SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release ("Agreement") is entered into as of ______ , 2025 ("Effective Date"), by and between DAYCO FUNDING CORPORATION, a California Corporation, and NV HESPERIA INVESTORS, LLC, a Nevada limited liability company (collectively hereinafter "Developer") and the CITY OF HESPERIA, a public entity and its Related Persons and Entities (collectively hereinafter "City"). Developer and City collectively are referred to herein as the "Parties," and each singularly is referred to as a "Party."
RECITALS
A. Developer possesses, and has possessed at all relevant times herein, the real property located along the south side of Mojave Street between Topaz Avenue and Datura Road in the City of Hesperia, CA 92345, comprised of approximately 40 acres of vacant land and further identified as Assessor's Parcel Numbers 0405-261-15,16,17,18, 27, 28, 29 & 30- 0000 (the "Property").
B. On or about July 13, 2009, the City Planning Commission conditionally approved tentative tract map 17916 and Variance VAR09-10153 ("TTM 17916") for a residential development project involving the construction of one hundred and seventy seven (177) single-family homes at the Property ("Project"). TTM 17916 was approved for five (5) phases of a final map submittal in accordance with the Subdivision Map Act (California Government Code § 66410 et seq.) ("SMA").
C. After three extensions granted by the California Legislature, TTM 17916 was to expire on August 21, 2022.
D. On or about July 19, 2022 Developer Improvement Plans ("IP") for TIM 17916 and final map Phase One 17916-1 ("Phase 1 Final Map 17916-1") were approved by the City Engineer. As such, Developer contends the Phase 1 Final Map 17916-1 was timely filed on that date pursuant to SMA 66463.5(b), which states "Once a timely filing is made, subsequent actions of the local agency, including, but not limited to, processing, approving, and recording may lawfully occur after the date of expiration of the tentative map".
E. All fees required to process the Phase 1 Final Map 17916-1 have been paid to the City.
F. On or about June 22, 2022, Developer submitted a Phase 2 Final Map ("Phase 2 Final Map 17916-2") to the City Engineer for review and approval. On or about August 25, 2022, Developer re-submitted a Phase 2 Final Map 17916-2 with corrections requested by the City Engineering and Planning Departments in response to the City's August 18, 2022, request for corrections. Developer contends that the Phase 2 Final Map 17916-2 was also timely filed pursuant to SMA 66463.5(b) which states "Once a timely filing is made, subsequent actions of the local agency, including, but not limited to, processing, approving, and recording may lawfully occur after the date of expiration of the tentative map".
G. All required fees to process the Phase 2 Final Map 17916-2 have been 1 of 12
paid to the City.
H. The City has disputed Developer's claims that Phase 1 Final Map 17916-1 and Phase 2 Final Map 17916-2 were timely filed as the City contends Developer failed to comply with the requirements of Hesperia Municipal Code, section 17.08.050(8), which states,
Filing Official Copy of the Final Map. If the advance copy of the final map has been found satisfactory by the city engineer, the subdivider shall cause the final map to be officially filed with the city engineer at least twenty (20) days prior to expiration of the approval or conditional approval or any approved extension of time as provided by this title. The final map shall not be officially filed until the engineer has received notification from the city engineer that all provisions of the tentative map approval, the Subdivision Map Act, city code and city standards have been complied with. The official filing of the final map with the city engineer will constitute the final map filing date.
Developer contends that Developer has complied with Hesperia Municipal Code, section 17.08.050(8) and the SMA with respect to timely filing the Phase 1 Final Map 17916-1 and Phase 2 Final Map 17916-2.
I. Following the City's notification that TTM 17916 would expire on August 21, 2022, a claim which Developer disputes, Developer submitted on or about August 18, 2022 an Application for Extension of Time to the City Development Review Committee ("DRC") for TIM 17916 (prior to the City deadline), which pursuant to the SMA, Government Code section 66463.5, automatically extended TTM 17916 for 60 days or until the application for extension is approved or denied. On September 7, 2022 the DRC denied the appeal.
J. On or about September 11,2022, Developer appealed to the City Planning Commission the DRC denial of the Application for Extension of Time for TTM 17916. On November 14, 2022 the City Planning Commission denied the appeal; K. On November 18, 2022 Developer appealed the City Planning Commission denial of TTM 17916 Application for Extension of Time to the City Council. On December 20,2022 the City Council denied the appeal;
L. On or about March 17, 2023, Developer filed the Action (as defined below) for a petition for writ of mandate and complaint for declaratory relief and inverse condemnation in the California Superior Court, County of San 8ernardino, against the City, specifically numbered as Case No. CIVS82307020, claiming the City improperly determined that Phase 1 Final Map 17916-1 and Phase 2 Final Map 17916-2 were not timely officially filed prior to the expiration of Tentative Tract Map 17916 and improperly denied Developer's application to extend Tentative Tract Map 17916. The City has denied each of the claims raised in the lawsuit filed by the Developer; M. In the interest of avoiding the risk and expense of further litigation in the Action, the Parties now wish to resolve the Claims pursuant to the terms and conditions 2 of 12
set forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the Parties hereby agree as follows:
AGREEMENT
1. DEFINITIONS.
a. "Action" shall mean and refer to Oayco Funding Corporation and NV Hesperia Investors, LLC v. The City of Hesperia (San Bernardino County Superior Court Case No. CIVSB2307020).
b. "City" shall mean the City of Hesperia, a public entity and its related persons and entities acting on its behalf. The term "City" explicitly includes the City's Council. c. "Claims" shall mean any and all actual, intended, or potential claims, actions, causes of action, complaints, rights, demands, disputes, suits, controversies, defenses, and/or any other statutory, common law, or equitable theory and cause of action of any kind by the Parties arising from, related to, or in any way connected with the Action.
d. "A-04 Drainage Fee" shall mean the fees and/or charges adopted by the City for the impact from the A-04 storm drain program developed by the City; e. "Developer" shall mean Dayco Funding Corporation, a California Corporation, and NV Hesperia Investors, LLC, a Nevada limited liability company, and persons and/or entities acting on their behalf and their successors and assigns. f. "Related Persons and Entities" shall mean any and all past, present and future parent companies, sister companies, divisions, subsidiaries, affiliates, partners, partnerships, limited liability partnerships, corporations, limited liability companies, business entities, associations, predecessors, predecessors-in interest, successors, successors-in-interest, personal guarantors, owners, stockholders, directors, officers, employees, Members, insurers, lenders, mortgage holders, assigns, assignors, assignees, conservators, joint ventures, representatives, and agents that are related in any way to the Parties or any entities controlled by, under common control with, or controlling the Parties. g. "TTM 17916" shall mean Tentative Tract Final Maps 17916-1 and 17916-2, as of July 19, 2022, and August 25, 2022 respectively, conditionally approved by the City's Planning Commission on July 13, 2009, to develop the Project. h. ''TTM 15868" shall mean "Tentative Tract Map 15868", as of October 5, 2016, conditionally approved by the City's Development Review Committee on October 5, 2016, to develop 185 single-family residential homes which will abut TTM 17916 along Topaz Avenue.
i. "Project" shall mean that certain residential development project involving the construction of one hundred and seventy-seven (177) single-family homes at the Property ("Project") in accordance with TTM 17916.
