HomeMy WebLinkAboutC-8514-2 - Beacon Bay, 64 - Consent to Assignment of Agreement to Lease 1984WHEN RECORDED MAIL TO:
Imperial Savings Association
3366 Via Lief
P.O. Box 1397
Newport Beach, California 92663
Attention: Phyllis Ritter
Space above line for Recorder's use only
CONSENT TO ASSIGNMENT
OF
AGREEMENT TO LEASE
THIS CONSENT is given this d day of 5u w e__ , 1984
by the CITY OF NEWPORT BEACH, a Chartered Municipal Corporation
(the "CITY") on the following terms and conditions:
RECITALS
A. The City entered into an Agreement to Lease dated
JUNE 19 , 1984 (the "Agreement"), with JOHN M. WALZ and
BARBARA C. WALZ (hereinafter the "Sublessee") covering certain
real property in the City of Newport Beach more particularly
described in Exhibit "A" attached hereto and made a part hereof
(hereinafter the "Property").
B. Sublessee is
Carroll B. Beek and others
the City covering the area
1950 (the "Master Lease").
dated July 8, 1944 and was
Book 1269, Page 253 of the
California.
currently subleasing the Property from
under that certain Master Lease with
known as Beacon Bay dated January 9,
Said sublease (the "Sublease") is
recorded on September`T5, 1944, in
Official Records of Orange County,
C. The Sublease expires on December 31, 1987. Pursuant
to the Agreement, the City has agreed that, provided Sublessee
does not default under the Agreement, it will lease the Property
directly to Sublessee for a term of twenty-five (25) years which
began in June, 1981, and will end on July 1, 2006, upon expiration
of the Sublease. Said direct lease is to be in the form of
Exhibit C to the Agreement (the "Direct Lease").
D. Sublessee has applied to Imperial Savings Associa-
tion, a California corporation ("Lender"), for a Two Hundred
Fifty Thousand Dollar ($250,000) first trust deed loan to be
secured by Sublessee's interest in the Property. Sublessee has
also agreed to assign Sublessee's rights under the Agreement to
Lender. As a condition to making such loan, Lender has required
that the City (notwithstanding Paragraph 5 of the Agreement)
consent to such assignment of the Agreement according to the
terms hereof.
CONSENT
NOW, THEREFORE, the City does hereby consent to the
assignment to Lender of Sublessee's rights under the Agreement
and further agrees in favor of Lender as follows:
1. Should Sublessee default under the loan described
above and Lender foreclose on the subleasehold interest under
the Sublease, the City agrees that it shall confirm in writing
to Lender of any other purchaser of such subleasehold interest at
the foreclosure sale that Lender or such other purchaser has the
rights of Sublessee under the Agreement and is entitled to enter
into a Direct Lease with the City pursuant to the terms and con-
ditions of the Agreement. The foregoing agreement of the City
shall apply with equal force if the subleasehold interest under
the Sublease is assigned to Lender in lieu of foreclosure. The
amounts to be paid to the City pursuant to the Agreement shall be
adjusted pursuant to Section 5 of the Agreement upon the earlier
of (a) any transfer by Lender of the subleasehold interest under
the Sublease and the rights of Sublessee under the Agreement, or
(b) a date six (6) months after acquisition by Lender of the
subleasehold interest under the Sublease by foreclosure or Deed
or other assignment in lieu of foreclosure.
2. Said assignment of the Agreement to Lender and all
rights acquired thereunder shall be subject to each and all of
the covenants, conditions and restrictions set forth in the
Agreement and to all rights and interest of the City thereunder,
except as.herein otherwise provided.
3. In the event of any conflict between the provisions
of the Agreement and the provisions of any such assignment to
Lender, the provisions of the Agreement shall control.
4. Lender shall be liable to perform the obligations o
ub_lessee under the Agreement only so long as Lender holds title
o the subleasehold interest under_ the Sublease.
5. The City agrees that it will not terminate the
Agreement because of any default or breach thereunder on the part
of Sublessee if Lender, within sixty (60) days after service of
written notice on Lender by the City of its intention to ter-
minate the Agreement for such default or breach, shall:
(a) 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 the
Agreement; or
(b) If such default or breach -is not so -curable,
cause the Trustee under the Trust Deed securing
Lender's loan to Sublessee to commence and
thereafter to diligently pursue to completion
steps and proceedings for either (i) judicial
foreclosure or (2) the exercise of the power of
sale under and pursuant to the Deed of Trust in
the manner provided by law or (3) accept from the
Sublessee a Deed or other assignment in lieu of
foreclosure; and
(c) Keep and perform all of the covenants and
conditions of the Agreement requiring the payment
or expenditure of money by Sublessee until such
time as said subleasehold shall be sold upon
foreclosure pursuant to said Trust Deed, be
released or reconveyed thereunder, sold upon
judicial foreclosure or transferred by Deed or
other assignment in lieu of foreclosure; pro-
vided, however, if Lender shall fail or refuse to
comply with any and all of the conditions of this
paragraph, then and thereupon the City shall be
released from the covenant of forebearance herein
contained.
