HomeMy WebLinkAboutA6730 - RREF II-DC Cameron, LLC2019-0380100
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Recorded in official Records
County of Riverside
Peter Aldana
Assessor -County Clerk -Recorder
WHEN RECORDED MAIL TO: III K�� F15,
�') II
Toll Bros., Inc.
250 Gibraltar Road
Horsham, PA 19044
Attention: Yolanda Rodriguez, Esq.
(Space above this line is for recordees use)
THIRD AMENDMENT TO AND
ASSIGNMENT AND ASSUMPTION OF
SUBDIVISION EWPROVEMENT AGREEMENT
#221
THIS THIRD AMENDMENT TO AND ASSIGNMENT AND ASSU PTION OF
SUBDIVISION IMPROVEMENT AGREEMENT ("Assignment") is made this day of
2019, by and among RREF II -DC Cameron, LLC, a California limited Lability
com ("Assignor"), Toll West Inc. Doing Business in California as Toll Brothers West Inc., a
Delaware corporation ("Assignee'), and the City of Palm Springs, California, a municipal corporation
("City").
RECITALS
A. Assignor and the City entered into that certain Subdivision Improvement Agreement
dated April 19, 2016 and recorded on April 26, 2016 as Document No. 2016-0164393 in the Official
Records of Riverside County, Calas amended by that certain First Amendment to the Subdivision
ifom
Improvement Agreement dated L, 2018 and recorded on 2018 as
Document No. in the Official Records of Riverside County, California, and that certain Second
Amendment to the Subdivision Improvement Agreement dated �, 2019 and recorded on
. 2019 as Document No. in the Official eeords of Riverside County,
California (as amended, the "Original SIA"), a copy of which is attached hereto as Exhibit A and fully
incorporated herein by this reference, relating to the development of the property described as a
subdivision of Tract Map No. 33575, as approved by the City and as recorded in Map Book 446, pages 17
through 20 inclusive in the Official Records of Riverside County, California (the "Property"). Initially
capitalized terms used and not otherwise defined herein shall have the meanings set forth in the Original
SIA.
B. As set forth in the Original SIA, Assignor, as Subdivider, has agreed to construct and
install certain improvements to accommodate the development of Tract Map No. 33575 (the "Works of
Improvement") and to offer for dedication to the City, the streets, easements and other improvements and
facilities as shown on Tract Map No. 33575. Pursuant to Section 4.1(a) of the Original SIA, Subdivider
has provided the City with those certain bonds, a list of which is set forth on Exhibit B attached hereto
and fully incorporated herein by this reference (collectively, the "Existing Security Instruments"), each
as security for the Assignor's faithful performance of the Works of Improvement required under the
Original SIA, including without limitation, construction of the Works of Improvement.
C. In accordance with the Original SIA, Subdivider installed a portion of the Works of
Improvement (the "Installed Improvements").
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D. In accordance with the Agreement for Sale and Purchase of Property dated January 25,
2019 as amended ("Purchase Contract") between Assignor, as seller, and Assignee, as buyer, Assignee
agreed to purchase the Property and replace the Existing Security Instruments (serving as the "Required
Security" provided by the Assignor under the Original SIA, as Subdivider) with the Approved
Replacement Bonds (as defined below) upon the terms and conditions set forth in the Purchase Contract.
E. Assignor, as seller, conveyed all right, title and interest in the Property to Assignee, as
buyer, by Grant Deed dated March 27, 2019 and recorded on March 27, 2019 as Document No. 2019-
0102382 in the Official Records of Riverside County, California.
F. The City has not accepted dedication of the streets, easements and other improvements
and facilities as shown on Tract Map No. 33575 by Subdivider as of the conveyance of the Property to
Assignee. Until such time as the City does approve and provide final acceptance of dedication of the
Works of Improvement by Subdivider, the Subdivider, and its successors and assigns, must maintain the
Required Security as set forth in the Original SIA.
