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23-0208_RIVER STREET SJC LLC_Assignment & Assumption of Development AgreementRECORDED AT REQUEST OF FIRST AMERICAN TITLE INS. CO. AND WHEN RECORDED RETURN TO: City of San Juan Capistrano 30448 Rancho Viejo Road San Juan Capistrano, CA 92675 Attn: City Manager Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder II 11 II III I 1111 [ II III I II II NO FEE *$ R 0 0 1 4 1 9 0 0 1 0$* 2023000027310 8:00 am 02/08/23 90 405 A31 A38 10 0.00 0.00 0.00 0.00 27.00 0.00 0.000.000.00 0.00 Fee Exempt - Gov't Code §27383 APN: 121-160-22, 28 & 49 (Space above for Recorder's Use) ASSIGNMENT AND ASSUMPTION AGREEMENT OF DEVELOPMENT AGREEMENT AMONG CITY OF SAN JUAN CAPISTRANO, RIVER STREET SJC LLC, WHITTIER AND SORENSEN LLC and RIVER STREET MARKETPLACE LLC 1 ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT BY AND AMONG CITY OF SAN JUAN CAPISTRANO, RIVER STREET SJC LLC, WHITTIER AND SORENSEN LLC and RIVER STREET MARKETPLACE LLC THIS ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT BY AND AMONG CITY OF SAN JUAN CAPISTRANO, RIVER STREET SJC LLC, WHITTIER AND SORENSEN LLC and RIVER STREET MARKETPLACE LLC ("Assignment Agreement") is made as of the 6th day of February, 2023 ("Effective Date"), by and among CITY OF SAN JUAN CAPISTRANO, a California municipal corporation ("City"), RIVER STREET SJC LLC, a California limited liability company ("Assignor"), WHITTIER AND SORENSEN LLC, a California limited liability company ("Whittier"), and RIVER STREET MARKETPLACE LLC, a California limited liability company, formerly known as River Street Acquisition Company LLC, a California limited liability company ("Assignee"). City, Assignor, Whittier, and Assignee are sometimes individually referred to as "Party" and collectively as "Parties." RECITALS A. Assignor entered into that certain Development Agreement 18-002, dated December 6, 2019, by and between the City, on the one hand, and Assignor, on the other hand, recorded on July 10, 2020 as Document No. 2020000328826 in the Official Records of Orange County, California ("Development Agreement") for the development of certain real property consisting of approximately 6 acres of land located in the City, more particularly described in Exhibit "A" ("Property"). B. Assignor assigned to Assignee Assignor's rights to purchase the Property pursuant to that certain Purchase and Sale Agreement and Joint Escrow Instructions dated April 7, 2015, as amended ("Purchase Agreement'), by and between Douglas M. Ito and Sheree B. Ito, Co -Trustees of The Douglas and Sheree Ito Trust, as Sellers, on the one hand, and Assignee, as Buyer, on the other hand, to facilitate an exchange involving the sale of certain property owned by Whittier and to provide financing for the Development and the Project on the Property. C. Pursuant to such arrangement, at the closing under the Purchase Agreement, Assignee took title to the Property from the Sellers and to complete the exchange, Assignee thereafter conveyed title to the Property to Whittier with Whittier as the sole member of Assignee. D. To further facilitate financing and to conform record title to the name of the Project, Whittier conveyed title to the Property back to Assignee. E. In order to facilitate the pending financing and comply with the Development Agreement, Assignor desires to confirm the assignment and delegation, and Assignee desires to confirm the acceptance and assumption, of all of Assignor's rights and obligations under the Development Agreement in accordance with the terms and conditions set forth herein, and subject to the responsibility on a joint and several basis of Whittier as the sole member of Assignee for all obligations of Assignee under the Development Agreement ("Assignment"). F. City has approved the Assignment in accordance with the terms and conditions set forth above and below in this Assignment Agreement. AGREEMENT 1. incorporation of Recitals. The above referenced Recitals are a substantive part of this Assignment Agreement and are incorporated herein by reference. 2. Assignment and Assumption. Effective as of the Effective Date, Assignor hereby assigns, transfers, and conveys to Assignee all of Assignor's rights, interest, duties, liabilities, and obligations in, to, and under the Development Agreement, and Assignee hereby accepts and assumes all such rights, interests, duties, liabilities, and obligations under the Development Agreement from Assignor for the Property ("Assigned Rights and Obligations"). 