base rental shall become effective on the date of transfer. The provisions of this subparagraph shall not cause an adjustment of rentals if: A. Lessee is assigning his interest in this Lease to a Trustee under a Deed of Trust for the benefit of the lender as provided in paragraph 5, below; or B. The transfer is caused by the death of a spouse and the full interest of the deceased spouse is transferred to the surviving spouse. 5. ENCUMBRANCES. If the Lessee assigns his interest in this Lease to a Trustee under a Deed of Trust (hereinafter called "Trust Deed") for the benefit of the lender hereinafter called "Encumbrancer"), such encumbrance shall be upon and subject to the following covenants and conditions: A. Said Trust Deed and all rights acquired thereunder shall be subject to each and all of the covenants, conditions and restrictions set forth in this Lease and to all rights and interest of the Lessor hereunder, except as herein otherwise provided. B. In the event of any conflict between the provisions of this Lease and the provisions of any such Trust Deed, the provisions of this Lease shall control. C. Any Encumbrancer which is an established bank, savings and loan association or insurance company, and is the purchaser at a foreclosure sale, or is an assignee under an assignment in lieu of foreclosure shall be liable to perform the 2 obligations of the Lessee under the Lease only so long as such Encumbrancer holds title to the leasehold. D. Lessee shall furnish to Lessor a complete copy of the Trust Deed and Note secured thereby, together with the name and address of the holder thereof. E. Upon and immediately after the recording of the Trust Deed, Lessee, at Lessee's expense, shall cause to be recorded in the office of the Recorder of Orange County, California, a written request executed and acknowledged by lessor for a copy of any notice of default and of any notice of sale under the Trust Deed as provided by the statutes of the State of California relating thereto. F. Lessor agrees that it will not terminate this Lease because of any default or breach hereunder on the part of Lessee if the Encumbrancer under such Trust Deed, within ninety (90) days after service of written notice on the Encumbrancer by Lessor of its intention to terminate this Lease for such default or breach, shall: (1) Cure such default or breach if the same can be cured by the payment or expenditure of money provided to be paid under the terms of this Lease; provided, however, that for the purpose of the foregoing, Encumbrancer shall not be required to pay money to cure the bankruptcy or insolvency of Lessee or to satisfy Lessee's obligations under paragraph 12 hereof, "Indemnification," or (2) If such default or breach is not so curable, cause the Trustee under the Trust Deed to commence and thereafter to diligently pursue to completion steps and proceedings for judicial foreclosure, the exercise of the power of sale under and pursuant to the Trust Deed in the manner provided by law, or accept from the Lessee an assignment in lieu of foreclosure; and (3) Keep and perform all of the covenants and conditions of this Lease requiring the payment or expenditure of money by Lessee until such time as said leasehold shall be sold upon foreclosure pursuant to the Trust Deed, be released or reconveyed thereunder, sold upon judicial foreclosure or transferred by Deed in lieu of foreclosure; provided, however, if the holder of the Trust Deed shall fail to refuse to comply with any and all of the conditions of this paragraph, then and thereupon Lessor shall be released from the covenant of forbearance herein contained. 6. USE. The Leased Land shall be used solely for residential purposes and any appurtenant uses associated therewith. Lessee agrees to comply with all laws, regulations and ordinances of Lessor, the County and State affecting the Leased Land and any improvements located thereon. 7. TAXES AND UTILITIES. It is understood by Lessor and Lessee that this Lease may give rise to a possessory interest tax obligation. Lessee shall pay, before delinquent, all utility charges and any general and special taxes, assessments or other governmental charges, if any, which may be levied on the Leased Land, including any improvements located thereon or associated therewith, or any possessory interest therein arising out of or based upon the leasehold interest throughout the term hereof. Satisfactory evidence of such payments shall be made available to Lessor upon demand. Any lien for unpaid utilities, taxes, assessments or charges shall not attach to the leasehold interest but only to improvements located thereon. 