HomeMy WebLinkAboutCDC/2006-32
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RESOLUTION NO. CDC/2006-32
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RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF
THE CITY OF SAN BERNARDINO (1) APPROVING THE 2006
DISPOSITION AND DEVELOPMENT AGREEMENT ("DDA") BY AND
BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO ("AGENCY") AND CENTURY CROWELL COMMUNITIES,
LP, A CALIFORNIA LIMITED PARTNERSHIP ("DEVELOPER") AND
AUTHORIZING THE EXECUTIVE DIRECTOR OF THE AGENCY TO
EXECUTE SAID DDA RELATING TO THE SALE AND DEVELOPMENT OF
AGENCY PROPERTY LOCATED NORTH OF LITTLE LEAGUE DRIVE,
EAST OF 1-215 FREEWAY - APPROXIMATELY 79 ACRES IN THE CITY
OF SAN BERNARDINO ("PROPERTY") AND (2) MAKING CERTAIN
FINDINGS THERETO RELATED TO THE DEVELOPMENT OF THE
PROPERTY AND ADOPTING A MITIGATED NEGATIVE DECLARATION
RELATED TO SAID DDA
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WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency")
is a public body, corporate and politic existing under the laws of the State of California, Heal
and Safety Code 33101, and is charged with the mission of redeveloping blighted an
underutilized land; and
WHEREAS, the Agency is the current owner of that certain real property consisting 0
approximately 79 acres located north of Little League Drive, east of
16 "Property"); and
17 WHEREAS, Agency agrees to sell the Property and the Developer agrees to purchase th
18 Property in an AS IS condition for a purchase price ("Purchase Price") equal to not less
19 $4,100,000.00 or the fair market value, whichever is greater ("Fair Market Value"); and
20 WHEREAS, the Agency is entering into a 2006 Disposition and Development Agreemen
21 (the "DDA") with Century Crowell Communities, LP, (the "Developer") pursuant to which th
22 Agency will sell the Property to the Developer for the Fair Market Value of the Property; and
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WHEREAS, the DDA provides for the development of the Property to be developed int
approximately 279 single-family homes ranging in size between 1,900 square feet and 3,10
square feet on lots averaging 8,370 square feet but not less than 7,200 square feet (the "Project'')'
and
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WHEREAS, the Agency has prepared and published a notice of joint public hearing .
The San Bernardino County Sun Newspaper on June 5, and June 12, 2006 regarding th
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consideration and approval of the DDA and also published a Notice of Intent to adopt
Mitigated Negative Declaration related to the Project in accordance with the Californi
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Environmental Quality Act ("CEQA"); and
WHEREAS, pursuant to Health and Safety Code Section 33433(c), the Agency ma
transfer the Property to the Developer subject to the Mayor and Common Council (th
"Council") and Community Development Commission (the "Commission") adopting
Resolution authorizing the Agency to transfer the Property in light of the findings set fo
herein, pursuant to Health and Safety Code Section 33433; and
WHEREAS, the Agency has prepared a Summary Report pursuant to Health and Safety
Code Section 33433 that describes the salient points of the DDA and identifies the cost of the
DDA to the Agency; and
WHEREAS, the Agency is the "lead agency" for the Project, under CEQA, California
Public Resources Code Sections 21000, et seo., in accordance with Public Resources Code
Section 21067 and Title 14 California Code of Regulations Sections 15050 and 15051; and
WHEREAS, the Initial Study (IS) and the Attachment to the Staff Report was circulate
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on May 9, 2006, and 7 public comments were received; and
WHEREAS, the IS identified potentially significant effects on the environment i
connection with the proposed Project and identified mitigation measures to reduce thes
potentially significant effects to less than significant levels; and
WHEREAS, based on the potential significant affects on the environment, the Mitigatio
Monitoring and Reporting Program (the "Monitoring Program"), Attachment to the Staff Repo
relative to the DDA between the Agency and the Developer to mitigate the potentially significan
affects on the environment has been prepared, and the Developer has agreed to implement suc
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mitigation measures pursuant to said Monitoring Program; and
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WHEREAS, the Agency intends on adopting a Mitigated Negative Declaration wi
respect to the Project in accordance with the provisions of CEQA and the CEQA Guideline
developed thereunder; and
WHEREAS, it is appropriate for the Commission to take action with respect to th
disposition of the Property to the Developer by the Agency and to approve the DDA as set fo
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in this Resolution.
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NOW, THEREFORE, COMMUNITY DEVELOPMENT COMMISSION OF THE CITY 0
SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS FOLLOWS:
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Section 1.
On July 24, 2006, the Commission conducted a full and fair joint publi
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hearing with the Council, relating to the disposition of the Property from the Agency to th
Developer and the development thereof pursuant to the DDA. The minutes of the Agenc
Secretary for the July 24, 2006 meeting of the Commission shall include a record of al
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communication and testimony submitted to the Commission by interested persons relating to th
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public hearing and the approval of the DDA and the adoption of the Mitigated Negativ
Declaration and Monitoring Program.
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Section 2.
The Commission hereby receives and approves the 33433 Report and th
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other written materials submitted to the Commission at the meeting at which this Resolution i
adopted. The 33433 Report contains information required under Health and Safety Code Sectio
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33433.
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Section 3.
This Resolution is adopted in satisfaction of the provisions of Health an
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Safety Code Section 33433 relating to the disposition and the sale of the Property by the Agenc
to the Developer on the terms and conditions set forth in the DDA. A copy of the DDA in th
form submitted at this joint public hearing is on file with the Agency Secretary.
Commission hereby finds and determines that the disposition and redevelopment of the Propert
by the Developer in accordance with the DDA is consistent with the Agency's Five Ye
Implementation Plan and that the consideration payable by the Developer to the Agency as th
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purchase price for the Property, pursuant to the DDA, is an amount that is not less than the F .
2 Market Value of the Property.
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Section 4.
The Commission hereby approves the DDA. The Executive Director i
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hereby authorized and directed to execute the DDA on behalf of the Agency together wi
nonsubstantive and conforming changes as may be recommended by the Executive Director an
Agency Counsel. The Executive Director is hereby authorized to take all appropriate actions
set forth in the DDA to implement the disposition and redevelopment of the Property.
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Section 5.
Prior to the opening of the joint public hearing at which this Resolution is
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adopted, the Commission received the IS and the Monitoring Program for the Project and the
Commission hereby adopts the Mitigated Negative Declaration and authorizes and directs the
filing of the Notice of Determination with the County Clerk.
The Resolution shall become effective immediately upon its adoption.
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RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF
THE CITY OF SAN BERNARDINO (1) APPROVING THE 2006
DISPOSITION AND DEVELOPMENT AGREEMENT ("DDA") BY AND
BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO ("AGENCY") AND CENTURY CROWELL COMMUNITIES,
LP, A CALIFORNIA LIMITED PARTNERSHIP ("DEVELOPER") AND
AUTHORIZING THE EXECUTIVE DIRECTOR OF THE AGENCY TO
EXECUTE SAID DDA RELATING TO THE SALE AND DEVELOPMENT OF
AGENCY PROPERTY LOCATED NORTH OF LITTLE LEAGUE DRIVE,
EAST OF 1-215 FREEWAY - APPROXIMATELY 79 ACRES IN THE CITY
OF SAN BERNARDINO ("PROPERTY") AND (2) MAKING CERTAIN
FINDINGS THERETO RELATED TO THE DEVELOPMENT OF THE
PROPERTY AND ADOPTING A MITIGATED NEGATIVE DECLARATION
RELATED TO SAID DDA
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
10 Community Development Commission of the City of San Bernardino at a it. regular meeting
11 thereof, held on the 24th day of July
, 2006, by the following vote to wit:
12 Commission Members:
Abstain
Absent
Aves
Navs
13 ESTRADA
14 BAXTER
15 MCGINNIS
16 DERRY
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KELLEY
JOHNSON
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MCCAMMACK
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Secretary ,
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21 The foregoing resolution is hereby approved this d.-1 day of
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July
,2006.
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atric J. Morris, Ch n
C unity Development Commission
of the City of San Bernardino
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Approved as to Form and Legal Content:
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By: \~
Agency sel
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DISPOSITION AND DEVELOPMENT AGREEMENT
between
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
a public body, corporate and politic
and
CENTURY CROWELL COMMUNITIES, LP
a California limited partnership
Dated as of July 24, 2006
This DISPOSITION AND DEVELOPMENT AGREEMENT ("Agreement") is reference dated as
of July 24, 2006, between the Redevelopment Agency of the City of San Bernardino, a public body
corporate and politic ("Agency") and Century Crowell Communities, LP, a California limited partnership
("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 and Developer.
ARTICLE I
TERMS AND CONDITIONS
Section l.0l. Purpose of Agreement. The purpose of this Agreement is to effectuate
various redevelopment plans of the Agency by causing the residential development of an approximately
two hundred seventy-nine (279) buildable lot single family housing tract (the "Site"). The Site is located
in the City of San Bernardino, California (the "City").
(a) The Site is a total of approximately eighty-two (82) acres. Approximately seventy-nine
(79) acres of the Site (the "Agency Parcel") will be conveyed by the Agency to the Developer in
accordance with the terms and conditions of this Agreement; the Developer shall attempt to acquire,
subject to the Agency's assistance as hereinafter described, the remaining approximately three (3) acre
portion of the Site from the San Bernardino County Flood Control District as part of the "SBCFCD
Parcel" described in Section l.0l.l (a) below. A legal description of the entire Site is attached hereto as
Exhibit A and incorporated herein by this reference. A Site Map depicting the relative locations of the
Site, the SBCFCD Parcel, and the Community Park (as defined in subparagraph (b) below) is attached
hereto as Exhibit A-2 and incorporated herein by this reference. The development of the Site pursuant to
this Agreement is in the vital and best interest 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.
(b) Immediately adjacent to the Agency Parcel is an approximately twenty-one (21) acre
parcel ofland owned by the Agency and/or the City. Subject to the Agency's ability to obtain, at its cost,
an approximately nine (9) acre parcel of adjacent land from the San Bernardino County Flood Control
District, this twenty-one (21) acre parcel shall be combined with the nine (9) acre portion and dedicated to
the City for the City's development of an approximately thirty (30) acre community park (the
"Community Park"). The approximately thirty (30) acre parcel is hereinafter referred to as the
"Community Park Parcel." Prior to the Close of Escrow, the Developer shall cause, at its expense, the
preparation of a Master Parcel Map accomplishing the following: (I) the creation of the Site from the
Agency Parcel and an approximately three (3) acre portion of the SBCFCD Parcel, and (2) the creation of
the Community Park Parcel from the combination of the twenty-one (21) acre Agency/City-owned parcel
and the approximately nine (9) acre portion of the San Bernardino County Flood Control District-owned
property as described above. The final acreage and configuration of the Community Park Parcel shall be
subject to the Agency's and City's reasonable review and approval, which approval shall be given
provided that the Community Park Parcel as depicted on the Master Parcel Map substantially conforms
with the descriptions and requirements of this Agreement. The Agency shall cooperate, and shall use
reasonable good faith efforts to cause the City to cooperate, in the preparation of the Master Parcel Map,
including, without implied limitation, obtaining such consents as may be required from the City, Agency,
and SBCFCD to process the Master Parcel Map.
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Section 1.01.1. San Bernardino County Flood Control District Property.
(a) The parties acknowledge that, as of their execution of this
Agreement, certain property adjacent to the Agency Parcel ("SBCFCD Parcel") is owned by the San
Bernardino County Flood Control District ("SBCFCD"). A legal description of the SBCFCD Parcel is
attached hereto as Exhibit A-I and is shown on the Site Map. The SBCFCD Parcel is approximately three
(3) acres in size. Adjacent to the SBCFCD Parcel is certain other SBCFCD-owned property as to which
the Deyeloper desires to acquire the right ("SBCFCD License") to (i) construct certain flood control
improvements of benefit to the Site and to be dedicated to SBCFCD, and (ii) in the course of the
construction of such flood control improvements, to export material from the property subject to the
SBCFCD License to assist in the grading of the Site. The SBCFCD Parcel and the SBCFCD License
shall be collectively referred to hereafter as the "SBCFCD Property". The Developer intends to enter into
negotiations with SBCFCD with respect to the terms and conditions under which the Developer will
acquire the SBCFCD Property. The acquisition of the SBCFCD Property is essential to the development
of the Project.
(b) In implementation of Section 3.01(bb), and provided that Agency is
not required to incur any material financial expense with respect thereto, at the Developer's request
Agency staff and Agency special counsel shall meet and confer with Developer and SBCFCD
representatives regarding the terms and conditions of the Developer's acquisition of the SBCFCD
Property. The Agency shall also exercise other reasonable good faith efforts to cause SBCFCD to convey
the SBCFCD Property to the Developer, at no material financial cost to the Agency and on terms and
conditions reasonably acceptable to the Developer.
Section 1.02. The Site and Scope of Development. The development of the Site will
include a total of approximately two hundred seventy-nine (279) subdivided residential lots. Each
residential lot in the Site shall be referred to hereafter as a "Site Lot" and, subject to the City's approval of
a general plan amendment and zoning code amendment permitting the same (collectively, the "Density
Approvals"), shall be a minimum of 7,200 gross square feet in size. Each residential dwelling unit
constructed on a Site Lot shall be referred to hereafter as a "New Home." Promptly following the Closing
of Escrow, the Developer shall undertake the development, improvement, marketing and sale of the Site
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 body, corporate and politic, exerclsmg
governmental functions and powers and organized and existing under Chapter 2 of the Community
Redevelopment Law of the State of California ("CRL") (Health and Safety Code Section 33020, et seq.)
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 Century Crowell Communities, LP, a California
limited partnership. The principal office and mailing address of the Developer for purposes of this
Agreement is: 1535 South "D" Street, Suite 200, San Bernardino, California 92408.
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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 or powers under this Agreement except as expressly set forth herein.
Except as set forth in Section 3.04 or the last paragraph of this Section 1.04, 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 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. 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, 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) 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 in the aggregate exceed a disposition or change
of more than a forty-nine percent (49%) interest of the ownership of the Developer.
Anything in this Section 1.04 or elsewhere in this Agreement to the contrary
notwithstanding, the Developer shall at any time have the right to sell, transfer, assign and convey, with
the Agency's consent, which will not be withheld or conditioned on any grounds, the entirety or a portion
of the Developer's right and interest in this Agreement and/or the Site to any entity or entities in which
the Developer is the managing member or for whom the Developer serves as the development
management company.
Section 1.05. Benefit to the City and the Agency. The Agency has determined that the
disposition of the Site to the Developer in accordance with this Agreement implements the redevelopment
goals and policies of the Agency, will result in the revitalization of economically and physically blighted
property, and, to the Agency's knowledge, is consistent with all applicable local, state and federal laws
and regulations.
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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
EXHIBIT A-I
EXHIBIT A-2
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
EXHIBIT F
EXHIBIT G
EXHIBIT H
EXHIBIT I
EXHIBIT J
Legal Description of the Site
Legal Description of SBCFCD Parcel
Site and Vicinity Map
Scope of Development (Section 1.02)
Form of Agency Grant Deed
Schedule of Performance (Section 3.01(f))
Project Pro Forma (Section 2.16(14))
Form of Certificate of Completion (Section 3.07)
Notice of Agreement (Section 8.01)
Form of Temporary License Agreement for the Grading of and
Improvement of Land (Section 2.22(b))
Developer Note (Section 2.02(b))
Infrastructure Eligible for Public Financing District (Section
2.09(a))
ARTICLE II
DISPOSITION OF SITE
Section 2.0 I. Purchase and Sale of the Agencv Parcel. Subject 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 Agency Parcel as herein set forth, the Agency hereby agrees
to sell and the Developer hereby agrees to purchase all of the right, title and interest of the Agency in the
Agency Parcel.
Section 2.01.1 Purchase Price for the Agencv Parcel. (a) Agency agrees to sell the
Agency Parcel and the Developer agrees to purchase the Agency Parcel in an AS IS CONDITION for a
purchase price ("Purchase Price") equal $4, I 00,000.00. The final engineering study shall determine the
boundaries of the Agency Parcel as shall be prepared by the Developer at the Developer's sole expenses
and shall be completed no less than thirty (30) days prior to the Close of Escrow and a copy thereof shall
be provided to the Agency for its reasonable review and approval, which approval shall be given provided
that such engineering study has been completed with reasonable and customary surveying and
engineering standards. Such final engineering study shall be deemed to be the Survey as required
pursuant to Section 2.15 hereof.
(b) The Agency and the Developer agree that this Site shall be sold to the Developer for the
greater of $4,100,000.00 or its fair market value, 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. The Developer may elect to obtain an appraisal solely for the purpose of
verifying that the Purchase Price as set forth herein is not less than the fair market value of the Agency
Parcel taking into account the development costs and infrastructure requirements associated with the
development of the Site and the obtaining of the greater density to allow for the two hundred seventy-nine
(279) New Homes on the Site. In determining the "fair market value" of the Site, the appraiser retained
by the Developer shall apply industry standard practices relative to the costs of development and the
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intended number of New Homes to be built thereon. Under no circumstances shall the Purchase Price be
less than the $4, 100,000.00 figure set forth herein as the minimum price to be paid by the Developer for
the Agency Parcel constituting the Site.
Section 2.01.2 Additional Consideration. In addition to the Purchase Price
identified in Section 2.01.1 above, the Developer shall pay to the Agency, a "Participation Fee" as
additional purchase consideration, as follows:
(a) Payment of Participation Fee Bv Developer to the Agencv.
(I) The Participation Fee is a sum payable by the Developer to
the Agency from a special source of Developer funds described in this Section 2.01.2, to the extent that
such funds are available therefore, as additional consideration for the agreement by the Agency to convey
the Agency Parcel to the Developer. The Participation Fee is a sum equal to twenty percent (20%) of the
"Profit of the Development", as defined below. The Participation Fee shall be due and payable to the
Agency from the Profit of the Development, if any, realized by the Developer upon the occurrence of the
following events:
(A) the sale, transfer, assignment or other hypothecation of the
interest of the Developer in all or a portion of the Site Lots to
a third party, other than to "New Home" buyers as this term
is defined in Section 3.01(a), or except for a permitted
construction-related financing authorized by Section 3.05;
and/or
(B) within one hundred and twenty (120) days following the
close of the last "New Home" escrow, for the sale of all of
the completed New Homes in the Site and the Agency's
receipt of the written accounting described in Section
2.01.2(c);
(C) within four hundred (400) days following the distribution of
the Participation Fee as set forth in Section 2.01.2(a)(1 )(B),
the Developer shall provide the Agency with a final
accounting of the unexpended balance of New Home
warranty reserve account for the Project, and if any balance
may then remain in such account, such balance shall be
deemed to be "Profit of the Development";
(2) As used in this Section 2.01.2., the following words and phrases
shall mean:
"Developer's General and Administrative Expenses" means and refers to the sum of
three percent (3%) of the gross sales price of a completed New Home paid at the close of each New Home
escrow.
"Profit of the Development" means and refers to the gross amount realized by the
Developer, if any, upon the sale or transfer of its interest in this Agreement or in the Site, after deducting
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the Project Costs incurred by the Developer during the course of the acquisition and development of the
Site and after deducting Developer's General and Administrative Expenses.
