2011/06/13 Stark Menifee Land, LLC Partial Assignment and Assumption Planning Area 3RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL To: )
)
City of Menifee )
29714 Haun Road )
Menifee, CA 92586 )
Attn: City Cleric )
(Space Above This Line for Recorder's Use Only)
Exempt from Recording Fee per Government Code §27383
PARTIAL ASSIGNMENT AND ASSUMPTION AGREEMENT
(Planning Area 3)
THIS PARTIAL ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement") is
entered into as of the day of 2014, by and among STARK MENiFEE LAND,
LLC, a Delaware limited liability company ("Assignor"), RICH DEVELOPMENT
ENTERPRISES, LLC, a California limited liability company ("Assignee"), and CITY OF
MENIFEE, a municipal corporation of the State of California ("City").
RECITALS
Stark Menifee Land, LLC (in its capacity as "Developer") has entered into a
Development Agreement with the City effective June 13, 2011 (Recorder's Document No. 2011-
0272260) ("Development Agreement") to facilitate the development of that certain real property
owned by Developer within the City of Menifee, State of California, which is legally described
in Exhibit A to the Development Agreement ("Property"). Capitalized terms used but not
otherwise defined herein shall have the meaning ascribed to such terms in the Development
Agreement.
Assignor is the fee owner of the approximately 15.09-acre portion of the Site, more
particularly described in Exhibit 1 attached hereto and incorporated herein ("Assigned
Property").
C. Assignor desires to transfer its interest in the Assigned Property to Assignee
concurrently with execution of this Agreement and Assignor desires to so acquire such interest in
the Assigned Property from Assignor.
D. Section 7.3 of the Development Agreement provides that Developer may freely
assign less than all of its rights and obligations under the Development Agreement to another
party who acquires a portion of the Property, provided that (i) the Assignor shall have provided
to City at least ten (10) business days prior written notice, (ii) the Assignor and Assignee
document the assignment in an agreement substantially in the form of Exhibit C to the
Development Agreement and that such assignment and assumption agreement provides that the
Assignee agrees in writing to be subject to all of the applicable provisions of the Development
Agreement and provides for the allocation of responsibilities and obligations between the
Assignor and Assignee as to the Assigned Property, and (iii) this Agreement shall be recorded in
faith to ensure timely submittal and prompt and adequate response to any requests for
information from the City pursuant to Section 6.2 related to the Assigned Property.
(iv) All rights and obligations as to Section 8.3 (Amendments to the Agreement), except
that the Assignee may amend the Development Agreement, with City approval pursuant to
Section 8.3, only as to the Assigned Property and only with the prior written approval of the
Assignor, which approval shall not be unreasonably withheld, delayed or conditioned. Assignor
shall not be entitled to, and shall not seek to, affect, modify, amend, change, or alter the scope of
the Development Agreement (with City approval pursuant to Section 8.3) to affect either the
Assigned Property or the Assigned Rights and Obligations.
Assignor and Assignee further agree and acknowledge that any Assigned Rights and Obligations
are to be interpreted (1) to be strictly limited to Assignee's ownership and development of the
Assigned Property and (2) such that Assignee shall not be obligated to incur, nor reimburse
Assignor for, any cost or expense arising from any Assigned Rights and Obligations as they
might continue to relate to, serve, or benefit Assignor's Property.
2. Acceptance and Assumption by Assignee. Assignee, for itself and its successors and
assigns, hereby accepts the assignment of, and assumes all of, the Assigned Rights and
Obligations, accruing after (and not prior to) the Effective Date (defined in Section 16 below).
Assignee agrees, expressly for the benefit of City, to comply with, perform and execute all of the
covenants and obligations of Stark Menifee Land, LLC arising from or under the Development
Agreement as to the Assigned Property and Assigned Rights and Obligations.
3. Release of Assignor. City hereby fully release Assignor from all of the Assigned Rights
and Obligations. Both Assignor and Assignee acknowledge that this Agreement is intended to
fully assign the Assigned Rights and Obligations to Assignee, and it is expressly understood that
Assignor shall not retain any of the Assigned Rights and Obligations.
