HomeMy WebLinkAboutContract 1560-7 •
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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 November 30, 2016, by and between GreenSpring Capital, Inc., a
California corporation ("GreenSpring"), Cathedral Canyon Development, LLC, a
California limited liability company ("Cathedral Canyon") 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").
GreenSpring, Cathedral Canyon 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. On October 26, 2016, City and Saxony entered into that
Assignment, Assumption and Consent Agreement, under which Saxony assigned, and
City consented to the assignment by Saxony of, all of its Rights and Obligations in, to
and under the Transfer Agreement to GreenSpring and GreenSpring 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, or between City and Saxony before the assignment to GreenSpring.
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), Amendment No. 5
(March 9, 2016) collectively the "Amendments". The Transfer Agreement shall be
deemed to be inclusive of all of the Amendments.
D. GreenSpring has set up an affiliate or related business known as
Cathedral Canyon Development, LLC in order to hold and operate the Project.
GreenSpring now desires to assign all of its Rights and Obligations in, to and under the
Transfer Agreement to Cathedral Canyon, and Cathedral Canyon desires to assume
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GreenSpring's Rights and Obligations in the Transfer Agreement for the purpose of
undertaking the Project.
E. Section 9 of the Transfer Agreement requires GreenSpring 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
assumption of the Rights and Obligations between GreenSpring and Cathedral Canyon
and the approval of City.
F. City has determined that the assignment by GreenSpring and assumption
by Cathedral Canyon 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 GreenSpring
and the assumption by Cathedral Canyon of the Rights and Obligations in, to and under
the Transfer Agreement pursuant to Section 9 thereof.
2. Assignment. GreenSpring, as assignor, hereby transfers, assigns and
conveys all of its Rights and Obligations in, to and under the Transfer Agreement to
Cathedral Canyon.
3. Release. City hereby releases GreenSpring, and GreenSpring 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. Cathedral Canyon 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 GreenSpring under the Transfer Agreement, such failures to perform and/or
defaults, if any, are not hereby excused or waived and Cathedral Canyon assumes and
shall be responsible for cure of same, as provided under the Transfer Agreement.
5. Forbearance and Amendment. City and Cathedral Canyon agree that
certain Project related deadlines that GreenSpring has the obligation to perform
("Deadlines") have either expired or are likely to expire before Cathedral Canyon has a
reasonable opportunity to complete them. The Deadlines are variously set forth in
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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 Cathedral Canyon
also agree that they mutually desire to assess the potential to modify or expand the
scope of the Project. To that end, City and Cathedral Canyon have negotiated
Amendment No. 6 to the Transfer Agreement concurrently with this AAC Agreement,
and provided it is approved by City and Cathedral Canyon 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
AAC 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 AAC 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 AAC 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 AAC 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
AAC Agreement.
6.5 Captions; Interpretation. The section headings used herein are
solely for convenience and shall not be used to interpret this AAC Agreement.
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6.6 Severability. If any term, provision, condition or covenant of this
AAC 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
extent permitted by law, unless the rights and obligations of the Parties have been
materially altered or abridged thereby.
6.7 Counterparts. This AAC 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 GreenSpring and Cathedral
Canyon. 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, GreenSpring, and Cathedral Canyon have
executed this AAC Agreement as of the date first set forth above.
CONSENTING PARTY
CITY OF CATHEDRAL CITY,
a California municipal corporation
B y rtA , f
Char es P. McClendon
City Manager
ATTEST:
fits
61
Gary F. Howell, ity Clerk
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APPROVED AS TO FO:
„de
Eric S. Vai , City Attorney
ASSIGNOR
GREENSPRING CAPITAL, INC.,
a California corporation
By:
Eric eillor
President
By: b lie/'(
Eric Keillor
Secretary
ASSIGNEE
CATHEDRAL CANYON DEVELOPMENT,
LLC,
a 6 ,
By: err' /rlr'L
ifs Moyer
By:
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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 Ora n
On'��dLinwjer , before me, 61 I e 7't", personAl y ppearedEY1(� te111o(, proved to me on the
basis of satisfactory evid a to be the person( whose na - . Sri /are subscribed to the within instrument and
nowledged to me than 'she/they executed the same i �/ heir authorized capacity(fes)- and that by
hi her/their signature(on the instrument the person(p), or e entity upon behalf of which the person acted,
xecuted the instrumeht.
ll
I certify under PENALTY OF PERJURY unde e .ws of the State of California that the foregoing paragraph is true and
correct.
NATALIE ASIK
WITNESS my hand :nd '.fficial seal. / p NOTARYPUBLIC-CALIFORNIA
A COMMISSION#2005454 c
f ORANGE COUNTY
Signature: 0...4....,-- 1 M 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
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❑ PARTNER(S) ❑ LIMITED NUMBER OF PAGES
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