HomeMy WebLinkAboutINTEGRAL COMMUNITIES 1-2006
A-2006-057
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") is made
A i''L
and entered into as of the ~ day of ,'v\uH \'-- , 2006, by and between Integral
Communities I, Inc., a Delaware corporation (collectively "Assignor"), and Western Pacific
Housing, Inc., a Delaware corporation ("Assignee"), with reference to the following:
RECITALS
A. The Grand Plan I, LLC, a California limited liability company, and the Grand
Plan 2, LLC, a California limited liability company, collectively as "Owner," and the City of
Santa Ana ("City") entered into that certain Development Agreement dated August 4, 2005, and
recorded on August 21,2005, as Instrument No. 2005000565108, in the Official Records of the
County of Orange (the "Development Agreement") with respect to the development of certain
real property located at the southeast comer of MacArthur Boulevard and Main Street in the
City, more particularly described in Exhibit "A" attached hereto (the "Overall Property").
B. The Grand Plan 1, LLC, and the Grand Plan 2, LLC, sold their interest in the
property more particularly described in Exhibit "B" attached hereto and incorporated herein (the
"Property") and assigned their interest in the Development Agreement with respect to the
Property to Integral Communities I, Inc. Because Integral Communities 1, Inc., is one of the
entities identified in Section 4.3 of the Development Agreement, the City's consent was not
required for the assignment.
C. Pursuant to Section 4.2 of the Development Agreement, unless the assignment is
to an entity identified in Section 4.3, the assigning entity is required to obtain the written consent
of the City in order to assign the Development Agreement. The City must act in its reasonable
discretion and shall limit its review to the development experience and financial capability of the
proposed assignee or transferee and shall approve any such assignment or transfer if the
proposed assignee or transferee has financial capability and development experience with respect
to the Project equal to or greater than the managing member of Owner.
D. Assignor and Assignee have entered into that certain Agreement for Purchase and
Sale Agreement and Escrow Instructions dated as of October 19, 2005 (the "Purchase
Agreement"), pursuant to which Assignor has agreed to sell to Assignee the Property.
E. Assignor now desires to assign and delegate to Assignee all of Assignor's rights,
duties and obligations under the Development Agreement, and Assignee now desires to accept
such assignment and to assume all of Assignor's rights, duties and obligations under the
Development Agreement with respect to the Property.
D.R. HORTON/Santa Ana
Assignment and Assumption Agreement
28156-22/2150493.2
3/1012006
NOW THEREFORE, for good and valuable consideration, receipt of which is hereby
acknowledged, the parties do hereby agree as follows:
I. Assignment. As of the Closing Date (as defined in the Purchase Agreement and
for purposes of this Agreement, the "Effective Date"), Assignor hereby assigns, conveys and
transfers to Assignee, Assignor's right, title and interest in and to the Development Agreement
with respect to the Property. Assignor also assigns to Assignee all of Assignor's rights, title and
interest in the Entitlements (as defined in the Development Agreement) with respect to the
Property. Said Assignment shall be on an "AS-IS" basis, without any representation or warranty
of any kind by Assignor except as set forth in the Purchase Agreement.
2. Assignee's Assumption of Obligations. Assignee hereby agrees to accept the
assignment and delegation by Assignor of all of Assignor's rights, duties and obligations under
the Development Agreement and Entitlements with respect to the Property. Assignee agrees to
assume all duties, obligations and liability arising from the Development Agreement and
Entitlements with respect to all or any portion of the Property. Assignee agrees to observe and
perform all of the duties and obligations of Owner contained in the Development Agreement and
Entitlements as such duties and obligations pertain to the Property transferred or assigned
3. Release and Indemnitv. Except as otherwise provided for in the Purchase
Agreement, Assignee releases Assignor and its successors and assigns from any and all of the
obligations of the Development Agreement and Entitlements and neither Assignor nor any of its
successors or assigns shall have any liability whatsoever to Assignee with respect to the
Development Agreement and Entitlements or any breach or default thereof or thereunder.
