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HomeMy WebLinkAboutC-7410-14 - Beacon Bay, 1 - First Amendment to Lease Agreement 2005RECORDING REQUESTED BY - EQUITY TITLE COMPANY RECORDING REQUESTED BY: AND WHEN RECORDED MAIL TO: Attn:City Manager's Office City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92658 This Document as electronically recorded by .quity Title B Recorded in Official Records, Orange County Tom Daly, Clerk -Recorder 111111111111111111111111111111111111111111111111111111111111111 27.00 2005000321383 12:04pm 04/27/05 113 32 A17 8 0.00 0.00 0.00 0.00 21.00 0.00 0.00 0.00 ACCOMMODATION Space above this line for Recorder's use This document delivered to recorder as an accommodation only at the express request of the parties here to. It has not been examined as to FIRST AMENDMENT TO LEASE AGREEMENT its effect or validity. THIS FIRST AMENDMENT TO LEASE AGREEMENT (this "First Amendment") is entered into as of this �� hday of April, 2005 between THE CITY OF NEWPORT BEACH, a chartered municipal corporation ("Lessor" or "City") and NEWPORT GATEHOUSE LLC, a California limited liability company ("Lessee"). e� i f� O e.) RECITALS Unrecorded A. City and Lessee entered into that certairvLease dated even herewith (the "Lease Agreement"), in which City agreed to lease to Lessee and Lessee agreed to lease from City those certain premises generally described as Beacon Bay Lot 1 in the City of Newport Beach, County of Orange, State of California, with the street address of 1 Beacon Bay (the "Leased Premises"). B. WHEREAS, the City may withhold consent to transfer of the Leased Premises to Lessee under that certain Lease Agreement between the City and Lessee's predecessor in interest dated July 1, 1994, since Lessee is not a qualified Lessee under the predecessor lease or under the current form of the Lease Agreement. Lessee c onsents t o this F irst A mendment i n o rder t o i nduce c onsent from t he City and acknowledges that the City would reasonably disapprove the transfer of the Leased Premises and the Lease Agreement in the event the parties did not enter into this First Amendment. C. WHEREAS, the City and Lessee wish to clarify and amend the Lease Agreement due to the fact that the Lessee is not a natural person or a permitted entity set forth in the Lease Agreement. City has found and Lessee agrees that the fact that Lessee is not a "Person" under the Lease Agreement will cause confusion and uncertainty under the Lease Agreement. Lessor and Lessee wish to clarify and amend the Lease Agreement to protect both their interests. FIRST AMENDED TO LEASE AGREEMENT NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained, the parties hereto hereby agree that the Lease Agreement shall be amended as follows: 1. The following sentence shall be added to Section 3.A.11: If the Lessee is a partnership, limited liability company, corporation, or any other entity which is not a "Person" as defined by the Lease Agreement, for purposes hereof, any of the following shall constitute a Change of Control of the Lessee and any Change of Control of Lessee shall constitute a voluntary assignment and Transfer and shall be subject to the provisions of Sections 3 and 4 hereunder: (a) If Lessee is a partnership or limited liability company: A change in ownership effected voluntarily, involuntarily, or by operation of law, directly or indirectly of more than fifty percent (50%) of the partners or members or more than fifty percent (50%) of the partnership or membership interests in the aggregate since the most recent previous Transfer; or The dissolution of the partnership or limited liability company without its immediate reconstitution; (b) If Lessee is a corporation: The direct or indirect sale, assignment or other transfer of more than an aggregate of fifty percent (50%) of the shares of Lessee in the aggregate since the most recent previous Transfer; or The dissolution, merger, consolidation, or other reorganization of Lessee. Any assignment, sale, encumbrance, pledge, sublease or other transfer without Lessor's prior written consent which constitutes a Change of Control shall be voidable at Lessor's election and shall constitute an event of default under this Lease Agreement. No consent to an assignment, encumbrance, or sublease shall constitute a waiver of any provision of this Paragraphs 3 or 4 or consent to any future Transfer. 