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HomeMy WebLinkAboutRedevelopment Agency - 236 RESOLUTION NO. 236 A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH APPROVING THE FIRST AMENDMENT TO THIRD AMENDED AND RESTATED LEASE BETWEEN THE REDEVELOPMENT AGENCY AND ROBERT L. MAYER WHEREAS, the Redevelopment Agency of the City of Huntington Beach "Lessor") and R. L. Mayer as trustee of the Robert L. Mayer Trust of 1982 dated June 22, 1982 ("Lessee") are parties to that certain Third Amended and Restated Lease dated as of April 28, 1989 (the "Lease") , relating to the real property located within the City of Huntington Beach, California, more particularly described in Attachment 1 to Exhibit "A" thereto (the "Premises") ; and Articles XVI and XVII of the Lease require Lessee to obtain Lessor' s consent prior to Lessee' s transfer to a "Lender" of a "Leasehold Mortgage" of Lessee' s interest in the Premises (as those terms are defined in the Lease) . In this regard, Lessee is required to furnish to Lessor certain information regarding the identity and qualifications of the prospective Lender; and Lessee has been negotiating with Four Seasons Mortgage Services ("Four Seasons") , as agent for a Lender to be designated at a later date, to transfer to such prospective Lender a Leasehold Mortgage of Lessee' s interest in the Premises . Since the identity of the prospective Lender is unknown at this time, however, Lessee is unable to provide to Lessor the information regarding such prospective Lender required under the Lease to obtain Lessor ' s consent. - 1 - Accordingly, Lessee has requested that Lessor agree to amend the provisions of the Lease and waive its right of approval with respect to the identity and qualifications of the prospective Lender, as provided herein; and Lessor is willing to enter into this First Amendment and waive its right to approve the identity and qualifications of the prospective Lender to be designated by Four Seasons, subject to the terms and conditions set forth therein. NOW, THEREFORE, the Redevelopment Agency of the City of Huntington Beach hereby resolves to approve the First Amendment to Third Amended and Restated Lease and authorize the chairman to execute the same. PASSED AND ADOPTED by the Redevelopment Agency of the City of Huntington Beach at a regular meeting thereof held on the 16i-h day of November 1992 . l r+o Chairman ATT T: APPROVED AS TO FORM: 4�F Z� C. Agency Clerk Agency Attorney ((_1 �. RE FPR9 INITIATED AND APPROVED: ecutive Vire for Deputy City Administrator Director, Economic Development 2 - 236 > Ali/bee.v—, yf,L Co'4.? vj, 92-818329 _ Recorded at the request of ►CIS FIRST Add. $ Recording Requested By and ) AMERICAN TIT►-F INS. CO. poc$ When Recorded Mail To: ) 4:00 Uen Nt $ P.M. NOV 3 01992 Connie Brockway, City Clerk ) Official Records @$ $ Office of the City Clerk ) range County, C lifornia othe-r i City of Huntington Beach ) a•` Recorder p,c'Fees $ 2000 Main Street ) D.T.T. $ ti r., Huntington Beach, CA 92648 ) st,f $ FIRST AMENDMENT TO MEMORANDUM OF LEASE This FIRST AMENDMENT TO MEMORANDUM OF LEASE is made as of QQ QQ NOvember 16 , 199_U, by and between the REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, a public agency ( "Lessor") , and ROBERT L. MAYER, as Trustee of the Robert L. Mayer Trust of 1982, date June 22, 1982, as amended ("Lessee") . a . R E C I T A L S 1 A. Lessor and Lessee are parties to that certain Third Amended and Restated Lease dated as of April 28, 1989 (the "Lease") , relating to the real property located within the City of Huntington Beach, California, more particularly described in Exhibit "A" hereto (the "Premises") . B. The Lease is memorialized in that certain Memorandum of Lease recorded as Instrument No. 89-225547 in the Official Records of the Orange County Recorder's Office on May 18 1989 (the "Memorandum of Lease") . C. On or about November 16 , 1992, Lessor and Lessee entered into that certain First Amendment