Loading...
HomeMy WebLinkAboutC-7676-4 - Consent to Sublease the Amended and Restated Newport Dunes Entrance Ground Lease (Bayview Landing Open Space - Newport Dunes Entrance)Batch 4595080 Confirmation Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder II I I II III I III II II II IIII II II III NO FEE *$ R 0 0 1 0 8 4 7 0 3 1$ 2019000170619 8:56 am 05121/19 Recording Requested By 9 NCR1 C34 8 and When Recorded Return To: 0.00 0.00 0.00 0.00 21.00 0.00 0.000.000.00 0.00 City of Newport Beach 100 Civic Center Drive P.O. Box 1768 Newport Beach, California 92658-8915 Attn: City Clerk (Exempt From Recording Fees Pursuant to Govemment Code § 27383) (SPACE ABOVE THIS LINE FOR RECORDER'S USE) CITY OF NEWPORT BEACH'S CONSENT TO SUBLEASE THE 'AMENDED AND RESTATED NEWPORT DUNES ENTRANCE GROUND LEASE THIS CONSENT TO SUBLEASE ("Consent") is made and entered into by the City of Newport Beach, a California Municipal corporation and charter City ("City" or "Lessor"), in favor of Waterfront Resort Properties, L.P., a California limited partnership, and Newport Dunes Marina, LLC, a California limited liability company (collectively, "Lessee"), and Newport Dunes Resort and Marina Partnership, a California general partnership ("Sublessee"), which is comprised of Newport Dunes Marina, LLC, a California limited liability company, and Dunes Resort, LP, a California limited partnership. RECITALS A. The City is the owner of certain real property located in the City of Newport Beach, State of California ("Premises") which is more particularly described in that certain Ground Lease dated as of June 1, 1962, a Short - Form Memorandum of which was recorded August 30, 1962 in Book 6233, Page 853 of the Official Records of Orange County, by and between The Irvine Company, a West Virginia corporation, as initial lessor, and Newport Dunes, Inc., a California corporation, as initial lessee, and as previously amended by that certain Amendment No. 1 to Ground Lease dated April 1, 1966, that certain Amendment No. 2 to Ground Lease dated December 1, 1970, that certain Amendment No. 3 to Ground Lease dated March 28, 1984, and recorded April 4, 1984 as Instrument No. 84-139849, that certain Amendment No. 4 to Ground Lease dated February 10, 1989, a Short - Form Memorandum of which was recorded February 17, 1989 as Instrument No. 89-086691 of the Official Records of Orange County, and that certain Amendment No. 5 to Ground Lease dated as of July 14, 2003 and recorded on July 31, 2003 as Instrument No. 20030000920706, and re-recorded on October 14, 2003 as Instrument No. 2003001253678 of the Official Records of Orange County, and which was assigned by the initial lessee to Lessee by that certain Assignment, Assumption, Consent and Release Agreement ("Assignment") dated as of July 28, 2003, and recorded July 31, 2003 as instrument No. 2003000920707, and re-recorded on October 14, 2003 18683338.v4 https:Hgs.secure-recording.com/Batch/Confirmation/4595080 05/21/2019 Recording Requested By and When Recorded Return To: City of Newport Beach 100 Civic Center Drive P.O. Box 1768 Newport Beach, California 92658-8915 Attn: City Clerk (Exempt From Recording Fees Pursuant to Government Code § 27383) (SPACE ABOVE THIS LINE FOR RECORDER'S USE) CITY OF NEWPORT BEACH'S CONSENT TO SUBLEASE THE AMENDED AND RESTATED NEWPORT DUNES ENTRANCE GROUND LEASE THIS CONSENT TO SUBLEASE ("Consent") is made and entered into by the City of Newport Beach, a California Municipal corporation and charter City ("City" or "Lessor"), in favor of Waterfront Resort Properties, L.P., a California limited partnership, and Newport Dunes Marina, LLC, a California limited liability company (collectively, "Lessee"), and Newport Dunes Resort and Marina Partnership, a California general partnership ("Sublessee"), which is comprised of Newport Dunes Marina, LLC, a California limited liability company, and Dunes Resort, LP, a California limited partnership. RECITALS A. The City is the owner of certain real property located in the City of Newport Beach, State of California ("Premises") which is more particularly described in that certain Ground Lease dated as of June 1, 1962, a Short - Form Memorandum of which was recorded August 30, 1962 in Book 6233, Page 853 of the Official Records of Orange County, by and between The Irvine Company, a West Virginia corporation, as initial lessor, and Newport Dunes, Inc., a California corporation, as initial lessee, and as previously amended by that certain Amendment No. 1 to Ground Lease dated April 1, 1966, that certain Amendment No. 2 to Ground Lease dated December 1, 1970, that certain Amendment No. 3 to Ground Lease dated