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HomeMy WebLinkAboutC-7352-1 - Beacon Bay, Lot A (Harbor Island Road, 115) - Agreement to Lease 1987AGREEMENT TO LEASE THIS AGREEMENT TO LEASE, made and entered into on the qday of OG oiiR, 1987, by and between the CITY OF NEWPORT BEACH, a chartered municipal corporation, hereinafter "City," and __ e. Y -M km S-videR 111,cK hereinafter "Sublessee." RECITALS A. City holds t it le to and is the owner of certa in harbor frontage and tidelands, together with certain uplands abutting thereon known as Beacon Bay and more particularly de scr ibed in Exh ib it "1 " at tached here to and made a par t hereo f 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 resident ial purposes. D. All of said subleases expire on the same date as the Master Lease, to wit: December 311 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- 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 749 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. 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 4- , 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 pr for to the October 3 1, 1987, but execute th is Agreement -2- after October 31, 1987, and prior to December 31, 1987, the renta)= sum to be used in paragraph 2 hereof and the Base Rental under Paragraph 3 of the Lease, Exhib it "C" a ttached 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 Da to . Sa id d i fference 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. Commencing January 1, 1988 City is under no obligation to enter into this Agreement or a Lease in the form of Exhib it "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 f it, e i ther w ith third part ies 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 Ma 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, dur ing 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 th is Agreement. If Sublessee shall fail to comply with any of the terms, covenants or conditions of this Agreement, including making the payments prov ided for here in at the t ime 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- 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 Land, and to indemnify City for any cost, liability or expense caused by or ar is ing 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 add it ion to termina t ion of this Agreement to Lease= 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 Land, and to indemnify City for any cost, liability or expense caused by or ar is ing 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 any manner whatsoever. IN WITNESS WHEREOF, the parties have caused this Ao ree- ment to Lease to be executed on the date first above written. ATTEST: City Cler APPR ED AS TO FORM: ity Attornbyl -6- Sub 1 sse 5 SNi�E2vtc.r. A.N) Alternate 1 Lot A 17 31 63 Alternate 2 Lot A 17 31 63 Alternate 3 Lot A 17 31 63 Alternate 4 Lot A 17 31 63 SCHEDULE OF FEES EXHIBIT A Lump Sum Payment $ 110,468 $ 64,442 $ 27,390 $ 60,370 Base Rental $ 2,072.92 $ 1,354.17 $ 729.17 $ 1,354.17 and Base Rental $ 2,072.92 $ 1,354.17 $ 729.17 $ 1,354.17 Constant Addit ional and Payment $ 1,104.50 $ 644 .17 $ 297. 50 $ 668.42 Lump Sum Payment $ 110,468 $ 64,442 $ 27,390 $ 60,370 Constant Add it ionaI Payment $ 1,104.50 $ 644.17 $ 297.50 $ 668.42 and Base Rental 2.5% of City approved appraisal divided by 12 2.5% of City appraisal divided by 12 2.5% of City approved appraisal divided by 12 2.5% of City approved appraisal divided by 12 and Base Rental 2.5% of City approved appra isa 1 divided by 12 2.5% of City approved appra isa 1 divided by 12 2.5% of City approved appraisal divided by 12 2.5% of City approved appraisal divided by 12 a AGREEMENT TO LEASE THIS AGREEMENT TO LEASE, made and entered into on the day of , 1987, by and between the CITY OF NE`SPORT BEACH, a chartered municipal corporation, hereinafter "City, it and hereinafter "Sublessee." RECITALS A. City holds t it le to and is the owner of certa in harbor frontage and t idelands, together with certain uplands abutting thereon known as Beacon Bay and more particularly described in Exhibit "I" attached hereto and made a part hereof by this reference. B. Carroll B. Beek, Barton Beek, Joseph ' A> I n Beek, Jr., and Seymour Beek jointly hold a Master Lease to said proper- ty dated January 9. 1950, which blaster Lease expires on December 31, 1987. C. The "Westerly Portion" of the Beacon Bay property has been divided into individual lots and subleased for resident ial 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 - v 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 judgment of City that in entering into this Agreement to Lease in the future, City is acting pur- suant to its proprietary powers. 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 pr for to the Oc tober 3 1, 1987, but execute this Agreement -2- after October 31, 1987, and prior to December 31, 1987) the ren tai° 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 Ren taI . The different Ad jus.ted. Ba se Renta 1 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. 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, either with third parties or prior 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 Sect ion 4 of the Lease Exhibit "C" attached hereto, sisal l ORB V 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. S. The parties agree to execute the Lease, Exhibit "C" hereto, dur ing the month of December, 1987 and concurrent ly 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 th is Agreement. If Sublessee shall fail to comply with any of the terms, covenants or conditions of this Agreement, including making the payment s prov ided for here in a t the t ime and in the amount herein required, and shall fa i 1 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 in to 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- 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 comnenced. 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 Land, and to indemnify City for any cost, liability or expense caused by or ar is ing out of any in jury 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, cond it ion and aU reement 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 add it ion to termination of th is Agreement to Leasee= 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 comnenced. 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 Land, and to indemnify City for any cost, liability or expense caused by or ar is ing out of any in jury 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, cond it ion and aU reement 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 any 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: City Attorney CITY OF NEWPORT BEACH By Mayor -6- Sublessee Alternate 1 Lo t A 17 31 63 Alternate 2 Lot A 17 31 63 Alternate 3 Lot A 17 31 63 Alternate 4 Lot A 17 31 63 SCHEDULE OF FEES EXHIBIT A Lump Sum Payment $ 110,468 $ 64,442 $ 27,390 $ 60,370 Base Rental $ 2,072.92 $ 1,354.17 $ 729.17 $ 1,354.17 and Base Rental $ 2,072.92 $ 1,354.17 $ 729.17 $ 1,354.17 Constant Addit ional and Payment $ 1,104.50 $ 644.17 $ 297.50 $ 668.42 Lump Sum Payment $ 110,468 $ 64,442 $ 27,390 $ 60,370 Constant Add it ionaI Payment. $ 1,104.50 $ 644.17 $ 29 7.50 $ 668.42 and Base Rental 2.5% of City approved appraisal divided by 12 2.5% of City appraisal divided by 12 2.5% of City approved appraisal divided by 12 2.5% of City approved appraisal divided by 12 and Base Rental 2.5% of City approved appraisal divided by 12 2.5% of City approved appraisal divided by 12 2.590 of Ci ty approved appraisal divided by 12 2.5% of City approved appra isa 1 divided by 12