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RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
LEWIS LAND DEVELOPERS, LLC
c/o Lewis Management Corp
1156 North Mountain Ave.
Upland, CA 91786
Attn: Legal Dept (WBF)
(SPACE ABOVE FOR RECORDER’S USE ONLY)
This document is exempt from the payment of a recording fee pursuant to Government Code § 27383 and §6103.
DEVELOPMENT AGREEMENT
This Development Agreement (“Agreement”), dated as of _______________, 2024 (the “Reference Date”) and effective on the date it is recorded with the County Recorder of the County of San Bernardino, is made by and among the CITY OF BARSTOW, a municipal corporation (the “City”), and LEWIS LAND DEVELOPERS, LLC, a Delaware limited liability company (the “Developer”).
RECITALS
A. The City is authorized to enter into development agreements with persons having legal or equitable development interests in real property which is located either within the City or within its sphere of influence, pursuant to Government Code Section 65864, et seq., and Chapter
19.46 of the City Municipal Code.
B. The City has adopted rules and regulations for consideration of development agreements, pursuant to Government Code Section 65865 and Chapter 19.46 of the City Municipal Code (the “City DA Regulations”). Unless otherwise provided in this Agreement, the City DA Regulations shall apply to this Agreement.
C. Developer has entered into that certain Purchase and Sale Agreement dated September 13, 2024 (the “Purchase Agreement”), to purchase real property containing approximately 36.06 acres on the southwest corner of Rimrock Road and Higgins Road as set forth in Exhibit “A” attached hereto and as depicted on Exhibit “B” attached hereto (the “Property”), which Property is the subject of this Agreement. Developer has agreed to the recordation of this Agreement against the Property after Developer acquires fee title to the Property under the Purchase Agreement. If Developer does not acquire fee title to the Property, then this Agreement shall be of no effect.
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D. The City previously approved that certain Vesting Tentative Map No. 17713, Phases 1 Through 4 (#PTTM-13-0001) (the “Vesting Map”) on March 11, 2013 (the “Vesting Map Date”) for the development of a 146 lot single family residential project (the “Project”). The Vesting Map currently expires on March 22, 2026 and will extend, with the approval of this Agreement, for the term of this Agreement as set forth in Sections 2.c and 4.a. A copy of the Vesting Map is attached hereto as Exhibit “C”.
E. The City’s approval of the Vesting Map on March 11, 2013 (the “Vesting Map Date”) was subject to those Conditions of Approval issued by the City’s Planning Commission attached hereto as Exhibit “D” (the “Map Conditions”).
F. This Agreement, the Vesting Map and the Project are consistent with the City of Barstow General Plan and each of its elements.
G. This Agreement and the Project will serve to implement the policies, objectives and standards of each element of the City of Barstow General Plan.
H. All actions taken by the City have been duly taken in accordance with all applicable legal requirements, including the California Environmental Quality Act, Public Resources Code Section 21000, et seq., and all requirements for notice, public hearings, findings, votes and other procedural matters.
I. All actions taken and all approvals granted by the City under this Agreement are a present exercise of the City’s authority over the Property and the Project.
J. This Agreement and the consent of Developer to each of its terms and conditions will eliminate uncertainty in planning and provide for the orderly development of the Property, ensure timely installation of necessary improvements, provide for public services appropriate to the development of the Project, and generally serve the public interest.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS AND EXHIBITS.
a. Definitions. The following terms when used in this Agreement shall be defined as follows:
“Agreement” means this Development Agreement.
“City” means the City of Barstow, a general law city, including its City Council, officers and employees.
“City Council” means the City Council for the City of Barstow. -3- 382437.5 Barstow Development Agreement
“Current Development Approvals” means the Vesting Map.
“Current Land Use Regulations” means all Land Use Regulations valid and in effect as of the Vesting Map Date.
“Developer” means Lewis Land Developers, LLC, a Delaware limited liability company, and its successors in interest to all or any part of the Property. “Development” means the improvement of the Property by constructing and completing the buildings, structures, improvements, and facilities which are part of the Project including, but not limited to, grading; the construction of on-site or offsite public facilities and improvements; and landscaping. “Development Approvals” means all permits, licenses, or other entitlements, whether discretionary or ministerial, subject to approval or issuance by the City in connection with Development of the Property including, but not limited to, specific plans and amendments; tentative and final subdivision and parcel maps; conditional use permits and site plan review; zoning and zone changes; grading, building, and occupancy permits including, without limitation, the Vesting Map. “Development Plan” means the Current Development Approvals and Subsequent Development Approvals and the Current Land Use Regulations and Subsequent Land Use Regulations which control Development of the Property. The current Development Plan may be modified by Developer, if approved by the City in accordance with the Land Use Regulations.