"Project Costs" means and refers to the aggregate of the following customary and
commercially reasonable costs incurred by the Developer in connection with the acquisition and
development of the Site:
(A) the Purchase Price, brokerage fees, commissions, any amounts paid to the
Agency which are not credited to the Purchase Price, any amounts paid in
connection with the acquisition of the SBCFCD Property, and any other
reasonable and customary costs incurred by the Developer in connection
with the acquisition of the Site;
(B) the cost of Site preparation and Site improvement, including fill material
import and mitigation costs related to the replacement of San Bernardino
Kangaroo Rat (and/or other state or federal listed threatened or endangered
species) habitat replacement or loss mitigation;
(C) architectural, engineering, legal, accounting, consulting, and other fees paid
in connection with the planning, execution and financing of the
development of the New Homes on the Site, including the cost of furnishing
model homes;
(D) the costs of other necessary studies, surveys, plans and permits not
including in (C) above;
(E) the cost of insurance, interest and financing for the construction of the New
Homes, surety and completion bonds, property taxes, and special
assessment costs incurred following the Close of Escrow during the course
of construction of the New Homes on the Site;
(F) the cost of construction of the New Homes on the Site;
(0) the cost of all other improvements to the Site, including landscaping,
fencing, site preparation, the Community Park Parcel grading work as
described in Section 3.02, and utilities paid for by the Developer;
(H) indirect costs of the Developer for the construction of the New Homes,
including the cost of a construction superintendent, project manager and
construction security by private patrol services;
(I) moneys actually expended from the New Home post sale warranty account
established by the Developer at the time of sale of each New Home in the
amount of one and one-tenths of a percent (1.1 %) of the gross sales price of
the New Home;
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(1) the cost of other extraordinary Project-related construction and/or marketing
expenses of the Developer approved by the Executive Director in his
reasonable discretion which are based upon unusual or unforeseen
conditions associated with the completion of the Project;
(K) A New Home sales commission payable to the Developer equal to two
percent (2%) of the gross sales price paid by a New Home buyer for each
completed New Home, plus the New Home sales marketing and advertising
costs paid by the Developer, plus the costs payable by the Developer as
escrow costs, fees and charges to the escrow agent who administers each
New Home escrow, plus the costs of hosts employed in Developer's sales
office(s) for the Project, plus real estate sales commissions paid by the
Developer, if any, to third party real estate brokers at the time of sale of
each New Home;
(L) a developer fee payable to the Developer or its financial investors equal to
one percent (1%) of the gross sales price paid by New Home buyer for each
completed New Home;
(M) a loan origination fee equal to one-half of one percent (0.50%) of the loan
amount of each New Home purchase which is financed by Century
Preferred Mortgage or its successor.
(b) From and after the Close of Escrow until the Participation Fee is paid in full to the
Agency, the Developer shall provide the Agency with the following financial reports relating to the Site:
(i) within sixty (60) calendar days of the end of each calendar quarter, a
report on the status of the Project, which shall include, at a
minimum, the trial balance, general ledger, cash receipt journal, cash
disbursements journal, sales journal, job cost summary compared
with the Project pro-forma, bank statement, and quarterly profit and
loss statement, and schedule of cash flows and a weekly sales report
for New Homes, as applicable; and
(ii) within one hundred twenty (120) calendar days after the end of each
fiscal year, an annual unaudited financial statement, prepared by the
Developer for the project at the Site, or, if obtained by the
Developer, an audited financial statement.
(c) At the times indicated in Section 2.01.2(a)(I)(A) or (B) the Developer shall provide
the Agency with a suitably detailed written accounting prepared in accordance with generally-accepted
accounting principles of the amount of the Participation Fee which is due and payable to the Agency
pursuant to this Section 2.01.2. The Agency shall have the right to inspect the business and financial
records of the Developer as related to these calculations and verification of the amount of the Participation
Fee as may be payable to the Agency, if any. The Developer shall provide the Agency (and its auditors or
accountants) with reasonable access to such business records upon reasonable prior notice from the
Agency. The Agency shall pay for its copying and accounting costs associated with inspection of the
business records provided by the Developer to the Agency for inspection.
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(d) The parties understand and acknowledge that the development of the Project
involves substantial business risks, and there is no assurance that the Project will be profitable or can be
completed with respect to some or all of the Site Lots. The parties further acknowledge that this Section
2.01 has been prepared in accordance with Developer's experience and its knowledge of the Project ofthe
Effective Date of this Agreement. Changes to the Project Pro Forma (attached as Exhibit E) as permitted
by Section 2. I 7(c) may have an impact on the Profit of the Development and, accordingly, the Agency's
Participation Fee.
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 Fifty Thousand Dollars ($50,000)
("Initial Deposit") with Fidelity National Title, 3602 Inland Empire Boulevard, #A-llO, Ontario,
California, 92408 attn: Kelly Simoneau ("Escrow Holder"), Escrow # 171639-TC (the "Escrow").
Within five (5) calendar days following delivery of the Due Diligence Approval Certificate, the
Developer shall deposit the additional sum of One Hundred Thousand Dollars ($100,000) ("Additional
Deposit") with the Escrow Holder. As used herein, the term "Deposit" means the Initial Deposit at all
times prior to the Developer's deposit of the Additional Deposit and shall mean the Initial Deposit and the
Additional Deposit at all times after the Developer's deposit of the Additional Deposit. 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 with all interest earned thereon, less costs of closing payable by Developer, shall be
applied to the Purchase Price, as further provided for under this Agreement.
(b) Pavment of Balance of Purchase Price. The Purchase Price shall be tendered by the
Developer to the Escrow Holder on the Closing Date (as hereinafter defined) as follows:
(i) The amount of$600,000.00 ofthe Purchase Price shall be paid by
the Developer's delivery of an unsecured promissory note ("Note")
substantially in the form as that attached hereto as Exhibit I for
delivery to the Agency upon the Close of Escrow; and
(ii) The balance of the Purchase Price, less the Deposit, shall be paid in
cash or immediately available funds to the Escrow Holder pursuant
to Section 2.07(4) for disbursement to the Agency upon the Close of
Escrow.
(c) Return of Deposit. In the event that (i) the Agency or the Developer terminates this
Agreement pursuant to Section 2.21; or (ii) the Developer does not deliver its Due Diligence Approval
Certificate (as hereinafter defined) to the Escrow Holder pursuant to Section 2.11 and this Agreement is
terminated; or (iii) the Developer's conditions precedent to the Close of Escrow described in Section 2.17
are not satisfied (unless satisfaction has been waived in writing by the Developer) and this Agreement is
terminated; or (iv) as described in Section 2.27, either the Site suffers damage prior to the Close of
Escrow, or an action of eminent domain is commenced by a govemmental entity with respect to the Site
prior to the Close of Escrow, and the Developer elects to terminate this Agreement pursuant to Section
2.27; or (v) 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.
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Section 2.03. Opening and Closing of Escrow.
(a) The transfer and sale ofthe Agency Parcel shall take place through an Escrow to be
administered by the Escrow Holder. Notwithstanding 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.
(c) Provided that the Developer has delivered its Due Diligence Approval Certificate
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), then the Closing Date of the Escrow shall occur within twenty (20)
months after the end of the Due Diligence Period, subject to satisfaction or written waiver of the
conditions set forth in Section 2.17 and Section 2.18. 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.
Section 2.04. Escrow Instructions. This Agreement also constitutes escrow instructions of the
parties to the Escrow Holder. Additionally, 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 deed for the Agency Parcel in the
form attached hereto as Exhibit C ("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
Agency Parcel to the Developer. 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
Developer's benefit AL T A standard coverage policy of title insurance for the Agency Parcel. The
foregoing policy of title insurance is hereinafter referred to as the "Title Policy" and shall be issued by
Fidelity National Title, Riverside, California ("Title Company"). The insured value of the Title Policy
shall be in an amount equal to the Purchase Price, together with such endorsements to such policy as may
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reasonably be requested by Developer. The Title Policy shall insure that fee title to the Agency Parcel
shall be vested in the Developer (or Developer's assignee or nominee) and subject only to:
(I) non-delinquent real property taxes;
(2) non-monetary title exceptions approved by the Developer pursuant to Section 2. I3
below;
(3) applicable provisions of the subdivision map for the Site;
(4) the provisions of the Agency Grant Deed for the Agency Parcel;
(5) the applicable provisions of this Agreement; and
(6) such other title exceptions, if any, resulting from documents being recorded or
delivered through Escrow.
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 deliver to the
Escrow Holder (unless indicated to be delivered directly to the Developer) copies of the following
documents and other items:
(I) a certificate of non-foreign status (the "Non-Foreign Affidavit") executed by the
Agency, in the customary form provided by the Escrow Holder, 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 delivered previously by the
Agency to the Developer pursuant to Section 2.08 below; provided, however, that if
the Agency delivers any documents or materials which have not been previously
delivered by the Agency to the Developer pursuant to Section 2.08, then the
Developer shall have the right, in its sole and absolute discretion, and without cost,
expense or liability, to delay the Close of Escrow until such time as the Developer
has had the opportunity to review and analyze any such new information, for a
period not to exceed thirty (30) days. If the Developer concludes, in its sole but
reasonably exercised discretion, that any new information contained in the
documents or materials not previously provided by the Agency to the Developer
pursuant to Section 2.08 materially increases the risk or expense associated with the
development of the Site, then the Developer may rescind any Due Diligence
Approval Certificate which it may have theretofore provided and the parties' rights
and obligations shall be as set forth in Section 2.02(c);
(3) two (2) duplicate original copies of the estimated Closing Statement described in
Section 2.23, duly executed by the Agency;
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(4) evidence of the existence, organization and authority 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 Agency
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.
(3) the Note and 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.
(4) the Purchase Price, less the Deposit and less the principal amount of the Note.
Section 2.08. Inspections and Review.
(a) Due Diligence Items. Within five (5) calendar days after the execution of this
Agreement, the Agency shall deliver to the Developer true, correct and complete copies or originals of the
following documents and items (collectively, "Due Diligence Items"), which Agency shall warrant and
represent as having been fully paid for and upon which Developer may rely:
(i) copies of all soils, seismic, geologic, drainage, toxic waste, engineering,
environmental and similar type reports and surveys (including, but not
limited to, any environmental site assessments of the Agency Parcel),
surveys, grading plans, improvement plans (including "as-built" plans and
specifications), schematics, blueprints and working drawings for the
improvement of the Agency Parcel, if any, in the possession or control of
the Agency and correspondence relating thereto, if any, within the Agency's
(or its agents' or contractors') possession or control.
(ii) notices of violations, including, but not limited to, zoning ordinances,
development or building codes affecting the Agency Parcel in the Agency's
possession or control.
(iii) written disclosure of any legal or other matters affecting the use or
condition of the Agency Parcel within the knowledge of the Agency.
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(iv) a natural hazards disclosure statement on the Agency Parcel, if any,
otherwise, Escrow Holder is directed to order the same at Agency's
expense.
(v) written information regarding the existence of critical habitat for any state
or federally listed endangered or threatened species upon the Agency
Parcel, including the results of any prior studies or evaluations of the
presence of one or more endangered or threatened species upon or in the
vicinity of the Agency Parcel.
(b) Certain Definitions. For the purpose of this Agreement, the terms set forth below
shall have the following meaning:
(i)
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"environmental laws" means all federal, state, local, or municipal laws,
rules, orders, regulations, statutes, ordinances, codes, decrees, or
requirements of any government authority regulating, relating to, or
imposing liability 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 CCERCLA") [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 ("HMT A") [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.]; the Solid
Waste Disposal Act [42 USC Section 6901 et seq.]; the Surface Mining
Control and Reclamation Act [30 USC Section lOl et seq.] the Emergency
Planning and Community Right to Know Act [42 USC Section I lOOI et
seq.]; the Occupational Safety and Health Act [29 USC Section 655 and
657]; the California Underground Storage of Hazardous Substances Act [H
& S C Section 25288 et seq.]; the California Hazardous Substances Account
Act [H & S C Section 25300 et seq.]; the California Safe Drinking Water
and Toxic Enforcement Act [H & S C Section 24249.5 et seq.] the Porter-
Cologne Water Quality Act [Water Code Section 13000 et seq.] 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 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.
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(ii) "hazardous substances" includes without limitation:
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, HMT A, or under
any other environmental law; and
those substances listed in the United States Department of Transportation
(DOT)Table [49 CFR 172.1 01], or by the EPA, or any successor agency, as
hazardous substances [40 CFR Part 302]; and
other substances, materials, and wastes that are or become regulated or
classified as hazardous or toxic under federal, state, or local laws or
regulations; and
any material, waste, or substance that is
(I) 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.
Section 2.09. Due Diligence Investigation of the Site.
(a) Within one hundred twenty (120) calendar days from and after the Opening of
Escrow, and subject to the extensions of time set forth below in Section 2.16, the Developer shall have the
right to examine, inspect and investigate the Agency Parcel (the "Due Diligence Period") to determine
whether its condition is acceptable to the Developer in its sole and absolute discretion.
During the Due Diligence Period, the Agency shall permit the Developer, its engineers,
analysts, contractors and agents to conduct such physical inspections and testing of the Agency Parcel 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 Agency Parcel may be conducted by the Developer
and/or its agents during any normal business hours upon seventy-two (72) hours prior written notice
delivered to the Agency, which notice will include a description of any investigation work or tests to be
conducted by the Developer on the Agency Parcel. 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.
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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, including federal and state
laws pertaining to the presence or protection ofthreatened or endangered species, other United States Fish
and Wildlife Service and/or California Department of Fish and Game requirements, United States Army
Corp of Engineer Section 404 permit requirements, and Regional Water Quality Control Board
requirements, 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 Agency Parcel. The Agency shall have the right, but not the obligation, to accompany the
Developer during such investigations and/or inspections.
(b) Immediately following the commencement of the Due Diligence Period, the
Developer may, at its expense, cause the preparation of a preliminary environmental site assessment
("ESA") to determine the potential presence of hazardous substances or other unacceptable environmental
conditions upon the Site. If the 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. Financing of the Public Improvements.
(a) Public Financing District. The Developer and the Agency have preliminarily
identified certain public infrastructure items which will be required in connection with the development of
the Project, which items are identified on the attached Exhibit J. Exhibit J does not, however, represent a
comprehensive list of all the public improvements which will be required in connection with the
development of the Project. The Developer and the Agency recognize that, in order to develop a
comprehensive list of public improvements required to be developed in connection with the Project and
potential financing methods, the Project must first be designed and submitted for review and approval by
the City in accordance with the provisions of the City's Municipal Code and the California Environmental
Quality Act (Public Resources Code Section 21000, et seq.). The parties acknowledge that the City will
place certain conditions and requirements on the Project to provide for the construction and dedication of
all necessary local and regional public improvements required in connection with the development of the
Project. Once the City has identified those local and regional public improvements, the Developer shall,
at its expense, cause the preparation of a financing plan for such public improvements, including those
described in Exhibit J. The Developer anticipates that such financing plan shall include one or more
public financing districts necessary to aid in financing of costs related to public infrastructure
improvements and/or fees related thereto. The Agency hereby agrees to take all reasonable actions and
steps to support and cooperate with Developer in Developer's request to the City that the City form a
municipal financing, special tax or assessment, community facilities, or other districts and to finance such
improvements through such districts, including but not limited to recommending and cooperating with
and using reasonable good faith efforts to cause the City to support and approve formation of one or more
municipal financing, special tax or assessment, communities facilities, or other districts and the financing
of the public infrastructure improvements required for development of the Project. The Developer
acknowledges that the City will retain the sole discretion to proceed with such municipal financing district
and will also retain the full and absolute discretion to select and contract with all consultants, advisors,
attorneys, underwriters, and appraisers for such municipal financing, and that municipal bonds will only
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be issued upon credit criteria, lien to value ratios comprising a minimum ratio at 3: I, or such higher
amount reasonably determined by the City, and funded debt service reserves reasonably acceptable to the
City.
(b) Reimbursement Agreements. It shall be condition to the Closing that the City and
Developer have approved one or more reimbursement agreements in accordance with Government Code
Section 66485, et seq, providing for the reimbursement to the Developer of those costs and expenses
(including any special taxes or special assessments) incurred by the Developer with respect to that portion
or percentage of the public improvements required in connection with the development of the Project
which are of excess size, capacity, number, or length for the benefit of property not within the Site,
including that certain primary access road and connector to Cable Creek Road as shown on the Site Map.
The reimbursement agreements shall be reasonably acceptable in form and substance to the City and the
Developer.
Section 2.11. Due Diligence Approval Certificate. Prior to the expiration of the Due Diligence
Period and (subject to the extensions of time set forth in Section 2.16 or otherwise in writing between the
Agency and the Developer), the Developer shall complete its investigation of the physical and
environmental conditions of the Agency Parcel and deliver an approval certificate signed by the
Developer (the "Due Diligence Approval Certificate") to the Escrow Holder which either:
(i) indicates that the Developer accepts the physical and environmental conditions of
the Agency Parcel; or
(ii) contains a description of the matters or exceptions relating to the condition of the
Agency Parcel which the Developer was not able to accept or resolve to its
satisfaction during the Due Diligence Period.
If the Developer delivers a Due Diligence Approval Certificate pursuant to (ii) above, then
Agency shall, within ten (10) calendar days from and after the date that Agency receives such Certificate,
advise the Developer in writing whether the Agency will agree to remediate those matters or exceptions
identified in the Due Diligence Approval Certificate and, if so, the Agency shall describe what actions
Agency will take in order to cause such remediation. If the Agency (i) fails to advise the Developer
within said ten (10) calendar day period of Agency's agreement to remediate such identified matters
and/or exceptions, (ii) fails to propose a remediation which is satisfactory to the Developer in its sole and
absolute discretion, or (iii) advises the Developer that the Agency does not intend to remediate any of the
identified matters or exceptions, then Developer, at its discretion, may either (A) waive the objectionable
matters and exceptions and proceed to the Closing, or (B) 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, the Deposit shall be returned to the Developer in accordance with Section 2.02( c).
Section 2.12. 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 Agency Parcel 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 Agency Parcel which is in the possession or control of
Agency.
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Section 2.13. 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 Agency Parcel during the Due Diligence Period. The Developer shall accept the delivery of
title to the Agency Parcel on the Close of Escrow in an "AS IS," "WHERE IS" and "SUBJECT TO ALL
FA UL TS" 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 Agency Parcel which the
Developer may believe to be indicated. The Developer hereby acknowledges that it shall rely solely upon
its own investigation of the Agency Parcel and its own review of such information and documentation as
it deems appropriate for the purpose of accepting the condition and possession of the Agency Parcel. The
Developer is not relying on any statement or representation by the Agency relating to the condition of the
Agency Parcel unless such statement or representation is specifically contained in this Agreement.
Without limiting the foregoing, the Agency makes no representations or warranties as to whether the
Agency Parcel presently comply with environmental laws or whether the Agency Parcel 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 condition of the Agency Parcel,
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
Agency Parcel or any law or regulation applicable thereto, including the presence or alleged presence of
harmful or hazardous substances in, under or about the Agency Parcel including, without limitation, any
claims under or on account of (i) CERCLA and similar statutes and any regulations promulgated
thereunder or (ii) any other enviromnentallaws.
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 2.13 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
OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
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The undersigned, being aware of this Code section, hereby expressly waives any rights it may
have thereunder, as well as under anit:: statutes or common law principles of similar effect.
Initials of Develope~
The provisions of this Section 2.13 shall survive the Close of Escrow.
Section 2.14. Review and Approval of Condition of Title by the Developer.
(a) Within fifteen (15) calendar days following the Opening of Escrow, Agency shall
cause to be delivered to the Developer a preliminary title report or title commitment for a CL T A standard
coverage policy of title insurance issued by the Title Company, describing the condition of title of the
Agency Parcel, 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) business 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 of
record or 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) business days
after the Developer's receipt of the Agency's Title Notice, to agree to accept the Agency Parcel 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 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.] 4(a), the Agency shall be responsible for paying for all Escrow cancellation costs of the Escrow
Holder, 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 Agency Parcel, 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) calendar days from receipt of the amendment or supplement) and Escrow
shall be deemed extended by the amount of time necessary to allow such review and approval in the time
and manner set forth above.
