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HomeMy WebLinkAboutRecorded Doc 2020-049 _ 2020-0645209 RECORDING REQUESTED BY: 12/18/2020 10:17 AM Fee: $ 20.00 CITY CLERK Page 1 of 14 Recorded in Official Records WHEN RECORDED RETURN TO: County of Riverside Peter Aldana Assessor-County Clerk-Recorder City erk City of Cll Cathedral City III! 2.4l wynkr I II I 68-700 Avenida Lalo Guerrero ME Cathedral City, CA 92234 Q Q rJ SPACE ABOVE THIS LINE FOR RECORDER'S USED 0 / TERMINATION, RELEASE AND ASSUMPTION AGREEMENT BY AND BETWEEN SOL RECOVERY LLC, HPH HOMEBUILDERS 2000, L.P., AND THE CITY OF CATHEDRAL CITY THIS TERMINATION, RELEASE AND ASSUMPTION AGREEMENT ("TRA Agreement") dated 23 , 2020, for reference purposes only, is entered into by and among Sol Recovery, LLC, a California Limited Liability Company ("Sol"), HPH Homebuilders 2000 L.P., a California Limited Partnership ("HPH") and the City of Cathedral City, a municipal corporation ("City"). Sol, HPH, and City may hereinafter sometimes be referred to individually as a "Party" or collectively as "Parties". RECITALS A. The City and Sol entered into a certain Subdivision Improvement Agreement dated February 8, 2017, for public improvements within Tract No. 32858 ("Original Improvement Agreement") which was recorded on March 1, 2017, as Document No. 2017-0084471 in Official Records, in the office of the County Recorder of Riverside County; and B. The Original Improvement Agreement provided, among other things, for the installation and completion, at Sol's expense, of certain public improvements required by the City in connection with the approval of the final tract map for Tract No. 32858, located in the City of Cathedral City, California (the "subdivision"). C. Sol contemplates the sale of some or all of the lots within Tract 32858 to HPH Homebuilders 2000 L.P., a California Limited Partnership, which sale is expected to be completed within the near future. D. Paragraph 18 of the Original Improvement Agreement provides that upon the sale, transfer or other disposition of all or any portion of the subdivision prior to completion of the improvements, Sol may request a Novation of the Original Improvement Agreement, and a substitution of securities by the new owner or assignee (hereinafter collectively for purposes of this section, "Successor"). E. Sol does hereby request that a Termination, Release and Assumption Agreement now be executed between the City, Sol and HPH in order that HPH may assume J • the obligations of Sol as contained within the original Improvement Agreement related to the public improvements, and that Sol be released from such obligations of said Original Improvement Agreement as they pertain to any lots in Tract 32858 conveyed by Sol to HPH. F.. HPH has agreed to perform such public improvement obligations in accordance with an amendment to the existing "Improvement Agreement, Tract No. 28639-1 and 32559", dated July 12, 20189, between the City and HPH, which amendment is to be executed by HPH together with this TRA agreement (the "New Amendment"). G. The City Council of the City finds that it serves the best interests of the City and benefits the public to acknowledge HPH as the successor party to the interests of Sol under the Original Improvement Agreement as it relates to improvements associated with any lots within Tract No. 32858 as HPH may acquire in the future, and that recognizing HPH as the new developer under the New Improvement Agreement will facilitate completion and administration of the remaining improvement work in Tract No. 32858. AGREEMENT NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: Section 1: RECITALS The Recitals set forth above are true and correct and are hereby incorporated into this TRA agreement by this reference as though set forth completely herein. Section 2: EFFECTIVE DATE OF AGREEMENT (a) This TRA Agreement shall only become effective as to the assumption of obligations related to lots within Tract No. 32858 as of the date all of the following have occurred: (1) All parties have executed this TRA Agreement; (2) HPH has executed the New Amendment; and (3) HPH has provided substitute improvement bonds and securities satisfactory to the City guaranteeing completion of the public improvements within Tract No. 3285 pertaining to lots purchased by HPH from Sol. (b) Should HPH fail to execute the New Amendment and/or fail to provide the required new improvement bonds and securities within the time limit prescribed therein, and following the expiration of any applicable cure period, this TRA shall be of no force or effect and Sol shall remain liable for the performance under the terms of the Original Improvement Agreement. The foregoing notwithstanding, any failure of HPH to timely execute the New Amendment or to provide the new improvement securities will be deemed a default under this TRA Agreement, and entitle the other Parties to exercise, against HPH, any and all rights and remedies on default as contemplated by Section 13 herein. • Section 3. WAIVER OF RIGHTS As of the Effective Date, Sol confirms the transfer of the obligations of the Original Improvement Agreement to HPH as they pertain to the public improvements related to any lots in Tract No. 32858, and waives any claims and rights against the