March 28, 1984, and recorded April 4, 1984 as Instrument No. 84-139849, that certain Amendment No. 4 to Ground Lease dated February 10, 1989, a Short - Form Memorandum of which was recorded February 17, 1989 as Instrument No. 89-086691 of the Official Records of Orange County, and that certain Amendment No. 5 to Ground Lease dated as of July 14, 2003 and recorded on July 31, 2003 as Instrument No. 20030000920706, and re-recorded on October 14, 2003 as Instrument No. 2003001253678 of the Official Records of Orange County, and which was assigned by the initial lessee to Lessee by that certain Assignment, Assumption, Consent and Release Agreement ("Assignment") dated as of July 28, 2003, and recorded July 31, 2003 as instrument No. 2003000920707, and re-recorded on October 14, 2003 18683338.v4 as Instrument No. 2003001253679, in the Official Records of Orange County (as so amended and assigned, "Ground Lease"), B. The City is the current lessor under the Ground Lease, as a result of that certain Offer of Dedication, accepted by the City on April 7, 2006, subject to the Ground Lease, and recorded on May 1, 2006 as Instrument No. 2006000290856 of the Official Records of Orange County. Lessee current leases the Premises from the Lessor under the Ground Lease; C. Lessee desires to sublease the Premises to Sublessee, which requires the prior consent of the Lessor; and D. Lessee has submitted all documentation concerning the Sublessee required under Ground Lease Paragraph 17 to the City, as revised by Amendment No. 4. The City has reviewed the submitted information and completed its due diligence regarding the proposed sublease. AGREEMENT NOW, THEREFORE, City hereby consents to Lessee's sublease of the Premises to the Sublessee, subject to the following terms and conditions: Section 1: This Consent shall not constitute a waiver of any of the restrictions of Ground Lease Paragraph 17 as revised by Amendment No. 4, or any other provision of the Ground Lease, and the same restrictions shall apply to each successive assignment or subletting, if any. Section 2: This Consent shall not affect the continuing primary liability of Lessee under the Ground Lease (which shall be joint and several with the Sublessee), or relieve Lessee of any of its obligations under the Ground Lease without an express written release being given by Lessor. Section 3: This Consent shall not be effective until the Lessee and Sublessee execute, acknowledge and deliver to Lessor a signed copy of this Consent. Sublessee agrees under this Consent to comply with all of the obligations of the Ground Lease on the part of Lessee to be performed or observed and whereby the Sublessee agrees that the provisions contained in the Ground Lease shall, notwithstanding such subletting, continue to be binding upon it with respect to all future assignments and sublettings. Lessee and Sublessee further agree that the Lessor may collect any rent due, if any, under the Ground Lease directly from the Sublessee or Assignee. Collection of rent directly from an assignee or sublessee shall not constitute a consent or a waiver of the necessity of consent to such assignment or subletting, nor shall such collection constitute a recognition of such assignee or sublessee as the Lessee under the Ground Lease or a release of Lessee from the performance of all of its obligations under the Ground Lease. 2 18683338.v4 Section 4: Paragraph 17(e) of the Ground Lease provides that: "Lessee acknowledges that Lessee is not entitled to any economic value of the Leased Property represented by the difference between the rent payable hereunder and the fair market rental value of the Leased Property and, accordingly, Lessee agrees that any amounts paid by the assignee or sublessee, however described, in excess of the rent payable by Lessee hereunder (or, in the case of a sublease of a portion of the Leased Property, in excess of the rent reasonably allocable to such portion), shall be the property of Lessor and such amounts shall be payable directly to Lessor by the assignee or sublessee. At Lessor's request, a written agreement shall be entered into between Lessee, Lessor and the proposed assignee or sublessee confirming the requirements of this Paragraph 17(e)." Section 5: Nothing in this Consent shall be construed to enlarge, restrict, or otherwise modify the terms of the Ground Lease, or constitute a waiver or release by Lessor, Lessee, or Sublessee of any liabilities, duties, or obligations imposed upon any of them by the terms of the Ground Lease. In the event of any conflict or ambiguity between the provisions of this Consent and the Ground Lease, the provisions