HomeMy WebLinkAboutCDC/2002-43
(See Companion Resolution 2002-392)
RESOLUTION NO. CDC/2002-43
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A RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING
AND AUTHORIZING THE AGENCY EXECUTIVE DIRECTOR TO
EXECUTE A DISPOSITION AND DEVELOPMENT AGREEMENT
(DDA) BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO AND CENTURY CROWELL
COMMUNITIES, LP AND OLIVE CREST, LLC (GFR ENTERPRISES,
INC.) (THE 'DEVELOPERS") FOR DEVELOPMENT OF THE AGENCY
PROPERTY LOCATED SOUTH OF IRVINGTON AVENUE, EAST OF
PALM AVENUE (AKA: TT#15407 GLAZIER) ("THE SITE").
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WHEREAS, in 1999 the Redevelopment Agency of the City of San Bernardino (th
"Agency") agreed to acquire certain property from the City of San Bernardino (the "City")
located south Irvington Drive between Palm Avenue and Olive Avenue comprised 0
approximately 30 acres in size for the construction of not less than 107 single family dwellin
units in accordance with a City approved Tentative Tract Map No. 15407 (the Site"), however
the Agency did not take official legal title until 2002 due to a number of encumbrances tha
needed to be rectified prior to the Agency taking title to the Site; and
WHEREAS, the Site was previously within the boundaries of the former Communit
Facilities District No. 995 ("CFD-995") as formed by the City in 1991 and as thereafte
rescinded by the City in 1999, and the City had previously foreclosed the special tax lien file
upon properties, including the Site, due to the non-payment of the special taxes that were levied
unpaid and owed to the City; and
WHEREAS, in 1999, the San Bernardino Joint Powers financing Authority, issued $4.
million in tax allocation bonds (20% Set Aside) ("Housing Bond"), secured by a loan agreemen
with the Agency; and the Agency used a portion of said bond proceeds to acquire the Site fro
the City for purposes of assisting the City with the repayment of the CFD-995, and to develo
single family housing;
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CDC/2002-43
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WHEREAS, the Agency desires to sell the Site to Century Crowell Communities, LLC,
California Limited Liability Company, and Olive Crest, LLC (GFR Enterprises, Inc.) (th
"Developers"), in AS IS Condition and at Fair Market Value of $1,350,000, and with n
financial subsidies or assistance from the Agency, for development of 107 Market Rate singl
family subdivision, together with all infrastructure improvements and amenities, and i
accordance with the approved Tentative Tract Map #15407; and
WHEREAS, the Agency will apply the proceeds generated from the sale of the Site t
repay a portion of the Housing Bond attributable to the Site, plus its share of the accrued interes
to date, and, furthermore, any surplus funds generated from the sale of the Site shall be used b
the Agency for unrestricted housing related activities; and
WHEREAS, it is appropriate for the Commission to take the actions as it pertains to th
Disposition and Development Agreement ("DDA") between the Agency and the Developers; an
as set forth in this Resolution.
NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF
CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, A
FOLLOWS:
Section 1. On December 16,2002, Commission conducted a full and fair joint publi
hearing with the Mayor and Common Council of the City of San Bernardino relating to th
disposition and redevelopment of the Site by the Developers pursuant to the terms and condition
of the DDA of even date herein. The minutes of the Agency Secretary for the December 16
2002 meeting of the Commission include a record of all communication and testimony submitte
to the Commission by interested persons relating to the joint public hearing, the 33433 Summ
Report and the approval of the DDA.
Section 2. The Commission hereby approves the DDA in the form attached to thi
Resolution. The Commission hereby finds and determines that the DDA will result in th
following benefits and findings:
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CDC/2002-43
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(1) The disposition and redevelopment of the Site by the Developers i
accordance with the DDA is consistent with the objectives and goals of the City and th
Redevelopment Agency with respect to encouraging housing for individuals and families of al
income groups, and development of such housing and infrastructure improvements will benefi
all residents of the Verdemont Area;
(2) The purchase price for the Site payable by the Developers to the Agency
subject to the satisfaction of the terms and conditions of the DDA is an amount which th
Commission declares to be the current AS IS Fair Market Value, and the disposition of the Sit
on the terms set forth in the DDA shall materially benefit and sustain the implementation of th
City's Housing Element and assist the community in increasing the supply of quality market rat
residential housing; and the sale of the Site will generate revenues to the Agency in order t
repay the Housing Bond and to increase the Agency's capacity to issue additional Housin
Bonds for the sole purpose of generating low and moderate income housing at affordabl
housing rates, pursuant to California Redevelopment Law.
Section 3. The Commission hereby finds and determines that no furthe
Environmental review by the Agency for the disposition and redevelopment of the Site by th
Developers, pursuant to the terms and conditions of the DDA is necessary at this time under th
California Environmental Quality Act (CEQA), as amended, in light of following facts: (1) th
tentative subdivision Tract Map 15407 ("Map") for the Site have previously been approved an
the redevelopment of the Site by the Developers will be developed pursuant to the Map and i
accordance with mitigation monitoring plan adopted by the Planning Commission on Septembe
17, 2002 and (2) the redevelopment of the Site by the Developers pursuant to the DDA does no
involve any new significant increase in the severity of previously identified environment effect
which were not previously considered as part of the approval of the Map for the Site.
Section 4. The Executive Director of the Agency ("Executive Director") is hereb
authorized and directed to execute the DDA on behalf of the Agency together with suc
technical and conforming changes as may be recommended by the Executive Director an
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approved by the Agency Special Counsel in order to consummate the sale and redevelopment 0
the Site. The signatures of Executive Director on the DDA shall provide conclusive evidenc
that the DDA has taken effect.
Section 5. Provided that the DDA has been fully executed by the parties,
Executive Director is hereby authorized and directed to take all actions set forth in the DDA 0
behalf of the Agency to close the escrow transaction described therein.
The Resolution shall become effective immediately upon its adoption.
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CDC/2002-43
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A RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING
AND AUTHORIZING THE AGENCY EXECUTIVE DIRECTOR TO
EXECUTE A DISPOSITION AND DEVELOPMENT AGREEMENT
(DDA) BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO AND CENTURY CROWELL
COMMUNITIES, LP AND OLIVE CREST, LLC (GFR ENTERPRISES,
INC.) (THE 'DEVELOPERS") FOR DEVELOPMENT OF THE AGENCY
PROPERTY LOCATED SOUTH OF IRVINGTON AVENUE, EAST OF
P ALM AVENUE (AKA: TT#15407 GLAZIER) ("THE SITE").
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community
8 Development Commission of the City of San Bernardino at a j t. reg. meeting thereof, held
9 on the 16th day of December , 2002, by the following vote to wit:
10 Commission Members: Ayes Navs Abstain Absent
11 ESTRADA x
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12 LONGVILLE X
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13 MCGINNIS X
DERRY --X-
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SUAREZ X
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ANDERSON X
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December
,2002.
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The foregoing resolution is hereby approved this
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JCC~~<-
Valles, Chairperson
unity Development Commission
of e City of San Bernardino
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By:
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CDC/2002-43
DISPOSITION AND DEVELOPMENT AGREEMENT
AMONG
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
a public body corporate and politic,
UNIVERSITY HEIGHTS COUNTRY VIEW ESTATES LLC
a California limited liability company
AND
OLIVE CREST LLC
a California limited liability company
[Dated as of December 17, 2002 for reference purposes only]
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THIS DISPOSITION AND DEVELOPMENT AGREEMENT ("Agreement") is
reference dated as of December 17, 2002, by and between the
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public
body corporate and politic (the "Agency"), UNIVERSITY HEIGHTS
COUNTRY VIEW ESTATES LLC, a California limited liability company
("Century"), and OLIVE CREST LLC, a California limited liability
company ("Oli ve Crest"). Century and Olive Crest are
collecti vely referred to as the "Developer". This Agreement
will become effective on the date ("Effective Date") that it has
been approved and duly executed by the appropriate
representatives of the Agency, Century and Olive Crest.
TERMS AND CONDITIONS
Section 1.01. Purpose of Agreement.
(a) The purpose of this Agreement is to effectuate
various redevelopment plans of the Agency by causing the
residential development of a one hundred seven (107) buildable
lot single family housing tract (the "Site"). The Site is
located in the City of San Bernardino, California (the "City").
A legal description of the Site is attached hereto as Exhibit
"A" and incorporated herein by this reference. The development
of the Site pursuant to this Agreement is in the vital and best
interests of the City and the health, safety and welfare of its
residents, and in accord with the public purposes and provisions
of applicable state and local laws.
Section 1. 02. The Site and Scope of Development. The
Site, which is designated as Tract Map No. 15407, consists of a
total of ONE HUNDRED SEVEN (107) buildable subdivided lots.
Each lot in the Site shall be referred to hereafter as a "Site
Lot" . Promptly following the Closing of Escrow, and subj ect to
the allocation of rights and obligations as between Century and
Olive Crest as hereinafter set forth, the Developer shall
undertake the development, improvement, marketing and sale of
single-family detached residential homes on each Site Lot in
accordance with the Scope of Development attached hereto as
Exhibit "B". The provisions of this Agreement are applicable to
the Site in its entirety.
Section 1.03. Parties to the Agreement.
(a) The Agency. The Agency is a public
corporate and politic, exercising governmental functions
powers and organized and existing under Chapter 2 of
body,
and
the
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Community Redevelopment Law of the State of California (Health
and Safety Code Section 33020, et ~.) The principal office of
the Agency is located at 201 North "E" Street, Suite 301, San
Bernardino, California 92401.
(b) The Developer. The Developer is collectively:
(i) University Heights Country View Estates LLC, a California
limited liability company; the principal office and mailing
address of Century for purposes of this Agreement is: 1535 South
"0" Street, Suite 200, San Bernardino, California 92408, and
(ii) Olive Crest LLC, a California limited liability company;
the principal office and mailing address of Olive Crest for
purposes of this Agreement is: 434 N. Second Avenue, Upland,
California 91786.
As more specifically set forth in Section 3.02, in the
period between the Effective Date and the Bifurcation Date (as
defined in Section 3.02), the rights and obligations of the
Developer hereunder shall be the j oint and several rights and
obligations of Century and Olive Crest. From and after the
Bifurcation Date, the rights and obligations of Century and
Olive Crest shall be several, such that Century shall have only
those rights and obligations under this Agreement applicable to
the Century Lots and Olive Crest shall have only those rights
and obligations applicable to the Olive Crest Lots. A breach of
Century's obligations with respect to the Century Lots shall not
constitute a breach by Olive Crest with respect to the Olive
Crest Lots, nor shall a breach by Olive Crest with respect to
the Olive Crest Lots constitute a breach by Century with respect
to the Century Lots. Between the Effective Date and the
Bifurcation Date, any provision of this Agreement applying to
the "Developer" shall apply equally to both Century and Olive
Crest, jointly. From and after the Bifurcation Date, all terms
and provisions of this Agreement referring to the "Developer"
shall, to the extent those terms and provisions are applicable
to the Century Lots, be binding only upon Century, whereas those
terms and provisions applicable to the Olive Crest Lots shall
only bind Olive Crest.
Section 1.04. Prohibition Against Change in
Ownership, Management and Control of Developer and Assignment of
Agreement. The qualifications and identity of the Developer are
of particular concern to the Agency. It is because of those
qualifications and identity that the Agency has entered into
this Agreement with the Developer. No voluntary or involuntary
successor in interest of the Developer shall acquire any rights
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or powers under this Agreement except as expressly set forth
herein.
Except as set forth in Section 3.04, the Developer
shall not assign all or any part of this Agreement or any rights
hereunder prior to the issuance of the Certificate of Completion
for each Site Lot without the prior written approval of the
Agency Executive Director, which approval shall not be
unreasonably conditioned, withheld or delayed.
The Developer shall promptly notify the Agency in
writing of any material change in the identity of the parties
either comprising or in control of the Developer, as well as any
and all changes in the interest or the degree of control of the
Developer by any such party, of which information the Developer
or any of its partners or officers has been notified or may
otherwise have knowledge or information. Subject to Section
2.20, this Agreement may be terminated by the Agency prior to
the Close of Escrow as set forth in Section 2.03 if there is any
material change, whether voluntary or involuntary, in
membership, ownership, management or control of the Developer
(other than such changes occasioned by the death or incapacity
of any individual) that has not been approved by the Agency
prior to the time of such change or the Agency may seek other
appropriate relief in the event that at any time following the
Close of Escrow and prior to issuance of the Certificate of
Completion for the last to be developed Site Lot, such a
material change in the ownership, or control of the Developer
occurs with respect to the Site; provided, however, that (A) the
Agency shall first notify the Developer in writing of its
intention to terminate this Agreement or assert any other such
remedy, and (B) subj ect to Section 2.20, the Developer shall
have twenty (20) calendar days following its receipt of such
written notice to commence and thereafter diligently and
continuously proceed with the cure of the default of the
Developer hereunder and submit evidence of the initiation of
satisfactory completion of such cure to the Agency in a form and
substance deemed satisfactory to the Agency, in its reasonable
discretion.
For the purpose of this Section 1.04 the words
"material change" refer to any total or partial sale,
assignment, or conveyance, or any trust power or any transfer in
any other mode or form by the Developer of more than a forty-
nine percent (49%) interest of the ownership of the Developer,
and/or a series of such sales, assignments or conveyances which
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in the aggregate exceed a
forty-nine percent (49%)
Developer.
disposition or change of more than a
interest of the ownership of the
Section 1.05 . Benefit to City and Agency. The Agency
has determined that the disposition and development of the Site
to Developer in accordance with this Agreement implements the
housing goals and policies of the Agency and the City, will
result in the revitalization of economically and physically
blighted property, is consistent with the City's General Plan,
and is consistent with all applicable local, state and federal
laws and regulations.
Section 1.06. List of Exhibits to Agreement. The
following is a listing of the Exhibits attached to this
Agreement. Each such exhibit is incorporated by this reference
into the text of this Agreement:
EXHIBIT "A"
Legal Description of the Site
EXHIBIT "B"
Scope of Development (Section 1.02)
EXHIBIT "c"
Form of Agency Grant Deed
EXHIBIT "0"
Schedule of Performance (Section 3.01(f))
EXHIBIT "E"
Form of Public Improvements Certificate of
Completion (Section 3.07(a))
EXHIBIT "F"
Form of Certificate
(Section 3.07(b))
of
Completion.
EXHIBIT "G"
Notice of Agreement (Section 8.01)
EXHIBIT "H"
Form of Temporary License Agreement for
the Grading of Land (Section 2.21(b))
ARTICLE II
DISPOSITION OF SITE
Section 2.01. Purchase and Sale of the Site. Subj ect
to all of the terms, conditions and provisions of this
Agreement, and for the consideration of the payment of the
Purchase Price by the Developer to the Agency for the Site as
herein set forth, the Agency hereby agrees to sell and the
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Developer hereby agrees to purchase all of the right, title and
interest of the Agency in the Site.
Section 2.01.1 Purchase Price for the Site. The
Agency agrees to sell the Site and the Developer agrees to
purchase the Site in an AS IS CONDITION and at its fair market
value of ONE MILLION THREE HUNDRED FIFTY THOUSAND DOLLARS
($1,350,000) in United States currency (the "Site Purchase
Price" or "Purchase Price").
The Agency and the Developer agree that the Site is
being sold to the Developer at its fair market value (as defined
by an independent appraisal), determined in accordance with the
highest and best use of the Site allowable pursuant to the
City's General Plan and zoning code, and that no public
financial assistance or financial subsidy is being provided to
the Developer in connection with the development of the Site and
the New Homes.
Section 2.01.2 Subdivision of Site. Prior to the
Effective Date of this Agreement, the Agency had contracted for
the preparation of a tentative tract map subdividing the Site
into 107 buildable lots and park site. Prior to the Close of
Escrow, the Developer shall, at its expense, undertake or cause
to be undertaken the completion of the subdivision of the Site
such that, upon the date set forth for the Close of Escrow, all
conditions of approval of the tentative tract map have been
satisfied and the tentative tract map shall be in a position to,
and shall, record concurrently with the Close of Escrow.
Section 2.01.3 Designation of Century Lots and Olive
Crest Lots. The Agency shall convey to Century at the Close of
Escrow the following Lots, which shall be hereinafter referred
to as the "Century Lots": Lots 1 through 6, inclusive; Lots 24
through 56, inclusive; and Lots 62 through 75, inclusive. The
Agency shall convey to Olive Crest at the Close of Escrow the
following Lots, which shall be hereinafter referred to as the
"Olive Crest Lots": Lots 7 through 23, inclusive; Lots 57
through 61, inclusive; and Lots 76 through 107, inclusive. Upon
the Close of Escrow, the Agency shall convey the Century Lots to
Century by means of the Agency Grant Deed, substantially in the
form attached hereto as Exhibit "C", and shall convey the Olive
Crest Lots to Olive Crest by means of the Agency Grant Deed
substantially in the form attached hereto as Exhibit "C", with
appropriate modifications to reflect the appropriate grantee and
the Site Lots being conveyed by such Grant Deed. As used
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herein, unless the context requires or admits otherwise, the
term "Agency Grant Deed" means, collectively, the Agency Grant
Deed for the Century Lots and the Agency Grant Deed for the
Olive Crest Lots.
Section 2.02. Developer Deposit, Payment of Purchase
Price; Application or Return of Deposit.
(a) Developer Deposit. Within five (5) calendar days
following the full execution of this Agreement by the parties,
the Developer shall deposit the sum of One Hundred Thirty Five
Thousand Dollars ($135,000) (the "Deposit") with Orange Coast
Title, 1060 East Washington, Suite 200, Colton, California,
92324, Attn: Mary Antinora ("Escrow Holder"), Escrow #
(the "Escrow"). The Escrow Holder shall invest the Deposit in
an interest-bearing escrow account at the written instruction of
the Developer with the interest thereon to accrue to the benefit
of the Developer. At the Close of Escrow, the Deposit, together
wi th all interest earned thereon, less costs of closing payable
by Developer, shall be applied to the Site Purchase Price, or as
further provided for under this Agreement.
(b) Payment of Balance of Purchase Price. The
Purchase Price, less the Deposit, shall be tendered by the
Developer to the Escrow Holder on the Closing Date (as
hereinafter defined) for disbursement to the Agency upon the
Close of Escrow. The balance of the Purchase Price shall be
paid in cash or immediately available funds. The parties
acknowledge that an estimate as of the date of this Agreement of
the balance of the Purchase Price payable in cash appears to be
approximately One Million Two Hundred Fifteen Thousand Dollars
($1,215,000) .
(c) Return of Deposit. In the event that (i) the
Agency or the Developer terminates this Agreement pursuant to
Section 2.20; or (ii) the Developer does not deliver its Due
Diligence Approval Certificate (as hereinafter defined) to the
Escrow Holder pursuant to Section 2.10 and this Agreement is
terminated; or (iii) the Developer's conditions precedent to the
Close of Escrow described in Section 2.16 are not satisfied
(unless satisfaction has been waived by the Developer) and this
Agreement is terminated; or (iv) as described in Section 2.25,
either the Site suffers damage prior to the Close of Escrow, or
an action of eminent domain is commenced by a governmental
enti ty with respect to the Site prior to the Close of Escrow,
and the Developer elects to terminate this Agreement pursuant to
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Section 2.25; or (v) the ESA (described in Section 2.09.01)
discloses the possible presence of hazardous materials and/or
hazardous waste which, in the Developer's reasonable opinion,
would cost in excess of One Hundred Thousand Dollars ($100,000)
to remediate, and the Developer elects to terminate this
Agreement pursuant to Section 2.09.01; or (iv) the Escrow and
this Agreement are terminated by operation of any other
provision of this Agreement and such termination is not due to
the Developer's uncured material breach hereof, then the Deposit
(less an amount equal to one-half of the customary and
reasonable escrow cancellation charges of the Escrow Holder)
shall be returned to the Developer in the form of Escrow
Holder's check payable jointly to Century and Olive Crest.
Section 2.03. Opening and Closing of Escrow.
(a) The transfer and sale of the Site shall take
place through an Escrow to be administered by the Escrow Holder
(Orange Coast Title or such other escrow or title insurance
company mutually agreed upon by the Developer and the Agency).
Notwi thstanding the actual date of the opening of the Escrow,
the Escrow shall be deemed open ("Opening of Escrow") upon
delivery of the Deposit by the Developer and a fully executed
copy of this Agreement to the Escrow Holder. The Escrow Holder
shall promptly confirm to the parties the escrow number and the
title insurance order number assigned to the Escrow.
(b) In the event that the Developer has not delivered
its Due Diligence Approval Certificate to the Agency and the
Escrow Holder prior to the end of the Due Diligence Period (as
it may be extended by operation of this Agreement or mutual
agreement of the parties) for any reason, then in such event
this Agreement shall terminate upon written notice to the Escrow
Holder from either the Agency or the Developer, whereupon the
Deposit shall be returned by the Escrow Holder to the Developer
(less an amount equal to one-half of the customary and
reasonable escrow cancellation charges payable to the Escrow
Holder) as provided in Section 2.02(c) without further or
separate instruction to the Escrow Holder, and the parties shall
each be relieved and discharged from all further responsibility
or liability under this Agreement.
Diligence
Diligence
agreement
(c) Provided that the Developer has delivered its Due
Approval Certificate prior to the end of the Due
Period (as it may be extended by operation of this
or mutual agreement of the parties), then the Closing
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Date of the Escrow shall occur wi thin sixty (60) days
thereafter, subject to the provisions of Section 2.16 and
Section 2.17. The words "Close of Escrow," "Closing Date" and
"Closing" shall mean and refer to the date when the Escrow
Holder is in receipt of all necessary documents and the Escrow
Holder is in a position to comply with the final written
instructions of the parties and cause the Agency Grant Deed for
the Site to be recorded and the policy of insurance for the Site
to be delivered to the Developer.
(d) The parties mutually covenant and agree to
execute all necessary or appropriate written Escrow instructions
as may be reasonably requested by the Escrow Holder.
Section 2.04. Escrow Instructions. This Agreement
also constitutes escrow instructions of the parties to the
Escrow Holder. Addi tionally, the Developer and the Agency each
agree to execute the customary supplemental escrow instructions
of the Escrow Holder in the form provided by the Escrow Holder
to its clients in real property escrow transactions administered
by it. In the event of a conflict between the additional terms
of such customary supplemental escrow instructions of the Escrow
Holder and the provisions of this Agreement, this Agreement
shall supersede and be controlling. Upon any termination of
this Agreement or cancellation of the Escrow, the Escrow Holder
shall forthwith return all monies (as provided in this
Agreement) and documents, less only the Escrow Holder's
customary and reasonable escrow cancellation fees and expenses,
as set forth herein.
Section 2.05. Conveyance of Title. On or before
12: 00 noon on the business day preceding the Closing Date, the
Agency shall deliver to the Escrow Holder the grant deeds for
the Site in the form attached hereto as Exhibit "C"
(collectively, the "Agency Grant Deed") duly executed and
acknowledged by the Agency, which Agency Grant Deed shall convey
all of the right, title and interest of the Agency in the
Century Lots to Century and the Olive Crest Lots to Olive Crest,
as more particularly described in Section 2.01.3. The Escrow
Holder shall be instructed to record the Agency Grant Deed in
the Official Records of San Bernardino County, California, if
and when Escrow Holder holds the various instruments and funds
for the accounts of the parties as set forth herein and can
obtain for Century's benefit a CLTA extended coverage policy of
title insurance for the Century Lots and can obtain for Olive
Crest's benefit a CLTA extended coverage policy of title
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insurance for the Olive Crest Lots. The foregoing two policies
of title insurance are hereinafter referred to collectively as
the "Title Policy" and shall be issued by Orange Coast Title or
such other title insurance company mutually agreed upon by the
parties ("Title Company"). The insured value of the title
policy for the Century Lots shall be in an amount equal to Six
Hundred Seventy Five Thousand Dollars ($675,000) together with
such endorsements to such policy as may reasonably be requested
by Century. The insured value of the title policy for the Olive
Crest Lots shall be in an amount equal to Six Hundred Seventy
Five Thousand Dollars ($675,000) together with such endorsements
to such policy as may reasonably be requested by Olive Crest.
The Title Policy shall insure that fee title to the Century Lots
shall be vested in Century (or Century's assignee or nominee)
and fee title to the Olive Crest Lots shall be vested in Olive
Crest (or Olive Crest's assignee or nominee) and subj ect only
to:
(1) non-delinquent real property taxes;
(2) non-monetary title exceptions approved by the
Developer pursuant to Section 2.13 below;
(3) applicable provisions of the subdivision map for
the Site;
(4) the provisions of the Agency Grant Deed for the
Site;
(5) the applicable provisions of this Agreement; and
( 6)
such other title
from documents
through Escrow.
exceptions, if
being recorded
any,
or
resulting
delivered
Section 2.06. Additional Closing Obligations of
Agency. On or before 12: 00 noon on the business day preceding
the Closing Date (unless indicated otherwise), the Agency shall
deli ver to the Escrow Holder (unless indicated to be delivered
directly to the Developer) copies of the following documents and
other items:
(1) a certificate of non-foreign status (the "Non-
Foreign Affidavit") executed by the Agency, in
the customary form provided by the Escrow Holder,
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and a California Franchise Tax Board Form 590-RE
executed by the Agency;
(2) all soils, seismic, geologic, drainage, toxic
waste and environmental reports, surveys, "as-
built" plans and specifications, working
drawings, grading plans, elevations and similar
information with respect to the Site heretofore
obtained by the Agency, if any, which the Agency
has in its possession and/or control to the
extent that originals of such items have not been
deli vered previously by the Agency to the
Developer pursuant to Section 2.08 below;
(3 )
two (2) duplicate original copies
estimated Closing Statement described in
2.21, duly executed by the Agency;
of the
Section
(4) evidence of the existence, organization and
authori ty of the Agency and of the authority of
persons executing documents on behalf of the
Agency reasonably satisfactory to the Escrow
Holder and Title Company; and
(5) any other documents, instruments or funds
required to be delivered by the Developer under
the terms of Agreement or as otherwise required
by Escrow Holder or Title Company in order to
Close Escrow which have not previously been
delivered.
