RECORDING REQUESTED BY:
CITY CLERK
WHEN RECORDED RETURN TO:
City Clerk
City of Cathedral City
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
SPACE ABOVE THIS LINE FOR RECORDER'S USE
TERMINATION, RELEASE AND ASSUMPTION AGREEMENT
BY AND BETWEEN
NCP VERANO, LLC, AVANTE 58 LLC,
AND THE CITY OF CATHEDRAL CITY
TRACT NO. 37124
THIS TERMINATION, RELEASE AND ASSUMPTION AGREEMENT ("TRA Agreement") dated _ 2024, for reference purposes only, is entered into by and among NCP Verano, LLC, a Delaware Limited Liability Company (hereinafter "NCP"), Avante 58, LLC, a California Limited Liability Company (hereinafter "Avante") and the City of Cathedral City, a municipal corporation (hereinafter "City").
NCP, Avante and City may hereinafter sometimes be referred to individually as a "Party" or collectively as "Parties"
RECITALS
A. The City and NCP entered into a certain Subdivision Improvement Agreement dated September 27, 2022, for public and private improvements within Tract No. 37124 ("Original Improvement Agreement"), which Agreement was recorded on October 13, 2023, as Instrument No. 2023-0302819, in Official Records of Riverside County, California.. A legal description of Tract No. 37124 marked Exhibit "A" attached hereto and made a part hereof.
B. The Original Improvement Agreement provided, among other things, for the installation and completion, at NCP's expense, of certain public and private improvements required by the City in connection with the approval of the final tract map for Tract No. 37124, located in the City of Cathedral City, California (the "subdivision").
C. In accordance with the terms of the Original Improvement Agreement, NCP posted certain improvement securities with the City to secure the construction and completion of the public and private improvements in Tract No. 37124.
D. Section 1.(b) of the Original Agreement required that all of the public and private improvements work described in said Agreement was to have been completed by P.S.
Classic within twelve (12) months of the date of approval of the final map of Tract No. 37124 by the City Council of the City of Cathedral City, which occurred on September 27,2023.
E. Pursuant to the Grant Deed recorded on November 8, 2023, as Instrument No. 2023-0337795, in Official Records of Riverside County, California, ownership of all the lots within Tract No. 37124 was conveyed to Avante, which Grant Deed is incorporated herein by this reference..
F. 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, NCP may request a Novation of the Original Improvement Agreement, or other such release or assignment and assumption agreement and a substitution of securities by the new owner or assignee (hereinafter collectively for purposes of this section, "Successor"). NCP hereby requests that its interests in Tract No. 37124 be transferred to and assumed by Avante.
G. Avante has agreed to assume all remaining public and private improvement obligations related to said lots in Tract No. 37124 as contained in the Original Improvement Agreement and Avante has agreed to perform the same in accordance with a new improvement agreement with the City, which new improvement agreement is to be executed by Avante together with this TRA agreement (the "New Improvement Agreement").
H. The City Council of the City finds that it serves the best interests of the City and benefits the public to acknowledge Avante as the Successor party to the interests of NCP under the Original Improvement Agreement as they relate to public and private improvements associated with the lots and streets in Tract No. 37124, and that recognizing Avante as the new developer under the New Improvement Agreement will facilitate completion and administration of the remaining improvement work in Tract No. 37124.
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 all the lots and streets within Tract No. 37124 as of the date all of the following have occurred: (1) All parties have executed this TRA Agreement; (2) Avante has executed the New Improvement Agreement; and (3) Avante has provided new improvement bonds and securities satisfactory to the City in accordance with Section 2 of the New Improvement Agreement. (b) Should Avante fail to execute the New Improvement Agreement 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 NCP shall remain liable for the performance under the terms of the Original Improvement Agreement. The foregoing notwithstanding, any failure of Avante to timely execute the new Improvement Agreement or to provide the new improvement securities will be deemed a default under this TRA Agreement, and entitle the other Parties to exercise, against Avante, any and all rights and remedies on default as contemplated by Section 13 herein.