to Third Amended and Restated Lease relating to the Premises (the "First Amendment" ) . D. Pursuant to Section 26 .23 of the Lease, as amended by the First Amendment, Lessor, as owner of the Premises, and Lessee, as tenant, desire to execute and record this First Amendment to Memorandum of Lease. This document is solely fo-r t::n official business o tl�e City of Huntington Beach, as C':_lt o--j- plated under Go:'-,rn:;xnt Cede See. 6103 and should be roeor;'ed free of eharra. Page 1 of 5 Tax Exe,pt•Go,lernrti�n; c ,, cy g CITY G f�UhlTi;'�T• l Putt' CClerk `� MEM0RP NDiJM This First Amendment to Memorandum of Lease is intended to provide notice of the existence of the First Amendment and shall not be deemed to modify or amend any of the provisions of the Lease or the First Amendment. The Lease, as amended by the First Amendment, is a public record and a true and correct copy of the same is available for public review and inspection in the office of the City Clerk of the City of Huntington Beach, whose address is 2000 Main Street, Huntington Beach, California, 92648. IN WITNESS WHEREOF, the undersigned have entered into this instrument to be duly executed as of the date first above written. "LESSOR" "LESSEE" THE REDEVELOPMENT AGENCY OF THE THE ROBERT MAYER TRUST OF 1982, CITY OF HUNTINGTON BEACH By: By: _ airman Robert L. May Trustee ATTES 1': A?eC Seere r C Ie rK 2j--p2_- APPROVED AS TO FORM: Agee!Cyan el CA_ t— Special Counsel Page 2 of 5 STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On this aye day of A 61t4� 199!.2 , before me, the undersi ned, a Notary Public in and for said State, personally appeared , known to me -e--me to be the person who executed this instrument as the Chairman of THE REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, the public entity therein named, and acknowledged to me that such entity executed the within instrument. WITNESS my hand and official seal. Si ture of Notary Public (SEAL) =LEEH SEAL MCH'ESON m NOALIFORNIA UM STATE OF CALIFORNIA ) 'MAY 11, 1993 ) ss. COUNTY OF ORANGE ) On this UL day of � 19 as before me, the undersigned, a Notary Public in and for said State, personally appeared X?0RFA-r 4- 11-7,0ZE , known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument as the Trustee of THE ROBERT L. MAYER TRUST OF 1982, dated June 22, 1982, as amended, the entity therein named, and acknowledged to me that he executed the within instrument. WITNESS my hand and official seal . .« OFFICIAL NOTARY SEAL IANA JEAN HALL Notary Pudic—California N- ORANGE COUNTY Signature of N ary Pub i c mi ;orrrm Exarec JUN09,tQ95 , ��s dMc£•nhir^r itA00 N@MtGOri Baal.Gi+S[titi0 (SEAL) Page 3 of 5 Acknowledgement State of California, County of Orange. On ?Al. /9 9.2 , before me, a notary public of the State of California, personally appeared &Wdk personally known to me g*idenee* to be the person(( whose name(.&) isAaf* subscribed to the within instrument and acknowledged to me that 4e1shek4t" executed the same in lis4her/4he+ authorized capacity(iees , and that by lds/herithei signature.(-s� on the instrument the person(64, or the entity upon behalf of which the person(o acted, executed the instrument. WITNESS my hand and official seal. Signature OFFICIAL SEAL /� $ MAYBZCE L ETCH�ESONJ C.C.P. s 1189. m NOTARY PUBLIC - CALIFORNIA QRANGE DDt TY My comm. expires MAY 11, IW3 ATTACHMENT NO. 1 THAT PCPTICN OF SECTION 14, TOWd HM 6 SOUDi, RANGE 11 WEST, IN THE RANCfiD LAS BOSAS, IN THE CITY OF Ems, O(xim OF CRANGE, STATE OF QUZFClWIA, AS PER MAP RDOCRfED IN BOOK 511 PAGE 14 OF XLqCEUAK9OUS MAPS IN THE OFFICE OF TIE OOUNTY RDOORDER OF SAID OOUt1IY, DESCRIBM AS FOIZOS: BBGINNIM AT THE SOUrHE W OCFNM OF THE NORTHEAST QLVJR ER OF THE NCRTlIFASr QCARcER OF SAID SECIZCN; THEME WESTE U 111.91 FEET AWNG THE NORTH LINE OF THE. SCUM HAIF OF THE NORTHEAST QIAR'IM OF SAID SECTION TO A POINT CH THE UM91ERLY LINE OF THE LAND DESCRIBED IN THE DEM TO THE STATE OF CALIFCPNIA IN BOCK 6168, PAGE 667 OF OFFICIAL