“Dwelling Units” means single family attached or detached residential units to be sold or leased to members of the general public.
“Effective Date” means the date on which this Agreement is recorded with the County Recorder. The Agreement shall not be recorded until Developer acquires title to the Property in accordance with the Purchase and Sale Agreement. “Exaction” means any requirement of the City in connection with or pursuant to any Land Use Regulation or Development Approval for dedication of construction or improvement of public facilities, payment of Development Impact Fees, or other contribution required in order to address the impacts of Development on the community, or for other public purposes. Processing fees shall not be considered exactions for the purposes of this Agreement.
“Land Use Regulations” means all ordinances; resolutions; codes; rules; regulations; and official policies whether adopted by ordinance, resolution, or otherwise of the City controlling or regulating any aspect of the Development and use of land, including, but not limited to, the permitted uses of land; the density or intensity of use; subdivision requirements; the maximum height and size of proposed buildings; the reservation or dedication of land for public purposes; sign regulations; zoning covering any subject, including, but not limited to, those -4- 382437.5 Barstow Development Agreement
subjects listed in Government Code Section 65850; and the design, improvement and construction standards and specifications for Development of the Property. “Lot” or “lot” means a legal subdivided lot.
“Project” means the Development of the Property contemplated by the Development Plan as such plan may be modified by Developer in accordance with the Land Use Regulations.
“Property” means the real property described on Exhibit “A”. “Recorded or Record” means recordation at the Office of the San Bernardino County Recorder.
“Reservations of Power” means the rights and authority reserved to the City under Section 3(e) of this Agreement and excepted from the Developer’s assurances and rights under this Agreement.
“Subsequent Development Approvals” means all Development Approvals processed by Developer and approved by the City after the Effective Date of this Agreement in connection with Development of the Property, including, without limitation, amendments to the Vesting Map.
“Subsequent Land Use Regulations” means any Land Use Regulations adopted and effective after the Effective Date of this Agreement.
b. Exhibits. The following documents are attached to and by this reference made a part of this Agreement:
Exhibit A - Legal description of Property
Exhibit B - Map of the Property
Exhibit C - Vesting Map
Exhibit D - Map Conditions
2. TERM AND GENERAL RIGHTS.
a. Binding Effect of Agreement. Development of the Property is hereby authorized and shall be carried out only in accordance with the terms of this Agreement. The -5- 382437.5 Barstow Development Agreement
Property and the Developer are subject to each term, condition, and covenant of this Agreement.
b. Ownership of Property. The Developer represents that upon close of escrow pursuant to the Purchase and Sale Agreement, it will be the fee title owner of the Property and this Agreement shall, if approved by the City, then be Recorded. This Agreement shall automatically terminate and be of no force or effect if Developer does not acquire title to the Property pursuant to the Purchase and Sale Agreement within six months of its approval by the City.
c. Term. The term of this Agreement shall expire and terminate on the date that is ten (10) years from the Effective Date of this Agreement (the “Term”). The Term shall automatically extend for an additional five (5) years if Developer commences the mass grading of the Property for the Project before expiration of the Term and provided the Developer is not in default under the Agreement. The Term may be further extended if mutually approved by City and Developer in writing. d. Assignment. The Developer shall have the right to assign this Agreement in whole or in part (provided that no such partial transfer shall be permitted to cause a violation of the Subdivision Map Act, Government Code Section 66410, et seq., or other applicable law) to any person, partnership, joint venture, firm or corporation at any time during the term of this Agreement together with the sale or other transfer of all or a part of the Property to the assignee (each a “Transferee”). Transfers to Transferees of some or all of the Property shall not require approval by the City; provided, however, that Developer shall not be released of its obligations under this Agreement as to the property transferred unless and until an assignment agreement (an “Assignment Agreement”) expressly delineating which party shall bear the continuing obligations under this Agreement, has been fully executed and approved by the City, which approval shall not be unreasonably conditioned, delayed, or withheld. Further, no parcel of land and no owner of any parcel of land subject to this Agreement shall be released from the obligations of this Agreement that attach to that parcel under this Agreement unless and until an Assignment Agreement expressly delineating which party shall bear the continuing obligations under this Agreement has been fully executed and approved by the City, which approval shall not be unreasonably conditioned, delayed, or withheld. In all cases, any obligation of Developer under this Agreement or under the Development Approvals not expressly assumed by a Transferee, in an Assignment Agreement approved by the City in writing, or terminated with respect to a particular portion of the Property under Section 2 (f) or 2(g), shall remain with Developer. In the event of any assignment, City maintains enforceability against both assignor and assignee and any release between such assignor and assignee from the duties or obligations hereunder related to the portion of the Property sold or transferred remain independent of the City, unless the City consents to the release of such assignor from all or part of its obligations under this Agreement. The sale, transfer, or assignment of the Property to an Affiliate of the Developer shall not release the Developer from its obligations hereunder. For purposes of this Agreement, -6- 382437.5 Barstow Development Agreement
“Affiliate” shall mean an entity which controls, is controlled by, or is under common control with the Developer or directly or indirectly with any of the individual owners of Developer.