3. Joint and Several Liability. Notwithstanding the assignment and assumption set forth in Section 2, Assignor, Whittier and Assignee expressly agree that as a condition to the consent of City to this Assignment Agreement and the Assignment, Assignor, as the original OWNER under the Development Agreement, and Whittier, as the sole member of Assignee, shall be fully responsible for all of the duties, liabilities, and obligations in, to, and under the Development Agreement for the Assigned Rights and Obligations. This Assignment Agreement shall not discharge Assignor or Whittier from any or all obligations to City under the Development Agreement for the Assigned Rights and Obligations. As such, Assignor, Whittier and Assignee hereby agree that they shall be jointly and severally liable to the City for all duties, liabilities and obligations under the Development Agreement. In the event of any default under such obligations, City agrees to give notice to Assignor, Whittier and Assignee and each of them shall be entitled to cure such default within the designated cure period. Assignor, Whittier and Assignee shall be responsible for coordinating such cure and neither shall be entitled to any additional cure period. For the purposes of this Section 3, Assignor and Whittier shall be primary obligors and not guarantors of Assignee's obligations under this Assignment Agreement. The terms of this Section 3 are solely for the benefit of City. 4. City Consent to Assignment. Effective as of the Effective Date, City hereby consents to the Assignment and this Assignment Agreement. 5. City's Right to Enforce. The Parties agree that City may enforce its rights under the Development Agreement against Assignor and/or Whittier and/or Assignee, in City's sole and absolute discretion. 6. Indemnification. To the fullest extent permitted by law, Assignor, Whittier and Assignee shall defend, indemnify and hold City, its directors, officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions, or willful misconduct of Assignor, Whittier or Assignee or their officials, officers, employees, subcontractors, consultants or agents in connection with the Assignment and this Assignment Agreement, including without limitation the payment of all consequential damages, expert witness fees and attorneys' fees and other related costs and expenses. 7. Attorneys' Fees. If any Party commences an action against another Party, either legal, administrative or otherwise, arising out of or in connection with this Assignment Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney's fees and all other costs of such action. 8. Entire A-greement. This Assignment Agreement represents the final and entire agreement between the Parties in connection with the subject matter hereof, and may not be modified except by a written agreement signed by City, Assignor, Whittier, and Assignee. 9. Governing Law. This Assignment Agreement has been prepare negotiated, and executed in, and shall be construed in accordance with, the laws of t State of California, without regard to conflict of law rules. Venue for any litigati concerning this Assignment Agreement shall be in Orange County, California. I IN WITNESS WHEREOF, the Parties hereto have executed this Assignment Agreement as of the date first above written. RIVER STREET SJC LLC, a California limited liability company By: ichael W. Burnett, Manager ASSIGNEE: RIVER STREET MARKETPLACE LLC, a California li ited liability company By: �chael urnett, Manager WHITTIER: WHITTIER AND SORENSEN LLC, a California limited liability company By: ichael W. Burnett, Manager RM CITY OF SAN JUAN CAPISTRANO, a California municipal corporation - beiegeTtyManager 4, A, I -- 14�At Maria Mdrrig, City � Approved as to Form: Jefrey`Bdllingi-ty Attorney CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189 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 -t 2 On o -1 before me, ' x3C t?ai Insert Name and Title of the Officer personally appeared Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the personM whose name($1 isla�e subscribed to the within instrument and acknowledged to me that he153§eAVby executed the same in his/tit1tWr authorized capacity*, and that by hislh&rlth)&-signature(s) on the instrument the person(N�-or the entity upon behalf of which the person4 acted, executed the instrument. I certify under PENALTY OF PERJURY under the MARY W. CARNES Notarypublic- California laws of the State of California that the foregoing " wy Orange County g paragraph is true and correct. r ComWssion # 2427148 Mytordm. Expires Dec 13, 2026 WITNESS my hand and official seal. Signature Place Notary Seal ondlor Stamp AboveSign ure of Notary Public yr = waie�� Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer - Title(s): ❑ Partner - ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: 02019 National Notary Association Number of Pages: Signer's Name: ❑ Corporate Officer - Title(s): ❑ Partner - ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT 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 Orange ) ss. City of San Juan Capistrano ) (Gov't Code 40814 & Civil Code 118 1) On February 7, 2023, before me, Maria Morris, City Clerk, personally appeared Benjamin Siegel, City Manager and Jeffrey Ballinger, City Attorney, who proved to me on the basis of satisfactory evidence to the be 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/there signature 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�fcire.orig .,'. paragraph is true and correct. (SEAL) Capacity Claimed by Signers City Manager City Attorney Title Signer is Representing City of San Juan Capistrano Maria orris, Clerk OPTIONAL Description of Attached Document Title or Type of Document Assignment and Assumption Agreement of Development Agreement River Street SJC LLC, Whittier and Sorensen LLC 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. : - a 140111V&*1 001 201? -1101 lei On ', 2023, before me, $ (here insert name and title of the officer), personally appeared MICHAEL W. BURNETT, who proved to me on the basis of satisfactory evidence to be the person(s) whose names(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) 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 ORANGE On , 2023, before me, , (here insert name and title of the officer), personally appeared BENJAMIN SIEGEL, who proved to me on the basis of satisfactory evidence to be the person(s) whose names(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) Exhibit "A" Legal Description of Property REAL PROPERTY IN THE CITY OF SAN JUAN CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: THAT PORTION OF LOT 56 OF TRACT NO. 103, AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 11, PAGES 29 TO 33 INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, TOGETHER WITH THAT PORTION OF RIVER STREET, AS ABANDONED BY ORDER OF THE BOARD OF SUPERVISORS OF THE COUNTY OF ORANGE, A COPY OF WHICH WAS RECORDED MAY 15, 1948 IN BOOK 1637, PAGE 220 OF OFFICIAL RECORDS AND RE-RECORDED MAY 21, 1948 IN BOOK 1640, PAGE 545 OF OFFICIAL RECORDS, SHOWN ON A MAP OF SAID TRACT NO. 103; AND TOGETHER WITH THAT PORTION OF LOT 4, BLOCK 3 OF THE TOWNSITE OF SAN JUAN CAPISTRANO, AS SHOWN ON A MAP THEREOF, RECORDED IN BOOK 3, PAGES 120 TO 125 INCLUSIVE OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST NORTHERLY CORNER OF SAID LOT 56; THENCE NORTH 81 52' 56" WEST ALONG THE NORTHERLY PROLONGATION OF THE EASTERLY BOUNDARY OF SAID LOT 56, 22.56 FEET TO AN INTERSECTION WITH THE CENTER LINE OF SAID RIVER STREET, AS ABANDONED THENCE SOUTH 530 31'34" WEST ALONG THE CENTER LINE OF SAID RIVER STREET 558.74 FEET TO AN ANGLE POINT IN SAID CENTER LINE; THENCE SOUTH 201 41'34" WEST CONTINUING ALONG SAID CENTER LINE 21.91 FEET TO AN INTERSECTION WITH THE NORTHERLY PROLONGATION OF THE WESTERLY BOUNDARY OF SAID LOT 56; THENCE SOUTH 140 59' 00" EAST ALONG THE WESTERLY BOUNDARY OF SAID LOT 56 AND THE NORTHERLY PROLONGATION THEREOF, 482.07 FEET TO THE SOUTHWEST CORNER OF SAID LOT 56; THENCE SOUTH 870 34' 00" EAST 385.35 FEET TO THE WESTERLY LINE OF LOS RIOS STREET, AS SHOWN ON A MAP RECORDED IN BOOK 37, PAGE 1 OF RECORD OF SURVEYS OF SAID ORANGE COUNTY; THENCE NORTH 20 04' 30" EAST ALONG THE WESTERLY LINE OF SAID LOS RIOS STREET 102.62 FEET; THENCE NORTH 89° 33' 38" WEST 46.65 FEET; THENCE NORTH 2° 20' 38" WEST 86.98 FEET; THENCE SOUTH 89° 33'38" EAST 16.00 FEET; THENCE NORTH 20 20'38" WEST 43.75 FEET TO AN ANGLE POINT IN THE EASTERLY BOUNDARY OF SAID LOT 56, SAID ANGLE POINT BEING ON THE NORTH LINE OF SAID LOT 4, BLOCK 3, TOWNSITE OF SAN JUAN CAPISTRANO; THENCE NORTH 890 33'38" WEST 73.13 FEET TO ANOTHER ANGLE POINT IN SAID EASTERLY BOUNDARY OF LOT 56; THENCE NORTH 2° 20'38" WEST 42.00 FEET TO ANOTHER ANGLE POINT IN SAID EASTERLY BOUNDARY OF LOT 56; THENCE SOUTH 890 33'38" EAST 14.98 FEET; THENCE LEAVING SAID BOUNDARY OF LOT 56 AND RUNNING THENCE NORTH 20 20' 38" WEST PARALLEL TO THE WESTERLY BOUNDARY OF SAID LOS RIOS STREET, 214.62 FEET; THENCE NORTH 81 52'56" WEST 234.96 FEET TO AN INTERSECTION WITH A LINE WHICH LIES PARALLEL TO AND 40.00 FEET SOUTHWESTERLY OF, MEASURED AT RIGHT ANGLES, SAID CENTER LINE OF RIVER STREET; THENCE NORTH 53° 31' 34" EAST PARALLEL TO THE CENTERLINE OF RIVER STREET 113.87 FEET TO SAID WESTERLY LINE OF LOS RIOS STREET; THENCE NORTH 8° 52' 56" WEST 22.57 FEET TO THE POINT OF BEGINNING. APN: 121-160-22, 121-160-28 and 121-160-49