RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Sunrise Village Owner, LLC
c/o Shopoff Realty Investments, LLC
2 Park Plaza, Suite 700
Irvine, California 92614
Attn: William A. Shopoff
(Space above for Recorder’s Use Only)
ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT
This Assignment and Assumption of Development Agreement (“ Agreement”) is dated for informational purposes only as of September ___, 2023, and is entered into by and between SUNRISE VILLAGE OWNER, LLC, a Delaware limited liability company (“ Assignor”), and LENNAR HOMES OF CALIFORNIA, LLC (“Assignee”).
R E C I T A LS
A. Assignor and the City of Fullerton, a California municipal corporation (“City”), entered into that certain Development Agreement recorded on July 6 , 2023, as Document No. 2023000161569 in the Official Records (the “ Official Records ”) of Orange County, California (the “Development Agreement”). The Development Agreement concerns certain land, including the real property identified on Exhibit A attached hereto (the “Property”).
B. Assignee has or will purchase from Assignor the Property in accordance with the terms of that certain Purchase and Sale Agreement dated as of September ___, 2023, between Assignor and Assignee.
C. This Agreement shall be effective as of the later of (i) the date that the grant deed conveying the Property to Assignee is recorded in the Official Records and (ii) the date that this Agreement is recorded in the Official Records (the “Effective Date”).
NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged, Assignor and Assignee agree as follows:
1. Assignment of Rights. Except for the “Excluded Rights and Obligations” listed in Schedule 1 which shall remain the rights and obligations of Assignor, Assignor hereby sells, transfers, assigns, conveys and delivers to Assignee all of Assignor's rights, title, interests, and obligations to, in and under the Development Agreement arising from and after the Effective Date with respect to the Property, including the obligation to perform such obligations that must be performed outside of the Property that are a condition precedent to Assignee’s right to develop the Property (the “Assumed Rights and Obligations”). This Agreement is only intended to assign
those rights and obligations of Assignor under the Development Agreement which concern the Property and does not assign any rights or obligations under the Development Agreement with regards to any of the other property described in the Development Agreement. Assignor makes no representation or warranties, express or implied, concerning the Development Agreement, except as provided herein.
2. Assumption of Responsibilities. Assignee does hereby expressly and unconditionally agree to assume all of Assignor's rights, title and interests to, in and under the Development Agreement as well as all responsibilities, liabilities and obligations under the Development Agreement, in each case solely to the extent arising from and after the Effective Date and solely to the extent relating to the Property, except for the Excluded Rights and Obligations. Assignee shall not be responsible for any default by Assignor with regards to the Property under the Development Agreement prior to the Effective Date.
3. Confirmatory Acts, Instruments. Each party hereby covenants to the other party that it will, at any time and from time to time, upon written request therefor, execute and deliver to such other party, its successors and/or assigns, any new or confirmatory instruments and do and perform any other acts which such party, its successors, and/or assigns may reasonably request in order to fully transfer to such other party all rights and obligations of Assignor intended to be transferred and assigned hereby.
4. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the heirs, successors, executors, administrators, and assigns of the parties.
5. Amendments. This Agreement represents the final and entire agreement between the parties in connection with the subject matter hereof. No provision of this Agreement may be amended or added to except by an agreement in writing signed by the parties hereto or their respective successors-in-interest.
6. Severability. Any provision of this Agreement which shall prove to be invalid, void, or illegal shall in no way affect, impair, or invalidate any other provision hereof and such other provisions shall remain in full force and effect.
7. Indemnity. Assignee shall indemnify, defend and hold harmless Assignor, Assignor’s affiliated entities and persons, and their respective members, partners, officers, directors, shareholders and employees from any claims, demands, loss, liability, damages, costs or expenses (including attorneys' fees) made against or suffered by Assignor with regard to any breach by Assignee of the Development Agreement from and after the Effective Date.