Section 2.15. Survey. The Developer shall obtain a survey of the Site as specified in Section
2.01.1 prepared by a land surveyor duly licensed by the State of Califomia and in compliance with
ALTAlASCM 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
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the Survey and to notify Agency in wntmg of any objections the Developer has to the Survey
("Developer's Survey Objection Notice") related to the Agency Parcel. The Agency shall have a period of
five (5) business days after receipt of the Developer's Survey Objection 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 objectionable 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) business days after the Developer's receipt of Agency's Survey Notice, to agree to accept the
Agency Parcel 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 2.15, 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 2.16. 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 2.08 by the date(s) set forth therein, the
Due Diligence Period for such information shall be extended by one (I) calendar 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 total of thirty (30) calendar 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
Section 2.08.
Section 2.17. Developer's Conditions Precedent.
(a) The Developer's obligation to purchase the Agency Parcel shall be conditioned upon the
fulfillment of the following conditions precedent, all of which shall be satisfied (or waived in writing by
the Developer) prior to or at 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 (I) only, a representation that is limited to the Agency's knowledge or
notice shall be false if the factual matter that is subject to the representation is false,
notwithstanding 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 2.01.1, 2.14 and 2.15;
(3) the Developer's approval of the contents of all Due Diligence Items and the other
investigations of the Site made by the Developer pursuant to Sections 2.08, 2.09
and 2.12 herein. The Developer shall be deemed to have disapproved such Due
Diligence Items unless 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 2.16 herein;
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(4) the Developer's approval of any notice of change in representation or warranty
given by the Agency pursuant to Section 2.26(a)hereof;
(5) the Title Company has committed to issue the Title Policy, III favor of the
Developer in the form described in Section 2.05;
(6) the Developer has obtained one or more development and construction financing
loans or loan commitments to pay all costs of (i) the rough grading of the Site, (ii)
the construction and installation of the public improvements required for the
development of the Site, (iii) the development of the Site, and (iv) payment of all
applicable City, or other governmental entities fees (except as provided in Section
2.22), on terms reasonably acceptable to it;
(7) the Agency shall have satisfied (or shall have been deemed to have waived
satisfaction of) each of the conditions precedent set forth in Section 2.18;
(8) the Common Council of the City shall have approved the reimbursement
agreements described in Section 2.IO(b);
(9) the City Engineer has approved the form of subdivision improvement agreement
and the subdivision completion surety bond and the payment surety bond for the
installation of the public improvements required for the development of the Site by
the Developer;
(10) all conditions of the Master Parcel Map have been satisfied and the Master Parcel
Map is in a position to, and shall, record concurrently with the Close of Escrow;
(II) the Developer shall have obtained all entitlements and other discretionary
approvals, including, without implied limitation, the Density Approvals, 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 permits for the first phase of New Homes to be constructed on the Site;
(12) a resolution of formation (or similar document) establishing and forming the
applicable municipal financing district(s) described in Section 2.10(a) shall have
been approved and certified by the Common Council of the City following all
legally required notices, hearings and landowner elections;
(13) a resolution authorizing the issuance by the applicable municipal financing
district(s) described in subparagraph (12) above of bonded indebtedness in an
amount sufficient to fund the reimbursement or acquisition obligation for a
designated portion of the construction of the public infrastructure required for the
development of the Project as identified in Section 2.10(a), or such other amount as
the City and Developer may agree, has been approved and certified by the Common
Council of the City following all legally required notices, hearings, and landowner
elections, and the rate and method of apportionment (or other mechanism for
establishing the level of assessments or special taxes on property within such
municipal financing districts) shall have been approved by the Developer in its
reasonably exercised discretion;
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(14) the Developer shall have updated its development cost estimates for the Project and
shall have determined, in its reasonably exercised discretion, that the then-current
development costs estimate for the Project does not materially exceed those set
forth in the Project Pro Forma attached as Exhibit E;
(15) the Developer and SBCFCD have concluded their negotiations for the acquisition
of the SBCFCD Property upon terms and conditions acceptable to the Developer
and SBCFCD and the escrow for the conveyance of the SBCFCD Property from
SBCFCD to the Developer shall have closed prior to the Close of Escrow or shall
be in a position to close concurrently with the Close of Escrow;
(16) the Developer has obtained all approvals, permits or consents as may be required
by the applicable federal and State regulatory agencies having jurisdiction over
endangered or threatened species and other plants and wildlife, if any, as may be
present on the Site, including any designations as to all or any portion of the Site as
critical habitat for endangered or threatened species, to provide for the development
of the Site upon the Close of Escrow; and
(17) the Developer shall have received a "will serve" letter from the San Bernardino
Water Agency, in form and substance reasonably acceptable to the Developer.
(b) With respect to subparagraph (a)(14) above, if the Developer reasonably determines that
the then-current development costs for the Project materially exceed those set forth in the Project Pro
Forma, the Close of Escrow shall be extended for a period not to exceed thirty (30) calendar days. During
such thirty (30) day period, the Developer and the Agency agree to meet and confer in good faith to
determine if such excess development costs may be mitigated by an appropriate amendment to this
Agreement. Although the parties shall agree to meet in good faith, neither party shall be bound by any
agreement so reached until such agreement is duly docurnented and approved by the Developer and, if
necessary, the Agency's governing board and/or Common Council of the City. If, by the end of such
thirtieth (30th) day, the parties have been unable to reach an agreement, then Developer rnay, in its sole
and absolute discretion, 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).
(c) The parties acknowledge that the estimates in the Project Pro Forma are subject to
variations in price and timing over which the Developer has no control, and do not constitute a warranty
or guaranty, but rather the Developer's best estimate based on its experience and expertise concerning the
costs therein described. The parties further recognize that subsequent to the execution of this Agreement,
it may be necessary to make changes in the product mix, pricing and costs associated with the various
phases of the Project to respond to market forces. Therefore, the Developer may change the product mix
for each phase of the Project over the life of the Project and may change the Project Pro Forma as
necessary to correspond with such changes; provided, however, that any such changes which materially
deviate from the Scope of Development and other requirements of this Agreement shall be subject to
approval by the Agency or its Executive Director in accordance with the terms and provisions of this
Agreement and provided further that nothing contained herein shall limit or in any manner compromise
the ability of the Common Council of the City and the Planning Commission of the City to disapprove
any such request at their sole discretion for any such request is required to be submitted to and approved
by the Common Council of the City and/or the Planning Commission of the City.
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Section 2.18. The Agencv's Conditions Precedent. The Agency's obligation to convey the
Agency Parcel to the Developer shall be conditioned upon the fulfillment of the following conditions
precedent, all of which shall be satisfied (or waived in writing) prior to or at the Close of Escrow:
(I) the Developer has accepted the condition of the Agency Parcel 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 Agency Parcel on or before
the date set forth in Section 2.14;
(3) the Developer has obtained development and one or more development
construction financing loans or loan commitments to pay all costs of (i) the rough
grading of the Site, (ii) the construction and installation of the public improvements
required for the development of the Site, (iii) the development of the Site, and (iv)
payment of all applicable City, or other governmental entities fees (except as
provided in Section 2.22), 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 2.17; and
(6) the City Engineer and the Developer shall have each approved the form of the
subdivision improvement agreement for the Site.
Section 2.19. Deliverv of Documents and Purchase Price After Closing Date bv Escrow Holder.
The Escrow Holder shall deliver to the Agency the Purchase Price, less sums paid to discharge any liens,
less the principal value of the Note, and less Title Company and Escrow Holder costs, expenses and the
various prorations chargeable to the Agency hereunder. The Escrow Holder shall deliver to the Developer
within three (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 2.20. Satisfaction of Conditions. Where satisfaction of any 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 this 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 2.21. Termination. In the event each of the conditions set forth in Section 2.17 (in the
case of the Developer) or Section 2.18 (in the case of the Agency) is not fulfilled within twenty-four (24)
months after the Opening of Escrow (subject to Sections 2.16 and 6.06, if applicable) or waived by the
party for whose benefit the condition exists, any party may, at its option, terminate this Agreement and
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cancel the Escrow opened hereunder, thereby releasing the parties from further obligations hereunder and
all documents delivered 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 Developer as set forth in Section 2.02(c).
Nothing in this Section 2.21 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; or (ii) affect the right of
any party to terminate this Agreement pursuant to Section 2.03.
Section 2.22 1994 School Mitigation Agreement and Developer Payment to City of San
Bernardino in Lieu Fees for First 245 Site Lots.
(a) In the event the School District fails to honor the 1994 School Fee Agreement and
demands the payment by the Developer of a School Fee directly to the School District in addition to the
Ten Thousand Dollars ($10,000) per Site Lot as shall be remitted by the Developer to the Agency
pursuant to this Agreement, or if such School Fee as demanded by the School District exceeds said Ten
Thousand Dollars ($10,000) per Site Lot, the Developer shall seek a reimbursement from the Agency of
any amounts previously paid by the Developer to the School District representing such Ten Thousand
Dollar ($10,000) amount upon any such failure of the School District to honor the 1994 School Fee
Agreement. The amount of such Agency reimbursement obligation shall not exceed an amount equal to
Ten Thousand Dollars ($10,000) per Site Lot, and the Developer shall additionally pay those amounts of
the School Fee which are in excess of said cost of Ten Thousand Dollars ($10,000) per Site Lot. In the
event the Developer has not previously remitted the amount of Ten Thousand Dollars ($10,000) per Site
Lot to the Agency and the Developer is required to pay a School Fee directly to the School District, the
Agency shall forego the receipt of any payments from the Developer of said amount on a per Site Lot
basis as may be actually paid by the Developer to the School District towards the Ten Thousand Dollars
($10,000) per Sit Lot. Under such circumstances, the Developer shall additionally pay those amounts of
the School Fee which are in excess of said cost ofTen Thousand Dollars ($10,000) per Site Lot. For the
purposes of the second preceding sentence, the words "development of the first two hundred forty-five
(245) Site Lots by the Developer" means and refers to the construction and improvement of the first two
hundred forty-five (245) New Homes on the Site Lots, together with the related public infrastructure
improvements, as described in the Scope of Development.
(b) The Developer shall pay the Agency the sum of Ten Thousand Dollars ($10,000)
for each of the first two hundred forty-five (245) Site Lots to be developed at the time of the close of
escrow of the New Home on such Site Lot for a sale by the Developer to a homebuyer or upon any such
sales by any successors and assigns from the Developer. Such sum 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 Site Lot.
(c) The provisions of this Section 2.22 shall apply only to the first two hundred forty-
five (245) Site Lots. For each Site Lot in excess of two hundred forty-five (245), the Developer (or other
legally responsible party) shall pay such School Fees imposed by the School District in connection with
the development of the Project at the time and in the amount then currently in effect.
Section 2.23. Prorations, Closing Costs, Possession.
(a) Proration of Taxes. Real property taxes (if any) for the Agency Parcel for the tax
year in which the Closing occurs shall be prorated by the parties to the Closing Date on the basis of a
three hundred sixty-five (365) day year on the basis that the Agency is responsible for (i) all such taxes (if
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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 Agency Parcel, changes in ownership, errors by the Assessor or otherwise. The Agency shall pay on
or before the Closing all property taxes, delinquent assessments, penalties and interest with respect to the
period of time prior to the Agency acquisition of the Agency Parcel during which the Agency Parcel was
real property subject to real property taxation while owned by any prior private owners of the Agency
Parcel.
(b)
Parcel immediately
Developer:
Possession. The Developer shall be entitled to exclusive possession of the Agency
upon the Close of Escrow. The Agency shall upon the written request of the
(A) grant to the Developer a temporary license to enter the Agency Parcel prior
to the Closing Date for the following purpose:
(i) to remove weeds, surface debris, and graffiti from the Agency
Parcel;
(ii) to conduct surveys, intrusive soil engineering testing, and inspection
of any existing improvements on the Agency Parcel;
(iii) to install temporary subdivision land sales advertising signs on the
Agency Parcel as permitted under the City sign ordinance;
(iv) to conduct such other limited work of predevelopment investigation
as may be approved by the Agency in its sole discretion; or
(B) Provided that the Developer has delivered its Due Diligence Approval
Certificate and has deposited into the Escrow all funds required by this Agreement to be deposited prior to
such date, grant to the Developer a temporary license to enter the Agency Parcel prior to Closing Date to
perform the "Work", as this term is defined in the Temporary License Agreement for the Grading and
Improvement of Land in the form attached hereto as Exhibit H.
(C) Prior to the entry by the Developer onto any portion of the Agency Parcel
pursuant to such a license under Section 2.23(b )(A), above, the Developer shall execute a written license
agreement affecting the Agency Parcel 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
Agency Parcel which may arise prior to the Closing Date by virtue of the Developer's entry onto the
Agency Parcel, or any portion thereof and the Developer shall further agree to indemnify, defend and hold
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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 Agency Parcel or any portion thereof
pursuant to such license agreement. Prior to the entry by the Developer onto the Agency Parcel to
perform any work authorized under Section 2.23(b)(B), the Developer shall execute the Temporary
License Agreement for the Grading and Improvement 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 Developer commences any work upon the Site
pursuant to a license under Section 2.23(b)(B) is hereinafter referred to as the "Site Entry Date."
(c) Title Insurance Premium Escrow and Closing Costs. The Agency shall pay the cost of the
premium for a CL T A owner's standard coverage policy of title insurance on the Agency Parcel in the
amount of the 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 2.14 and 2.15 above), and the Agency shall also pay any documentary or
other transfer taxes payable on account of the conveyance of the Agency Parcel to the Developer, together
with one-half (\I,) of the customary and reasonable escrow fees which may be charged by the Escrow
Holder in connection with the Close of Escrow.
The Developer shall pay the additional cost of the Survey and requested AL T A survey policy
endorsements (to the extent such endorsements are unrelated to removal of any disapproved items shown
on the Preliminary Title Report or Survey pursuant to Sections 2.14 and 2.15 above) which exceeds the
premium for a CL T A owner's standard coverage policy of title insurance on the Agency Parcel plus the
cost of recording the Agency Grant Deed, together with one-half (y,) 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 an estimated closing costs 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 2.24. BREACH OF ARTICLE II BY THE AGENCY PRIOR TO CLOSE OF ESCROW
DATE; DEVELOPER'S ELECTION RE SPECIFIC PERFORMANCE OR LIOUIDATED DAMAGES.
In the event that the Agency commits a material breach of its obligations under this Article II prior to the
Close of Escrow and fails to cure such breach following notice and opportunity to cure in accordance with
Article V hereof, the Developer shall elect, in its sole and absolute discretion, one of the following as its
exclusive remedy for such breach:
(a) The Developer may institute an action for specific performance pursuant to Civil
Code Section 3389, and in connection therewith, may record a notice of pendency of action against the
Site; OR
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(b) The Developer shall receive from the Agency the sum of One Hundred Fifty
Thousand Dollars ($150,000) as liquidated damages.
THE AGENCY AND THE DEVELOPER AGREE THAT THE DAMAGES THAT THE
DEVELOPER WILL INCUR BY REASON OF THE AGENCY'S UNCURED MATERIAL
BREACH 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 ONE HUNDRED FIFTY THOUSAND DOLLARS
($150,000) 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; PROVIDED, HOWEVER, THAT NOTHING IN THIS SECTION 2.24(b) SHALL
OPERATE TO PRECLUDE THE DEVELOPER FROM RECEIVING THE RETURN OF THE
DEPOSIT IN ACCORDANCE WITH SECTION 2.02(c) IN ADDITION TO RECEIVING
LIQUIDATED DAMAGES. WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS
PARAGRAPH, AND SUBJECT TO THE DEVELOPER'S ELECTION TO PROCEED
PURSUANT TO THIS SUBSECTION (b) OF THIS SECTION 2.24, THE DEVELOPER WAIVES
ANY AND ALL RIGHTS WHICH THE DEVELOPER OTHERWISE WOULD HAVE HAD
UNDER CIVIL CODE SECTION 3389 TO SPECIFICALLY ENFORCE THIS AGREEMENT.
THE DEVELOPER AND THE AGENCY ACKNOWLEDGE AND AGREE THAT EACH OF
THEM HAS READ AND UNDERSTANDS THE PROV IONS OF THIS SECTION AND EACH
AGREES TO BE BOUND BY ITS TERMS.
Initials of Agency
..~
tia s of Developer
Section 2.25. BREACH BY THE DEVELOPER OF ARTICLE II PRIOR TO THE CLOSE OF
ESCROW; LIOUIDATED DAMAGES PAYABLE BY TH DEVELOPER TO THE AGENCY. IN
THE EVENT THAT THE DEVELOPER COMMITS A MATERIAL BREACH OF ITS
OBLIGATIONS UNDER THIS ARTICLE II PRIOR TO THE CLOSE OF ESCROW AND FAILS
TO CURE SUCH BREACH FOLLOWING NOTICE AND OPPORTUNITY TO CURE IN
ACCORDANCE WITH ARTICLE V HEREOF, 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 ONE HUNDRED FIFTY THOUSAND
DOLLARS ($150,000) 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 CLOSE OF ESCROW. 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
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THE DEVELOPER ACKNOWLEDGE AND AGREE THAT EACH OF THEM HAS READ AND
UNDERSTAND PROVISIONS OF THIS SECTION AND EACH AGREES TO BE BOUND
BY ITS TERM .
InitialsOf~
Section 2.
Representations and Warranties.
(a) Warranties and Representations bv the Agencv. 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:
(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) Enforceabilitv 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 delivery 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 hereunder) the entire right, title and interest in and to the Agency
Parcel.
(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, with respect to the
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Agency Parcel, 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 Agency Parcel or the transactions contemplated hereby.
(7) Operation and Condition Pending Closing. Between the date of this Agreement
and the Close of Escrow, the Agency will continue to manage, operate and
maintain the Agency Parcel in the same manner as existed prior to the execution
of this Agreement.
(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 Agency Parcel 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 Agency Parcel is not, to the best knowledge of the
Agency, located within 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 Agencv's Knowledge. For purposes of this Section 2.26(a), the terms "to the
best of the Agency's knowledge" or "to the Agency's knowledge" shall mean the
actual knowledge of Maggie Pacheco, Executive Director.
(II) No Breach. 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 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
Agency Parcel.
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 2.26(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.
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(b) Warranties and Representations by Developer. Developer 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) Developer is a duly organized and validly existing California limited partnership.
Developer 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 Developer hereby represent and warrant
that such persons have the power, right and authority to bind Developer.
(2) Developer has taken all requisite action and obtained all requisite consents in
connection with 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 Developer's authorization to enter
into this Agreement.
(3) This Agreement is, and all agreements, instruments and documents to be executed
by Developer pursuant to this Agreement shall be, duly executed by and are or shall
be valid and legally binding upon Developer 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 Developer is a
party or by which Developer 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 Developer or to the Agency Parcel.
(5) The representations and warranties of Developer contained in this Section 2.26(b)
shall be based upon the actual knowledge of John W. Pavelak.
All representations and warranties contained in this Section 2.26(b) are true and correct on
the date hereof and on the Closing Date and Developer'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.
Section 2.27. Damage. Destruction and Condemnation. Prior to the later of Agency's delivery of
possession of the Agency Parcel to the Developer or the Close of Escrow, the risk ofloss or damage to the
Site shall remain upon the Agency. If the Agency Parcel 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 Agency Parcel in its damaged condition or (ii)
the Developer may terminate this Agreement and recover the Deposit as set forth in Section 2.02( c). The
Developer shall confirm the exercise of its election under subparagraph (i) or (ii) of the preceding
sentence within thirty (30) calendar days of its receipt of notice from the Agency.
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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 Agency Parcel, the
Agency shall give prompt written notice thereof to Developer, and Developer shall have the option either:
(i) to elect not to acquire the Agency Parcel, terminate the Agreement and recover the Deposit as set forth
in Section 2.02(c); or (ii) the Developer may complete the acquisition of the Agency Parcel, 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.