G. Assignor desires to assign to Assignee, without representation or warranty, all of
Assignor's rights, titles, interests, benefits, privileges, claims, duties, and obligations (collectively,
"Assignor's Interests") pursuant to, contained within and in accordance with the Original SW as
amended hereby and, subject to receipt of the assurances and other agreements of the City set forth
herein, Assignee desires to assume the Interests in accordance with the terms of this Assignment.
H. ASsi .,As&iamae =Lththe Ci�hp� �yjsh�_pt le�he_teptl�-md_couditiot�h�+
whichAssounce mill deliver the AtximyCd$eglecrment Bonds_a &th9iW a .Iha
nd Assignor's obligations will be released.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
are acknowledged, the parties agree as follows.
1. ALliomentgng Allurnotion
1.1 Assignor hereby grants, transfers and assigns to Assignee all of Assignor's Interests
pursuant to, under, and contained within the Original SW as amended by this Assignment, without
recourse, representation or warranty.
1.2 Assignee hereby fully accepts the foregoing assignment and unconditionally
assumes and agrees to perform, in a timely manner, all of the duties and obligations of Subdivider arising
pursuant to, under or contained within the Original SIA, as amended by this Assignment (the Original
SIA, as so amended, the "SIA"), with the same force and effect as if Assignee had initially executed the
Original SIA as the Subdivider. Assignee agrees and acknowledges that, upon execution of this
Assignment, Assignee shall become the Subdivider under the SIA.
2. ftgneration and Replacement of Existing Security lnstruments. The City hereby agrees
that upon delivery by Assignee to City of duly executed bonds in form and substance approved by the
City as being in compliance with the SIA and fully executed by Western Surety Company and Assignee
as described in Exhibit C which is attached hereto and fully incorporated herein by this reference (the
"Approved Replacement Bonds"), City shall return the Existing Security Interests to Assignor.
Notwithstanding the foregoing, City agrees that, upon request from Assignor, it shall execute and deliver
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a separate letter stating that Assignor and the applicable bonding companies and/or sureties with respect
to the Existing Security Instruments are released and exonerated from any and all liability with respect to
the Original SIA and the Existing Security Instruments, which letter shall enclose and release the originals
of each of the Existing Security Instruments.
3. Release
3.1 Upon delivery by Assignee to the City of the Approved Replacement Bonds (the
"Assignment Effective Date"), this Assignment shall constitute the City's release and exoneration of
Assignor, and their applicable bonding companies and/or sureties with respect to the Existing Security
Instruments and from any and all liability with respect to the Original SIA and the Existing Security
Instruments. After execution of this Assignment by all parties and delivery by Assignee to the City of the
Approved Replacement Bonds, Assignor shall have no obligation to Assignee or to the City and shall
have no liability of any nature under the SIA.
31 In this regard, Assignee and City, each for itself and for their respective members,
agents, employees, predecessors, successors, assigns, agents, and all other persons or entities who may
claim through It, does hereby release and forever discharge Assignor and its respective members,
managers, officers, shareholders, partners, directors, employees, agents, lenders, attorneys, successors,
assigns. and related and/or affiliated parties, from any and all manner of action, suit, lien, damage,
expense (including attorneys' fees), claim or demand of whatever nature heretofore or hereafter arising
out of, related to, connected with the SIA.
3.3 In connection with the general release set forth herein, each of Assignee and City
specifically waives the provisions of California Civil Code Section 1542, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN
HIS OR HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR."
Each of Assignee and City knowingly and voluntarily waives the provisions of Civil
Code Section 1542 and any other comparable provisions or principles of state, federal or common law
and acknowledges and agrees that this waiver is an essential and material term of this Assignment and the
release provisions contained herein and that, without such waiver, this Assignment would not have been
entered into. Each of Assignee and City understands and acknowledges the significance and consequences
of the release set forth herein and this specific waiver of Civil Code Section 1542 and all other
comparable provisions or princip state, federal law or common
Wssignee's Initials Ci s Initials
4. Effect of Assignment and Assumption. From and after the Assignment Effective Date,
the City and Assignee agree that: (a) Assignee shall be deemed a party to the Original SIA and any
reference therein to "Subdivider" shall be deemed to refer to Assignee; and (b) Assignee shall be entitled
to exercise and enforce the Original SIA as the Subdivider as if Assignee had been a signatory to the
Original SIA or a beneficiary thereunder as of the date of its original execution.
