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2017/09/22 Agreement Partial Assignment and Assumption Agreement' CHICAGO TITLE COMPANY COMMERCIAL DIVISION RECORDING REQUESTED BY ) AND WHEN RECORDED MAIL TO: ) ) City of Menifee ) 29714 Haun Road ) Menifee, CA 92586 ) Attn: City Clerk ) DOC # 2017-0395168 09/22/2017 04:32 PM Fees: $72.00 Page 1 of 15 Recorded in Official Records County of Riverside Peter Aldana Assessor -County Clerk -Recorder "This document was electronically submitted to the County of Riverside for recording" Receipted by: LISA #580 (Space Above This Line for Recorder's Use Only) Exempt from Recording Fee per Government Code §27383 PARTIAL ASSIGNMENT AND ASSUMPTION AGREEMENT (Planning Area 4) THIS PARTIAL ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement") is entered into as of the aw �'`� day of September, 2017, by and among STARK MENIFEE LAND LLC, a Wisconsin limited liability company ("Assignor"), LENNAR HOMES OF CALIFORNIA, INC., a California corporation ("Assignee"), and CITY OF MENIFEE, a municipal corporation of the State of California ("City"). RECITALS A. Stark Menifee Land LLC, a Wisconsin limited liability company (in its capacity as "Developer") has entered into a Development Agreement with the City effective June 13, 2011 (Recorder's Document No. 2011-0272260) (as amended, the "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. B. Assignor is the fee owner of the approximately 12.20 net 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 Assignee 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 1159100/OC 370946-00020 Parcel 26 of Menifee Town Center DOC #2017-0395168 Page 2 of 15 the allocation of responsibilities and obligations between the Assignor and Assignee as to the Assigned Property, and (iii) this Agreement shall be recorded in the in the Official Records of Riverside County ("Official Records") as an encumbrance on the Assigned Property. E. Assignor has provided the required written notice to City of its intent to enter into an assignment and assumption agreement as required by Section 7.3, this Agreement is substantially in the form of Exhibit C to the Development Agreement, provides that the Assignee agrees in writing to be subject to all of the applicable provisions of the Development Agreement, provides for the allocation of responsibilities and obligations between the Assignor and Assignee as to the Assigned Property, and shall be recorded in the Official Records as an encumbrance on the Assigned Property. F. Assignor desires to assign to Assignee and Assignee desires to assume the rights and obligations of Assignor under the Development Agreement applicable to the Assigned Property as provided in this Agreement. Upon execution of this Agreement and transfer to Assignee of legal title to the Assigned Property, Assignor desires to be released from all obligations under the Development Agreement as to the Assigned Property as provided in this Agreement. AGREEMENT NOW, THEREFORE, Assignor, Assignee and City hereby agree as follows: 1. Assignment by Assignor. Assignor hereby assigns, transfers and grants to Assignee, and its successors and assigns, all of Assignor's rights, title and interest and obligations, duties, responsibilities, conditions and restrictions under the Development Agreement that are directly applicable to, directly serve, directly benefit and/or directly relate to the Assigned Property (collectively, "Assigned Rights and Obligations"). The term "Assigned Rights and Obligations," however, shall not include those rights and obligations provided in subsection l (i)-(iv) below which shall not be assigned to the Assignee but shall be expressly retained by Assignor. (i) All rights, obligations and liability related to Section 2.2 (Term), including but not limited to Developer's obligations set forth in the Development Agreement. Assignor shall have the right to account for any development on the Assigned Property to comply with the requirement for extension set forth in Section 2.2 and Exhibit F. (ii) All rights, obligations and liabilities related to Section 3.19 (Civic Center Site), Section 3.19.1 (Conveyance of the Civic Center Site), Section 3.19.2 (Improvements Related to Civic Center Site), Section 3.20 (Courthouse Site), Section 3.20.1 (Manner of Exercise of City's Option), Section 3.20.2 (Determination of Market Value), Section 3.20.3 (Condition of Title), Section 3.20.4 (Escrow Fees, Title Charges, and Closing Costs), Section 3.21 (Public Park Obligation), and Section 3.21.1 (Timing and Scope of Public Parking Improvements, Park, Dedication and Pedestrian Bridge). (iii) All rights and obligations related to the submission of the Annual Review form to the City pursuant to Section 6.2 (Annual Review). The Assignee shall submit the required information as to the Assigned Property to the Assignor 1159100/OC 370946-00020 -2- Parcel 26 of Menifee Town Center DOC #2017-0395168 Page 3 of 15 no later than March 1st of each year of the Term for inclusion in the Annual Review form for the Project and shall cooperate in good 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 seek to amend the Development Agreement to meet the reasonable requirements of any lender or mortgagee for the Assigned Property, subject to City approval pursuant to Section 8.3, only with the prior written approval of the Assignor, which Assignor 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 17 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. Assignee and 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 terms and intent of this Agreement) to include Assignee's proposed development of the Assigned Property in a manner compliant with the vested rights secured under the Development Agreement. 