Section 2.07. Closing Obligations of Developer. On
or before 12:00 noon on the business day preceding the Closing
Date, the Developer shall deliver to the Escrow Holder copies of
the following documents and other items:
(I) two (2) duplicate original copies of the Closing
Statement, duly executed by the Developer.
(2) evidence of the existence, organization and
authority of the Developer and of the authority
of persons executing documents on behalf of the
Developer reasonably satisfactory to the Escrow
Holder and the Title Company.
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(3) any other documents, instruments or funds
required to be delivered by the Developer under
the terms of Agreement or as otherwise required
by Escrow Holder or Title Company in order to
Close Escrow which have not previously been
delivered.
Section 2.08.
Inspections and Review.
(a)
the execution
correct and
documents and
Developer:
(i)
(ii)
(iii)
Due Diligence Items. Wi thin five (5) days after
of this Agreement, the Agency shall deliver true,
complete copies or originals of the following
items (collectively, "Due Diligence Items") to the
copies of all soils, seismic, geologic, drainage,
toxic waste, engineering, environmental and
similar type reports and surveys (including, but
not limi ted to, any Environmental Si te
Assessments of the Site) , surveys, building
grading plans, drawings (including "as-built"
plans and specifications), schematics, blueprints
and working drawings for the improvement of the
Site, if any, in the possession or control of the
Agency and correspondence relating thereto, if
any, within the Agency's possession or control.
notices of violations, including, but not limited
to, zoning ordinances, development or building
codes affecting the Site in the Agency's
possession or control.
disclosure of any legal matters affecting the use
or condition of the Site within the knowledge of
the Agency.
(iv) a natural hazards disclosure statement on the
Site.
Agreement,
meaning:
(b)
the
(i)
RVPUB!WJP!645019
Certain Definitions.
terms set forth below
For the purpose
shall have the
of this
following
"environmental laws" means all federal,
local, or municipal laws, rules,
regulations, statutes, ordinances,
state,
orders,
codes,
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decrees, or requirements of any government
authority regulating, relating to, or imposing
liabili ty or standards of conduct concerning any
hazardous substance (as later defined) , or
pertaining to occupational health or industrial
hygiene (and only to the extent that the
occupational health or industrial hygiene laws,
ordinances, or regulations relate to hazardous
substances on, under, or about the Site) ,
occupational or environmental conditions on,
under, or about the Site, as now or may at any
later time be in effect, including without
limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980
("CERCLA") [42 USC Section 9601 et seq.]; the
Resource Conservation and Recovery Act of 1976
("RCRA") [42 USC Section 6901 et seq.]; the Clean
Water Act, also known as the Federal Water
Pollution Control Act ("FWPCA") [33 USC Section
1251 et seq.]; the Toxic Substances Control Act
("TSCA") [15 USC Section 2601 et seq.]; the
Hazardous Materials Transportation Act ("HMTA")
[49 USC Section 1801 et seq.]; the Insecticide,
Fungicide, Rodenticide Act [7 USC Section 6901 et
seq.] the Clean Air Act [42 USC Section 7401 et
seq.]; the Safe Drinking Water Act [42 USC
Section 300f et seq. J; the Solid Waste Disposal
Act [42 USC Section 6901 et seq. J; the Surface
Mining Control and Reclamation Act [30 USC
Section 101 et seq. J the Emergency Planning and
Community Right to Know Act [42 USC Section 11001
et seq.]; the Occupational Safety and Health Act
[29 USC Section 655 and 657J; the California
Underground Storage of Hazardous Substances Act
[H & S C Section 25288 et seq. J; the California
Hazardous Substances Account Act [H & S C Section
25300 et seq.J; the California Safe Drinking
Water and Toxic Enforcement Act [H & S C Section
24249.5 et seq.J the Porter-Cologne Water Quality
Act [Water Code Section 13000 et seq. J together
with any amendments of or regulations promulgated
under the statutes cited above and any other
federal, state, or local law, statute, ordinance,
or regulation now in effect or later enacted that
pertains to occupational health or industrial
hygiene, and only to the extent the occupational
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health or industrial hygiene laws, ordinances, or
regulations relate to hazardous substances on,
under, or about the Site, or the regulation or
protection of the environment, including ambient
air, soil, soil vapor, groundwater, surface
water, or land use.
(ii) "hazardous
limitation:
substances"
includes
without
those substances included within the
definitions of "hazardous substance," "hazardous
waste," "hazardous material," "toxic substance,"
"solid waste," or "pollutant or contaminate" in
CERCLA, RCRA, TSCA, HMTA, or under any other
environmental law; and
those substances listed in the United States
Department of Transportation (DOT)Table [49 CFR
172.101], or by the EPA, or any successor agency,
as hazardous substances [40 CFR Part 302]; and
other substances, materials,
are or become regulated or
hazardous or toxic under federal,
laws or regulations; and
and wastes that
classified as
state, or local
any material, waste, or substance that is
(1) a petroleum or refined petroleum product,
(2) asbestos,
(3) polychlorinated biphenyl,
(4) designated as a hazardous substance pursuant
to 33 USC Section 1321 or listed pursuant to 33
USC Section 1317,
(5) a flammable explosive, or
(6) a radioactive material.
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Section 2.09. Due Diligence Investigation of the Site;
Phase I Environmental Site Assessment.
(a) Within ninety (90) days from and after the
Opening of Escrow, and subj ect to the extensions of time set
forth below in Section 2.15, the Developer shall have the right
to examine, inspect and investigate the Site (the "Due Diligence
Period") to determine whether its condition is acceptable to the
Developer in its sole and absolute discretion.
(b) During the Due Diligence Period, the Agency shall
permi t the Developer, its engineers, analysts, contractors and
agents to conduct such physical inspections and testing of the
Site as the Developer deems prudent with respect to the physical
condition of the Site, including the inspection or investigation
of soil and subsurface soil geotechnical condition, drainage,
seismic and other geological and topographical matters, and for
purposes of surveying the potential presence of any hazardous
substances, if any.
Any such investigation work on the Site may be
conducted by the Developer and/or its agents during any normal
business hours upon seventy-two (72) hours prior notice to the
Agency, which notice will include a description of any
investigation work or tests to be conducted by the Developer on
the Site. Upon the Agency's request, the Developer will provide
the Agency with copies of any test results to the extent it is
not contractually prohibited from doing so and further, to the
extent that the delivery of such copies to the Agency shall
impose no cost or other liability upon the Developer.
During the Due Diligence Period, the Developer shall
also have the right to investigate all matters relating to the
zoning, use and compliance with other applicable laws which
relate to the use and development and improvement of the Site.
The Agency shall cooperate fully to assist the Developer in
completing such inspections and investigations of the condition
of the Site. The Agency shall have the right, but not the
obligation, to accompany the Developer during such
investigations and/or inspections.
Section 2.09.01. Preliminary Environmental
Si te Assessment and Developer's Right to Terminate. Immediately
following the commencement of the Due Diligence Period, the
Developer may, at its expense, cause the recertification of that
certain preliminary environmental site assessment ("ESA"), dated
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July 18, 2002, which the Developer had previously caused to be
undertaken with respect to the Site to determine the potential
presence of hazardous substances or other unacceptable
environmental conditions upon the Site. If the recertified ESA
discloses the possibility of the presence of hazardous
substances or other environmental conditions which would, in the
reasonable estimation of the Developer, require in excess of One
Hundred Thousand Dollars ($100,000) to remediate to a level of
insignificance in accordance with environmental laws, then the
Developer may, without cost, expense or liability to any party,
and prior to the end of the Due Diligence Period, terminate this
Agreement by written notice to the Agency and the Escrow Holder.
Upon receipt of such notice of termination, the Escrow shall be
terminated and the Deposit shall be returned to the Developer in
accordance with Section 2.02(c).
Section 2.10. Due Diligence Approval Certificate.
Wi thin ninety (90) days following the Opening of Escrow, the
Developer shall complete its investigation of the Site (subject
to the extensions of time set forth in Section 2.15) and deliver
a due diligence approval certificate signed by the Developer
(the "Due Diligence Approval Certificate") to the Escrow Holder
which either:
(i)
indicates that the Developer
condition of the Site or;
accepts
the
(ii) contains a description of the matters or
exceptions relating to the condition of the Site
which the Developer was not able to accept or
resolve to its satisfaction during the Due
Diligence Period.
Section 2.11. Books and Records. As part of the
Developer's due diligence investigations during the Due
Diligence Period, the Developer shall be afforded full
opportunity by the Agency to examine all books and records which
relate to the Site in the possession of the Agency and/or the
Agency's agents or employees, including the reasonable right to
make copies of such books and records. During the Due Diligence
Period, the Agency will make sufficient staff available to
assist the Developer with obtaining access to information
relating to the Site which is in the possession or control of
Agency.
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Section 2.12. Condition of the Site; Developer's
Release. The Developer acknowledges and agrees that it shall be
given a full opportunity under this Agreement to inspect and
investigate every aspect of the Site during the Due Diligence
Period. The Developer shall accept the delivery of title to the
Site on the Close of Escrow in an "AS IS," "WHERE IS" and
"SUBJECT TO ALL FAULTS" condition. The Developer further agrees
and represents to the Agency that by a date no later than the
end of the Due Diligence Period, the Developer shall have
conducted and completed (or waived the completion) of all of its
independent investigation of the condition of the Site which the
Developer may believe to be indicated. The Developer hereby
acknowledges that it shall rely solely upon its own
investigation of the Site and its own review of such information
and documentation as it deems appropriate for the purpose of
accepting the condition and possession of the Site. The
Developer is not relying on any statement or representation by
the Agency relating to the condition of the Site unless such
statement or representation is specifically contained in this
Agreement. Wi thout limiting the foregoing, the Agency makes no
representations or warranties as to whether the Site presently
comply with environmental laws or whether the Site contains any
hazardous substance, as these terms are defined in Section
2.08 (b) hereof. Furthermore, to the extent that the Agency has
provided the Developer with information relating to the
condi tion of the Site, including information and reports
prepared by or on behalf of the City of San Bernardino, the
Agency makes no representation or warranty with respect to the
accuracy, completeness or methodology or content of such reports
or information.
Without limiting the above, except to the extent
covered by an express representation or warranty of the Agency
set forth in this Agreement, the Developer, on behalf of itself
and its successors and assigns, waives and releases the Agency
and its successors and assigns from any and all demands, claims,
legal or administrative proceedings, losses, liability, damages,
penalties, fines, judgments, costs or expenses whatsoever
(including, without limitation, attorneys' fees and costs),
whether direct or indirect, known or unknown, foreseen or
unforeseen, arising from or relating to the physical condition
of the Site or any law or regulation applicable thereto,
including the presence or alleged presence of harmful or
hazardous substances in, under or about the Site including,
without limitation, any claims under or on account of (i) CERCLA
RVPUB/WJP/645019
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and similar statutes and any regulations promulgated thereunder
or (ii) any other environmental laws.
The Developer expressly waives any rights or benefits
available to it with respect to the foregoing release under any
provision of applicable law which generally provides that the
general release does not extend to claims which the creditor
does not know of suspect to exist in his or her favor at the
time the release is agreed to, which, if known to such creditor,
would materially affect a settlement. By execution of this
Agreement, the Developer acknowledges that it fully understands
the foregoing, and with this understanding, nonetheless elects
to and does assume all risk for claims known or unknown,
described in this Section 2.12 without limiting the generality
of the foregoing:
The undersigned acknowledges that it has been advised by
legal counsel and is familiar with the provisions of
California Civil Code Section 1542, which provides as
follows:
"A GENERAL RELEASE DOES NOT EXTEND
TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN
HIS FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY
HIM, MUST HAVE MATERIALLY AFFECTED
HIS SETTLEMENT WITH THE DEBTOR."
The undersigned, being aware of this code section, hereby
expressly waives any rights it may have thereunder, as well
as under any other statutes or common law principles of
similar effect.
Initials of Developer'~
The provisions of this Section 2.12
Close of Escrow.
/il'
shall
survive
the
Section 2.13. Review and Approval of Condition of
Title by the Developer.
(a) Within fifteen (15) days following the Opening of
Escrow, Agency shall cause to be delivered to the Developer a
preliminary title report or title commitment for a CLTA extended
coverage policy of title insurance issued by the Title Company,
RVPUB/WJP/645019
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describing the condition of title of the Site, together with
copies of all exceptions specified therein and with all
easements plotted but excluding matters disclosed on a survey
(the "Preliminary Title Report"). The Developer shall notify
the Agency in writing ("Developer's Title Objection Notice")
prior to the expiration of the Due Diligence Period of any
objections the Developer may have to the title exceptions
contained in the Preliminary Title Report. The Agency shall
have a period of five (5) days after receipt of the Developer's
Title Objection Notice in which to deliver written notice to the
Developer ("Agency's Title Notice") of the Agency's election to
either: (i) agree to remove the objectionable items prior to the
Close of Escrow, or (ii) decline to remove any such title
exceptions and terminate this Agreement and cancel the Escrow;
provided, however, that the Agency shall be required to remove
all monetary liens and encumbrances created by or as a result of
the Agency's activities. If the Agency notifies the Developer
of its election to terminate this Agreement and cancel Escrow
rather than remove the objectionable items, the Developer shall
have the right, by written notice delivered to the Agency within
five (5) days after the Developer's receipt of the Agency's
Title Notice, to agree to accept the Site subject to the
obj ectionable items, in which event the Agency's election to
terminate this Agreement and cancel the Escrow shall be of no
effect, and the Developer shall take title at the Close of
Escrow subject to such objectionable title items. In the event
that the Escrow is terminated by the Agency under this Section
2.13(a), the Agency shall be responsible for paying for all
Escrow cancellation costs of the Escrow Holder and the Deposit
shall be promptly returned to the Developer.
(b) The Agency covenants not to further encumber and
not to place any further liens or encumbrances on the Site,
including, but not limited to, covenants, conditions,
restrictions, easements, liens, options to purchase, options to
lease, leases, tenancies, or other possessory interests without
the prior written consent of the Developer. Upon the issuance
of any amendment or supplement to the Preliminary Title Report
which adds additional exceptions (including, but not limited to,
adding additional exceptions for matters shown on the Survey as
hereinafter defined), the foregoing right of review and approval
shall also apply to said amendment or supplement (provided that
the period for the Developer to review such amendment or
supplement shall be the later of the expiration of the Due
Diligence Period or ten (10) days from receipt of the amendment
or supplement) and Escrow shall be deemed extended by the amount
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of time necessary to allow such review and approval in the time
and manner set forth above.
Section 2.14. Survey. The Developer may obtain a
survey of the Site prepared by a land surveyor duly licensed by
the State of California and in compliance with ALTA/ASCM
standards ("Survey"). The Survey shall be in a form acceptable
to the Title Company for the deletion of the standard survey
exception in the Title Policy relating to boundaries, without
the addition of further exceptions unless the same are
acceptable to the Developer in its sole and absolute discretion.
The Developer shall have until the end of the Due Diligence
Period to complete and examine the Survey and to notify Agency
in writing of any obj ections the Developer have to the Survey
("Developer's Survey Obj ection Notice"). The Agency shall have
a period of five (5) days after receipt of the Developer's
Survey Obj ection Notice in which to deliver written notice to
the Developer ("Agency's Survey Notice") of the Agency's
election to either: (i) agree to remove the obj ectionable items
prior to the Close of Escrow or (ii) decline to remove such
items and terminate this Agreement and the Escrow. If the
Agency notifies the Developer of its intention to not remove the
objectionable items, the Developer shall have the right, by
written notice delivered to the Agency within five (5) days
after the Developer's receipt of Agency's Survey Notice, to
agree to accept the Site subject to the objectionable items, in
which event, the Agency's election to terminate this Agreement
and cancel the Escrow shall be of no effect, and the Developer
shall accept the Property at the Close of Escrow subject to such
objectionable items. In the event that this Agreement is
terminated by the Agency under this Section 2.14, the Agency
shall be responsible for paying for all Escrow cancellation
costs of the Escrow Holder and the Deposit shall be promptly
returned to the Developer. Prior to the Closing, the Survey
shall be recertified to the Developer, Title Company and the
Developer's lender, if any. The Survey will be performed at the
Developer's sole cost and expense.
Section 2.15. Extension of Due Diligence Period. In
the event Agency fails to provide to the Developer access to the
books and records as set forth in Section 2.11 and/or the
documents and other information required by Sections 2.08 and
2.13 by the date (s) set forth therein, the Due Diligence Period
for such information shall be extended by one (1) day for each
day of the delay by the Agency to permit the Developer to
perform an adequate due diligence review (but not to exceed a
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total of thirty (30) days.) The Developer will use its best
efforts to notify Agency of any documents the Agency has failed
to deliver to the Developer within the time periods provided in
Sections 2.08 and 2.11. In the event that the Developer has
delivered its Due Diligence Approval Certificate and thereafter,
prior to the Close of Escrow, the Agency presents the Developer
wi th any new Due Diligence Item, the Close of Escrow shall be
extended to permit the Developer to perform an adequate due
diligence review of such new item for up to thirty (30) days.
In the event that the Developer fails to accept such new item
wi thin such additional period of time and cause the Escrow to
close, then in such event either party may terminate this
Agreement and cancel the Escrow as set forth in Sections 2.20
and2.02(c).
Section 2.16. Developer' s Conditions Precedent. The
Developer's obligation to purchase the Site shall be conditioned
upon the fulfillment of the following conditions precedent, all
of which shall be satisfied (or waived in writing pursuant to
Section 2.19) prior to the Close of Escrow:
(1) The Agency shall not have defaulted on any
material term of this Agreement to be performed
by the Agency hereunder, and each representation
and warranty made by the Agency in this Agreement
shall remain true and correct. For purposes of
this subsection (1) only, a representation that
is limited to the Agency I s knowledge or notice
shall be false if the factual matter that is
subject to the representation is false,
notwi thstanding any lack of knowledge or notice
to the Agency;
(2) the Developer's approval of the Preliminary Title
Report and the Survey, if applicable, within the
time periods specified in Sections 2.13 and 2.14;
(3) the Developer's approval of the contents of all
Due Diligence Items, and the other investigations
of the Site made by the Developer and/or its
designees pursuant to Sections 2.08, 2.09 and
2.11 herein on or before the expiration of the
Due Diligence Period, or such later date if the
Due Diligence Period is extended pursuant to
Section 2.15. The Developer shall be deemed to
have disapproved such Due Diligence Items unless
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they are approved on or before 5:00 p.m. on the
final day of the Due Diligence Period, or such
later date if the Due Diligence Period is
extended pursuant to Section 2.15 herein;
(4) the Developer's approval of any notice of change
in representation or warranty given by the Agency
pursuant to Section 2.24(a)hereof;
(5)
the Title Company has committed to issue
Title Policy, in favor of the Developer in
form described in Section 2.05;
the
the
(6) the Developer has obtained construction financing
loan (s) commitment (s) to cover all costs of (i)
the rough grading of the Site, (ii) the
construction and installation of the Public
Improvements, (iii) the development of one
hundred seven (107) single family detached homes
upon the Site, and (iv) payment of all applicable
Ci ty or School fees, or other governmental
entities fees, on terms reasonably acceptable to
it;
(7) the Agency shall have deemed satisfied (or waived
satisfaction of) each of the conditions precedent
set forth in Section 2.17;
(8 )
the City Engineer
the subdivision
Site;
shall have approved the form of
improvement agreement for the
(9) the City Engineer has approved the subdivision
completion surety bond and the payment surety
bond for the installation of the public
improvements as required for the development of
the Site by the Developer;
(10) All conditions to the recordation of the
tentati ve tract map described in Section 2.01.2
have been satisfied and the tentative tract map
is in a position to, and shall, record
concurrently with the Close of Escrow; and
(11) The Developer
entitlements and
shall
other
have obtained all
discretionary approvals
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from the City and/or Agency such that,
immediately following the Close of Escrow and
subject only to payment of applicable fees,
Developer shall be entitled to receive building
permi ts for the New Homes to be constructed on
the Site.
Section 2.17. The Agency's Conditions
The Agency's obligation to convey the Site to the
shall be conditioned upon the fulfillment of the
conditions precedent, all of which shall be satisfied
in writing pursuant to Section 2.19) prior to the
Escrow:
Precedent.
Developer
following
(or waived
Close of
(1) the Developer has accepted the condition of the
Site and submitted its Due Diligence Approval
Certificate to the Escrow Holder on or before the
date set forth in this Agreement;
(2) the Developer has accepted the condition of title
of the Site on or before the date set forth in
Section 2.13;
(3) the Developer has provided the Agency with
satisfactory evidence of the commitment of a
lender to provide construction financing to the
Developer for (i) the rough grading of the Site;
(ii) the construction and installation of the
Public Improvements (as that term is defined
below) ; (iii) the development of one hundred
seven (107) single family detached homes upon the
Site, and (iv) payment of all applicable City or
School fees, or other governmental entities fees,
on terms reasonably acceptable to it;
(4) the Developer shall not be in default of any
material term of this Agreement to be performed
by the Developer hereunder and each
representation and warranty of the Developer made
in this Agreement shall remain true and correct;
(5) the Developer shall have satisfied (or shall be
deemed to have waived satisfaction of) each of
the conditions precedent set forth in Section
2.16; and
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(6) the City Engineer and the Developer shall have
each approved the form of the subdivision
improvement agreement for the Site and shall have
delivered fully executed completion and payment
surety bonds to the City Engineer in form and
principal amount satisfactory to the City
Engineer.
Section 2.18. Deli very of Documents and Purchase
Price After Closing Date by Escrow Holder. The Escrow Holder
shall deliver to the Agency the Site Purchase Price, less sums
paid to discharge any liens, less Escrow costs, expenses and the
various prorations chargeable to the Agency hereunder. The
Escrow Holder shall deliver to the Developer within (3) business
days following the Closing Date a conformed copy of the Agency
Grant Deed, as recorded and the policy of title insurance issued
by the Title Company in favor of the Developer.
Section 2.19. Satisfaction of Conditions. Where
satisfaction of any of the foregoing conditions requires action
by the Developer or by the Agency, each party shall use its
diligent best efforts, in good faith, and at its own cost, to
satisfy such condition. Where satisfaction of any of the
foregoing conditions requires the approval of a party, such
approval shall be in such party's sole and absolute discretion.
Either party may waive any of the conditions set forth
in the Agreement, but any such waiver shall be effective only if
contained in a writing signed by the applicable party and
delivered to the Escrow Holder and the other party.
Section 2.20. Termination; Automatic Right to
Assignment and/or Termination of Century's or Olive Crest
Rights. In the event each of the conditions set forth in
Section 2.16 (in the case of the Developer) or Section 2.17 (in
the case of the Agency) is not fulfilled wi thin one hundred
fifty (150) days after the Opening of Escrow (subject to
Sections 2.15 and 6.05, if applicable) or waived by the party
for whose benefit the condition exists pursuant to Section 2.19,
any party may, at its option, terminate this Agreement and
cancel the Escrow opened hereunder, thereby releasing the
parties from further obligations hereunder and all documents
deli vered by the Developer to the Agency or the Escrow Holder
shall be returned to the Developer and all documents delivered
by the Agency to the Developer or the Escrow Holder shall be
returned to the Agency. The Deposit shall be disbursed to the
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Developer as set forth in Section 2.02 (c) . Nothing in this
Section 2.20 shall: (i) be construed as releasing any party
from liability for any default of its obligations hereunder or
breach of its representations and warranties under this
Agreement occurring prior to the termination of this Agreement
and/ or the cancellation of the Escrow; (ii) affect the right of
any party to terminate this Agreement pursuant to Section 2.03,
or (iii) affect any right of Olive Crest and/or Century as set
forth in Sections 2.20.1 and 2.20.2 below.
Section 2.20.1 Right of Olive Crest to Assume
Century's Rights and Obligations. Prior to the Agency's
termination of this Agreement and/or the Escrow due to Century's
uncured material default, upon the written request of Olive
Crest , Olive Crest shall succeed to the rights and obligations
of Century hereunder upon Olive Crest's execution and deli very
to the Agency of an assumption agreement in form reasonably
acceptable to the Agency and Olive Crest, agreeing to accept
conveyance of all one hundred seven (107) Site Lots and to
otherwise perform all of the Century's obligations hereunder.