Notwithstanding the foregoing, the Developer may execute mortgages, deeds of trust, sales and leaseback, or any other form of encumbrance or conveyance required for any reasonable method of financing from a bank, savings and loan, insurance company, or similar institutional lender, for the purpose of securing loans of funds to be used for financing the direct and indirect costs of the Development (including land development costs, reasonable and customary developer fees, loan fees and costs, and other normal and customary project costs). The execution of any of the above-described financing documents shall not be considered a sale, transfer or assignment for purposes of this Section 2.d. Any such encumbrance shall not release Developer or the Property from the obligations and requirements of this Agreement. In the event of a foreclosure of any mortgage, deed of trust, or receipt of a deed in lieu of foreclosure, any such institutional lender shall not be required to submit documentation called for in this Section 2.d.with respect to any transfer of title to the Property to such lender or to any purchaser from such lender. No such parties shall receive any rights or incur any obligations under this Agreement by reason of the foreclosure of the mortgage, deed of trust, or deed in lieu of foreclosure, without assuming in writing the Developer’s obligations of this Agreement.
e. Amendment or Cancellation of Agreement. This Agreement may be amended or canceled in whole or in part only by written consent of the parties in the manner provided for in Government Code Section 65868 or as provided in Section 5.b. of this Agreement. This provision shall not limit any remedy of the City or the Developer as provided by this Agreement.
f. Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events:
(i) Cancellation this Agreement pursuant to Section 2.e. (ii) Expiration of the term of this Agreement pursuant to Section 2.c. (iii) Termination of this Agreement by the City in accordance with Barstow Municipal Code Sections 19.46.070 and 19.46.080 of the City DA Regulations.
(iv) Entry of a final judgment setting aside, voiding or annulling the adoption of the ordinance approving this Agreement.
(v) The adoption of a referendum measure repealing the ordinance approving this Agreement, or repealing any ordinance, law or Current Land Use Regulation which the Developer determines is reasonably necessary to its completion of the Project in accordance with the Development Plan. -7- 382437.5 Barstow Development Agreement
Termination of this Agreement as provided in this Section 2.f shall not constitute termination of any Development Approvals approved for the Property prior to the date of termination. Upon the termination of this Agreement, no party shall have any further right or obligation hereunder except with respect to any obligation to have been performed before such termination or with respect to any default in the performance of the provisions of this Agreement which has occurred before such termination or with respect to any obligations which are specifically set forth as surviving this Agreement.
g. Termination of Agreement With Respect to Individual Residential Lots Upon Sale to Public and Completion of Construction. The restrictions and requirements of Section 2.d shall not apply to the sale or lease of any individual Dwelling Unit to a member of the public or other ultimate user. Notwithstanding any other provisions of this Agreement, this Agreement shall automatically terminate with respect to any such Dwelling Unit upon such sale or lease of the individual Dwelling Unit after a final certificate of occupancy or similar certificate has been issued by the City for such Dwelling Unit.:
h. Notices.
As used in this Agreement, “notice” includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other communication required or permitted hereunder.
All notices shall be in writing and shall be considered given either: (1) when delivered in person to the recipient named below; or (2) on the date of delivery if delivered by an overnight express mail service or by registered or certified mail with return receipt requested, addressed to the recipient named below. All notices shall be addressed as follows:
If to the City:
City Manager
City of Barstow
220 East Mountain View Street, Suite A
Barstow, California 92311
With a copy to:
Director of Community Development
City of Barstow
220 East Mountain View Street, Suite A
Barstow, California 92311
and
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Matthew Summers, City Attorney/
Colantuono, Highsmith & Whatley, PC
790 E Colorado Blvd, Ste 850
Pasadena CA 91101
If to the Developer:
Lewis Land Developers, LLC
Attn: John M. Goodman
1156 N. Mountain Avenue
Upland, California 91786-3633
With a copy to:
Lewis Management Corp.
