2018/08/30 Agreement RSI Communities, LLC - Partial Assignment and AssumptionSCAN!.. rD
08/30/2018 03:09 PM Fee: $ 0.00
RECORDING REQUESTED BY ) Page 1 of 11
AND WHEN RECORDED MAIL TO: l Recorded in Official Records
l County of Riverside
Peter Aldana
Assessor -County Clerk -Recorder
City of Menifee ) , 1
29714 Haun Road ) � � 11tit l
Menifee, CA 92586
■ f�!``J 1111
Attn: City Clerk )
(Space Above This Line for Recorder's Use Only)
Exempt from Recording Fee per Government Code §27383
PARTIAL ASSIGNMENT AND ASSUMPTION AGREEMENT
(Planning Area 1)
THIS PARTIAL ASS] T AND ASSUMPTION AGREEMENT ("Agreement") is entered
into as of theme day o�,, 018, by and among RSI COMMUNITIES — CALIFORNIA LLC,
a Delaware limited liability company ("Assignor"), PROJECT ROYAL, LP, a Delaware limited
partnership ("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 ("Stark") (in its
capacity as "Developer") 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. Pursuant to that certain Partial Assignment and Assumption Agreement dated as of
November 7, 2017, by and among Stark, Assignor and City, and recorded November 11, 2017 as
Doc # 2017-0466367 ("Prior Partial Assignment"), Stark partially assigned its rights in the
Development Agreement to Assignor, as more particularly set forth therein.
C. Assignor has conveyed to Assignee a portion of the Property, more particularly
described in Exhibit 1 attached hereto and incorporated herein ("Assigned Property").
D. Assignor desires to transfer its interest under the Development Agreement with
respect to 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.
E. Section 7.3 of the Development Agreement provides that Assignor may freely
assign less than all of its rights and obligations under the Development Agreement to another party
who acquires less than the entirety of the Property owned by Assignor , provided that (i) the
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Assignor shall have provided to City at least ten (10) business days prior written notice of the
Assignment, including the name and address of the Assignee for notice purposes, (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 the Official
Records of Riverside County ("Official Records") as an encumbrance on the Assigned Property.
F. 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.
G. 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.
H. Subject to the requirements set forth above in Recital F, the Development
Agreement provides that Assignor may freely assign its rights and duties under the Development
related to the Assigned Property to an assignee who acquires the Assigned Property of the
Assignor.
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 obtained
pursuant to the Prior Partial Assignment that are directly applicable to, directly serve, directly
benefit and/or directly relate to the Assigned Property (collectively, "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.
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3. Substitution of Assignor. With respect to the Assigned Rights and Obligations
related to the Assigned Property, Assignee shall be substituted for and replace Assignor in the
Development Agreement. 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.
4. Assignee's Representations and Warranties.
(a) Assignee represents and warrants to City as follows:
(i) Assignee is a limited partnership 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, (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,
5. 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)
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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 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.
(e) Nothing contained herein, or the acceptance of this Agreement by Assignee,
shall be deemed or construed to modify, waive, impair or affect any of the covenants,
agreements, terms, provisions or conditions contained in the Option and Development
Agreement dated March 9, 2018 by and between Assignor and Assignee ("ODA"). If
there is any conflict between the terms, conditions and provisions of this Agreement and
the ODA, the terms, conditions and provisions of the ODA shall prevail.
6. Development Agreement in Full Force and Effect. Except as specifically provided
herein with respect to the assignment of the Assigned Rights and Obligations, all the terms,
covenants, conditions and provisions of the Development Agreement are hereby ratified and shall
remain in full force and effect and Assignor agrees that Assignor has no defense, counterclaim,
set-off or any other claim to diminish its liability to Assignee or City under the Development
Agreement.
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7. Recording. Assignor shall cause this Agreement to be recorded against the
Assigned Property in the Official Records of the County of Riverside, and shall promptly provide
conformed copies of the recorded Agreement to Assignee and City.
8. 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.
