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18-0515_RAINER W. METZ, INC._Consent to Assignment AgreementCITY OF SAN JUAN CAPISTRANO CONSENT TO ASSIGNMENT AGREEMENT THIS CONSENT TO ASSIGNMENT AGREEMENT ("Consent") is made as of this 15th day of May, 2018 ("Effective Date"), by and among the City of San Juan Capistrano ("City"), Rainer W. Metz, Inc. ("Assignor"); and Metz Properties, LLC, a California Limited Liability Company ("Assignee"). City, Assignor, and Assignee may be individually referred to herein as a "party," and collectively referred to as the "parties." RECITALS A. City and Assignor have entered into a License Agreement dated April 7, 2015 ("Agreement") whereby Assignor granted to the City a license to utilize real property within Assessor's Parcel No. 649-111-01 ("Property") for the operation and maintenance of City owned sewer pump station and associated pipelines and for ingress and egress on Assignor's road on the Property from Avenida De La Vista to the sewer pump station ("Agreement"). Copies of the Agreement are attached hereto as Exhibit A and incorporated herein by this reference. B. Assignor's President passed away on May, 5, 2017, and the sole remaining director of Assignor, Donna Kathleen Metz, dissolved the company returning the Property to the trust of the marital estate; which quit claimed the Property to Assignee. C. Assignor and Assignee now desire to obtain the Consent of the City to the assignment by Assignor to Assignee of all of Assignor's rights, duties, and obligations in, to, and under the Agreement ("Assignment"). D. Pursuant to Section 6 of the Agreement, "Successors in Interest," the License Agreement shall inure to and be binding on the heirs, successors, executors, administrators, and assignees of the Assignor. E. Assignor and Assignee desire to obtain City's Consent to the Assignment and City is willing to consent to the Assignment on the following terms and conditions. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants contained in this Consent, and for valuable consideration, the receipt and sufficiency of which are acknowledged by the parties, the parties agree as follows. 1. Representations and Warranties. Assignor and Assignee jointly represent and warrant to the City: 1.1 That Assignee is an organization in good standing as a California limited liability corporation and duly qualified to transact business under the laws of the State of California. 1.2 That the execution, delivery and performance of the Agreement by Assignee have been duly authorized. 2. Assumption and No Release. Assignee expressly assumes, acknowledges and agrees for the benefit of City to be bound by, and to perform and comply with, every obligation of Assignor under the Agreement. City shall have the same rights and remedies as against the Assignee as City under the terms and provisions of the Agreement has against Assignor with the same force and effect as though every such duty, obligation, responsibility, right or remedy were set forth herein in full. 3. References. All references and meaning assigned to the term "Property Owner" in the Agreement shall be understood to mean Assignee, and shall include all of the corresponding rights, obligations and benefits thereof as provided by this Consent and the Agreement. 4. Subsequent Assignments. This Consent does not constitute a consent to any subsequent assignment and does not relieve Assignee or any person claiming under or through Assignee of the obligation to obtain the consent of City to any future assignment. Notwithstanding the foregoing, City may consent to subsequent assignments of the Agreement, or amend the Agreement without notifying Assignor, including but not limited to any of Assignor's guarantors, and without obtaining their consent, and that action by Assignee will not relieve those persons of liability. 5. Default; Breach. In the event of any default or breach of Assignee under the Agreement, City may proceed directly against Assignee, any guarantors, or anyone else liable under the Agreement without first exhausting City's remedies against any other person or entity liable under the Agreement to City. 6. Effect of Execution. Assignee's execution of this Consent shall be deemed an execution by Assignee of the Agreement. Upon execution of this Consent, Assignee shall be deemed a signatory and party to the Agreement as if Assignee had directly executed the Agreement. Assignee agrees to be firmly bound by all covenants, obligations and conditions of the Agreement by its execution hereunder. 7. General Provisions. 7.1 Invalidity. If this Consent or the Assignment is determined by a court, administrative agency or arbitrator to be invalid, illegal or incapable of being enforced by any rule of law or public policy, the Agreement as originally executed shall nevertheless be deemed to remain in full force and effect as if this Consent and the Assignment had not been made or attempted. 