Attn: W. Bradford Francke
P.O. Box 670
Upland, CA 91786-3633
1156 North Mountain Avenue
Upland, California 91785-0670
Either party may, by notice given at any time, require subsequent notices to be given to another person or entity, whether a party or an officer or representative of a party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change.
3. VESTED DEVELOPMENT RIGHTS.
a. Rights to Develop. Subject to the terms, conditions, and covenants of this Agreement, including the Reservations of Power in Section 3.e, Developer has a vested right to develop the Project on the Property in accordance with, and to the extent of, the Development Plan, as such Development Plan may be amended by any Subsequent Development Approvals. Additionally the City hereby approves the proposed uses of the Property, the density and intensity of use, the maximum height and size of proposed buildings, and provisions for reservation and dedication of land for public purposes as set forth in the Development Plan. Subject to the timing of development which is at the discretion of the Developer under Section 3.b, Developer shall, if Developer proceeds with the development of the Project, be responsible for completing all conditions of approval imposed on the Project and the Development Plan, including payment of all impact fees and completion of all mitigation measures in the existing Development Plan, unless modified by this Agreement or by a Subsequent Development Approval. b. Effect of Agreement on Land Use Regulations. Except as otherwise provided under the terms of this Agreement including the Reservations of Power in Section 3.e, the rules, regulations and official policies governing permitted uses of the Property, the -9- 382437.5 Barstow Development Agreement
density and intensity of use of the Property, the maximum height and size of proposed buildings, and the design, improvement and construction standards and specifications applicable to Development of the Property shall be the Current Land Use Regulations provided they do not conflict with the Current Development Approvals .
c. Timing of Development. The parties acknowledge that the Developer cannot at this time predict when or the rate at which phases of the Property will be developed.
Such decisions depend upon numerous factors which are not within the control of the Developer, such as market orientation and demand, interest rates, absorption, completion and other similar factors. Except as expressly provided by this Agreement, the rate, timing, phasing, and sequencing of development shall be at the discretion of the Developer and communicated to the City in writing.. In the event that a Subsequent Land Use Regulation is enacted, whether by action of the City Council or by initiative or otherwise, which governs the rate, timing, phasing or sequencing of new development or construction in the City, or imposes a residential growth management program or moratorium on development, such Subsequent Land Use Regulation shall not apply to the Property or the Project or any portion thereof. The intent of the parties in agreeing to this subsection is to avoid the result in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984) where a subsequent growth management program adopted by initiative prevailed over a prior land use agreement which did not expressly address the timing, phasing or sequencing of development.
d. Changes and Amendments. The parties acknowledge that amendments to the Current Development Approvals for the Project is intended by Developer and shall require Subsequent Development Approvals. In the event the Developer finds that a change in the Current Development Approvals is necessary or appropriate, the Developer shall apply for a Subsequent Development Approval to effectuate such change and the City shall process and act on such application to approve, approve conditionally, or deny it in accordance with the Current Land Use Regulations, except as otherwise provided by this Agreement including the Reservations of Power. Unless otherwise required by law, as determined in the City’s reasonable discretion, a change to the Current Development Approvals shall be deemed “minor” and not require an amendment to this Agreement, but shall still require approval by the City’s Community Development Director in writing, provided, however, that such change does not:
(i) Alter the permitted uses of the Property as a whole; or, (ii) Increase the density or intensity of use, or number of Dwelling Units, of the Project as a whole; or,
(iii) Increase the maximum height and size of permitted buildings; or, -10- 382437.5 Barstow Development Agreement
(iv) Delete any requirement for the reservation or dedication of land for public purposes within the Property or otherwise remove any current impact mitigation measure under the Development Plan; or,
(v) Constitute a project requiring the preparation of an environmental impact report pursuant to Public Resources Code Section 21166. e. Reservations of Power.
