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Home My WebLink About10 Attachment 2_Old Greenwood Water Development Agreement AssignmentASSIGNMENT AND ASSUMPTION AGREEMENT Old Greenwood This Assignment and Assumption Agreement (this "Agreement") is made effective as of , 2018 (the "Effective Date"), by and between Old Greenwood, LLC, a Delaware limited liability company ("Assignor"), Tahoe Club Company, LLC, a Delaware Limited Liability Company ("Assignee"), and Truckee Donner Public Utility District, a local public agency of the State of California ("District"). Assignor, Assignee, and District may be collectively referred to herein as "the Parties." RECITALS A. WHEREAS District and Assignor entered into a "Water Development Agreement Between the Truckee Donner Public Utility District and Old Greenwood LLC, APNS 19-370-07, 08 & 19-430-09, 14-17," (hereinafter the "Water Development Agreement"), executed by the Assignor and District on November 3, 2003 and November 4, 2003, respectively, (a copy of which is attached hereto as Exhibit A); and B. WHEREAS Assignee, through its immediate predecessors -in -interest, on Dec 30, 2004, acquired ownership of a portion of the property that is the subject of the Water Development Agreement; and C. WHERAS Assignor desires to assign, grant, transfer and deliver to Assignee all of its rights, title and interests to the Water Development Agreement; and D. WHEREAS Assignee desires to assume Assignor's remaining performance obligations associated with the Water Development Agreement; and E. WHEREAS District, according to the terms of the Water Development Agreement, desires to consent to the assignment and assumption that is provided in this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the promises and the respective agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows: Assignment. 1. Assignment. Effective as of the Effective Date, Assignor hereby assigns, grants, transfers and delivers to Assignee all of its rights, title and interests in and to the Water Development Agreement, including, without limitation, all amounts on deposit with the District as of the Effective Date, as provided and required by the terms of the Water Development Agreement. Assignor warrants that the Water Development Agreement is in full force and effect and that there has been no breach by any of the parties to the Water Development Agreement. Assignor further warrants that Assignor is in full compliance with the terms and conditions of all of the Water Development Agreement, that Assignor has the right to assign the Water Development Agreement, and that Assignor has not assigned or encumbered all or any part of Assignor's rights under any of the Water Development Agreement. Assignment and Assumption Agreement — Old Greenwood Page 1 of 6 Acceptance and Assumption. 2. Acceptance and Assumption. Assignee hereby (a) accepts and acquires from Assignor the assignment set forth in Section 1 above, (b) assumes and covenants and agrees to faithfully pay, perform and discharge all assumed liabilities. Assignor agrees to indemnify and hold Assignee harmless from any claim or demand resulting from non- performance by Assignor under the vendor contracts on or prior to the date of this assignment. Consent of District. 3. Consent of District. District, by and through its execution of this Agreement, hereby consents to the assignment and assumption provided in this Agreement, which consent is expressly intended by the Parties to serve as the "prior written consent" that is required at Paragraph 18 of the Water Development Agreement Further Instruments. 4. Further Instruments. The Parties hereby agree that they will, from time -to -time, execute and deliver such further instruments as may be reasonably required to implement and effectuate the assignment pursuant to this Agreement. No Third -Party Beneficiaries. 5. No Third -Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their permitted assigns and nothing herein expressed or implied shall give or be construed to give to any other person, other than the Parties hereto and such permitted assigns, any legal or equitable rights hereunder. 6. Miscellaneous. Amendment. (a) Amendment. This Agreement may not be amended or modified except by an instrument in writing signed by the Parties hereto. Waiver and Release. (b)(1) Waiver. Neither the failure nor any delay by any party hereto in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. (b)(2) Release. Assignor hereby releases District and Assignee, including their attorneys, agents, employees, officers, directors, contractors and representatives, affiliates, predecessors, parents, and subsidiaries (collectively, the "Releasees") from all rights, claims, liabilities, costs, fees, obligations, accountings, or repayment obligations, whether known or unknown, discovered or undiscovered, that Assignor may have at any time against the Releasees and every person known or unknown howsoever arising, related or unrelated to the obligations stated herein, including but not limited to claims arising out of amounts on deposit with the District, and all other claims, excepting Assignment and Assumption Agreement — Old Greenwood Page 2 of 6 only claims arising out of a breach of this Agreement. Assignor expressly waives all rights afforded by any statute with respect to unknown claims, including, but not limited to, Section 1542 of the California Civil Code which limits the effect of a release with respect to unknown claims. Section 1542 of the California Civil Code reads as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." Governing Law. (c) Governing Law. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the Parties hereto shall be governed by, and construed in accordance with, the laws of the State of California, without giving effect to principles of conflicts of law thereof. Notices. (d) Notices. Any notice or other communication provided for in this agreement or given under this agreement to a party to this agreement shall be in writing and shall be delivered in person to such party or mailed by first class mail, postage prepaid, addressed as follows: To Assignor: Suzanne Stevens Old Greenwood LLC 10351 Fairway Dr Truckee, CA 96161 (530) 550-2704 sstevens@crescent.com To Assignee: Glen Clement Tahoe Club Company 13051 Fairway Dr Truckee CA 96161 Tel: (530) 550-2704 gclement@tahoemountainclub.com Assignment and Assumption Agreement — Old Greenwood Page 3 of 6 To District: Truckee Donner Public Utility District Attention: Sara Owens 11570 Donner Pass Road Truckee, California 96161 saraowens@tdpud.org or to such other address with respect to a party as such party shall notify the other party in writing as provided above. Integration (e) Complete Agreement. This Agreement contains a complete agreement among the Parties with respect to the assignment of the Water Development Agreement, assumption of obligations, consent to assignment, and other transactions contemplated by it and supersedes all prior agreements and understanding between the parties with respect thereto. Other than the assignment contemplated herein, the Water Development Agreement remains in full force and effect. Counterparts. (f) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Facsimile signatures will be treated as if they were originals, and electronic signatures complying with the Uniform Electronic Transactions Act (Civil Code § 163 3. 1 et seq.) will be considered valid and enforceable. Indemnity (g) Indemnity. Assignee agrees to defend, with counsel reasonably acceptable to District, indemnify and hold the District and its directors, officers, employees and agents harmless from and against all claims, demands, actions, lawsuits, damages, liabilities, judgements, losses, costs, and expenses incurred or paid by the District relating to or arising from this Agreement, including without limitation, the payment by the District to Assignee of any money held on deposit by the District pursuant to the Water Development Agreement. IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be duly executed and delivered as of the date first set forth above. [Signature Page Follows] Assignment and Assumption Agreement — Old Greenwood Page 4 of 6 ASSIGNOR: Old Greenwood, LLC By: (signature of authorized representative) (print name of authorized representative) Its: (title of authorized representative) ASSIGNEE: Tahoe Club Company, LLC By: (signature of authorized representative) (print name of authorized representative) Its: (title of authorized representative) DISTRICT: Truckee Donner Public Utility District By: (signature of authorized representative) (print name of authorized representative) Its: (title of authorized representative) Assignment and Assumption Agreement — Old Greenwood Page 5 of 6 10V011:11W.11 Assignment and Assumption Agreement — Old Greenwood Page 6 of 6