Rom, SAID Fonm EmG THE TRUE POINT OF SING; TREKS SOM 3' 29' 43" WEST 593.12 FEET; THENCE SOUTH 25' 32' 14" WEST 386.94 FEET; THENCE SOUTH 11' 44' 36" EAST 771.48 FEET; T1iP1+K'E SOUTH 780 15' 24" WEST 82.75 FEET 70 THE NORTHEhSTERLY RIGHr OF WAY rMM OF PACIFIC OC = HlQMY, AS CIE® IN BOOK 4551 PAGE 400 OF OFFICIAL RDOCRDS OF SAID ClWlGE CQUTIY; THENCE AILNG SAID NORIHEASTERU RIGHT OF WAY LDlE, NOM 520 05' 09" WEST 2409.77 FELT TO THE RICH' OF WAY LDZE OF HMWD4GIW AVEWJE, 60.00 FEET IN WIDTH AS NOW LAID CUT; THENCE ALONG SAID SOUDMSTERLY RICE OF WAY LIINE, NOFMi 37' 54' 51" EAST 299.35 FEET TO AN ANGIE POINT; THENCE NORM 0' 17' 36" EAST 20.44 F AI= THE EAST RIGHT OF WAY I OF HuRim4MION AVENUE, 60.00 FEET IN WIDTH AS NOW LAID CUT, TO THE NOM LINE OF THE SOUTH HALF OF THE NORl!HEAST QtWMM OF SAID SECTION; THENCE EAM RLY 1844.00 FEET AICYJG SAID NOM LINE TO THE TRUE POINT OF BEGINNING. EXCEPT THU PCRTICN THEREOF DESCRIBED AS FOI=M: BEGINNING AT A POINT CN THE NORTH LINE OF SAID LAND, NORTH 89' 43' EAST 690.00 Ff3T FROM THE CENTER TrFR LINE OF SAID HLW7 IGPCN AVENUE; THENCE NORTH 89. 43' EAST 200.00 FELT; THEME SOUni 0' 17' FAST 150.00 FEET; THENCE SCX7IH 89' 43' WEST 200.00 FEIT; THENCE NORM 0' 17' WEST 150.00 FE1'r TO THE POINT OF BEGIWING. ASSO EXCEPT THAT PCRTICN INC UAW W WITHIN TRACT NO. 13045 AS PER MAP FIIED IN BOOR , PAGES AND OF SAID MISCEUANEOEJS KkPS. ATTACHMENT NO. 1 Page 4 of 5 I!r232 134.1204 3/1/89 r, )4- N'LY LINE S 1/2 NE 1/4 SEC 14 T 6 S. R 11 V. M.M. 51/4 go �� 'yo • o � J � J 3 ch W A40 0 m I ATTACHMENT NO. 1 SCALEt 1' - 300' Page 5 or 5 Y t FIRST AMENDMENT TO THIRD AMENDED AND RESTATED LEASE This First Amendment to Third Amended and Restated Lease (the "First Amendment") is entered into as of the 14-( day of November, 1992 (the "Effective Date") , by and among the Redevelopment Agency of the City of Huntington Beach, a public agency ( "Lessor") , and Robert L. Mayer, as Trustee of the Robert L. Mayer Trust of 1982, dated June 22, 1982, as amended ( "Lessee") , with reference to the following: R E C I T A L S A. Lessor and Lessee are .parties to that certain Third Amended and Restated Lease dated as of April 28, 1989 (the "Lease") , relating to the real property located within the City of Huntington Beach, California, more particularly described in Attachment 1 to Exhibit "A" hereto (,the "Premises") . B. Articles XVI and XVII of the Lease require Lessee to obtain Lessor' s consent prior to Lessee' s transfer to a "Lender" of a "Leasehold Mortgage" of Lessee' s interest in the Premises (as those terms are defined in the Lease) . In this regard, Lessee is required to furnish to Lessor certain information regarding the identity and qualifications of the prospective Lender. C. Lessee has been negotiating with Four Seasons Mortgage Services ( "Four Seasons") , as agent for a Lender to be designated at a later date, to transfer to such prospective Lender a Leasehold Mortgage of Lessee's interest in the Premises. Since the identity of the prospective Lender is unknown at this time, however, Lessee is unable to provide to Lessor the information regarding such prospective Lender required under the Lease to obtain Lessor' s consent. Accordingly, Lessee has requested that Lessor agree to amend the provisions of the Lease and waive its right of approval with respect to the identity and qualifications of the prospective Lender, as provided herein. D. Lessor is willing to enter into this First Amendment and waive its right to approve the identity and qualifications of the prospective Lender to be designated by Four Seasons, subject to the terms and conditions set forth herein. FS2\112\065580-0001\2017411.7 11/06/92 � OV ENA �TT � NOW, THEREFORE, in consideration of the foregoing Recitals and the covenants and acknowledgments set forth herein, Lessor and Lessee agree as follows: 1. Notwithstanding any other provision in the Lease to the contrary, including without limitation any provision in Articles XVI and XVII thereof, Lessee shall have the right to transfer a Leasehold Mortgage of Lessee' s interest in the Premises to a Lender to be designated at a later date by Four Seasons, provided that the total principal amount of the obligations secured by the Leasehold Mortgage (excluding interest, late payment charges, and collection costs and attorney' s fees) does not exceed the sum of One Million Eight Hundred Thousand Dollars ($1, 800, 000. 