2017/11/07 Agreement Partial Assignment and Assumption AgreementDEC ## 2017=0466367
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1CA0� TITLE COMPANY
CN L DIVISION
COMMERCIA
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL. T0:
City of Menifee )
297 ] 4 Haun Road )
Menifee, CA 92586 )
Una, City City Clerk )
11 /07/2017 04:19 PM Fees: $0.00
Page 1 of 14
Recorded in Official Records
County of Riverside
Peter Aldana
Assessor -County Clerk -Recorder
**This document was electronically submitted
to the County of Riverside for recording"
Receipted by: BRIANA #221
(Space Above This Line for Recorder's Use Only)
DFF s Exempt from Recording Fee per Government Code §27383
T)TT p ai cl on Gb (Ze-c CaVACu 1(rtn �L
.�
PARTIAL ASSIGNMENT AND ASSUMPTION AGREEMENT
(Planning Area 1)
THIS PARTIAL ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement") is entered
into as of the day of , 2017, by and among STARK MENIFEE LAND LLC, a
Wisconsin limited liability company ("Assignor"), RSI COMMUNITIES-CALIFORNI.A LLC, a
Delaware limited liability company ("Assignee"), and CITY OF MENIFEE, a municipal
corporation of the State of California ("City").
RECITALS
A. Stark Menifee Land LLC, a Wisconsin limited liability company (in its capacity as
"Developer") has entered into a Development Agreement with the City effective June 13, 2011
(Recorder's Document No. 2011-0272260) (as amended, the "Development Agreement") to
facilitate the development of that certain real property owned by Developer within the City of
Menifee, State of California, which is legally described in Exhibit A to the Development
Agreement ("Property"). Capitalized terms used but not otherwise defined herein shall have the
meaning ascribed to such terms in the Development Agreement.
Be
Assignor is the fee owner
Property, more particularly described in
("Assigned Property").
of the approximately 2$
.67 gross acre portion of the
Exhibit 1 attached hereto and incorporated herein
C Assignor desires to transfer its interest
concurrently with execution of this Agreement and Assign
the Assigned Property from Assignor.
in the Assigned Property to Assignee
ee desires to so acquire such interest in
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 (1) the Assignor shall have provided to City
at least ten (10) business days prior written notice, (110 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
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the allocation of responsibilities and obligations between the Assignor and Assignee as to the
Assigned Property, and (1'*1) 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 Agre41
ement 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
NOVV, THEREFORE, Assignor, Assignee and City hereby agree as follows:
1. Assignment by Assi nor. 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
collectivel , "Assigned Rights and Obligations"). The term "Assigned Rights and Obligations,"
( y g
however, shall not include those rights and obligations provided in subsection 1(i)-(iv) below
do
which shall not be assigned to the Assignee but shall be expressly retained by Assignor.
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(i) All rights, obligations and liability related to Section 2.2 (Term),
including UUL 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)
Center Site
All rights, obligations and liabilities related to Section 3.19 (Civic
), Section 3.19. l (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
(Determination
Section 3.20.4
(Manner of Exercise of City's Option), Section 3.20.2
of Market Value), Section 3.20.3
(Condition of Title),
Public Park Obl(Escrow Fees, Title Charges, and Closing Costs), Section 3.21
(igation), and Section 3.21.1 (Timing and Scope of Public Parking
Improvements, Park, Dedication and Pedestrian Bridge).
(121) 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
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no later than March I 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 t
e Assigned Rights and Obligat
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,
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5. Assi
tations and
(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 Delaware, and duly registered to transact
business and in 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, 00 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
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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 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 A rg Bement 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. Recordi �. Assignor shall cause this Agreement to be recorded in the Official
Records on the Assigned Property, and shall promptly provide conformed copies %J 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.
ianee Address for Notices.
The address of Assignee for the purpose of notices,
Section 8.5 of the Development Agreement shall bee.
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demands and communications under
RSI Communities -- California LLC
680 Newport Center Drive, 3rd Floor
Newport Beach, CA 92660
Attn.: Mitch Perez and Pat Donahue
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The City shall send a
copy of any Notice of Default under Section 6.11 of the Development
Agreement related to the Property or the Assigned Property to both Assignor and Assignee
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;
( "will," or
c} "shall," "agrees" are mandatory, and "may" is permissive; (d) "or" iS not exclusive;
and (e) "includes" and "including" are not limiting.
13. Head. inks. 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 provisions} 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. Cites 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. 1 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
signed
by the parties hereto or their respective successors -in -interest.