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j. "Fee Credit" shall have the meaning as set forth in Section 5 of this Agreement.
k. "Litigation Extension" shall have the meaning as set forth in Section 3(a) of this Agreement.
I. "Major Arterial Roadway" shall have the meaning set forth in the Hesperia Municipal Code for classification of a major arterial street with a 120 foot right of way.
m. "DIF" shall mean development impact fee.
2. RECORDATION OF PHASE 1 FINAL MAP.
a. The Parties acknowledge and agree that Developer's Phase 1 Final Map 17916-1 submittal, which shall consist of all relevant documents required by the City as provided in the conditions of approval of TTM 17916 and outlined below, constitutes a substantially compliant final map submittal and timely filing in accordance with TTM 17916's conditions, the City's municipal code, and the SMA. The Parties agree and shall complete the recordation of the Phase 1 Final Map 17916-1 in accordance with the Phase 1 Final Map 17916-1 submittal. The Parties shall work expeditiously and in good faith to complete and prepare any reasonably necessary documents for the Phase 1 Final Map 17916-1 submittal in order to record the Phase 1 Final Map 17916-1 as soon as possible. The Parties acknowledge the Developer has twelve months from the Effective Date to address items to complete the Phase 1 Final Map 17916- 1 recordation. The Parties acknowledge that no changes to the Phase 1 Final Map 17916-1 submittal are required, and the City's ministerial processing of the Phase 1 Final Map 17916-1 recordation will proceed in accordance with applicable laws.
b. The Parties hereby anticipate addressing the following items to complete the Phase 1 Final Map 17916-1 recordation:
i. Execution of the Subdivision Improvement Agreement ("SIA") by the required Corporate Secretary of Dayco Funding Corporation. ii. Amend the existing City approved Improvement Plans to reflect the additional roadway work contemplated in this Settlement Agreement to be completed by the Developer on Datura Road, Mojave Street and Topaz Avenue, and if necessary raise the height of the site TTM 17916 to eliminate any dirt export to balance the site.
iii. Delivery to the City by the Developer the required security as detailed in the SIA.
iv. City approval of the TTM 17916 Landscape Plans by City Planning and Building & Safety Departments submitted to the City with the requested corrections on or about July 8,2022.
v. City to provide approval of the Developer Amended Protected Plant Protection Plan subject to delivery to the City of an approved California 4 of 12
Fish and Wildlife ("CDFW") Western Joshua Tree Conservation Act ("WJTCA") Incidental Take Permit ("ITP") to remove and/or relocate Joshua trees from Project site, pursuant to said CDFW permit. vi. City Clerk did not execute the Certificate of Acceptance acknowledgement for the Irrevocable Offer of Dedication to the City by Dayco Funding Corporation for 1.32 acres of vacant land on APN 0405-261-27-0000 recorded by the City on April 18, 2022, Doc#2022-0143607. The Document was recorded in error without the City Clerk's Certificate of Acceptance signature and is an invalid Irrevocable Offer of Dedication to the City. To correct this error, the City Clerk shall execute the Certificate of Acceptance acknowledgement for the Irrevocable Offer of Dedication and cause this document to be recorded with the San Bernardino County Recorder's Office.
vii. All conditions of approval set forth in TTM 17916 shall remain the same in accordance with the state and local law and no other conditions of approval shall be added at this time except as set forth in this settlement agreement.
viii. Developer intends to submit an application to the CDFW for a WJTCA ITP to remove all Joshua trees on the Project site.
ix. Developer intends to enter into and record a "Temporary Right of Entry, Grading, Slope and Drainage Easement Agreement" between the Developer and 185 Mojave Trust, the owner of TTM 15868, to facilitate the construction of A-04 drainage improvements on the Topaz Avenue portion of the adjoining properties.
c. Any and all new City fees associated with the Phase 1 Final Map 17916-1 and Phase 2 Final Map 17916-2 submittals will be based upon fees in place for related development projects by the City as of April 2, 2022. The Parties agree that any new required fees associated with TTM 17916, Phase 1 Final Map 17916-1 submittal shall be in accordance with the City Wide Fee Schedule Fiscal Year 2022-23 and that any new required fees associated with TTM 17916, Phase 2 Final Map 17916-2 submittal shall be in accordance with the City Wide Fee Schedule Fiscal Year 2023-24. Should the A-04 Drainage Fee be declared by a California court of law to be unlawful, invalid and/or void, then Developer will no longer be required to pay this DI F fee as Developer has already demonstrated to the satisfaction of the City that all adverse impacts related to storm run-off and drainage both on-site and off-site, as they relate to the Project, have been mitigated in a manner satisfactory to the City Engineer.
Notwithstanding the foregoing, and in line with Section 2.b.ix above, prior to the City's sign off and approval for recording of the Phase 1 Final Map17916- 1, Developer shall (a) provide the City with a letter from the owner of Tract 15868 confirming that a drainage easement is being negotiated, or (b) provide a copy of a recorded drainage easement on Tract 15868. (As shown on Developer's grading plans, a copy of a recorded drainage easement on Tract 15868 shall be provided to the City before issuance of a grading permit.) 5 of 12
3. EXTENSION OF TTM 17916.
a. The Parties agree that TTM 17916 is extended from August 21, 2022, to the date of service of the Notice of the Entry of Dismissal in the Action ("Litigation Extension").
b. Upon the City's recordation of the Phase 1 Final Map 17916-1, TTM 17916's timeline shall be further extended from the date of recordation for a period not to exceed 48 months pursuant to Government Code section 66452.6 subdivision (a) (the "Phase 1 Extension"). Should the Litigation Extension and the Phase 1 Extension overlap, the Litigation Extension shall terminate as of the start date of the City's recordation of the Phase 1 Final Map 17916-1. The Phase 1 Extension shall become the controlling extension deadline for TTM 17916.
4. APPROVAL OF THE PHASE 1 FINAL MAP AND THE PHASE 2 FINAL MAP.
The Parties hereby agree that Developer will be afforded the opportunity to complete and submit documents for TTM 17916, Phase 1 Final Map 17916-1 and Phase 2 Final Map 17916-2 in accordance with the conditions set forth in TTM 17916, the City's Municipal Code, the SMA, this Agreement, and any other applicable law. The Parties agree that TTM 17916 shall be extended upon the recordation of TTM 17916, Phase 1 Final Map 17916-1 and/or Phase 2 Final Map 17916-2 in accordance with applicable laws (including the SMA and City's Municipal Code). Any submittal of a Phase 1 and/or Phase 2 final map shall be treated as its first effective submittal of that application. For clarity, the current tentative tract map extensions as of the Effective Date per the SMA are 48 months from the recording of a phased tentative tract map based on the State Allocation Board approved Class B Construction Cost Index threshold amount of $368,176 as of 2022 pursuant to Government Code section 66452.6, subdivision (a).