7.2 Severability. If any term or other provision of this Consent is determined by a court, administrative agency or arbitrator to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Consent shall remain in full force and effect. 7.3 Governing Law. This Consent will be construed in accordance with and will be governed by the laws of the State of California. Venue shall lie in Orange County, California. 7.4 Notices. Notices, offers, requests or other communications required or permitted to be given by the parties pursuant to the terms of this Consent shall be given in writing to the respective parties. 7.5 Counterparts. This Consent may be executed in counterparts, each of which shall be deemed to be an original but all of which shall constitute one and the same agreement. 7.6 Binding Effect; Assignment. This Consent shall inure to the benefit of and be binding upon the parties hereto and their respective legal representatives and successors, and nothing in this Consent, express or implied, is intended to confer upon any other person any rights or remedies of any nature whatsoever under or by reason of this Consent. Assignee may not assign this Consent nor any rights or obligations hereunder, without the prior written consent of the City, and any such assignment shall be void. 7.7 Authority. Each of the parties hereto represents to the other parties that (a) it has the requisite power and authority to execute, deliver and perform this Consent; (b) the execution, delivery and performance of this Consent by it have been duly authorized by all necessary corporate or other actions; (c) it has duly and validly executed and delivered this Consent; and (d) this Consent is a legal, valid and binding obligation, enforceable against it in accordance with its terms. 7.8 Interpretation. The headings included for reference purposes only and meaning or interpretation of this Consent. to sections contained in this Consent are shall not affect or modify in any way the 7.9 Attorneys' Fees. Should any of the parties initiate any action at law or in equity to enforce or interpret the 'terms of this Consent, the prevailing party(ies) shall be entitled to reasonable attorneys' fees and legal costs from the non -prevailing party(ies) in addition to any other appropriate relief. 7.10 Waiver. Except as explicitly stated in this Consent, nothing contained in this Consent will be deemed or construed to modify, waive, impair, or affect any of the covenants, agreements, terms, provisions, or conditions contained in the Agreement. In addition, City's acceptance and waiver of any breach of this Consent by Assignee, Assignor or anyone else liable under the Agreement will not be deemed a waiver by City of any other provision of this Consent or the Agreement. 7.11 Entire Agreement; Amendment. This Consent constitutes the final, complete and exclusive statement between the parties to this Consent pertaining to the terms of City's consent to the Assignment, and supersedes all prior and contemporaneous written and oral agreements. No party has been induced to enter into this Consent by, nor is any party relying on, any representation or warranty outside those expressly set forth in this Consent. Any agreement made after the date of this Consent is ineffective to modify, waive or terminate this Consent, in whole or in part, unless that agreement is in writing, is signed by the City and Assignee, and specifically states that agreement modifies this Consent. 8. Amendments to the Agreement. 8.1 Term. Section 3(d) of the Agreement is hereby amended to state "May 30, 2023.» 8.2 License Fee. Section 4(a) of the Agreement: is hereby deleted in its entirety and replaced with the following: "Pay Property Owner, its designee or as otherwise directed by Property Owner in writing, the sum of Five Hundred Dollars ($500.00) per month commencing on June 1, 2018 and continuing each month thereafter until terminated with first payment due June 30, 2018. City will also remit retroactive payments to the Property Owner, its designee or as otherwise directed by Property Owner in writing, in the amount of One Thousand Five Hundred Dollars ($1,500.00) for prior access granted to the Property during the period March 1, 2018 through May 31, 2018, consistent with the terms of the agreement." [SIGNATURES ON FOLLOWING PAGE] 4 WHEREFORE, the City, Assignor and Assignee have executed this Consent as of the Effective Date first set forth above. FOR CITY: FOR ASSIGNOR: City of San Juan Capistrano Donna Kathleen Metz successor in interest I M Printed Name: pcni'arA^ L�)ieoe�/I Its: C A E T: IVNA�M orris, Ci lerk APPROVED AS TO F eff Ballinger, City Attorney to Rainer W. "tz' Inc. By. Printed Name: Pd hr� �l1e�v Its: (9re5iC e,/ - FOR ASSIGNEE: Metz Properties, LLC By : - Printed Name: Its: Ae5;-01e17 EXHIBIT A AGREEMENT [Attached Behind This Page] ATTACHMENT 1, Page 6 of 10 