6. The prior written consent of the City shall not be
required for a further assignment by Lender of its rights under
the Agreement in connection with a transfer of the subleasehold
interest under the Sublease at foreclosure sale under Lender's
Trust Deed, under judicial foreclosure or by a Deed or other
assignment in lieu of foreclosure or to any subsequent assignment
by Lender if Lender is the purchaser at such foreclosure sale;
2
provided that in either such event Lender forthwith gives notice
to the City in writing of any such assignment setting forth the
name and address of the assignee, the effective date of such
assignment and the express agreement of the assignee assuming and
agreeing to perform all of the obligations of the Agreement
together with a copy of the document by which such assignment was
made.
Any assignee under the above shall be liable to perform
the obligations of Sublessee under the Agreement only so long as
such assignee holds title to the subleasehold interest under the
Sublease. Any subsequent assignment of the Agreement shall be
made subject to the conditions relating thereto as set forth in
the Agreement.
7. The City hereby represents and warrants to Lender
that there exists no default under the Agreement or the Master
Lease by any party thereto. Without limiting the generality of
the foregoing sentence, there is no defense or offset to the
enforcement of any of the rights of Sublessee under the Agreement
and Sublessee is not in default of any of Sublessee's monetary
obligations thereunder.
8. All notices and other communications required or
permitted under this Consent to Assignment shall be in writing,
served personally or mailed by certified or registered United
States mail to the party to be charged with receipt thereof.
Notices and other communications served by mail shall be deemed
given hereunder seventy-two (72) hours after deposit of such
notice or communication in a United States post office as cer-
tified or registered mail with postage prepaid and duly addressed
to the party to whom such notice or communication is to be given
as follows:
"LENDER"
"THE CITY"
Imperial Savings Association City of Newport Beach
9596 Chesapeake Drive 3300 Newport Boulevard
P.O. Box 23727 Newport Beach, CA 92663
San Diego, CA 92123 ATTN:' Mayor, Clty Manager or
ATTN: Loan Service City Clerk
Any such party may change said party's address for purposes of
this Section 8 by giving to the party intended to be bound
hereby, in the manner provided herein, a written notice of such
change.
9. The provisions hereof shall be binding upon and
inure to the benefit of Lender and its transferee(s).
IN WITNESS WHEREOF, the City has executed this Consent
as of the day and year first above written.
CITY OF NEWPORT BEACH
By
City Manager
ATTEST:
l 1 �
City Clerk
App, ved as to orm and content.
C Vty Attorr Trey
3
SICONSENTbc
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LEGAL DESCRIPTION
Parcel 3, East Addition to Beacon Bay Subdivision, described as
follows:
That certain Parcel of land situated in the Northwest quarter of
Section thirty-five, Township Six South, Range Ten West, S. B. B. be
Vii., 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 2nd,
1936, and North 160.00 feet from said Bulkhead Line; thence from the
said point of beginning North 44.11 feet; thence East 95.00 feet;
thence South 44.11 feet; thence West 95.00 feet to the point of
beginning, containing 4190.45 feet, more or less.
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.
The use of certain Parcels and the right of ingress and egress is
granted Lessee, over and upon certain designated Parcels as shown upon
aforementioned Record of Survey as Lots A, B, C, D, E, F, G, H, I and
J according to such uses as outlined in Lease of this property,
addition thereto, similar uses are granted over and upon the following
described Parcels:
Beginning at the point in said U.S. Bulkhead Line 784.25 feet East of
U.S. Station 200; thence North 424.71 feet to the South line of the 60
foot County Road; thence North 85° 43' West 100.28 feet to the East
line of aforementioned Lot G; thence South 10.03 feet; thence South
85° 43' East to an intersection with a line 5 feet West of and
parallel to the first course above mentioned; thence South along said
line to an intersection with a line 160.00 feet North of and parallel
to the U.S. Bulkhead Line; thence West along said line 95.00 feet to
the East line of aforesaid Lot G; thence South 32.00 feet; thence East
80.00 feet; thence South 100.00 feet; thence West 80.00 feet; thence
South 28.00 feet; thence East along the U.S. Bulkhead Line 100.00 feet
to
lessee point of beginning, containing 10,276.90 square feet, more or
EXHIBIT "A"
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STATE OF CALIFORNIA)
) SS
COUNTY OF ORANGE )
On ` Aa 19 $ y , before me, the undersigned, a
Notary Public in and for saad County and State, personally
appeared
personally known to me to be t City Manager of the Municipal
Corporation that executed the within instrument and acknowledged
that such Municipal Corporation executed the same. WITNESS my
hand and official seal.