5. DEVELOPMENT IMPACT FEE CREDIT and OTHER.
a. The Parties agree that Developer's financial costs related to construction of public infrastructure improvements for the Project, including the construction of the A-04 storm drain improvements, and offsite street improvements on Datura Road, Mojave Street and Topaz Avenue beyond the frontage improvements that TTM 17916 is conditioned to install, shall be credited against and offset any DIF owed by Developer to the City, including any A-04 Drainage Fee and street impact fee in the form of a fee credit ("Fee Credit") or reimbursement. Public infrastructure improvements that would be subject to Fee Credit, including the A-04 drainage improvements, will be constructed at prevailing wage rates. To the extent there is Fee Credit for a certain public improvement in excess of what Developer owed to the City for a particular development impact fee, such excess Fee Credit will be applied to other development impact fees charged by the City related to the Project 6 of 12
TTM 17916, or shall be subject to reimbursement as provided in a mutually satisfactory Reimbursement Agreement between Developer and the City substantially in the form attached hereto as Exhibit A. The City Council specifically designates authority to the City Manager to award the Fee Credits or reimbursements to the Developer pursuant to the terms of this Agreement. b. The Parties represent and warrant that any such Fee Credit owed by the City to the Developer shall not be transferable and/or sellable to a third party. c. Pursuant to Government Code section 66452.6, subdivision (a), Developer agrees to construct offsite full width street improvements on Datura Road including curb and gutter, and sidewalks from Mojave Street to the edge of existing pavement south of TTM 17916 boundary line at the Hesperia Community Park.
These public infrastructure improvements are conditioned upon Developer and/or City obtaining the right-of-way from existing property owners. The cost of these public improvements will include engineering, roadway and street costs, curb and gutter, sidewalks, acquisition of right-of-way, utilities, Joshua tree removal if applicable, and all other incidental costs to accomplish these public infrastructure improvements.
d. Pursuant to Government Code 66452.6, subdivision (a), Developer agrees to construct offsite half width street public infrastructure improvements on Mojave Street from Datura Road to Calhoon Street including curb and gutter and sidewalks. These public infrastructure improvements are conditioned upon Developer and/or City obtaining the right-of-way from existing property owners.
The cost of these public improvements will include engineering, roadway street costs, curb and gutter, sidewalks, acquisition of right-of-way, utilities, Joshua tree removal if applicable, and all other incidental costs to accomplish these public infrastructure improvements. Nothing in this Agreement shall preclude Developer from seeking a credit against the street portion of the Development Impact Fee for certain improvements to Mojave Street if those improvements qualify for credits under the City's Development Impact Fee program.
e. Pursuant to Government Code section 66452.6, subdivision (a), Developer agrees to construct offsite half width street public infrastructure improvements on Topaz Avenue including curb and gutter, and sidewalks from the southern board of TTM 17916 to the edge of existing pavement at Courtney Street south of the TTM 17916 boundary line. These public infrastructure improvements are conditioned upon Developer and/or City obtaining the right-of-way from existing property owners. The cost of these public improvements will include engineering, roadway street costs, curb and gutter, sidewalks, acquisition of right-of-way, utilities, Joshua tree removal if applicable, and all other incidental costs to accomplish these public infrastructure improvements.
f. Nothing in this Agreement shall preclude the Developer from requesting the City determine that the cost of the offsite public street infrastructure improvements that are outside of the property boundaries and are considered by Developer and City to be reasonably related to the development and constructed by Developer meets Developer's financial obligation pursuant to the SMA, Government Code section 66452.6(a)(1) and (a)(2) as established for 2022. 7 of 12
6. DISMISSAL OF CURRENT ACTION, PRELIMINARY APPLICATION AND NOTICE.
a. Unless already accomplished, within ten (10) days of the Effective Date, the Parties shall submit to the Court in the Action, either through a stipulation and proposed order or a stipulated ex parte application, a request to stay the Action for twelve months and to set an order to show cause regarding the status of settlement and lifting of the stay (the "Stay Order"). This Agreement shall be contingent upon the Court's entry of the Stay Order.
b. Within fifteen (15) days of the recordation of the Phase 1 Final Map 17916-1, Developer shall file a notice of conditional settlement in the Action and request that the Court lift the Stay Order and set an order to show cause re dismissal within forty-five (45) days.
c. Within thirty (30) days after the City provides written confirmation that (1) the Phase 1 Final Map 17916-1 has been recorded, and (2) TTM 17916 has been extended in accordance with this Agreement, Developer shall file a Request for Dismissal of the Action. Following receipt of the Court's entry of dismissal, Developer shall immediately prepare, file, and serve a Notice of Entry of Dismissal in the Action.
d. Each Party shall bear its own costs and fees related to the Action.
7. MUTUAL NON-DISPARAGEMENT. The Parties agree that neither Party shall make disparaging, demeaning or negative remarks about the other to any third party.
Nothing in this Agreement shall be construed as prohibiting the provision of information by either Party in connection with a subpoena or other legal process, including with respect to the enforcement of rights set forth herein.
8. GENERAL RELEASE.
a. Developer releases and forever discharges City and its respective predecessors, heirs, successors, and assigns, and their respective agents, representatives, employees, beneficiaries, attorneys, servants, administrators, executors, and spouses, and each of them, from any and all claims, debts, liabilities, demands, obligations, promises, actions, agreements, costs, damages, actions, and causes of action arising out of or relating to the Action. b. The City and its respective successors and assigns release and forever discharge Developer and its respective predecessors, heirs, successors, and assigns, subsidiaries, affiliates, commonly controlled entities, companies, enterprises, ventures, projects, and their respective agents, representatives, employees, beneficiaries, attorneys, servants, administrators, executors, and spouses and each of them, from any and all claims, debts, liabilities, demands, obligations, promises, actions, agreements, costs, damages, actions, and causes of action arising out of or relating to the Action.
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c. Notwithstanding the foregoing, neither Party waives or releases, and this Agreement shall not affect, any claims or rights that may arise after the date of this Agreement, that arise out of or in connection with the interpretation of enforcement of the Agreement itself, or that (whether specified or not) cannot be waived as a matter of law pursuant to federal, state or local statute.
9. SUCCESSORS AND ASSIGNS. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the successors and assigns of the Parties.
