HomeMy WebLinkAboutContract 1683 - oe2
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ASSIGNMENT, ASSUMPTION, AND CONSENT AGREEMENT
(for PROPERTY TRANSFER AGREEMENT)
This Assignment, Assumption and Consent Agreement ("AAC Agreement") is
entered into as of October 26, 2016, by and between Saxony Living, LP, a California
limited partnership, ("Saxony"), GreenSpring Capital, Inc., a California corporation
("GreenSpring"), and Cathedral City, a California municipal corporation, acting solely in
its role as the Successor Housing Agency to the Former Redevelopment Agency of the
City of Cathedral City, ("City"). Saxony, GreenSpring and City are sometimes referred
to individually as a "Party" or collectively referred to as the "Parties."
RECITALS
A. City and Thermal Land, LLC, ("Thermal") entered into that certain
Property Transfer Agreement and Escrow Instructions dated August 28, 2013
("Transfer Agreement"), which provided for the sale of the Property (as described in
the Transfer Agreement) to Thermal upon timely completion of the Project, a mixed use
residential / commercial development (as described in the Transfer Agreement).
B. City, Thermal and Saxony entered into that certain Assignment of Property
Transfer Agreement dated November 18, 2014, by which City consented to the
assignment by Thermal of all of its interests, rights, title, obligations, duties and
responsibilities, terms, conditions, and covenants in, to and under the Transfer
Agreement ("Rights and Obligations") to Saxony, and Saxony assumed all such
Rights and Obligations. The Project was not completed and the purchase and sale of
the Property was not consummated between City and Thermal before the assignment to
Saxony.
C. The Transfer Agreement has been amended with the concurrence of City
by Thermal, and subsequently by Saxony, five (5) times which amendments include,
Amendment No. 1 (March 12, 2014), Amendment No. 2 (August 14, 2014), Amendment
No. 3 (February 26, 2015), Amendment No. 4 (October 28, 2015) and Amendment No.
5 (March 9, 2016), collectively the "Amendments". The Transfer Agreement shall be
deemed to be inclusive of all of the Amendments.
D. Saxony now desires to assign all of its Rights and Obligations in, to and
under the Transfer Agreement to GreenSpring, and GreenSpring desires to assume
Saxony's Rights and Obligations in the Transfer Agreement for the purpose of
undertaking the Project.
E. Section 9 of the Transfer Agreement requires Saxony to obtain the
express written approval of City prior to assigning any of its Rights and Obligations in, to
and under the Transfer Agreement to another Party. This AAC Agreement is intended
by the Parties to satisfy all of the requirements of Section 9 for the assignment and
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by the Parties to satisfy all of the requirements of Section 9 for the assignment and
assumption of the Rights and Obligations between Saxony and GreenSpring and the
approval of City.
F. City has determined that the assignment by Saxony and assumption by
GreenSpring of the Rights and Obligations in, to and under the Transfer Agreement will
assist in bringing the Project to fruition.
OPERATIVE PROVISIONS
NOW, THEREFORE, in exchange for the mutual covenants set forth herein and
for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereby agree as follows:
1. Consent. City does hereby consent to the assignment by Saxony and the
assumption by GreenSpring of the Rights and Obligations in, to and under the Transfer
Agreement pursuant to Section 9 thereof.
2. Assignment. Saxony, as assignor, hereby transfers, assigns and conveys
all of its Rights and Obligations in, to and under the Transfer Agreement to
GreenSpring.
3. Release. City hereby releases Saxony, and Saxony hereby releases City,
from any and all negotiations, agreements, claims, damages of any kind whatsoever, or
other acts or omissions in connection with the Transfer Agreement, the Amendments, or
this AAC Agreement.
4. Assumption. GreenSpring hereby accepts the foregoing assignment,
assumes all such Rights and Obligations, and agrees to perform and discharge all such
obligations of Saxony under the Transfer Agreement, including, without limitation, the
executory and unfulfilled terms, conditions, and covenants of the Transfer Agreement,
inclusive of the Amendments. Except as expressly provided to the contrary in this AAC
Agreement, to the extent that conditions exist which constitute a failure to perform or a
default by Saxony under the Transfer Agreement, such failures to perform and/or
defaults, if any, are not hereby excused or waived and GreenSpring assumes and shall
be responsible for cure of same, as provided under the Transfer Agreement.