Except as otherwise provided for in the Purchase Agreement, Assignee hereby agrees to
indemnify, defend and hold harmless Assignor and its members, agents, representatives,
successors and assigns from and against any liability, obligation, claim, cause of action, cost or
expense (induding, without limitation, attorneys' fees and costs) arising from, or related to,
Assignee's performance (or failure thereof) of the Development Agreement and Entitlements
following the Effective Date, including, without limitation, any untimely andlor deficient
performance thereof. Nothing herein limits, alters or expands Assignor's or Assignee's
indemnity, defense and hold harmless obligations or the release under the Purchase Agreement.
4. Citv Consent. Notwithstanding anything herein to the contrary, this Agreement
shall not be effective until (a) the Closing Date and (b) such time as the City consents to this
Agreement pursuant to Section 4.2 of the Development Agreement as evidenced by the City's
execution of the "City's Consent" attached hereto and incorporated herein.
S. Assignee Capabilitv and Experience. Assignee represents and warrants that it has
the financial capability and development experience with respect to the Integral Project proposed
in the Development Agreement equal to or greater than the managing member of Owner.
Assignee has provided all necessary information and documentation to Assignor and City for the
City's review of this Agreement and the assignment of the Development Agreement to Assignee.
6. Successors and Assigns. This Agreement shall inure to the benefit of and shall be
binding upon the parties hereto and their respective legal representatives, successors and assigns.
D.R. HORTON/Santa Ana
Assignment and Assumption Agreement
28156-22/2150493.2
2
311 012006
7. Recovery and Fees and Costs. In the event of any litigation, controversy, claim or
dispute between the parties hereto, arising out of or relating to this Agreement or the breach
hereof, the prevailing party or parties shall be entitled to recover from the other party or parties
reasonable expenses, in addition to such other relief as may be granted, attorneys' fees and costs.
8. Authority. In addition to any representation and warranties set forth in the
Purchase Agreement, Assignor and Assignee each hereby represent and warrant that they have
the right, power, legal capacity and authority to enter into and execute this Agreement.
9. Further Assurances. Assignor and Assignee each hereby agree to execute such
other documents and perform such other acts as may be necessary or desirable to effectuate this
Assignment.
10.
California.
Governing Law. This Agreement shall be governed by the law of the State of
II. Effectiveness. This Agreement shall only become effective on the Closing Date.
In the event that the Closing (as defined in the Purchase Agreement) fails to occur and/or the
Purchase Agreement is terminated for any reason, upon such termination or failure to close, this
Agreement shall automatically be deemed null and void and of no further force and effect.
[Remainder of Page Intentionally Left Blank]
D.R. HORTON/Santa Ana
Assignment and Assumption Agreement
28156-22 / 2150493.2
3
3/10/2006
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.
ASSIGNOR:
INTEGRAL COMMUNITIES I, INC.,
a Delaware corpnion ___~
By: ~ (l L-/
Cro.~~n.V'Ir,,^e5Ul'. pre<>irlewt.
[Printe ame and Title]
ASSIGNEE:
WESTERN PACIFIC HOUSING, INC.,
a Delawar rporation
'1
By:
[Print and Title]
By:
[Printed Name and Title]
D.R. HORTON/Santa Ana
Assignment and Assumption Agreement
28156-22/2150493.2
4
3/1 0/2006
CITY'S CONSENT
The City of Santa Ana, California, a charter city and municipal corporation ("Consenting
Partv") hereby consents to the foregoing assignment of the Development Agreement contained in
that certain Assignment and Assumption Agreement (the "Agreement") to which this consent is
attached by and between Assignor to Assignee. Capitalized terms not otherwise defined herein
shall be given the meaning ascribed to them in the Agreement.
Notwithstanding anything to the contrary in the Development Agreement, Consenting
Party hereby agrees that the Agreement satisfies all the conditions for assignment of the
Development Agreement found in Section 4.2 of the Development Agreement.