(i) Limitations, Reservations and Exceptions. Notwithstanding any other provision of this Agreement, the following Subsequent Land Use Regulations shall apply to the Development of the Property:
a) Processing fees and charges imposed by the City on applicants and projects to cover the estimated actual costs to the City of processing applications for this Agreement and Development Approvals, for monitoring compliance with any Development Approvals, or for monitoring compliance with environmental or other impacts mitigation measures.
b) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure. c) The then-current California Building Standards Code referred to in California Health and Safety Code Section 18935 or other successor state statute and other Uniform Construction Codes provided that any such Uniform Code shall apply to the Development only to the extent that the Code has been adopted by the City and is in effect in the City. Regulations governing construction standards and specifications including, without limitation, the City’s Building Code, Plumbing Code, Mechanical Code, Electrical Code, Fire Code and Grading Code.
d) Regulations which are not in conflict with the Development Plan. In the event of a dispute between the City and the Developer with respect to this provision, the dispute shall be resolved by a court of competent jurisdiction.
(ii) Subsequent Development Approvals. The Project shall remain subject to all Subsequent Development Approvals required to complete the Project, including architectural review. The City shall accept for processing, review and action all applications for Subsequent Development Approvals, and such applications shall be processed in the normal manner for processing such matters. Except as otherwise provided in Section 3.e, the City, in acting on Subsequent Development Approvals, shall apply the Current Land Use Regulations. This Agreement shall not prevent the City from denying or -11- 382437.5 Barstow Development Agreement
conditionally approving any Subsequent Development Approval on the basis of the Current Land Use Regulations or the Subsequent Land Use Regulations applicable to the Project under this Agreement. (iii) Modification or Suspension by State or Federal Law. In the event that state or federal laws or regulations, enacted after the Effective Date or by determination of a court of competent jurisdiction, prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations, provided, however, that this Agreement shall remain in full force and effect to the extent that the parties agree that it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render the remaining provisions impractical to enforce.
(iv) Police Power. The parties acknowledge and agree that the City is restricted in its authority to limit its police power by contract and that the limitations, reservations and exceptions set forth in this Section 3.e are intended to reserve to the City all of its police power which cannot be so limited. (v) Regulation by Other Public Agencies. It is acknowledged by the parties that other public agencies not within the control of the City possess authority to regulate aspects of the Development of the Property separately from or jointly with the City and this Agreement does not limit the authority of such other public agencies, except for the Agency.
4. VESTING MAP.
a. Vesting Map Extension. The term of the Vesting Map currently expires on March 22, 2026. In accordance with Government Code Section 66452,6, the term of Vesting Map shall extend for the term of this Agreement and any extension of that term all as set forth in Section 2.c of this Agreement. b. Map Conditions. City has determined that it is not necessary for the development of the Project to be conditioned on constructing any off-site improvements to Higgins Road, including paving, curb, gutter, sidewalk and/or drainage control (the “Higgins Road Improvements”). As such, the City agrees that the Map Conditions are amended by this Agreement to remove any requirement by Developer or the Project to construct any Higgins Road Improvements. All other conditions of approval and impact mitigation requirements of the Development Plan remain in place, unless modified under this Agreement or by a Subsequent Development Approval.
5. PERIODIC REVIEW FOR COMPLIANCE.
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a. Periodic Review. The City may review this Agreement every 12 months from the Effective Date in accordance with Barstow Municipal Code Section 19.436.070 of the City DA Regulations.
b. Modification or Termination. If, upon a finding under Barstow Municipal Code Section 19.46.070 of the City DA Regulations, the City determines to proceed with modification or termination of this Agreement, then the terms of Barstow Municipal Code Section 19.436.080 of the City DA Regulations shall apply.
6. DEFAULT AND REMEDIES.
a. Default by City or Developer. If either party hereto fails to perform any material obligation or comply with any material provision set forth in this Agreement, such party shall be in default (“Default”) under this Agreement only after the nondefaulting party provides the defaulting party written notice of Default setting forth the nature of the Default and the actions, if any, required to cure such Default and either (i) the defaulting party then fails to take such actions and cure such Default within 30 days after the effective date of such notice OR, (ii) in the event that such Default cannot be cured within such 30 day period but can be cured within a timeframe agreed to by both parties, the defaulting party fails to commence and diligently complete the actions necessary to cure such Default within that aforementioned agreed timeframe.
b. Remedies. The parties acknowledge that money damages and remedies at law generally are inadequate and that either specific performance or termination of this Agreement are the sole and appropriate remedies for a Default. Each of the partes expressly waive any right to recover any damages of any kind except for the recovery of costs and attorney’s fees as set forth in Section 9.m below. Due to the size, nature and scope of the Project, it will not be practical or possible to restore the Property to its natural condition once implementation of this Agreement has begun. After such implementation, Developer may be foreclosed from other choices it may have had to utilize the Property and provide for other benefits.