5. Forbearance and Amendment. City and GreenSpring agree that certain
Project related deadlines that Saxony has the obligation to perform ("Deadlines") have
either expired or are likely to expire before GreenSpring has a reasonable opportunity to
complete them. The Deadlines are variously set forth in Exhibits to the Transfer
Agreement and Amendments, and are identified in the Exhibits variously as the
"Schedule of Obligations," the "Escrow Deadlines," the "Project Schedule," and/or the
"Conditions required to be Fulfilled." City and GreenSpring also agree that they
mutually desire to assess the potential to modify or expand the scope of the Project. To
that end, City and GreenSpring have negotiated Amendment No. 6 to the Transfer
Agreement concurrently with this AAC Agreement, and provided it is approved by City
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and GreenSpring and becomes effective and binding on those Parties: (1) City will
forbear providing notice of default or pursuing any remedy (including without limitation
assessing liquidated damages, pursuing any reversionary interest, or commencing any
suit at law or equity) made available under the Transfer Agreement, inclusive of the
Amendments, for any failure to satisfy one or more of the previously existing Deadlines
stated in the Transfer Agreement or Amendments, including without limitation any
Deadline set forth in sections 5.9, 5.10, 5.12, 5.16, 10 or 13 or any Exhibit to the
Transfer Agreement or Amendments; and (2) each Party will be deemed to have waived
and released the other Party from reimbursement of any costs and expenses incurred
by the Party, and from any default or breach of the Transfer Agreement, inclusive of the
Amendments, and from any damages, including liquidated and consequential damages
and other liabilities arising therefrom.
6. General Provisions
6.1 Recitals. Each of the Recitals set forth above is incorporated in this
MC Agreement as though set forth in full herein and the Parties acknowledge and
agree to the truth and accuracy thereof.
6.2 Governing Law; Venue. This MC Agreement shall be interpreted
and enforced in accordance with the laws of the State of California without regard to
principles of conflicts of laws. Any action to enforce or interpret this MC Agreement
shall be filed and litigated exclusively in the Superior Court of Riverside, California or in
the Federal District Court for the Central District of California.
6.3 Entire Agreement/Amendment. This MC Agreement, together with
the Transfer Agreement, inclusive of the Amendments, constitutes the entire agreement
between the Parties with respect to the subject matter hereof, and supersedes all prior
written and oral agreements with respect to the matters covered by this Agreement.
This AAC Agreement may not be amended except by an instrument in writing signed by
each of the Parties.
6.4 Further Assurances. Each Party shall execute and deliver such
other certificates, agreements and documents and take such other actions as may be
reasonably required to consummate or implement the transactions contemplated by this
MC Agreement.
6.5 Captions; Interpretation. The section headings used herein are
solely for convenience and shall not be used to interpret this MC Agreement.
6.6 Severability. If any term, provision, condition or covenant of this
MC Agreement, or its application to any Party or circumstance, shall be held by a court
of competent jurisdiction, to any extent, to be invalid or unenforceable, the remainder of
this AAC Agreement, or the application of the term, provision, condition or covenant to
persons or circumstances other than those as to whom or which it is held invalid or
unenforceable, shall not be affected, and shall be valid and enforceable to the fullest
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extent permitted by law, unless the rights and obligations of the Parties have been
materially altered or abridged thereby.
6.7 Counterparts. This MC Agreement may be executed in
counterparts, each of which shall, irrespective of the date of its execution and delivery,
be deemed an original, and the counterparts together shall constitute one and the same
instrument
6.8 Effective Date. This AAC Agreement shall be binding and effective
by and amongst the Parties on the date first stated above, provided the AAC Agreement
has been approved by City's City Council and executed by its City Manager and has
been duly executed by the authorized representative(s) of Saxony and GreenSpring. All
persons executing this AAC Agreement represent and warrant to the other Parties that
they are the duly designated representative of their respective Party and have full power
and authority to execute the AAC Agreement on their Party's behalf.
