HomeMy WebLinkAboutC-7408-1 - Beacon Bay, 3 - Agreement to Lease 1981AGREEMENT TO LEASE
THIS AGREEMENT TO LEASE, made and entered into on
the 2_lp�-day of cf�/1L'F_ , 1981, by and between the CITY OF NEWPORT
BEACH, a chartered municipal corporation, hereinafter "City,"
and Ra < l 4-: 6--EiZ4A,, , 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 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
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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 "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 9 s � S0 (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.
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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., 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 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, either 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
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Section 4 of the Lease Exhibit "C" attached hereto, 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 acceptance, 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 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.
In addition to termination of this Agreement to
Lease, City may recover from Sublessee all damages incurred by
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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.
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
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.
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, permittees, or any person who may come into
possession or occupancy of the Leased Land, or any part thereof
in anv manner whatsoever.
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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:
� s
City Attorney
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CITY OF NEWPORT BEACH
Sublessee