Section 2.20.2 Right of Century to Assume Olive
Crest's Rights and Obligations. Prior to the Agency's
termination of this Agreement and/or the Escrow due to Olive
Crest's uncured material default, upon the written request of
Century, Century shall succeed to the rights and obligations of
Oli ve Crest hereunder upon Century's execution and deli very to
the Agency of an assumption agreement in form reasonably
acceptable to the Agency and Century, agreeing to accept
conveyance of all one hundred seven (107) Site Lots and to
otherwise perform all of Olive Crest's obligations hereunder.
Section 2.20.3 1994 School Mitigation Agreement
and Developer Payment to City of San Bernardino in Lieu Fees for
Site Lots.
(a) The San Bernardino City Unified School
District (the "School District"), the City of San Bernardino
(the "City") and a former owner of the Site, California
Properties Fund (herein "Glaziers"), are parties to an agreement
entitled "Mitigation Agreement" dated August 30, 1994 (the "1994
School Fee Agreement") by and among the District, the City,
Glaziers, James C. Bice, Irving M. Feldkamp, III, Ruth Newbury
and San Bernardino S.B. Five Limited. The Agreement affects the
Si te and limits the power of the School District to charge or
assess certain public school regulatory or capital charges
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(public school facilities fees) including without limitation any
such fee under Government Code Section 53080 or other applicable
law (collectively, a "School Fee") against the construction of
new homes on the Site in exchange for the payments and
obligation incurred by the City and the other parties to the
1994 School Fee obligations of Glaziers under the 1994 School
Fee Agreement to the School District. The Agency is a successor
in interest of the rights and obligations of Glaziers under the
1994 School Fee Agreement.
In consideration of the agreement of the
Developer to pay to the City the sum of Six Thousand Seven
Hundred Thirty two Dollars per Site Lot at the time indicated in
subsection (b), below, the Agency hereby agrees to indemnify and
hold the Developer harmless from any other obligations of the
Developer or the successors and assigns of the Developer to pay
the School District any School Fee levied or assessed by the
School District against the Site or any Site Lot, or which sum
may otherwise be claimed by the District, upon the development
of the Site by the Developer. For the purposes of the preceding
sentence, the words "development of the site by the Developer"
means and refers to the construction and improvement of the New
Homes on the Site, together with the related public
infrastructure improvements, as described in the Scope of
Development.
(b) The Developer shall pay the City the sum of
Six Thousand Seven Hundred and Thirty Two Dollars ($6,732) for
each Site Lot at the time of issuance by the City of building
permits for the improvements of a New Home on such Site lot by
the Developer. The aggregate amount of such payments to the
City (assuming that building permits are applied for and issued
by the City for all of the 107 Site Lots) is Seven Hundred
Twenty Thousand Three Hundred Twenty Four Dollars ($720,324).
The School Fee as payable by the Developer to the City at the
time of issuance of building permits for each such Site Lot
shall be in addition to any other regulatory fees, capital
charges, utility connection and capacity fees and other amounts
due and payable to the City at the time of issuance of building
permits to the Developer for any such Site Lot.
Section 2.21. Prorations, Closing Costs, Possession.
(a) Proration of Taxes. Real and personal property
taxes for the Site shall be prorated by the parties to the
Closing Date on the basis of a three hundred sixty-five (365)
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day year on the basis that the Agency is responsible for (i) all
such taxes (if any) for the fiscal year of the applicable taxing
authority occurring prior to the Current Tax Period (as defined
below) and (ii) that portion of such taxes for the Current Tax
Period to 11:59 p.m. on the Closing Date, whether or not the
same shall be payable prior to the Closing Date. The phrase
"Current Tax period" refers to the fiscal year of the applicable
taxing authority in which the Closing occurs. All tax
prorations shall be based upon the latest available tax
statement. If the tax statements for the fiscal tax year during
which Escrow closes do not become available until after the
Closing Date, then the rates and assessed values of the previous
year, with known changes, shall be used, and the parties shall
re-prorate said taxes outside of Escrow following the Closing
Date when such tax statements become available. The Agency
shall be responsible for and shall payor reimburse the
Developer upon demand for any real or personal property taxes
payable following the Closing Date applicable to any period of
time prior to the Closing Date as a result of any change in the
tax assessment by reason of reassessment, changes in use of the
Site, changes in ownership, errors by the Assessor or otherwise.
(b) Possession. Century shall be entitled to exclusive
possession of the Century Lots immediately upon the Close of
Escrow and Olive Crest shall be entitled to exclusive possession
of the Olive Crest Lots immediately upon the Close of Escrow.
The Agency shall upon the written request of the Developer:
(A) grant to the Developer
enter the Site prior to the Closing
purpose:
a temporary license to
Date for the following
(i) to remove weeds, surface debris and graffiti
from the site;
(ii) to
engineering testing and
surrounding the Site;
conduct surveys and intrusive soil
for repairs to existing perimeter walls
(iii) to install temporary subdivision land sales
advertising signs on the Site as permitted under the City sign
ordinance;
(i v) to conduct such other limited work of
predevelopment investigation as may be approved by the Agency in
its sole discretion; or
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(B) Provided that the Developer has delivered its Due
Diligence Certificate, grant to the Developer a temporary
license to enter the Site prior to Closing Date to perform the
"Work", as this term is defined in the Temporary License
Agreement for the Grading of Land in the form attached hereto as
Exhibit "H".
(C) Prior to the entry by the Developer onto any
portion of the Site pursuant to such a license under Section
2.21 (b) (A), above, the Developer shall execute a written license
agreement affecting the Site in a form to be provided by the
Agency in which the Developer shall agree to indemnify, defend
and hold the Agency harmless from any adverse exceptions to
title in the Site which may arise prior to the Closing Date by
virtue of the Developer's entry onto the Site, or any portion
thereof and the Developer shall further agree to indemnify,
defend and hold the Agency harmless from and against any other
claim, cause of action, liability or damage to persons or to
property resulting from the activities of the Developer on the
Site or any portion thereof pursuant to such license agreement.
Prior to the entry by the Developer onto the Site to perform any
work authorized under Section 2.21 (b) (B), the Developer shall
execute the Temporary License Agreement for the Grading of Land
and deliver the grading work completion surety bond and other
insurance to the Agency as called for therein.
(D) The date upon which the
work upon the Site pursuant to a
2.21 (b) (B) is hereinafter referred to as
Developer
license
the "Site
commences any
under Section
Entry Date."
(c) Title Insurance Premium, Escrow and Closing Costs.
The Agency shall pay the cost of the premium for a CLTA owner's
extended coverage policy of title insurance on the Site in the
amount of the Site Purchase Price, together with all title
charges (including endorsements reasonably requested by the
Developer to remove disapproved items shown on the Preliminary
Title Report or Survey pursuant to Sections 2.13 and 2.14
above), and the Agency shall also pay any documentary or other
transfer taxes payable on account of the conveyance of the Site
to the Developer, together with one-half (1.:;) of the customary
and reasonable escrow fees which may be charged by the Escrow
Holder in connection with the Close of Escrow.
Survey
The Developer shall pay
and requested CLTA survey
the additional cost of
policy endorsements (to
the
the
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extent such endorsements are unrelated to removal of any
disapproved items shown on the Preliminary Title Report or
Survey pursuant to Sections 2.13 and 2.14 above) which exceeds
the premium for a CLTA owner's extended coverage policy of title
insurance on the Site plus the cost of recording the Agency
Grant Deeds, together with one-half (~) of the cost of the
customary and reasonable escrow fees charged by Escrow Holder in
connection with the Close of Escrow.
Any other Escrow-related transaction expenses or
escrow closing costs incurred by the Escrow Holder in connection
with this transaction shall be apportioned and paid for by the
parties to this Agreement in the manner customary in San
Bernardino County, California.
No later than three (3) business days prior to the
Closing Date, the Escrow Holder shall prepare for approval by
the Developer and the Agency a closing statement ("Closing
Statement") on the Escrow Holder's standard form indicating,
among other things, the Escrow Holder's estimate of all closing
costs, pay-off amounts for the release and reconveyance of all
liens secured by the Site and prorations made pursuant to this
Agreement. The Developer and the Agency shall assist the Escrow
Holder in determining the amount of all prorations.
Section 2.22. BREACH OF ARTICLE II BY THE AGENCY PRIOR TO SITE
ENTRY DATE; LIQUIDATED DAMAGES PAYABLE BY THE AGENCY TO THE
DEVELOPER. IN THE EVENT THAT THE AGENCY COMMITS A MATERIAL
BREACH OF ITS OBLIGATIONS UNDER THIS ARTICLE II PRIOR TO THE
SITE ENTRY DATE (DEFINED IN SECTION 2.21 (b) (D) ), THE DAMAGES
THAT THE DEVELOPER WILL INCUR BY REASON THEREOF ARE AND WILL BE
IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTABLISH. THE DEVELOPER
AND THE AGENCY, IN A REASONABLE EFFORT TO ASCERTAIN WHAT THE
DEVELOPER'S DAMAGES WOULD BE IN THE EVENT OF SUCH A DEFAULT BY
THE AGENCY, HAVE AGREED THAT SUCH DAMAGES SHALL BE IN AN AMOUNT
EQUAL TO THE SUM OF FIFTY THOUSAND DOLLARS ($50,000) AS
LIQUIDATED DAMAGES. SUCH SUM SHALL BE PAID TO THE DEVELOPER IN
THE EVENT OF SUCH DEFAULT BY THE AGENCY UPON THE TERMINATION OF
THIS AGREEMENT AND CANCELLATION OF THE ESCROW, AS LIQUIDATED
DAMAGES, WHICH DAMAGES SHALL BE THE DEVELOPER'S SOLE AND
EXCLUSIVE REMEDY AT LAW OR IN EQUITY IN THE EVENT OF AND FOR
SUCH DEFAULT BY THE AGENCY PRIOR TO THE SITE ENTRY DATE.
WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS PARAGRAPH, THE
DEVELOPER WAIVES ANY AND ALL RIGHTS WHICH THE DEVELOPER
OTHERWISE WOULD HAVE HAD UNDER CIVIL CODE SECTION 3389 TO
SPECIFICALLY ENFORCE THIS AGREEMENT PRIOR TO THE SITE ENTRY
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DATE. THE DEVELOPER AND THE AGENCY ACKNOWLEDGE AND AGREE THAT
EACH OF TH~' HAS READ AND UNDERSTANDS THE PROVISIONS OF THIS
SECTION 7:'EACH AGREES TO BE BOUND BY ITS RMS .
iJf@' J;fA 7 /C
In{tl'a of Agency In
Section 2.23. BREACH BY THE DEVELOPER OF ARTICLE II
PRIOR TO SITE ENTRY DATE; LIQUIDATED DAMAGES PAYABLE BY THE
DEVELOPER TO THE AGENCY. IN THE EVENT THAT THE DEVELOPER
COMMITS A MATERIAL BREACH OF ITS OBLIGATIONS UNDER THIS ARTICLE
II PRIOR TO THE SITE ENTRY DATE (DEFINED IN SECTION 2.21 (b)(D) ,
THE DAMAGES THAT THE AGENCY WILL INCUR BY REASON THEREOF ARE AND
WILL BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTABLISH. THE
DEVELOPER AND THE AGENCY, IN A REASONABLE EFFORT TO ASCERTAIN
WHAT THE AGENCY'S DAMAGES WOULD BE IN THE EVENT OF SUCH A
DEFAULT BY THE DEVELOPER, HAVE AGREED THAT SUCH DAMAGES SHALL BE
IN AN AMOUNT EQUAL TO THE SUM OF FIFTY THOUSAND DOLLARS
($50,000) AS LIQUIDATED DAMAGES. SUCH SUM SHALL BE PAID TO THE
AGENCY IN THE EVENT OF SUCH DEFAULT BY THE DEVELOPER AS
LIQUIDATED DAMAGES, WHICH DAMAGES SHALL BE THE AGENCY'S SOLE AND
EXCLUSIVE REMEDY AT LAW OR IN EQUITY IN THE EVENT OF AND FOR
SUCH DEFAULT BY THE DEVELOPER PRIOR TO THE SITE ENTRY DATE.
WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS PARAGRAPH, THE
AGENCY WAIVES ANY AND ALL RIGHTS WHICH THE AGENCY OTHERWISE
WOULD HAVE HAD UNDER CIVIL CODE SECTION 3389 TO SPECIFICALLY
ENFORCE THIS AGREEMENT. THE AGENCY AND THE DEVELOPER
ACKNOWLEDGE AND AGREE THAT EACH OF THEM HAS READ AND UNDERSTANDS
THE PROVISIONS OF THIS SECTION AND EACH AGREES TO BE BOUND BY
ITS TEIU<S , .fl /c#
Ini ~itials of Agency
Section 2.24. Representations and Warranties.
(a) Warranties and Representations by the Agency.
The Agency hereby makes the following representations, covenants
and warranties and acknowledges that the execution of this
Agreement by the Developer has been made and the acquisition by
the Developer of the Site will have been made in material
reliance by the Developer on such covenants, representations and
warranties:
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(1) Warranties True. Each and every undertaking and
obligation of the Agency under this Agreement
shall be performed by the Agency timely when
due; and that all representations and warranties
of the Agency under this Agreement and its
exhibits shall be true in all material respects
at the Closing as though they were made at the
time of Closing.
(2) Due Organization. The Agency is a community
redevelopment agency, duly formed and operating
under the laws of California. The Agency has
the legal power, right and authority to enter
into this Agreement and to execute the
instruments and documents referenced herein, and
to consummate the transactions contemplated
hereby.
(3) Requisite Action. The Agency has taken all
requisite action and obtained all requisite
consents for agreements or matters to which the
Agency is a party in connection with entering
into this Agreement and the instruments and
documents referenced herein and in connection
with the consummation of the transactions
contemplated hereby.
(4) Enforceabili ty of Agreement. The persons
executing any instruments for or on behalf of
the Agency have been authorized to act on behalf
of the Agency and that this Agreement is valid
and enforceable against the Agency in accordance
with its terms and each instrument to be
executed by the Agency pursuant hereto or in
connection therewith will, when executed, shall
be valid and enforceable against the Agency in
accordance with its terms. No approval,
consent, order or authorization of, or
designation or declaration of any other person,
is required in connection with the valid
execution and deli very of and compliance with
this Agreement by the Agency.
(5) Title. Prior to the Closing, the Agency will be
the owner of (and the Developer will acquire
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hereunder) the entire right, title and interest
in and to the Site.
(6) No Litigation. There are no pending or, to the
best of the Agency's knowledge, threatened
claims, actions, allegations or lawsuits of any
kind, whether for personal injury, property
damage, property taxes or otherwise, that could
materially and adversely affect the value or use
of the Site or prohibit the sale thereof, nor to
the best of the Agency's knowledge, is there any
governmental investigation of any type or nature
pending or threatened against or relating to the
Site or the transactions contemplated hereby.
(7 )
Operation
Between the
of Escrow,
operate and
as existed
Agreement.
and Condition Pending Closing.
date of this Agreement and the Close
the Agency will continue to manage,
maintain the Site in the same manner
prior to the execution of this
(8) Contracts. There are no contracts or agreements
to which the Agency is a party relating to the
operation, maintenance, service, repair,
development, improvement or ownership of the
Site which will survive the Close of Escrow
except as may be disclosed to the Developer by
the Agency prior to the end of the Developer's
Due Diligence Period.
(9) Special Studies Zone. The Site is not, to the
best knowledge of the Agency, located wi thin a
designated earthquake fault zone pursuant to
California Public Resources Code Section 2621.9
or a designated area that is particularly
susceptible to ground shaking, liquefaction,
landslides or other ground failure during an
earthquake pursuant to California Public
Resources Code Section 2694.
(10) The Agency's Knowledge. For purposes of this
Section 2.22 (a), the terms "to the best of the
Agency's knowledge" or "to the Agency's
knowledge" shall mean the actual knowledge of
Gary Van Osdel, Executi ve Director, Maggie
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Pacheco, Deputy Director and Ray Casey, City
Engineer.
(11) No Breach. Nei ther the execution of this
Agreement nor the consummation of the
transactions contemplated hereby shall result in
a breach of or constitute a default under any
other agreement, document, instrument or other
obligation to which the Agency is a party or by
which the Agency may be bound, or under law,
statute, ordinance, rule, governmental
regulation or any writ, injunction, order or
decree of any court or governmental body
applicable to the Agency or to the Site.
If the Agency becomes aware of any act or circumstance
which would change or render incorrect, in whole or in part, any
representation or warranty made by the Agency under this
Agreement, whether as of the date given or any time thereafter
through the Closing Date and whether or not such representation
or warranty was based upon the Agency's knowledge and/or belief
as of a certain date, the Agency will give immediate written
notice of such changed fact or circumstance to the Developer,
but such notice shall not release the Agency of its liabilities
or obligations with respect thereto.
All representations and warranties contained in this
Section 2.24 (a) are true and correct on the date hereof and on
the Closing Date and the Agency's liability for
misrepresentation or breach of warranty, representation or
covenant, wherever contained in this Agreement, shall survive
the execution and delivery of this Agreement and the Close of
Escrow.
(b) Warranties and Representations by Century.
Century hereby makes the following representations, covenants
and warranties and acknowledges that the execution of this
Agreement by the Agency has been made in material reliance by
the Agency on such covenants, representations and warranties:
(1) Century is a duly organized and validly existing
California limited partnership. Century has the
legal right, power and authority to enter into
this Agreement and the instruments and documents
referenced herein and to consummate the
transactions contemplated hereby. The persons
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executing this Agreement and the instruments
referenced herein on behalf of Century hereby
represent and warrant that such persons have the
power, right and authority to bind Century.
(2) Century has taken all requisite action and
obtained all requisite consents in connection
wi th entering into this Agreement and the
instruments and documents referenced herein and
the consummation of the transactions contemplated
hereby, and no consent of any other party is
required for Century's authorization to enter
into Agreement.
(3) This Agreement is, and all agreements,
instruments and documents to be executed by
Century pursuant to this Agreement shall be, duly
executed by and are or shall be valid and legally
binding upon Century and enforceable in
accordance with their respective terms.
(4) Neither the execution of this Agreement nor the
consummation of the transactions contemplated
hereby shall result in a breach of or constitute
a default under any other agreement, document,
instrument or other obligation to which Century
is a party or by which Century may be bound, or
under law, statute, ordinance, rule, governmental
regulation or any writ, injunction, order or
decree of any court or governmental body
applicable to Century or to the Site.
(5) The representations and warranties of Century
contained in this Section 2.24 (b) shall be based
upon the actual knowledge of John W. Pavelak.
All representations and warranties contained in this
Section 2.24 (b) are true and correct on the date hereof and on
the Closing Date and Century 's liability for misrepresentation
or breach of warranty, representation or covenant, wherever
contained in this Agreement, shall survive the execution and
delivery of this Agreement and the Closing.
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(c) Olive Crest hereby makes
representations, covenants and warranties and
the execution of this Agreement by the Agency
material reliance by the Agency on
representations and warranties:
the following
acknowledges that
has been made in
such covenants,
(1) Olive Crest is a duly organized and validly
existing California limited liability company.
Olive Crest has the legal right, power and
authority to enter into this Agreement and the
instruments and documents referenced herein and
to consummate the transactions contemplated
hereby. The persons executing this Agreement and
the instruments referenced herein on behalf of
Olive Crest hereby represent and warrant that
such persons have the power, right and authority
to bind Olive Crest.
(2) Olive Crest has taken all requisite action and
obtained all requisite consents in connection
wi th entering into this Agreement and the
instruments and documents referenced herein and
the consummation of the transactions contemplated
hereby, and no consent of any other party is
required for Olive Crest's authorization to enter
into Agreement.
(3) This Agreement is, and all agreements,
instruments and documents to be executed by Olive
Crest pursuant to this Agreement shall be, duly
executed by and are or shall be valid and legally
binding upon Olive Crest and enforceable in
accordance with their respective terms.
(4) Neither the execution of this Agreement nor the
consummation of the transactions contemplated
hereby shall result in a breach of or constitute
a default under any other agreement, document,
instrument or other obligation to which Olive
Crest is a party or by which Olive Crest may be
bound, or under law, statute, ordinance, rule,
governmental regulation or any writ, injunction,
order or decree of any court or governmental body
applicable to Olive Crest or to the Site.
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(5) The representations and warranties of Olive Crest
contained in this Section 2.24 (c) shall be based
upon the actual knowledge of Felix Robles, Jr.
All representations
Section 2.24 (c) are true and
the Closing Date and
misrepresentation or breach
covenant, wherever contained
the execution and delivery of
and warranties contained in this
correct on the date hereof and on
Olive Crest's liabili ty for
of warranty, representation or
in this Agreement, shall survive
this Agreement and the Closing.
Section 2.25. Damage, Destruction and Condemnation.
Prior to the later of Agency's delivery of possession of the
Site to Developer or the Close of Escrow, the risk of loss or
damage to the Site shall remain upon the Agency. If the Site
suffers damages as a result of any casualty prior to either of
the applicable dates set forth in the preceding sentence which
may materially diminish its value, then the Agency shall give
written notice thereof to Developer promptly after the
occurrence of the casualty. The Developer can elect to either:
(i) accept the Site in its damaged condition or (ii) the
Developer may terminate this Agreement and recover the Deposit
as set forth in Section 2.02. The Developer shall confirm the
exercise of its election under subparagraph (i) or (ii) of the
preceding sentence wi thin thirty (30) days of its receipt of
notice from the Agency.
In the event that, prior to the Close of Escrow, any
governmental entity shall commence any actions of eminent domain
or similar type proceedings to take any portion of the Site, the
Agency shall give prompt written notice thereof to Developer,
and Developer shall have the option either: (i) to elect not to
acquire the Site, terminate the Agreement and recover the
Deposit as set forth in Section 2.02; or (ii) the Developer may
complete the acquisition of the Site, in which case Developer
shall be entitled to all the proceeds of such taking; provided
however, that the Agency agrees that it shall not settle or
compromise the proceedings before the Close of Escrow without
the Developer's prior written consent, which consent will not be
unreasonably withheld or delayed. The Developer shall confirm
the exercise of its election under subparagraph (i) or (ii) of
the preceding sentence within thirty (30) days of its receipt of
notice from the Agency.
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ARTICLE III
DEVELOPMENT OF THE SITE
Section 3.01.
Development by Developer.
(a) Scope of Development. It is the intent of the
parties that the Site be developed as follows: the
construction on the Site Lots of one-hundred seven (107) single
family detached residential dwelling units, (each referred to as
a "New Home") containing a minimum interior living area of 1600
square feet each, together with all on and off site improvements
such as streets, curbs, sidewalks, storm drains, gutter,
utilities, etc (e.g., the public improvements necessary for the
development of the Site).
(b) The City's zoning ordinance and the City's
building requirements will be applicable to the use and
development of the Site pursuant to this Agreement. The
Developer acknowledges that any change in the plans for
development of the New Homes on the Site as set forth in the
Scope of Development shall be subject to the City's zoning
ordinance and building requirements. No action by the Agency or
the City with reference to this Agreement or related documents
shall be deemed to constitute a waiver of any lawful City
requirements which are applicable to the Site or to the
Developer, any successor in interest of the Developer or any
successor in interest pertaining to the Site, except by
modification or variance approved by the City consistent with
this Agreement.
(c) The Scope of Development set forth in Exhibit "8"
is hereby approved by the Agency upon its execution of this
Agreement. The Site shall be developed and completed in
conformance with the approved Scope of Development and any and
all other plans, specifications and similar development
documents required by this Agreement, except for such changes as
may be mutually agreed upon in writing by and between the
Developer and the Agency and the mutual approval of any such
change shall not be unreasonably conditioned, withheld or
delayed. The approval by the City shall be deemed to be
approved by the Agency of the preliminary and final construction
plans for the New Homes and preliminary and final landscaping
plans, if such plans approved by the City are reasonably
consistent with the approved Scope of Development.
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(d) The approval of the Scope of Development by the
Agency hereunder shall not be binding upon the Common Council of
the City or the Planning Commission of the City with respect to
any regulatory approvals relating to the improvement of the New
Homes and/or the public improvements necessary for the
development of the Site as may be required by such other bodies.
If any material change of the Scope of Development as previously
approved by the Agency shall be required by another government
official, agency, department or bureau having jurisdiction over
the development of the Site, the Developer and the Agency shall
cooperate in efforts to obtain waivers of such revisions, or to
obtain approvals of any such revisions which have been made by
the Developer and have thereafter been approved by the Agency.
The Agency shall not unreasonably withhold or delay approval of
such revisions to the Scope of Development.
(e) Notwithstanding
this Agreement, the Developer
wi th any and all lawful and
applicable to all permits
affecting the development of
Agreement.
any provision to the contrary in
agrees to accept and comply fully
reasonable conditions of approval
and other governmental actions
the Site and consistent with this
(f) The Developer shall cause landscaping plans in
connection with development of the Site to be prepared by a
licensed landscape architect. The Developer shall prepare and
submit to the City for its approval, preliminary and final
landscaping plans for the Site which are consistent with City
Code requirements. These plans shall be prepared, submitted and
approved within the times respectively established therefor in
the Schedule of Performance as shown on Exhibit "0" attached
hereto and incorporated herein by reference and shall be
consistent with the Scope of Development.