Dated as of
,200_
CONSENTING PARTY:
By:
Print Name:
Its:
ATIEST_C::;~~~
,CityC
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APPROVED AS TO FORM:
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City. orney! ('
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D.R. HORTON/Santa Ana
Assignment and Assumption Agreement
28156-22/2150493.2
5
3/10/2006
EXHIBIT A
LEGAL DESCRIPTION OF OVERALL PROPERTY
PARCELS 1,2,3 & 5 OF PARCEL MAP NO. 89-439, IN THE CITY OF SANTA ANA,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON THE MAP FILED IN
BOOK 262, PAGES 7 THROUGH 10 INCLUSIVE, OF PARCEL MAPS IN THE OFFICE OF
THE COUNTY RECORDER OF SAID COUNTY.
THAT PORTION OF FRACTIONAL SECTION 3,1 IN TOWNSHIP 5 SOUTH, RANGE 9
WEST, BEING A PORTION OF THE LAND ALLOTTED TO JAMES MCFADDEN, IN THE
FINAL DECREE OF PARTITION OF THE RANCHO SANTIAGO DE SANTA ANA,
RECORDED IN CASE NO. 1192, ENTERED SEPTEMBER 12, 1868 IN BOOK B, PAGE 410
OF JUDGMENTS OF 17TH JUDICIAL DISTRICT COURT OF CALIFORNIA, DESCRIBED
AS FOLLOWS:
BEGINNING AT A POINT IN THE CENTER LINE OF MAIN STREET, 66.00 FEET
WIDE, SAID CENTER LINE BEING THE WESTERLY LIEN OF SAID SECTION 31, SAID
POINT BEING DISTANT THEREON NORTH 1 DEG. 28' 19" EAST, 2891.68 FEET FROM
THE INTERSECTION OF SAID CENTER LINE WITH THE CENTER LINE OF NEWPORT
AVENUE, 60.00 FEET WIDE, AS SHOWN ON A MAP FILED IN BOOK 10, PAGE 7,
RECORD OF SURVEYS IN THE OFFICE OF THE COUNTY RECORDER OF SAID
ORANGE COUNTY; THENCE ALONG COURSES 1,2 AND 3 DESCRIBED IN A FINAL
ORDER OF CONDEMNATION, A COpy OF WHICH WAS RECORDED APRIL 9,1964 IN
BOOK 6998, PAGE 401, OFFICIAL RECORDS OF SAID ORANGE COUNTY, THE
FOLLOWING COURSES AND DISTANCES; SOUTH 88 DEG. 31' 41" EAST 50.00 FEET;
NORTH 46 DEG. 28' 17" EAST, 35.36 FEET; SOUTH 88 DEG. 31' 41" EAST, 127.00 FEET
TO THE INTERSECTION WITH A LINE THAT IS PARALLEL WITH AND 202.00 FEET
EASTERLY, MEASURED AT RIGHT ANGLES FROM SAID CENTER LINE OF MAIN
STREET; THENCE SOUTH 1 DEG. 28' 19" WEST, ALONG SAID PARALLEL LINE 160.00
FEET; THENCE NORTH 88 DEG. 31' 41" WEST, AT RIGHT ANGLES TO SAID CENTER
LINE, 202.00 FEET TO SAID CENTER LINE; THENCE NORTH 1 DEG. 28' 19" EAST,
ALONG SAID CENTER LINE, 135.00 FEET, MORE OR LESS, OT THE POINT OF
BEGINNING.
PARCEL 1 AS SHOWN ON EXHIBIT "B" OF THAT CERTAIN LOT LINE ADJUSTMENT
NO. 01-08, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF
CALIFORNIA, RECORDED AUGUST 15, 2001 AS INSTRUMENT NO. 20010566652, OF
OFFICIAL RECORDS.
PARCEL NO.2 AS SHOWN ON EXHIBIT "B" OF THAT CERTAIN LOT LINE
ADJUSTMENT NO. 01-08, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE,
STATE OF CALIFORNIA, RECORDED AUGUST 15, 2001 AS INSTRUMENT NO.
