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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 ''-...s�"sa,''a","ti'-�a�9".,.5*,�5'Y*t.'�?'".'iww 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" '����i '��.,rs�^ ars,�'��. 'rt�,°"'`:,v�Y'�.Jf� 7.��sC '�xr �m it '� ✓.� +u i++'� , � z, : �� t r � r 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"