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 with
approximately two hundred seventy-nine (279) single family detached residential dwelling units, (each
referred to as a "New Home"), 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 zomng 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, in connection with the Density Approvals and other entitlements for the Project, the
City may require further environmental analysis and mitigation in accordance with the provisions of the
California Environmental Quality Act (Public Resources Code Section 21000, et seq.). The Developer
agrees to comply with all City imposed requirements concerning the same. Nothing contained herein
shall prevent the Developer from contesting any conditions or approval or further negotiating such
conditions of approval with the City. 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 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) Subject to the Developer's receipt of the Density Approvals, the Scope of
Development set forth in Exhibit B 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 approval 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. The Agency makes no commitment or representation that any
such other govemment official, agency department or bureau, including but not limited to, the Common
Council of the City and the Planning Commission of the City, will in fact approve any such changes as
may be requested by the Developer.
(e) Notwithstanding any provision to the contrary in this Agreement, the Developer
agrees to accept and comply fully with any and all conditions of approval applicable to all permits and
other governmental actions affecting the development of the Site and consistent with this Agreement.
Nothing contained herein shall prevent the Developer from contesting any conditions or approval or
further negotiating such conditions of approval with the applicable governmental agency.
(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 therefore in the Schedule of Performance 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.
(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.
(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, in accordance with the
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City's requirements and in such form and substance so as to obtain the City's approval thereof. 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 within ninety (90) 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 ninety (90) calendar day period shall constitute an
enforced delay hereunder, and the Schedule of Performance shall be extended by that period of time
beyond said ninety (90) 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 within sixty (60)
calendar days after receipt of such disapproval revise and resubmit such plans In the event the reason for
such disapproval by the City was the inadequacy or poor quality of the information or documents as so
submitted by the Developer to the City, no extension of time shall thereupon be afforded to the Developer
either pursuant to this Section 3.0] 0) or Section 2.06.
(k) The Agency agrees to reasonably cooperate and assist the Developer in connection
with the transactions and processes set forth in this Section 3.0] and elsewhere in this Agreement.
(I) 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 sixty (60) 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 3.0] 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 therefore, and such rejection
shall be made within said thirty (30) calendar day period unless extended as permitted herein.
(n) The Developer, upon receipt of a notice of disapproval by the Agency and/or the
City, may revise such portions of the proposed change in construction drawings, plans and specifications
and related documents as are rejected and shall thereafter resubmit such revisions to the Agency and/or
the City for approval in the manner provided in Section 3.010) hereof.
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(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 and all 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 conditions. 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." Any such "minor field changes" relative to
public improvements to be funded or reimbursed from the proceeds of any municipal financing district
shall additionally comply with the requirements applicable to the use of such public funds attributable to
said municipal financing districts.
(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. The Developer shall
not be responsible for the payment of any costs, fees, or other expenses, including payment of fees or the
costs of mitigation measures adopted in connection with the California Environmental Quality Act (Public
Resources Code Section 21000, et ~, except those directly related to the development of the residential
units on the Site and the development of the offsite improvements (other than the Community Park)
required in connection therewith, subject to the Developer's rights to reimbursement in accordance with
the reimbursement agreements described in Section 2.10(b).
(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.
(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) Upon receIVIng all necessary City approvals, 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 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 subject 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
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shall be extended as provided in paragraphs (j) or (m) of this Section 3.01 or as specified in Section 6.06,
provided that the documents, information or other items submitted by the developer are not disapproved
because of the inadequacy or poor quality of the documents, information or items as so submitted.
(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 limit, 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, and personal injury 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 effective 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.
(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 and subject to the requirements of any municipal financing district with respect to
the payment or reimbursement for the costs of certain publicly financed infrastructure components
through municipal bonds of a financing district.
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(x) Except as provided in subparagraph (y) below, 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. 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) The parties anticipate that certain permits and entitlements may be required from
the U.S. Department of Fish and Wildlife Services ("USFWS"), the United States Army Corps of
Engineers ("ACOE"), and/or the California Department of Fish and Game ("DFG") in connection with
the development of the Project, including, without implied limitation, development of the storm drainage
infrastructure. The Agency shall, or shall exercise reasonable good faith efforts to cause the City or
SBCFCD to, submit in the Agency's, City's or SBCFCD's name applications to USFWS, ACOE, and/or
DFG, as appropriate, for those permits and entitlements required from such agencies in connection with
the development of the Project. The Agency/City shall meet and confer with the Developer prior to the
submission of any such applications and shall further consult with the Developer prior to the preparation
and submission of any proposed mitigation measures, mitigation monitoring plans, or any other matters
which directly or indirectly impact the Project and/or the Site. The Developer shall be responsible, at its
sole cost and expense, for the cost of compliance with any and all mitigation measures lawfully imposed
by USFWS, ACOE, and/or DFG in connection with the granting of such permits and entitlements;
provided, however, that if any such permit or entitlement encompasses an area and/or development other
than the Site or the Project, the Developer shall be responsible only for a prorated share of such costs and
neither the City nor the Agency shall be responsible for the payment of the remaining prorated share for
which the Developer is not responsible for the costs thereof.
(z) 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 representative 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.
(aa) 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.
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(bb) Without limiting or modifying the application of Government Code Section
66462.5, the Agency agrees and shall exercise reasonable good faith efforts to cause the City and/or
SBCFCD to negotiate in good faith with the Developer concerning the acquisition and conveyance of any
property (including, without implied limitation, the SBCFCD Property) or property interests which are
reasonably required for or convenient to the construction of any off-site public improvements required for
the development of the Project or which render development of the Site more feasible or practical, e.g.,
acquisitions to square off boundaries. The parties recognize that nothing herein shall constitute an
obligation, commitment or representation that such properties will be acquired and conveyed by
condemnation, or at all. Except as may be otherwise provided by relevant provisions of the Government
Code, neither the City, the Agency, SBCFCD, nor the Developer shall have any obligation to acquire
and/or convey such property or property interests, or construct any public or private improvements
thereon unless and until they reduce their agreement to a writing which is duly approved by their
respective authorities.
Section 3.02. Developer's Mass Grading of Community Park Parcel. Contingent upon: (I) the
Agency's ability to obtain whatever interest it deems necessary for the development of the Community
Park from the SBCFCD, and (2) the negotiation and execution of a site entry and grading agreement
reasonably acceptable to both the Agency and the Developer, the Developer agrees to complete, or agrees
to cause, the mass grading of the Community Park Parcel in accordance with plans and specifications for
the Community Park prepared by the City at its sole cost and expense and reasonably acceptable to the
Developer. The Developer's mass grading of the Community Park Parcel shall occur concurrently with
its grading of the adjacent Site. The Agency and the Developer agree to cooperate to ensure that the
Community Park Parcel is ready for grading activities at the same time that the Developer is prepared to
begin grading of the adjacent portion of the Site. The Developer's mass grading of the Community Park
Parcel shall be at Developer's sole cost and expense; provided, however, that in the event that the
Developer elects not to construct a flood control retention basin in connection with its development of the
Site, the Agency shall, at its sole cost and expense, acquire such clean fill dirt as needed to complete the
mass rough grading of the Community Park Parcel in accordance with the plans and specifications
hereinabove described.
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; Release of Site Lots Upon Sale to Ultimate
Purchaser.
(a) Except as otherwise permitted by Section 1.04, prior to the recordation of the
Certificate of Completion (defined in Section 3.07), 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 except for final sale or lease.
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(b) 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 from any obligations under this Agreement.
( c) 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.
(d) Effective as the date of final sale or lease (as applicable) of a Site Lot or portion of
the Site, any party owning or purchasing, leasing, or otherwise acquiring any interest in the Site or the
Project 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
Agency Grant Deed or other instrument of transfer. Neither the Agency nor any other person, after the
final sale or lease of a Site Lot or a portion of the Site, shall have any rights, remedies or controls that it
would have otherwise have or be entitled to exercise under this Agreement with respect to such Site Lot
or portion of the Site as a result of a default in or breach of any provision of this Agreement, and the
respective rights and obligations of the Agency and such third party shall be limited to those set forth in
the Agency Grant Deed.
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 Certificate of Completion (defined 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 the 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's liens need be given by the
Developer to the Agency prior to suit being filed to foreclose such mechanic's lien.
(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 delivered by the Developer to the City
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under the terms of any 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, 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, within 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 security 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 shall remedy or cure such default within 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, within 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 a Certificate 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. Ifthe 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:
I. The unpaid mortgage, deed of trust or other security 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
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).
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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
within 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 the
Certificate of Completion, 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
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 security 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 Agencv to Satisfv Other Liens on the Site after Convevance of Title.
After the conveyance of title to the Site by the Agency to the Developer and prior to the recordation ofthe
Certificate of Completion (defined 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. Certificate of Completion. Following the written request therefore by the Developer
and the completion of the Project, excluding minor "punch-list" items to be completed by the Developer,
the Agency shall furnish the Developer with a Certificate of Completion, substantially in the form set
forth in Exhibit F attached hereto.
(a) The Agency shall not unreasonably withhold the issuance of the Certificate of
Completion. A Certificate of Completion shall be, and shall so state, that it is a conclusive determination
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of satisfactory completion of all of the obligations of this Agreement with respect to the improvement of
the Project. After the recordation of the Certificate of Completion, any party then owning or thereafter
purchasing, leasing or otherwise acquiring any interest in the Site or Project 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 Agency Grant Deed or other instrument
of transfer. Neither the Agency nor any other person, after the recordation of the Certificate of
Completion, shall have any rights, remedies or controls that it would otherwise have or be entitled to
exercise under this Agreement with respect to the Site or Project 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 Agency Grant Deed.
(b) 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.
(c) If the Agency refuses or fails to furnish the Certificate of Completion after written
request from the Developer, the Agency shall, within fifteen (15) calendar days after the written request or
within three (3) business days after the next regular meeting of the Agency, whichever date occurs later,
provide to the Developer a written statement setting forth the reasons with respect to the Agency's refusal
or failure to furnish the Certificate of Completion. The statement shall also contain the Agency's opinion
of the action the Developer must take to obtain the Certificate of Completion. If the reason for such
refusal is confined to the immediate unavailability of specific items or materials for construction or
landscaping at a price reasonably acceptable to the Developer or other minor "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 and Project as if a Certificate of Completion had
been issued therefor.
(d) 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.
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 4.0l(a) shall run with the land until the issuance of the Certificate of Completion.
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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-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 (or the then-current owner of
the Site or applicable Site Lot) shall reimburse the Agency for all reasonable sums incurred by it for such
maintenance activities.
The covenants of this Section 4.02 shall run with the land for a period of ten (10) years following
the Close of Escrow.
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 Site; 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. The covenants of this Section 4.03 shall run with the land in perpetuity.
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, transfer, use, occupancy, tenure, or
enjoyment 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 enjoyment 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."
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(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 enjoyment 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.
The covenants of this Section 4.04 shall run with the land in perpetuity.
Section 4.05. Effect of Covenants. The Agency is deemed the beneficiary of the terms and
provisions of this Agreement and of the covenants running with the land for and in its own rights and for
the purposes of 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 injunctive 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 6.06 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 within said time limits), such party shall not be deemed to be in default hereunder.
(b) The injured party shall give written notice of default 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 institute and
maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such
rights or remedies.
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.
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(b)
of this Agreement.
The laws of the State of California shall govern the interpretation and enforcement
(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,
Interim Executive Director, or Chairperson 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 (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 shall serve written notice of such default upon the
defaulting party. If the defaulting party does not diligently commence to cure such default within thirty
(30) calendar days after service of the notice of default and promptly complete the cure of such 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 shall be liable to the other party 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 shall serve written notice of such
default upon such defaulting party. If the defaulting party does not commence to cure the default 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, at its option, may institute an action for specific
performance of the terms of this Agreement, except as otherwise provided in this Agreement.
ARTICLE VI
GENERAL PROVISIONS
Section 6.01. Notices, Demands and Communications Between the Parties.
(a) Any and all notices, documents, copies of due diligence items, demands or
communications submitted by any party to another party pursuant to or as required by this Agreement
shall be proper if in writing and dispatched by messenger for immediate personal delivery, or by
registered or certified United States mail, postage prepaid, return receipt requested, to the principal office
of the Agency and the Developer, as applicable, as designated in Section 1.03 hereof. 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
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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 delivery, or two (2) calendar days after it is placed in the United
States mail as heretofore provided.
(b) In addition to the submission of notices, demands or communications to the parties
as set forth above, copies of all notices shall also be delivered by facsimile as follows:
To the Developer:
Century Crowell Communities, LP
1535 South "D" Street, Suite 200
San Bernardino, California 92408
Attn: John W. Pavelak
Attn: George Mooradian
Fax: (909) 381-0041
To the Agency:
Best Best & Krieger LLP
3750 University Avenue, Suite 400
Riverside, California 92501
Attn: Kevin K. Randolph
Fax: (951) 686-3083
Redevelopment Agency of the City of San
Bernardino
20 I North "E" Street, Suite 30 I
San Bernardino, California 92401
Attn: Maggie Pacheco, Executive Director
Fax: (909) 888-9413
With a copy to:
With a copy to:
Lewis, Brisbois, Bisgaard & Smith LLP
650 East Hospitality Lane, Suite 600
San Bernardino, California 92408
Attn: Timothy J. Sabo
Fax: (909)387-1138
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.
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 and Developer 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
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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. Nonliabilitv of Developer and Agencv Officials and Emplovees. No member,
official or employee of the Developer shall be personally liable to the Agency, or any successor in
interest, in the event of any default or breach by the Developer or for any amount which may become due
to the Agency 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 6.06. 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 majeure 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 entity (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, 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 which claims the existence of the delay has first provided the other party with
written notice of the occurrence of the delay within ten (10) calendar days after the commencement of the
event which has given rise to such occurrence of delay.
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
development of the Site shall not be deemed to be a force majeure event or otherwise provide grounds for
the assertion of the existence of a delay under this Section 6.06. 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 majeure 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 6.07. Inspection of Books and Records. The Agency shall have the right at all reasonable
times at the Agency'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 ofthe Agency pertaining to the Site and/or the development thereof
as pertinent to the purposes of this Agreement.
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Section 6.08. Approvals.
(a) Except as otherwise provided in this Agreement, approvals required of the Agency
or the Developer, or any officers, agents or employees of either the Agency or the Developer, shall not be
umeasonably withheld and approval or disapproval shall be given within the time set forth in the
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) calendar days to the Schedule of Performance.
Section 6.09. Real Estate Commissions. The Agency shall not be liable for any real estate
commissions, brokerage fees or finder fees related to any actions or conduct by the Developer.
Section 6.10. 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 (i) any act or omission of the Developer in performing
its obligations hereunder; (ii) the approval and execution of this Agreement by the Agency; and (iii) the
adoption by the City of the resolution relative to the Agency approval and execution of this Agreement.
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 6.11. 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 or portion of the Site when that Site Lot or portion of the Site is
released from the controls of this Agreement, as more particularly described in Section 3.04(d).
Section 6.12. 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' fees" mean and include in the case of the Agency the salaries and expenses of the lawyers
employed by the Agency who may provide legal services to the Agency in connection with the
representation of the Agency in any such matter, whether such lawyers are employees of the City or
Agency or third parties.
Section 6.13. Effect. This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns.
ARTICLE VII
ENTIRE AGREEMENT, WAIVERS AND AMENDMENT
Section 7.01. Entire Agreement.
(a) This Agreement shall be executed in two (2) duplicate originals each of which is
deemed to be an original. This Agreement includes forty-eight (48) pages and twelve (12) attachments
(see list of attachments at Section 1.06), which constitute the entire understanding and agreement of the
parties.
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(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, including in that certain "Memorandum of
Understanding" dated as of July 6,2004 between the Agency and the Developer, as amended.
(c) None of the terms, covenants, agreements or conditions set forth in this Agreement
shall be deemed to be merged with the Agency Grant Deed conveying title to the Developer in the Site,
and this Agreement shall continue in full force and effect as to each Site Lot before and after such
conveyance until issuance of the Certificate of Completion for such Site Lot.
(d) 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.
ARTICLE VIII
TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY AND RECORDATION
Section 8.01. Execution and Recordation of Notice of Agreement.
(a) Following its execution by the Developer and prompt delivery 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 within 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.
[Signatures on following pages]
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SIGNATURE PAGE
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
"AGENCY"
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO, a public
body, corporate and politic
Date:
/I)'ff(
By:
APPROVED AS TO LEGAL FORM:
A~
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SIGNATURE PAGE
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
"DEVELOPER"
CENTURY CROWELL COMMUNITIES, LP
a California limited partnership
By: Century Homes Communities,
a California corporation
Its: General Partner
IfIvo-
By:
Its:
John W. Pavelak
President
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EXHIBIT A
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
Legal Description of Site
EXHIBIT A
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PARCEL 1:
That portion of the following described property lying North of the Northerly line of the
property conveyed to the State of California by deed recorded December 6 1957 in Book
4384, Page 553 of Official Records: '
That portion of Lot 11 .of .Meyer's and Barclay Subdivision, in the City of San Bernardino,
as shown by Map on file In Book 2, Pagels) 32 of Maps, in the Office of the County
Recorder of San Bernardino County, California, described as follows:
Beginning at a point on the Northerly line of the Cajon State Highway which is South 40.
46' East, 283 feet from the point of intersection of the West line of said Lot 11 with the
said Southerly line; thence North 020 56' East, 304 feet to the true point of beg'inning;
thence South 87" 14' East, 312.66 feet to the Easterly line of the property deeded to Clas
P. Erickson and wife, recorded June 6, 1949 in Book 2413, Page 387, of Official Records
of San Bernardino County; thence North 0.38' East, 934 feet, more or less, to the
Southerly line of the property deeded to the San Bernardino County Flood Control, as
recorded in Book 1716, Page 156, of Official Records; thence along said line North 590 41 '
15" West, 589.90 feet to the West line of said Lot 11; thence along said West line 50uth
02' 56' West, 826 feet, more or less, to a point 500 feet from the Northerly line of said
Cajon State Highway: thence South 460 46' East, 283 feet; thence South 020 56' West,
196 feet to the point of beginning.
PARCEL 2:
That portion of Block 11 of Meyer Barclay Subdivision, in the City of San Bernardino, as
per Map recorded in Book 2, Page 32 of Maps, Records of said County, described as
follows:
8eginning at an iron pipe on the Northerly right of way line of California State Highway,
distant South 460 46' East, 697.40 feet from the intersection of said right of way line with
the West line of said Block 11; and said point of intersection is located North 30 4' East,
2130.90 feet from the Southwest corner of said Block 11; thence South 460 46' East
along said right of way line 100 feet to an iron pipe; thence North 30 4' East, 1146 feet to
an iron pipe; thence North 460 46' West, 100 feet to an iron pipe; thence parallel with the
West line of said Block 11, South 30 4' West, 1145 feet to the point of beginning.
Excepting therefrom that portion lying Southerly of the Northerly line of the property, as
conveyed to the State of California, recorded June 6, 1957 in Book 4249, Page 130, of
Official Records.
PARCEL 3:
All that portion of Lot 11, according to the Map of Meyers and Barclay Subdivision of a.
portion of the Muscupiabe Rancho, in the City of San Bernardino, as per Map record,:,d In
Book 2, Page 32 of Maps, Records of said County, lying within the following described
property:
That portion of Lots "J", "K", "L" and "M" according to Map showing a portion of Meyer
and Barclay Subdivision, in the City of San Bernardino, as per Map recorded In Book 12,
Page 18 of Maps, in the Office of the County Recorder of said County and a portion of Lot
11 according to Map of Meyers and Barclay Subdivision of a portion of the Muscupiabe
Ra~cho in said County, as per Map recorded in Book 2, Page 32 of Maps, in the Office of
the County Recorder of said County, described as follows:
Commencing at the center line intersection of Irving ton Avenue and Cypress Avenue, as
shown on the Map of the Town of Irvington recorded in Book 3, Page 9 of Maps, in the
Office of the County Recorder of San Bernardino County; thence South 270 36' 50" West
100 feet along the centerline of Cypress Avenue; thence North 620 23' 10" West, 344.47
feet to the beglnnmg of a tangent curve concave Northeasterly and having a radius of
2,O~0 ~eet; t~ence. Northwesterly along the arc of said curve 1200 feet to the true point of
beglnmng. SaId pOInt being on the Southwesterly line of Parcel No, 3 as described in deed
to San Bernardino.County Flood Control Distr~ct, recorded July 27, 1948 in Book 2268,
Page 146 of OfficIal Records; thence from saId true point of beginning continuing along
said 2,000 foot radius curve 674.48 feet; thence North 080 29' 20" West, 262.26 feet to
a point on the Northerly line of said Lot "M", said point being South 890 44' 40" West,
297.96 feet from the Northeast corner of said Lot "M"; and South 890 44' 40" West,
30.00 feet from the Southeast corner of said Lot "J"; thence North 270 43' 00" West,
420.00 feet; thence continuing North 27.43' 00" West, 577.00 feet; thence North 37.