City that it now has or may have in the future in connection with the Original Improvement Agreement, with the exception of Sol's right to receive/refund of its securities on the terms and conditions set forth herein. Section 4. OBLIGATIONS OF HPH As of the Effective Date, HPH shall be bound by and perform the obligations pertaining such lots in Tract No. 32858 as it has purchased from Sol, in accordance with the terms and conditions of the New Amendment and this TRA agreement, including without limitation: (1) completing the remaining and/or partially completed public improvements and setting missing property corners and survey monuments; (2) providing new improvement securities and (3) assuming all obligations and liabilities with respect to said lots and improvements arising after the Effective date of this TRA Agreement. Section 5. CITY'S RECOGNITION OF HPH AS SUCCESSOR-IN-INTEREST As of the Effective Date of this TRA Agreement, the City shall recognize HPH as the Successor-in-Interest to Sol under the terms and conditions set forth herein and in the New Amendment as they pertain to the lots within Tract No 32858 as it has purchased from Sol. Except as otherwise set forth herein or in the New Amendment, HPH shall further become entitled to all remaining rights, title and interests of Sol under the Original Improvement Agreement as if HPH had been the original principal under the said Original Improvement Agreement. Section 6. RELEASE; REMAINING OBLIGATIONS As of the Effective Date of this TRA Agreement, Sol shall be released from those remaining liabilities and performance obligations under the Original Improvement Agreement which HPH assumes and undertakes pursuant to the terms of the New Amendment, or any future amendment thereof. Notwithstanding the foregoing, in no event shall Sol be released from any liabilities or claims arising from (or which may arise from) work completed or actions taken by Sol with respect to the portions of Tract 32858 assumed by HPH prior to the Effective date of this TRA Agreement, including without limitation, liabilities or claims for injuries to public improvements/property/utilities or defective work.. Section 7. RELEASE OF SECURITIES TO SOL (a) Section 2 of the Original improvement Agreement required Sol to maintain security for the performance of certain work in Tract 32858 which security was provided in the following forms and amounts: (1) To assure faithful performance of the terms and conditions of the Original Improvement Agreement, a corporate surety bond in the amount of$ 862,500 (the "Performance Bond"); (2) To secure payment for labor and materials, a labor and materials bond in the amount of$ 431,250 (the "Labor & Materials Bond"); (3) To guarantee payment of the estimated cost of setting required lot corners and survey monuments, a cash bond in the amount of $ 11,500 ( the "monumentation bond"); (b) The securities previously posted and/or required to be posted by Sol as detailed above shall be refunded, released or reduced by the City in accordance with the provisions of the Original Improvement Agreement, this TRA Agreement and all applicable subdivision laws as follows: (1) Within fourteen (14) days of the execution of this TRA Agreement and the New Amendment by all parties, and after the posting of substitute securities by HPH, the City will authorize the reduction of the above Sol Performance bond by an amount equal to 100% of the estimated cost of the improvements assumed by HPH, based upon units, quantities and unit prices contained within the Original Improvement Agreement, and will similarly authorize the reduction of the above Labor & Material Bond by an amount equal to 50% of such estimated cost. (2) Within fourteen (14) days of the execution of this TRA Agreement and the new improvement agreement by all parties, and after the posting of substitute securities by HPH, the City will authorize the reduction of the above Sol Monumentation bond by an amount equal to the estimated cost of such monumentation and survey work being assumed by HPH. Section 8. TERMINATION OF ORIGINAL IMPROVEMENT AGREEMENT As of the effective Date of this TRA Agreement, all those public improvement obligations contained in the Original Improvement Agreement with Sol pertaining to such lots in Tract 32858 as purchased by HPH shall terminate and be of no further force or effect, except for any obligations and liabilities which by their own terms are intended to survive termination of the Original Improvement Agreement. Section 9. NON-LIABILITY OF CITY OFFICERS AND EMPLOYEES No officer or employee of the City shall be personally liable to any other Party, or any successor-in-interest, in the event of any default or beach by the City of any obligation of the terms of this TRA Agreement. Section 10. ENFORCEMENT OF AGREEMENT Except as specifically limited by the terms of this TRA Agreement, any party to this TRA Agreement shall have the right to enforce, by proceedings at law or in equity, all rights, terms and conditions now or hereafter imposed or created by the provisions of this TRA Agreement, or any amendment thereto, including the right to prevent the violation of any such rights, terms and conditions and the right to recover damages for such violation. Section 11. COOPERATION; FURTHER