Assignment and Assumption Agreement - Filice to Meritageti
RECORDING REQUESTED BY:
Chicago Title Company
Order No.: 32210338
When Recorded Mail Document To:
City Clerk
City of Gilroy City Hall
7351 Rosanna Street
Gilroy, CA 95020
DOCUMENT: 22575431 IhII�INIWIM�kIII�IVIV�
Fees .... 0 a
Taxes ...
ae�� 0 AMT PAID 58.00
REGINA ALCOMENDRAS
SANTA CLARA COUNTY RECORDER
Recorded at the request of
Recording Service
Assignment and Assumption Agreement
RDE # 025
4/23/2014
1101 AM
ABOVE THIS LINE FOR RECORDER
THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION
(Additional recording fee applies)
Recording Document Cover Page Printed: 04.22.14 @ 09:49AM
SCA0000079.doc / Updated: 03.27.14 Page 1 CA- CT -FWPS- 02180.053022- 32210338
RECORDING REQUESTED BY AND
WHEN RECORDED, MAIL TO:
City Clerk
City of Gilroy City Hall
7351 Rosanna Street
Gilroy, California 95020
(SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE)
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ( "this Agreement ") is made
and entered into as of V- a . -, 2014, by and between the George Ernest Filice and
Donna Marie Filice Revocable Living Trust UTA dated May 10, 2006 ( "George/Donna Filice
Trust "); Brian A. Filice, an individual (`Brian Filice"); Christina M. Filice Parikh, an individual
( "Christina Parikh"); Nancy Castle Filice, Trustee of The Filice Family Exemption Trust under
Article X of The Ralph David Filice And Nancy Castle Filice Revocable Living Trust under
Trust Agreement dated July 31, 1989, as amended by a Second Restatement Of Trust dated
March 31, 2006 ( "Nancy Filice Trust "); Nicole M. Filice Capshaw, an individual ( "Nicole
Capshaw "); David S. Filice, an individual ( "David Filice"); Daniel W. Filice, an individual
( "Daniel Filice"); Ernest E. Filice, Jr., an individual ( "Ernest Filice"); Doreen A. Filice, an
individual ( "Doreen Filice"); Montina M. Filice, an individual ( "Montina Filice"); The Douglas
Paul Gunter and Mary Jane Gunter Revocable Living Trust UTA dated January 31, 2007
( "Gunter Trust "); Patricia Otterson Filice, Trustee of the Patricia Otterson Filice Revocable
Trust dated October 19, 2012 ( "Patty Filice") (George/Donna Filice Trust, Brian Filice,
Christina Parikh, Nancy Filice Trust, Nicole Capshaw, David Filice, Daniel Filice, Ernest Filice,
Doreen Filice, Montina. Filice, Patty Filice and Gunter Trust are collectively referred to herein as
the " Filice TIC Members "), William F. Filice, Trustee of the Ellen F. Filice Family Trust
(Exemption Trust) UTD May 3, 1990, as amended ( "Ellen Filice Trust "), and Fratelli Ranch,
LLC, a California limited liability company ( "Fratelli") (the Filice TIC Members, Ellen Filice
Trust, and Fratelli collectively as "Transferor ") and Meritage Homes of California, Inc., a
California corporation ( "Transferee ").
RECITALS
A. Transferor or a predecessor in interest of Transferor entered into that certain City
of Gilroy Development Agreement Relative to the Development Known as Hecker Pass Specific
Plan (the "Development Agreement ") with the City of Gilroy ( "City ") dated February 5, 2007,
which was recorded on April 17, 2008 as Document No. 19817205 of the Official Records of
Santa Clara County, California, pursuant to which Transferor as a member of a group of property
owners agreed to build certain public improvements as a condition to City granting Transferor
vested rights to develop certain property more particularly described in said Development
Agreement as a portion of the "Subject Property", all as subject to certain terms and conditions
set forth in the Development Agreement.
B. Transferor has agreed to convey and assign to Transferee all of Transferor's
interests in a portion of the Subject Property, as legally described on Exhibit One attached hereto
(the "Assigned Property "), by a deed or other written instrument, which will be recorded in the
Official Records of Santa Clara County, California concurrently with the recordation of this
instrument. Transferor also has agreed to assign to Transferee all of Transferor's rights, duties
and obligations under the Development Agreement with respect to the Assigned Property,
including without limitation the rights, duties and obligations associated with 154 Residential
Development Ordinance Allocations, subject to the terms of that certain Second Amendment to
Option Agreement between Transferor and Transferee as "Optionor" and "Optionee"
respectively (the "154 RDO Allocations ") that are allocated to the Assigned Property, with the
intent that Transferor be relieved of all such rights, duties and obligations, as authorized under
Article 8 of the Development Agreement.