Section 3. WAIVER OF RIGHTS
As of the Effective Date, NCP confirms the transfer of the obligations of the Original Improvement Agreement and Amendments to Avante as they pertain to the public and private improvements related to all the lots and streets within Tract No. 37124, 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 NCP's right to receive/refund of its securities on the terms and conditions set forth herein.
Section 4. OBLIGATIONS OF AVANTE
As of the Effective Date, Avaante shall be bound by and perform the obligations pertaining to all the lots and streets within Tract No. 37124 in accordance with the terms and conditions of the New Improvement Agreement and this TRA agreement, including without limitation: (1) completing the remaining and/or partially completed public and private 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 AVANTE AS SUCCESSOR-IN-INTEREST As of the Effective Date of this TRA Agreement, the City shall recognize Avante as the Successor-in-Interest to NCP under the terms and conditions set forth herein and in the New Improvement Agreement, as they pertain to all the lots and streets within Tract No. 37124. Except as otherwise set forth herein or in the New Improvement Agreement, Avante shall further become entitled to all remaining rights, title and interests of NCP under the Original Improvement Agreement as if Avante 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, NCP shall be released from those remaining liabilities and performance obligations under the Original Improvement Agreement which Avante assumes and undertakes pursuant to the terms of the New Improvement Agreement, or any future amendment thereof. Notwithstanding the foregoing, in no event shall NCP be released from any liabilities or claims arising from (or which may arise from) work completed or actions taken by NCP with respect to the portions of. Tract 37124 assumed by Avante 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 P. S. CLASSIC
(a) Section 2 of the Original Improvement Agreement required NCP to maintain security for the performance of certain work in Tract 37124 which security remains at this time in the following forms and amounts:
(1) To assure faithful performance of the terms and conditions of the Original Improvement Agreement, an Irrevocable Standby Letter of Credit, No.
SBPCA301853, in the amount of $ 1,232,700, issued by the National Bank of Arizona (the "Performance Security");
(2) To secure payment for labor and materials, an Irrevocable Standby Letter of Credit, No. SBPCA301852, in the amount of $ 616,350, issued by the National Bank of Arizona (the "Labor & Materials Security"); (3) To guarantee payment of the estimated cost of setting required lot corners and survey monuments, a cash deposit in the amount of $ 10,000 ( the "monumentation bond");
(b) The securities previously posted and/or required to be posted by NCP 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:
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 Avante and their approval, the City will authorize the release of the above NCP Performance security and, Labor and Materials Security, and Monumentation Bond.
Section 8. TERMINATION OF ORIGINAL IMPROVEMENT AGREEMENT As of the effective Date of this TRA Agreement, all those public and private improvement obligations contained in the Original Improvement Agreement with NCP pertaining to all the lots and streets within Tract No. 37124 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. EXTENSION
Section 20 of the Original Agreement and Section 18 of the New Improvement Agreement provide that for good cause, the time for completion of the improvements may be extended. Avante did request additional time in which to complete the remaining improvements within Tract No. 37124, and the City does hereby consent to such extension, as evidenced in the New Agreement to be executed concurrently with this TRA by Avante
Section 10 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 11. ENFORCEMENT OF AGREEMENT
Except as specițically limited by the terms of this TRA Agreement, any party to this TRA Agreement shall have the right to entorce, 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 12. 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 13. 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 13(a), any failure by Avante to execute the New Improvement Agreement and/or post new securities as required in Section 2 hereof and Section 2 of the new Improvement Agreement, 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 ot a derault specified in Section 13(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 14. 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 15. 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 NCP..
Section 16. 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 | 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 NCP: NCP Verano, LLC
55 Saugatuck Avenue
Westport CT 06880
Attn: M. Ben Gerig
Phone: 646-873-6406
With copy to:
If to Avante: Avante 58, LLC
41661 Enterprise Circle North, Suite 221
Temecula CA 92590
Phone: 951-514-0032
With copy to:
If to City: City of Cathedral City
68700 Avenida Lalo Guerrerc
Cathedral City CA 92234
Attn: City Manager
With copy to: 68700 Athida Lalo Guerrero
Cathedral City CA 92234
Attn: Director of Public Works
Section 17. 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 Improvement Agreement required to be executed with Avante and the City, does not affect, alter amend or terminate any other agreements by and between the Parties.