8. Attorneys' Fees. In the event of any action or proceeding brought by either party against the other under this Agreement, the prevailing party shall be entitled to recover all costs and expenses including the actual fees of its attorneys incurred for prosecution, defense, consultation, or advice in such action or proceeding.
9. Notice. The Notice Address described in the Development Agreement for the Assignee shall be:
If to Assignee: Lennar Homes of California, LLC
2000 FivePoint, 3rd Floor
Irvine, California 92618
Attn: JR Jones
Email: [email protected]
With copies to: Deverich & Gillman LLP
4 Park Plaza, Suite 520
Irvine, California 92614
Attention: Christopher D. Downs
Email: [email protected]
10. Governing Law. This Agreement has been prepared, negotiated and executed in, and shall be construed in accordance with, the laws of the State of California, without regard to conflict of law rules.
11. Counterparts. This Agreement may be executed in multiple counterparts, which together shall constitute the Agreement.
“Assignor” “Assignee”
SUNRISE VILLAGE OWNER, LLC, a
Delaware limited liability company
By: SUNRISE VILLAGE INVESTMENTS,
LLC, a Delaware limited
liability company
By: SOF – Sunrise Village, LLC, a
Delaware limited liability
company, its Administrative
Member
By: ______________________
Name:
Title:
LENNAR HOMES OF CALIFORNIA, LLC, a
California limited liability company
By: ____________________________
Name:
Title:
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 ____________ )
On _______________________before me,_____________________, a Notary Public, personally appeared______________________________ , 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.
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.
Signature ______________________________ (Seal)
Schedule 1
to Assignment and Assumption of Development
Agreement Excluded Rights and Obligations
Excluded Obligations: None
Excluded Rights: None
Exhibit "A"
to Assignment and Assumption of Development Agreement
Legal Description of Property
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF FULLERTON, IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL A OF LOT LINE ADJUSTMENT NO. 219 RECORDED IN THE OFFICIAL RECORDS OF ORANGE COUNTY ON SEPTEMBER __, 2023 AS INSTRUMENT NO. __________________________.
City Acknowledgment of Assignment and Assumption of Development Agreement Pursuant to Article 11 of the Development Agreement, the City hereby acknowledges that:
(1)Assignee has provided substitute security equivalent to security provided by Assignor to the City in order to secure performance of Assignor's obligations with regards to the Property under the Development Agreement; (2) as to unsecured obligations with regards to the Property under the Development Agreement, Assignee either has provided security satisfactory to the City or otherwise has demonstrated to the City's satisfaction that Assignee has the financial resources or commitments available to perform the Assumed Rights and Obligations at the time and in the manner required under the Development Agreeme nt and Development Regulations; and (3) that Assignor, effective upon actual transfer of ownership, will have satisfied the conditions to the release of the transferring Developer set forth in Article 11 of the Development Agreement and shall be released f rom Assignor's obligations under the Development Agreement (other than the Excluded Rights and Obligations) solely with respect to the Property. City hereby acknowledges and agrees that, as of the date of its execution of this Acknowledgment of Assignment and Assumption of Development Agreement, Assignor is not in default of any obligations under the Development Agreement.
The City, Assignor and Assignee understand and agree that the City may enforce its rights under the Development Agreement as to the Prop erty against Assignee. The City, Assignor and Assignee hereby acknowledge and agree that a default by Assignee of the Assumed Rights and Obligations as to the Property shall not constitute a default by Assignor under the Development Agreement as to the remaining property subject to the Development Agreement and a default by Assignor of Assignor's Excluded Rights and Obligations or other obligations under the Development Agreement shall not constitute a default by Assignee under the Development Agreement as to the Property. City further acknowledges and agrees to deliver any notice of a breach or violation of the Development Agreement to both Assign ee and Assignor.
READ AND APPROVED:
City of Fullerton, a California
municipal corporation
By: _________________________
Name: ___________________
Title: ___________________
APPROVED AS TO LEGAL FORM:
___________________________________
ATTEST:
___________________________________
THIS PAGE NOT TO BE RECORDED