2. The following shall be added to Section 3.B.3: (i) If the Lessee is not a "Person" as defined by the Lease Agreement, transfer(s) of interest in Lessee to any one Person, or Persons, which in the aggregate equal less than fifty percent (50%) of the interest of Lessee, or such transfers that do not transfer control or management of Lessee. 3. The following shall be added as Section 4.E: If Lessee i s n of a" Person" a s d efined b y t he L ease A greement, L essee s hall provide Certification to the City by January 31St of each year that no Change of Control (as defined above in Section 1 of this First Amendment) occurred in the prior year. Such Certification shall be signed under penalty of perjury and shall be executed by the authorized officer, or managing member of the Lessee. The -2- failure to deliver a Certification shall be deemed an event of default, subject to cure under Section 14(A)(3). Lessee shall provide to Lessor, in a separate document, the names of all Person(s) having ownership interest in Lessee at lease inception and if a Change of Control in Lessee occurs, Lessee agrees to provide the change in names of those Person(s) having ownership interest in the Lessee. Lessor acknowledges and Lessee represents that Lessee has placed the Lease in a name of a separate legal entity for reasons of privacy and confidentiality. Lessor agrees that disclosure of the names of any Person(s) holding an ownership interest in Lessee is not intended to be a public record and shall be kept confidential to the extent permitted by l aw a nd shall be used by Lessor only for the purpose of determining whether the Lease has been Transferred and to the extent necessary for administration of the Lease Agreement. 4. In the event Lessee fails to disclose any Transfer prior to its occurrence, or the Person(s) holding ownership interest in Lessee described under Sections 1 and 3 of this First Amendment , Lessee acknowledges that Lessor will incur costs and expenses not contemplated by the parties, the exact amount of which is extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges and will require Lessor to provide additional City services. Accordingly, in such event, Lessee shall pay Lessor a fee of FIVE THOUSAND DOLLARS ($5,000.00) and shall reimburse Lessor for all costs and expenses incurred to third parties, including attorneys' fees relating to such breach, whether or not a default is declared or a suit is filed. Landlord and Tenant agree that this charge represents a reasonable estimate of such costs and expenses and is fair compensation to Landlord for its additional expenses suffered by such failure by Tenant. In addition, upon the recalculation of the rent effective as of the date of the Transfer, the late charges payable under Section 3(B)(5) of the Lease Agreement shall be applicable to the difference between the rent paid by the Lessee prior to the adjustment and the rent payable by the Tenant following the readjustment of the rent pursuant to Sections 3 and 4. Notwithstanding the foregoing, regardless of the payment of any of such late charges, Lessor shall have all rights and remedies available to Lessor based upon such action as a breach of the Lease Agreement, including the right to terminate the Lease Agreement. 5. Each individual executing this Amendment on behalf of Lessee represents that he or she is duly authorized to execute and deliver this Amendment on behalf of the Lessee and agrees to deliver evidence of his or her authority to Lessor upon request by Lessor. 6. This First Amendment and any enforcement of the agreements, acknowledgments and representations of the parties as set forth above shall be governed by and construed in accordance with the laws of the State of California. 