Developer has invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more substantial time and resources in implementing the Project in reliance upon the terms of this Agreement, and it is not possible to determine the sum of money which would adequately compensate Developer for such efforts. By the same token, in the event that City issues any permit or other approval for a structure, and the public facilities, improvements, and infrastructure reasonably necessary to provide an adequate level of public services to that structure are not timely completed or Developer otherwise fails to carry out its obligations under this Agreement, then it would not be possible to determine a sum of money that would adequately compensate City for the resulting hardship. For the above reasons, City and Developer agree that, notwithstanding any other language in this Agreement, damages would not be an adequate or appropriate remedy if City fails to carry out its obligations under this Agreement, or if Developer fails to timely complete any public facility, improvement, or -13- 382437.5 Barstow Development Agreement
infrastructure provided for herein that is reasonably necessary to provide an adequate level of public services to any structure for which City has issued a permit or other approval or otherwise fails to carry out its obligations under this Agreement. Therefore, specific performance of this Agreement is the only remedy which would compensate Developer if City fails to carry out its obligations under this Agreement, and City hereby agrees that Developer shall be entitled to specific performance in the event of a default by City hereunder. Further, specific performance of this Agreement is the only remedy which would compensate City if Developer fails to timely complete any public facility, improvement, or infrastructure provided for herein that is reasonably necessary to provide an adequate level of public services to any structure for which City has issued a permit or other approval for the Project or otherwise fails to carry out its obligations under this Agreement, and Developer hereby agrees that City shall be entitled to specific performance in such event. In the event of lack of or partial compliance by the Developer with the obligations of this Agreement, City may pursue specific performance to force Developer to complete its obligations under this Agreement.
7. DEFENSE AND INDEMNITY.
Developer shall defend, indemnify and hold harmless City, its elected and appointed commissions, officers, agents and employees, from and against any and all damages, claims, costs and liabilities arising out of the personal injury or death of any third party, or damage to the property of any third party, to the extent such damages, claims, costs or liabilities arise out of or in connection with the construction or operations of the Project under this Agreement by Developer or by Developer's contractors, subcontractors, agents or employees. Nothing in this Section 7 shall be construed to mean that Developer shall defend or indemnify City from or against any damages, claims, costs or liabilities arising from, or alleged to arise from, activities associated with the maintenance or repair by City or any other public agency of improvements that have been offered for dedication and accepted by City or such other public agency or arising from the negligence or willful misconduct of City or by its contractors, subcontractors, agents or employees. City and Developer may from time to time enter into subdivision improvement agreements, as authorized by the Subdivision Map Act, which agreements may include defense and indemnity provisions different from those contained in this Section 7. In the event of any conflict between such provisions in any such subdivision improvement agreement and the provisions set forth above, the provisions of the agreement that provides greater indemnification shall prevail. No provision of this Agreement shall be construed to require any party to enter into any subdivision improvement agreement that contains defense and indemnity provisions different from those contained in this Section 7. Developer further agrees as follows:
(i) If any person not party to this Development Agreement institutes any administrative, legal or equitable action or other proceeding challenging the validity of 1) any provision of this Agreement, 2) any Development Approval or the sufficiency of any review of this Development Agreement, 3) any Development Approval under CEQA, 4) the creation of any Community Services District, -14- 382437.5 Barstow Development Agreement
Community Facilities District, or other finance district pursuant to the Development Approvals, or 5) any imposition, enforcement, levy, or collection of any special assessment or special tax imposed pursuant to the Development Approvals (each a “Third Party Challenge”), the Parties promptly shall meet and confer as to the most appropriate response to such Third Party Challenge; provided, however, that any such response shall be consistent with this Agreement. (ii) City shall tender the complete defense of any Third Party Challenge to Developer, and upon acceptance of such tender by Developer: (1) Developer shall defend and indemnify City against any and all fees and costs arising out of the defense of such Third Party Challenge; and (2) City and Developer shall jointly control the defense and/or settlement of such Third Party Challenge. Counsel in any such legal defense shall be selected by Developer and reasonably approved by the City. Developer’s obligation to provide such defense includes the obligation to indemnify and hold harmless the City from any and all claims arising from such litigation administrative challenge, including, but not limited to, damages claims, judgments, litigation costs and attorneys’ fees. Developer shall not settle any such proceeding on terms which include the granting of any form of relief to any person not a party to this Agreement, excepting only monetary relief to be paid solely by Developer, without the consent of City, which consent shall not be unreasonably withheld, conditioned or delayed.