in the Ground Lease shall control. Section 6: This Consent is being executed by Lessor, Lessee, and Sublessee and shall be binding upon each of them, and their respective successors and assigns, for the uses and for the purposes above set forth and referred to, and shall be effective as of the date hereof. Each party represents that the person signing on behalf of such party has the power to bind the party under this Consent. Section 7: This Consent shall be governed by and enforced in accordance with the laws of the State of California, without regard to the conflict of laws principles thereof. Section 8: In the event of any action or legal dispute arising under this Consent, the prevailing party shall not be entitled to attorneys' fees. Section 9: This Consent may be executed in any number of counterparts, and each such counterpart hereof shall be deemed to be an original instrument, but all such counterparts together shall constitute but one agreement. Facsimile and e- mailed signatures shall be treated as if they were originals. [SIGNATURES ON FOLLOWING PAGE] 3 18683338.x4 IN WITNESS WHEREOF, the parties have caused this Consent to be executed on the dates written below. APPROVED AS TO FORM: THXnC. RNEY'S OF By: City Attorney Date: ` 13 //l ATTEST: City Clerkp Date: 6-- Z-0 __/ q LESSOR: CITY OF NEWPORT BEACH, a California municipal corporation By: Grao,*. Leung 4-11 Ci anager Date.- ATTEST: ate: [SIGNATURES CONTINUE ON FOLLOWING PAGE] 4 18683338.v4 LESSEE: SUBLESSEE: Waterfront Resort Properties L.P. (fka Newport Dunes Resort and Marina Tahoe Shores, Ltd.), a California limited Partnership, a California general partnership partnership By: Dunes Resort, LP, a California By: De Anza Corporation, a California limited partnership corporation, its General Partner By: XL-pp Michael Gelfand, res de Date-.— and ate: and Newport Dunes Marina, LLC, a California limited liability company By: Alta Group GP, LLC, a California limited liability company, a Managen in Barry Cayton,'Man'ger Date: By: Dunes Resort, LLC, a California limited liability company, its (General artner �A By: Michael Gelfan ;9na Date: qi 1 i, t C By: Newport Dunes Marina, LLC, a California limited liability company By: Alta Group GP, LLC, a California limited liability comp n , a Manager Barry Cayton, Date: [END OF SIGNATURES] 5 18683338.v4 ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) County of 5no 'DkCG u ) On Y>7y-A to i`ZC�\�1 , before me, S f,, 9-(-\ Ga CMT -V -.o &N6 e-1 (insert name of notar)) Notary Public, personally appeared M t CR n, E L r, E L FA N n who proved to me on the basis of satisfactory evidence to be the person($,) whose name(s) is/am subscribed to the within instrument and acknowledged to me that he/may executed the same in his/laerftl'reir authorized ca.pacity(ies- , and that by his/her/ifieir signature(s.) on the instrument the perso*), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. SARs PONIAI.EZ CASTRO Notary Public • California Z San Diego County Z ;i�:�Z Commission #t 2167473 Signature My Comm. Expires Oct 10, 2020 (signature of n lic) (Seal) 6 18683338.v4 ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) County of LOS AA16-ecES ) nqlrl�IAOn Jet 20 / , before me, 12� Cl+ insert name of notary) Notary Public_ personally anneared Qo . who proved to me on the basis of satisfactory evidence to /be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand Signature_ ( of notary pu seal. rAO CORINA COLA Notary Public - California Los Angeles County Commission x 2210853 My Comm. Expires Sep 17, 2021 (Seal) 7 18683338.v4 CALIFORNIA-• •WLEDGMENT CIVIL CODE § 1189 S. caY_ei.C..� ..� _sa _a _�.`�.�` _� _s�C_sa._�C/.�. _cam _.� _cam _sem _�C_ca _� _� _ate _z� _� _.� _c�•_�C_T•_.� �•.s�C,.a•_.�C.sa•�..-�.'.•_s� s�...s� _� _� _� _a _sem �. z� _. A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On 031'1 i� .. 1(7{ before me, J Nf11�j 1. Date Here Insert Name and Title of the Officer personally appeared �.9 /-� C E. U' /� C7 Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/Ahey executed the same in Ne/her/their authorized capacity(ies}, and that by 4ius/-her/their signatureM on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Jennifer Ann Mulvey COMM #2214138 a wQ Notary Public California a '� ORANGE COUNTY _ My CommissionFxpiresOct.12,2021 Place Notary Seal Above I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hdho and official seal. Signature OPTIONAL Signature o Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: 4"✓ "✓ •.tv •ci -�4'dAy L 6'�6'� '� '�44� '� 'd.W •�' "y„ .� "'� "✓ .a, "+� .�6v v.-•✓ 'v -✓ •av '�4'd "�4•d •ei •-4•.r •rr •ed.',.r -✓ 'b 'd6� •�.