,a LEN
Name (Typed or Printed)
7(2I EN �m
-77) THIS FORM FURNISHED BY ATICORCOM.ANY
PIA SICK AND AC I® -EDGE
�' SINSTRUMENT BEFORE A
NOTARY 3 PUBLIC• BE SURF THE
NOTARY SEAL IS LEGIBLE,
SIGN YOUR NAME EXACTLY AS
IT IS TYPEWRITTEN ON,
DOCUMENT.
A
SEAL
OFFICIAL Silts
DOROTHY L PALEN
NOTARY PUBLIC • CALIFORNIA
PRINCIPAL OFFICE IN
ORANGE COUNTY
MY COMMssion Expires AW 5, 1985
WHEN RECORDED MAIL TO:
Imperial Savings Association
3366 Via Lido
P.O. Box 1397
Newport Beach, California 92663
Attention: Phyllis Ritter
Space above line for Recorder's use only
CONSENT TO ASSIGNMENT
OF
AGREEMENT TO LEASE
THIS CONSENT is given this day of , 1984
by the CITY OF NEWPORT BEACH, a Chartered Municipal Corporation
(the "CITY") on the following terms and conditions:
RECITALS
A. The City entered into an Agreement to Lease dated
JUNE 19 , 1984 (the "Agreement"), with JOHN M. WALZ and
BARBARA C. WALZ (hereinafter the "Sublessee") covering certain -
real property in the City of Newport Beach more particularly
described in Exhibit "A" attached hereto and made a part hereof
(hereinafter the "Property").
B. Sublessee is
Carroll B. Beek and others
the City covering the area
1950 (the "Master Lease").
dated July 8, 1944 and was
Book 1269, Page 253 of the
California.
currently subleasing the Property from
under that certain Master Lease with
known as Beacon Bay dated January 9,
Said sublease (the "Sublease") is
recorded on"September 25,--1944, in
Official Records of Orange County,
C. The Sublease expires on December 31, 1987. Pursuant
to the Agreement, the City has agreed that, provided Sublessee
does not default under the Agreement, it will lease the Property
directly to Sublessee for a term of twenty-five (25) years which
began in June, 1981, and will end on July 1, 2006, upon expiration
of the Sublease. Said direct lease is to be in the form of
Exhibit C to the Agreement (the "Direct Lease").
D. Sublessee has applied to Imperial Savings Associa-
tion, a California corporation ("Lender"), for a Two Hundred
Fifty Thousand Dollar ($250,000) first trust deed loan to be
secured by Sublessee's interest in the Property. Sublessee has
also agreed to assign Sublessee's rights under the Agreement to
Lender. As a condition to making such loan, Lender has required
that the City (notwithstanding Paragraph 5 of the Agreement)
consent to such assignment of the Agreement according to the
terms hereof.
CONSENT
NOW, THEREFORE, the City does hereby consent to the
assignment to Lender of Sublessee's rights under the Agreement
and further agrees in favor of Lender as follows:
1. Should Sublessee default under the loan described
above and Lender foreclose on the subleasehold interest under
the Sublease, the City agrees that it shall confirm in writing
to Lender of any other purchaser of such subleasehold interest at
the foreclosure sale that Lender or such other purchaser has the
2. The rights granted to Imperial under the terms of
Paragraph 1, shall include, but not be limited to, the right to
receive notice of any default, the right to cure any default and
the right to enter into a Direct Lease with the City pursuant to
the terms and conditions of the Agreement.
3. Said assignment of the Agreement to Imperial and all
rights acquired thereunder shall be subject to each and all of
the covenants, conditions and restrictions set forth in the
Agreement and to all rights and interest of the City thereunder,
except as herein otherwise provided.
4. Imperial shall be liable to perform the obligations of
Walz under the Agreement -only so long as Imperial holds title to
the subleasehold interest under the Sublease.