20010566652, OF OFFICIAL RECORDS.
n.R. HORTON/Santa Ana
Assignment and Assumption Agreement
28156-22/2150493.2
Exhibit A
3/1 0/2006
EXHIBIT B
LEGAL DESCRIPTION OF PROPERTY
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE CITY OF SANTA ANA,
COUNTY OF ORANGE, STATE OF CALIFORNIA AND LEGALLY DESCRIBED AS
FOLLOWS:
PARCEL A:
PARCEL 2 OF LOT LINE ADJUSTMENT NO. 2003-06, RECORDED JUNE 15,2005 AS
INSTRUMENT NO. 2005000462196, OFFICIAL RECORDS OF ORANGE COUNTY.
PARCEL B:
THAT PORTION OF FRACTIONAL SECTION 31, IN TOWNSHIP 5 SOUTH, RANGE 9
WEST, BEING A PORTION OF THE LAND ALLOTTED TO JAMES MCFADDEN, IN THE
FINAL DECREE OF PARTITION OF THE RANCHO SANTIAGO DE SANTA ANA,
RECORDED IN CASE NO. 1192, ENTERED SEPTEMBER 12, 1868 IN BOOK B, PAGE 410
OF JUDGMENTS OF 17TH JUDICIAL DISTRICT COURT OF CALIFORNIA, DESCRIBED
AS FOLLOWS:
BEGINNING AT A POINT IN THE CENTER LINE OF MAIN STREET, 66.00 FEET WIDE,
SAID CENTER LINE BEING THE WESTERLY LINE OF SAID SECTION 31, SAID POINT
BEING DISTANT THEREON NORTH 1 DEG. 28' 19" EAST, 2891.68 FEET FROM THE
INTERSECTION OF SAID CENTER LINE WITH THE CENTER LINE OF NEWPORT
AVENUE, 60.00 FEET WIDE, AS SHOWN ON A MAP FILED IN BOOK 10, PAGE 7,
RECORD OF SURVEYS IN THE OFFICE OF THE COUNTY RECORDER OF SAID
ORANGE COUNTY; THENCE ALONG COURSES 1,2 AND 3 DESCRIBED IN A FINAL
ORDER OF CONDEMNATION, A COpy OF WHICH WAS RECORDED APRIL 9, 1964 IN
BOOK 6998, PAGE 401, OFFICIAL RECORDS OF SAID ORANGE COUNTY, THE
FOLLOWING COURSES AND DISTANCES; SOUTH 88 DEG. 31' 41" EAST 50.00 FEET;
NORTH 46 DEG. 28' 17" EAST, 35.36 FEET; SOUTH 88 DEG. 31.41" EAST, 127.00 FEET
TO THE INTERSECTION WITH A LINE THAT IS PARALLEL WITH AND 202.00 FEET
EASTERLY, MEASURED AT RIGHT ANGLES FROM SAID CENTER LINE OF MAIN
STREET; THENCE SOUTH 1 DEG. 28' 19" WEST, ALONG SAID PARALLEL LINE 160.00
FEET; THENCE NORTH 88 DEG. 31' 41" WEST, AT RIGHT ANGLES TO SAID CENTER
LINE, 202.00 FEET TO SAID CENTER LINE; THENCE NORTH 1 DEG. 28' 19" EAST,
ALONG SAID CENTER LINE, 135.00 FEET, MORE OR LESS, TO THE POINT OF
BEGINNING.
PARCEL C:
PARCEL 2 OF PARCEL MAP NO. 89-439, IN THE CITY OF SANTA ANA, COUNTY OF
ORANGE, STATE OF CALIFORNIA, AS SHOWN ON THE MAP FILED IN BOOK 262,
PAGES 7 THROUGH 10 INCLUSIVE, OF PARCEL MAPS IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
D.R. HORTON/Santa Ana
Assignment and Assumption Agreement
28156-22/2150493.2
Exhibit B
3/1012006