Nothing in this Agreement is intended to confer upon any other person or persons any rights, benefits, or remedies of any nature whatsoever. No person or entity shall be considered a third-party beneficiary of, or otherwise entitled to any rights or remedies under this Agreement, except with respect to the releases expressly provided for herein.
10. ENTIRE AGREEMENT. This Agreement constitutes and contains the entire agreement and understanding concerning the subject matters addressed herein between the Parties and supersedes and replaces all prior negotiations and all agreements proposed or otherwise, whether written or oral, concerning the subject matter hereof. This is an integrated document.
11. PARTIAL INVALIDITY. If any provision of this Agreement, or any application thereof, is held invalid, the invalidity shall not affect other provisions or applications of the Agreement which can be given effect without the invalid provision(s) or application(s) and to this end the provisions of this Agreement, and each of them, are declared to be severable.
12. APPLICABLE LAW/COOPERATIVE DRAFTING. This Agreement has been executed and delivered within the State of California, and the rights and obligations of the Parties hereunder shall be construed and enforced in accordance with, and governed by, the laws of the State of California, without regard to principles of conflicts of laws. All Parties shall be deemed to have participated in drafting this Agreement, and it shall not be construed against any of them.
13. ATTORNEYS' FEES. Should any party to this Agreement commence any legal action or proceeding against the other, with regard to this Agreement, the prevailing party shall be entitled to reasonable expenses resulting from the legal action or proceeding, including, but not limited to, reasonable attorneys' fees and costs.
14. FURTHER ASSURANCES. Each party agrees to execute such other and further documents and instruments as may be necessary or proper in order to consummate the transaction contemplated by this Agreement.
15. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed an original and all of which shall constitute together one and the same instrument and shall be effective upon execution by all the Parties.
16. WAIVER OF CALIFORNIA CIVIL CODE SECTION 1542. The Parties further acknowledge that they have been advised of the existence of Section 1542 of the 9 of 12
California Civil Code, which provides:
A general release does not extend to claims which the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.
Notwithstanding such provision, this Agreement shall constitute a full release of the Released Claims in accordance with its terms. The Parties knowingly and voluntarily waive and relinquish all rights and benefits afforded by the provisions of Section 1542, as well as any other statute, law, or rule of similar effect.
17. AMENDMENT. This Agreement may not be amended, modified, or terminated, in whole or in part, except by an instrument in writing duly executed by Developer and the City or their authorized representatives.
18. WAIVER. Any waiver of any term of this Agreement must be in writing and signed by the party waiving its rights hereunder. Conduct that is arguably or actually inconsistent with rights granted under this Agreement shall not constitute a waiver unless an intent to waive rights under this Agreement is clearly expressed in writing as required by this Section. The waiver of any term or condition contained in this Agreement shall not be construed as a waiver of any other term or condition contained in this Agreement.
19. NOTICES. Any notice appropriate or required to be given hereunder to the Parties shall be by email and U.S. Mail,or, in the alternative, at the option of the sender, by messenger and shall be to the following addresses, or such other address as is subsequently noticed in writing to.
To: The City of Hesperia
Attn: City Manager
9700 Seventh Avenue
Hesperia, CA 92345
Copy: The City of Hesperia's Counsel:
[email protected]
Pam K. Lee, Esq.
Aleshire & Wynder LLP
1 Park Plaza, Suite 1000
Irvine, CA 92614
To: Dayco Funding Corporation
Attn: H. Sean Oayani
4751 Wilshire Blvd., Ste. 203
Los Angeles, CA 90010
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To: NV Hesperia Investors, LLC
Attn: Lynn L. Fetterly
1822 Sydney Leigh Lane
Henderson, NV 89074
Copy: Developer's Counsel:
[email protected]
David K. Krause-Leemon
Krause-Leemon Cohen &
Daneshrad LLP
16255 Ventura Blvd., Ste.940
Encino, California 91436
20. TIME IS OF THE ESSENCE. The Parties hereby agree that time is of the essence in the performance of the Agreement.
21. CONFIDENTIAL. To the extent permitted by any and all applicable laws or court order, the Parties agree to keep the terms of this Agreement confidential and will not disclose, divulge, or use for any purposes any information set forth herein unless agreed to in writing by the Parties. City agrees this Agreement may be provided to potential successors and/or assigns, consultants and agents of the Developer for the purposes of determining project feasibility.
[signatures on following page]
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SIGNED:
Dayco Funding Corporation
,2025
NV Hesperia Investors, LLC
Date: , 2025
City of Hesperia
Date: , 2025
ATTEST
Melinda Sayre, City Clerk
Dayco Funding Corporation,
BY~~
Name: H. Sean Dayani
Its: Chief Executive Officer and Secretary
By: H .Y\\~ ~ . D".,,,n " Name: Hank H. Dayani \
Its: Chief Financial Officer
NV Hesperia Investors, LLC,
By: _
Name: Lynn L. Fetterly
Its: Manager/Member
By: _
Name: Kim M. Stubler
Its: Manager/Member
City of Hesperia, a Public Entity
By: _
Name: _
Its: -----~---------
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SIGNED:
Oayco Funding Corporation
Date: , 2025
NV Hesperia Investors. LLC
Date: 3(;( ,2025
City of Hesperia
Date: , 2025
ATTEST
Melinda Sayre, City Clerk
Dayco Funding Corporation,
By: _
Name: H. Sean Dayani
Its: Chief Executive Officer and Secretary
By: __ ~---- __ ------------- Name: Hank H. Dayanf
Its: Chief Financial Officer
NV Hesperia Investors, LLC,
By: ~.Y~ Name: 4:; L. FetterlY
Its: Manager/Member
By: ____;:;~;.;;..:..'-~.....-LL-I~-
Name: Kim M. Stubler
Its: Manager/Member
City of Hesperia, a Public Entity
By: _
Name: _
Its:
-----------------------
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EXHIBIT A
CONSTRUCTION FEE CREDIT AND REIMBURSEMENT AGREEMENT
DEVELOPMENT IMPACT FEE PROGRAM
This CONSTRUCTION FEE CREDIT AND REIMBURSEMENT AGREEMENT ("Agreement") is entered into this _ day of , 20_, by and between the CITY OF HESPERIA, a California municipal corporation ("City"), and , a ("Developer"). City and Developer are sometimes hereinafter referred to individually as "Party" and collectively as "Parties".
RECITALS
A. Developer is proposing to develop approximately acres of unimproved real property located at in the City of Hesperia, County of San Bernardino, California and more specifically described in the legal description set forth in Exhibit A attached hereto and incorporated herein by this reference ("Property").
B. Developer has requested and/or obtained from City certain entitlements and/or permits for the construction of certain improvements on the Property, including _ and certain off-site public improvements which are more particularly described and identified within (the "Project"). ------
C. As a condition to City's approval of the Project, City has required Developer to, among other things, construct within the City (the "Public Improvements") , as described on the approved plans and specifications attached hereto as Exhibit B (such plans and specifications, with any changes approved by City and Developer, are collectively referred to herein as the "Plans and Specifications").