00' West, 170 feet to a point on the Easterly line of Lot "K" which is Southerly 660 feet
from the Northeast corner thereof; thence North 37. 00' West, 400 feet, more or less, to
an angle point in the Southwesterly line of Parcel No, 4 in deed to San Bernardino County
Flood Control District recorded July 27, 1948 in 800k 2268, Page 146 of Official Records;
thence North 89015' West, 196 feet to a point on the East line of Lot "L" distant
Southerly 660 feet from the Northeast corner thereof; thence Southwesterly to a point on
the Westerly line of Lot "L" distant Southerly 980 feet from the Northwest corner thereof;
thence Southerly along the West line of said Lot "L" and along the East line of said Lot 11,
a distance of 825 feet, more or less, to the Northeast corner of the land described in deed
to Jerry Berman and Sons, recorded August 26, 1953 in Book 3231, Page 465, of Official
Records; thence North 47" 13' 46" West along the Northerly line of said Berman Land and
the extension thereof 1 330 feet to the Southwest corner of the land conveyed to San
Bernardino County Flood Control District by deed recorded May 4, 1945 .in Book 1766,
Page 305 of Official Records; thence North 59.41' 15" West, 277.89 feet, more or less,
to the Northeast corner of the land conveyed to Billy Lee Turner and other by deed
recorded March 17, 1958 in Book 4462, Page 13 of Official Records; thence South 20 38'
West along the East line thereof of 380 feet, more or less, to the Northwest corner of the
land conveyed to Flossie I. Matthews by deed recorded January 22,1935 in Book 1032,
Page 258 of Official Records; thence South 460 46' East, 100.00 feet to the Northeast
corner of said Matthews Land; thence South 3004' West along the East line thereof 260
feet. more or less, to the Northerly line of the land conveyed to the State of California for
freeway purposes; thence South 47" 11' 00" East along the Northeasterly line of said
State Land, 450 feet, more or less, to a point on the West line of the land conveyed to
Lucile Whitman by deed recorded January 22,1932 in Book 784, Page 65 of Official
Records; thence North 2.40' 06" East. 155 feet, more or less, to the Northwest corner of
said Whitman Land; thence South 47" 11' 35" East, 840 feet to the East line of said Lot
11; thence Southerly along the East line of said Lot 11 to the Northeasterly line or. said
State of California Land; thence South 47. 11' DO" East along said Northeasterly line 1965
feet, more or less, to a point on a line extending from the most Northerly corner of Lot 15
of Tract No. 3401, as per Map recorded in Book 46, Page 94 of Maps, to the pOInt of
beginning, thence Northeasterly along said line a distance of 595 feet, more or less, to the
point of beginning.
Excepting therefrom any portion lying within Tract ~o. 12756 as per Map recorded in Book
197, Pages 22 through 25, inclUSIve, Records of saId County.
Also excepting therefrom from portions of s!lid land 1/2 of all oil, gas a~d other
hydrocarbons and minerals, now or at any time here~fter sl~uated th<;rem a~d thereunder or
producible therefrom. together with the free and unlimIted rlght to mine, droll and bore
beneath the surface of said land at any level or levels, 100 feet or more below the surfa.ce
of said land for the purpose of development or removal of such substances as reserved In
the deeds recorded in Book 303B, Page 153; Book 3087, Page 9B; Book 3585, Page 82,
and in Book 4806, Page 533, all of Official Records.
Also excepting therefrom from a portion of sa.id land 1/2 o.f all oil, gas and other .
hydrocarbons, now or at any time hereafter SItuated therein and thereunder or prodUCible
therefrom. together with the free and unlimited right to mine, drill and bore beneath the
surface of said land at any level or levels, 100 feet or more below the surface of said land
for the purpose of development or removal of such substances, as reserved in the deed
from Wilma H. Weaver to Wilbur Ray James, a single man, recorded August 25. 1958 in
800k 4586, Page 188 of Official Records.
Also excepting therefrom from a portion of said land 1/2 of all oil, gas and other
hydrocarbons, now or .at any time hereafter situ,,:ted there.in and thereunder or producible
therefrom, together with the free and unlimited right to mine, drill and bore beneath the
surface of said land at any level or levels, 100 feet or more below the surface of said land
for the purpose of development or removal of such substances, as reserved to William
Casady in deed recorded in Book 4012, Page 320 of Official Records.
PARCEL 4:
All that certain real property located in the City of San Bernardino, described as follows:
A portion of Section 2, Township 1 North, Range 5 West, San Bernardino Meridian,
unsurveyed as said Section line may be extended across Rancho Muscupiabe, as per Map
recorded in Book 7, Page 23 of Maps, Records of said County, said parcel also'being a
portion of Block 11 of the Meyer and Barclay Subdivision, as per Map recorded in Book 2,
Page 32 of Maps, Records of said County, more particularly described as follows:
Beginning at a point on the Northerly line of the Cajon State Highway, said point being
North 46050' West. 420 feet from the intersection of said Northerly line and the Easterly
line of Said block 11; thence along said Northerly line of said Cajon State Highway. North
46050' West, 420 feet to a point; thence along a line parallel to the Easterly line of said
Block 11, North 2' 38' East, 1037.14 feet to a point; thence along a line parallel to said
Northerly line of said Cajon State Highway, South 46' 50' East, 420 feet to a point; thence
along a line parallel to the Easterly line of said Block 11. South 2' 38' West, 1037.14 feet,
more or less, to the point of beginning.
Excepting therefrom that portion lying Southerly of the Northeasterly line of that land
described in the deed to the State of California. recorded August 2, 1957 in Book 4294,
Page 143 of Official Records of said County.
PARCEL 5:
All that certain real property located in the City of San Bernardino, described as follows:
That portion of Block 11, Meyer and Barclay Subdivision, as per Map recorded in Book 2,
Page 32 of Maps, Records of said County, described as follows:
Beginning at the intersection of the East line of said Block 11 with the Northeasterly .Iine of
the parcel conveyed to the State of California by deed record",d June 5. 1957, as
Instrument NG. 174. in Book 4247. Page 563, of Official Records of said County; thence
North 2040' 6" East. 155.18 feet to the Northeasterly corner of the parcel of land
conveJed to Harold 5. ladas by deed recorded August 12, 1959 as Instrument No. 93. in
Book 4901. Page 17 of Official Records of said County; thence North 460 50' DO" Wes~
420 feet. more or less, to the Northwesterly corner of said ladas land; then~e South 2
40' 06" East, 155.08 feet along the West line of said Ladas ~and to a pOint In. the 0 '
Northeasterly line of said parcel conveyed to the State of Callforma; thence South 47 11
DO" West, 420.06 feet to the point of beginning.
SUBJECT TO REVISIONS -- TO BE BASED ON BOUNDARIES AS DETERMINED BY AlTA
SURVEY
"
EXHIBIT A-I
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
Legal Description of SBCFCD Parcel
EXHIBIT A-I
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San Bernardino Flood Control District Parcels
Legal Description
Parcel A:
A portion of Lot II ofthe Re-subdivision of Meyers and Barclay Subdivision, in the City
of San Bernardino, as shown by Map on file in Book 12, Page 18 of Maps, in the Office
of the County Recorder of San Bernardino County. California. described as follows:
Commencing at the southwest comer of the land conveyed to San Bernardino Flood
Control District. per document recorded in Book 1766, Page 305 of Official Records,
thence South 47 degrees 13 minutes 46 seconds East, 'along the southwesterly line of the
land described in document recorded in Book 1716, Page 156 of Official Records, a
di stance of 1328.09 feet, to the most southerly corner of said parcel of land described in
document recorded in said Book 1716, Page J 56 of Official Records, said point also
being the True Point of Beginning, and located on the East line of said Lot I I;
thence North 02 degrees 40 minutes 02 seconds East, along said East line of Lot II, a
distance of 826.47 feet;
thence South 42 degrees 46 minutes 14 seconds West a distance of 632.15 feet, to a point
on said southwesterly line of the land described in document recorded in Book 1716,
Page 156 of Official Records;
thence South 47 degrees 13 minutes 46 seconds East, along said southwesterly line, a
distance of 532.39 feet, to the True Point of Beginning.
Michael L. Anderson. PLS 6916
Page lof2
San Bernardino Flood Control District Parcels
Legal Description
Parcel B:
That portion of lots "J" , "K", "I", and "M" according to map showing a portion of
Meyer and Barclay Subdivision, in the City of San Bernardino, as shown by map
recorded in Book] 2, Page 18 of Maps, in the Office of the County Recorder of San
Bernardino County, California, and a portion of Block 82 and 83 in Irvington land and
Water Company's Subdivision of part of Muscupiabe Rancho as per map filed in Book I,
Page 32 of Records of Survey, in the Office of the County Recorder of San Bernardino
County, Cali fomia, also together with that portion of Irvington A venue as vacated by
Resolution No. 92.100, recorded February 23, 1992 as Instrument No. 92-123090 of
Official Records, described as follows:
Beginning at the northeast comer of Tract No. 12756, as per map recorded in Book 197,
Pages 22 through 25, inclusive, of Maps, records of said county, said corner marked by a
one inch iron pipe tagged LS. 3807, thence North 47 degrees 03 minutes 41 seconds
East, a distance of 128.77 feet;
thence North 25 degrees 20 minutes 47 seconds West, a distance of 1406.96 feet; thence
North 29 degrees 46 minutes 28 seconds West, a distance of 1297.60 feet;
thencc North 37 degrees 23 minutes 01 seconds West, a distance of357.87 feet;
.thence North 38 degrces I J minutes 43 seconds West, a distance of 108.01 feet to an
angle point in thc southwesterly line of Parcel 4 of said document recorded in Book 2268,
Page 146;
thence along said southwesterl y line South 30 degrees 13 minutes 34 seconds East,
distance of 696.81 fect;
thence South 28 degrees 06 minutes 59 seconds East, a distance of 997.26 feet;
thcnce South 09 dcgrees 03 scconds 06 East, a distance 01'263.89 feet;
thence southeasterly a distance of 35.94 feet along a tangent curve, concave
northeasterly, having a radius of 1999.19 feet and a central angle of 01 degrees 01
minutes 48 seconds to the northwesterly corner of lot 65 of said Tract No. 12765;
thence continuing along said tangent curve, a distance of 1237.45 feet, through a central
angle of 35 degrees 27 minutes 53 seconds to the .Point of Beginning.
Michael L Anderson, PlS 6916
Page 20f2
EXHIBIT A-2
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
Site and Vicinity Map
EXHIBIT A-2
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SITE LOCA nON
Devore Road
I - 215 Freeway
279-Lot Single Family
Residential Development
Retained by Redevelopment Agency for
Future Park Development
Little League Drive
EXHIBIT B
TO DISPOSITION AND DEVELOPMENT AGREEMENT
Scope of Development
[Attached Behind this Page)
EXHIBIT B
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Scope of Development
Each residential lot in the Site shall be referred to hereafter as a "Site Lot" and shall be a
minimum of7,200 gross square feet in size.
The Site shall be developed to the satisfaction of each of the conditions of the final tract maps for
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 undertake the design and construction of and develop of the Site In
accordance with the Schedule of Performance and this Agreement.
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 adjacent 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 the Schedule of Performance and plans and
specifications approved by the City.
The Developer shall cause the proper documents to be filed and fees paid to all governmental or
regulatory agencies, including utilities, for applications for all required permits and approvals.
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 completed prior to the issuance of any building permits for the Site.
EXHIBIT B-1
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EXHIBIT C
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
Form of Agency Grant Deed
[Attached Behind This Page)
EXHIBIT C
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RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Century Crowell Communities, LP
1535 South "D" Street
Suite 200
San Bernardino, California 92408
Exempt from Recording fee
oursuant to Gov't Code S 27383
(Soace above for Recorder's use)
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
GRANT DEED
For valuable consideration, the receipt of which is hereby acknowledged, the
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body,
corporate and politic ("Grantor") hereby grants to Century Crowell Communities, LP, a
California limited partnership ("Grantee") the real property legally described in Attachment No.
1 and by this reference incorporated herein ("Property").
1. The Property is conveyed subject to that certain Disposition and
Development Agreement dated as of r ], 2006, 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.
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
EXHIBIT C-l
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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 enjoyment
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, transfer,
use, occupancy, tenure or enjoyment of the land, nor shall the transferee 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 of the land."
3. No violation or breach of the covenants, conditions, restnctlOns,
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.
EXHIBIT C-2
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IN WITNESS WHEREOF, the Grantor and Grantee have caused this instrument
to be executed on their behalf by their respective officers thereunto duly authorized this _ day
of
-
GRANTOR:
REDEVELOPMENT AGENCY OF THE CITY
OF SAN BERNARDINO, a public body, corporate
and politic
By:
Maggie Pacheco, Executive Director
ATTEST:
Agency Secretary
APPROVED AS TO LEGAL FORM:
By:
Agency Counsel
EXHIBIT C-3
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ACCEPTANCE OF GRANT DEED
The provisions of this Grant Deed are hereby approved and accepted.
GRANTEE:
CENTURY CROWELL COMMUNITIES, LP
a California limited partnership
By:
Century Homes Communities,
a California corporation
General Partner
Its:
Date:
By:
John W. Pavelak
Its: President
EXHIBIT C-4
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ATTACHMENT NO. I
TO
GRANT DEED
Legal Description of Property
EXHIBIT C-5
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PARCEL 1:
That portion of the following described property lying North of the Northerly line of the
property conveyed to th~ State of California by deed recorded December 6, 1957 in Book
4384, Page 553 of OffiCial Records:
That portion of Lot 11 of Meyer's and Barclay Subdivision, in the City of San Bernardino,
as shown by Map on file in Book 2, Pagels) 32 of Maps, in the Office of the County
Recorder of San Bernardino County, California, described as follows:
Beginning at a point on the Northerly line of the Cajon State Highway which is South 400
46' East, 283 feet from the point of intersection of the West line of said Lot 1" with the
said Southerly line; thence North 020 56' East. 304 feet to the true point of beginning;
thence South 87" 14' East, 312.66 feet to the Easterly line of the property deeded to Clas
P. Erickson and wife, recorded June 6, 1949 in Book 2413, Page 387, of Official Records
of San Bernardino County; thence North D. 38' East, 934 feet, more or less, to the
Southerly line of the property deeded to the San Bernardino County Flood Control, as
recorded in Book 1716, Page 156, of Official Records; thence along said line North 590 41'
15" West, 589.90 feet to the West line of said Lot 11; thence along said West line South
02' 56' West, 826 feet, more or less, to a point 500 feet from the Northerly line of said
Cajon State Highway; thence South 460 46' East, 283 feet; thence South 020 56' West,
196 feet to the point of beginning.
PARCEL 2:
That portion of Block 11 of Meyer Barclay Subdivision, in the City of San Bernardino, as
per Map recorded in Book 2, Page 32 of Maps, Records of said County, described as
follows:
Beginning at an iron pipe on the Northerly right of way line of California State Highway,
distant South 460 46' East, 697.40 feet from the intersection of said right of way line with
the West line of said Block 11; and said point of intersection is located North 30 4' East,
2130.90 feet from the Southwest corner of said Block 11; thence South 460 46' East
along said right of way line 100 feet to an iron pipe; thence North 30 4' East, 1146 feet to
an iron pipe; thence North 460 46' West, 100 feet to an iron pipe; thence parallel with the
West line of said Block 1" South 30 4' West, 1146 feet to the point of beginning.
Excepting therefrom that portion lying Southerly of the Northerly line of the property, as
conveyed to the State of California, recorded June 6, 1957 in Book 4249, Page 130, of
Official Records.
PARCEL 3:
All that portion of Lot 11, according to the Map of Meyers and Barclay Subdivision of a.
portion of the Muscupiabe Rancho, in the City of San Bernard.ino, as per Map recorded In
Book 2, Page 32 of Maps, Records of said County, lYing Within the follOWing deSCribed
property:
That portion of Lots "J", "K", "L': and "M" according to Map showing a portion of Meyer
and Barclay Subdivision, in the City of San BernardinO, as per Map recorded In Book 12,
Page 18 of Maps, in the Office of the County Recorder of said County and a portion. of Lot
1" according to Map of Meyers and Barclay Subdivision of a portion of the Muscuplabe
Rancho in said County, as per Map recorded in Book 2, Page 32 of Maps, In the Office of
the County Recorder of said County, described as follows:
J
Commencing at the center line inters~ction of Irvington Avenue and Cypress Avenue, as
shown on the Map of the Town of Irvlngton recorded in Book 3, Page 9 of Maps, in the
Office of the County Recorder of San Bernardino County; thence South 270 36' 50" West
100 feet along the centerline of Cypress Avenue; thence North 620 23' 10" West, 344.47
feet to the beglnnong of a tangent curve concave Northeasterly and having a radius of
2,O~0 reet; t~ence. Northwesterly along the arc of said curve 1200 feet to the true point of
beglnnong. Said pOInt being on the Southwesterly line of Parcel No.3 as described in deed
to San Bernardino County Flood Control District, recorded July 27, 1948 in Book 2268,
Page 146 of Official Records; thence from said true point of beginning continuing along
said 2,000 foot radius curve 674.48 feet; thence North 080 29' 20" West, 262.26 feet to
a point on the Northerly line of said Lot "M", said point being South 890 44' 40" West.
297.96 feet from the Northeast corner of said Lot "M"; and South 8go 44' 40" West,
30.00 feet from the Southeast corner of said Lot "J"; thence North 270 43' 00" West,
420.00 feet; thence continuing North 27043' 00" West, 577.00 feet; thence North 370
DO' West, 170 feet to a point on the Easterly line of Lot "K" which is Southerly 660 feet
from the Northeast corner thereof; thence North 370 DO' West, 400 feet, more or less, to
an angle point in the Southwesterly line of Parcel No. 4 in deed to San Bernardino County
Flood Control District recorded July 27, 1948 in Book 2268, Page 146 of Official Records;
thence North 8go 15' West, 196 feet to a point on the East line of Lot "L" distant
Southerly 660 feet from the Northeast corner thereof; thence Southwesterly to a point on
the Westerly line of Lot "L" distant Southerly 980 feet from the Northwest corner thereof;
thence Southerly along the West line of said Lot "L" and along the East line of said Lot 11.
a distance of 825 feet, more or less, to the Northeast corner of the land described in deed
to Jerry Berman and Sons, recorded August 26, 1 953 in Book 3231, Page 465, of Official
Records; thence North 47" 13' 46" West along the Northerly line of said Berman Land and
the extension thereof 1 330 feet to the Southwest corner of the land conveyed to San
Bernardino County Flood Control District by deed recorded May 4, 1 g451n Book 1766,
Page 305 of Official Records; thence North 5go 41' 15" West, 277.89 feet, more or less,
to the Northeast corner of the land conveyed to Billy Lee Turner and other by deed
recorded March 17. 1958 in Book 4462, Page 73 of Official Records; thence South 2038'
West along the East line thereof of 380 feet, more or less, to the Northwest corner of the
land conveyed to Flossie I. Matthews by deed recorded January 22, 1935 in Book 1032,
Page 258 of Official Records; thence South 46" 46' East, 100.00 feet to the Northeast
corner of said Matthews Land; thence South 30 04' West along the East line thereof 260
feet. more or less, to the Northerly line of the land conveyed to the State of California for
freeway purposes; thence South 47" 11' DO" East along the Northeasterly line of said
State Land, 450 feet, more or less, to a point on the West line of the land conveyed to
Lucile Whitman by deed recorded January 22, 1932 in Book 7B4, Page 65 of Official
Records; thence North 2" 40' 06" East. 155 feet. more or less, to the Northwest corner of
said Whitman Land; thence South 47" 11' 35" East, 840 feet to the East line of said Lot
11; thence Southerly along the East line of said Lot 11 to the Northeasterly line of said
State of California Land; thence South 470 11' DO" East along said Northeasterly line 1 965
feet, more or less, to a point on a line extending from the most Northerly corner .of Lot 15
of Tract No. 3401, as per Map recorded in Book 46, Page 94 of Maps. to the pOint of
beginning, thence Northeasterly along said line a distance of 595 feet, more or less, to the
point of beginning.