Section 18. MODIFICATIONS AND AMENDMENTS
This TRA Agreement may be modified or amended only by a written instrument signed by all Parties.
Section 19. 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 20. 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 NCP, Avante, or any of their respective agents, employees, or contractors be considered agents of the City under the terms hereof.
Section 21. 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 22. 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 23. VENUE
All proceedings involving disputes over the terms, provisions, covenants or onditions contained in this TRA Agreement and all proceedings involving an! enforcement action related to this TRA Agreement shall be initiated and conducted i the applicable court of forum in Riverside County, California.
Section 24. 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 25. 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 26. 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)
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IN WITNESS WHEREOF, the Parties have executed this TRA Agreement as of the dates set forth below.
"NCP".: NCP Verano, LLC
A Delaware Limited Liability Company
By: _
M. Ben Gerig
Authorized Signatory
Date:
"Avante": Avante 58, LLC
A California Limited Liability Company
By:
James R. Brennar
Managing Member
Date 3/4/24
"City": CITY OF CATHEDRAL CITY
A Municipal Corporation
By: _
Charles P. McClendon
City Manager
Date
ATTEST:
race. Hermost, CA
citv Clerk
APPROVED AS TO FORM: APPROVED AS TO CONTENT:
× 00
City Attorney Director of Public Works
EXHIBIT "A"
Legal Description of Real Property Subject to this Agreement Tract No. 37124 The "Property"
In the City of Cathedral City, County of Riverside, State of California, being a portion of the North half of Section 5, Township 4 South, Range 5 East, San Bernardino Meridian, more particularly described as:
Lots 1 through 3 inclusive as shown on the map of Tract 37124, filed in Book 493, at Pages 1 through 5, inclusive, of Maps, in the office of the County Recorder of said County,
The above lots are described in the Grant Deed recorded on November 8, 2023, as Instrument No. 2023-0337795, in Official Records of said Riverside County.
Assessor Parcels: 677-050-023
CALIFORNIA ALL PURPOSE 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 _ Kiverside
before me,
Tetaria 4, 2024 Sathe
(here insert name and title of the officer)
, notary public, personally appeared _ James R.
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.
PATRICIA SATHER
I certify under PENALTY OF PERJURY under the laws of the state of COM. #2356136 California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal
Laticia Salter
Signature (This area for official notarial seal)
- Optional
hough the information below is not required by law, it may prove valuable to persons relying on the document and could preven raudulent removal and reattachment of this form to another documen Description of Attached Document
Til or To or Document Termination, Release and Assumption Agreement
Document Date:
Number of Pages: 20 (Not including this page)
Signers) Other Than Named Above: M. Ben Gerig, Charles P. Ma Clendon, Tracey X. Hermosillo y City Attorney & Dir of Public Works "NCP",: NCP Verano, LLC
A Delaware Limited Liability Company
By: - let 18 r
M. Ben Geng
Authorized Signatory
Date: 3/5/24
"Avante": Avante 58, LLC
A California Limited Liability Company
By: James R. Brennan
Managing Member
Date
"City": CITY OF CATHEDRAL CITY
A Municipal Corporation
By: _
Charles P. McClendon
City Manager
Date
ATTEST:
Tracey R. Hermosillo, CMC
City Clerk
APPROVED AS TO FORM: APPROVED AS TO-CONTENT:
City Attorney Director of Public Works
EXHIBIT "A"
CONNECTICUT NOTARY ACKNOWLEDGEMENT
(INDIVIDUAL)
State of Connecticut
County of Fairfield ss. Westport (Town/City)
(name of notary), the undersigned officer, personally appeared M. Ben Gerig (name of individual or individuals), known to me (or satisfactorily proven) to be the person(s) whose name(s) (is or are) subscribed to the within instrument and acknowledged that (he, she or they) executed the same for the purposes therein contained.
In witness whereof | hereunto set my hand.
(Seal)
Signature of Notary Public
Senior Finance Analyst
Title of Officer
Date Commission Expires: May 31,2027
EMILY LEE
NOTARY PUBLIC
My Commission Expires May 31, 2027
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