D. Section 16.12.076 ~f the Hesperia Municipal Code authorizes the City to impose development impact fees ("DIF") to finance public facilities in furtherance of the goals and objectives of the city's general plan, various facility master plans, and capital improvement plans, as they may be amended from time to time. The imposition of DIF ensures that new development in the city bears its proportionate share of the cost of public facilities necessary to accommodate such development, which thereby promotes d protects the public health, safety, and welfare.
E. Developer has paid or will pay all DIF as identified in Exhibit C.
F. Developer may receive and the City may grant credit towards the DIF for construction of eligible public improvements or facilities; provided, however, the amount of the fee credit or reimbursement shall not exceed the amount of the DIF assessed for which the fee credit or reimbursement is granted, unless the City Council also approves a reimbursement agreement.
G. City and Developer now desire to enter into this Agreement for the following purposes:
(i) to provide for the timely construction and completion of the Public Improvements, (ii) to ensure that construction of the Public Improvements is undertaken in accordance with the Plans and Specifications, (iii) to provide a means by which the Developer's costs for construction of the Public Improvements is 1 offset against Developer's obligation to pay the applicable DIF for the Project, and (iv) to provide for reimbursement of costs in excess of the credit granted for eligible improvements, if any.
NOW, THEREFORE, for the purposes set forth herein, and for good and valuable consideration, the adequacy of which is hereby acknowledged, Developer and City hereby agree as follows:
TERMS
1. Incorporation of Recitals. The Parties hereby affirm the facts set forth in the Recitals above and agree to the incorporation of the Recitals as though fully set forth herein.
2. Construction of Public Improvements. Prior to the issuance of a Certificate of Occupancy, unless both parties agree to an extension in writing, Developer shall construct or have constructed, at its own cost and expense, the Public Improvements in accordance with the Plans and Specifications. Developer (or its contractors) shall provide all equipment, tools, materials, labor, tests, design work, and engineering services necessary to fully and adequately complete the Public Improvements.
2.1 Pre-approval of Plans and Specifications. Developer is prohibited from commencing work on any portion of the Public Improvements until all Plans and Specifications for the Public Improvements have been submitted to and approved by City. Approval by City shall not relieve Developer from ensuring that all Public Improvements conform to all other requirements and standards set forth in this Agreement.
2.2 Permits and Notices. Prior to commencing any work, Developer (through its contractors) shall, at its sole cost and expense, obtain all necessary permits and licenses and give all necessary and incidental notices required for the lawful construction of the Public Improvements and performance of Developer's obligations under this Agreement. Developer (through its contractors) shall conduct the work in full compliance with the regulations, rules, and other requirements contained in this Agreement, any applicable law, an~any permit or license issued to Developer.
2.3 Public Works Requirements. Developer shall ensure that the bidding, awarding, and construction of the Public Improvements are undertaken as if such Public Improvements were constructed as a public works project under the direction and authority of City, pursuant to the applicable provisions of the Public Contract Code. Developer shall obtain bids for the construction of the Public Improvements in ~manner which has been approved by the Public Works Director. Developer shall provide the Public Works Director with copies of all bids received from contractors and a bid summary in a form approved by the Public Works Director to assure that the contractor/subcontractors adhere to the applicable legal requirements for public works projects.
2.4 Compliance with Plans and Specifications. The Public Improvements shall be completed in accordance with the Plans and Specifications as approved by City.
2.5 Standard of Performance. Developer and its contractors shall perform all work required, constructing the Public Improvements in a skillful and workmanlike manner, and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Developer represents and maintains that it or its contractors shall be skilled in the professional calling necessary to perform the work. Developer warrants that all of its employees and 2 contractors shall have sufficient skill and experience to perform the work assigned to them, and that they shall have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the work, and that such licenses, permits, qualifications and approvals shall be maintained throughout the term of this Agreement.
3. Maintenance of Improvements. City shall not be responsible or liable for the maintenance or care of, and shall exercise no control over, the Public Improvements until such Public Improvements are accepted by City. Developer shall have no obligation to make the Public Improvements available for public use at any time before the Public Improvements are accepted by City.
Any use by any person of the Public Improvements, or any portion thereof, shall be at the sale and exclusive risk of Developer at all times prior to City's acceptance of the Improvements. Developer shall maintain all of the Public Improvements in a state of good repair until they are completed by Developer and accepted by City, and until the security for the performance of this Agreement is released. Prior to acceptance, it shall be Developer's responsibility to initiate all maintenance work, but if it shall fail to do so, it shall promptly perform such maintenance work when notified to do so by City. If Developer fails to properly prosecute its maintenance obligation under this section, City may, upon written notice and Developer's failure to remedy as provided in Section 11, do all work necessary for such maintenance, and the cost thereof shall be the responsibility of Developer and its surety under this Agreement. City shall not be responsible or liable for any damages or injury of any nature in any way related to or caused by the Public Improvements or their condition prior to acceptance, except to the extent such damage or injury is caused by the negligence or willful misconduct of City, its elected officials, employees and/or agents.
4. Fees and Charges. Subject to the provisions of this Agreement, Developer shall pay all required DIF, fair share fees, and all other normal and customary taxes, processing fees, and charges arising out of the construction of the Public Improvements, including, but not limited to, all plan check, design review, engineering, inspection, sewer treatment connection fees, and other service or impact fees established by the City. Developer shall receive such credits and/or reimbursements for the Public Improvements constructed in accordance with the provisions set forth in the Hesperia Municipal Code and as set forth in this Agreement.
5. Fees Credit and Reimbursement.
5.1 DIF. City and Developer acknowledge that as of the date of this Agreement, the total amount of DIF to be assessed and owing to the City is Dollars ($__) (collectively, "Fee Obligations").
5.1.1 Credit Offset Against Fee Obligations. In consideration for Developer's obligation under this Agreement to construct the Public Improvements (if not constructed by others), a credit shall be applied by the City to offset some of all of the Fee Obligations (the "Fee Credits"). At the time of this Agreement, the estimated cost to construct the Public Improvements is __________ Dollars ($ ) for the Public Improvements, as set forth in Exhibit D. (the "Estimated Credit Amounts"). The actual amount of such credit and, if applicable, reimbursement amount for each impact fee shall be calculated as provided in Sections 5.2 and 5.3.
5.l.2 Application of the Estimated CreditlReimbursement Amount Against the Fee Obligations. In consideration for Developer's obligation under this Agreement to construct the Public Improvements, Developer shall pay to City the amount of Dollars ($ _), which is equal 3 to the Fee Obligations less the Estimated Credit Amounts, leaving a balance in the amount of _______ Dollars ($ __ ) that may be reimbursed to Developer as provided in Sections 5.2 and 5.3 ("Estimated Reimbursement Amounts").