Excepting therefrom any portion lying within Tract 1';10. 12756as per Map recorded in Book
197, Pages 22 through 25, inclusive, Records of said County.
Also excepting therefrom from portions of s!lid land 1/2 of .all oil, gas a~d other
hydrocarbons and minerals, now or at any time here~fter sl~uated therein a~d thereunder or
producible therefrom, together with the free and unlimited fight to mIne, dnll and bore
beneath the surface of said land at any level or levels. 100 feet or more below the 5urfa.ce
of said land for the purpose of development or removal of such substances as reserved m
the deeds recorded in Book 3038, Page 153; Book 3087, Page 98; Book 3585, Page 82,
and in Book 4806. Page 533. all of Official Records.
Also excepting therefrom from a portion of said land 1/2 o.f all oil, gas and other .
hydrocarbons, noW or at any time hereafter situated there.1n and thereunder or producible
therefrom, together with the free and unlimited right to mine, dnll and bore beneath the
surt'ace of said land at any level or levels, 100 feet or more below the surface of said land
for the purpose of developm~n[ or removal of su~h substances, as reserved in the deed
from Wilma H. Weaver to Wilbur Ray James, a single man, recorded August 25 1958 in
Book 4586, Page 188 of Official Records. .
Also excepting therefrom from a portion of said land 1/2 of all oil, gas and other
hydrocarbons. noW or .at any time hereafter situated there.in and thereunder or producible
therefrom, together with the free and unlimited (lght to mine, drill and bore beneath the
surface of said land at any level or levels. 100 feet or more below the surface of said land
for the purpose of development or removal of such substances. as reserved to William
Casady in deed recorded in Book 4012, Page 320 of Official Records.
PARCEL 4:
All that certain real property located in the City of San Bernardino, described as follows:
A portion of Section 2. Township 1 North. Range 5 West, San Bernardino Meridian.
unsurveyed as said Section line may be extended across Rancho Muscupiabe, as per Map
recorded in Book 7, Page 23 of Maps. Records of said County. said parcel also being a
portion of Black 11 of the Meyer and Barclay Subdivision. as per Map recorded in Book 2,
Page 32 of Maps. Records of said County. more particularly described as follows:
Beginning at a paint on the Northerly line of the Cajon State Highway, said point being
North 46050' West. 420 feet from the intersection of said Northerly line and the Easterly
line of said black 11; thence along said Northerly line of said Cajon State Highway. North
46050' West. 420 feet to a point; thence along a line parallel to the Easterly line of said
Black 11, North 20 38' East, 1037.14 feet to a point; thence along a line parallel to said
Northerly line of said Cajon State Highway, South 460 50' East. 420 feet to a point; thence
along a line parallel to the Easterly line of said Black 11, South 20 3B' West, 1037.14 feet,
more or less, to the point of beginning.
Excepting therefrom that portion lying Southerly of the Northeasterly line of that land
described in the deed to the State of California. recorded August 2. 1957 in Book 4294,
Page 143 of Official Records of said County.
PARCEL 5:
All that certain real property located in the City of San Bernardino. described as follows:
That portion of Block 11, Meyer and Barclay Subdivision, as per Map recorded in Book 2,
Page 32 of Maps. Records of said County. described as follows:
Beginning at the intersection of the East line of said 810ck 11 with the Northeasterly .Iine of
the parcel conveyed to the State of Califernia by deed. recorded June 5. 1957, as
Instniment No. 174, in Book 4247, Page 563. of OffiCial Records of said County; thence
North 2" 40' 6" East. 155.18 feet to the Northeasterly corner of the parcel of land
conveyed to Harold S. Ladas by deed recorded August 12, 1959 as Instrument No. 93, in
Book 4901. Page 17 of Official Records of said County; thence North 460 50' 00" Wes~
420 feel. mare or less, to the Northwesterly corner of said Ladas Land; thence South 2
40' 06" East. 155.08 feet along the West line of said Ladas Land to a pOInt 11\ the
Northeasterly line of said parcel conveyed to the State of California; thence South 470 11'
00. West, 420.06 feet to the point of beginning.
SUBJECT TO REVISIONS -- TO BE BASED ON BOUNDARIES AS DETERMINED BY ALTA
SURVEY
EXHIBIT D
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
Schedule of Performance
[Attached Behind this Page]
EXHIBIT D
RVPUBIKRANDOLPHI681716.15
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Schedule of Performance
(Days shall be calendar days, and all dates herein are subject to change due to force majeure in
accordance with Section 6.06 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]
Agencv Approval of Agreement July 2006
Close of Escrow Upon approval of final map or sooner
at the discretion of developer
July 2007 - February 2008
Due Diligence October 2006
Submittal of construction documents, November 2006 - August 2007
grading, public improvement and
landscaping plans
Obtain all environmental permits, March 2007 - July 2007
obtain flood control permits, close
escrow in flood control parcels
Start of construction of Site grading August 2007
Completion of Site grading December 2007
Start of construction of Public December 2007
Improvements
Completion of Public Improvements April 2008
Start of construction of New Homes April 2008
Completion of initial phase of October 2008
improvement of New Homes
Completion of all New Homes October 2010
EXHIBIT D-l
RVPUBIKRANDOLPHI681 7 16. 1 5
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EXHIBIT E
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
Project Pro Forma
[Attached Behind This Page)
EXHIBIT E
RVPUB\KRANDOLPH\681716.15
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EXHIBIT F
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
Certificate of Completion
(Attached Behind This Page)
EXHIBIT F
RVPUB\KRANDOLPH\681716.15
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Recording Requested By
And When Recorded Mail To:
Century Crowell Communities, LP
1535 South "D" Street
Suite 200
San Bernardino, California 92408
Exempt from Recording Fee per
Government Code Section 27383
(Space above for Recorder's Use)
CERTIFICATE OF COMPLETION
I, the Executive Director of the Redevelopment Agency of the City of San
Bernardino (the "Agency") hereby certify as follows:
Section 1. The improvements required to be constructed in accordance with that
certain Disposition and Development Agreement (the "Agreement") dated I 1, 2006, by
and between the Agency and Century Crowell Communities, LP, a California limited
partnership, (the "Developer") on the "Site" more fully described in Attachment No. I 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 Site, excluding any minor "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 use and occupancy of the Site,
whether or not said improvements are on the Site 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 Site, the Project, and the dates for the beginning and
completion of construction of improvements thereon under the Agreement; provided, however,
that the Agency may enforce any covenant in grant deed pursuant to which the Site 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 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.
Section 3. The Site to which this Certificate of Completion pertains is more
fully described in Attachment No. I attached hereto.
EXHIBIT F-l
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DATED AND ISSUED this _ day of
,200_,
Executive Director of the Redevelopment Agency
of the City of San Bernardino
EXHIBIT F-2
RVPUBIKRANDOLPH\681 J 16.15
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ATTACHMENT NO. I
TO
CERTIFICATE OF COMPLETION
Legal Description of Site
[Attacbed Bebind Tbis Page]
EXHIBIT F-3
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PARCEL 1:
That portion of the following described property lying North of the Northerly line of the
property conveyed to the State of California by deed recorded December 6. 1957 in Book
4384. Page 553 of Official Records:
That portion of Lot 11 of Meyer's and Barclay Subdivision, in the City of San Bernardino.
as shown by Map on file in Book 2, Pagels) 32 of Maps, in the Office of the County
Recorder of San Bernardino County, California, described as follows:
Beginning at a point on the Northerly line of the Cajon State Highway which is South 40.
46' East, 283 feet from the point of intersection of the West line of said Lot 11, with the
said Southerly line; thence North 02" 56' East. 304 feet to the true point of beginning;
thence South 87" 14' East, 312.66 feet to the Easterly line of the property deeded to Clas
P. Erickson and wife, recorded June 6. 1949 in Book 2413. Page 387, of Official Records
of San Bernardino County; thence North D. 38' East, 934 feet, more or less, to the
Southerly line of the property deeded to the San Bernardino County Flood Control, as
recorded in Book 1716, Page 156, of Official Records; thence along said line North 59" 41'
15" West. 589.90 feet to the West line of said Lot 11; thence along said West line South
02" 56' West, 826 feet, more or less, to a point 500 feet from the Northerly line of said
Cajon State Highway; thence South 46. 46' East. 283 feet; thence South 020 56' West,
196 feet to the point of beginning.
PARCEL 2:
That portion of Block 11 of Meyer Barclay Subdivision, in the City of San Bernardino, as
per Map recorded in Book 2, Page 32 of Maps. Records of said County. described as
follows:
Beginning at an iron pipe on the Northerly right of way line of California State Highway.
distant South 46" 46' East. 697.40 feet from the intersection of said right of way line with
the West line of said Block 11: and said point of intersection is located North 3" 4' East,
2130.90 feet from the Southwest corner of said Block 11; thence South 460 46' East
along said right of way line 100 feet to an iron pipe; thence North 3" 4' East. 1146 feet to
an iron pipe; thence North 46. 46' West. 100 feet to an iron pipe; thence parallel with the
West line of said Block 11, South 3. 4' West, 1146 feet to the point of beginning.
Excepting therefrom that portion lying Southerly of the Northerly line of the property, as
conveyed to the State of California, recorded June 6, 1957 in Book 4249, Page 130. of
Official Records.
PARCEL 3:
All that portion of Lot 11, according to the Map of Meyers and Barclay Subdivision of a,
portion of the Muscupiabe Rancho, in the City of San Bernardono. as per Map recorded In
Book 2, Page 32 of Maps, Records of said County, lying within the following descnbed
property:
That portion of Lots "J", "K", "L': and "M" according to Map showing a port~on of Meyer
and Barclay Subdivision. in the CIty of San Bernardono. as per Map recorded .n Book 12,
Page 18 of Maps. in the Office of the County Recorder of said County and a portion of Lot
11 according to Map of Meyers and Barclay Subdivision of a portion of the Muscup,abe
Ra~cho in said County. as per Map recorded in Book 2, Page 32 of Maps, in the Office of
the County Recorder of said County. described as follows:
Commencing at the center line intersection of Irvington Avenue and Cypress Avenue, as
shown on the Map of the Town of Irvington recorded in Book 3, Page 9 of Maps, in the
Office of the County Recorder of San Bernardino County; thence South 270 36' 50" West
100 feet alongth~ centerline of Cypress Avenue; thence North 620 23' 10" West, 344.47
feet to the beginning of a tangent curve concave Northeasterly and having a radius of
2,090 ~eet; ~ence. Northwesterly along the arc of said curve 1200 feet to the true point of
beglnnong. Said pOint being on the Southwesterly line of Parcel No.3 as described in deed
to San BernardinoCounty Flood Control District, recorded July 27, 194B in Book 226B,
Page 146 of Official Records; thence from said true point of beginning continuing along
said 2,000 foot radius curve 674.46 feet; thence North 080 29' 20" West, 262.26 feet to
a point on the Northerly line of said Lot "M", said point being South 690 44' 40" West.
297.96 feet from the Northeast corner of said Lot "M"; and South 890 44' 40" West,
30.00 feet from the Southeast corner of said Lot "J"; thence North 270 43' 00" West,
420.00 feet; thence continuing North 27043' DO" West, 577.00 feet; thence North 370
00' West. 170 feet to a point on the Easterly line of Lot "K" which is Southerly 660 feet
from the Northeast corner thereof; thence North 370 00' West, 400 feet, more or less, to
an angle point in the Southwesterly line of Parcel No. 4 in deed to San Bernardino County
Flood Control District recorded July 27, .1946 in Book 2268, Page 146 of Official Records;
thence North 690 15' West, 196 feet to a point on the East line of Lot "l" distant
Southerly 660 feet from the Northeast corner thereof; thence Southwesterly to a point on
the Westerly line of lot "l" distant Southerly 980 feet from the Northwest corner thereof;
thence Southerly along the West line of said lot "l" and along the East line of said Lot 11,
a distance of 825 feet. more or less, to the Northeast corner of the land described in deed
to Jerry 6erman and Sons. recorded August 26. 1953 in Book 3231, Page 465, of Official
Records; thence North 470 13' 46" West along the Northerly line of said Berman Land and
the extension thereof 1 330 feet to the Southwest corner of the land conveyed to San
Bernardino County Flood Control District by deed recorded May 4, 1945in Book 1766,
Page 305 of Official Records; thence North 59041' 15" West, 277 .69 feet, more or less,
to the Northeast corner of the land conveyed to 8i11y Lee Turner and other by deed
recorded March 17. 1956 in Book 4462, Page 73 of Official Records; thence South 20 38'
West along the East line thereof of 380 feet, more or less, to the Northwest corner of the
land conveyed to Flossie I. Matthews by deed recorded January 22, 1935 in Book 1032.
Page 258 of Official Records; thence South 460 46' East, 100.00 feet to the Northeast
corner of said Matthews land; thence South 3" 04' West along the East line thereof 260
feet. more or less. to the Northerly line of the land conveyed to the State of California for
freeway purposes; thence South 47" 11' 00" East along the Northeasterly line of said
State Land. 450 feet, more or less, to a point on the West line of the land conveyed to
Lucile Whitman by deed recorded January 22, 1932 in Book 784, Page 65 of Official
Records; thence North 20 40' 06" East, 155 feet. more or less, to the Northwest corner of
said Whitman land; thence South 47" 11' 35" East. 840 feet to the East line of said Lot
11; thence Southerly along the East line of said Lot 11 to the Northeasterly line of. said
State of California Land; thence South 470 11' DO" East along said Northeasterly line 1965
feet. more or less, to a point on a line extending from the most Northerly corner of lot 15
of Tract No. 3401. as per Map recorded in Book 46, Page 94 of Maps. to the pOInt of
beginning. thence Northeasterly along said line a distance of 595 feet, more or less, to the
point of beginning.
Excepting therefrom any portion lying within Tract No. 12756 as per Map recorded in Book
197. Pages 22 through 25, inclusive. Records of said County.
Also excepting therefrom from portions of said land 1/2 of all oil. gas a~d other
hydrocarbons and minerals. now or at any time here~f~er si~uated th~reln a~d thereunder or
producible therefrom. together with the free and unlimIted roght to mine, droll and bore
beneath the surface of said land at any level or levels, 100 feet or more below the surface
of said land for the purpose of development or removal of such substances as reserved In
the deeds recorded in Book 303B, Page 153; Book 3087, Page 98; Book 3585. Page B2.
and in 800k 4806. Page 533. all of Official Records.
Also excepting therefrom from a portion of said land 1/2 of all oil, gas and other .
hydrocarbons. now or at any time hereafter situated therein and. thereunder or prodUCIble
therefrom. together with the free and unlimited right to mine, dnll and bore beneath the
surface of said land at any level or levels, 100 feet or more below the surface of said land
for the purpose of developm~nt or removal of sUc:h substances, as reserved in the deed
from Wilma H. Weaver to WIlbur Ray James, a sIngle man, recorded August 25. 1958 in
Book 45B6, Page 1 BB of Official Records.
Also excepting therefrom from a portion of said land 1/2 of all oil. gas and other
hydrocarbons, now or .at any time hereafter situated therein and thereunder or producible
therefrom, together WIth the free and unlimIted fight to mine, drill and bore beneath the
surface of said land at any level or levels, 100 feet or more below the surface of said land
for the purpose of development or removal of such substances, as reserved to William
Casady in deed recorded in Book 4012, Page 320 of Official Records.
PARCEL 4:
All that certain real property located in the City of San Bernardino, described as follows:
A portion of Section 2, Township 1 North, Range 5 West, San Bernardino Meridian,
unsurveyed as said Section line may be extended across Rancho Muscupiabe, as per Map
recorded in Book 7, Page 23 of Maps, Records of said County, said parcel also'being a
portion of Block 11 of the Meyer and Barclay Subdivision, as per Map recorded in Book 2,
Page 32 of Maps, Records of said County, more particularly described as follows:
Beginning at a point on the Northerly line of the Cajon State Highway, said pOint being
North 46050' West, 420 feet from the intersection of said Northerly line and the Easterly
line of said block 11; thence along said Northerly line of said Cajon State Highway, North
46050' West, 420 feet to a point; thence along a line parallel to the Easterly line of said
Block 11, North 20 3B' East, 1037.14 feet to a point; thence along a line parallel to said
Northerly line of said Cajon State Highway, South 460 50' East, 420 feet to a point; thence
along a line parallel to the Easterly line of said Block 11, South 20 38' West, 1037.14 feet,
more or less, to the point of beginning.
Excepting therefrom that portion lying Southerly of the Northeasterly line of that land
described in the deed to the State of California, recorded August 2, 1957 in Book 4294,
Page 143 of Official Records of said County.
PARCEL 5:
All that certain real property located in the City of San Bernardino, described as follows:
That portion of Block 11, Meyer and Barclay Subdivision, as per Map recorded in Book 2,
Page 32 of Maps, Records of said County, described as follows;
Beginning at the intersection of the East line of said Block 11 with the Northeasterly .Iine of
the parcel conveyed to the State of California by deed. recorded June 5: 1957, as
Instrument No. 174, in Book 4247. Page 563, of OffiCial Records of saId County; thence
North 20 40' 6" East, 155.1 B feet to the Northeasterly corner of the parcel of land
conveyed to Harold S. Ladas by deed recorded August 12, 1959 as Instrument No. 93, in
Book 4901, Page 17 of Official Records of said County; thence North 460 50' 00" Wes~
420 feet. more or less, to the Northwesterly corner of said Ladas Land; then~e South 2
40' 06" East, 155.08 feet along the West line of said Ladas Land to a pOInt In the
Northeasterly line of said parcel conveyed to the State of California; thence South 47" 11'
00" West, 420.06 feet to the point of beginning. .
SUBJECT TO REVISIONS -- TO BE BASED ON BOUNDARIES AS DETERMINED BY ALTA
SURVEY
EXHIBIT G
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
Notice of Agreement
[Attached Behind This Page)
EXHIBIT G
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Recording Requested by and
When Recorded Return to:
The Redevelopment Agency of the
City of San Bernardino
20] North "E" Street, Suite 30]
San Bernardino, CA 9240]
Exempt from Recording Fee per
Government Code Section 27383
(Space above for Recorder's Use)
NOT]CE OF AGREEMENT
The undersigned, the REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO, a public body, corporate and politic ("Agency"), and Century Crowell
Communities, LP, a California limited partnership ("Developer") are parties to that certain
DISPOS]T10N AND DEVELOPMENT AGREEMENT ("Agreement") dated as of I ],
2006, for reference purposes only, by and between the Agency and Developer. Said Agreement
contains obligations, covenants and restrictions affecting certain property ("Site") which is
legally described on the attached Attachment No. I. The Agreement is a public record of the
Agency and is available for inspection and copying at the Agency's offices located at 20] North
"E" Street, Suite 30 I, San Bernardino, California.