4. Substitution of Assignor. With respect to the Assigned Rights and Obligations, Assignee
shall be substituted for and replace Assignor in the Development Agreement as to the Assigned
Property. Whenever the term "Stark Menifee Land, LLC" appears in the Development
Agreement with respect to the Assigned Rights and Obligations as they relate to the Assigned
Property, such term shall hereafter mean Assignee with respect to the Assigned Rights and
Obligations. Whenever the term "Developer" or "Party" appears in the Development
Agreement, it shall hereafter include Assignee as to the Assigned Property. Whenever the term
"Project" appears in the Development Agreement with respect to the Assigned Rights and
Obligations, such term shall be interpreted (based on the context and in order to give effect to the
terns and intent of this Agreement) to include Assignee's proposed development of the Assigned
Property.
5. Assignee's Representations and Warranties.
(a) Assignee represents and warrants to City as follows;
(i) Assignee is a limited liability company duly formed within and
good standing under the laws of the State of California. The copies of the
documents evidencing the formation of Assignee, which have been delivered to
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City, are true and complete copies of the originals, as amended to the date of this
Agreement. Assignee has full right, power and lawful authority to undertake all
obligations as provided herein and the execution, performance and delivery of this
Agreement by Assignee has been fully authorized by all requisite actions on the
part of Assignee.
(ii) Assignee's execution, delivery and performance of its obligations
under this Agreement will not constitute a default or a breach under any contract,
agreement or order to which Assignee is a party or by which it is bound.
(iii) Assignee has not (i) made a general assignment for the benefit of
creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of
any involuntary petition by Assignee's creditors, (iii) suffered the appointment of
a receiver to take possession of all, or substantially all, of Assignee's assets,
(iv) suffered the attachment or other judicial seizure of all, or substantially all, of
Assignee's assets, (v) admitted in writing its inability to pay its debts as they come
due, or (vi) made an offer of settlement, extension or composition to its creditors
generally.
(iv) As of the Effective Date of this Agreement, Assignee owns fee
simple title to the Assigned Property.
6. Assi nor and Assignee A greeincnts, Indennriifications and Waivers. Assignor and
Assignee hereby acknowledge and agree that City has not made, and will not make, any
representation or warranty that the assignment and assumption of the Development Agreement
provided for hereunder will have any particular tax implications for Assignor or Assignee.
(a) Assignor and Assignee each hereby waives and releases and each hereby
agrees to indemnify and hold City harmless from any and all damages, liabilities, causes
of action, claims or potential claims against City (including attorneys' fees and costs)
arising out of or resulting from the assignment and assumption of the Assigned Rights
and Obligations.
(b) Assignor acknowledges and agrees that the Assigned Rights and
Obligations have been fully assigned to Assignee by this Agreement and, accordingly,
that Assignee shall have the exclusive right to assert any claims against City with respect
to such Assigned Rights and Obligations. Accordingly, without limiting any claims of
Assignee under the Development Agreement related to the Assigned Rights and
Obligations, Assignor hereby waives any claims or potential claims by Assignor against
City to the extent arising solely out of Assigned Property and/or Assigned Rights and
Obligations.
(c) For the Term of the Development Agreement, Assignor agrees to and shall
indemnify, defend and hold harmless Assignee, its affiliated entities and persons, and
their respective members, partners, officers, directors, shareholders, and employees from
any claims, demands, loss, liability, damages, costs or expenses (including attorneys'
fees, expert witness fees, court costs and any and all litigation fees and costs) made
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against or suffered with regard to any breach by Assignor of the Development Agreement
and/or this Agreement ("Assignor Indemnity"). The foregoing Assignor Indemnity
shall be binding on Assignor's assignees, successors -in -interest, and any person or entity
that takes title to any part of the Property.