LICENSE AGREEMENT PUMPING STATION AND PIPELINES M ETZ THIS LICENSE AGREEMENT is made this -'INV . day of �_L�_, 2015, by and between the CITY OF SAN JUAN CAPISTRANO, a Municipal Corporation hereinafter referred to as "City" and Rainer W. Metz, Inc., hereinafter referred to as "Property Owner". WHEREAS, Property Owner acquired title to subject property described as Assessor's Parcel Number 649-111-01 on May 20, 2002; and, WHEREAS, City owns, maintains, and operates Avenida De La Vista Sewer Pump Station facility and associated pipelines located on Owner's real property (Attachment A); and, WHEREAS, City requires the use of Property Owner's road for ingress and egress from Avenida De La Vista to the pump station; and, WHEREAS, upon becoming the owner of said property, Property Owner entered into the initial February 1, 1994, License Agreement and May 7, 1994, Amendment between the City and previous Property Owner, Hideo Shibata; and, WHEREAS, Property Owner extended the Agreement and Amendment again on December 9, 2002, November 1, 2005, May 5, 2009, and August 2, 2011; and, WHEREAS, said Agreement and Amendment No.1 expired on December 31, 2012; and, WHEREAS, Property Owner and City both wish to enter into a new Agreement. NOW, THEREFORE BE IT MUTUALLY RESOLVED, Property Owner and City agree as follows: 1. Grant of License, Property Owner hereby grants to the City a temporary license: a. To utilize real property within Property Owner Assessor's Parcel No. 649- 111-01 for the operation and maintenance of City owned sewer pump station and associated pipelines. b. For ingress and egress on Property Owner's road from Avenida De La Vista to the sewer pump station. 2. Right of Entry_ City shall be entitled to place a lock on the gated area so as to allow 24 hour unrestricted access to the sewer pump station. The gate will be closed and locked after each entry or exit when the Property Owner is not open for business_ ATTACHMENT 1, F—OIbff A 3. Term. This License Agreement will commence upon the effective date of this Agreement, and will terminate when one of the first of the following occurs: a. Cessation of the use of the pump station and facility by the City. b. Termination by mutual agreement. c. Upon a 90 day written notice by either party. d. April 30, 2020. 4. Consideration. In consideration of the granting of the License, the City shall: a. License Fee. Pay Property Owner the sum of Five Hundred Dollars ($500.00) per month commencing on the execution of this agreement and continuing each month thereafter until terminated with first payment due May 2015. City will also remit retroactive payments to the Property Owner in the amount of Eight Thousand Dollars ($8,000.00) for prior property access granted during the period January 2014 through April 2015, consistent with the terms of the agreement. b. Use of Road and Avenida De La Vista Sewer Pump Station Land Area. Use the road and area safely and in such a manner as not to disturb or create a hazard or nuisance to Property Owner, his neighbors, tenants, or any of the surrounding property. Any damages caused by the City or any of its agents, employees or contractors shall be promptly repaired by the City. 5. Extension. This License Agreement may be extended by mutual agreement of the parties hereto. 6. Successors in Interest. The License Agreement shall inure to and be binding on the heirs, successors, executors, administrators, and assignees of the Property Owner. 7. Indemnification. City shall hold harmless, indemnify and defend Property Owner, its partners, officers employees agents and successors from all liabilities, penalties, losses, damages, costs, expenses, causes of actions, claims and/or judgments arising out of the negligence or willful misconduct of City, its agents, employees, contractors and invitees, or activities pursuant to this License Agreement. 8. Counterparts. This Agreement may be executed by the Parties in counterparts, which counterparts shall be construed together and have the same effect as if all the parties had executed the same instrument. Counterpart signatures may be transmitted by facsimile, email or other electronic means and has the same force and effect as if they were original signatures. [SIGNATURE PAGE FOLLOWS] ATTACHMENT 1, Page 8 of 10 In Witness Whereof, the parties have read and understood the above License Agreement. DATEDthis day of�� 2015, at San Juan Capistrano. APPROVED AS TO FORM: City Attorney CITY OF SAN JUAN CAPISTRANO By. X�" P-Ava Derek Reeve, Mayor PROPERTY OWNER Rainer W. Metz, Inc. ATTACHMENT 1, Page 9 of 10 In Witness Whereof, the parties have read and understood the above license Agreement. DATED this day of , 2015, at San Juan Capistrano. ATTEST: Maria Morris, City Clerk APPROVED AS TO FORM: City Attorney CITY OF SAN JUAN CAPISTRANO Derek Reeve, Mayor PROPERTY OWNER rr �� By. Rainer W. Metz, Inc. Attachment I ATTACHMENT 1, Page 10 of 10