DOCUMENTATION AND ASSURANCES Each party shall cooperate in good faith and timely deliver any such documents and instruments, and shall take other such actions as may be reasonably required or appropriate to evidence or carry out the intent of this TRA Agreement. Section 12. DEFAULT (a) Failure or delay by any party to this TRA Agreement to perform any material term or provision of this TRA Agreement shall constitute a default under the TRA Agreement, provided however, that if the Party who is otherwise claimed to be in default by the other Party commences to cure, correct or remedy the alleged default within fifteen (15) calendar days after receipt of written notice specifying such default and shall diligently complete such cure, correction or remedy, such Party shall not be deemed to be in default hereunder. (b) Notwithstanding the provisions of Section 12(a), any failure by HPH to execute the New Amendment and/or post new securities as required in Section 2 hereof or by the New Amendment, shall be subject to a ten (10 ) business day cure period. (c) The Party which may claim that a default has occurred shall give written notice of default to the Party in default, specifying the alleged default. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default; provided, however, the injured Party shall have no right to exercise any remedy for a default hereunder without delivering the written notice, as specified herein. (d) Any failure or delay by a Party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any rights or remedies associated with a default. (e) In the event that a default of any Party to this TRA Agreement may remain uncured for more than fifteen (15) calendar days (or ten (10) business days in the event of a default specified in Section 12(b) hereof) following written notice as provided above, a "breach" shall be deemed to have occurred. In the event of a breach, the injured Party shall be entitled to seek any appropriate remedy of damages by initiating legal proceedings. Section 13. CUMULATIVE REMEDIES All rights, options, and remedies of the Parties under this TRA Agreement are cumulative, and no one of them shall be exclusive of any other, and the Parties hereto shall have the right to pursue any one or all of such rights, options and remedies, or any other remedy or relief that may be provided by law, whether or not stated in this TRA Agreement. Section 14. WAIVER (a) No waiver shall be binding as to any provision of this TRA Agreement, unless executed in writing by the Party making the waiver. (b) No waiver of any provision of this TRA Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. (c) Failure of any Party to enforce any provision of this TRA Agreement shall not constitute a waiver of the right to compel enforcement of the remaining provisions of this TRA Agreement. (d) Except as expressly provided in this TRA Agreement, nothing herein shall be construed as a waiver of any rights of the City against Portales. Section 15. NOTICE Any notice that any party may desire to give to another party must be in writing and shall be given by personal delivery, by overnight courier delivery or by mailing the same by registered or certified mail, return receipt requested, to the Party to whom the notice is directed at the address of such Party hereinafter set forth, or at such other addresses as the Parties may hereinafter designate I writing. Any notice given by mail shall be deemed given forty-eight (48) hours after such notice is deposited in the United States Mail, addressed as provided, with postage fully prepaid. Notice by overnight courier service (e.g. Fed Ex) shall be deemed given the next business day after deposited with the courier service. If to Sol: Sol Recovery, LLC do Inland Communities Corp. 690 E. Green Street. Suite 200 Pasadena CA 91101 I • Phone: 323-874-8000 If to HPH: HPH Homebuilders 2000, L.P. 1341 Horton Circle Arlington, Texas 76011 Attn: With copy to: D. R. Horton 2280 Wardlow Circle, Suite 100 Corona CA 92880 Attn: Megan Whieldon If to City: City of Cathedral City 68700 Avenida Lalo Guerrero Cathedral City CA 92234 Attn: City Manager With copy to: City of Cathedral City 68700 Avenida Lalo Guerrero Cathedral City CA 92234 Attn: Director of Engineering Section 16. ENTIRE AGREEMENT This TRA Agreement represents the entire agreement of the Parties specifically relating to the termination, release and assumption of duties with respect to the Original Improvement Agreement, and with the exception of the New Amendment required to be executed with HPH and the City, does not affect, alter amend or terminate any other agreements by and between the Parties. Section 17. MODIFICATIONS AND AMENDMENTS This TRA Agreement may be modified or amended only by a written instrument Signed by all Parties. Section 18. SEVERABILITY If any one or more of the sentences, clauses, paragraphs or sections contained herein is declared invalid, void or unenforceable by a court of competent jurisdiction, the same shall be deemed severable from the remainder of this TRA Agreement and shall not affect, impair or invalidate any of the remaining sentences, clauses, paragraphs or sections contained herein. • Section 19. NOT AGENT OF THE CITY The Parties shall in no event be deemed to be partners of one