(d) For the Term of the Development Agreement, Assignee agrees to and shall
indemnify, defend and hold harmless Assignor, its affiliated entities and persons, and
their respective members, partners, officers, directors, shareholders, and employees from
any claims, demands, loss, liability, damages, costs or expenses (including attorneys'
fees, expert witness fees, court costs and any and all litigation fees and costs) made
against or suffered with regard to any breach by Assignee of the Development Agreement
and/or this Agreement ("Assignee Indemnity"). The foregoing Assignee Indemnity
shall be binding on Assignee's assignees, successors -in -interest, and any person or entity
that takes title to the Assigned Property.
7. Dcvelonneiit Agreement in Full Force and Effect. Except as specifically provided herein
with respect to the assignment, all the terms, covenants, conditions and provisions of the
Development Agreement are hereby ratified and shall remain in full force and effect.
8. Recording. Assignor shall cause this Agreement to be recorded in the Official Records
on the Assigned Property, and shall promptly provide conformed copies of the recorded
Agreement to Assignee and City.
9. Successors and Assigns. Subject to the restrictions on transfer set forth in the
Development Agreement, all of the terms, covenants, conditions and provisions of this
Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their
respective heirs, successors and assigns, pursuant to Section 7.3 of the Development Agreement.
10. Assignee Address for Notices.
The address of Assignee for the purpose of notices, demands and communications Linder
Section 8.5 of the Development Agreement shall be:
Rich Development Enterprises LLC
1000 N. Western Ave., Suite 200
San Pedro, CA 90732
Attn: Joe Rich
with copies to
Corfield Feld LLP
30320 Rancho Viejo Road, Suite 101
San Juan Capistrano, CA 92675
Attention: Richard Feld, Esq.
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The City shall send a copy of any Notice of Default under Section 6.1.2 of the Development
Agreement related to the Property or the Assigned Site to both Assignor and Assignee
11. California LawNenue, This Agreement shall be construed and enforced in accordance
with the laws of the State of California, without reference to choice of law provisions. Any legal
actions under this Agreement shall be brought only in the Superior Court in Riverside County,
State of California.
12. Interpretation. All Parties have been represented by counsel in the preparation and
negotiation of this Agreement, and this Agreement shall be construed according to the fair
meaning of its language. The rule of construction to the effect that ambiguities are to be resolved
against the drafting party shall not be employed in interpreting this Agreement. Unless the
context clearly requires otherwise: (a) the plural and singular numbers shall each be deemed to
include the other; (b) the masculine, feminine, and neuter genders shall each be deemed to
include the others; (e) "shall," "will," or "agrees" are mandatory, and "may" is permissive;
(d) "or" is not exclusive; and (e) "includes" and "including" are not limiting.
13. Headings. Section headings ni this Agreement are for convenience only and are not
intended to be used in interpreting or construing the terms, covenants or conditions of this
Agreement.
14. Severability. Except as otherwise provided herein, if any provision(s) of this Agreement
is (are) held invalid, the remainder of this Agreement shall not be affected, except as necessarily
required by the invalid provisions, and shall remain in full force and effect unless amended or
modified by mutual consent of the Parties.
15. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to constitute an original, but all of which, when taken together, shall
constitute one and the same instrument, with the same effect as if all of the Parties to this
Agreement had executed the same counterpart.
16. City Consent. City is executing this Agreement for the limited purpose of consenting to
the form of assignment and assumption agreement pursuant to Section 7.3 of the Development
Agreement and clarifying that there is privity of contract between City and Assignee with respect
to the Development Agreement.
17. Effective Date/Amendments. The Effective Date of this Agreement shall be the date
upon which Assignee obtains fee title to the Property and delivers evidence of the transfer to
City. For the purposes of this Section, the evidence of transfer shall consist of a duly recorded
deed and title report. This Agreement shall not be amended except by an agreement in writing
signed by the parties hereto or their respective successors -in -interest.
[Signature Page Follows]
0
IN WITNESS WHEREOF, Assignor, Assignee and City have entered into this Agreement as of
the date first above written.