(iii) If Developer should fail to accept City’s tender of defense as set forth above, City shall defend such Third Party Challenge and control the defense and/or settlement of such Third Party Challenge as City decides (in its sole discretion), and City may take any and all actions it deems necessary and appropriate (in its sole discretion) in connection therewith; provided, however, that City shall seek Developer’s consent to any settlement of such Third Party Challenge, which consent shall not unreasonably be withheld or delayed. Developer shall indemnify City against any and all fees and costs arising out of the City’s defense of such Third Party Challenge, including, but not limited to, any damages, claims, judgments, litigation costs and attorneys’ fees.
(iv) Cooperation. In the event of any administrative, legal or equitable action or other proceeding instituted by any person not a party to this Agreement challenging the validity of any provision of any of the Entitlements, or the approval of any final map, Implementing Approval, or ministerial permit, granted to Developer pursuant to the Entitlements, or the creation of any Community Services District, or other public entity, or Finance District pursuant to the Entitlements, or the imposition, enforcement, levy, or collection of any special assessment or special tax imposed pursuant to the Entitlements, or the approval of this Agreement, the parties shall cooperate in defending such action to settlement or final judgment. Developer may elect to have the City rescind that Development Approval in which event Developer’s obligations hereunder with regards to that Third Party Challenge shall cease after such rescission is final. Developer maintains the obligation to defend the City in regards to the aforementioned rescission.
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(v) Nothing contained herein shall limit the right of the City to appear and defend itself in any administrative or legal proceeding, at the City’s expense. The City shall promptly give notice to Developer, within five (5) business days of service of process upon the City Clerk, of any action filed against the City covered by this Section 7 and shall promptly and fully cooperate with Developer in its defense of any such action filed against the City as set forth in this Section 7 (vi) The parties agree that this Section 7 shall constitute a separate agreement entered into concurrently, and that this Section 7 shall survive termination of this Agreement. Without limiting the generality of the foregoing, if any other provision of this Agreement, or the Agreement as a whole, is invalidated, rendered null, or set aside by a court of competent jurisdiction, the parties agree to be bound by the terms of this Section 7, which shall survive such invalidation nullification or setting aside.
8. MORTGAGEE AND REGULATORY COOPERATION.
This Agreement shall not prevent or limit the Developer, after close of escrow pursuant to the Purchase and Sale Agreement by which Developer becomes the owner of Property in fee title, from (1) encumbering the Property or any portion of it or any improvement on it by any mortgage, deed of trust or other security interest securing financing with respect to the Property, subject to the terms and conditions of this Agreement, or (2) obtaining the approval of any regulatory agency necessary to the sale or transfer of portions of the Property or interests therein, subject to the terms and conditions of this Agreement. The City acknowledges that secured lenders as well as certain governmental authorities and agencies, including, but not limited to, the California Department of Real Estate, may request certain interpretations and modifications of this Agreement. The City agrees, upon Developer’s request with notice of seven (7) business days, to meet with the Developer and representatives of such lenders and governmental authorities and agencies to consider (in the City’s reasonable discretion) any request for interpretation or modification which is consistent with the intent and purposes of this Agreement and which will not diminish in any manner the benefits of this Agreement to the City. Any modification to this Agreement shall require express, written City approval.
9. ADMINISTRATION.
a. Recordation. This Agreement and any amendment or cancellation thereof shall be recorded with the County Recorder by the City Clerk, after Developer’s ownership of the Property is confirmed, and recordation shall be deemed to be the act of entering into this Agreement for the purposes of California Government Code Section 65868.5.
b. Entire Agreement. This Agreement contains the entire understanding and agreement of the parties with respect to the subject matter hereof. There are no oral or written representations, understandings, undertakings, or agreements which are not contained or expressly referred to in this Agreement, and any such -16- 382437.5 Barstow Development Agreement
representations, understandings, or agreements not contained or expressly referred to herein are superseded by this Agreement. No evidence of any representations, understandings, or agreements which are not contained or expressly referred to herein shall be admissible in any proceeding of any kind or nature relating to the terms or conditions of this Agreement, its interpretation, or breach. c. Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected to the extent the remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement.
Notwithstanding the foregoing, the provisions of Sections 2, 3, and 4 of this Agreement are essential elements of this Agreement and the City and the Developer would not have entered into this Agreement but for such provisions, and therefore in the event such provisions are determined to be invalid, void or unenforceable by a judicial decision, this entire Agreement shall be null and void and of no force and effect whatsoever.
d. Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California.