5. INTENTIONALLY DELETED
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6. affect gf Assignment on Interpretation oESIA.
6.1 Inert ,Mretation of SIA. The City and Assignee hereby acknowledge and agree that,
from and after the Assignment Effective Date, certain rights, duties and obligations under the SIA shall be
interpreted as follows:
6.1.1 Assignee shall be responsible only for the accuracy and satisfaction of those
obligations, representations and warranties of the Subdivider arising from and
after the Assignment Effective Date; and
6.1.2City acknowledges that (a) Assignee is entering into this Assignment in reliance
upon the agreements of City contained in Section 5 of this Assignment to waive
defaults and extend the time period for performance by Assignee, and (b) City
hereby waives and hereafter shall be estopped from pursuing any rights or
remedies against Subdivider (as that term is used prior to, on and after the
Assignment Effective Date) in connection with any alleged breach of the SIA
prior to the Assignment Effective Date.
6.1.3Notices, Demands and Communications to Subdivider from and after the
Assignment Effective Date shall go to Assignee as indicated below:
Toll West Inc. doing business in California as Toll Brothers West Inc.
8767 E. Via de Ventura, #390
Scottsdale, AZ 85258
Attention: Kevin Duermit
Phone: (602) 549-5822
Email: kduermit@tollbrothers.com
With a copy to:
Toll Bros., Inc.
250 Gibraltar Road
Horsham, PA 19044
Attention: Mark Warshauer, Esq.
Phone: (215) 938-9260
E-mail: mwarshauer@tollbrothers.com
6.1.4Terms: No Other Chances Unless otherwise expressly indicated herein, all
references in Original SIA and in this Assignment to "this Agreement" or the
"SIA" shall mean and refer to the Original SIA as modified by this Assignment
and other than the amendments and changes herein, all provisions of the
Original SIA remain unmodified and in full force and effect. In the event of any
conflict or inconsistency between the terms of the Original SIA and this
Assignment, the terms of this Assignment shall control.
7. Miscellaneous Provisions.
7.1 Entire AyaMenl This Assignment, together with the Original SIA, constitutes the
entire agreement between the parties in regards to the subject matter contained herein.
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7.2 Recitals. The Recitals above are incorporated herein by reference.
73 Governing Law. This Assignment shall be governed by, interpreted under, and
construed and enforceable in accordance with the laws of the State of California.
7.4 Interpretation, All of the parties hereto have been represented by legal counsel of
their choice are not relying on any statement of the other party in entering herein. Each party has
cooperated and participated in the drafting and the preparation of this Assignment. Hence, in any
construction to be made of this Assignment, no ambiguity shall be resolved against any party by virtue of
that party's participation in the drafting of this Assignment.
7.5 Scycrabili . If any provision, section, paragraph, clause or sentence in this
Assignment is declared to be illegal, void, invalid, or unenforceable by a court or other authority with
jurisdiction thereof, the remaining provisions, paragraphs, clauses, and sentences shall be severable and
shall remain in full force and effect. The parties agree that a void or invalid paragraph, clause or
provision shall not affect the validity or enforceability of the remaining provisions of this Assignment.
7.6 Counterparts. This Assignment may be executed simultaneously in counterparts,
each of which shall be deemed an original, but all of which, together, shall constitute one and the same
instrument.
7.7 Survival. All representations, warranties, covenants and agreements made by the
parties hereunder shall be considered to have been relied upon by the parties and shall survive the
execution, delivery and performance of this Assignment and all other documents contemplated herein.
7.8 Successors_and_Assigns. This Assignment shall be binding upon and inure to the
benefit of the successors, assignees, personal representatives, heirs and legatees of Assignor and the City
and shall be binding upon and inure to the benefit of all successors and assigns to Assignee's right, title
and interest in and to the Property.