00) . In this regard, Lessor hereby irrevocably waives its right under the Lease to approve the identity and qualifications of such Lender. Subject to the provisions of Paragraphs 2 and 3 of this First Amendment, upon the recordation of the Leasehold Mortgage, such Lender shall be entitled to all of the rights (and subject, to all of the obligations) of a "Lender" as that term is defined in Section 17.2 of the Lease. Not by way of limitation of the foregoing, if the Lender or any third party claiming under or through Lender (the "Holder" of the Leasehold Mortgage) succeeds to Lessee' s leasehold interest in the Premises (whether through foreclosure, deed in lieu of foreclosure, or otherwise) , said Holder shall be subject to all of Lessee' s executory obligations and all of the limitations on Lessee' s rights set forth in that certain Mobile Home Acquisition and Relocation Agreement entered into by and among Lessor, RLM Properties, Ltd. , a California limited partnership (Lessee' s predecessor-in-interest to the Premises) , Driftwood Beach Club Mobile Homeowners Association, Inc. , a California non-profit corporation, and individual tenants of the Driftwood Beach Club Mobile Home Park dated as of September 26, 1988 (the "Relocation Agreement") . The provisions of this Paragraph 1 of the First Amendment shall automatically expire and be of no further force or effect if for any reason the Leasehold Mortgage referred to herein is not created within one (1) year after the Effective Date of this First Amendment. 2 . This First Amendment is not intended to approve or authorize a transfer or assignment by Lessee to Lender or the Holder of any of Lessee' s rights or obligations under the Disposition and Development Agreement entered into by and between Lessor and Lessee dated August 15, 1988, as amended by the First Amendment to Disposition and Development Agreement dated June 17, 1991, the Second Amendment to Disposition and Development Agreement dated August 1, 1991, and the Third Amendment to Disposition and FS2\112\065580-0001\2017411.7 11/06/92 -2- Development Agreement dated March 16, 1992 (collectively, the "DDA") . In addition, this First Amendment is not intended to approve or authorize a transfer by Lessee to Lender or Holder of Lessee' s rights or obligations under the Development Agreement entered into by and between the City of Huntington Beach and Lessee dated as of August 15, 1988 (the "Development Agreement") . If for any reason Lender or Holder succeeds to Lessee' s leasehold interest in the Premises (whether through foreclosure, deed in lieu of foreclosure, or otherwise) , said Lender and/or Holder shall acquire no rights or obligations whatsoever under the DDA or Development Agreement. 3 . In the event that Lessee transfers to Lender a Leasehold Mortgage as contemplated in Paragraph 1 herein, Lender, at the time it delivers to Lessee any notice of default pursuant to the terms of the Leasehold Mortgage or any underlying promissory note and/or loan agreement, shall deliver a copy of said notice to Lessor at Lessor's address set forth in the Lease. Thereafter, and after Lessee has had a reasonable time to challenge, cure, or satisfy such default, Lessor shall have the right to cure such default, provided that nothing in this Paragraph 3 of the .First Amendment is intended or shall be construed to limit or restrict Lender' s exercise of its rights or remedies against Lessee. In the event Lessor does cure such a default by Lessee, Lessor shall be entitled to reimbursement