(g) The Developer shall prepare and submit
development plans, construction drawings and related documents
for the development of the Site, including the public
improvements necessary for the development of the Site,
consistent with the Scope of Development to the City. The
development plans, construction drawings and related documents
submitted by the Developer to the City shall be in the form of
final drawings, plans and specifications. Such final drawings,
plans and specifications are hereby defined as those which
contain sufficient detail necessary to obtain a building permit
from the City.
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(h) During the preparation of all drawings and plans
in connection with the development of the New Homes and the
public improvements necessary for the development of the Site,
the Developer shall provide to the Agency regular progress
reports to advise the Agency of the status of the preparation by
the Developer, and the submission to and review by the City of
construction plans and related documents. The Developer shall
communicate and consult with the Agency as frequently as is
necessary to ensure that any such plans and related documents
submitted by the Developer to the City are being processed in a
timely fashion.
(i) The Agency shall have the right to review all
plans, drawings and related documents pertinent to the
development of the Site in order to ensure that they are
consistent with this Agreement and with the Scope of Development
set forth in Exhibit "8".
(j) The Developer shall timely submit to the City for
its review and approval any and all plans, drawings and related
documents pertinent to the development of the Site, as required
by the City. The Agency shall cooperate with and shall assist
the Developer in order for the Developer to obtain the approval
of any and all development plans, construction drawings and
related documents submitted by the Developer to the City
consistent with this Agreement wi thin thirty (30) calendar days
following the City's receipt of said plans. Any failure by the
City to approve any of such plans or to issue necessary permits
for the development of the Site within said thirty (30) calendar
day period shall constitute an enforced delay hereunder, and the
Schedule of Performance shall be extended by that period of time
beyond said thirty (30) calendar day period in which the City
approves said plans; provided, however, that in the event that
the City disapproves of any of such plans, the Developer shall
wi thin thirty (30) calendar days after receipt of such
disapproval revise and resubmit such plans in accordance with
the City's requirements and in such form and substance so as to
obtain the City's approval thereof.
(k) The Agency shall in good faith use its best
efforts to cause the City to approve in a timely fashion any and
all plans, drawings and documents submitted by the Developer
hereunder and to cause the City not to impose new conditions
inconsistent with: (a) prior plans, drawings and documents
approved by the City or (b) the Scope of Development.
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(1) The Agency shall approve any modified or revised
plans, drawings and related documents to which reference is made
in this Agreement as long as such modified or revised plans,
drawings and related documents are generally consistent with the
Scope of Development and any other plans which have been
approved by the Agency. Upon any disapproval of such modified
or revised plans, drawings or related documents, the Agency
shall state in writing the reasons for such disapproval. The
Developer, upon receipt of notice of any disapproval, shall
promptly revise such disapproved portions of the plans, drawings
or related documents in a manner that addresses the reasons for
disapproval and reasonably meets the requirements of the Agency
in order to obtain the Agency's approval thereof. The Developer
shall resubmit such revised plans, drawings and related
documents to the Agency as soon as possible after its receipt of
the notice of disapproval and, in any event, no later than
thirty (30) calendar days thereafter. The Agency shall approve
or disapprove such revised plans, drawings and related documents
in the same manner and within the same times as provided in this
Section for approval or disapproval of plans, drawings and
related documents initially submitted to the Agency, and if no
specific time for approval if specified then the Agency shall so
approve or disapprove the proposed modifications or revisions
promptly upon the written request of the Developer.
(m) If the Developer desires to make any material
change in the final construction drawings, plans and
specifications and related documents after their approval by the
Agency and/or the City, the Developer shall submit the proposed
change in writing to the Agency and/or the City for approval.
The Agency shall notify the Developer of approval or disapproval
thereof in writing within thirty (30) calendar days after
submission to the Agency. This thirty (30) calendar day period
may be extended by mutual consent of the Developer and the
Agency. Any such change shall, in any event, be deemed to be
approved by the Agency unless rejected, in whole or in part, by
written notice thereof submitted by the Agency to the Developer,
setting forth in detail the reasons therefor, and such rejection
shall be made within said thirty (30) calendar day period unless
extended as permitted herein. The Agency shall use its best
efforts to cause the City to review and approve or disapprove
any such change as provided in Section 3.01(b) hereof.
(n)
disapproval
portions of
The Developer, upon receipt of a notice of
by the Agency and/or the City, may revise such
the proposed change in construction drawings, plans
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and specifications and related documents as
shall thereafter resubmit such revisions to
the City for approval in the manner provided
hereof.
are rej ected and
the Agency and/ or
in Section 3.01(b)
(0) The Developer shall have the right during the
course of construction to make changes in construction
concerning the interior design of the New Homes and "minor field
changes" with respect to the New Homes, and to make "minor field
changes" to the public improvements necessary for the
development of the Site without seeking the approval of the
Agency; provided, however, that such changes do not affect the
type of use to be conducted within all or any portion of a New
Home or the ability of the City to accept the completion of the
public improvements necessary for the development of the Site;
and further provided that the City has approved any such minor
field change to either a New Home or the public improvements
necessary for the development of the Site in accordance with the
standards and practices of the City Building Department and/or
City Public Works Department, as applicable. Said "minor field
changes" shall be defined as those changes from the approved
final construction drawings, plans and specifications which have
no substantial effect on the improvements and are made in order
to expedite the work of construction in response to field
condi tions. Nothing contained in this Section shall be deemed
to constitute a waiver of or change in the City's Building Code
or Public Works Department requirements governing such "minor
field changes" or in any and all approvals by the City otherwise
required for such "minor field changes."
(p) Except as otherwise specified in this Agreement,
the cost of constructing the New Homes and all other
improvements on the Site shall be paid for by the Developer.
(q) The Developer shall at its expense cause to be
prepared, and shall pay any and all fees pertaining to the
review and approval thereof by the City, all required
construction, planning and other documents reasonably required
by governmental bodies pertinent to the development of the Site
hereunder including, but not limited to the public improvements
necessary for the development of the Site and to the
specifications, drawings, plans, maps, permit applications, land
use applications, zoning applications and design review
documents for the New Homes.
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(r) The Developer shall pay for any and all costs,
including but not limited to the costs of design, construction,
relocation and securing of permits for utility improvements and
connections, which may be required in developing the Site. The
Developer shall obtain any and all necessary approvals prior to
the commencement of applicable portions of said construction,
and the Developer shall take reasonable precautions to ensure
the safety and stability of surrounding properties during said
construction.
(s) The Developer shall begin and complete all
construction and development and undertake all obligations and
responsibilities of the Developer within the times specified in
the Schedule of Performance shown in Exhibit "0", or within such
reasonable extensions of such times as may be granted by the
Agency or as otherwise provided for in this Agreement. The
Schedule of Performance shall be subj ect to revision from time
to time as mutually agreed upon in writing by and between the
Developer and the Agency. Any and all deadlines for performance
by the parties shall be extended for any times attributable to
delays which are not the fault of the performing party and are
caused by the other party, other than periods for review and
approval or reasonable disapprovals of plans, drawings and
related documents, specifications or applications for permits as
provided in this Agreement.
(t) Prior to and during the period of construction of
the New Homes and the public improvements necessary for the
development of the Site, the Developer shall submit to the
Agency written progress reports when and as reasonably requested
by the Agency, but in no event more frequently than every twelve
(12) weeks. The reports shall be in such form and detail as may
reasonably be required by the Agency. In addition, the
Developer will attend Agency meetings when requested to do so by
Agency Staff.
(u) Prior to the commencement of any construction on
the Site, the Developer shall furnish, or shall cause to be
furnished, to the Agency duplicate originals or appropriate
certificates of public indemnity and liability insurance in the
amount of One Million Dollars ($1,000,000) combined single
limi t, naming the Agency and the City as additional insureds.
Said insurance shall cover comprehensive general liability
including, but not limited to, contractual liability; acts of
subcontractors; premises-operations; explosion, collapse and
underground hazards, if applicable; broad form property damage,
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and personal inj ury including libel, slander and false arrest.
In addition, the Developer shall provide to the Agency adequate
proof of comprehensive automobile liability insurance covering
owned, non-owned and hired vehicles, combined single limit in
the amount of One Million Dollars ($1,000,000) each occurrence;
and proof of workers' compensation insurance. Any and all
insurance policies required hereunder shall be obtained from
insurance companies admitted in the State of California and
rated at least B+: XII in Best's Insurance Guide. All said
insurance policies shall provide that they may not be canceled
unless the Agency and the City receive written notice of
cancellation at least thirty (30) calendar days prior to the
effecti ve date of cancellation. Any and all insurance obtained
by the Developer hereunder shall be primary to any and all
insurance which the Agency and/or City may otherwise carry,
including self insurance, which for all purposes of this
Agreement shall be separate and apart from the requirements of
this Agreement. Any insurance policies governing the Site as
obtained by the Agency shall not be transferred from the Agency
to the Developer. Appropriate insurance means those insurance
policies approved by the Agency Counsel consistent with the
foregoing. Any and all insurance required hereunder shall be
maintained and kept in force until the Agency has issued the
Certificate of Completion for the last to be completed New Home.
(v) The Developer for itself and its successors and
assigns agrees that in the construction of the New Homes and the
public improvements necessary for the development of the Site,
the Developer will not discriminate against any employee or
applicant for employment because of sex, marital status, race,
color, religion, creed, national origin, or ancestry.
Notwithstanding the foregoing, the Developer will use best
efforts to offer employment opportunities to local residents and
will seek to acquire goods and services from local vendors.
(w) The Developer shall carry out its construction of
the improvements of the New Homes and the public improvements
necessary for the development of the Site in conformity with all
applicable laws, including all applicable State labor standards
and requirements and with respect to the development of the
Site.
(x) The Developer shall, at its own expense, secure
or shall cause to be secured, any and all permits which may be
required for such construction, development or work by the City
or any other governmental agency having jurisdiction thereof.
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The Agency shall cooperate in good faith with the Developer in
the Developer's efforts to obtain from the City or any other
appropriate governmental agency any and all such permits
including, but not limited to, permits for flags and signs on
the Site and, upon completion of applicable portions of the
development of the Site, certificates of occupancy.
(y) Officers, employees, agents or representatives of
the Agency and the City shall have the right of reasonable
access to the Site, without the payment of charges or fees,
during normal construction hours during the period of
construction for the purposes of this Agreement including, but
not limited to, the inspection of the work being performed in
constructing the residences on the Site. Such officers,
employees, agents or representatives of the Agency and/or the
City shall be those persons who are so identified by the
Executive Director. Any and all officers, employees, agents or
representatives of the Agency and the City who enter the Site
pursuant hereto shall identify themselves at the job site office
upon their entrance on to the Site and shall at all times be
accompanied by a representative of the Developer while on the
Site; provided, however, that the Developer shall make a
representati ve of the Developer available for this purpose at
all times during normal construction hours upon reasonable
notice from the Agency. The Agency shall indemnify, defend and
hold the Developer harmless from injury, property damage or
liability arising out of the exercise by the Agency and/or the
City of this right of access, other than injury, property damage
or liability relating to the negligence of the Developer or its
officers, agents or employees.
(z) The Agency shall inspect relevant portions of the
construction Site prior to issuing any written statements
reflecting adversely on the Developer's compliance with the
terms and conditions of this Agreement pertaining to development
of the Site; provided however, that the Developer has not
objected to such an inspection by the Agency or otherwise
prevented the Agency from conducting such an inspection.
Section 3.02. Developer's Completion of Public
Improvements; Bifurcation Date. The Agency and the Developer
acknowledge and agree that its their intention that Century
acquire the Century Lots and that Olive Crest acquire the Olive
Crest Lots and that Century and Olive Crest be responsible for
the development of the New Homes upon each of their respective
Lots. Century and Olive Crest further acknowledge and agree,
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however, that they intend to jointly construct and install those
public improvements and utilities required by the subdivision
improvement agreement described in Section 2.16 (9), which are
hereinafter referred to collectively as the "Public
Improvements." Upon completion of the Public Improvements other
than for the installation of the final asphaltic concrete "cap"
upon the streets within the Site and such other "punch-list"
items as are routinely and customarily completed following the
build out and sale of substantially all of a development
proj ect, the Developer shall be entitled to receive a Public
Improvements Certificate of Completion as described in Section
3.07(a). The date on which the Developer has become entitled to
a Public Improvements Certificate of Completion pursuant to
Section 3.07 (a) is referred to herein as the "Bifurcation Date."
Section 3.03. Property Taxes and Assessments. The
Developer shall pay prior to the delinquency all real property
taxes and assessments assessed and levied on or against the Site
subsequent to the Close of Escrow. Nothing herein contained
shall be deemed to prohibit the Developer from contesting the
validity or amounts of any tax assessment, encumbrance or lien,
nor to limit the remedies available to the Developer in respect
thereto.
Section 3.04.
Prohibition Against Transfer.
(a) Prior to the recordation of any Certificate of
Completion with respect to development of the Site as set forth
in Section 3.07 of this Agreement, the Developer shall not,
without prior written approval of the Agency, which may not be
unreasonably withheld, delayed or conditioned, or except as
permitted by this Agreement, (i) assign or attempt to assign
this Agreement or any right herein or (ii) make any total or
partial sale, transfer, conveyance, lease, leaseback, or
assignment of the whole or any part of the Site or the
improvements thereon or permit to be placed on any of the Site
Lots any unauthorized mortgage, trust deed, deed of trust,
encumbrance or lien.
This prohibition shall not apply to any of the
following: (1) the reasonable grant by the Developer of utility
easements or permits to facilitate the development of the Site;
(2) the assignment of all of the Developer's interest in this
Agreement to the Site to a limited liability company of which
the Developer is the managing member (and the assumption of such
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interest by such limited liability company); and(3) sales by the
Developer of individual New Homes.
Following the Bifurcation Date, Century shall be
relieved from any cost, expense, liability or obligation under
this Agreement with respect to the Century Lots to the extent
that such cost, expense, liability or obligation accrues after
the Bifurcation Date. From and after the Bifurcation Date, Olive
Crest shall be solely responsible for compliance with the
development and other obligations under this Agreement
associated with the Olive Crest Lots and Agency agrees to look
solely and exclusively to Olive Crest for such performance and
compliance. Following the Bifurcation Date, Olive Crest shall
be relieved from any cost, expense, liability or obligation
under this Agreement with respect to the Olive Crest Lots to the
extent that such cost, expense, liability or obligation accrues
after the Bifurcation Date. From and after the Bifurcation
Date, Century shall be solely responsible for compliance with
the development and other obligations under this Agreement
associated with the Century Lots and the Agency agrees to look
solely and exclusively to Century for such performance and
compliance. A breach by Olive Crest under this Agreement with
respect to the Olive Crest Lots shall not be deemed a breach by
Century with respect to the Century Lots, nor shall Century's
breach of this Agreement with respect to the Century Lots be
deemed a breach by Olive Crest with respect to the Olive Crest
Lots.
Following the Bifurcation Date, the Agency's remedies
under this Agreement, including, without implied limitation, the
remedy under Section 5.07, for a breach of this Agreement by
ei ther Olive Crest or the Developer shall be limited to those
Site Lots owned by the defaulting party. From and after the
Bifurcation Date, and with respect to the Olive Crest Lots,
wherever the term "Developer" appears in this Agreement, it
shall be read and understood to refer solely to Olive Crest.
From and after the Bifurcation Date, and with respect to the
Century Lots, wherever the term "Developer" appears in this
Agreement, it shall be read and understood to refer solely to
Century. Without limiting the generality of the foregoing,
Century shall be entitled to Certificates of Completion with
respect to the Century Lots upon satisfaction of the conditions
described in Section 3.07 (b) with respect to such Site Lots and
wi thout regard as to whether Olive Crest has complied with its
obligations hereunder with respect to the Olive Crest Lots, and
Olive Crest shall be entitled to Certificates of Completion with
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respect to the Olive Crest Lots following satisfaction of all
conditions with respect thereto under Section 3.07(b) as to the
Olive Crest Lots without regard as to whether Century has
complied with its obligations hereunder with respect to the
Century.
(c) In the absence of specific written agreement or
approval by the Agency, no unauthorized sale, transfer,
conveyance, lease, leaseback or assignment of the Site shall be
deemed to relieve the Developer or any other party from any
obligations under this Agreement.
(d) Developer is expressly prohibited from leasing or
renting any of the Site Lots, or any structure thereon, pending
final sale to a New Home Buyer.
Section 3.05.
Security Financing; Right of Holders.
(a) Notwithstanding any provision of Section 3.04 to
the contrary, mortgages, deeds of trust, or any other form of
lien required for any reasonable method of financing the
construction and improvement of the Site are permitted before
the recordation of any Certificate of Completion (referred to in
Section 3.07 of this Agreement). The Developer shall notify the
Agency in writing in advance of any mortgage, deed of trust, or
other form of lien for financing if the Developer proposes to
enter into the same before the recordation of any Certificate of
Completion. The Developer shall not enter into any such
conveyance for construction financing without the prior written
approval of the Agency, which approval the Agency shall grant
if: (i) any such conveyance is given to a responsible financial
or lending institution including, without limitation, banks,
savings and loan institutions, insurance companies, real estate
investment trusts, pension programs and the like, or other
acceptable persons or entities for the purpose of financing the
construction of the New Homes on the Site, and (ii) such loan
contains customary construction lender disbursement controls.
(b) The Developer shall promptly notify the Agency of
any mortgage, deed of trust or other refinancing, encumbrance or
lien that has been created or attached thereto prior to
completion of the construction of the improvements on the Site
whether by voluntary act of the Developer or otherwise;
provided, however, that no notice of filing of preliminary
notices or mechanic I s liens need be given by the Developer to
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the Agency prior to suit being filed to
mechanic's lien.
foreclose such
(c) The words "mortgage" and "deed of trust" as used
herein shall be deemed to include all other customary and
appropriate modes of financing real estate construction and land
development. The Agency agrees to make such amendments
regarding the rights of any lender as the approved lender shall
reasonably require.
(d) The holder of any mortgage, deed of trust or
other security interest authorized by this Agreement shall in no
manner be obligated by the provisions of this Agreement to
construct or complete the improvement of the Site or to
guarantee such construction or completion; provided however,
that each surety under the completion and payment surety bonds
deli vered by the Developer to the City of San Bernardino under
the terms of the subdivision improvement agreement shall not, by
the virtue of any term of this Agreement, be deemed to be
discharged from its obligation to the City as arises under such
surety and the subdivision improvement agreement. Nothing in
this Agreement shall be deemed to permit or authorize any such
holder to devote the Site to any other use, or to construct any
other improvement thereon, except those uses or improvements
provided for or authorized by this Agreement.
(e) Whenever the Agency shall deliver any notice or
demand to the Developer with respect to any breach or default by
the Developer in the completion of construction of the New Homes
or the Site Pubic Improvements, or any breach or default of any
other obligations which, if not cured by the Developer, entitle
the Agency to terminate this Agreement or exercise its right to
re-enter the Site, or a portion thereof under Section 5.07, the
Agency shall at the same time deliver to each holder of record
of any mortgage, deed of trust or other security interest
authorized by this Agreement a copy of such notice or demand.
Each such holder shall (insofar as the rights of the Agency are
concerned) have the right, at its option, to commence the cure
or remedy of any such default and to diligently and continuously
proceed with such cure or remedy, wi thin sixty (60) calendar
days after the receipt of the notice; and to add the cost
thereof to the security interest debt and the lien of its
securi ty interest. If such default shall be a default which can
only be remedied or cured by such holder upon obtaining
possession, such holder shall seek to obtain possession with
diligence and continuity through a receiver or otherwise, and
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shall remedy or cure such default wi thin sixty (60) calendar
days after obtaining possession; provided that in the case of a
default which cannot with diligence be remedied or cured, or the
remedy or cure of which cannot be commenced, wi thin such sixty
(60) calendar day period, such holder shall have such additional
time as is reasonably necessary to remedy or cure such default
of the Developer. Nothing contained in this Agreement shall be
deemed to permit or authorize such holder to undertake or
continue the construction or completion of the improvements
(beyond the extent necessary to conserve or protect the
improvements or construction already made) without first having
expressly assumed the Developer's obligations by written
agreement satisfactory to the Agency. The holder in that event
must agree to complete, in the manner provided in this
Agreement, the improvements to which the lien or title of such
holder relates and must submit evidence satisfactory to the
Agency that it has the qualifications and financial
responsibility necessary to perform such obligations. Any such
holder completing such improvements in accordance herewith shall
be entitled, upon written request made to the Agency, to be
issued appropriate Certificates of Completion by the Agency.
(f) In any case where, one hundred eighty (180)
calendar days after default by the Developer under the terms of
a security interest authorized by this Agreement, the holder of
any such mortgage, deed of trust or other security interest
creating a lien or encumbrance upon the Site or any portion
thereof has not exercised the option to construct the applicable
portions of the Site, or has exercised the option but has not
proceeded diligently and continuously with the completion of the
improvements to the Site, then in such event, the Agency may
purchase the mortgage, deed of trust or other security interest
by payment to the holder of the amount of the unpaid debt,
including principal, accrued and unpaid interest, late charges,
costs, expenses and other amounts payable to the holder by the
Developer under the loan documents between holder and the
Developer. If the ownership of the Site has vested in the
holder, the Agency, if it so desires, shall be entitled to a
conveyance from the holder to the Agency upon payment to the
holder of an amount equal to the sum of the following:
1. The unpaid mortgage, deed of trust or other
securi ty interest debt, including principal,
accrued and unpaid interest, late charges, costs,
expenses and other amounts payable to the holder
by the Developer under the loan documents between
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the holder and the Developer, at the time title
became vested in the holder (less all appropriate
credits, including those resulting from
collection and application of rentals and other
income received during foreclosure proceedings.)
2. All expenses, if any, incurred by the holder with
respect to foreclosure.
3. The net expenses, if any (exclusive of general
overhead), incurred by the holder as a direct
result of the subsequent ownership or management
of the Site, such as insurance premiums and real
estate taxes.
4. The cost of any improvements made by such holder.
5. An amount equivalent to the interest that would
have accrued on the aggregate on such amounts had
all such amounts become part of the mortgage or
deed of trust debt and such debt had continued in
existence to the date of payment by the Agency.
6. After expiration of the aforesaid one hundred
eighty (180) calendar day period, the holder of
any mortgage, deed of trust or other security
affected by the option created by this Section,
may demand, in writing, that the Agency act
pursuant to the option granted hereby. If the
Agency fails to exercise the right herein granted
wi thin sixty (60) calendar days from the date of
such written demand, the Agency shall be
conclusively deemed to have waived such right of
purchase of the applicable portion of the Site or
the mortgage, deed of trust or other security
interest.
(g) In the event of a default or breach by the
Developer of a mortgage, deed of trust or other security
interest with respect to the Site (or any portion thereof) prior
to the issuance of a Certificate of Completion for the Site (or
any portion thereof), and the holder has not exercised its
option to complete the development, the Agency may cure the
default but is under no obligation to do so prior to completion
of any foreclosure. In such event, the Agency shall be entitled
to reimbursement from the Developer of all costs and expenses
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incurred by the Agency in curing the default. The Agency shall
also be deemed to have a lien of the Agency as may arise under
this Section 3.05(g) upon the Site (or any portion thereof) to
the extent of such costs and disbursements. Any such lien shall
be subordinate and subject to mortgages, deeds of trust or other
securi ty instruments executed by the Developer for the purpose
of obtaining the funds to construct and improve the Site as
authorized herein.
Section 3.06. Right of the Agency to Satisfy Other
Liens on the Site after Conveyance of Title. After the
conveyance of title to the Site by the Agency to the Developer
and prior to the recordation of any Certificate of Completion
(referred to in Section 3.07 of this Agreement), and after the
Developer has had a reasonable time to challenge, cure or
satisfy any unauthorized liens or encumbrances on the Site, the
Agency shall after sixty (60) calendar days prior written notice
to the Developer have the right to satisfy any such liens or
encumbrances; provided, however, that nothing in this Agreement
shall require the Developer to payor make provisions for the
payment of any tax, assessment, lien or charge so long as the
Developer in good faith shall contest the validity or amount
thereof, and so long as such delay in payment shall not subject
the Site or any portion thereof, to forfeiture or sale.
Section 3.07. Certificates of Completion.
(a) Public Improvements Certificate of Completion.
Following the written request therefor by the Developer and the
completion of all rough grading work and of construction and
installation of the Public Improvements (as defined in Section
3.02) upon the Site, the Agency shall furnish the Developer with
a Public Improvements Certificate of Completion, substantially
in the form set forth in Exhibit "E" attached hereto. The Agency
shall not unreasonably withhold the issuance of a Public
Improvements Certificate of Completion. The Public Improvements
Certificate of Completion shall be, and shall so state, that it
is a conclusive determination of satisfactory completion of all
of the rough grading work and construction and installation of
the Public Improvements.
(b) New Home Certificate of Completion. Following
the written request therefor by the Developer and the completion
of construction of each New Home, excluding minor building
"punch-list" items to be completed by the Developer upon such
New Home, the Agency shall furnish the Developer with a
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Certificate of Completion for such New Home, substantially in
the form set forth in Exhibit "F" attached hereto, and such
Certificate of Completion shall be recorded at the time of close
of the New Home Escrow for such New Home if requested by the
Developer. Notwi thstanding any provision set forth herein to
the contrary, the completion of construction of the New Home
improvements on a Site Lot shall include the completion of
construction of a residence on said Site Lot and any and all on-
site parking, front yard and landscaping and related
improvements necessary to support or which meet the requirements
applicable to occupancy of the New Home.