C. Transferee desires to assume all of Transferor's rights, duties and obligations
under the Development Agreement with respect to the Assigned Property (including without
limitation the 154 RDO Allocations) and to relieve Transferor of all of said assigned rights,
duties and obligations in reference to the Assigned Property and the 154 RDO Allocations.
NOW, THEREFORE, Transferor and Transferee hereby agree as follows:
1. Transferor hereby assigns, effective as of Transferor's conveyance of the
Assigned Property to Transferee, all of the rights, title and interest of Transferor under the
Development Agreement with respect to the Assigned Property, including without limitation the
154 RDO Allocations. Transferor retains all the rights, interest, and interests under the
Development Agreement with respect to all other property within the Subject Property owned by
Transferor.
2. Transferee hereby contractually assumes all of the burdens and obligations of
Transferor under the Development Agreement, and agrees to observe and fully perform all of the
duties and obligations of Transferor under the Development Agreement, and to be subject to all
the terms and conditions thereof, with respect to the Assigned Property and the 154 RDO
Allocations, it being the express intention of both Transferor and Transferee that, upon the
execution of this Agreement, Transferee shall become substituted for Transferor as a member of
"Applicant" under the Development Agreement with respect to the Assigned Property. It also is
the express intention of both Transferor and Transferee that by this Agreement, Transferor shall
be relieved of all obligations under the Development Agreement with respect to the Assigned
Property and the 154 RDO Allocations, including without limitation any associated obligation to
construct or finance construction of the Major Public Improvements or to pay a portion of the
Public Benefit Fee (as defined in the Development Agreement), and that City and all other
parties shall look solely to Transferee for satisfaction of such obligations. Transferee agrees to
indemnify, defend and hold Transferor harmless from any claims, damages, liabilities, penalties,
fines, causes of action, lawsuits, and other proceedings and costs and expenses in connection
therewith, including reasonable attorneys' fees and costs, arising from City or other parties
attempting to impose upon Transferor obligations that the parties intend Transferee to assume by
this Agreement. Transferee represents and covenants that it has reviewed and agrees to be bound
by the Development Agreement and all applicable regulations and approvals of City related
thereto.
3. Transferor and Transferee agree that Transferee shall be entitled to all
reimbursements and credits, if any, available on account of any prior payments by Transferor
toward the Public Benefit Fee under Section 7.7 of the Development Agreement.
4. All of the covenants, terms, and conditions of the Development Agreement or set
forth herein shall be binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, successors and assigns.
5. The Notice Address described in the Development Agreement for Transferee with
respect to the Assigned Property shall be as follows:
Meritage Homes of California, Inc
1671 East Monte Vista Avenue, Suite N -214
Vacaville, California 95688
Attn: Brian Bombeck and Jenny Tan
Telephone: 707-359-2018
Facsimile: 707 -359 -2054
[Signatures appear on following page]
Transferor:
Filice TIC Members: George Ernest Filice and Donna Marie Filice, Trustees of The George Ernest
Filice and Donna Marie Filice Revocable Living Trust UTA dated May 10,
2006; Brian A. Filice; Christina M. Filice Parikh; Nancy Castle Filice,
Trustee of the Filice Family Exemption Trust under Article X of The Ralph
David Filice and Nancy Castle Filice Revocable Living Trust under Trust
Agreement dated July 31, 1989, as amended by a Second Restatement Of Trust
dated March 31, 2006; Nicole M. Filice Capshaw; David S. Filice; Daniel W.
Filice; Ernest E. Filice, Jr.; Doreen A. Filice; Ernest E. Filice, Jr., Montina
M. Filice ; Patricia Otterson Filice, Trustee of the Patricia Otterson Filice
Revocable Trust dated October 19, 2012; and Mary Jane and Douglas
Gunter, Co- Trustees or Successor Trustee of The Douglas Paul Gunter and
Mary Jane Gunter Revocable Living Trust UTA dated January 31, 2007, all of
the foregoing by
Ernest E. Filice, Jr. Mary Jane t
their respective attorneys in fact pursuant to the terms of that certain Tenancy -
In- Common Agreement dated as of June 30, 2007 as evidenced by a
Memorandum of Agreement dated September 18, 2007 and recorded September
24, 2007 as Document No. 19595040 in the Official Records of the Santa Clara
County Recorder's Office (the "Filice TIC Agreement ").
STATE OF CALIFORNIA )
) ss.
COUNTY OF tClqJ7 )
On 20d, before me,� , Notary Public,
Date — Na e of Notary
personally appeared ---,
L k Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the p son(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.
" SHELLY CONNOR
Commission # 1922475
z Notary Public - California z
Alameda County D
My Comm. Expires Jan 21, 2015
SHELLY CONNOR
Commission # 1922475
z ;fee Notary Public - California z
Alameda County D
My Comm. Expires Jan 21, 2015
Place Notary Seal Above 4ign,*ure of Notary Public
FOR NOTARY SEAL OR
State of California )
County of Santa Clara )
On April 14, 2014 before me,
Kimberly Warrick , Notary Public (here insert name and title of the officer),
personally appeared Ernest E. Filice. Jr.