5.2 Reconciliation; Final Offset against the Fee Obligations. Upon completion of the Public Improvements by Developer, Developer shall submit to the Public Works Director such information as the Public Works Director may require to calculate and verify the total eligible and actual costs incurred by Developer to construct the Public Improvements (the "Verified Construction Costs").
The Actual Fee Credits and, if applicable, Actual Reimbursement Amounts owed to Developer for construction of the Public Improvements shall be equal to the Verified Construction Costs, subject to the limits contained in Section 5.3, and shall be used for the purposes of the final reconciliation.
If the Verified Construction Costs are less than the Fee Credits, then Developer shall pay the remaining balance to the City to fully satisfy Developer's Fee Obligations within thirty (30) days. If the Verified Construction Costs exceed the Fee Credits, then the City shall reimburse the Developer in accordance with the provisions of Section 5.3.
5.3 Fee Credit Limits. Notwithstanding anything to the contrary in this Section 5, the following limits apply with respect to credit and reimbursement ofDIF:
5.3.1 DIF Categories. Developer acknowledges that DIF are imposed in various separate categories to fund specific public facilities. Credit against DTF may only be applied for eligible improvements identified in the specific DIF category.
5.3.2 Maximum Credit/Reimbursement. The amount of the Actual Fee Credits and, if applicable, Reimbursement Amounts shall not exceed the amount of the Verified Construction Costs for each respective DIF category as approved by the Public Works Director.
5.3.3 Soft Costs. The Public Works Director shall, in his/her sole reasonable discretion, determine the amount of reasonable soft costs eligible for reimbursement. Such amounts may include the reasonable soft costs of the City related to the improvements, such as indirect costs of construction, professional engineering and design services, construction management, soils testing, administrative costs, permits, plan check fees, and inspections. For soft costs to be reimbursable to Developer pursuant to this Agreement, City must be able to verify that such soft costs are specifically attributable to the specified Public Improvements for which reimbursement is being made, by reference to separate subcontract~ or by another means approved by the City. The total amount of the soft costs shall not exceed fifteen ercent (15%) of the amount eligible for reimbursement. The Public Works Director may, in his/her reasonable discretion, reduce or disallow reimbursement for any costs he/she finds excessive or unreasonable.
5.3.4 Availability of Unencumbered Impact Fees. In the event that the City has a reimbursement obligation under this Section 5 and at the time such reimbursement is due, there is insufficient funds in the City's account for the relevant Impact Fees, then the City may elect, exercisable by written notice delivered to Developer (a "Deferral Notice"), to defer the payment of such amounts until the time the funds become available in the City'S account for the relevant Impact Fees, which Deferral Notice shall set forth the amount of such Deferral (the "Deferral Amount"), the applicable Section of this Agreement to which such reimbursement obligation relates, and shall set forth the City's 4 continuing obligation to reimburse Developer for the Deferral Amount. Such Deferral Amount shall not accrue interest. Upon written request from Developer from time to time, the City shall execute a statement prepared by Developer acknowledging the then outstanding Deferral Amount as of the date of such request (a "Deferral Amount Statement"). Developer shall have no right to receive the Deferral Amount unless and until all of the following are met: (i) the Public Improvements are completed and accepted in accordance with the requirements of Section 5.4 of this Agreement, (ii) the City has sufficient funds in the City's relevant Impact Fee account to pay the Deferral Amount, and (iii) the City Council appropriates said funds to pay the Deferral Amount in accordance with the priority schedule for City Council approved projects. City Council may appropriate the funds by resolution.
5.4 Conditions Precedent to Final Credit or Reimbursement. The City's obligation to provide fee credits or reimbursements for the Public Improvements pursuant to this Agreement is conditioned upon the prior satisfaction by Developer or written waiver by the City Manager of each of the following Conditions Precedent within the times designated below:
5.4.1 Completion of Construction. Developer shall have completed the construction of the entire Project and the Public Improvements, and notices of completion shall have been recorded in relation to the Project and the Public Improvements, in accordance with California Civil Code Sections 8182 (as applicable), and thirty-five (35) days shall have elapsed since the recordation of such notices of completion. The purposes of this provision are to ensure that the Public Improvements will be independently functional and to maintain consistency with vesting rights, and nothing herein shall be deemed to make any part of the Project other than the Public Improvements a public work.
5.4.2 Submission of Bills/Invoices. Developer shall have made full and complete payment of all undisputed claims for work performed on the Public Improvements, or in the event of a dispute between Developer and the General Contractor or a subcontractor, Developer shall have obtained a commercially reasonable bond reasonably satisfactory to the City to release any applicable mechanics' lien or stop notice, and Developer shall have submitted and the City shall have approved a written request for the reimbursement, including copies of all bills and/or invoices evidencing the hard costs of constructing the ~ublic Improvements actually incurred by Developer.
5.4.3 As-Built Drawings. Developer shall have submitted two (2) sets of final as-built drawings for the Public Improvements to the Public Works Director, as provided in Section 8.
5.4.4 Acceptance of Required Public Improvements by the City. The City, through the City C.puncil, shall have accepted title to the Public Improvements, and Developer shall have provided the maintenance guarantees reasonably required by the City. The City agrees it will not unreasonably withhold or condition its acceptance of title to the Public Improvements.
5.4.5 No Default. Developer shall not be in Default in any of its obligations under the terms of this Agreement, and all representations and warranties of Developer contained herein shall be true and correct in all material respects.
6. City/County Inspection of Public Improvements. Developer shall, at its sole cost and expense, and at all times during construction of the Public Improvements, maintain reasonable and safe facilities and provide safe access for inspection by City of the Public Improvements and areas where construction of the Public Improvements is occurring or will occur. 5 7. Liens. Upon the expiration of the time for the recording of claims ofliens as prescribed by Sections 8412 and 8414 of the Civil Code with respect to the Public Improvements, Developer shall provide to the City such evidence or proof as the City shall reasonably require that all persons, firms, and corporations supplying work, labor, materials, supplies, and equipment to the construction of the Public Improvements have been paid, and that no claims of liens have been recorded by or on behalf of any such person, firm, or corporation. Rather than await the expiration of the said time for the recording of claims of liens, Developer may elect to provide to the City a title insurance policy or other security reasonably acceptable to the City guaranteeing that no such claims of liens will be recorded or become a lien upon any of the Property.