from Lessee of all costs and expenses incurred by Lessor in curing such default as additional rent pursuant to the Lease. In addition to the foregoing, if the Lender contemplated under Paragraph 1 of this First Amendment or any Holder succeeds to Lessee' s leasehold interest in the Premises (whether through foreclosure, deed in lieu of foreclosure, or otherwise) , Lessor, if it so desires, and at any time within two (2) years after Lender or Holder first succeeds to Lessee' s leasehold interest (but in no event later than two (2) years after the expiration of the term of the Lease set forth in Sections 1.4 or 1.5 thereof, as applicable) , shall have the option to acquire from Lender or such Holder its leasehold interest in the Premises free of all liens and encumbrances held or claimed by Lender or Holder, for an amount equal to the sum of the following: (i) the unpaid mortgage or deed of trust debt at the time leasehold title became vested in the Holder (less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings) ; (ii) all out-of-pocket expenses actually incurred by the Holder with respect to foreclosure, including reasonable attorney' s fees; (iii) the net out-of-pocket expense, if any (exclusive of general overhead) , incurred by the Holder as a direct result of the subsequent management of the Premises or part thereof; (iv) the actual out-of- pocket cost of any improvements made by such Holder to the Premises; and (v) an amount equal to the interest that would have F$2\112\065580.0001\2017411.8 11/06/92 -3- accrued on the aggregate of the amounts described in clauses (i) through (iv) had all such amounts become part of the mortgage or deed of trust debt and such debt had continued in existence to the date of payment by Lessor. There shall be deducted from such amount all sums owing and unpaid by the Lessee pursuant to the Lease. In the event Lessor desires to exercise its option under this Paragraph 3 of the First Amendment, Lessor shall do so by delivery of written notice to Holder. Within fifteen (15) business days thereafter, Holder shall notify Lessor in writing of the amount required to be paid to obtain a conveyance of Holder' s interest, as set forth hereinabove together with reasonable substantiation thereof. Thereafter, Lessor shall tender the undisputed portion of the amount required within thirty (30) days, or Lessor' s rights under this Paragraph 3 to purchase Holder' s interest in the Premises shall automatically terminate. Any disputes between Lessor and Holder regarding the amount of the payment required to be made by Lessor to purchase the Holder' s interest in the Premises shall be resolved by binding arbitration in accordance with the procedures set forth in Article XXVII of the Lease, or as otherwise may be agreed to by and between Lessor and Holder. It is expressly understood and agreed that Lessor' s rights pursuant to this Paragraph 3 shall survive any foreclosure or other conveyance to Lender or Holder of Lessee interest in the Lease. The parties shall take such further actions and execute such further documents as is necessary to carry out the intent of this Paragraph 3 . In no event shall Lessor' s exercise of any of its rights under this Paragraph 3 of the First Amendment be deemed to waive any rights or claims Lessor may have against Lessee. 4. Lessor covenants not to take any action and not to participate in taking any action for the purpose or with the effect of removing or relocating mobilehome subtenants from the Premises in a number exceeding the ten (10) relocations per year contemplated under Article XI, Section A.1 of the Relocation Agreement. The provisions of this Paragraph 3 of the First Amendment shall automatically expire and be of no further force or effect upon the later of the following dates: (i) upon the earlier of (A) expiration of the one-year time period provided for in Paragraph 1 of this First Amendment for recordation of the Leasehold Mortgage contemplated