(c) The Agency shall not unreasonably withhold the
issuance of any certificate of completion. A certificate of
completion shall be, and shall so state, that it is a conclusive
determination of satisfactory completion of all of the
obligations of this Agreement with respect to the Public
Improvements or improvement of the New Home to which it
corresponds, as applicable. After the recordation of the
certificate of completion, any party then owning or thereafter
purchasing, leasing or otherwise acquiring any interest in the
Site and/or New Home shall not (because of such ownership,
purchase, lease or acquisition) incur any obligation or
liability under this Agreement, except that such party shall be
bound by any covenants contained in the grant deed or other
instrument of transfer which grant deed or other instrument of
transfer shall include the provisions of Section 4.01 through
4.05, inclusive, of this Agreement. Neither the Agency nor any
other person, after the recordation of a certificate of
completion for a New Home, shall have any rights, remedies or
controls that it would otherwise have or be entitled to exercise
under this Agreement with respect to such New Home, as a result
of a default in or breach of any provision of this Agreement,
and the respective rights and obligations of the parties shall
be limited to those set forth in the grant deed.
(d) Any certificate of completion shall be in such
form as to permit it to be recorded in the Recorder's Office of
San Bernardino County.
(e) If the Agency refuses or fails to furnish any
certificate of completion after written request from the
Developer, the Agency shall, within fifteen (15) calendar days
of the written request or wi thin three (3) calendar days after
the next regular meeting of the Agency, whichever date occurs
later, provide to the Developer a written statement setting
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forth the reasons with respect to the Agency's refusal or
failure to furnish a certificate of completion. The statement
shall also contain the Agency's opinion of the action the
Developer must take to obtain a certificate of completion. If
the reason for such refusal is confined to the immediate
unavailabili ty of specific items or materials for construction
or landscaping at a price reasonably acceptable to the Developer
or other minor building "punch-list" items, the Agency may issue
its certificate of completion upon the posting of a bond or
irrevocable letter of credit, reasonably approved as to form and
substance by the Agency Counsel and obtained by the Developer in
an amount representing a fair value of the work not yet
completed as reasonably determined by the Agency. If the Agency
shall have failed to provide such written statement within the
foregoing period, the Developer shall be deemed conclusively and
without further action of the Agency to have satisfied the
requirements of this Agreement with respect to the Site Lot as
if a certificate of completion had been issued therefor.
(f) A certificate of completion shall not constitute
evidence of compliance with or satisfaction of any obligation of
the Developer to any holder of a mortgage, or any insurer of a
mortgage securing money loaned to finance the improvements
described herein, or any part thereof. A certificate of
completion shall not be deemed to constitute a notice of
completion as referred to in Section 3093 of the California
Civil Code, nor shall it act to terminate the continuing
covenants or conditions subsequent contained in the Agency Grant
Deed.
Section 3.08. Agency Mortgage Assistance Program. The
Agency will make available affordable housing development and
preservation funds of the Agency to provide purchase money
mortgage financing assistance to qualified New Home buyers of
the completed New Homes, under an Agency affordable housing
program known as the Mortgage Assistance Program ("MAP"). In
consideration of the covenant of the Developer to improve the
Site as set forth in the Scope of Development, the Agency hereby
agrees to make a sum not less than One Hundred Thousand Dollars
($100,000) available to qualified New Home buyers as subordinate
or secondary purchase money mortgage financing in connection
with their purchase of a New Home from the Developer, in
accordance with the terms of the Agency's MAP as then in effect
and the following conditions:
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(i) no MAP loan to a qualified New Home buyer shall
exceed ten percent (10%) of the gross purchase price for the New
Home;
(ii) no MAP loan for the Site shall be originated
after June 30, 2004;
(iii) each MAP loan to a qualified
shall comply with the affordable housing
underwriting standards of the Agency as may then
the time of the Agency's receipt of a completed
a MAP loan from a qualified New Home buyer.
New Home buyer
mortgage loan
be in effect at
application for
ARTICLE IV
USE OF THE SITE
Section 4.01. Uses.
(a) The Developer covenants and agrees for itself,
its successors and assigns that the Site shall be improved,
developed and used in accordance with the Scope of Development.
Developer covenants to develop and use the Site in conformity
with all applicable laws.
The covenants of this Section 4.01 (a) shall run with
the land.
(b) It is understood and agreed by the Developer that
until such time as a Certificate of Completion is recorded for a
New Home, that neither the Developer, nor its assigns or
successors shall use or otherwise sell, transfer, convey,
assign, lease, leaseback or hypothecate any Site Lot or any
portion thereof to any entity or party, or for any, that is
partially or wholly exempt from the payment of real property
taxes pertinent to such Site Lot, or any portion thereof, or
which would cause the exemption of the payment of all or any
portion of such real property taxes.
renting
thereon,
(c) Developer is
any of the Site
pending final sale
expressly prohibited from leasing or
Lots, or any New Home constructed
to a New Home Buyer.
Section 4.02. Maintenance of the Site. The Developer
covenants and agrees for itself, its successors, and assigns to
maintain the Site in a good condition free from any accumulation
of debris or waste material, subject to normal construction job-
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site conditions, and shall maintain in a neat, orderly, healthy
and good condition the landscaping at the Site required to be
planted in accordance with the Scope of Development. In the
event the Developer, or its successors or assigns, fails to
perform the maintenance as required herein, the Agency shall
have the right, but not the obligation, to enter the Site and
undertake, such maintenance activities. In such event, the
Developer shall reimburse the Agency for all reasonable sums
incurred by it for such maintenance acti vi ties. The obligation
of the Developer under this Section 4.02 with respect to the
Site Lots shall be discharged for each Site Lot at such time as
a Certificate of Completion for the New Home is recorded.
Section 4.03. Obligation to Refrain from
Discrimination. The Developer covenants and agrees for itself,
its successors, its assigns and every successor in interest to
the Site or any part thereof, that there shall be no
discrimination against or segregation of any person, or group of
persons, on account of sex, marital status, race, color,
religion, creed, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the
Si te; nor shall the Developer, itself or any person claiming
under or through it, establish or permit any such practice or
practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants,
lessees, subtenants, sublessee or vendees of the Site.
Section 4.04. Form of Nondiscrimination and
Nonsegregation Clauses. The Developer covenants and agrees for
itself, its successors, its assigns, and every successor in
interest to the Site , or any part thereof, that the Developer,
such successors and such assigns shall refrain from restricting
the sale, lease, sublease, rental, transfer, use, occupancy,
tenure or enjoyment of the Site (or any part thereof) on the
basis of sex, marital status, race, color, religion, creed,
ancestry or national origin of any person. All deeds, leases or
contracts pertaining thereto shall contain or be subject to
substantially the following nondiscrimination or nonsegregation
clauses:
(a) In deeds: "The grantee herein covenants by and
for itself, its successors and assigns, and all persons claiming
under or through them, that there shall be no discrimination
against or segregation of, any person or group of persons on
account of race, color, creed, religion, sex, marital status,
national origin, or ancestry in the sale, lease, sublease,
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transfer, use, occupancy, tenure, or enj oyment of the premises
herein conveyed, nor shall the grantee or any person claiming
under or through it, establish or permit any such practice or
practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants,
lessees, subtenants, sublessee, or vendees in the premises
herein conveyed. The foregoing covenants shall run with the
land."
(b) In leases: "The Lessee herein covenants by and
for itself, its successors and assigns, and all persons claiming
under or through them, and this lease is made and accepted upon
and subject to the following conditions: That there shall be no
discrimination against or segregation of any person or group of
persons, on account of race, color, creed, religion, sex,
marital status, national origin, or ancestry, in the leasing,
subleasing, transferring, use, occupancy, tenure, or enj oyment
of the premises herein leased nor shall the lessee itself, or
any person claiming under or through it, establish or permit any
such practice or practices of discrimination or segregation with
reference to the selection, location, number, use, or occupancy,
of tenants lessees, sublessee, subtenants, or vendees in the
premises herein leased."
(c) In contracts: "There shall be no discrimination
against or segregation of any person or group of persons on
account of race, color, creed, religion, sex, marital status,
national origin, or ancestry, in the sale, lease, sublease,
transfer, use, occupancy, tenure, or enj oyment of the premises
herein conveyed or leased, nor shall the transferee or any
person claiming under or through it, establish or permit any
such practice or practices of discrimination or segregation with
reference to the selection, location, number, use, or occupancy,
of tenants, lessees, sublessees, subtenants, or vendees of the
premises herein transferred." The foregoing provision shall be
binding upon and shall obligate the contracting party or parties
and any subcontracting party or parties, or other transferees
under the instrument.
covenants
effect in
Section 4.05.
established
perpetuity.
Effect and Duration of Covenants. The
against discrimination shall remain in
The
provisions of
the land for
Agency is deemed the beneficiary of the terms and
this Agreement and of the covenants running with
and in its own rights and for the purposes of
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protecting the interests of the community. The Agency shall
have the right, if such covenants are breached, to exercise all
rights and remedies and to maintain any actions or suits at law
or in equity or such other proper proceedings to enforce the
curing of such breaches to which it or any other beneficiary of
such covenants may be entitled, including, without limitation,
to specific performance, damages and inj uncti ve relief. The
Agency shall have the right to assign all of its rights and
benefits hereunder to the City.
ARTICLE V
DEFAULTS, REMEDIES AND TERMINATION
Section 5.01.
Defaults - General.
(a) Subject to the extensions of time set forth in
Section 6.05 hereof, failure or delay by either party to perform
any term or provision of this Agreement shall constitute a
default under this Agreement; provided, however, that if a party
otherwise in default commences to cure, correct or remedy such
default within thirty (30) calendar days after receipt of
written notice specifying such default and shall diligently and
continuously prosecute such cure, correction or remedy to
completion (and where any time limits for the completion of such
cure, correction or remedy are specifically set forth in this
Agreement, then wi thin said time limits), such party shall not
be deemed to be in default hereunder.
(b) The injured party shall give written notice of
defaul t to the party in default, specifying the default
complained of by the non-defaulting party. Delay in giving such
notice shall not constitute a waiver of any default nor shall it
change the time of default.
(c) Any failure or delays by either party in
asserting any of its rights and remedies as to any default shall
not operate as a waiver of any default or of any such rights or
remedies. Delays by either party in asserting any of its rights
and remedies shall not deprive either party of its right to
insti tute and maintain any actions or proceedings which it may
deem necessary to protect, assert or enforce any such rights or
remedies.
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Section 5.02. Legal Actions.
(a) In addition to any other rights or remedies,
either party may institute legal action to cure, correct or
remedy any default, to recover damages for any default, or to
obtain any other remedy consistent with the purposes of this
Agreement. Such legal actions must be instituted in the
Superior Court of the County of San Bernardino, State of
California, in any other appropriate court in that County, or in
the Federal District Court in the Central District of
California.
(b) The laws of the State of California shall govern
the interpretation and enforcement of this Agreement.
(c) In the event that any legal action is commenced
by the Developer against the Agency, service of process on the
Agency shall be made by personal service upon the Executive
Director or Chairman of the Agency, or in such other manner as
may be provided by law.
(d) In the event that any legal action is commenced
by the Agency against the Developer, service of process on the
Developer shall be made by personal service on John pavelak and
Felix Robles, Jr. (or such other Agent for service of process
and at such address as may be specified in written notice to the
Agency), or in such other manner as may be provided by law, and
shall be valid whether made within or without the State of
California.
Section 5.03. Rights and Remedies are Cumulative.
Except with respect to any rights and remedies expressly
declared to be exclusive in this Agreement, the rights and
remedies of the parties are cumulative and the exercise by
either party of one or more of such rights or remedies shall not
preclude the exercise by it, at the same or different times, of
any other rights or remedies for the same default or any other
default by the other party.
Section 5.04. Damages. If any party defaults with
regard to any provision of this Agreement following the Close of
Escrow, the non-defaulting party(ies) shall serve written notice
of such default upon the defaulting party(ies). If the
defaulting party (ies) does/do not diligently commence to cure
such default wi thin thirty (30) calendar days after service of
the notice of default and promptly complete the cure of such
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default within a reasonable time, not to exceed ninety (90)
calendar days (or such shorter period as may otherwise be
specified in this Agreement for any specific default), after the
service of written notice of such default, the defaulting
party (ies) shall be liable to the other party (ies) for damages
caused by such default.
Section 5.05. Specific Performance. If any party
defaults under any of the provisions of this Agreement following
the Close of Escrow, the non-defaulting party (ies) shall serve
written notice of such default upon such defaulting party(ies).
If the defaulting party(ies) does/do not commence to cure the
defaul t and diligently and continuously proceed with such cure
within thirty (30) calendar days after service of the notice of
default, and such default is not cured within a reasonable time
thereafter (and where any time limits for the completion of such
cure, correction or remedy are specifically set forth in this
Agreement, then within said time limits), the non-defaulting
party(ies), at its/their option, may institute an action for
specific performance of the terms of this Agreement, except as
otherwise provided in this Agreement.
Section 5.06. Agency Rights of Termination Following
Close of Escrow.
(a) Subject to written notice of default which shall
specify the Developer's default and the action required to
commence cure of same and upon thirty (30) calendar days notice
to the Developer of the Agency's intent to terminate this
Agreement pursuant to this Section, the Agency at its option may
terminate this Agreement following the Close of Escrow, if the
Developer in breach of this Agreement assigns or attempts to
assign this Agreement, or any right therein, or attempts to make
any total or partial sale, lease or leaseback, transfer or
conveyance of the whole or any part of the Site or the
improvements to be developed thereon in violation of the terms
of this Agreement, and the Developer does not correct such
violation within thirty (30) calendar days from the date of
receipt of such notice.
(b) Subject to written notice of default, which shall
specify the Developer's default and the action required to
commence cure of same and upon thirty (30) calendar days notice
to the Developer of the Agency's intent to terminate this
Agreement pursuant to this Section, following the Close of
Escrow, the Agency at its option may terminate this Agreement if
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the Developer: (a) does not within the time limits set forth in
this Agreement or as specifically provided in the Schedule of
Performance, subj ect to extensions authorized by this Agreement
due to force majeure or otherwise, submit development plans,
construction drawings and related documents acceptable to the
Planning Department and Building Division of the City for plan
check purposes and in order to obtain building permits for the
improvement of the Site, together with applicable fees therefor,
all prepared to the minimum acceptable standards as required by
the Planning Department and Building Division of the City for
commencement of formal review of such documents and as required
by this Agreement, or (b) does not carry out its other
responsibilities under this Agreement or in accordance with any
modification or variance, precise plan, design review and other
environmental or governmental approvals and such default is not
cured or the Developer does not commence and diligently and
continuously proceed with such cure within thirty (30) calendar
days after the date of receipt of written demand therefor from
the Agency.
Section 5.07.
Right to Reenter, Repossess and Revest.
(a) Following the Close of Escrow, the Agency shall,
upon thirty (30) calendar days notice to the Developer which
notice shall specify this Section 5.07, have the right, at its
option, to re-enter and take possession of all or any portion of
the Site, together with all improvements thereon, and to
terminate and revest in the Agency the estate conveyed to the
Developer hereunder, if after conveyance of title, the Developer
(or its successors in interest) shall:
1. Fail to commence construction of all or any
portion of the improvements as required by this
Agreement for a period of ninety (90) calendar
days after written notice to proceed from the
Agency; provided that the Developer shall not
have obtained an extension or postponement to
which the Developer may be entitled pursuant to
Section 6.05 hereof; or
2. Abandon or substantially suspend construction of
all or any portion of the improvements at the
Si te for a period of ninety (90) calendar days
after written notice of such abandonment or
suspension from the Agency; provided that the
Developer shall not have obtained an extension or
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postponement to which the Developer may be
entitled to pursuant to Section 6.05 hereof; or
3. Assign or attempt to assign this Agreement, or
any rights herein, or transfer, or suffer any
involuntary transfer, of the Site or any part
thereof, in violation of this Agreement, and such
violation shall not have been cured within thirty
(30) calendar days after the date of receipt of
written notice thereof from the Agency to the
Developer; or
(b) The thirty (30) calendar day written notice
specified in this Section shall specify that the Agency proposes
to take action pursuant to this Section and shall specify which
of the Developer's obligations set forth in Subsections (1)
through (3) of Section 5.07 (a) have been breached. The Agency
shall proceed with its remedy set forth herein only in the event
that the Developer continues in default of said obligation (s)
for a period of thirty (30) calendar days following such notice
or, upon commencing to cure such default, fails to diligently
and continuously prosecute said cure to satisfactory conclusion.
(c) The right of the Agency to terminate this
Agreement and reenter, repossess and revest in title in such
portion of the Site as not then affected by Certificates of
Completion shall be subject and subordinate to, shall be limited
by and shall not defeat, render invalid or limit:
1. Any mortgage, deed of trust or other security
interest permitted by this Agreement;
2. Any rights or interests provided in this
Agreement for the protection of the holders of
such mortgages, deeds of trust or other security
interests;
3. Any leases, declarations of covenants, conditions
and restrictions, easement agreements or other
recorded documents previously approved or
authorized by the Agency and applicable to the
Site.
(d) The Agency Grant Deed for the Site shall contain
appropriate references and provisions to give effect to the
Agency's right, as set forth in this Section under specified
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circumstances prior to the recordation of a Certificate of
Completion with respect to such portion of the Site to reenter
and take possession of such portion, or any part thereof, with
all improvements thereon, and to terminate and revest in the
Agency the estate conveyed to the Developer.
(e) Upon the revesting in the Agency of title to the
Si te, or any part thereof, as provided in this Section, the
Agency shall, pursuant to its responsibilities under State law,
use its best efforts to resell the Site, or any part thereof, at
fair market value as soon and in such manner as the Agency shall
find feasible and consistent with the objectives of such law, to
a qualified and responsible party or parties (as determined by
the Agency) who will assume the obligations of making or
completing the improvements, or such other improvements in their
stead as shall be satisfactory to the Agency and in accordance
wi th the uses specified for the property, or any part thereof.
Upon such resale of the Site, or any part thereof, the proceeds
thereof shall be applied:
1. First, to make any payment made or necessary to
be made to discharge or prevent from attaching or
being made any subsequent encumbrances or liens
due to obligations incurred with respect to the
making or completion of the agreed improvements
or any part thereof on the Site or any portion
thereof; next to reimburse the Agency on its own
behalf or on behalf of the City for all actual
costs and expenses incurred by the Agency and the
Ci ty, including but not limited to customary and
reasonable fees or salaries to third party
personnel engaged in such action (but excluding
the Agency's or the City's general overhead
expense), in connection with the recapture,
management and resale of the Site or any portion
thereof; all taxes, assessments and water and
sewer charges paid by the City and/or the Agency
with respect to the Site or any portion thereof;
any amounts otherwise owing to the Agency by the
Developer and its successor transferee; and
2. Second, to the extent that any and all funds
which are proceeds from such resale are
thereafter available, to reimburse the Developer,
or its successor transferee, up to the amount
equal to the sum of: (1) the Purchase Price paid
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by the Developer for the Site (or allocable to
the applicable part thereof); and (2) the costs
incurred for the development of the Site, or
applicable part thereof, or for the construction
of the improvements thereon including, but not
limi ted to, costs of carry, taxes and items set
forth in the Developer's cost statement which
shall be submitted to and approved by the Agency.
3.
Any balance
application of
Agency.
remaining after the foregoing
proceeds shall be retained by the
Section 5.08. Remedies To Be Separately Applied
Following Bifurcation Date. Any provision of this Agreement to
the contrary, following the Bifurcation Date the rights and
remedies of the Agency contained in this Article V shall be
separately applied to Century, its permitted successors and
assigns, and Olive Crest and its permitted successors and
assigns. Therefore, in the event of an uncured default of this
Agreement by Olive Crest, Agency shall have all rights and
remedies available to it pursuant to this Article V as against
Olive Crest and the Olive Crest Lots, but shall not have those
rights against Century or the Century Lots unless Century is
also in uncured default of this Agreement as to the Century
Lots. In the event of an uncured default of this Agreement by
Century, Agency shall have all rights and remedies available to
it pursuant to this Article V as against Century and the Century
Lots, but shall not have those rights against Olive Crest or the
Olive Crest Lots unless Olive Crest is also in uncured default
of this Agreement as to the Olive Crest Lots.
ARTICLE VI
GENERAL PROVISIONS
Section 6.01. Notices, Demands and Communications
Between the Parties.
diligence
party to
Agreement
messenger
certified
requested,
Developer,
(a) Any and all notices, documents, copies of due
items, demands or communications submitted by any
another party pursuant to or as required by this
shall be proper if in writing and dispatched by
for immediate personal deli very, or by registered or
Uni ted States mail, postage prepaid, return receipt
to the principal office of the Agency and the
as applicable, as designated in Section 1.03 hereof.
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Such written notices, demands and communications may be sent in
the same manner to such other addresses as either party may from
time to time designate as provided in this Section. Any such
notice, demand or communication shall be deemed to be received
by the addressee, regardless of whether or when any return
receipt is received by the sender or the date set forth on such
return receipt, on the day that it is dispatched by messenger
for immediate personal deli very, or two (2) calendar days after
it is placed in the United States mail as heretofore provided.
(b) In
or communications
all notices shall
addition to the submission of notices, demands
to the parties as set forth above, copies of
also be delivered by facsimile as follows:
to the Developer:
with copy to:
University Heights Country
View Estates LLC
1535 South "D" Street, Suite 200
San Bernardino, CA 92408
Attn: John Pavelak
FAX: (909) 381-0041
Best Best & Krieger LLP
3750 University Ave., Suite 400
Riverside, CA 92502
Attn: Mike Grant
Fax: (909) 686-3083
Olive Crest LLC
434 N. Second Avenue
Upland, CA 91786
Attn: Felix Robles, Jr.
Fax No. (909) 949-6091
Stephan, Oringher, Richman &
Theodora
2029 Century Park East
6th Floor
Los Angeles, CA 90067-2907
Attn: Marc L. Benezra, Esq.
Fax No. (310) 551-0283
to the Agency:
with copy to:
Redevelopment Agency of the
City of San Bernardino
201 North "En Street
Suite 301
San Bernardino, CA 92401
FAX: (909) 888-9413
Lewis, D'Amato, Brisbois &
Bisgaard
650 East Hospitality Lane
Suite 600
San Bernardino, CA 92408
FAX: (909) 387-1130
Section 6.02. Conflict of Interest. No member,
official or employee of the Agency having any conflict of
interest, direct or indirect, related to this Agreement, or in
the development of the Site, shall participate in any decision
relating to the Agreement. The parties represent and warrant
that they do not have knowledge of any such conflict of
interest.
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Section 6.03. Warranty Against Payment of
Consideration for Agreement. The Developer warrants that it has
not paid or given, and will not payor give, any third party any
money or other consideration for obtaining this Agreement.
Third parties, for the purposes of this Section, shall not
include persons to whom fees are paid for professional services
if rendered by attorneys, financial consultants, accountants,
engineers, architects and the like when such fees are considered
necessary by the Developer.
Section 6.04. Nonliability of Agency Officials and
Employees. No member, official or employee of the Agency shall
be personally liable to the Developer, or any successor In
interest, in the event of any default or breach by the Agency or
for any amount which may become due to the Developer or to its
successor, or on any obligations under the terms of this
Agreement, except for gross negligence or willful acts of such
member, officer or employee.
Section 6.05. Enforced Delay: Extension of Time of
Performance. In addition to specific provisions of this
Agreement, performance by any party hereunder shall not be
deemed to be in default, or considered to be a default, where
delays or defaults are due to the force maj eure events of war,
insurrection, strikes, lockouts, riots, floods, earthquakes,
fires, casualties, acts of God, acts of the public enemy,
epidemics, quarantine restrictions, freight embargoes or lack of
transportation, weather-caused delays, inability to secure
necessary labor, materials or tools, delays of any contractors,
subcontractor or supplier, which are not attributable to the
fault of the party claiming an extension of time to prepare or
acts or failure to act of any public or governmental agency or
enti ty (provided that acts or failure to act of the City or
Agency shall not extend the time for the Agency to act hereunder
except for delays associated with lawsuit or injunction
including but without limitation to lawsuits pertaining to the
approval of the Agreement, and the like). An extension of time
for any such force majeure cause shall be for the period of the
enforced delay and shall commence to run from the date of
occurrence of the delay; provided however, that the party (ies)
which claims the existence of the delay has first provided the
other party(ies) with written notice of the occurrence of the
delay wi thin ten (10) days of the commencement of such
occurrence of delay.
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The inability of the Developer to obtain a
satisfactory commitment from a construction lender for the
improvement of the Site or to satisfy any other condition of
this Agreement relating to the redevelopment of the Site shall
not be deemed to be a force maj eure event or otherwise provide
grounds for the assertion of the existence of a delay under this
Section 6.05. The parties hereto expressly acknowledge and
agree that changes in either general economic conditions or
changes in the economic assumptions of any of them which may
have provided a basis for entering into this Agreement and which
occur at any time after the execution of this Agreement, are not
force maj eure events and do not provide any party with grounds
for asserting the existence of a delay in the performance of any
covenant or undertaking which may arise under this Agreement.