IN WITNESS WHEREOF, City, Saxony, and GreenSpring have executed this
MC Agreement as of the date first set forth above.
CONSENTING PARTY
CITY OF CATHEDRAL CITY,
a California municipal corporation
B
p
s�I .L i., -
Charles P. McClendon
City Manager
ATTEST:
111.4.61MLIIVet
Gary H•well, City "-rk
APPROVED AS • • `M
Eric S. Vail, City Attorney
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ASSIGNOR
SAXONY LIVING, LP,
a California limited partnership
By: J.L.J. Management, L.L.C,
a Delaware limited liability company
its gener I Partner
By:
Martin"iolemo _
Manager
ASSIGNEE
GREENSPRING CAPITAL, INC.,
a California corporation
By:
Eric Keillor
President
By:
Eric Keillor
Secretary
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189
Asa. v. v.Aft.Aft._w • .An..w
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
`1\ )
County of (V/t I�
On OC 2-01, before me, J-e�1 a1-74../a/ v%
Date Here Insert Name and Title,6f the Officer
personally appeared //l t7r'i4h !J6/PLO
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the persom(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/stieltlaey executed the same in
his/IiertHheif-authorized capacity(ies), and that by hiss heir signature(s)on the instrument the persontsj;
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 California that the foregoing paragraph
is true and correct.
o.:• -; COM 1M. #EN1 CAMPA
2165264 z WITNESS my hand and official seal.
. ' Notary Public•California Z
V Riverside County ° Signature
Cornet. ,fires Oct.5 2020
i• ature o otary Public
Place Notary Seal Above
OPTIONAL
Though this section is optional, completing this information can deter alteration of the document or
fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document:aSS/9h9nekrr< q��SSah v D_ Document Date:
Number of Pages: 5 Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Name:
❑ Corporate Officer — Title(s): ❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General ❑ Partner — ❑ Limited ❑ General
❑ Individual ❑Attorney in Fact ❑ Individual ❑Attorney in Fact
❑Trustee ❑ Guardian or Conservator ❑Trustee ❑ Guardian or Conservator
❑Other: ❑ Other:
Signer Is Representing: Signer Is Representing:
02014 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY(1-800-876-6827) Item #5907
ASSIGNOR
SAXONY LIVING, LP,
a California limited partnership
By: J.L.J. Management, L.L.C,
a Delaware limited liability company
its general partner
By:
Martin Dolemo
Manager
ASSIGNEE
GREENSPRING CAPITAL, INC.,
a California corporation
By: 11
Eric Keillor
President
By: C /4difit
Eric Keillor
Secretary
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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.
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF 6 at rig-e ``,1 �IN∎j1%
On bdemb a before e, � l
r� eli �GI+(I�I e A3��L-� , personally <.geared Eh� �Z i Q r , proved to me on the
basis of satisfactory evide a to be the person)whose na �.- ..are subscribed to the within instrument and
nowledged to me thane he/they execute the same i er heir authorized capacity(iese), and that by
er/their signature on the instrument the person(�f, or e entity upon behalf of which the person(Xacted,
ecuted the instrum nt. ��
I certify under PENALTY OF PERJURY u,:- o laws of the State of California that the foregoing paragraph is true and
correct.
,��, NATALIE ASIK
3,��� NOTARY PUBLIC-CALIFORNIA
WITNESS my hand and .fficial seal. a' COMMISSION#2005454 c
ORANGE COUNTY
Signature:
A I Comm.Ex .Janua 27.2017
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could
prevent fraudulent reattachment of this form
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
❑ INDIVIDUAL
❑ CORPORATE OFFICER
TITLE OR TYPE OF DOCUMENT
TITLE(S)
❑ PARTNER(S) ❑ LIMITED NUMBER OF PAGES
❑ GENERAL
❑ ATTORNEY-IN-FACT DATE OF DOCUMENT
❑ TRUSTEE(S)
El GUARDIAN/CONSERVATOR SIGNER(S)OTHER THAN NAMED ABOVE
❑ OTHER
SIGNER IS REPRESENTING:
(NAME OF PERSON(S)OR ENTITY(IES))
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