8. USE AND MAINTENANCE OF COMMON AREA. Lessee shall have the right to use the streets, beaches, walkways, tennis courts, docks, piers, and common landscaped areas in Beacon Bay 3 which shall be leased to the Beacon Bay Community Association by the City, in consideration of the maintenance thereof by such Association and fair market value rent to be paid by individual lessees. Lessor shall not be obligated to make any repairs, alterations or improvements in or to, or upon or adjoining the Leased Land or any structure or other improvement that may be constructed or installed therein, but Lessee shall, at all times during the terms of this Lease and at its sole cost and expense, keep and maintain all buildings, structures, and other improvements on the Leased Land in good order and repair, and the whole of the Leased Land and all improvements thereto free of weeds and rubbish, and in a clean, sanitary and neat condition. 9. COMMUNITY ASSOCIATION. Lessee agrees to become and during the term of this Lease remain a member in good standing of the Beacon Bay Community Association, and to abide by the Articles of Incorporation, Bylaws and rules and regulations of the Association, now or hereafter existing, and to pay to said Association before delinquency all dues, fees, assessments and other charges from time to time duly levied or assessed in furtherance of the Association's community purpose. 10. COVENANTS, CONDITIONS AND RESTRICTIONS. Lessee agrees to abide and be bound by all covenants, conditions, restrictions and reservations as contained in Exhibit "3," attached hereto and made a part hereof by this reference. Said covenants, conditions and restrictions shall run with the Leased Land and shall be binding on Lessee and Lessee's successors in interest. 11. INDEMNIFICATION. Lessee agrees that he will hold and save Lessor, its officers, agents and employees harmless from any and all claims or demands of any kind or nature whatsoever arising out of, or incident to, the use and occupancy of the Leased Land, and to indemnify Lessor for any cost, liability or expense caused by or arising out of any injury or death of persons or damage to property which may occur upon or about the Leased Land or caused by or arising out of any activities or omission of Lessee, his agents, employees, licensees, and/or invitees, including, without limitation, injury or death of Lessee, his agents, employees, licensees and invitees and damage to his property or Lessee's property; except for any damage or injury or any kind arising out of the negligence of Lessor, its agents or employees. 12. NON-COMPLIANCE AND TERMINATION OF LEASE. Time and each of the terms, covenants and conditions hereof are expressly made the essence of this Lease. If Lessee shall fail to comply with any of the terms, covenants or conditions of this Lease, including the payment of rental herein reserved, at the time and in the amount herein required, and shall fail to remedy such default within sixty (60) days and thereafter comply with each and every term of this Lease, or if a Lessee shall abandon or vacate the Leased Land, Lessor may, at its option, and without further notice or demand, terminate this Lease and enter upon the Leased Land and take possession thereof, and remove any and all persons therefrom with or without process of law. Lessor may elect to terminate this Lease for any event of default or breach hereof or of the covenants, conditions and restrictions contained in Exhibit 113." Should Lessor elect to terminate, it may recover from Lessee all damages incurred by Lessor by reason of such breach, including, without limitation, the cost of recovering the Leased land, and the worth at the time of such termination of the excess, if any, of the amount of unpaid rent and unpaid charges reserved under this Lease over the amount of the rental loss which lessee proves could be reasonably avoided, for the remainder of the term of this Lease. Such amount shall be immediately due and payable from Lessee to Lessor, together with interest at the rate of 10% per annum from the date owing until 4 paid. The remedies of Lessor specified herein are in addition to and cumulative of any remedies provided Lessor by statute, including the remedies provided in California Civil Code Sections 1951.2, et sea. 13. SURRENDER OF POSSESSION UPON EXPIRATION OR TERMINATION. Upon the expiration or termination of this Lease, Lessee