Each party expressly assumes the risk that changes in general
economic conditions or changes in such economic assumptions
relating to the terms and covenants of this Agreement could
impose an inconvenience or hardship on the continued performance
of such party under this Agreement, but that such inconvenience
or hardship is not a force majeure event and does not excuse the
performance by such party of its obligations under this
Agreement.
Section 6.06. Inspection of Books and Records. The
Agency shall have the right at all reasonable times at the
Agency I s cost and expense to inspect the books and records of
the Developer pertaining to the Site, and/or the development
thereof, as necessary for the Agency, in its reasonable
discretion, to enforce its rights under this Agreement. Matters
discovered by the Agency shall not be disclosed to third parties
unless required by law or unless otherwise resulting from or
related to the pursuit of any remedies or the assertion of any
rights of the Agency hereunder. The Developer shall also have
the right at all reasonable times to inspect the books and
records of the Agency pertaining to the Site and/or the
development thereof as pertinent to the purposes of this
Agreement.
Section 6.07. Approvals.
(a) Except
approvals required
officers, agents or
Developer, shall not
disapproval shall be
as otherwise provided in this Agreement,
of the Agency or the Developer, or any
employees of either the Agency or the
be unreasonably withheld and approval or
gi ven wi thin the time set forth in the
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Schedule of Performance or, if no time is given, within a
reasonable time.
(b) The Executive Director of the Agency is
authorized to sign on his or her own authority amendments to
this Agreement which are of routine or technical nature,
including minor adjustments not exceeding sixty (60) days to the
Schedule of Performance.
Section 6.08. Real
shall not be liable for any
fees or finder fees related
Developer.
Estate Commissions. The Agency
real estate commissions, brokerage
to any actions or conduct by the
Section 6.09. Indemnification. The Developer agrees
to indemnify and hold the City and the Agency, and their
officers, employees and agents, harmless from and against all
damages, judgments, costs, expenses and fees arising from or
related to any act or omission of the Developer in performing
its obligations hereunder. The Agency agrees to indemnify and
hold the Developer and its officers, employees and agents,
harmless from and against all damages, judgments, costs,
expenses and fees arising from or related to any act or omission
of the Agency in performing its obligations hereunder.
Section 6.10. Release of Developer from Liability.
Notwithstanding any provision herein to the contrary, the
Developer shall be relieved of any and all liability for the
obligations of the Developer hereunder with regard to any Site
Lot when a Certificate of Completion has been issued by the
Agency hereunder with respect thereto, other than any covenants
and obligations provided by the Agency Grant Deed.
Section 6.11. Attorneys' Fees. If any party hereto
files any action or brings any action or proceeding against the
other arising out of this Agreement, or is made a party to any
action or proceeding brought by the Escrow Holder or a third
party, then as between the Developer and the Agency, the
prevailing party shall be entitled to recover as an element of
its costs of suit, and not as damages, its reasonable attorneys'
fees as fixed by the Court, in such action or proceeding or in a
separate action or proceeding brought to recover such attorneys'
fees. For the purposes hereof the words "reasonable attorneys'
feesu mean and include in the case of the Agency to salaries and
expenses of the lawyers employed by the Office of City Attorney
(allocated on an hourly basis) who may provide legal services to
RVPUB!WJP!645019
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CDC/2002-43
the Agency in connection with the representation of the Agency
in any such matter.
Section 6.12. Effect. This
binding upon and inure to the benefit of
their respective heirs, executors,
representatives, successors and assigns.
Agreement shall be
the parties hereto and
administrators, legal
ARTICLE VII
ENTIRE AGREEMENT, WAIVERS AND AMENDMENT
Section 7.01. Entire Agreement.
(a) This Agreement shall be executed in three (3)
triplicate originals each of which is deemed to be an original.
This Agreement includes sixty-eight (68) pages and eight (8)
attachments (See list of attachments at Section 1.06), which
constitute the entire understanding and Agreement of the
parties.
(b) This Agreement integrates all of the terms and
conditions mentioned herein or incidental hereto, and supersedes
all negotiations or previous agreements between the parties with
respect to all or any portion of the Site and the development
thereof.
(c) None of the terms, covenants, agreements or
conditions set forth in this Agreement shall be deemed to be
merged with the grant deed conveying title to the Developer in
the Site, and this Agreement shall continue in full force and
effect before and after such conveyance until issuance of the
Certificate of Completion.
(d) Prior to the Bifurcation Date, all waivers of the
provisions of this Agreement and all amendments hereto must be
in writing and signed by the appropriate authorities of the
Agency and the Developer. Following the Bifurcation Date, all
wai vers of the provisions of this Agreement and all amendments
hereto that affect solely to the Olive Crest Lots must be in
writing and signed by the appropriate authorities of the Agency
and Olive Crest. Following the Bifurcation Date, all waivers of
the provisions of this Agreement and all amendments hereto which
affect solely the Century Lots must be in writing and signed by
the appropriate authorities of the Agency and Century. Prior to
the Bifurcation Date, all waivers of the provisions of this
Agreement and all amendments hereto must be in writing and
RVPUB/WJP/645019
-67-
CDC/2002-43
signed by the appropriate authorities of the Agency, Century,
and Olive Crest.
ARTICLE VIII
TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY AND RECORDATION
Section 8.01.
Agreement.
Execution and Recordation of Notice of
(a) Following its execution by the Developer and
prompt deli very thereafter to the Agency, this Agreement shall
be subject to the review and approval by the governing board of
the Agency in its sole and absolute discretion within forty-five
(45) calendar days after the date of signature by the Developer.
In the event that the Agency has not approved, executed and
delivered this Agreement to the Developer wi thin the foregoing
period, then the parties shall be mutually released from any
further duties or obligations hereunder. The Effective Date of
this Agreement shall be the date when the Agreement shall have
been executed by the Developer and formally approved by the
Agency, notwithstanding the Agency's actual signature date.
(b) The Developer and the Agency agree to permit
recordation of a Notice of Agreement against the Site in the
Office of the County Recorder of San Bernardino County. The
form of such Notice of Agreement is attached hereto as Exhibit
"G".
RVPUB/WJP/645019
-68-
CDC/2002-43
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the dates set forth below.
"AGENCY"
Date: ~h~~.'5
the
By:
APPROVED AS TO FORM:
r~L
A~ncy p ci~l Counsel
RVPUB/WJP/645019
-69-
Date:
Date:
1/24/03
1/24/03
RVPUB!WJP!645019
CDC/2002-43
"DEVELOPER"
UNIVERSITY HEIGHTS COUNTRY VIEW
ESTATES, LLC, a California limited
liability company
By: Century Crowell Communities, L.P.
a California limited partnership,
Its Manager
By: Century Homes Communities,
a California corporation,
General Partner
By:
Olive Crest LLC
a California limited liability
company
By:
, ;h~7~ /ZP'l
Felix Robles, Jr./
Its: Manager
-70-
RVPUB/WJP/645019
CDC/2002-43
EXHIBIT "A" TO
DISPOSITION AND DEVELOPMENT AGREEMENT
LEGAL DESCRIPTION OF SITE
Exhibit "A"
CDC/2002-43
ORDER NO.
S-146378-9
EXHIBIT "A"
THE lAND REFERRED 'ill IN '!HIS REroRT IS SI'IUATED IN THE Sffi'IE OF CALIFORNIA,
0XlNI'Y OF SAN BERNARDINO AND IS DESCRIBED AS FOLI..CMS:
PARCEL A-1:
PARCEL 1, AS PER PIAT ATI'ACHED 'ill 1m LINE ADJUS'IMENI' NO. 83-22, RECORDED JULY 6,
1984, AS INSTRT.J.1ENI' NO. 84.;..159923, OFFICIAL RECORDS, FURTHER DESCRIBED AS
FOLI..CMS :
ALL 'IHAT FORTICN OF PARCELS 1 AND 2 OF PARCEL MAP NO. 6755, IN THE CITY OF SAN
BERNARDINO, 0XlNI'Y OF SAN BERNARDINO, S'ThTE OF CALIFORNIA, AS PER PIAT RECORDED
IN :B:X>K 66 OF PARCEL MAPS, PAGES 43 AND 44, RECORDS OF SAID OXlNI'Y, MJRE
PARTICUlARLY DESCRIBED AS FOLI..CMS:
BB3INNIN3 AT THE SOUIHWEST CDRNER OF PARCEL 1 OF PARCEL MAP NO. 6755; 'IHENCE
NORm 270 21' 43" FAST, AI..CN3 THE FAST LINE OF OLIVE AVENUE, BEIN3 30 FEEl' FAST
OF THE CENIER LINE OF SAME, A DISTANCE OF 161.28 FEEl'; '!HENCE SOUIH 620 38' 17"
FAST, A DIs:rnNCE OF 22.00 FEEl' 'ill THE BOOINNIN3 OF A 'I1IN3ENI' CURVE HAVIN3 A
RADIUS OF 1010.00 FEEl', BEIN3 c:a;rCAVE 'ill THE NORTH AND SUBTENDIN3 A CENTRAL AtrnE
OF 140 19' 52"; 'IHENCE SOUIHEASTERLY AI..CN3 SAID CURVE, AN ARC LENnH OF 252.63
FEEl' 'ill A FOINr OF N(N-~; THENCE NORTH 270 21' 43" FAST, A DIS'I1INCE OF
193.26 FEEl' 'ill THE BB3INNIN3 OFA TAN3ENI' CURVE, HAVIN3 A RADIUS OF 260.00 FEEl',
BEIN3 o:::NCAVE 'ill THE WEST AND SUBI'ENDIN3 A CENTRAL AtrnE 140 OS' 34"; 'IHENCE
NORTHERLY AI..CN3 SAID CURVE, AN ARC LENnH OF 63.95 FEEl' 'ill A FOINr OF REVERSE
CURVATURE AND THE BB3INNIN3 OF A TAN3ENI' CURVE HAVIN3 A RADIUS OF 240.00 FEEl',
BEIN3 CCNCAVE 'ill THE E'ASTANDSUBI'ENDIN3 A CENTRALAtrnEOF 140 OS' 34"; THENCE
NORIHERLY AI..CN3 SAID CURVE, AN ARC LEN:mI OF 59.03 FEEl'; THENCE NORm 270 21'43"
FAST, A DIs:rnNCE OF 299.99 FEEl' 'ill THE BOOINNIN3 OF A 'I1IN3ENI' CURVE, HAVIN3 A
RADIUS OF 35.00 FEEl', BEING c:a;rCAVE 'ill THE SOUIHE'AST AND SUBTENDIN3 A CENTRAL
AtrnE OF 890 54' 52"; THENCE EASTERLY AI..CN3 SAID CURVE, AN ARC LEN3TH OF 54.93
FEEl'; THENCE scum 620 43' 25" FAST, A DIs:rnNCE OF 116.64 FEEl' 'ill THE BB3INNIN3
OF A TAN3ENI' CURVE, HAVIN3 A RADIUS OF 260.00 FEEl', BEIN3 o:::NCAVE 'ill THE NOR'IH
AND SUBI'ENDIN3 A CENTRAL AtrnE OF 100 23' 27"; 'IHENCE E'AS'IERLY AI..CN3 SAID CURVE,
AN ARC LEN:mI OF 47.15 FEEl' 'ill A FOINr OF REVERSE CURVATURE AND THE BOOINNIN3 OF
A 'I1IN3ENI' CURVE, HAVIN3 A RADIUS OF 240.00 FEEl', BEIN3 CCNCAVE 'ill THE SOUIH AND
SUBI'ENDIN3 A CENTRAL AtrnE OF 100 23' 27"; THENCE EASTERLY AI..CN3 SAID CURVE, AN
ARC LENTIH OF 43.53 FEEl'; THENCE SOUIH 620 43' 25" FAST, A DIS'I1\NCE OF 250.18
FEEl' 'ill THE BB3INNIN3 OF A ~ CURVE, HAVIN3A RADIUS OF 35.00 FEEl', BEIN3
CCNCAVE 'ill THE WEST AND. SUBTENDIN3 A CENTRAL AtrnE OF 900 00' 00"; 'IHENCE
SOUIHERLY AI..CN3 SAID CURVE, AN ARC LENnH OF 54.98 FEEl'; '!HENCE SOUIH 270 16' 35"
WEST A DISTANCE OF 260.00 FEEl'; THENCE scum 620 43' 25" EAST, A DIs:rnNCE OF
21. 55 FEEl' 'ill THE BB3INNIN3 OF A TAN3ENI' CURVE, HAVIN3 A RADIUS OF 335.00 FEEl',
BEIN3 o:::NCAVE 'ill THE NORTH AND SUBTENDIN3 A CENTRAL AtrnE OF 190 39' 29"; 'IHENCE
EASTERLY AI..CN3 SAID CURVE, AN ARC LEN:mI OF 114.94 FEEl' 'ill A FOINr OF REVERSE
CURVATURE AND BOOINNIN3 OF A ~ CURVE, HAVIN3 A RADIUS OF 315.00 FEEl', BEIN3
CCNCAVE 'ill THE SOUIH AND SUBTENDIN3 A CENTRAL AtrnE OF 190 38' 12"; '!HENCE
EASTERLY AI..CN3 SAID CURVE, AN ARC LENTIH OF 107.96 FEEl' 'ill A FOINr OF N(N-
'mN3ENCY AND A FOINr CN THE WESTERLY OCUIDARY OF TRACl' NO. 10181, AS RECORDED IN
OCOK 154, PAGES 53, 54 AND 55, RECORDS OF SAID COUNI'Y, FOLI..CMIN3 THE SAID
WESTERLY BJUNDARY THE NEXT SEVERAL COURSES: THENCE SOUIH 270 15; 18" WEST, A
DIs:rnNCE OF 20.00 FEEl' 'ill THE BB3INNIN3 OF A N(N-TAN3ENI' CURVE, HAVIN3 A RADIUS
OF 20.00 FEEl', BEIN3 CCNCAVE 'ill THE WEST AND SUBTENDIN3 A CENTRAL AN3LE OF 900
00' 00";
CCNTINUED
CDC/2002-43
<XNI'INUED
ORDER ID. S-146378-9
'!HENCE SOUIHFASTERLY AI..CN; SAID CURVE, AN ARC LEN.JIH OF 31.42 FEET; '!HENCE sourn
270 15' 18" WE'Sl', A DISTANCE OF 227.46 FEET TO 'IRE BffiINNIN3 OF A TII.NGENT CURVE,
HAVIN3 A RADIUS OF 20.00 FEET, BEIN3 CCNCAVE TO 'IREIDR'IH AND SUBTENDIN3 A
CENTRAL AN3LE OF 980 07' 52"; '!HENCE SOUIHWESTERLY AI..CN;SAID CURVE, AN ARC
LEN3IH OF 34.25 FEET TO A mINI' OF N:N-TIW:;ENCY; 'IHENCE sourn 350 23' 10" WE'Sl', A
DIS'lliNCE OF 60.00 FEET; '!HENCE sourn 540 36' 50" E'ASI', A DISTANCE OF 11.57 FEET;
'!HENCE SCXJIH 320 48' 29" WE'Sl', A DISTANCE OF 311.47 FEET TO '!HE SOUIHERLY CORNER
OF PARCEL 1 OF PARCEL MAP ID. 6755; '!HENLFAVIN3 'IRE SAID WESTERLY BJUNIJARY OF
TRACT ID. 10181, NJR1H 630 43' 32" WE'Sl' AIJ:N3 'IRE SOUIHWESTERLY BJUNIJARY OF SAID
PARCEL 1, A DISTANCE OF 187.29 FEET TO A mINI' CN 'IRE NJRIHWESTERLY LINE OF SAN
BERNARDIN) COUNI'Y FI..OOD CCNIROL RIGHI' OF WAY AND 'IRE SOUIHWFSTERLY BJUNIJARY OF
PARCEL 1 OF PARCEL MAP ID. 6755 AND '!HE BEGINNIN3 OF A N:N-TAN3ENl' CURVE, HAVIN3
A RADIUS OF 965.00 FEET, BEIN3 CCNCAVE TO 'IRE SOUIHWE'SI' AND SUBTENDIN3 A CENTRAL
AN3LE OF 210 08' 50", A RADIAL LINE TO SAID roINI' OF CURVA'IURE BEARS IDR1H 480
25' 18" E'ASI'i '!HENCE NJR'IHWE'STERLY AI..CN; SAID CURVE, AN ARC LEN3IH OF 356.17 FEET
AIJ:N3 '!HE SAID IDR1HWESTERLY FI..OOD CXNI'ROL RIGHT OF WAY LINE; '!HENCE AI..CN; SAID
FI..OOD CCNIROL RIGHI' OF WAY AND _ 'IRE SCUIHWESTERLY BXlNDARY OF PARCEL 1 OF PARCEL
MAP ID. 6755, IDR1H 620 43' 32" WEST, A DISTANCE OF 460.07 FEET TO '!HE mINI' OF
BEGINNIID.
PARCEL A-2:
PARCEL _ 2, AS PER PIAT A'ITAQ-IEI) TO LOI' LINE ADJUS'IMENrNJ. 83 - 22, RECORDED JULY - 6,
1984, INSTRUMENI'ID. 84-159923, OFFIC:p\LRECORDS/ FUR'l1IER DESClUBED AS FOLLCWS:
ALL THAT roRTICN OF PARCELS 1, 2, 3 AND 4 OF PARCEL MAP NJ. 6755/ IN 'IRE CITI OF
SAN BERNARDIN), COUNI'Y OF SAN BERNARDIN), S'IA1E OF CALIFORNIA, AS PER PIAT
RECORDED IN BCOK 66 OF PARCEL MAPS, PAGES 43 AND 44, RECORDS OF SAID COUNI'Y, M:>RE
PARrICUUlRLY DESCRIBED AS FOLLCWS:
<X.M'<1ENCIN3 AT 'IRE SOUIHWEST CORNER OF PARCEL 1 OF PARCEL MAP NJ. 6755; '!HENCE
NJR1H 270 21' 43" E'ASI' AIJ:N3 'IRE EAST LINE OF OLIVE AVENUE, BEIN3 30 FEET E'ASI' OF
'IRE CENI'ER LINE OF SAME, A DISTANCE OF 161.28 FEET TO '!HE '!RUE mINI' OF
BEGINNIID; '!HENCE sourn 620 38' 17" E'ASI', A DISTANCE OF 22.00 FEET TO '!HE
BEGINNIID OF A TAN3ENl' CURVE/ HAVIN3 A RADIUS OF 1010.00 FEET/ BEIN3 CCNCAVE TO
'IRE NJR'IH AND SUBTENDIN3 A CENTRAL AN3LE OF 140.19' 52"; '!HENCE SOUIHFASTERLY
AI..CN; SAID CURVE, AN ARC LEN3IH OF 252.63 FEET TO A roINI' OF N:N-TI\N3ENCY i '!HENCE
NJR1H 270 21' 43" E'ASI', ADIS'lliNCE OF 193.26 FEET TO 'IRE BEGINNIID OF A TIW3EN!'-
CURVE, HAVIN3 A RADIUS OF 260.00 FEET, BEIN3 CCNCAVE TO 'IRE WE'Sl' AND SUBTENDIN3 A
CENTRAL AN3LE OF 140 05' 34"; '!HENCE NJRnIERLY AIJ:N3 SAID CURVE, AN ARC LEN3IH OF
63 . 95 FEET TO A mINI' OF REVERSE CURVATURE AND 'IRE BffiINNIN3 OF A TAN3ENl' CURVE
HAVIN3 A RADIUS OF 24.00 FEET, BEIN3 CCNCAVE TO 'IRE E'ASI' AND SUBTENDIN3 A CENTRAL
AN3LE OF 140 05' 34"; '!HENCE NJR'IHERLY AIJ:N3 SAID CURVE, AN ARC LEN3IH OF 59.03
FEET; '!HENCE NJR'IH 270 21' 43" E'ASI', A DISTANCE OF 299.99 FEET TO 'IRE BEGINNIID
OF A TAN3ENl' CURVE, HAVIN3 A RADIUS OF 35.00 FEET, BEIN3 CCNCAVE TO '!HE SCXJIHE'ASI'
AND SUBTENDIN3 A CENTRAL AN3LE OF 890 54' 52"; '!HENCE EASTERLY ALCN3 SAID CURVE,
AN ARC LEN:mf OF 54.93 FEET; '!HENCE sourn 620 43' 25" E'ASI', A DISTANCE OF 116.64
FEET TO '!HE BEGINNIN3 OF A TAN3ENl' CURVE, HAVIN3 A RADIUS OF 260.00 FEET, BEIN3
CCNCAVE TO '!HE NJR1H AND SUBTENDIN3 A CENTRAL AN3lE OF 100 23' 27"; '!HENCE
EASTERLY ALCN3 SAID CURVE AN ARC LEN:IDI OF 47.15 FEET TO A mINI' OF REVERSE
CURVATURE AND '!HE BEGINNIID OF A TAN3ENl' CURVE, HAVIN3 A RADIUS OF 240.00 FEET,
BEIN3 CCNCAVE TO 'IRE sourn AND SUBTENDIN3 A CENIRAL AN3lE OF 100 23' 27" i
<XNI'INUED
CDC/2002-43
CCNl'INUED
ORDER NO. S-146378-9
'lHENCE FASTERLY ALCN3 SAID CURVE, AN ARC LE:N3IH OF 43.53 FEEl'; 'TIIENCE SOUIH 620
43' 25" EAST, A DISTANCE OF 250.18 FEE:!' 'ill 'TIlE BEl3INNIN3 OF A 'TI\N3ENI' CURVE
HAVIN3.A RADIUS OF 35.00 FEEl', BEIID ctNCAVE 'ill 'mE WEST AND SUBTENDIID A CENl'RAL
AN3LE OF 900 00' 00"; '!HENCE SCX1IHERLY AI.J:N}. SAID CURVE, AN ARC LENIDI OF 54.98
FEEl'; 'lHENCE SOUI'H 270 16' 35" WEST, A DISTANCE OF 260.00 FEEl'; TIIENCE SOUIH 620
43' 25" EAST, A DISTANCE OF 21.55 FEE:!' 'ill THE BEl3INNIN3 OF A TI\NGENI' CURVE,
HAVIN3 A RADIUS OF 335.00 FEEl', BEIID ctNCAVE 'ill THE NORTH AND SUBTENDIID A
CENI'RAL AN3LE OF 190 39' 29"; '!HENCE EASTERLY ALCN3 SAID CURVE, AN ARC LENJIH OF
114.94 FEEl' 'ill A roINT OF REVERSE aJRVA'IURE AND BEl3INNIN3 OF A TI\NGENI' CURVE,
HAVIN3 A RADIUS OF 315.00 FEEl', BEIID <J:NmVE 'ill THE SOUIH AND SUBTENDIID A
CENIRAL AN3LE OF 190 38' 12"; THENCE EASTERLY ALCN3 SAID CURVE, AN ARC LENJIH OF
107.96 FEEl' 'ill A roINT OF N::N-'I1IN3ENCY AND THE WESTERLY BJUNDARY OF TRACT NO.
10181, AS RECORDED IN PCOK 154, PAGES 53, 54 AND 55, RECORDS OF SAID COUNTY;
THENCE FOLI..CWIN3 SAID WESTERLY BOUNDARY '!HE NEXT SEVERAL CXlURSES: NORTH 270 15'
18" EAST, A DIsmNCE OF 40.00 FEEl'; '!HENCE NORTH 620 44' 42" WEST, A DIs:rnNCE OF
90.00 FEEl'; TIIENCE NOR'IH 270 15' 18" FASI', A DISTANCE OF 230.00 FEEl'; 'lHENCE
LE'AVIN3 SAID WESTERLY BOUNDARY.AND CCNl'INUING NOR'IH 270 15' 18" EAST, A DIsmNCE
OF 35:97 FEEl'; 'lHENCE NORTH 060 38' 15" EAST, A DISTANCE OF 111.11 FEEl'; 'lHENCE
NORIH 620 43' 25" WEST, A DIsmNCE OF 406.18 FEEl'; 'IHENCE SOUIH 270 16' 35" WEST,
A DISTANCE OF 126.00 FEEl'; 'IHENCE NOR'IH 620 43' 25" WEST, A DISTANCE OF 100.58
FEET 'ill 'mE BEl3INNIN3 OF A 'llIN3ENI' CURVE, HAVIN3 A RADIUS OF 20.00 FEET, BEIID
<J:NmVE 'ill 'mE EAST AND SUBTENDIID A CErrRAL AN3LE OF 630 39' 27"; '!HENCE
NOR'IHERLY ALCN3 SAID CURVE, . AN ARC LENnH OF 22 .22 FEET 'ill A roINT OF N::N-
'mN3ENCY;'!HENCE NORTH 620 38'17"WEST,A DISTANCE OF 175.97 FEEl'; '!HENCE SOUIH
270 21' 43" WEST, A DISTANCE OF 39.23 FEE:!'; '!HENCE NORTH 620 38' 17" WEST, A
DISTANCE OF 114.00 FEET 'ill A roINT CN '!HE FASI' LINE OF SAID OLIVE AVENUE, BEIID
30 FEET EAST OF THE CENI'ER LINE OF SAME; 'IHENCE SOUIH 270 21' 43" WEST ALCN3 SAID
EAST LINE OF OLIVE AVENUE, A DISTANCE OF 688.32 FEET 'ill THE 'IRUE roINT OF
BEl3INNIN3 .