FI
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7.9 Amendment
7.9.1 Any amendment to Section I of this Assignment shall not be binding unless in
writing and executed by Assignor and Assignee but shall not require execution
by the City.
7.9.2 Any amendment to Sections 4, 5 and/or 6 of this Assignment shall be effective
if executed by the City and Assignee, as Subdivider under the S1A, or any
subsequent Subdivider, but shall not require execution by Assignor.
7.9.3 Any amendment to Sections 2, 3 and/or Section 6 of this Assignment shall
require execution of (1) Assignor, (2) Assignee, as Subdivider under the SIA, or
any subsequent Subdivider, and (3) the City.
7.10 Additional Documents. Each of the parties shall each execute and deliver to the
other parties, upon demand, such further documents, and shall take such further actions as are necessary
or desirable to effectuate the intent and purposes of this Assignment.
7.11 Autho The persons signing below represent that they have the authority to bind
their respective party, and that all necessary board of directors', shareholders', partners', agency's or
other approvals have been obtained.
Signatures on jollowh:g pages
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IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as of
the day and year first written above.
"ASSIGNOR" RREF II -DC CAMERON, LLC,
a California limitedo*ility company
go
Name:
Title: a
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 [A n ]
County of [MI AMI
On �_1 ,1A before me, fXwA (D • ere
insert name and title of officer), personally appeared ,
who proved to me on the basis of satisfactory evidenc o be the person(s) whose Jkame, is/are
subscribed the within instrument and acknowledged to i that she/they executed the
same in hi her/their authorized capacity(ies), and that by y/her eir signature(s) on the
instrument the person(s), or the entity upon behalf of whiche person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of flote- that the
foregoing paragraph is true and correct
WITNESI.
Signature
.1PPY PUO�'. ERIKA D. LEVY
MY COMMISSION # GG 207976
EXPIRES: May 14, 2022
9rFOF F; °cBonded Thru Notary envrlters
[Signature Continues on Following Page]
7
"ASSIGNEE" TOLL WEST INC. WHICH WELL DO BUSINESS IN
CALIFORNIA AS TOLL BROTHERS WEST INC.,
a Delaware co ration
By:
Name: ► "i
Title: F j &&d A L
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 [LAY _ 1
County of{bdj:-t?Jtw ]
No-6AR-Y Pu,6t-►C-
On 2019 before me, CjDaPF-;6 '51'W. <�—,A (here
insert name and title of officer), personally appeared K"ij-L b.%irmift- >m pRs__.
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) islare
subscribed to the within instrument and acknowledged to me that he/sheAkey executed the
same in his/hedUteis authorized capacity(ies), and that by his/la Aheir- signature(s) on the
instrument the person(sl or the entity upon behalf of which the person(s) acted, executed the
instrument.
'Aries
I certify under PENALTY OF PERJURY under the laws of the State of Cal+#emik that the
foregoing paragraph is true and correct
WITNESS my^"hand
,, and official seal.
/�
Signature �xVtt 112a �" (Seal)
CORRINE SUZANNE GARCIA
Notary Public - Arizona
Maricopa County
E:
My Comm. Expires Mar 18, 2020
22
FAY
U'k.1111m, " ,
APPROVED AS TO FORM:
r
BY.
City Attorney
CITY OF PALM SPRINGS, CALIFORNI
a . al co oration
Name: Wt v , D AD
Title: G - M A- `r
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 vlty of that document.
State of f 1
County of f ]
APPROVIM 8Y C!iy COUNCIL
.!"7 R.JL
On before me, (here
insert name and title of officer), personally appeared
who proved to me on the basis of satisfactory evid` to be the person(s) whose names) is/are
subscribed to the within instrument and acknowle�to me that hetshelthey executed the
same in histher/their authorized capacity(iesl and that 6y his/her/their signature(s) on the
instrument the person(sl or the entity upon behalf of which'&C person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State off" California that the
foregoing paragraph is true and correct
WITNESS my hand and official seat.
Signature (S
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