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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.
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"ASSIGNER"
STARK MENIFEE LAND LLC,
a Wisconsin limited liability company
By: Stark Offshore Management LLC
a Wisconsin limited liability company
Its: Manager
By�
Its: Mana�in� Member
[Notary Acknowledgments Required)
[Signatures continued on next page)
Signature Page Menifee Town Center - PAI
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A notary public or other officer completing this
individual who signed the document to which this c
CC;
accuracy, or validity of that document.
STATE OF WISCONSIN )
ss.
COUNTY OF MILWAUKEE )
verifies only the identity of the
ertificate is attached, and not the truthfulness,
pn October 261 2017 before tne, Jenifer C. Bersch ,Notary Public, personally
appeared Michael A. Roth who proved to me on the basis of satisfactory
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signatures) on the instrument the person(s), or the entity upon behalf of
which the persons) acted, executed the instrument.
evidence to be the persons) whose name(s) is/are subscribed to the within instrument and
I certify under PENALTY �F PERJURY under the laws of the State of Wisconsin that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
Notary (�ublic,�St'ate of Wisconsin
My Commission expires on May 291 2020
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Acknowledgment
.C)
.� NOTAR y V
00
090
• Dom- •-�•�ill
fte
amb
OF W Sj
(Seal)
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- Year . DocID 2 017. 4 663 67 Page
DO ; ##2017-0466367 Page 9 of 14
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",A►SSIGNEI+�"
I�SI �+�MM�JNITIES- �A.LIF�RNIA T_�T��'y
a Delaware limited liability company
Name:
Tit
[Notary Acknowledgments Required)
��natures continued on next
Signature Page
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D4C #201 7-0466367 Pagel 0 of 14
A notary public or other officer completing this certificate verifies
individual who signed the document to which this certificate is attached
accuracy, or validity of that document.
STATE OF CALIFORNIA
� Ss.
CO
On
app
only the identity of the
and not the truthfulness,
Notary Public, personally
on the basis of satisfactory
evidence to be the persons) whose names) 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),
a„d that by h;s/hPr/rhPir signature(s) on the instrument the nersonlsl, or the entity upon behalf of
which the persons) acted, executed the instrument.
� certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragTaph is true and correct. _
WITNESS my hand and official seal.
Signature
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Acknowledgment
(Seal)
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ATT
By:
APPROVED AS T4 FORM:
By.
City Attorney
� 2�z�isroc
370946-00025
�CIT'Y
CITY OF 1VIENIFEE,
a political subdivision of the State of California
By:
Name: Ronald E. Bradley
Title: Interim City Manager
[Notary Acknowledgment Required]
Sto�rZd w Ci�un-Itn,pn,�-
Signature Page
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ATTEST:
8y;
City Clerk
APPROVED AS T4 FORM:
By'
City
t 1b2718/OC
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ttorney
�CIT I
CITY �� MEN�FEE,
a political subdivision of the State of California
By:
Name: Ronald E. Bradley
Title: Interim City Manager
[Notary Acknowledgment Required)
Signature Page
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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
COUNTY OF
On 2�{ 20l before me, � . �\I �,Notary Public, personally
appeared 090aQki igrajLe who proved to me on the basis of satisfactory
evidence to be the persoM whos name" GYare subscribed to the within instrument and
acknowledged to me that 4F cie/th6 executed the same in O/Kr/ttir authorized capacity(ires�j,
and that by Q/Vr/tyir signaturee on the instrument the person( or the entity upon behalf of
which the person�j 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.
w•wua ■ a A AL "&As a n a U#%
WITNESS my hand and official seal.
S ignatu
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E��IBIT 1
ASSIGNE]) PROPERTY LEGAL UESCRIPr1yYON
That certain real property located in the City of M%Will e, County of Riverside, State of California
described as follows:
PARCELS 3 THROUGH 8, INCLUSIVE, OF PARCF.I., M.AP NO. 36299- I , IN THE CITY OF
MENIFEE, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP FILED IN
BOOK 238, PAGES 88 THROUGH 93, INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF
THE COUNTY RECORDER OF SAID COUNTY, APRIL 28, 2015. A CERTIFICATE OF
CORRECTION COC 1 &001, RECORDED APRIL 26, 2016 AS INSTRUMENT NO, 2016-
0165375, OF OFFICIAL RECORDS.
APN: 360-080-�`►�,068� 69,D70071�72
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