EXCEPT 'IHEREFRCM THAT roRTICN LYIID WI'IHIN TRACT NO. 10183, AS PER PIAT RECORDED
IN PCOK 118 OF MAPS, PAGES 63 AND 64, REDJRDS OF SAID COUNTY.
AI.ro EXCEPT 'I'HEREF'RavI THAT roRTICN LYIID WI'IHIN TRACT NO. 10184, AS PER PIAT
RECORDED IN PCOK 178 OF MAPS, PAGES 65 AND 66, RECORDS OF SAID COUNTY.
PARCEL A-3:
PARCEL 3 AS PER PIAT ATI7\O!ED 'IO LOr LINE ADJUS'IMENI' NO. 83 - 22, RECORDED JULY 6,
1984, INSIRtMENI' NO. 84-159923, OFFICIAL REDJRDS, FURTHER DESCRIBED AS FOLLC>>1S:
ALL THAT roRTICN OF PARCELS 2 AND 3 OF PARCEL MAP NO. 6755, IN 'TIlE CIrr OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, SlATE OF CALIFORNIA, AS PER PlAT RECORDED
IN PCOK 66 OF PARCEL MAPS, PAGES 43 AND 44, RECORDS OF SAID COUNTY, MJRE
PARTIaJIARLY DESCRIBED AS FOLLC>>1S:
CCNl'INUED
CDC/2002-43
CCNITNUED
ORDER ID. 8-146378-9
Q:M.1ENCIID AT '!HE SOUIHWEST CORNER OF PARCEL 1 OF PARCEL MAP ID. 6755; '!HENCE
IDR'!H 270 21' 43" FAST AI.CNG '!HE FAST LINE OF OLIVE AVENUE, BEIID 30 FElIT FAST OF
'!HE CENI'ERLINE OF SAME, A DIS'ITlNCEOF 849.60 FElIT. 10. '!HE TRUE roINI' OF
BIDINNIN3; 'IRENCE CCNI'INUIN3 IDR'!H 270.21' 43" FAST ALCN3 '!HE FAST LINE OF OLIVE
AVENUE, A DIS'ITlNCE OF 453.72 FElIT 10 '!HE SOUIHERLY LINE OF IR.VIN:m:N AVENUE;
BEIID 30 FElIT SOUIH OF '!HE CENI'ER LINE OF SAME; THENCE scum 620 43' 25" FAST
ALCN3 SAID SOUIHERLY LINE OF IRVINJION AVENUE, A DISTANCE OF 458.00 FElIT;
'!HENCE SOUIH 270 16' 35" WEST, A DISTI\NCE OF 180.05 FElIT; 'lliENCE IDR'IH 620 43'
25" WEST, A DIS'ITlNCE OF 43.96 FEEl'; 'IHENCE SOUIH 270 16' 35" WEST, A DIS'ITlNCE OF
120.00 FElIT 10 A roINI' CN '!HE IDRI'HERLY OOUNDARY OF PARCEL 2 HEREIN DESCRIBED;
'!HENCE FOI.J:..CWIN} SAID IDRI'HERLY OOUNDARY OF SAID PARCEL 2 '!HE REMAININ3 COURSES:
NORIH 6243' 25" WEST, A DIS'ITlNCE OF 68 FEEl'; 'IHENCE SOUIH 27016' 35" WEST, A
DIsmNCE OF 126.00 FEEl'; 'IHENCE IDR'!H 620 43' 25" WEST, A DIS'l1INCE OF 100.58 FEEl'
10 '!HE BIDINNIN3 OF A ThN3ENI' CURVE, HAVIN3 A RADIUS OF 20.00 FElIT, BEIID crNCAVE
10 '!HE FAST AND SUB'I'ENDIID A CENTRAL AN3LE OF 630 39' 27"; 'IHENCE IDR'IHERLY AI.CNG
SAID CURVE, AN ARC LENIDl OF 22.22 FEEl' 10 A roINI' OF N:;N-TAN}ENCY; 'IHENCE IDR'IH
620 38' 17" WEST, A DIsmNCE OF 175.97 FEEl'; THENCE scum 270 21' 43" WEST, A
DISTI\NCE OF 39.23 FEEl'; 1HENCE IDR'IH 620 38' 17" WEST, A DIS'l1INCE OF 114.00 FElIT
10 '!HE TRUE roINI' OF BIDINNIN3.
EXCEPI' THEREFRCM THAT roRTICN LYIID WI'IHIN TRACI' ID. 10183, AS PER PLAT RELDRDED
IN EOJK 118 OF MAPS, PAGES 63 AND 64, RELDRDS OF SAID COUNI'Y.
AlSO EXCEPT THEREF'R.CM THAT roRTICN LYIID WI'IHIN TRACT ID. 10184, AS PER PLAT
RELDRDED IN EOJK 178 OF MAPS, PAGES 65 AND 66, RELDRDS OF SAID COUNTY.
PARCEL A-4:
PARCEL 4 AS PER PLAT ATTI'l.ClIED 10 LOr LINE AD.JUS'IMENT ID. 83-22, RELDRDED JULY 6,
1984, INSTRlMENT ID. 84-159923, OFFICIAL RELDRDS, FUR'IHER DESCRIBED AS FOI.J.J:MS:
ALL THAT roRTICN OF PARCELS 3 AND 4 OF PARCEL MAP ID. 6755, IN '!HE CITY OF SAN
BERNARDIN), COUNTY OF SAN BERNARDIN), S'I:A.TE OF CALIFORNIA, AS PER PlAT RELDRDED
IN B:OK 66 OF PARCEL MAPS, PAGES 43 AND 44 RELDRDS OF SAID COUNTY, MJRE
PARTIOJIARLY DESCRIBED AS FOI.J.J:MS:
<X:M<1ENCIID AT '!HE SOUIHWEST CORNER OF PARCEL 1 OF PARCEL MAP ID. 6755; '!HENCE
IDR'!H 270 21' 43" FAST AI.CNG '!HE FAST LINE OF OLIVE AVENUE, BEIID 30 FElIT FAST OF
'!HE CENI'ER LINE OF '!HE SAME, A DIsmNCE OF 1303.32 FElIT 10 '!HE SOUIHERLY LINE OF
IRVIN:ID:N AVENUE, BEIID 30 FEEl' SOUIH OF '!HE CENI'ER LINE OF SAME; 'IHENCE SOUIH
620 43' 25" FAST AI.CNG SAID SOUIHERLY LINE OF IRVINJION AVENUE, A DIS'ITlNCE OF
458.00 FElIT 10 '!HE TRUE roINI' OF BIDINNIN3; 'IHENCE scum 270 16' 35" WEST, A
DIsmNCE OF 180.05 FEEl'; 1HENCE IDR'!H 620 43' 25" WEST, A DIS'l1INCE OF 43.96 FEEl' j
1HENCE SOUIH 270 16 ' 35" WEST, A DISTANCE OF 120.00 FElIT 10 A roINI' CN '!HE
IDRI'HERLY OOUNDARY OF PARCEL 2 HEREIN DESCRIBEDj '!HENCE FOI.J:..CWIN} SAID IDRI'HERLY
OOUNDARY OF SAID PARCEL 2 '!HE NEXT THREE COURSES: SOUIH 620 43' 25" FAST, A
DIsmNCE OF 480.00 FEEl'; 'IHENCE SOUIH 060 38' 15" WEST, A DISTANCE OF 111.11
FEEl'j 'IHENCE SOUIH 270 15' 18" WEST, A DIS'ITlNCE OF 35.97 FElIT 10 A roINI' CN '!HE
WE'STERLY OOUNDARY OF TRACT ID. 10181, AS RELDRDED IN 'fD)K 154, PAGES 53, 54 AND
CCNITNUED
CDC/2002-43
<X:NTINUED
ORDER NO. 8-146378-9
55, REXDIIDS OF SAID CDUNTYi '!HENCE AI..CN3 SAID TRACI' BJUNDARY SOUIH 620 43' 25"
EAST, A DISTANCE OF 280.00 FEEl'i '!HENCE NOR'IH 270 15' 18" EAST AI..CN3 SAID TRACT
~, A DIsmNCE OF 440.00 FEEl' 'IO '!HE SOOIHERLY LINE OF IRVThGICN AVENUE,
BEIN130FEEl' SOUIH OF '!HE CENI'ER LINE OF SAMEi '!HENCEN)RlH 620 43' 25" WEST
AI..CN3 SAID SQUIHERLY LINE OF IRVIN3Illi AVENUE, A DIS'rANCE OF 755.04 FEEl' 'IO '!HE
TRUE OOINT OF BEGINNIN3.
PARCEL B:
PNf AND ALL EASEMENTS AND RIGHTS APPURTENANT AND pERTAININ} 'IO PARCEL A DESrnIBED
PHJVE, AS RESERVED IN THAT CERThIN GRANI' DEED FRCM JACK PARKAS AND r:x::NUD 8. DAY,
. AS GRANl'ORS, 'IO '!HE MEIRQOOLITIill WATER DISTRIcr OF SOUIHERN CALIFDRNIA, A PUBLIC
CQRroRATICN, AS GRANIEE, WHICH GRANI' DEED WAS REXDRDED JANUARY 6, 1972, IN roJK
7329, PAGE 916, OFFICIAL REXDRDS OF SAN BERNARDINO CDUNTY, CALIFORNIA.
CDC/2002-43
EXHIBIT "B" TO
DISPOSITION AND DEVELOPMENT AGREEMENT
SCOPE OF DEVELOPMENT
The Site shall be developed as follows: (i) satisfaction of each
of the conditions of the final tract map for the Site described
in Section 2.01.2 of the Agreement; and (ii) the construction
and sale to New Home Buyers of one-hundred seven (107) single
family detached residential units on the Site. The Site shall be
developed in accordance with this Agreement, but subject to the
requirements of the subdivision map, zoning ordinance of the
City and any variances or modifications therefrom as approved by
the City.
The Developer shall effect the design
respect to the development of the Site
Schedule of Performance (Exhibit "D")
follows:
and construction with
in accordance with the
and this Agreement as
The Site will be developed with one-hundred seven (107) single
family detached residential units, all necessary landscaping
required by City laws and approvals applicable to the Site shall
be installed.
The development shall be first class, constructed of quality
materials, to City Code, and shall be unified in architectural
theme and treatment throughout the Site and adj acent off-site
areas, insofar as reasonable and practicable.
All improvements to be constructed by the Developer shall be
constructed or installed in accordance with the technical
specifications, standards and practices of the City and all
governing agencies and in accordance with plans and
specifications approved by the City.
The Developer shall cause the
fees paid to all governmental
utilities, for applications
approvals.
proper documents to be filed and
or regulatory agencies, including
for all required permits and
The Developer shall at its cost and expense undertake and
complete any and all soils, utility and drainage studies, plans
and reports that may be necessary in connection with the
development of the Site and shall provide a copy of said studies
and reports to the Agency. Said studies and reports shall be
RVPUB/WJP/645019
Exhibit "B"
CDC/2002-43
completed prior to the issuance of any building permits for the
Site.
RVPUB!WJP!645019
Exhibit "B"
RVPUB/WJP/645019
CDC/2002-43
EXHIBIT "Cn TO
DISPOSITION AND DEVELOPMENT AGREEMENT
FORM OF AGENCY GRANT DEED
[Attached]
Exhibit "c"
CDC/2002-43
Recording Requested By
And When Recorded Mail
To:
(Space above for Recorder's Use)
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
GRANT DEED
For valuable consideration, the receipt
hereby acknowledged, the REDEVELOPMENT AGENCY OF THE
BERNARDINO, a public body, corporate and politic
hereby grants to a
("Grantee") the real
in Exhibit A and by this
("Property") .
legally described
incorporated herein
of which is
CITY OF SAN
("Grantor" )
California
property
reference
1. The Property is conveyed subj ect to that certain
Disposi tion and Development Agreement dated as of December 17,
2002, by and between Grantor and Grantee ("Agreement"). The
provisions of the Agreement are incorporated herein by this
reference and shall be deemed to be a part hereof as if set
forth at length herein.
2. The Grantee covenants by and for itself, its
heirs, executors, administrators and assigns, and all persons
claiming under or through them, that there shall be no
discrimination against or segregation of any person or group of
persons on account of race, color, creed, religion, sex, age,
marital status, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the
Property, nor shall the Grantee or any person claiming under or
through it, establish or permit any such practice or practices
of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants,
lessees, subtenants, sublessees or vendees in or on the
Property.
RVPUB!WJP!645019
Exhibit "C"-l
CDC/2002-43
All deeds, leases or contracts made relative to the
Property shall contain the following nondiscrimination clauses:
(a) In deeds: "The grantee herein
covenants by and for itself, its heirs, executors,
administrators and assigns, and all persons claiming
under or through them, that there shall be no
discrimination against or segregation of any person or
group of persons on account of race, color, creed,
religion, sex, age, marital status, national origin or
ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the land herein
conveyed, nor shall the grantee, or any person
claiming under or through the grantee, establish or
permit any such practice or practices of
discrimination or segregation with reference to the
selection, locations, number, use or occupancy of
tenants, lessees, subtenants, sublessees or vendees in
or on the land herein conveyed. The foregoing
covenants shall run with the land."
(b) In leases: "The lessee herein
covenants by and for itself, its heirs, executors,
administrators and assigns, and all persons claiming
under or through them, and this lease is made and
accepted upon and subject to the following conditions:
That there shall be no discrimination against or
segregation of any person or group of persons on
account of race, color, creed, religion, sex, age,
marital status, national origin or ancestry in the
leasing, subleasing, transferring, use, occupancy,
tenure or enj oyment of the land herein leased, nor
shall the lessee itself, or any person claiming under
or through it, establish or permit any such practice
or practices of discrimination or segregation with
reference to the selection, location, number, use or
occupancy, of tenants, lessees, subtenants, sublessees
or vendees in the land herein leased."
(c) In contracts: "There shall be no
discrimination against or segregation of any person or
group of persons on account of race, color, creed,
religion, sex, age, marital status, national origin or
ancestry in the sale, lease, sublease, trans fer, use,
occupancy, tenure or enjoyment of the land, nor shall
the transferee itself, or any person claiming under or
RVPUB/WJP/645019
Exhibit "C"-2
CDC/2002-43
through it, establish or permit any such practice or
practices of discrimination or segregation with
reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees
or vendees of the land."
3. No violation or breach of the covenants,
conditions, restrictions, provisions or limitations contained in
this Grant Deed shall defeat or render invalid or in any way
impair the lien or charge of any mortgage, deed of trust or
other financing or security instrument permitted by the
Agreement; provided, however, that any successor of Grantee to
the Property shall be bound by such remaining covenants,
conditions, restrictions, limitations and provisions, whether
such successor's title was acquired by foreclosure, deed in lieu
of foreclosure, trustee's sale or otherwise.
4. The covenants contained in this Grant Deed
against discrimination shall remain in effect in perpetuity.
5. The covenants contained in this Grant Deed shall
be binding for the benefit of the Grantor and its successors and
assigns, and such covenants shall run in favor of the Grantor
for the entire period during which such covenants shall be in
full force and effect, without regard to whether the Grantor is
or remains an owner of any land or interest herein to which such
covenants relate. The Grantor, in the event of any breach of
any such covenants, shall have the right to exercise all of the
rights and remedies, and to maintain any actions at law or suits
in equity or other proper proceedings, to enforce the curing of
such breach as provided in the Agreement or by law. The
covenants contained in this Grant Deed shall be for the benefit
of and shall be enforceable only by the Grantor and its
successor.
RVPUB/WJP/645019
Exhibit "C"-3
CDC/2002-43
IN WITNESS WHEREOF, the Grantor and Grantee have
caused this instrument to be executed on their behalf by their
respecti ve officers thereunto duly authorized this day of
, 2002.
Grantor:
REDEVELOPMENT AGENCY OF THE CITY
OF SAN BERNARDINO
[SIGNATURES TO BE
ACKNOWLEDGED FOR
RECORDATION]
By:
Executive Director
APPROVED AS TO FORM:
By:
Agency Special Counsel
ACCEPTANCE OF GRANT DEED
The provisions of this Grant Deed are hereby approved
and accepted.
a California [
]
]
[
By: [
Its: [
]
]
RVPUB/WJP/645019
Exhibit "C"-4
CDC/2002-43
EXHIBIT "0" TO
DISPOSITION AND DEVELOPMENT AGREEMENT
SCHEDULE OF PERFORMANCE
(Days shall be calendar days, and all dates herein are subj ect
to change due to force majeure in accordance with Section 6.05
of the Agreement)
[THIS SCHEDULE OF PERFORMANCE SHALL BE COMPLETED IN A MUTUALLY
ACCEPTABLE FORM BY THE PARTIES BY NO LATER THAN THE END OF THE
DEVELOPER'S DUE DILIGENCE INVESTIGATIONS]
Agency approval of Agreement December 16, 2002
Close of Escrow
Submittal of plans for
approval
Submittal of construction
documents, grading, public
improvement and landscaping
plans
Start of construction of
Site grading
Completion of Site grading
Start of construction of
Public Improvements
Completion of Public
Improvements
Start of construction of
New Homes
Completion of initial phase
of improvement of New Homes
Completion of 107th New
Home
RVPUB/WJP/645019
Within 120 days following Agency
Approval of Agreement and Opening
of Escrow
As of January 2, 2002
8 weeks from Planning approval
within 30 days following Close of
Escrow
Within 12 weeks from start of
work
June 2, 2003
July 2, 2003
Not later than 16 weeks
following Close of Escrow
Within 30 weeks following Close
of Escrow
Within eighteen (18) months
following Close of Escrow
Exhibit "0"
CDC/2002-43
EXHIBIT "E"
TO DISPOSITION AND DEVELOPMENT AGREEMENT
When Recorded, Mail to:
PUBLIC IMPROVEMENTS CERTIFICATE OF COMPLETION
I, the Executive Director, of the Redevelopment Agency
of the City of San Bernardino (the "Agency") hereby certify as
follows:
By its Resolution No. adopted and approved
, 2002, the Agency has resolved as follows:
Section 1. The public improvements required to be
constructed in accordance with Section 3.02 of that certain
Disposi tion and Development Agreement (the "Agreement") dated
December 17, 2002, by and between the Agency and University
Heights Country View Estates, LLC and Olive Crest LLC
(collectively, the "Developer") on the Site, more fully
described in Exhibit "A" attached hereto and incorporated herein
by this reference, have been completed in accordance with the
provisions of said Agreement.
Section 2. This Public Improvements Certificate of
Completion shall constitute a conclusive determination by the
Agency of satisfactory completion of all of the construction and
installation of the Public Improvements upon the Site as
required by the Agreement. Said Agreement is an official record
of the Agency and a copy of said Agreement may be inspected in
the office of the Secretary of the Redevelopment Agency of the
City of San Bernardino located at 201 North "E" Street, Suite
301, San Bernardino, California, during regular business hours.
RVPUB/WJP/645019
Exhibit "E"-l
CDC/2002-43
Section 3. The Site to which
Improvements Certificate of Completion pertains
described in Exhibit "A" attached hereto.
this Public
is more fully
day of
200 .
DATED AND ISSUED this
Executive Director of the
Redevelopment Agency
of the City of San Bernardino
RVPUB!WJP!645019
Exhibit "E"-2
CDC/2002-43
EXHIBIT A TO
PUBLIC IMPROVEMENTS CERTIFICATE OF COMPLETION
[To be attached]
RVPUB/WJP/645019
Exhibit "E"-3
CDC/2002-43
EXHIBIT "F"
TO DISPOSITION AND DEVELOPMENT AGREEMENT
When Recorded, Mail to:
NEW HOME CERTIFICATE OF COMPLETION
I,
of the City
follows:
the Executive Director of the Redevelopment Agency
of San Bernardino (the "Agency") hereby certify as
By its Resolution No. adopted and approved
, 2002, the Agency has resolved as follows:
Section 1. The improvements required to be
constructed in accordance with that certain Disposition and
Development Agreement (the "Agreement") dated December 17, 2002,
by and between the Agency and a
California (the "Developer") on Lot No. of Tract
(the "Lot") more fully described in Exhibit "A"
attached hereto and incorporated herein by this reference, have
been completed in accordance with the provisions of said
Agreement.
Section 2. This Certificate of Completion shall
constitute a conclusive determination of satisfaction of the
agreements and covenants contained in the Agreement with respect
to the obligations of the Developer, and its successors and
assigns, to construct and develop the improvements on the Lot,
excluding any normal and customary tenant improvements and minor
building "punch-list" items, and including any and all buildings
and any and all parking, landscaping and related improvements
necessary to support or which meet the requirements applicable
to the building and its use and occupancy on the Lot, whether or
not said improvements are on the Lot or on other property
subject to the Agreement, all as described in the Agreement, and
to otherwise comply with the Developer's obligations under the
Agreement with respect to the Lot and the dates for the
beginning and completion of construction of improvements thereon
under the Agreement; provided, however, that the Agency may
enforce any in grant deed pursuant to which the property
containing the Lot was conveyed to the Developer under the
Agreement. Said Agreement is an official record of the Agency
and a copy of said Agreement may be inspected in the office of
RVPUS/WJP/645019
Exhibit "F"
CDC/2002-43
the Secretary of the Redevelopment Agency of the City of San
Bernardino located at 201 North "En Street, Suite 301, San
Bernardino, California, during regular business hours.
is
The Lot to
more fully
which this
described
Certificate
in Exhibit
of
Section 3.
Completion pertains
attached hereto.
"A"
DATED AND ISSUED this
day of
, 200 .
Executive Director of the
Redevelopment Agency
of the City of San Bernardino
RVPUB/WJP/645019
Exhibit "F"
RVPUB/WJP/645019
CDC/2002-43
EXHIBIT "A" TO
NEW HOME CERTIFICATE OF COMPLETION
Exhibit "F"
RVPUB/WJP/645019
CDC/2002-43
EXHIBIT "G" TO
DISPOSITION AND DEVELOPMENT AGREEMENT
NOTICE OF AGREEMENT
[Attached]
Exhibit "H"
CDC/2002-43
Recording Requested by and
When Recorded Return to:
The Redevelopment Agency of the
City of San Bernardino
201 North "E" Street, Suite 301
San Bernardino, CA 92401
Exempt from Recording Fee per
Government Code Section 27383
(Space above for Recorder's Use)
NOTICE OF AGREEMENT
The undersigned, the REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO, a public body, corporate and politic ("Agency"),
UNIVERSITY HEIGHTS COUNTRY VIEW ESTATES LLC, a California
limi ted liability company ("Century") and OLIVE CREST LLC, a
California limited liability company ("Olive Crest") are parties
to that certain DISPOSITION AND DEVELOPMENT AGREEMENT
("Agreement") dated as of December 17, 2002, for reference
purposes only, by and between the Agency and Olive Crest. Said
Agreement contains obligations, covenants and restrictions
affecting certain property ("Site")which is legally described on
the attached Exhibit "A". The Agreement is a public record of
the Agency and is available for inspection and copying at the
Agency's offices located at 201 North "E" Street, Suite 301, San
Bernardino, California.
Dated:
THE REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
By:
Executive Director
ATTEST:
Agency Secretary
APPROVED AS TO LEGAL FORM:
RVPUB/WJP/645019
Exhibit "H"
CDC/2002-43
NOTARY ACKNOWLEDGMENT
STATE OF CALIFORNIA
ss.
COUNTY OF SAN BERNARDINO
On 2002, before me,
, notary public, personally
appeared ~ personally known to me OR
~ proved to me on the basis of satisfactory evidence to be the
person whose name is subscribed to the wi thin instrument and
acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the
person, or the entity (ies) upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal.
Signature of Notary Public
RVPUB/WJP/645019
Exhibit "H"
CDC/2002-43
EXHIBIT "A" TO
NOTICE OF AGREEMENT
LEGAL DESCRIPTION OF SITE
[Attached behind this page]
RVPUB/WJP/645019
Exhibit "H"
CDC/2002-43
EXHIBIT "H" TO
DISPOSITION AND DEVELOPMENT AGREEMENT
Form of Temporary License for the Grading of Land
[Attached behind this page]
RVPUB/WJP/645019
Exhibit "H"
CDC/2002-43
EXHIBIT "H"
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
TEMPORARY LICENSE AGREEMENT FOR THE GRADING OF LAND
THIS TEMPORARY LICENSE AGREEMENT FOR THE GRADING OF LAND
(this "License Agreement") is dated as of 2003,
by and among UNIVERSITY HEIGHTS COUNTRY VIEW ESTATES LLC, a
California limited liability company ("Century"), OLIVE CREST
LLC, a California limited liability company ("Olive Crest") and
the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public
body corporate and politic (the "Agency"), and is entered into
with respect to the facts set forth in the Recitals below.
Century and Olive Crest are collectively referred to herein as
"Licensee."
RECITALS
1. This License Agreement affects the lands owned by the
Agency, which is hereinafter described as the "Grading Site."
The Grading Site is subj ect to disposition by the Agency to
Century in accordance with the terms of an agreement dated as of
December 17, 2002, entitled "Disposition and Development
Agreement," by and between the Agency and the Licensee. A
vicini ty map marked to show the Grading Site in relation to
other abutting lands is attached to this License Agreement as
Exhibit "Ai"
2. The Grading Site is described in the attached Exhibit
"B."