REDEVELOPMENT AGENCY OF THE ClTY OF SAN
BERNARDINO, a public body, corporate and politic
By:
Maggie Pacheco, Executive Director
ATTEST:
Agency Secretary
APPROVED AS TO LEGAL FORM:
Agency Counsel
EXHlB]T Go]
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NOTARY ACKNOWLEDGMENT
STATE OF CALIFORNIA }
} ss.
COUNTY OF SAN BERNARDINO}
On before me,
notary public, personally appeared
o , Dpersonally known to me OR proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within 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
EXHIBIT G-2
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ATTACHMENT NO. ]
TO
NOTICE OF AGREEMENT
Legal Description of Site
EXHIBIT G-3
R VPUBIKRANDOLPHI681716.15
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PARCEL 1:
That portion of the following described property lying North of the Northerly line of the
property conveyed to the State of California by deed recorded December 6 1957 in Book
4384, Page 553 of Official Records: '
That portion of Lot 11 of Meyer's and Barclay Subdivision, in the City of San Bernardino,
as shown by Map on file in Book 2, Pagels) 32 of Maps, in the Office of the COUnty
Recorder of San Bernardino County, California, described as follows:
Beginning at a point on the Northerly line of the Cajon State Highway which is South 40.
46' East, 283 feet from the point of intersection of the West line of said Lot 11, with the
said Southerly line; thence North 020 56' East. 304 feet to the true point of beginning;
thence South B70 14' East. 312,66 feet to the Easterly line of the property deeded to Clas
p, Erickson and wife, recorded June 6, 1949 in Book 2413, Page 3B7, of Official Records
of San Bernardino County; thence North 00 38' EaSt, 934 feet, more or less, to the
Southerly line of the property deeded to the San 8ernardino County Flood Control, as
recorded in Book 1716, Page 156, of Official Records; thence along said line North 59041'
15" West, 589,90 feet to the West line of said Lot 11; thence along said West line South
02" 56' West, B26 feet, more or less, to a point 500 feet from the Northerly line of said
Cajon State Highway; thence South 460 46' East, 2B3 feet; thence South 020 56' West,
196 feet to the point of beginning,
PARCEL 2:
That portion of Block 11 of Meyer Barclay Subdivision, in the City of San Bernardino, as
per Map recorded in Book 2, Page 32 of Maps, Records of said County, described as
follows:
8eginning at an iron pipe on the Northerly right of way line of CaliFornia State Highway,
distant South 46046' East, 697.40 feet from the intersection of said right of way line with
the West line of said Block 11; and said point of intersection is located North 30 4' East,
2130.90 Feet From the Southwest corner of said Block 11; thence South 460 46' East
along said right of way line 100 feet to an iron pipe; thence North 30 4' East, 1146 feet to
an iron pipe; thence North 460 46' West, 100 feet to an iron pipe; thence parallel with' the
West line of said Block 11, South 30 4' West. 1146 feet to the point of beginning.
Excepting therefrom that portion lying Southerly of the Northerly line of the property, as
conveyed to the State of California, recorded June 6, 1957 in Book 4249, Page 130, of
Official Records.
PARCEL 3:
All that portion of Lot 11, according to the Map of Meyers and Barclay Subdivision of a.
portion of the Muscupiabe Rancho, in the City of San Bernardino, as per Map recorded 10
Book 2, Page 32 of Maps, Records of said County, lYing Within the follOWing deSCribed
property:
That portion of Lots "J", "K", "L': and "M" according to Map showing a portion of Meyer
and Barclay Subdivision, in the City of San BernardinO, as per Map recorded In Book 12,
Page 1 B of Maps, in the Office of the County Recorder of said County and a portIon. of Lot
11 according to Map of Meyers and Barclay Subdivision of a portion of the Muscup,abe
Ra~cho in said County, as per Map recorded in Book 2, Page 32 of Maps. in the Office of
the County Recorder of said County, described as follows:
Commencing at the center line intersection of Irvington Avenue and Cypress Avenue, as
shown on the Map of the Town of Irvington recorded in Book 3, Page 9 of Maps, in the
Office of the County Recorder of San Bernardino County; thence South 270 36' 50" West
100 feet along the centerline of Cypress Avenue; thence North 620 23' 10" West, 344.47
Feet to the beginning of a tangent curve concave Northeasterly and having a radius of
2,O~0 reet; ~ence. Nort~westerly along the arc of said curve 1200 feet to the true point of
beglnmng. Said pOint being on the Southwesterly line of Parcel No.3 as described in deed
to San Bernardino County Flood Control District, recorded July 27, 1 94B in Book 2268,
Page 146 of Official Records; thence from said true point of beginning continuing along
said 2,000 foot radius curve 674.48 feet; thence North OBo 29' 20" West, 262.26 Feet to
a point on the Northerly line of said Lot "M", said point being South 8go 44' 40" West,
297.96 feet from the Northeast corner of said Lot "M"; and South 890 44' 40" West
30.00 Feet from the Southeast corner of said Lot "Y; thence Nonh 270 43' 00" We;t,
420.00 feet; thence continuing Nonh 27043' 00" West, 577.00 Feet; thence North 370
00' West, 170 Feet to a point on the Easterly line of Lot "K" which is Southerly 660 feet
from the Northeast corner thereof; thence Nonh 37" 00' West, 400 feet, more or less, to
an angle point in the Southwesterly line of Parcel No.4 in deed to San Bernardino County
Flood Control District recorded July 27, 1948 in Book 2268, Page 146 of Official Records;
thence North 890 15' West. 196 feet to a point on the East line of Lot "L" distant
Southerly 660 feet From the Northeast corner thereoF; thence Southwesterly to a point on
the Westerly line of Lot "L" distant Southerly 980 feet from the Northwest corner thereof;
thence Southerly along the west line of said Lot "L" and along the East line of said Lot 11.
a distance of 825 feet, more or less, to the Northeast corner of the land described in deed
to Jerry 8erman and Sons, recorded August 26, 1953 in Book 3231, Page 465, of Official
Records; thence North 47" 13' 46" West along the Northerly line of said Berman Land and
the extension thereoF 1330 Feet to the Southwest corner of the land conveyed to San
Bernardino County Flood Control District by deed recorded May 4, 1945 in Book 1766,
Page 305 of Official Records; thence North 59041' 15" West, 277.89 Feet, more or less,
to the Northeast corner of the land conveyed to Billy Lee Turner and other by deed
recorded March 17, 1958 in Book 4462, Page 73 of Official Records; thence South 2038'
West along the East line thereoF of 380 feet, more or less, to the Northwest corner of the
land conveyed to Flossie I. Matthews by deed recorded January 22,1935 in Book 1032,
Page 258 of Official Records; thence South 460 46' East, 100.00 feet to the Nonheast
corner of said Matthews Land; thence South 3004' West along the East line thereof 260
feet, more or less, to the Northerly line of the land conveyed to the State of CaliFornia for
freeway purposes; thence South 47" 11' 00" East along the Northeasterly line of said
State Land, 450 feet, more or less, to a point on the West line of the land conveyed to
Lucile Whitman by deed recorded January 22, 1932 in Book 784, Page 65 of Official
Records: thence North 20 40' 06" East. 155 feet, more or less, to the Northwest corner of
said Whitman Land; thence South 47" 11' 35" East, 840 feet to the East line of said Lot
11; thence Southerly along the East line of said Lot 11 to the Northeasterly line of. said
State of California Land; thence South 470 11' 00" East along said Northeasterly line 1965
feet, more or less, to a point on a line extending from the most Northerly corner of Lot 15
of Tract No. 3401, as per Map recorded in Book 46, Page 94 of Maps, to the pOint of
beginning, thence Northeasterly along said line a distance of 595 feet, more or less, to the
point of beginning.
Excepting therefrom any portion lying within Tract No. 12756 as per Map recorded in Book
197, Pages 22 through 25, inclusive, Records of said County.
Also excepting therefrom from portions of said land 1/2 of .all oil, gas a~d other
hydrocarbons and minerals, now or at any time hereafter sl~uated th,:reln a~d thereunder or
producible therefrom. together with the free and unlimited right to mine, dnll and bore
beneath the surface of said land at any level or levels, 100 feet or more below the surfa~e
of said land for the purpose of development or removal of such substances as reserved In
the deeds recorded in Book 3038, Page 153; Book 3087, Page 98; Book 3585. Page 82,
and in Book 4806, Page 533, all of Official Records.
Also excepting therefrom from a portion of said land 1/2 o.f all oil, gas and other .
hydrocarbons. now or at any time hereafter situated there.1n and thereunder or prodUCIble
therefrom, together with the free and unlimited right to mine, dnll and bore beneath the
surface of said land at any level or levels, 100 feet or more below the surface of said land
for the purpose of development or removal of such substances, as reserved in the deed
from Wilma H. Weaver to Wilbur Ray James, a single man. recorded August 25. 1958 in
800k 4586, Page 188 of Official Records.
Also excepting therefrom from a portion of said land 1/2 of all oil, gas and other
hydcocarbons, now or at any time hereafter situated therein and thereunder or producible
therefrom, together with the free and unlimited right to mine. drill and bore beneath the
surface of said land at any level or levels, 100 feet or more below the surface of said land
for the purpose of development or removal of such substances, as reserved to William
Casady in deed recorded in Book 4012. Page 320 of Official Records.
PARCEL 4:
All that certain real property located in the City of San Bernardino. described as follows:
A portion of Section 2, Township 1 North, Range 5 West. San Bernardino Meridian.
unsurveyed as said Section line may be extended across Rancho Muscupiabe, as per Map
recorded in Book 7, Page 23 of Maps, Records of said County. said parcel also'being a
portion of Block 11 of the Meyer and Barclay Subdivision, as per Map recorded in Book 2,
Page 32 of Maps, Records of said County, more particularly described as follows:
Beginning at a point on the Northerly line of the Cajon State Highway. said point being
North 46" 50' West. 420 feet from the intersection of said' Northerly line and the Easterly
line of Said block 11; thence along said Northerly line of said Cajon State Highway, North
46" 50' West, 420 feet to a point; thence along a line parallel to the Easterly line of said
Block 11, North 2" 38' East, 1037.14 feet to a point; thence along a line parallel to said
Northerly line of said Cajon State Highway, South 46" 50' East, 420 feet to a point; thence
along a line parallel to the Easterly line of said Block 11, South 2" 38' West, 1037.14 feet.
more or less, to the point of beginning.
Excepting therefrom that portion lying Southerly of the Northeasterly line of ~hat land
described in the deed to the State of California, recorded August 2, 1957 in Book 4294.
Page 143 of Official Records of said County.
PARCEL 5:
All that certain real property located in the City of San Bernardino, described as follows:
That portion of Block 11. Meyer and Barclay Subdivision. as per Map recorded in Book 2,
Page 32 of Maps, Records of said County, described as follows:
Beginning at the intersection of the East line of said Block 11 with the Northeasterly line of
the parcel conveyed to the State of California by deed!eCOrded June 5: 1957, as
Instrument No. 174. in Book 4247, Page 563, of OffiCial Records of said County; thence
North 2" 40' 6" East, 155.18 feet to the Northeasterly corner of the parcel of land
conveyed to Harold S. Ladas by deed recorded August 12, 1959 as Instr~me,:,t N~. 93, in
Book 4901. Page 17 of Official Records of said County; thence North 46 50 00 Wes~
420 feet, more or less, to the Northwesterly corner of said Ladas Land; thence South 2
40' 06" East, 155.08 feet along the West line of said Ladas Land to a pOInt In, the
Northeasterly line of said parcel conveyed to the State of California; thence South 470 11'
00. West, 420.06 feet to the point of beginning.
SUBJECT TO REVISIONS -- TO BE BASED ON BOUNDARIES AS DETERMINED BY ALTA
SURVEY
EXHIBIT H
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
Form of Temporary License for the Grading
and Improvement of Land
(Attached Behind This Page]
EXHIBIT H
RVPUBIKRANDOLPH\681716.15
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TEMPORARY LICENSE AGREEMENT FOR THE GRADING
AND IMPROVEMENT OF LAND
This TEMPORARY LICENSE AGREEMENT FOR THE GRADING AND
IMPROVEMENT OF LAND (this "License Agreement") is dated as of ,200_,
between Century Crowell Communities, LP, a California limited partnership ("Licensee"), 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.
RECITALS
1. This License Agreement affects the lands owned by the Agency, which is
hereinafter described as the "Grading Site." The Grading Site is subject to disposition by the
Agency to Licensee in accordance with the terms of an agreement dated as of [ 1, 2006,
entitled "Disposition and Development Agreement," by and between the Agency and the
Licensee. A vicinity map marked to show the Grading Site in relation to other abutting lands is
attached to this License Agreement as Attachment No.2.
2. The Grading Site is described in the attached Attachment No. I.
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. The term "Contractor" refers to any person or entity that
Licensee retains as general contractor to conduct the work (hereinafter
defined) on the Grading Site, but shall not refer to subcontractors of
Contractor.
. 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
EXHIBIT H-2
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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
Conservation and Recover Act of 1976, as amended, 42 U.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 U.S.C.
Section 9601 et seq.; the Toxic Substances Control Act, as amended, IS
U.S.c. Section 2601 et seq.; the Occupational Safety and Health Act, as
amended, 29 U.S.C. Section 651, the Emergency Planning and
Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq.;
the Safe Drinking Water Act, as amended, 42 U.S.c. Section 300f et seq.;
the California Health and Safety Code (9 25100 et seq.; 925249.5 et seq.;
9 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.
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).
. Work. The term "Work" means and refers to the grading of dirt on the
Grading Site pursuant to the work plan attached hereto as Attachment No.
3. 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.
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 the Licensee; 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 l2( c).
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Section 3.
[Reserved)
Section 4.
Covenants and Agreements.
(a) Licensee covenants and agrees that in the performance of the Work, it and
all of its employees, contractors and subcontractors will comply with all applicable
Environmental Laws relating to the presence of Hazardous Substances on the Grading Site.
(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
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. Indemnitv. 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
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the ordinances and regulations of the City of San Bernardino by Licensee or Contractor or their
agents resulting from their failure to perform the Work in accordance with such Environmental
Laws and the approved Grading Plans; and
(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 and payable hereunder to the Agency by Licensee
that is not paid within thirty (30) days after it is due, will be interest from the date it is due at the
rate often 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.
Notwithstanding any other condition of this License Agreement to the contrary, Licensee
does not assume any liability obligations with respect to Losses: (i) associated with the cost of
remediation 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.
(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.
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(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. Unpermitted 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 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 Licensee to the Agency terminating this License
Agreement;
(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.
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Section 10. Survival 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. Subject 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
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
injury 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.
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(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 transmitted 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, California 92401
Altn: Maggie Pacheco, Executive Director
Phone: 909) 663-1044
Fax: (909) 888-9413
To the Licensee: Century Crowell Communities, LP
1535 South "D" Street, Suite 200
San Bernardino, California 92408
Altn: John W. Pavelak
Altn: George Mooradian
Phone: (909) 351-6007
Fax: (909) 381-0041
Section 14. All Costs Associated with Work Shall be Paid bv 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, with 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, either: (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.
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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. If no resolution can be reached within 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:
(a) A meeting shall be held promptly between the parties that will be attended
by individuals with decision-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:
I. agree to submit the matter to mediation or binding
arbitration or a private adjudicator (if all parties so agree);
or
2. Imhate litigation upon forty-five (45) days' advanced
written notice to the other parties.
(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. Default. 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 United 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
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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 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 Partv 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 judgment 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 to
confer any benefit hereunder on any person, firm or corporation other than the parties hereto.
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
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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.
IN WITNESS WHEREOF, Century and the Agency hereby execute this License
Agreement by the signatures of their authorized representatives, as follows:
"LICENSEE"
CENTURY CROWELL COMMUNITIES, LP
a California limited partnership
By:
Century Homes Communities
a California corporation
General Partner
Its:
Date:
By:
John W. Pavelak
Its: President
"AGENCY"
REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO, a public body, corporate and
politic
Date:
By:
Maggie Pacheco, Executive Director
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ATTACHMENT NO. 1
TO
TEMPORARY LICENSE AGREEMENT FOR THE GRADlNG
AND IMPROVEMENT OF LAND
Legal Description ofthe Grading Site
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San Bernardino Flood Control District Parcels
Legal Description
Parcel A:
A portion of Lot 11 of the Re-subdivision of Meyers and Barclay Subdivision, in the City
of San Bernardino, as shown by Map on file in Book 12, Page 18 of Maps, in the Office
of the County Recorder of San Bernardino County, California, described as follows:
Commencing at the southwest comer ofthe land conveyed to San Bernardino Flood
Control District, per document recorded in Book 1766, Page 305 of Official Records,
thence South 47 degrees 13 minutes 46 seconds East, 'along the southwesterly line of the
land described in document recorded in Book ]716, Page 156 of Official Records, a
distance of] 328.09 feet, to the most southerly comer of said parcel ofland described in
document recorded in said Book 1716, Page 156 of Official Records, said point also
being the True Point of Beginning, and located on the East line of said Lot II;
thence North 02 degrees 40 minutes 02 seconds East, along said East line of Lot II, a
distance of 826.47 feet;
thence South 42 degrees 46 minutes 14 seconds West a distance of 632.15 feet, to a point
011 said southwesterly line of the land described in document recorded in Book 1716,
Page 156 of Official Records;
thence South 47 degrees 13 minutes 46 seconds East, along said southwesterly line, a
distance of 532.39 feet, to the True Point of Beginning.
Michael L. Anderson. PLS 6916
Page lof2
San Bernardino Flood Control District Parcels
Legal Description
Parcel B:
That portion of Lots "J", hK", "I", and "M" according to map showing a portion of
Meyer and Barclay Subdivision, in the City of San Bernardino, as shown by map
recorded in Book 12, Page 18 of Maps, in the Office of the County Recorder of San
Bernardino County, California, and a portion of Block 82 and 83 in Irvington Land and
Water Company's Subdivision of part ofMuscupiabe Rancho as per map filed in Book I,
Page 32 of Records of Survey, in the Office of the County Recorder of San Bernardino
County, Cali fomia, also together with that portion of Irvington Avenue as vacated by
Resolution No. 92-100, recorded February 23, 1992 as Instrument No. 92-123090 of
Official Records, described as follows:
Beginning at the northeast comer of Tract No. 12756, as per map recorded in Book 197,
Pages 22 through 25, inclusive, of Maps, records of said county, said comer marked by a
one inch iron pipe tagged L.S. 3807, thence North 47 degrees 03 minutes 4 I seconds
East, a distance of 128.77 feet;
thence North 25 degrees 20 minutes 47 seconds West, a distance of 1406.96 feet; thence
North 29 degrees 46 minutes 28 seconds West, a distance of 1297.60 feet;
thencc North 37 degrees 23 minutes 01 seconds West, a distance of357.87 feet;
thence North 38 degrces I] minutes 43 seconds West, a distance of 1 08.01 feet to an
angle point in thc southwesterly line of Parcel 4 of said document recorded in Book 2268,
Page 146;
thence along said southwesterly line South 30 degrees 13 minutes 34 seconds East,
distance of 696.81 fect;
thence South 28 degrees 06 minutes 59 seconds East, a distance of 997.26 feet;
thcnce South 09 dcgrees 03 seconds 06 East, a distance of263.89 feet;
thence southeasterly a distance of 35.94 feet along a tangent curve, concave
northeasterly, having a radius of 1999.19 feet and a central angle of 0] degrees 01
minutes 48 seconds to the northwesterly comer of Lot 65 of said Tract No. 12765;
thence continuing along said tangent curve, a distance of ]237.45 feet, through a central
angle of 3S degrees 27 minutes 53 seconds to the Point of Beginning.