agrees to peaceably deliver possession of the Leased Land to Lessor and unconditionally agrees to vacate the Leased Land without contest, legal or otherwise. Lessee further expressly agrees to waive any and all legal rights it may have to contest vacating the Leased Land and further agrees to release Lessor from any and all claims it may have of whatever nature. Lessee further agrees to waive any relocation assistance or any other assistance from Lessor resulting from vacating the Leased Land. Lessee shall have the right prior to and for a period of ninety (90) days after the expiration of this Lease to remove any buildings or improvements appurtenant thereto from the Leased Land, except that all streets, walkways, common area landscaping, docks, piers, and any other installation constructed or installed in the common areas, shall be the property of Lessor. 14. EMINENT DOMAIN. A. Definitions of Terms. The term "total taking" as used in this paragraph means the taking of the entire Leased Land under the power of eminent domain or the taking of so much of said Land as to prevent or substantially impair the use thereof by Lessee for the uses and purposes hereinabove provided. The term "partial taking" means the taking of a portion only of the Leased Land which does not constitute a total taking as defined above. The term "taking" shall include a voluntary conveyance by Lessor to an agency, authority or public utility under threat of a taking under the power of eminent domain in lieu of formal proceedings. The term 'date of taking" shall be the date upon which title to the Leased Land or portion thereof passes to and vests in the condemnor. The term "Leased Land" means the real property belonging to Lessor, together with any and all improvements placed thereon by Lessor or to which lessor has gained title. B. Effect of Taking. If, during the term hereof, there shall be a total taking or partial taking under the power of eminent domain, then the leasehold estate of the Lessee in and to the Leased Land or the portion thereof taken shall cease and terminate, as of the date of taking of said Land. If this Lease is so terminated in whole or in part, all rentals and other charges payable by Lessee to Lessor hereunder and attributable to the Leased Land or portion thereof taken shall be paid by Lessee up to the date of taking by the condemnor, and the parties shall thereupon be released from all further liability in relation thereto. C. Allocation of Award - Total Taking. All compensation and damages awarded for the total taking of the Leased Land and Lessee's leasehold interest therein shall be allocated as follows: (1) The Lessor shall be entitled to an amount equal to the sum of the following: (a) The fair market value of the Leased Land as improved (exclusive of the dwelling and appurtenances to such dwelling) as of the date of taking, discounted by multiplying such fair market value by the factor for the present worth of $1.00 k, at 9% per annum compound interest for the number of years remaining from the date of taking to the date of the expiration of the term of this Lease; and (b) The present worth of rents due during the period from the date of taking to the date of the expiration of the term of this Lease, computed by multiplying the annual rent then payable by the factor for the present worth of $1.00 per annum at 12% per annum compound interest (Inwood Coefficient) for the number of years in such period. (2 ) The Lessee shall be entitled to the amount remaining of the total award after deducting therefrom the sums to be paid to Lessor as hereinafter provided. D. Allocation of Award - Partial Taking. All compensation and damages awarded for the taking of a portion of the Leased Land shall be allocated and divided as follows: (1) The Lessor shall be entitled to an amount equal to the sum of the following: (a) The proportionate reduction of the fair market value of the Leased Land as improved (exclusive of the dwelling and appurtenances to such dwelling) as of the date of taking, discounted by multiplying such proportionate reduction in fair market value by the factor for the present worth of $1.00 at 9% per annum compound interest for the number of years remaining from the date of taking to the date of expiration of the term of this Lease; and (b) The present worth of the amount by which the rent is reduced computed by multiplying the amount by which the annual rent is reduced by the factor for the present worth of $1.00 perm annum at 12% per annum compound interest (Inwood Coefficient) for the number of years remaining from the date of taking to the date of expiration of the term of this Lease. (2) The Lessee shall be entitled to the amount remaining of the total award after deducting therefrom the sums to be paid to Lessor as hereinafter provided. E. Reduction of Rent on Partial Taking. In the event of a partial taking, the rent payable by Lessee hereunder shall be adjusted from the date of taking or to the date of the expiration of the term of this Lease. Such rental adjustment will be made by reducing the basic rental payable by Lessee in the ratio that the fair market rental value of the Leased Land at the date of taking bears to the fair market value of the Leased Land immediately thereafter. 15. ATTORNEYS' FEES. Should either Lessor or Lessee be required to employ counsel to enforce the terms, conditions and covenants of this Lease Agreement, the prevailing party shall recover all reasonable attorneys' fees (and court costs if applicable) incurred therein, whether or not court proceedings were commenced. 16. REMEDIES CUMULATIVE. The rights, powers, elections and remedies of the Lessor contained in this Lease shall be constructed as cumulative and no one of them shall be considered exclusive of the other or exclusive of any rights or remedies allowed by law, and the exercise of one or more rights, powers, elections or remedies shall not impair or be deemed a waiver of Lessor's rights to exercise any other. 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 R be construed as a waiver of any such omission, neglect or default on the part of the Lessor or any acquiescence therein. No waiver of any breach of any of the terms, covenants, agreements, restrictions or conditions of this Lease shall be construed as a waiver of any succeeding breach of the same or of any of the terms, covenants, agreements, restrictions or conditions of this Lease. 18. COMPLIANCE WITH LAWS. Lessee covenants and agrees to comply with all rules, regulations, statutes, ordinances and laws of the State of California, County of Orange, City of Newport Beach, or any other governmental body or agency having lawful jurisdiction over the Leased Land. 19. NOTICES. It is mutually agreed that any notice or notices provided for by this Lease or by law, to be given or served by Lessee, may be given or served by mail, registered or certified, with postage prepaid, on the City of Newport Beach, addressed to the Mayor, City Manager, or City Clerk, 3300 Newport Boulevard, Newport Beach, California 92663, or at such other address as may be hereafter furnished to Lessee in writing. If notice is intended to be served by Lessor on Lessee, it may be served either: A. By delivering a copy to the Lessee personally, or B. If he be absent from the Leased Land by leaving a copy with some person of suitable age and discretion who may be occupying the Leased Land; or C. If no one can be found, then by affixing a copy of the notice in a conspicuous place on the property or also sending a copy through the mail addressed to the Lessee. Such service upon lessor or Lessee shall be deemed complete at the expiration of forty-eight (48) hours from and after the deposit in the United States mail of such notice, demand or communication. 20. HOLDING OVER. This Lease shall terminate and become null and void without further notice upon the expiration of said term. Any holding over shall not constitute a renewal hereof, but the tenancy shall thereafter be on a month-to-month basis and otherwise on the same terms and conditions as herein set forth. 21. MISCELLANEOUS. Inurement. Each and all of the covenants, conditions and agreements herein contained shall, in accordance with the context, inure to the benefit of Lessor and apply to and bind Lessee, his respective heirs, legatees, devisees, executors, administrators, successors, assigns, licensees, permittees, or any person who may come into possession or occupancy of said Leased Land or any part thereof in any manner whatsoever. Nothing in this paragraph shall in any way alter the provisions herein contained against assignment or subletting. 