IN CONSIDERATION OF THE MUTUAL PROMISES OF THE PARTIES SET
FORTH IN THIS LICENSE AGREEMENT AND OTHER GOOD AND VALUABLE
CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH IS HEREBY
ACKNOWLEDGED, LICENSEE AND THE AGENCY HEREBY AGREE AS FOLLOWS:
Section 1. Definitions. In addition to the
definitions of certain words set forth in the Recitals or
elsewhere in this License Agreement, the following words or
phrases shall have the meanings set forth below:
.
Contractor.
person or
contractor
The term "Contractor" refers
entity that Licensee retains as
to conduct the work (hereinafter
to any
general
defined)
RVPUB/WJP/645019
Exhibit "H-1"
CDC/2002-43
on the Grading Site, but
subcontractors of Contractor.
shall
not
refer
to
. Work. The term "Work" means and refers to the
grading of dirt on the Grading Site pursuant to the
work plan attached hereto as Exhibit "C." The Work
includes the right to water, grade and fence the
Grading Site. The Work shall not include the
construction or installation of any improvements on
the Grading Site other than fences and temporary
utilities without the prior written approval of the
Agency.
. Hazardous Substances. The term "Hazardous Substances"
means any pollutant, contaminant, waste and any toxic,
carcinogenic, reactive, corrosive, ignitable,
flammable or infectious chemical, chemical compound or
substance or otherwise hazardous wastes, toxic or
contaminated substances or similar materials,
including, without limitation, any quantity of
asbestos, urea formaldehyde, PCBs, radon gas, crude
oil or any fraction thereof, all forms of natural gas,
petroleum products, by-products or derivatives,
radioactive substances, methane, hydrogen sulfide or
materials, pesticides, waste waters, or sludges, any
of the above of which are subject to regulation,
control or remediation under any Environmental Laws
(as defined below) .
. Environmental Laws. The term "Environmental Laws"
means all applicable federal, state and local laws,
statutes, ordinances, rules, regulations, order and
judgments relating to the protection or clean-up of
the environment, the use, treatment, storage,
transportation, generation, manufacture, processing,
distribution, handling or disposal of, or emission,
discharge or other release or threatened release of
Hazardous Substances, the preservation or protection
of waterways, groundwater, drinking water, air,
wildlife, plants or other natural resources, the
health and safety of persons or property, or the
protection of the health and safety of employees, as
the same may be amended, modified or supplemented from
time to time, including, without limitation: the
Clean Air Act, as amended, 42 U.S.C. Section 7401 et
seq.; the Federal Water Pollution Control Act, as
amended, 33 U.S.C. Section 1251 et seq.; the Resource
RVPUB/WJP/645019
Exhibit "H-2"
CDC/2002-43
Conservation and Recover Act of 1976, as amended, 42
D.S.C. Section 6901 et seq.; the Comprehensive
Environment Response, Compensation and Liability Act
of 1980, as amended (including the Superfund
Amendments and Reauthorization Act of 1986, "CERCLA"),
42 D.S.C. Section 9601 et seq.; the Toxic Substances
Control Act, as amended, 15 D.S.C. Section 2601 et
seq.; the Occupational Safety and Health Act, as
amended, 29 D.S.C. Section 651, the Emergency Planning
and Community Right-to-Know Act of 1986, 42 D.S.C.
Section 11001 et seq.; the Safe Drinking Water Act, as
amended, 42 D.S.C. Section 300f et seq.; the
California Health and Safety Code (~ 25100 et seq.; ~
25249.5 et seq.; ~ 39000 et seq.); all comparable
state and local laws, laws of other jurisdictions or
orders and regulations; and any and all common law
requirements, rules and bases of liability regulating,
relating to or imposing liability or standards of
conduct concerning pollution or protection of human
health or the environment, as now or may at any time
hereafter be in effect.
Section 2. Effective Date of License Agreement. This
License Agreement shall take effect (the "Effective Date") on
the date of the last of the following to occur: (1) this
License Agreement is approved and executed by the Executive
Director of the Agency; (2) this License Agreement is executed
by the authorized representatives of Century and Olive Crest;
and (3) the Licensee has delivered to the Executive Director the
evidence of insurance as required under Section 12 (a) and the
completion and payment bonds to the Agency as set forth in
Section 12 (c) .
Section 3.
[Reserved - No text]
Section 4.
Covenants and Agreements.
(a) Licensee covenants
performance of the Work, it
contractors and subcontractors
Environmental Laws relating
Substances on the Grading Site.
and agrees that in the
and all of its employees,
will comply with all applicable
to the presence of Hazardous
(b) Licensee, at its expense, will obtain all
governmental approvals required for the performance of the Work
and will perform the Work substantially in compliance with the
RVPUB/WJP/645D19
Exhibit "H-3"
CDC/2002-43
grading plans ("Grading Plans") submitted to and approved by the
City of San Bernardino.
(c) Licensee covenants and agrees that in performing
the Work on the Grading Site it will use reasonable efforts not
to unreasonably interfere with the access of adjacent landowners
or their tenants to their property or the operations of adjacent
landowners or tenants upon such property.
(d) Licensee shall be responsible for the payment of
any possessory interest or ad valorem taxes that may be imposed
on the interest of Licensee under this License Agreement.
(e) Licensee shall comply with all applicable air
quality and other laws and regulations, as such may now exist or
later be enacted or adopted, in the performance of the Work,
including, without limitation, all applicable regulations
regarding fugitive dust and weed abatement.
Section 5. Indemnity. Licensee hereby agrees, at its
sole cost and expense, to indemnify, protect, hold harmless and
defend the Agency, with counsel selected and approved by the
Agency, from and against any and all claims, demands, damages,
losses, liabilities, obligations, penalties, fines, actions,
causes of action, judgments, suits, proceedings, costs,
disbursements and expenses, including, without limitation, fees,
disbursements and costs of attorneys, environmental consultants
and experts of any nature whatsoever (collectively, "Losses")
that may, at the time, be imposed upon, incurred or suffered by,
or asserted or awarded against, the Agency directly or
indirectly relating to the Work from:
(a) The failure of Licensee or Contractor or their
agents to perform the Work in accordance with Environmental Laws
and perform the Work substantially in accordance with the
approved Grading Plans;
(b) The failure of Licensee or Contractor or their
agents to complete, obtain, submit and/or file any and all
notices, permits, licenses and authorizations required by
Environmental Laws and the ordinances and regulations of the
City of San Bernardino in connection with the Work;
(c) Any investigation, inquiry, order, hearing,
action or other proceeding by or before any governmental agency
in connection with the violation of any environmental laws or
the ordinances and regulations of the City of San Bernardino by
RVPUB/WJP/645019
Exhibit "H-4"
CDC/2002-43
Licensee or
failure to
Environmental
Contractor or their
perform the Work
Laws and the approved
agents resulting from
in accordance with
Grading Plans; and
their
such
(d) Any claim or injury or death to persons or loss
or damage to property at or adjacent to the Grading Site
accruing or arising from the activities of Licensee on the
Grading Site during the period that Licensee is performing Work
at the Grading Site resulting from the actions of Licensee while
upon the Grading Site.
All obligations of Licensee under the indemnity given in
this section of this License Agreement are payable immediately
upon a determination by the appropriate authorities that such
obligations are due. Any amount due an payable hereunder to the
Agency by Licensee that is not paid wi thin thirty (30) days
after it is due, will be interest from the date it is due at the
rate of ten percent (10%) per annum. In no event shall Licensee
be obligated to indemnify the Agency for any Losses in the
nature of speculative, consequential or punitive damages in
connection with or arising from this License Agreement or the
transactions contemplated herein or obligated to indemnify the
Agency for any Losses associated with or in the nature of
"generator" liability. The indemnity given by Licensee in this
section or this License Agreement will survive termination of
this License Agreement.
Notwi thstanding any other condition of this License
Agreement to the contrary, Licensee does not assume any
liabili ty obligations with respect to Losses: (i) associated
wi th the cost of remediation in excess of One Hundred Thousand
Dollars ($100,000) of Hazardous Substances that are discovered
during the Work, except in connection with the negligence of
Licensee or the Contractor or any of them in handling such
Hazardous Substances; or (ii) caused by the negligence or
willful misconduct of the Agency or its agents or employees.
Section 6.
License to Enter Grading Site.
(a) Subject to the terms and conditions of this
License Agreement, as of the Effective Date, the Agency hereby
permits, authorizes and licenses Licensee, Contractor and their
contractors and their agents and subcontractors to enter the
Grading Site for the sole purpose of performing the Work in
accordance with the terms of this License Agreement. Obtaining
access to the Grading Site shall be the sole responsibility of
Licensee and Contractor.
RVPUB/WJP/645019
Exhibit "H-5"
CDC/2002-43
(b) The Agency Executive Director shall have the
right to order the suspension of the Work by written notice to
Licensee (the "Notice of Suspension") in the event that the
Agency Executive Director reasonably determines that Licensee
has failed to substantially comply with its material obligations
under this License Agreement. The Notice of Suspension shall
set forth: (i) the specific reason for suspension; and (ii)
permit Licensee not less than five (5) business days to cure
such failure prior to the effective date of the suspension;
(iii) indicate the number of days during which the suspension is
to be in effect; and (iv) indicate measures which Licensee shall
implement in order to correct or lift the suspension. Nothing
in this subsection shall be deemed to limit the right of the
Agency to terminate this License Agreement in accordance with
its rights under Section 16 below.
(c) LICENSEE ACCEPTS THE GRADING SITE IN ITS "AS IS"
CONDITION, WITH ALL FAULTS. LICENSEE ACKNOWLEDGES THAT THE
AGENCY MAKES AND HAS MADE NO WARRANTIES OR REPRESENTATIONS
REGARDING THE CONDITION OF THE GRADING SITE OR THE ABSENCE OF
HAZARDOUS SUBSTANCES THEREON. THE AGENCY SHALL HAVE NO
RESPONSIBILITY FOR DAMAGE TO OR LOSS BY THEFT OF PROPERTY OF
LICENSEE ON THE GRADING SITE.
(d) Licensee shall perform the Work in an efficient
and workmanlike manner. Any and all items or materials brought
onto the Grading Site by Licensee pursuant to this License
Agreement, including without limitation, any and all equipment
and improvements, shall, as between Licensee and the Agency, be
and remain the personal property of Licensee.
Section 7. Unpermi tted Events. Licensee shall not
cause or permit any Hazardous Substance to be stored, released
or discharged on, in, under or about the Grading Site in
connection with the Work in any manner as to violate any
Environmental Laws, or in any manner as to require remediation
or removal thereof under any Environmental Laws, including,
without limitation, leaks and discharges from trucks, equipment
and operations on the Grading Site. Solely for purposes of this
section, the storage, use, release or discharge of waste which
violates the preceding sentence shall be referred to as an
"Unpermitted Event." If Licensee discovers an Unpermitted
Event, then Licensee shall immediately remedy, repair and
remediate any damage or harm caused by such Unpermitted Event,
and shall notify the Agency of such Unpermitted Event as soon as
RVPUB/WJP/645019
Exhibit "H-6"
CDC/2002-43
possible, but in all cases within seven (7) calendar days of the
discovery by Licensee of such Unpermitted Event.
Section 8. Restoration of Grading Site. Except as
provided in Section 9 (c) below, by the date of the termination
of this License Agreement pursuant to Section 9(a) or (b) below,
Licensee at its sole cost and expense shall have removed all
equipment, improvements and debris brought onto or added to the
Grading Site by Licensee or its contractors. In addition, if
grading work is commenced prior to termination of this License
Agreement, Licensee shall be obligated to complete the work
described in the Grading Plans at its sole cost and expense.
All such work shall be completed by Licensee in a good and
workmanlike manner with reasonable diligence and in compliance
with all applicable Environmental Laws.
Section 9. Termination. This License Agreement shall
terminate upon the earliest to occur of the following:
(a) Written notice by
terminating this License Agreement;
Licensee
to
the
Agency
(b) Written notice by the Agency to Licensee in
accordance with its rights under Section 16 below (in which
event, the obligations under Section 8 above shall be performed
and completed within thirty (30) days after the termination
date); and
(c) Upon Licensee's acquisition of title to the
Grading Site.
Section 10. Survi val of Provisions. Notwithstanding the
expiration of the license granted by this License Agreement, the
parties' rights and obligations pursuant to Sections 5, 7, 8,
14, 15, 21 and 24 of this License Agreement shall survive, the
termination of this License Agreement and remain in full force
and effect.
Section 11. Access to the Grading Site During Term of
License. Subj ect to the Agency's compliance with all safety
requirements. Licensee, on reasonable advance written notice
from the Agency, shall allow the Agency access to the Grading
Site for inspection of the Work to assure substantial compliance
with the Grading Plan, and for reasonable testing for the
presence of Hazardous Substances and reasonable monitoring of
compliance by Licensee with Environmental Laws during the
performance of the Work. The Agency shall conduct such
RVPUB/WJP/645019
Exhibit "H-7"
CDC/2002-43
inspection, monitoring and testing in a manner that minimizes
interference with the Work.
Section 12. Insurance.
(a) Licensee or Contractor shall maintain or cause
their contractors to maintain appropriate insurance coverage for
all Work conducted pursuant to this License Agreement and will
cause the Agency to be named as an additional named insured
under all such policies. Prior to entering onto the Grading
Site and commencement of any of the part of the Work, Licensee
or Contractor shall submit and/or cause to be submitted to the
Agency reasonably acceptable evidence of the following insurance
coverage on behalf of Licensee or Contractor or their
contractors: (i) all statutorily required workers compensation
coverage; (ii) comprehensive or commercial general liability
(bodily injury and property damage) coverage, including the
following supplementary coverages: (a) contractual liability to
cover liability assumed under this License Agreement; (b)
product and completed operations liability insurance; (c) broad
form property damage liability insurance of not less than
$1,000,000, combined single limit per occurrence and naming the
Agency as an additional insured; and (iii) automobile bodily
inj ury and property damage liability insurance with limits of
liability of such insurance not less than $250,000 per
person/$500,000 per occurrence for bodily injury and $100,000
per occurrence for property damage, covering owned, non-owned
and hired vehicles used in the performance of the Work and
naming the Agency as an additional insured. Licensee or
Contractors' insurance, as the case may be, shall be primary
coverage and the Agency's insurance/self-insurance shall not be
contributory.
(b) The above insurance shall include a requirement
that the insurer provide the Agency within thirty (30) days'
written notice prior to the effective date of any cancellation
or material change of the insurance. The workers' compensation
insurance specified above shall contain a waiver of subrogation
against the Agency and an assignment of statutory lien, if
applicable. The comprehensive general liability and automobile
insurance specified above shall name the Agency as an additional
insured with respect to operations performed under this License
Agreement. Any physical damage insurance carried by Licensee
contractors on construction equipment, tools, temporary
structures and supplies owned or used by said contractors shall
provide a waiver of subrogation against the Agency.
RVPUB/WJP/645019
Exhibit "H-8"
CDC/2002-43
(c) Licensee shall deliver to the Agency surety bonds
issued by a California admitted surety company whose surety
instruments are rated in "Bests Insurance Guide," a current
edition, at a rating level acceptable to the City Department of
Development Services which names the City and the Agency as the
beneficiaries for the completion of the Work and the payment of
all materials, labor and workers' compensation insurance claims
in a principal sum of not less than one hundred twenty-five
percent (125%) of the estimated cost of the Work, as confirmed
by the City Engineer.
Section 13. Notice to the Parties. For the purpose of
this License Agreement, communications and notices among the
parties shall be in writing and shall be deemed to have been
given when actually delivered, if given by hand delivery or
transmi tted by overnight courier service, or if mailed, when
deposited in the United States Mail, First Class, postage
prepaid, return receipt requested and delivered to or addressed
as follows:
To the Agency:
Redevelopment Agency of the City
of San Bernardino
201 North "E" Street, Suite 301
San Bernardino, CA 92401
Attention: Executive Director
Phone: (909) 663-1044
Fax: (909) 888-9413
RVPUB/WJP/645019
To Licensee:
University Heights Country
View Estates LLC
Century Vintage Homes
1535 South "0" Street
Suite 200
San Bernardino, CA 92408
Attention: John Pavelak
Fax: (909) 381-0041
To Olive Crest LLC:
434 N. Second Avenue
Upland, CA 91786
Attn: Felix Robles, Jr.
Fax: (909) 949-6091
Copy to:
Stephan, Oringher, Richman
& Theodora
2029 Century Park East
6th Floor
Los Angeles, CA 90067-2907
Attn: Marc L. Benezra, Esq.
Fax No. (310) 551-0283
Exhibit "H-9"
CDC/2002-43
Section 14. All Costs Associated with Work Shall be Paid
by Licensee. As between Licensee and the Agency, all costs
incurred in connection with performance of any item of the Work
shall be the sole responsibility of and be paid by Licensee,
wi th no right of reimbursement from Agency under the agreement
referenced in the Recitals of this License Agreement or under
any circumstances. If any claim or lien is recorded or asserted
against the Grading Site, or any interest therein, or the Agency
for materials supplied or labor or professional services
performed directly or indirectly for Licensee or Contractor
relating to the Work, Licensee shall satisfy and discharge such
lien, at the sole cost and expense of Licensee, within thirty
(30) calendar days of notice to Licensee of the existence or
assertion of such claim or lien. If Licensee disputes the claim
or lien and, therefore, elects not to satisfy and discharge the
claim or lien, as required in the preceding sentence, then
Licensee shall, within thirty (30) calendar days of notice to
Licensee of the existence or assertion of such claim or lien,
ei ther: (i) file with the Agency a payment bond issued by a
California admitted surety that runs to the benefit of the
Agency in the amount of one hundred twenty-five percent (125%)
of the aggregate amount of the claim or lien stated by the party
asserting such claim or lien, conditioned for the payment of any
sum that the claimant or lien or may recover on the claim or
lien, together with any costs of suit incurred in enforcing such
claim or lien; or (ii) post with the Agency cash collateral or
other security reasonably acceptable to the Agency for payment
of such claim or lien.
Section 15. Conflicts/Disputes. If a conflict arises
between applicable regulations relating to the Work, the most
stringent regulatory requirement shall control. In the event
there is a disagreement in connection with the interpretation of
the requirements of any regulations, then the Agency and
Licensee will promptly endeavor in good faith to resolve such
disagreement. I f no resolution can be reached wi thin three (3)
days of such disagreement, then the interpretation of the Agency
(exercised in good faith consistent with a reasonable
interpretation of industry standards) shall apply. Except for
the matters to be addressed as set forth above, if a dispute
arises between the parties to this License Agreement, the
parties hereto agree to use the following procedure to resolve
such dispute, prior to pursuing other legal remedies:
parties
(a)
that
A meeting shall be
will be attended by
held promptly between the
individuals with decision-
RVPUB/WJP/645019
Exhibit "H-10"
CDC/2002-43
making authority, who will attempt in good faith to negotiate a
resolution of the dispute.
(b) If the parties are unsuccessful in resolving the
dispute under (a) above, they may:
1. agree to submit the matter to mediation or
binding arbitration or a private adjudicator
(if all parties so agree); or
2.
initiate litigation upon forty-five
days' advanced written notice to the
parties.
(45 )
other
(c) If any party should bring an action against the
other (s) to enforce the terms of this License Agreement, the
prevailing party shall be entitled to recover its reasonable
attorney's fees and costs, as determined by a court of competent
jurisdiction in said proceeding.
Section 16. Defaul t. If a party fails to fulfill any
material obligation of this License Agreement, the other party
may give written notice to that party of such failure, and in
the event that party fails to remedy such failure within thirty
(30) calendar days of receipt of such notice, the notifying
party may terminate this License Agreement by a second written
notice and/or pursue whatever other legal or equitable remedies
are available.
Section 17. Governing Law. The parties hereto
acknowledge that this License Agreement has been negotiated and
entered into in California. The parties hereto expressly agree
that this License Agreement shall be governed by, interpreted
under, and construed and enforced in accordance with the laws of
the State of California and if controlling, by the laws of the
Uni ted States. Further, the parties to this License Agreement
hereby agree that any legal actions arising from this License
Agreement shall be filed in California Superior Court, in the
Court of San Bernardino, Central District or the appropriate
federal court in such district.
Section 18. Partial Invalidity. If any term or provision
or portion of this License Agreement or the application thereof
to any person or circumstance shall, to any extent, be invalid
or unenforceable, the remainder of this License Agreement, or
the application of such term or provision or portion thereof to
persons or circumstances other than whose as to which it is held
RVPUB/WJP/645019
Exhibit "H-11"
CDC/2002-43
invalid or unenforceable, shall not be affected thereby, and
each such term and provision of this License Agreement shall be
valid and enforced to the fullest extent permitted by law.
Section 19. No Intent to Create Third Party
Beneficiaries. The parties intend that the rights and
obligations under this License Agreement shall benefit and
burden only the parties hereto, and do not intend to create any
rights in, or right of action to or for the use or benefit of
any third party including any governmental agency, who is not
one of the parties to this License Agreement.
Section 20. Waivers. No waiver of any breach of any
covenant or provision herein contained shall be deemed a waiver
of any preceding or succeeding breach thereof, or of any other
covenant or provision herein contained. No extension of the
time for performance of any obligations or act to be performed
herein shall be deemed to be an extension of the time for
performance of any other obligation or act to be performed under
this License Agreement.
Section 21. Professional Fees. If any action or suit by
a party hereto is brought against another party hereunder by
reason of any breach of any of the covenants, agreements or
provisions on the part of the other party arising out of this
License Agreement, the prevailing party shall be entitled to
have and recover of and from the other party all costs and
expenses of the action or suit, any appeals therefrom, and
enforcement of any judgement in connection therewith, including
reasonable attorneys' fees, accounting and engineering fees, and
any other professional fees resulting therefrom. For the
purposes of this Section 21, the words "reasonable attorneys'
fees" in the case of the Agency shall mean and include the
salaries and benefits of the lawyers employed in the Office of
the City Attorney, computed on an hourly basis, who may provide
legal services to the Agency in connection with the enforcement
of any provisions of the Agreement.
Section 22. Entire Agreement. This License Agreement
(including all Exhibits attached hereto) is the final
expressions of, and contains the entire agreement between, the
parties with respect to the subject matter hereof and supersedes
all prior understandings with respect thereto. This License
Agreement may not be modified, changed, supplemented or
terminated, nor may any obligations hereunder be waived, except
by written instrument signed by the party to be charged or by
its agent duly authorized in writing. The parties do not intend
RVPUB/WJP/645019
Exhibit "H-12"
CDC/2002-43
to confer any benefit hereunder on any person,
corporation other than the parties hereto.
firm or
Section 23. Construction. Headings at the beginning of
each paragraph and subparagraph are solely for the convenience
of the parties and are not a part of this License Agreement.
Whenever required by the context of this License Agreement, the
singular shall include the plural and the masculine shall
include the feminine and vice versa. This License Agreement
shall not be construed as if it had been prepared by one of the
parties, but rather as if all parties had prepared the same.
Unless otherwise indicated, all references to sections are to
this License Agreement. All exhibits referred to in this
License Agreement are attached hereto and incorporated herein by
this reference. If the date on which any action is required to
be performed under the terms of this License Agreement is not a
business day, the action shall be taken on the next succeeding
business day.
Section 24. No Admission. This License Agreement shall
not constitute, and no action taken pursuant to this License
Agreement shall constitute, any admission of fact, liability,
causation, responsibility or fault, or proportionate share
thereof, by any person with respect to the matters referred to
herein, including, without limitation, the presence of any
hazardous substances or other substances or chemicals in the
soil or groundwater anywhere in, on, under, at or about the
Grading Site. This License Agreement shall not be offered into
evidence or used by any party in any administrative, judicial or
alternative dispute resolution proceeding for any purpose,
except an action to enforce the terms of or for damages for
breach of this License Agreement.
Section 25. Counterparts. This License Agreement may be
executed in one or more counterparts, each of which shall be an
original, and all of which together shall constitute a single
instrument. This License Agreement may be executed by facsimile
signatures, and each facsimile counterpart, when taken together,
shall be deemed an original.
RVPUB/WJP/645019
Exhibit "H-13"
CDC/2002-43
IN WITNESS WHEREOF, Century and the Agency hereby execute
this License Agreement by the signatures of their authorized
representatives, as follows:
LICENSEE
UNIVERSITY HEIGHTS COUNTRY VIEW
ESTATES, LLC, a California limited
liability company
By: Century Crowell Communities, L.P.
a California limited partnership,
Its Manager
By: Century Homes Communities,
a California corporation,
General Partner
Date:
By:
John W. pavelak
President
Olive Crest LLC
a California limited liability
company
Date:
By:
Its:
AGENCY
Redevelopment Agency of the City
of San Bernardino,
a public body corporate and
politic
Date:
By:
Gary Van Osdel
Executive Director
RVPUB/WJP/645019
Exhibit "H-14"
CDC/2002-43
EXHIBIT "A"
Vicinity Map of the Site
RVPUB/WJP/645019
Exhibit "H-15"
CDC/2002-43
EXHIBIT "B"
Grading Site Description
RVPUS/WJP/645019
Exhibit "H-16"
CDC/2002-43
EXHIBIT "e"
The Work Plan
RVPUB/WJP/645019
Exhibit "H-17"