another by reason of the terms of this TRA Agreement, nor shall Sol, HPH or any of their respective agents, employees, or contractors be considered agents of the City under the terms hereof. Section 20. ATTORNEY'S FEES If any action, suit or proceeding is brought for the enforcement of, or the declaration of any right or obligation pursuant to this TRA Agreement or as the result of any alleged breach of any provision of this TRA Agreement, the prevailing Party in such suit or proceeding shall be entitled to recover its costs and expenses, including reasonable attorney's fees, from the losing Party, and any judgment or decree rendered in such a proceeding shall include an award thereof. Section 21. GOVERNING LAW This TRA Agreement is deemed to have been made in the State of California, and its interpretation, its construction and the remedies for its enforcement or breach are to be applied pursuant to, and in accordance with the laws of the State of California for contracts made and to be performed therein. Section 22. VENUE All proceedings involving disputes over the terms, provisions, covenants or conditions contained in this TRA Agreement and all proceedings involving any enforcement action related to this TRA Agreement shall be initiated and conducted in the applicable court of forum in Riverside County, California. Section 23. COUNTERPARTS This TRA Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. Section 24. LEGAL ADVICE The Parties hereto represent and warrant the following: (1) They have carefully read this TRA Agreement, and in signing this TRA Agreement and/or agreeing to be bound by same, they do so with full knowledge of any rights which they may have; (2) they have received independent legal advice from legal counsel as to the matters set forth in the TRA Agreement, or have knowingly chosen not to consult legal counsel as to the matters within this TRA Agreement; and (3) they have freely signed this TRA Agreement and/or agreed to be bound by it without any reliance upon any agreement, promise, statement or representation by or on behalf of the City, or its respective agents, employees, officers or attorneys, except as specifically set forth in this TRA Agreement • (and/or where applicable set forth in the New Improvement Agreement), and without duress or coercion, whether economic or otherwise. This TRA Agreement shall be interpreted as though prepared jointly by all parties. Section 25. REPRESENTATIONS OR PERSONS EXECUTING AGREEMENT Each individual executing this TRA Agreement represents that he or she is duly authorized to execute and deliver this TRA Agreement on behalf of the Party for which he or she is signing, and that this TRA Agreement is binding upon the Party for which he or she is signing in accordance with its terms. (Signatures follow on next page) IN WITNESS WHEREOF, the Parties have executed this TRA Agreement as of the dates set forth below. "Sol": SOL RECOVERY, LLC A California Limited Liability Company By: Inland Communities Corp., A California Corporation, Its: G ral Mana fi, B G�3-azo Jamal A. Ahmad Date President "HPH": HPH HOMEBUILDERS 2000 L.P. A California Limited Partnership By: Western Pacific Housing Management Inc. A California Corporation, its General Partner By: RJ tActiLV/V2a Vicki ullion Asst. Secretary a Da to "City": CITY OF CATHEDRAL CITY A Muni•. orporatio By: 0 A 1, _% •-le1-202-D Charles P. McClendon Date City Manager ATTEST: Tracey R.-, artin-z, CMC City Clerk APPROVED TO • : APPROVE r A TOC• � TENT: OF City Attorney Direc • Engineering • ACKNOWLEDGMENT 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 Los Angeles On September 23, 2020before me, A. Anaya , Notary Public (insert name and title of the officer) personally appeared Jamal A. Ahmad who proved to me on the basis of satisfactory evidence to be the person( whose name(k) subscribed to the within instrument and acknowledged to me that he/ executed the same in his/befitheif authorized capacity a), and that by his/hcr/thoir signature() on the instrument the person(), 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. A. ANAYA '` comm.N 2267755 a mow..•• NOTARY PUKE•CALNIOmuv Los ANGELES Cowry Comm.Exp.NOV.1S,2022 • Signature '1 i1,��1 (Seal) IN WITNESS WHEREOF, the Parties have executed this TRA Agreement as of the dates set forth below. "Sol": SOL RECOVERY, LLC A California Limited Liability Company By: Inland Communities Corp., A California Corporation, Its: General Manager By: Jamal A. Ahmad Date President "HPH": HPH HOMEBUILDERS 2000 L.P. A California Limited Partnership By: Western Pacific Housing Management Inc. A California Corporation, its General Partner By: ���z-1AdA— V/Virt) Vicki Gullion, Asst. Secretary Date "City": CITY OF CATHEDRAL CITY A Municip. Corporatio BY: �' , _ L . J l 2`1. zozb arles P. McClendon Date City Manager ATTEST: \itt.tte_SYLLIJ Tracey rwmartinez, CM 'e City Clerk APPROVED 'op Te FARM: APPROVED A TO C• TENT: m. City Attorney Dire"or 'f ngineering ACKNOWLEDGMENT 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 Riverside ) On 8/18/2020 before me, Alyssa M. Bottinelli, Notary Public (insert name and title of the officer) personally appeared Vicki Gullion 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. 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