Michael L. Anderson, PLS 6916
Page 20f2
PARCEL 1:
That portion of the following described property lying North of the Northerly line of the
property conveyed to the State of California by deed recorded December 6 1957 in Book
4384, Page 553 of Official Records: '
That portion of Lot 11 of Meyer's and Barclay Subdivision, in the City of San Bernardino,
as shown by Map on file In Book 2, Pagels) 32 of Maps, in the Office of the County
Recorder of San BernardIno County, Callforma, described as follows:
Beginning at a point on the Northerly line of the Cajon State Highway which is South 400
46' East, 283 feet from the point of intersection of the West line of said Lot 11, with the
said Southerly line; thence North 020 56' East, 304 feet to the true point of beginning;
thence South 870 14' East, 312.66 feet to the Easterly line of the property deeded to Clas
P. Erickson and wife, recorded June 6, 1949 in Book 2413, Page 387, of Official Records
of San Bernardino County; thence North a. 38' East, 934 feet, more or less, to the
Southerly line of the property deeded to the San Bernardino County Flood Control, as
recorded in Book 1716, Page 156, of Official Records; thence along said line North 590 41'
15" West, 5B9.90 feet to the West line of said Lot 11; thence along said West line South
020 56' West, B26 feet, more or less, to a point 500 feet from the Northerly line of said
Cajon State Highway; thence South 460 46' East, 283 feet; thence South 02056' West,
196 feet to the point of beginning.
PARCEL 2:
That portion of Block 11 of Meyer Barclay Subdivision, in the City of San Bernardino, as
per Map recorded in Book 2, Page 32 of Maps, Records of said County, described as
follows:
Beginning at an iron pipe on the Northerly right of way line of California State Highway,
distant South 460 46' East, 697.40 feet from the intersection of said right of way line with
the West line of said Block 11: and said point of intersection is located North 30 4' East,
2130.90 feet from the Southwest corner of said Block 11; thence South 460 46' East
along said right of way line 100 feet to an iron pipe; thence North 30 4' East, 1146 feet to
an iron pipe; thence North 46046' West, 100 feet to an iron pipe; thence parallel with the
West line of said Block 11, South 30 4' West. 1146 feet to the point of beginning.
Excepting therefrom that portion lying Southerly of the Northerly line of the property, as
conveyed to the State of California, recorded June 6, 1957 in Book 4249, Page 130, of
Official Records.
PARCEL 3:
All that portion of Lot 11, according to the Map of Meyers and Barclay Subdivision of a.
portion of the Muscupiabe Rancho, in the City of San Bernardino, as per Map recorded In
Book 2, Page 32 of Maps, Records of said County, lying within the following described
property:
That portion of Lots "J", "K", "L': and "M" according to Map showing a portion of Meyer
and Barclay Subdivision. in the CIty of San BernardinO. as per Map recorded .n Book 12,
Page 1 B of Maps, in the Office of the County Recorder of said County and a portIon of Lot
11 according to Map of Meyers and Barclay Subdivision of a portIon of the Muscup,abe
Ra~cho in said County, as per Map recorded in Book 2, Page 32 of Maps, in the Office of
the County Recorder of said County, described as follows:
Commencing at the center line intersection of Irvington Avenue and Cypress Avenue, as
shown on the Map of the Town of Irvington recorded in Book 3, Page 9 of Maps, in the
Office of the County Recorder of San Bernardino County; thence South 27" 36' 50" West
100 feet along the centerline of Cypress Avenue; thence North 62" 23' 10" West 344.47
feet to the beginning of a tangent curve concave Northeasterly and havin9 a radi":s of
2,0?0 reet; ~ence. Northwesterly along the arc of said curve 1200 feet to the true point of
beglnmng. Said pOint being on the Southwesterly line of Parcel No.3 as described in deed
to San BernardinoCounty Flood Control District, recorded July 27, 194B in Book 226B,
Page 146 of Official Records; thence from said true point of beginning continuing along
said 2,000 foot radius curve 674.48 feet; thence North 08029' 20" West, 262.26 feet to
a point on the Northerly line of said Lot "M", said point being South 89" 44' 40" West,
297.96 feet from the Northeast corner of said Lot "M"; and South 890 44' 40" West,
30.00 feet from the Southeast corner of said Lot "J"; thence North 270 43' 00" West,
420.00 feet; thence continuing North 27" 43' 00" West, 577.00 feet; thence North 37"
DO' West, 170 feet to a point on the Easterly line of Lot "K" which is Southerly 660 feet
from the Northeast corner thereof; thence North 37" 00' West, 400 feet, more or less, to
an angle point in the Southwesterly line of Parcel No. 4 in deed to San Bernardino County
Flood Control District recorded July 27, 1948 in 800k 2268, Page 146 of Official Records;
thence North 89" 15' West, 1 96 feet to a point on the East line of Lot "L" distant
Southerly 660 feet from the Northeast corner thereof; thence Southwesterly to a point on
the Westerly line of Lot "L" distant Southerly 980 feet from the Northwest corner thereof;
thence Southerly along the West line of said Lot "L" and along the East line of said Lot 11.
a distance of 825 feet, more or less, to the Northeast corner of the land described in deed
to Jerry 8erman and Sons, recorded August 26.1953 in Book 3231, Page 465, of Official
Records; thence North 47" 13' 46" West along the Northerly line of said Berman Land and
the extension thereof 1330 feet to the Southwest corner of the land conveyed to San
Bernardino County Flood Control District by deed recorded May 4, 1945in Book 1766,
Page 305 of Official Records; thence North 59" 41' 15" West, 277.89 feet, more or less,
to the Northeast corner of the land conveyed to Billy Lee Turner and other by deed
recorded March 17, 1958 in Book 4462, Page 73 of Official Records; thence South 2" 38'
West along the East line thereof of 380 feet. more or less, to the Northwest corner of the
land conveyed to Flossie I. Matthews by deed recorded January 22, 1935 in Book 1032,
Page 258 of Official Records; thence South 46" 46' East, 100.00 feet to the Northeast
corner of said Matthews Land; thence South 3" 04' West along the East line thereof 260
feet, more or less, to the Northerly line of the land conveyed to the State of California for
freeway purposes; thence South 47" 11' 00" East along the Northeasterly line of said
State Land, 450 feet, more or less, to a point on the West line of the land conveyed to
Lucile Whitman by deed recorded January 22, 1932 in Book 7B4, Page 65 of Official
Records; thence North 2" 40' 06" East, 155 feet, more or less, to the Northwest corner of
said Whitman Land' thence South 47" 11' 35" East, 840 feet to the East line Of said Lot
11; thence Southe;ly along the East line of said Lot 11 to the Northeasterly line of. said
State of California Land; thence South 47" 11' DO" East along said Northeasterly hne 1965
feet, more or less, to a point on a line extending from the most Northerly corner of Lot 15
of Tract No. 3401, as per Map recorded in Book 46, Page 94 of Maps. to the pOint of
beginning, thence Northeasterly along said line a distance of 595 feet, more or less, to the
point of beginning.
Excepting therefrom any portion lying within Tract No. 12756 as per Map recorded in Book
197. Pages 22 through 25, inclusive, Records of said County.
Also excepting therefrom from portions of said land 112 of all oil, gas a~d other
hydrocarbons and minerals, now or at any time hereaf~er si~uated th<:rem and thereunder or
producible therefrom, together with the free and unlimited right to mine, drill and bore
beneath the surface of said land at any level or levels, 100 feet or more below the surface
of said land for the purpose of development or removal of such substances as reserved In
the deeds recorded in Book 3038, Page 153; Book 3087, Page 98; Book 3585, Page 82,
and in Book 4806. Page 533, all of Official Records.
Also excepting therefrom from a portion of said land 1/2 of all oil, gas and other .
hydrocarbons, now or at any time hereafter situated there.in and. thereunder or prodUCible
therefrom. together with the free and unlimited right to mme, drIll and bore beneath the
surface of said land at any level or levels, 100 feet or more below the surface of said land
for the purpose of development or removal of such substances, as reserved in the deed
from Wilma H. Weaver to Wilbur Ray James, a single man, recorded August 25, 195B in
Book 4586, Page 18B of Official Records.
Also excepting therefrom from a portion of said land 1/2 of all oil, gas and other
hydrocarbons, now or .at any time hereafter situ,,:ted there.in and thereunder or producible
therefrom, together WIth the free and unlimited right to mine, drill and bore beneath the
surface of said land at any level or levels, 100 feet or more below the surface of said land
for the purpose of development or removal of such substances, as reserved to William
Casady in deed recorded in Book 4012, Page 320 of Official Records.
PARCEL 4:
All that certain real property located in the City of San Bernardino, described as follows:
A portion of Section 2, Township 1 North, Range 5 West, San Bernardino Meridian,
unsurveyed as said Section line may be extended across Rancho Muscupiabe, as per Map
recorded in Book 7, Page 23 of Maps, Records of said County, said parcel also being a
portion of Block 11 of the Meyer and Barclay Subdivision, as per Map recorded in Book 2,
Page 32 of Maps, Records of said County, more particularly described as follows:
Beginning at a point on the Northerly line of the Cajon State Highway, said point being
North 460 50' West. 420 feet from the intersection of said' Northerly line and the Easterly
line of said block 11; thence along said Northerly line of said Cajon State Highway, North
46050' West, 420 feet to a point; thence along a line parallel to the Easterly line of said
Block 11, North 20 3B' East, 1037.14 feet to a point; thence along a line parallel to said
Northerly line of said Cajon State Highway. South 460 50' East, 420 feet to a point; thence
along a line parallel to the Easterly line of said Block 11, South 20 38' West, 1037.14 feet,
more or less, to the point of beginning.
Excepting therefrom that portion lying Southerly of the Northeasterly line of that land
described in the deed to the State of California. recorded August 2, 1957 in Book 4294.
Page 143 of Official Records of said County,
PARCEL 5:
All that certain real property located in the City of San Bernardino, described as follows:
That portion of Block 11, Meyer and Barclay Subdivision, as per Map recorded in Book 2,
Page 32 of Maps, Records of said County, described as follows:
Beginning at the intersection of the East line of said Block 11 with the Northeasterly line of
the parcel conveyed to the State of California by deed. recorded June 5: 1957, as
Instrument No. 174, in Book 4247. Page 563, of OffiCial Records of said County; thence
North 2" 40' 6" East. 155.18 feet to the Northeasterly corner of the parcel of land
conveyed to Harold S. Ladas by deed recorded August 12, 1959 as Instrument No. 93, in
800k 4901, Page 17 of Official Records of said County; thence North 460 50' 00" Wes~
420 feet, more or less. to the Northwesterly corner of said Ladas Land; thence South 2
40' 06" East, 155.08 feet along the West line of said Ladas Land to a pOlnt.n, the
Northeasterly line of said parcel conveyed to the State of California; thence South 470 1"
aD" West. 420.06 feet to the point of beginning.
SUBJECT TO REVISIONS -- TO BE BASED ON BOUNDARIES AS DETERMINED BY ALTA
SURVEY
ATTACHMENT NO.2
TO
TEMPORARY LICENSE AGREEMENT FOR THE GRADING
AND IMPROVEMENT OF LAND
Vicinity Map of the Grading Site
[Attached Behind This Page]
EXHIBIT H-13
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SITE LOCA nON
Devore Road
1- 215 Freeway
279-Lot Single Family
Residential Development
Retained by Redevelopment Agency for
Future Park Development
Little League Drive
r-
A TT ACHMENT NO.3
TO
TEMPORARY LICENSE AGREEMENT FOR THE GRADING
AND IMPROVEMENT OF LAND
The Work Plan
The approximately seventy nine (79) acre Site and an approximately three (3) acre portion of the
SBCFCD Parcel are to be developed for residential development ("Project"). Improvements will consist
of residential pads, slopes, streets, drainage, landscape, fencing/walls, flood control improvements (debris
basins and embankments), greenbelts, dry and wet utilities, and other improvements as conditioned by the
approving agencies.
The Developer shall be required to obtain all necessary approvals and permits in order to construct
roadway improvements and utilities. Permits to be obtained shall consist of the following:
. Rough Grade Permitllnspection
. Roadway Construction Permit/Inspection (includes sewer & drainage improvements)
. Waterline Construction and Relocation Permit/Inspection
. Landscape Construction Permit/Inspection
. San Bernardino County Flood Control Construction/Encroachment Permit/lnspection
. Caltrans Encroachment Permit
. SWPPP & WQMP
. Dry Utility Permits and Contracts/Work Orders
This phase of the Project shall coincide with the construction of flood control/drainage improvements for
the entire Project. The mass grading operation shall incorporate the redistribution of on-site and adjacent
soils and aggregate to economize on costs, mobilization and efficiency of the overall operation. A portion
of the grading operation shall consist of on-site processing of materials for use in grading, roadway base
and other necessary improvements. A separate operation to facilitate this processing of material will be in
place throughout the duration of the construction operations.
Mass grading shall consist of the movement of soil and materials throughout the Project. Existing soils
shall be removed and replaced as directed by the project soils engineer and supervising civil engineer of
record.
A major portion of the grading operation and flood control improvements intended for the Project is the
excavation and construction of a debris basin or series of debris basins. This activity will require the
excavation and movement of upwards of 3,000,000 cubic yards (c.y.) of soil material and aggregate.
Materials removedlredistributed as a result of flood control and other public improvements may be
suitable, subject to soils engineer recommendations, for placement within the residential portion of the
proposed subdivision.
In addition to those improvements mentioned above, it is anticipated that certain 'off-site' improvements
e.g. secondary access roadway, back bone utilities and flood control improvements, will be extended
beyond the project boundaries. These improvements will require the participation of adjacent property
owners and several governmental agencies.
EXHIBIT H-14
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EXHIBIT I
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
Developer Note
[Attached Behind This Page]
EXHIBIT I
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1-
UNSECURED PROMISSORY NOTE
r 1
San Bernardino, California
,200_
FOR VALUE RECEIVED, the undersigned, Century Crowell Communities, LP, a
California limited partnership ("Maker"), promises to pay to the Redevelopment Agency of the
City of San Bernardino, public body corporate and politic ("Holder"), the principal sum of
[ ] Dollars [($ )] with interest thereon compounded
annually at the rate established in Section I below.
This Unsecured Promissory Note ("Note") IS given III accordance with that certain
Disposition and Development Agreement ("DDA") dated [ ], 2006, between the Maker
("Developer" therein) and Holder ("Agency" therein). The DDA is incorporated in its entirety
by this reference, and the terms of the DDA shall control if there is any inconsistency between
this Note and the DDA. All initially capitalized terms used but not otherwise defined herein
shall have the meanings given to such terms in the DDA. This Note is unsecured.
I. The principal amount of this Note shall accrue simple interest at the rate of
seven percent (7%) per annum, with interest accruing from the Closing until paid in full and
compounding on an armual basis. The Maker shall have the right at any time and without
penalty to prepay the whole or part of the principal balance of the Note. All payments due
hereunder are payable in lawful money of the United States of America in same day funds. All
payments received shall first be applied to accrued and unpaid interest and the balance shall be
applied to the unpaid principal.
2. Maker shall pay Holder the Note value as follows:
2.1 Prior to the Maturity Date (defined in Section 2.2 below), Maker
shall pay to Holder the sum of r 1 Dollars (($ )] at the close
of escrow for the sale of each completed New Home. Other than the foregoing, Maker shall not
be obligated to make any scheduled payments on principal or interest prior to the Maturity Date.
In no events will payments to Holder, exclusive of interest under this Note, exceed the then
remaining unpaid principal balance of the Note.
2.2 The entirety of the unpaid principal and accrued and unpaid
interest payable under this Note shall be due and payable on or before the fourth (4th) armiversary
of the Closing ("Maturity Date").
3. Upon the occurrence of any of the following, an "Event of Default" shall
be deemed to have occurred and the Holder may, at Holder's option, without prior notice, declare
the unpaid balance of this Note, including accrued interest thereon, to be immediately due and
payable, and the same shall immediately become due and payable:
3.1 Maker shall fail to make any payment due under this Note or the
Agreement within thirty (30) days following written notice of such failure from Holder, or
EXHIBIT I-I
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3.2 Maker shall (i) become insolvent or unable to pay Maker's debts
generally as they mature, (ii) make a general assignment for the benefit of creditors, (iii) admit
in writing Maker's inability to pay Maker's debts generally as they mature, (iv) file or have filed
against it a petition in bankruptcy or a petition or answer seeking a reorganization, arrangement
with creditors or other similar relief under the Federal bankruptcy laws or under any other
applicable law of the United Siates of America or any state thereof, or (v) consent to the
appointment ofa trustee or receiver for it or for a substantial part of Maker's property; or
3.3 Any order, judgment or decree shall be entered appointing, without
Maker's consent, a trustee or receiver for it or for a substantial part of Maker's property that is
not removed within sixty (60) days from such entry; provided, however, that, in the event of an
actual or deemed entry of an order for relief with respect to Maker under the Federal Bankruptcy
Code, this Note and all interest and other amounts due hereon shall automatically become and be
due and payable, without presentment, demand, protest or any notice of any kind, all of which
are hereby expressly waived by Maker. The Holder may exercise Holder's option to accelerate
after any Event of Default, regardless of any prior forbearance.
4. The unenforceability or invalidity of any provision or provisions of this
Note as to any persons or circumstances shall not render that provision or those provisions
unenforceable or invalid as to any other persons or circumstances, and all provisions hereof, in
all other respects, shall remain valid and enforceable.
5. This Note shall bind Maker and Maker's successors and assigns and the
benefits hereof shall inure to Holder and Holder's successors and assigns.
6. The validity, interpretation and performance of this Note shall be
governed by and construed in accordance with the laws of the State of California.
7. Time is of the essence of this Note.
8. In the event of the bringing of an arbitration, action or suit by a party
hereto against the other party by reason of any breach of any of the obligations of the other party
arising out of this Note or any other dispute between the parties concerning this Note, then, in
that event, the prevailing party in such action or dispute, whether by final judgment or arbitration
award, shall be entitled to have and recover of and from the other party all costs and expenses of
suit or claim, including actual attorneys' fees. Any judgment, order or award entered in any final
judgment or award shall contain a specific provision providing for the recovery of all costs and
expenses of suit or claim, including actual attorneys' fees (collectively, the "Costs") incurred in
enforcing, perfecting and executing such judgment or award. For the purposes of this Section 8,
Costs shall include, without implied limitation, attorneys' and experts' fees, costs and expenses
incurred in the following: (i) post judgment motions and appeals, (ii) contempt proceedings, (iii)
garnishment, levy and debtor and third party examination; (iv) discovery; and (v) bankruptcy
litigation.
[Signatures on following pages)
EXHIBIT 1-2
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SIGNATURE PAGE
TO
UNSECURED PROMISSORY NOTE
MAKER:
CENTURY CROWELL COMMUNITIES, LP
a California limited partnership
By:
Century Homes Communities,
a California corporation
General Partner
Its:
Date:
By:
John W. Pavelak
Its: President
EXHIBIT 1-3
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SIGNATURE PAGE
TO
UNSECURED PROMISSORY NOTE
HOLDER:
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO, a public
body corporate and politic
Date:
By:
Maggie Pacheco, Executive Director
APPROVED AS TO LEGAL FORM:
Agency Counsel
EXHIBIT 1-4
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......
EXHIBIT J
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
Infrastructure Eligible for Public Financing District (Section 2. I O(a))
Utilizing Assessment District formation through the application of 1913 and 1915 Improvement
Acts and or Community Facilities District (CFD) formation though the application of Mello-
Roos Community Facilities Act of 1982
Street Improvements
Storm Drain Construction
Sewer Construction
Parkway Landscaping
Street Lights
Park Construction
Public Facilities
Dry Utility backbone and trenching
Park Fees
School Fees
Sewer and Water Fees
District formation deal points included but not limited to the following:
District (Bond) sizing to allow for an effective 2% total tax rate.
Minimum Bond Term - 30 Years
EXHIBIT J
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