5. The prior written consent of Walz and/or the
City shall not be required for a further assignment by Imperial
of its rights under the Agreement in connection with a transfer
of the subleasehold interest under the Sublease at foreclosure
sale under Imperial's Trust Deed, under judicial foreclosure or
by a Deed or other assignment in lieu of foreclosure or to any
subsequent assignment by Imperial if Imperial is the purchaser at
such foreclosure sale.
Any assignee under the above shall be liable to perform
the obligations of Walz under the Agreement only so long as
such assignee holds title to the subleasehold interest under the
Sublease. Any subsequent assignment of the Agreement shall be
made subject to the conditions relating thereto as set forth in
the Agreement.
6. Walz agrees to notify Imperial in writing of any
proposed changes, modifications or amendments to the Agreement or
Direct Lease. In addition, Walz agrees to send to Imperial
copies of all communications Walz receives from the City with
regard to the Agreement or Direct Lease.
7. All notices and other communications required or
permitted under this Consent to Assignment shall be in writing,
served personally or mailed by certified or registered United
States mail to the party to be charged with receipt thereof.
Notices and other communications served by mail shall be deemed
given hereunder seventy-two (72) hours after deposit of such
notice or communication in a United States post office as cer-
tified or registered mail with postage prepaid and duly addressed
to the party to whom such notice or communication is to be given
as follows:
"IMPERIAL"
"WALZ"
Imperial Savings Association 64 Beacon Bay
9596 Chesapeake Drive Newport Beach, California 92660
P.O. Box 23727
San Diego, CA 92123
ATTN: Loan Service
Any such party may change said party's address for purposes of
this Section 8 by giving to the party intended to be bound
hereby, in the manner provided herein, a written notice of such
change.
7
9. The provisions hereof shall be binding upon and
inure to the benefit of Imperial and Walz and their
transferee(s), assign (s) and heir(s).
DATED:
State of California )
SS e )
County of Orange
On 6-19-84
NEWPORT BEACH, CALIFORNIA 92662
000
--
Barbara C. Walz
64 BEACON BAY
(Address)
NEWPORT BEACH, CALIFORNIA 92662
before me, the undersigned,
a Notary
SEAL
Public in and for said County
and State,
personally appeared John M.
Walz and
Barbara C. Walz personally
known to me
(or proved to me on the basis
of satis-
factoryevidence to be the
)
persons whose
�: „��r
OFFICIAL. SEAL
names are subscribed to the
ment and acknowledged that
within instru-
they
m q
N PERSONS
NOTARYPUBLtC- CALIFORNIA
executed
..
GRANGE CCUNIY
the same. WITNESS my hand
and official
`"`°°"'
?0-v COMM. expires FEB 22, 1987
seal.
j--�
z/ ._
N. Persons
Name(Typed or Printed)
3
LEGAL DESCRIPTION
Parcel 3, East Addition to Beacon Bay Subdivision, described as
follows:
That certain Parcel of land situated in the Northwest quarter of
Section thirty-five, Township Six South, Range Ten West, S. B. B. &
VI., 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 2nd,
1936, and North 160.00 feet from said Bulkhead Line; thence from the
said point of beginning North 44.11 feet; thence East 95.00 feet;
thence South 44.11 feet; thence West 95.00 feet to the point of
beginning, containing 4190.45 feet, more or less.
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.
The use of certain Parcels and the right of ingress and egress is
granted Lessee, over and upon certain designated Parcels as shown upon
aforementioned Record of Survey as Lots A, B, C, D, E, F, G, H, I and
J according to such uses as outlined in Lease of this property, and in
addition thereto, similar uses are granted over and upon the following
described Parcels:
Beginning at the point in said U.S. Bulkhead Line 784.25 feet East of
U.S. Station 200; thence North 424.71 feet to the South line of the 60
foot County Road; thence North 850 43' West 100.28 feet to the East
line of aforementioned Lot G; thence South 10.03 feet; thence South
85° 43' East to an intersection with a Iine 5 feet West of and
parallel to the firstcourse above mentioned; thence South along said
line to an intersection with a line 160.00 feet North of and parallel
to the U.S. Bulkhead Line; thence West along said line 95.00 feet to
the East line of aforesaid Lot G; thence South 32.00 feet; thence East
80.00 feet; thence South 100.00 feet; thence West 80.00 feet; thence
South 28.00 feet; thence East along the U.S. Bulkhead Line 100.00 feet
to the point of beginning, containing 10,276.90 square feet, more or
less.
EXHIBIT "A"