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
Signature
(notary)(12 -07)
(Seal)
KIMBERLY WARRICK
Commission # 1998876
Z @. Notary Public - California Z
Z Santa Clara County D
My Comm. Expires Nov 22. 2016
IN WITNESS HEREOF, the parties hereto have executed this Agreement as of the date
first above written.
Transferor:
Ellen Filice Trust: The Ellen F. Filice Family Trust (Exemption Trust)
UTD M�� ay 3, 1990, as amended
By: �✓ Ate- -
Will am Filice, Trustee
STATE OF CALIFORNIA )
COUNTY OF
54,71 T-A C /G1 /?�� SS.
On �/ "fit / / , 20) � before me,
Notary Public,
Date ,� N e of Notary
personally appeared I' y t / l�% ��'� /5/ � /C e-
Name(s) of Signer(s)
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.
KIMBERLY WARRICK
.... Commission # 1998876
a =�e Notary Public - California z
Z :v.-
"' Santa Clara County D
My Comm. Expires Nov 22, 2016
Place Notary Seal Above
WITNESS my hand and official seal.
FOR NOTARY SEAL OR STAMP
Transferor:
Fratelli: Fratelli Ranch, LLC, a California limited liability company
By: Vanni Properties, Inc., a California corporation, its Manager
Christopher E. Vanni, President
STATE OF CALIFORNIA )
) SS.
COUNTY OF 5&7'1 7 6( WIZGl )
On A ID / / V , 20V T , before me, Kl ' "h`el2-/ hlt'7 A /OL Notary Public,
Date It,w)j-,
personally appeared (b-i5 &M-ek (." .
Name(s) of Signer(s)
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.
KIMBERLY WARRICK
517 Commission # 1998876
a = Notary Public - California z
Z:
Z Santa Clara County D
My Comm. Expires Nov 22, 2016
Place Notary Seal Above
WITNESS my hand and official seal.
FOR NOTARY SEAL OR STAMP
Transferee:
MERIT AGE OMES F ALIFORNIA, INC., a California corporation
By
Name: CV
Its: VY CK- Lt� fl QV� lS 11 lC'�tJ
STATE OF CALIFORNIA )
01001 D ) ss.
COUNTY OF c� )
On q- I -� , 20A, before me, J I �,fef d , Notary Public,
Date Name of Notary
personally appeared �r� �'YI B(l'VI jqC C V-
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person whose namef4 is /ask
subscribed to the within instrument and acknowledged to me that he /s�d/`,tke-y executed the same in
hi91d /theif authorized capacity(ieS), and that by hi!/ i&,,thtir signature( on the instrument the
persory(s` ' or the entity upon behalf of which the persons) 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.
Place Notary Seal Above Signa ur �o Notary Public
FOR NOTARY SEAL OR STAMP
J. REED °°-
L- we . r 0
r C
Lty Cm . E7p4'�e AILY Q 2074 .4
Exhibit One to Assignment and Assumption Agreement
Legal Descriptions of the Assigned Property
All of that real property in the City of Gilroy, County of Santa Clara, State of California,
more particularly described as follows attached to this Exhibit One and made a part hereof:
LEGAL DESCRIPTION
EXHIBIT "A"
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF GILROY, COUNTY OF SANTA
CLARA, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
TRACT ONE:
PARCEL ONE:
Parcel 2 as shown on that certain Parcel Map filed for record. on April 18, 2014, in Book 871 of Maps,
pages 21 -22, Official Records of Santa Clara County.
Excepting therefrom:
A one -half interest in all of the oil, gas, and other minerals other than sand, gravel, and stone beneath
the surface of the premises hereinabove described, and a right to one -half of all royalties and other
revenue derived from said oil, gas and minerals, as reserved in the Deed from Florence Elizabeth Watson,
a widow, to Trevis Berry, et ux., dated February 4, 1955 and Recorded March 4, 1955, Book 3102 OR,
Page 636.
PARCEL TWO:
Non - exclusive easements for temporary access & utilities over Parcel 1, for the benefit of Parcel 2, over
those certain areas designated as 'Temporary Access & Utility Easement ", as shown on said Parcel Map
hereinabove referred to.
APN: 810 -21 -007 (ptn.)
TRACT TWO:
PARCEL ONE:
Parcel 2 as shown on that certain Parcel Map filed for record on April 18, 2014, in Book 871 of Maps,
pages 17 -20, Official Records of Santa Clara County.
PARCEL TWO:
Non - exclusive easements for temporary access & utilities over Parcel 1, for the benefit of Parcel 2, over
those certain areas designated as 'Temporary Access & Utility Easement ", as shown on said Parcel Map
hereinabove referred to.
APN: 810 -21 -003 (ptn.)