herein (assuming the Leasehold Mortgage is not recorded) , or (B) payment in full of the loan secured by the Leasehold Mortgage and the reconveyance or termination of Lender' s interest in the Premises; and (2) upon the earlier of (A) Lessee' s notification to Lessor, in writing, of Lessee' s intention to begin construction of any "Post Conversion Phase A development, " as contemplated in Article II, Section B of the Relocation Agreement, or (B) termination of Lessee' s development rights with respect to all of the Premises under the DDA and the Development Agreement. FS2\112\065580-0001\2017411.8 11/06/92 -4- 5. Lessee acknowledges that Article V, Section B.4 (b) (i) of the Relocation Agreement provides as follows: (i) Restricted Rents : Effective on the date of this Agreement, the Tenant shall pay to (Lessee] , or its designee, monthly space rent equal to the rental rate paid by the Tenant of that space on January 1, 1988 (the Initial Rent) . This rate shall be increased annually from the date of this Agreement by six percent (6%) . Upon commencement of any Proposed Conversion Phase A construction, the rent will be reduced to seventy-five percent (75%-) of the rent paid by Tenant just prior to the construction and this new rate shall be increased by six percent (6t) per annum. Lessee covenants, as additional consideration for Lessor' s entering into and performing its obligations under this First Amendment, not to increase rents above the applicable limits in the Relocation Agreement quoted above. 6. Upon the written request of Lessee and/or Lender, and from time to time, Lessor agrees to complete, execute, and return to Lessee and/or Lender, as applicable, an estoppel certificate or certificates in a form prepared by Lessee or Lender certifying as to Lessor' s best knowledge and belief regarding the status of the Lease (as amended by this First Amendment) , the existence of any additional modifications or amendments thereto, and whether or not to Lessor' s knowledge there are any pending defaults thereunder (or any events which, with the passage of time or the giving of notice, would constitute defaults) . In addition, Lessor agrees to cooperate with Lessee and Lender and to execute such other documents as may be reasonably requested by Lessee and/or Lender consistent with the terms of this First Amendment. 7. Lessor and Lessee shall cooperate in recording against the Premises the First Amendment to Memorandum of Lease in the form attached hereto as Exhibit "A. " 8. Except as expressly set forth in this First Amendment, all of the terms and conditions of the Lease shall remain in full force and effect. FszU12\06ss8a0001\2017411.9 11/06/92 -5- 1 IN WITNESS WHEREOF, the undersigned have entered into this First Amendment to Third Amended and Restated Lease as of the Effective Date first above written. Robert L. Mayer, Trustee of The Robert Mayer Trust of 1982, Dated June 22, 1982, as amended By: 2&kgn?�� Robert L. May . Redevelopment Agency of the City of Huntington- Beach By: /Ox- C4106-iman ATTEST Agency- GL�c_ctari- C t e_r f< IV,A i APPROVED TO FO APPROVED AS TO CONTENT: Agency Special-Counsel Deputy City Administrator REVIEWED AND APPROVED APPROVED: AS TO FORM: City Attorneyl City iristrator/ Agency Attorney �- ht— Executive Director FS2\112\065580-0001\2017411.7 11/06/92 -6- Res. No. 236 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF HUNTINGTON BEACH) I, CONNIE BROCKWAY, Clerk of the Redevelopment Agency of the City of Huntington Beach, California, DO HEREBY CERTIFY that the foregoing resolution was duly adopted by the Redevelopment Agency of the City of Huntington Beach at a meeting of said Redevelopment Agency held on the 16th day of Novr 19__aZ, and that it was so adopted by the following vote: AYES: Members: Moulton-Patterson. W'nchell , Silva, Grppn, MacAlliGtPr NOES: Members: None ABSENT: Members: Robita;lle, (seat va_ nt) Clerk of t Redeve opmen. Agency of the City :of Huntington Beach, Ca.