8. Acceptance of Improvements; As-Built or Record Drawings. If the Public Improvements are completed by Developer in accordance with the Plans and Specifications, the City shall be authorized to accept the Public Improvements. The City may, in its reasonable discretion, accept fully completed portions of the Public Improvements prior to such time as all ofthe Public Improvements are complete, which shall not release or modify Developer's obligation to complete the remainder of the Public Improvements. Upon the total or partial acceptance of the Public Improvements by City, Developer shall file with the Recorder's Office of the County of San Bernardino a notice of completion for the accepted Public Improvements in accordance with California Civil Code Section 8182 ("Notice of Completion"), at which time the accepted Public Improvements shall become the sole and exclusive property of City without any payment therefor. Notwithstanding the foregoing, City may not accept any Public Improvements (or the applicable portion thereof) unless and until Developer provides two (2) sets of "as-built" or record drawings or plans to the City for all such Public Improvements (or the applicable portion thereof). The drawings shall be certified and shall reflect the condition of the Public Improvements as constructed, with all changes incorporated therein.
9. Warranty and Guaranty. Developer hereby wan-ants and guarantees all the Public Improvements against any defective work or labor done, or defective materials furnished in the performance of this Agreement, including the maintenance of the Public Improvements, for a period of one (1) year following completion of the work and acceptance by City ("Warranty"). During the Warranty, Developer shall repair/, replace, or reconstruct any defective or otherwise materially " unsatisfactory portion of the Improvements, in accordance with the Plans and Specifications. All repairs, replacements, or reconstruction during the Warranty shall be at the sole cost and expense of Developer.
As to any Public Improvements which have been repaired, replaced, or reconstructed during the Warranty, Developer hereby agree to provide a warranty for a one (1) year period following City acceptance of the repaired, replaced, or reconstructed Public Improvements. Nothing herein shall relieve Developer from anY other liability it may have under federal, state, or local law to repair, replace, or reconstruct any Public Improvement following expiration of the Warranty or any extension thereof.
Developer's warranty obligation under this section shall survive the expiration or termination of this Agreement.
10. Administrative Costs. If Developer fails to construct and install all or any part of the Public Improvements, or if Developer fails to comply with any other obligation contained herein, Developer and its surety shall be jointly and severally liable to City for all administrative expenses, fees, and costs, including reasonable attorneys' fees and costs, incurred in obtaining compliance with this Agreement or in processing any legal action or for any other remedies permitted by law.
11. Default; Notice; Remedies.
6 11.1 Notice. If Developer neglects, refuses, or fails to fulfill or timely complete any obligation, term, or condition of this Agreement, or ifCity determines there is a violation of any federal, state, or local law, ordinance, regulation or code, City may at any time thereafter declare Developer to be in default or violation of this Agreement and make written demand upon Developer or its surety, or both, to immediately remedy the default or violation ("Notice of Default"). Developer shall substantially commence the work required to remedy the default or violation within five (5) business days of the Notice of Default. If the default or violation constitutes an immediate threat to the public health, safety, or welfare, City may provide the Notice of Default verbally, and Developer shall substantially commence the required work within twenty-four (24) hours thereof. Immediately upon City's issuance of the Notice of Default, Developer and its surety shall be liable to City for all costs of construction and installation of the Public Improvements and all other administrative costs or expenses, as provided for in Section 10 of this Agreement.
11.2 Failure to Remedy; City Action. If the work required to remedy the noticed default or violation is not commenced within the time required under Section 11.1 of this Agreement and diligently prosecuted to completion, City may complete all remaining work, arrange for the completion of all remaining work, and/or conduct such remedial activity as in its reasonable discretion it believes is required to remedy the default or violation. All such work or remedial activity shall be at the sole and absolute cost and expense of Developer and its surety, without the necessity of giving any further notice to Developer or surety. In the event City elects to complete or arrange for completion of the remaining work and the Public Improvements, City may require all work by Developer or its surety to cease in order to allow adequate coordination by City.
11.3 Other Remedies. No action by City pursuant to this Section 11 shall prohibit City from exercising any other right or pursuing any other legal or equitable remedy available under this Agreement or any federal, state, or local law. City may exercise its rights and remedies independently or cumulatively, and City may pursue inconsistent remedies. City may institute an action for damages, injunctive relief, or specific performance.
12. Indemnification. geveloper shall defend, indemnify, and hold harmless City, its elected officials, employees, and agents from any and all actual or alleged claims, demands, causes of action, liability, loss, damage, or injury to property or persons, including wrongful death, whether imposed by a court oflaw or by administrative action of any federal, state, or local governmental agency, arising out of or incident to any acts, omissions, negligence or willful misconduct of Developer in connection with the performance of this Agreement ("Claims"). This indemnification includes, without limitation, the payment of all penalties, fines, judgments, awards, decrees, attorneys' fees, and related costs or expenses, and the reimbursement of City, its elected officials, employees, and/or agents for all legal expenses and costs incurred by each of them. This indemnification excludes only such portion of any Claim which is caused solely and exclusively by the negligence or willful misconduct of City, as determined by a court or administrative body of competent jurisdiction. Developer's obligation to indemnify shall survive the expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by City, its elected officials, employees, or agents.
13. Insurance.
13.1 Types; Amounts. Developer shall procure and maintain, and shall require its contractors to procure and maintain, during performance of this Agreement, insurance of the types and in the amounts described below ("Required Insurance"). If any of the Required Insurance contains a 7 general aggregate limit, such insurance shall apply separately to this Agreement or be no less than two times the specified occurrence limit.
13.1.1 General Liabilitv. Occurrence version general liability insurance, or equivalent form, with a combined single limit of not less than Two Million Dollars ($2,000,000) per occurrence for bodily injury, personal injury, and property damage.
13.1.2 Business Automobile Liability. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than One Million Dollars ($1,000,000) per occurrence. Such insurance shall include coverage for the ownership, operation, maintenance, use, loading, or unloading of any auto owned, leased, hired, or borrowed by the insured or for which the insured is responsible.
13.1.3 Workers' Compensation. Workers' compensation insurance with limits as required by the Labor Code of the State of California and employers' liability insurance with limits of not less than One Million Dollars ($1,000,000) per occurrence, at all times during which insured retains employees.
13.1.4 Professional Liability. For any consultant or other professional who will engineer or design the Improvements, liability insurance for errors and omissions with limits not less than Two Million Dollars ($2,000,000) per occurrence, shall be procured and maintained for a period of five (5) years following completion of the Improvements. Such insurance shall be endorsed to include contractual liability.
13.2 Additional Insured; Separation of Insureds. The Required Insurance, except for the professional liability and workers' compensation insurance, shall name City as an additional insured with respect to work performed by or on behalf of Developer or its contractors, including any materials, parts, or equipment furnished in connection therewith. The Required Insurance shall contain standard separation of insureds provisions, and shall contain no special limitations on the scope of its protection to City, its elected officials, officers employees, or agents.
13.3 Primary Insurance; Waiver of Subrogation. The Required Insurance shall be primary with respect to any insurance or self-insurance programs covering City, its elected officials, officers, employees, or agents. The policy required for workers' compensation insurance shall provide that the insurance company waives all right of recovery by way of subrogation against City in connection with any damage or harm covered by such policy.