9. 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:
Project Royal, LP
c/o Hearthstone, Inc.
24151 Ventura Blvd.
Calabasas, CA 91302
Attn: Steven Porath, Esq., General Counsel
With a copy to:
RSI Communities — California LLC
680 Newport Center Drive, 3`d Floor
Newport Beach, CA 92660
Attn.: Mitch Perez and Pat Donahue
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 Property to both Assignor and Assignee
10. 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.
11. 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.
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12. Headings. 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.
13. 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.
14. 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.
15. 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.
16. 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]
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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.
"ASSIGNOR"
RSI COMMUNITIES — CALIFORNIA LLC,
a Delaware limited liability company ,,e _
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
r
Lo
191 V1 q rei
Southern California
On J 0pse_ VD 2018, before me, �� IQ '�` f L I
�' personally appeared
4�iCk who proved to me on the basis of satisfactory evidence to be the
person(s) whose name$) is/are subscribed to the within instrument and acknowledged to me that
he/5xe/Oxy executed the same in his/Wt�i`r authorized capacity0s), and that by his/bWdwrr
signature on the instrument the person(j; or the entity upon behalf of which the personK
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.
Signature l (Seal)
0
[Signatures continued on next page]
VIRGINIA REEDER
Commission #t 2127674 z
Notary Public - California
Orange County r
My Comm. Expires Oct 20, 2019
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370946-00025 Signature Page Menifee Town Center- PA
"ASSIGNEE"
PROJECT ROYAL, LP,
a Delaware limited partnership
By: BP-HS RSI Land Venture GP, LLC,
a Delaware limited liability company, its
General Partner
By: BP-HS RSI Land Venture LLC, a Delaware
limited liability company, its Sole Member
By: Hearthstone Professionals — SH, L.P., a
Delaware limited partnership, its Manager
By:
Name: Steven C. Nrath
Title: Authorized Representative
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 DS AA)
<o �Z 00
�)
Ong reJ2018, before me, e/ bLe ersonaly appeared
�62 who proved to me on the basis of satisfactory evidence to be the
personvwhose nameVis/ap--subscribed to the within instrument and acknowledged to me that
he/she�khey-executed the same in hiss authorized capacity4ies'}, and that by hisAwwAhe4r
signatureV on the instrument the personx, or the entity upon behalf of which the person
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. CHERYLA. STUDLEY
Notary Public— California
i Los Angeles County
f Commission # 2220077
My Comm. Expires Ocl 28, 2021
Signature �rr���[[i Uk,&ZhAeal)
[Signatures continued on next page]
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370946-00025 Signature Page Menifee Town Center - PA
CITY
CITY OF MENIFEE,
a political subdivision of the State of California
OLN
By:
Name: A m ndo G. Villa
Title: City Manager
[Notary Acknowledgment Required]
N. .
- By
�i'I'lz[)1/E:17 AS TO FORM:
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370946-00025 Signature Page Menifee Town Center - PAl
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 )
gwr-51d'e'
ss.
COUNTY OF }
On 3 2,91f before me, SaraA tq &1!2jnLa r; aja Notary Public, personally
appeared llcf lj k,jcj,r, G. Ur lla— who proved o me on the basis of satisfactory
evidence to be the person whose name r9� subscribed to the within instrument and
acknowledged to me that�elthe� executed the same in �ef/thyif authorized capacity,
and that by tArr th#r slgnature�j on the instrument the person, or the entity upon behalf of
which the persono 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.
V
S
SARAH A. MANWARING
" Notary Public - California
Riverside County x
a :» a
i+ Commission #r 2164953
All Comm Expires Sep 17. 2020
(Seal)
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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:
PARCELS 3 THROUGH 8, INCLUSIVE, OF PARCEL MAP NO. 36299-1, 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 16-001, RECORDED APRIL 26, 2016 AS INSTRUMENT NO. 2016-
0165375, OF OFFICIAL RECORDS.
APN: 360-080-67, 68, 69, 70, 71, 72
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