1 159100/OC 370946-00020 '3' Parcel 26 of Menifee Town Center DOC #2017-0395168 Page 4 of 15 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 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. Assignor and Assignee_ Agreements, Indemnifications 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. 1 159100/OC 370946-00020 -4- Parcel 26 of Menifee Town Center DOC #2017-0395168 Page 5 of 15 (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 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. Development 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 under Section 8.5 of the Development Agreement shall be: Lennar Homes of California, Inc. 980 Montecito Drive, Suite 300 Corona, CA 92879 Attn.: Jeff Clemens, Executive Vice President 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 1159100/OC 370946-00020 -5- Parcel 26 of Menifee Town Center DOC #2017-0395168 Page 6 of 15 11. California Law/Venue. 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; (c) "shall," "will," or "agrees" are mandatory, and "may" is permissive; (d) "or" is not exclusive; and (e) "includes" and "including" are not limiting. 13. Headinas. Section headings in 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] 1159100/OC 370946-00020 -6- Parcel 26 of Menifee Town Center DOC #2017-0395168 Page 7 of 15 IN WITNESS WHEREOF, Assignor, Assignee and City (subject to the limitations set forth in Section 16) 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 a Wisconsin limited liability company Its: Manager By: Name: Its: Managing Member [Notary Acknowledgments Required] [Signatures continued on next page] 1159100/OC 370946-00020 Signature Page Parcel 26 of Menifee Town Center DOC #2017-0395168 Page 8 of 15 "ASSIGNEE" LENNAR HOMES OF CALIFORNIA, INC., a California corporation By: Nam Title 1159100/OC 370946-00020 Signature Page Parcel 26 ofMenifee Town Center DOC #2017-0395168 Page 9 of 15 ATTEST: By: APPROVED AS TO FORM: By: CITY CITY OF MENIFEE, a political subdivision of the State of California By:Z— 157,�eA Name: Ronald E. Bradley Title: Interim City Manager [Notary Acknowledgment Required] <J 1 ej- tjtj I a C C c-G n4lf4r--19 ll1 City Attorney 1159100/OC 370946-00020 Signature Page Parcel 26 of Menifee Town Center DOC #2017-0395168 Pagel 0 of 15 ATTEST: By: City Clerk APPROVED AS TO FORM: Y City Attorney CITY CITY OF MENIFEE, a political subdivision of the State of California Name: Ronald E. Bradley Title: Interim City Manager [Notary Acknowledgment Required] 1159100/OC 370946-00020 Signature Page Parcel 26 of Menifee Town Center DOC #2017-0395168 Page 11 of 15 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF WISCONSIN ) ss. COUNTY OF MILWAUKEE ) On August 30, 2017 before me, Jenifer C. Bersch , Notary Public, personally appeared Brian J. Stark 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 &A .41 C'&\kk Notary Public, State o isconsin My Commission expires May 29, 2020 NOTARY, '•� I (Seal) 1159100/OC 370946-00020 Acknowledgment Parcel 26 of Menifee Town Center DOC #2017-0395168 Page 12 of 15 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ss. COUNTY OF71 Q ) On 1 UI before me, Notary Public, personally appeared 1W.mens w o proved to me on the basis of satisfactory evidence to be the personts) whose name) is/fxe subscribed to the within instrument and acknowledged to me that he/ske/fty executed the same in his/hbr/th'bir authorized capacity(ibs), and that by his/tier/their signature(5) on the instrument the person, or the entity upon behalf of which the personN) acted, 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. d BEIH 6$UUT Signature Acknowledgment 1159100/OC 370946-00020 COMM. #2075619 z °s • Notary Public Calif Riverside County ornia a Comm, Ex fires Jul 24, ?Ol& P (Seal) Parcel 26 of Menifee Town Center DOC #2017-0395168 Page 13 of 15 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ss. COUNTY OF k11/21-518Q' ) 1 On �f 5 u 1ZD t before me, �. �i r , Notary Public, personally appeared (�onal fadlP �/ who proved to m"i on the basis of satisfactory evidence to be the person whose name)&/q'e subscribed to the within instrument and acknowledge to me that e1 Vlthy executed the same i h's fit`/their authorized capacity, and that by�%hgf/thir signature(4 on the instrument the person(), or the entity upon behalf of which the perso%'s) acted, 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. WITNFCC my hand and nfficinl Peal SARAN A. MAWWPJ N16 Notary Public - California -: Riverside County i = Commission #t 2164953 My Comm. Expires Sep 17, 2020 (Seal) 1159100/0C 370946-00020 Acknowledgment Parcel 26 of Menifee Town Center DOC #2017-0395168 Page 14 of 15 ILLEGIBLE NOTARY SEAL DECLARATION GOVERNMENT CODE 27361.7 1 certify under penalty of perjury that the notary seal on the document to which this statement is attached reads as follows: Name of Notary Notary Identification Number County Where Bond Is Filed Date Commission Exp Vendor# Place of Execution: Redlands, CA DATE: I / O`49-//� SARAH A. MANWARING 2164953 RIVERSIDE SEP 17, 2020 ►` rkT, .V SPL, Inc. as ag Signature DOC #2017-0395168 Page 15 of 15 EXHIBIT 1 ASSIGNED PROPERTY LEGAL DESCRIPTION That certain real property located in the City of Menifee, County of Riverside, State of California described as follows: PARCEL 26 OF PARCEL MAP NO. 36299-19 IN THE CITY OF MENIFEE, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 238, THROUGH 93, INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE RECORDER OF SAID COUNTY, APRIL 28, 2015, AS AMENDED BY THAT CERTIFICATE OF CORRECTION COC 16-001 RECORDED APRIL 26, INSTRUMENT NO. 2016-0165375 OF OFFICIAL RECORDS. APN: Portion of 360-080-060-3; 360-080-061-4 F�W. m - NO- IIs9looioc EXHIBIT 1 370946-00020 -1- PAGES 88 COUNTY CERTAIN 2016 AS Parcel 26 of Menifee Town Center