This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the parties. The rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement, all parties having been represented by counsel and having fully participated in the negotiation of this Agreement.
e. Headings. All section headings and subheadings are inserted for convenience only and shall have no effect on the construction or interpretation of this Agreement. f. Singular Includes Plural. The singular of any word used in this Agreement includes the plural.
g. Limited Joint and Several Liability. If at any time during the term of this Agreement the Property is owned, in whole or in part, by more than one Developer, the obligations of such Developers under this Agreement shall be joint and several but only with respect to that portion of the Property that is owned jointly; otherwise each Developer is only liable for the obligations which concern that portion of the Property owned by that Developer and not for a Default by another Developer of the obligations that concern that other Developer’s portion of the Property.
h. Time is of the Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element, and must be stated in writing to applicable party.
i. Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise -17- 382437.5 Barstow Development Agreement
its rights upon the default of the other party, shall not constitute a waiver of such party’s right to insist and demand thereafter strict compliance by the other party with the terms of this Agreement.
j. No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement. k. Mutual Covenants. The covenants contained in this Agreement are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the benefitted party of the covenants to be performed by such party. l. Successors in Interest. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act with regard to Development of the Property:
(a) is for the benefit of and is a burden upon every portion of the Property; (b) runs with the Property and each portion thereof; and, (c) is binding upon each party and each successor in interest during ownership of the Property or any portion of it. m. Attorneys’ Fees and Costs. If legal action by either party is brought because of breach of this Agreement or to enforce a provision of this Agreement, the prevailing party is entitled to reasonable attorneys’ fees and court costs. n. Jurisdiction and Venue. Any action at law or in equity arising under this Agreement or brought by any party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of San Bernardino, State of California, and the parties waive all provisions of law providing for the filing, removal or change of venue to any other court.
o. Project as a Private Undertaking. It is specifically understood and agreed by and between the parties hereto that the Development of the Project is a private development, that neither party is acting as the agent of the other in any respect, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between the City and Developer is that of a government entity regulating the development of private property and the owner of such property. p. Further Actions. Each of the parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of either party at any time, the other party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may -18- 382437.5 Barstow Development Agreement
be reasonably necessary under the terms of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. q. Eminent Domain. Except as provided elsewhere in this Agreement, no provision of this Agreement shall be construed to limit or restrict the exercise by the City of its power of eminent domain.
r. Authority to Execute. The person or persons executing this Agreement on behalf of the Developer warrants and represents that they have the authority to execute this Agreement on behalf of their corporation, partnership or business entity and warrants and represents that they have the authority to bind the Developer to the performance of its obligations hereunder.
s. Recitals Are a Part. The recitals are made a part of this Agreement. t. Counterparts. This Agreement may be executed by the parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the parties had executed the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Reference Date.
CITY OF BARSTOW,
a municipal corporation
By: _____________________________
Mayor
ATTEST:
By: ____________________________
City Clerk
APPROVED AS TO FORM:
By:
City Attorney
DEVELOPER:
LEWIS LAND DEVELOPERS, LLC,
a Delaware limited liability company
By: LEWIS MANAGEMENT CORP.,
a Delaware corporation - Its Manager
By: ______________________________
Name: ___________________________
Its: ______________________________
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ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of _________________________ )
On ____________________, 20__ before me, ____________________________, a Notary Public, personally appeared _______________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
[SEAL]
Exhibit A - 21
382437.5 Barstow Development Agreement
EXHIBIT A
Legal Description of Property
All that certain real property situated in the City of Barstow, County of San Bernardino, State of California described as follows:
PARCEL A:
PARCELS 1, 2, 3, & 4 OF PARCEL MAP NO. 7449, IN THE CITY OF BARSTOW, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, IN BOOK 76, PAGE 52, OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
APN: 0181-712-06-0-000, 0181-712-07-0-000, 0181-712-08-0-000 & 0181-712-09-0-000 PARCEL B:
PARCELS 1, 2, 3, 4 & 5 OF PARCEL MAP NO. 12899, IN THE CITY OF BARSTOW, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, IN BOOK 150, PAGE 8, OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
APN: 0181-712-10-0-000, 0181-712-11-0-000, 0181-712-012-0-000 & 0181-712-13-0-000 & 0181-712-14-0-000
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EXHIBIT B
Map of Property
Exhibit C - 26
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EXHIBIT C
Vesting Tentative Tract Map No. 17713
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EXHIBIT D
Map Conditions
[See Attached]
382437.5 Barstow Development Agreement
382437.5 Barstow Development Agreement
382437.5 Barstow Development Agreement