7 IN WITNESS WHEREOF, the parties have caused this Lease to be executed on the date first above written. ATTEST: s4oF�RN1¢ CITY CLERK APPROV AS TO FORM: '�& 0 r��t CITY ATTORN gr/misc/lease.frm CITY OF NEWPORT BEACH, LESSOR By. MAYOR LE SEE: C. KENT FREUNDT 1 LESSEE: BARBARA ASEY FREUNDT EXHIBIT "1" LEGAL DESCRIPTION OF BEACON BAY A parcel of land situated in the Northwest quarter of Section 35, Township 6 South, Range 10 West, S. B. B. & M., Orange County, California, more particularly described as follows, to wit: Beginning at the United States Bulkhead Station No. 200, as shown upon a map entitled "Harbor Lines, Newport Bay Harbor, California," approved May 2, 1936, by the Secretary of War and on file in the office of the United States District Engineer at Los Angeles, California; running thence West along the United States Bulkhead line 147.50 feet to United States Station No. 137; thence North 39048' West along said Bulkhead line 535.53 feet; thence North 23057'30" East 126.34 feet to an angle point in the ordinary high tide line of the Pacific Ocean in Newport Bay, as described in Court Case No. 24026 of the Superior Court of the State of California, in and for the County of Orange; thence South 39048' East along said ordinary high tide line 334.47 feet to the most Westerly corner of that certain parcel of land conveyed to the City of Newport Beach by The Irvine Company, as described in deed recorded September 25, 1929, in Book 306, page 375 of Official Records of Orange County, California; thence North 23057'30" East along the Northwesterly line of said parcel of land 317.57 feet; thence South 71054' East along the Northerly line of said parcel of land 290.24 feet; thence South 85043' East along the Northerly line of said parcel of land, said Northerly line being the Southerly line of Bayside Drive, 606.01 feet; thence South 424.71 feet to a point in the United States Government Bulkhead Line between United States Stations Nos. 101 and 200; thence West along said Bulkhead line 784.25 feet to the point of beginning; containing approximately twelve (12) acres. Said parcel of land is shown on Attachment 2 for identification purposes only and is not to be a part of this document. h CO h J i0-1 0no:»73a'-0i).041/1,Y7'1/41 ; r-- 1 \'i �I"� �;�T tI'-T ��•yl-iI.T -� j;-... � � t m' � i--7- 3 1.O1 G%0d v�//OOIf✓S �'3'nd.S ' J — 1 � �,1.,..,;;..T T��-1tv,...I; IT � 1 t 1I1 111.,••=,;-T 1 : I� .1 CO .••' 1 - to t � •:; •: ' 'II :-: •, III .. 11 , ; � ,� � , .�I .•:111 •0� 06 Y C O O O CU •r IT '% I I j 1 j i t va i vt l .° �• I,t m ; I h CO h J i0-1 0no:»73a'-0i).041/1,Y7'1/41 ; r-- 1 \'i �I"� �;�T tI'-T ��•yl-iI.T -� j;-... � � t m' � i--7- 3 1.O1 G%0d v�//OOIf✓S �'3'nd.S ' J — 1 � CJ :I 1 L' Cl N -0 cf C t� O N m •r Q i0.1 �_'%A� c3il?Y.S'Z0+) ✓(/iii7`v'/'�1 t i rn�t c� I— { T��-1tv,...I; IT v' 1 1 1 : I� 11 1 III CO .••' 1 1 • ••� I I CJ :I 1 L' Cl N -0 cf C t� O N m •r Q i0.1 �_'%A� c3il?Y.S'Z0+) ✓(/iii7`v'/'�1 t i rn�t c� I— { T��-1tv,...I; =- 1 I I i v'• i� IIj v i� I!I l � i t .t I I I t 'j' 1 - :-i'• t � L—Ii..I i ' ' 'II :-: •, III 1 I _ �,NI IY r 0- ¢ o --j -- — — --�-- -fit- 0 ♦ 1-7 1 r --" 1 j i i . 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I -- i 1^ >I 1 a - - Y- 3 N tY ¢ V) N illi I _ 1 l I} 1 1 t l dl I l_–.: L. --*--J .CS S_ M •r O 0• r I cs t a I o �I •- } <" , S_ d- to CO 4- -0 N 5_ a C) C: r6 C) rO (0 _ I 1 w CL Z: J ♦fV• =---' - I--rl J 8 1 1 1 ;• m I t � GV08Y U_7 -L1/7,9 2wds 1 r 1.07 A r f✓�Sp 01 1 - (�3 r] y r ` ♦ _ ( tzz L • �: < •� ' / �O ..�Ct L 4 vi 11 / r 06 1 1 ;• m I t � GV08Y U_7 -L1/7,9 2wds 1 r 1.07 A r f✓�Sp 01 1 - (�3 r] y r ` ♦ _ ( tzz L • �: < •� ' / �O ..�Ct L 4 vi 11 / r EXHIBIT "2" That certain parcel of land.in.the City of Newport Beach, County of Orange, State of California, situated in the northwest quarter of Section 35, Township 6 South, Range 10 West, S. B. B. & M., more particularly described as follows: Beginning at a point, which point bears East 684.25 feet along the United States Bulkhead Line between United States Bulkhead Stations 101 and 200, as shown upon Sheet 1 of a Map of HARBOR LINES', NEWPORT BAY HARBOR, CALIFORNIA, approved by the Secretary of War on May 2, 1936, and North 28.00 feet from United States Bulkhead Station 200 as shown upon said map; thence from said point of beginning North 100.00 feet; thence East 40.00 feet; thence South 100.00 feet; thence West 40.00 feet to the point of beginning. The westerly line of said parcel being also the easterly line of that certain property shown upon a Record of Survey filed in Book 9, Pages 42 and 43 of Record of Surveys in the office of the County Recorder of Orange County, California. Said parcel of land is shown as Lot 1 on Attachment 1; said Attach- ment 1 being a portion of the map of East Side Addition to Beacon Bay -filed in Book 2, Pages 30 and 31 of Official Maps in the Office of the County Recorule^, County of Orange, State of California.