ASSIGNMENT OF PARKING AGREEMENT
License Agreement (Assignment of City Agreement #7583)
THIS ASSIGNMENT OF PARKING AGREEMENT (“Assignment”) is given as of the ___ day of July, 2022 by and among the CITY OF NAPA, a municipal corporation (“City”), Napa Parkway Plaza, LLC a California limited liability company (“Assignor”), and Coombs Street LLC, a California limited liability company (“Assignee”). The City, Assignor, and Assignee may be collectively referred to in this Assignment as the “parties.”
RECITALS
City and Parkway Plaza Investors (referred to herein as “PPI”), a California limited partnership and predecessor-in-interest to KLA Main, LLC, a Delaware limited liability company (“KLA”) entered into City Agreement #7583 entitled License Agreement (hereinafter “Agreement”) on or about February 1, 2000, by which the City agreed to provide certain parking rights to PPI as more particularly described in the Agreement and PPI agreed to perform certain services as more particularly described in the Agreement, and generally including, without limitation, removal of trellises and wood structures on the east side of the Kohl's building located in the Parkway Plaza Shopping Center in downtown Napa, California, and general landscaping work to enhance the visibility of the Kohl's store at that location, which work was completed by PPL.
PPI assigned, and KLA assumed, the Agreement pursuant to the terms of that certain Assignment of Agreement, License Agreement (City Agreement #7583b) by and among PPI, KLA, and the City dated as of June 26, 2008 (the “First Assignment”).
Mervyn's filed a voluntary bankruptcy action with the United States Bankruptcy Court for the District of Delaware (the "Bankruptcy Court') in Case No. 08-11586 (KG) (the "Bankruptcy Case").
On December 23, 2008, the Bankruptcy Court entered an Order in Docket No. 1290 (the “Final Sale Order”) that, among other things, approved the sale of the Mervyn's Lease to Kohl's Department Stores, Inc. (“Kohls”), and authorized Mervyn's to execute an Assignment and Assumption Agreement (the “Kohl's Assignment”) pursuant to which Mervyn's agreed to assign to Kohl's all of its leasehold interests in and to the Mervyn's Lease which included the Mervyn’s Amended and Restated Lease dated June 26, 2008.
KLA later assigned, and Cole MT NAPA CA, LP, a Delaware limited partnership ("Cole") assumed, the Agreement pursuant to the terms of that certain Assignment of Parking Agreement, License Agreement (City Agreement #2011 167) by and among the City, KLA and Cole dated as of August 23, 2011 (the “Second Assignment”).
Cole later assigned, and BRE DDR BR Napa CA, LLC, a Delaware limited liability company (“BRE”) assumed, the Agreement pursuant to the terms of that certain Assignment of Parking Agreement, License Agreement (City Agreement #2014 302) by and among the City, Cole and BRE dated as of October 17, 2014 (the “Third Assignment”).
BRE later assigned, and Assignor assumed, the Agreement pursuant to the terms of that certain Assignment of Parking Agreement, License Agreement (City Agreement #C2015110) by and among the City, BRE and Assignor dated as of May 11, 2015 (the “Fourth Assignment”).
Under Section 4 of the Agreement, the License granted to PPI and subsequently assigned by way of the First, Second, Third and Fourth Assignments remains in effect through an express term of July 31, 2016, plus options to extend the term through July 31, 2031; and, through the Kohl’s Assignment, the express term of the Agreement was extended through July 31, 2031.
Assignor intends to assign its rights under the Agreement to Assignee, and Assignee intends to assume all responsibilities under the terms of the Agreement.
The parties have agreed to document the transfer of responsibilities under the Agreement from Assignor to Assignee pursuant to the terms of this Assignment.
Capitalized terms used and not otherwise defined herein are defined in the Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND CONSIDERATION IDENTIFIED HEREIN, THE PARTIES HEREBY AGREE AS FOLLOWS:
INCORPORATION BY REFERENCE. This Assignment hereby incorporates by reference all terms and conditions set forth in the Agreement, unless specifically modified by this Assignment. All terms and conditions set forth in the Agreement which are not specifically modified by this Assignment shall remain in full force and effect.
ASSIGNMENT FROM ASSIGNOR TO ASSIGNEE. Pursuant to Section 16 of the Agreement, Assignor hereby assigns all rights and delegates all duties pursuant to the Agreement to Assignee from and after the date hereof. Assignee hereby accepts all the rights and duties under the Agreement from Assignor from and after the date hereof.
ACCEPTANCE OF ASSIGNMENT AND ESTOPPEL BY CITY. Pursuant to Section 16 of the Agreement, the City hereby accepts and consents to the assignment from Assignor to Assignee under this Assignment. City hereby acknowledges and agrees and certifies to Assignee as of the date hereof as follows: (i) a complete, true and correct copy of the Agreement is attached hereto as Exhibit A; (ii) there have been no amendments or modifications to the Agreement other than the First, Second, Third and Fourth Assignment, and this Assignment; (iii) the Agreement remains in full force and effect for the term (including any and all renewal and/or extension options) of the Mervyn's Lease; (iv) Kohl's Department Stores, Inc. is a first class tenant and Kohl's use of the Premises is for a lawful retail purpose consistent with a first class shopping center in accordance with Section 4 of the Agreement; (v) Assignor has complied with all of the obligations set forth in Section l.l(d) of the Agreement; and (vi) Assignor is not in default under the Agreement.
CLARIFICATION OF TERMS OF AGREEMENT. Based on the assignment from Assignor to Assignee, notices to Assignee pursuant to Section 17 of the Agreement shall be addressed as follows:
Coombs Street, LLC
3160 Crow Canyon Road, Suite 400
San Ramon, CA 94583
Attention: Christopher George
With a copy to: VG3 Development Company
321 Hartz Avenue, Suite 200
Danville, CA 94526
ENTIRE AGREEMENT. The Agreement, as modified by this Assignment, comprises the entire integrated understanding between the parties concerning the Agreement. The Agreement, as modified by this Assignment, supersedes all prior negotiations, agreements, and understandings regarding the Agreement, whether written or oral.
SIGNATURES. The individuals executing this Assignment represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Assignment on behalf of the respective legal entities of the Assignor, the Assignee, and the City. This Assignment shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. The parties hereto agree that this Assignment may be executed in multiple counterparts, each of which shall be deemed an original, and all such counterparts together shall constitute a fully-executed and binding original instrument. [SIGNATURES FOLLOW ON NEXT PAGE)
IN WITNESS WHEREOF, the City, the Assignor, and the Assignee do hereby agree to the full performance of the terms set forth herein.
CITY: ASSIGNOR:
CITY OF NAPA, a California charter city Napa Parkway Plaza, LLC, a California limited liability company By: By:
Steve Potter, City Manager _________________________________ Its:
ATTEST:
Tiffany Carranza, City Clerk
Date: ASSIGNEE:
(“Effective Date”) COOMBS STREET LLC, a California limited liability company COUNTERSIGNED: By:
_________________________________
Its:
Joy Riesenberg, City Auditor
APPROVED AS TO FORM:
Michael W. Barrett, City Attorney
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