"ASSIGNOR"
STARK MENIFEE LAND LLC,
a Wisconsin limited liability company
By: Stark Offshore Management, LLC
its Manager
"ASSIGNEE"
RICH DEVELOPMENT ENTERPRISES,
LLC,
a California limited liability company
M.
By - _. Name: - -
Name: Its:
Its:
[Notary Acknowledgments Required]
[Signatures continued on next page]
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ATTEST:
APPROVED AS TO FORM:
CITY
CITY OF MENIFEE, a political subdivision of the
State of Californi
By:.
Name: o tt Johnson
Title: ' City Manager
[Notary Acknowledgment Required]
-8-
STATE OF CALIFORNIA }
ss.
COUNTY OF i ej )
oft be re me, ��(,�� � W60di U FF , Notary Public, personally
appeared . , who proved to me on the basis of satisfactory
evidence to be the p , onC4 whose name(r) islax�e subscribed to the within instrument and
acknowledged to me that he/shd/tkty executed the same in his/hpr/t4Qir authorized capacity(ix),
and that by his/her/thoT signatures} on the instrument the person(, or the entity upon behalf of
which the person(kacted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
STATE OF WISCONSIN
ss.
COUNTY OF
JULIE wooDRUFF
Commisalon # 1939215
e Notary Public - California s
San Diego County
M Comm. Explm May 3Q, 2�35
(Seal)
On before me, , Notary Public, personally
appeared _ _ , who 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), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of Wisconsin that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
ME
(Seal)
sm
EXHIBIT NO, 1
ASSIGNED PROPERTY LEGAL DESCRIPTION
That certain real property located in the City of Menifee, County of Riverside, State of California
described as follows:
THAT PORTION OF PARCELS 5,6 AND 7 OF PARCEL MAP NO. 9504, IN THE CITY OF
MENIFEE, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN BY MAP ON
FILE. IN BOOK 67 PAGES 5 AND 6 OF PARCEL MAPS, RECORDS OF RIVERSIDE
COUNTY, CALIFORNIA LOCATED EAST OF PALOMA WASH, AS PALOMA WASH IS
DESCRIBED IN TIIAT CERTAIN RECORDED _, 2012 AS
INSTRUMENT NO.
[NOTE: The legal description created by the title company following the recordation of the
Lot Line Adjustment or Parcel Map and reasonably approved by each party hereto shall
be used in all closing documents]
ESTOPPEL CERTIFICATE
(Menifee Town Center Project Development Agreement)
To: Rich Development Enterprises LLC
1000 N. Western Ave., Suite 200
San Pedro, CA 90732
Attn: Joe Rich
Re: That certain Development Agreement dated June 13, 2011 recorded on June 21, 2011 as
Document No. 2011-0272260) ("DA") by and between the City of Menifee ("City") and Stark Menifee,
LLC ("Developer") affecting the real property described therein in Menifee, California (the "Pro ert")
Ladies and Gentlemen:
We understand that the Developer is under contract to sell Planning Area 3, an approximately 15.09-acre
portion of the Property ("Assigned d Property") to Rich Development Enterprises, LLC ("Rich"), subject to
a partial assignment of the DA as to the Assigned Property. The undersigned City, as a party to the DA,
hereby certifies to Developer and Rich, and the members (current and future), designees, successors,
assigns, lenders, and any prospective encumbrancers of the Property (including the Assigned Property) of
each as follows:
1. The DA is in full force and effect and has not been altered, modified or amended.
2. The DA, including all provisions thereof, is a binding and enforceable obligation of the City and
Developer.
3. To Agency's knowledge, Developer is in frill compliance with the terms and conditions of the
DA, and no Default has occurred under Section 6.1 of the DA.
4. The undersigned individual executing this letter on behalf of the City represents and warrants that
he or she is duly authorized to execute and deliver this letter on City's behalf pursuant to Section
8.14 of the DA.
Dated this day of , 2014
Sincerely,
«City„
The Cit. , enif a municipal corporation of the State of California
By: �.
Name: RobbJohnson
Title: Citv Manaaer
A > fed As To Form
ie Biggs, Ci ttn� n�
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