7. If this First Amendment is executed in counterparts, each counterpart shall be deemed an original. -3- 8. Except as otherwise provided in this First Amendment, the Lease Agreement shall continue in full force and effect. If there are any inconsistencies between this First Amendment and the Lease Agreement this First Amendment shall be the controlling document. Covenants, conditions and restrictions set forth in this Amendment shall run with the Leased Premises and shall be binding on Lessee and Lessee's successors in interest. LESSEE UNDERSTANDS THAT TRANSFERS OF INTEREST IN THE LESSEE, NOT EXEMPT UNDER THIS FIRST AMENDMENT, CAN CREATE A "TRANSFER" OF THE LEASED PREMISES UNDER THE LEASE AGREEMENT AND THEREFORE WILL SUBJECT LESSEE TO RENT ADJUSTMENTS AND CONDITIONS PRECEDENT TO TRANSFER UNDER THE LEASE AGREEMENT. IN WITNESS WHEREOF, the parties hereto have caused their duly authorized representatives to execute this Amendment on the date first hereinabove set forth. LESSOR: THE CITY OF NEWPORT BEACH, a chartered municipal corporation By: Name: Home Bludau Its: (,; r)z rrgager LESSEE: NEWPORT GATEHOUSE LLC, a CalifoMia limited liab lity ompany By: _�e—� — Name: c v- 4r, ---i Its: r'c e J de f F: users/caUcp-da/shared/Projects/Beacon Bay/FirstAmendLeaseFina103-17-05.doc in CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California 'n ` County of ss. On I H I 9�D!before me, L-6) it V14 I • w � `b o Pub Date ] �/ In , Name and Title of Officer (e.., "Jane Doe N personally appeared ! (�Y L-, DI LEILANI I. BROWN Commission # 1336873 Z z Notary Public - California > Z Orange County My Comm. Expinzts Jan 15, 2006 Names) of Signer(s) [personally known to me ❑ proved to me on the basis of satisfactory evidence to be the person( whose name�)�are subscribed to th \wit r instru and acknowledged to me h h she/they executed the same in her/their �thorized capacity(i and that by hi her their signature on the instrument the person ,or` the entity on behalf of which the perso (j acted, executed the instrument. J\ WITNESS my hand and official seal. o0o� -2 Signature of Nb ry Public OPTIONAL Though the information below is not required bylaw, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: ❑ Individual Top of thumb here ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney -in -Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: © 1999 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.nationalnotary.org Prod. No. 5907 Reorder: Call Toll -Free 1-800-876-6827 Equity Title q y Company 2112 E. 4`h Street, Suite 100 Santa Ana, CA 92705 Government Code 27361.7 I certify under penalty of perjury that the notary seal on the document to which this statement is attached reads as follows: Name of Notary: LEILANI I. BROWN Commission Number: County Where Bond is Filed Date Commission Expires Vendor Number: Place of Execution: Date: Signature: 1336673 ORANGE 1/25/06 NNA 1 SANTA ANA, CA 4/26/05 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of C41-1 r-pAt414 County of 01Z#4 N &E r On Ppr i I t . Z.oOS before me, Jo f • y Date Name and Title of Officer (e., , "Jane Doe, Notary Public") personally appeared C bV k (.tie -17D^_ Name(s) of Signer(s) personally known to me - OR - ❑ 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), JOKE M. CLAY or the entity upon behalf of which the person(s) acted, CanwribiW# 1492156 executed the instrument. MNO" RrIWC - Cawaft Cp n.�E CAJn do WITNESS my hand and official seal. Signature of Notary Pub c OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document nn Title or Type of Document: beg �'ti'Y s L byntx;? �+1f 14&eew qs Document Date: Number of Pages: Signer(s) Other Than Named Above: iapacity(ies) Claimed by Signer(s) Signer's Name: Individual Corporate Officer Title(s): Partner — ❑ Limited ❑ General Attorney -in -Fact Trustee Guardian or Conservator Other: Signer Is Representing RIGHT THUMBPRINT OF SIGNER as • Signer's Name: i Individual Corporate Officer Title(s): Partner — ❑ Limited ❑ General Attorney -in -Fact Trustee Guardian or Conservator Other: Signer Is Representing RIGHT THUMBPRINT OF SIGNER © 1995 National Notary Association • 8236 Remmet Ave., P.O. Box 7184 • Canoga Park, CA 91309-7184 Prod. No. 5907 Reorder: Call Toll -Free 1-800-876-6827 Equity Title q Y Company 2112 E. 4"' Street, Suite 100 Santa Ana, CA 92705 Government Code 27361.7 I certify under penalty of perjury that the notary seal on the document to which this statement is attached reads as follows: Name of Notary: JONE M. CLAY Commission Number: County Where Bond is Filed Date Commission Expires Vendor Number: Place of Execution: Date: Signature: 1492158 ORANGE 6/23/08 NNA 1 SANTA ANA, CA 4/26/05