13.4 Ce11ificates; Verification. Developer and its contractors shall furnish City with original certificates of insurance and endorsements effecting coverage for the Required Insurance. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by City before work pursuant to this Agreement can begin. City reserves the right to require complete, certified copies of all required insurance policies, at any time.
13.5 Term; Cancellation Notice. Developer and its contractors shall maintain the Required Insurance for the term of this Agreement and shall replace any certificate, policy, or endorsement which will expire prior to that date. All policies shall, to the extent available from commercially reasonable insurance providers, be endorsed to provide that the Required Insurance shall 8 not be suspended, voided, reduced, canceled, or allowed to expire except on thirty (30) days' prior written notice to City.
14. Miscellaneous.
14.1 Assignment. Developer may assign by contract all or a portion of its rights and obligations pursuant to this Agreement to a third party purchaser of Developer ("Assignment"), subject to the approval of the City Manager in his/her reasonable discretion. Developer and purchaser/assignee ("Assignee") shall provide to the City Manager such reasonable proof as it may require that Assignee has the ability and financial commitment to undertake the Project and complete the Public Improvements. Developer and Assignee shall provide documentation and proof as may be deemed necessary to satisfy the City Manager. Any assignment pursuant to this section shall not be effective unless approved by the City and Developer and Assignee have executed an assignment agreement. Upon completion of the foregoing, and upon Assignee's provisions of adequate surety bonds as required under Section 12, the City shall release Developer's surety bonds.
14.2 Relationship Between the Parties. The Parties hereby mutually agree that this Agreement shall not operate to create the relationship of partnership, joint venture, or agency between City and Developer. Developer's contractors are exclusively and solely under the control and dominion of Developer. Nothing herein shall be deemed to make Developer or its contractors an agent or contractor of City.
14.3 Authority to Enter Agreement. Each Patty warrants that the individuals who have signed this Agreement have the legal power, right, and authority make this Agreement and bind each respective Patty.
14.4 Notices. Any notice, demand, request, consent, approval, or communication either party desires or is required to give to the other party or any person shall be in writing and either served personally, communicated by fax or electronic mail, or sent by prepaid, first-class mail to the address set forth below. Notice shall be deemed communicated immediately upon personal delivery, fax or email receipt, or seventy-two (72) hours from the time ofmailing ifmailed as provided in this Section:
To City: City of Hesperia
9700 Seventh Avenue
Hesperia, CA 92345
Attn: City Manager
Phone: (760) 947-1018
Email: [email protected]
with a copy to: Aleshire & Wynder, LLP
1 Park Plaza, Suite 1000
Irvine, CA 92614
Attn:' Pam K. Lee, Esq.
Phone: (949) 223-1170
Email: [email protected]
To Developer: NAME
ADDRESS
9 14.5 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate, or convenient to attain the purposes of this Agreement.
14.6 Construction; References; Captions. The Parties agree that the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days, or period for performance shall be deemed calendar days and not work days, unless specified therein. All references to Developer include all personnel, employees, agents, and contractors of Developer, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
14.7 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
14.8 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition/No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual right by custom, estoppel, or otherwise.
14.9 Binding Effect. Each and all of the covenants and conditions shall be binding on and shall inure to the benefit of the Parties, and their successors, heirs, personal representatives, or assigns. This section shall not be construed as an authorization for any Party to assign any right or obligation.
14.1 0 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
14.11 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
14.12 Governing Law; Consent to Jurisdiction and Venue. This Agreement shall be construed in accordance with and governed by the laws of the State of California. Any legal action or proceeding brought to interpret or enforce this Agreement, or which in any way arises out of the Parties' activities undertaken pursuant to this Agreement, shall be filed and prosecuted in the appropriate California State Court in the County of San Bernardino, California. Each Party waives the benefit of any provision of state or federal law providing for a change of venue to any other court or jurisdiction including, without limitation, a change of venue based on the fact that a governmental entity is a party to the action or proceeding, or that a federal right or question is involved or alleged to be involved in the action or proceeding. Without limiting the generality of the foregoing waiver, Developer expressly waives any right to have venue transferred pursuant to California Code of Civil Procedure Section 394. 10 14.13 Time is of the Essence. Time is of the essence in this Agreement, and the Parties agree to execute all documents and proceed with due diligence to complete all covenants and conditions.
14.14 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original and which collectively shall constitute one instrument.
14.15 City Officers and Employees. No officer or employee of the City shall be personally liable to Developer or any successors in interest in the event of any default or breach by the City or for any amount that may become due to Developer or any successor(s) in interest or for breach of any obligation of the terms of this Agreement. No officer or employee of Developer shall be personally liable to the City or any successor(s) in interest in the event of any default or breach by Developer or for any amount that may become due to the City or their successors in interest or for breach of any obligation of the terms of this Agreement.
14.16. Force Majeure. Developer agrees that the time within which it shall be required to perform any act under this Agreement shall not be extended except as follows: (i) the Developer is delayed by the City (including, without limitation, restrictions on priority, initiative or referendum, or moratoria), in which case Developer .shall provide written notice to the City specifically describing the nature and extent of the delay caused by the City and Developer's detailed efforts to avoid such delay, which references this Section and deliver such notice within twenty (20) days of discovering such delay, and Developer's obligations shall be extended for such time as the City deems reasonable as a result of the delay if and only if Developer provides such written notice to the City within such time; or (ii) the Developer is delayed due to war, insurrection, strikes, lock-outs, riots, floods, earthquakes, fires, casualties, natural disasters, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, processing with any govemmentaJ agencies, unusually severe weather, or any other similar causes beyond the control of Developer or without the fault of Developer. An extension of time for any such cause shall be for the period of the enforced delay equal to the number of days during which Developer's performance was delayed and shall commence to run from the time of the commencement of the cause, if written notice by Developer claiming such extension is sent to the City within twenty (20) days of knowledge of the commencement of the cause.
14.17 Entire Agreement. This Agreement contains the entire agreement between City and Developer and supersedes any prior oral or written statements or agreements between City and Developer.
[SIGNATURES OF PARTIES ON NEXT PAGE]
11 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first above written.
CITY:
CITY OF HESPERIA,
a California municipal corporation
By: _
Rachel Molina, City Manager
/
ATTEST:
By:
Melinda Sayre, City Clerk /
APPROVED AS TO FORM:
By:
Pam K. Lee, City Attorney
DEVELOPER:
/
By: -------------
By: _
Name: ---------------
12 EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
EXHIBITB
PLANS AND SPECIFICATIONS
[ATTACHED BEHIND THIS PAGE]
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EXHIBITC
DEVELOPMENT IMPACT FEES
/
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01071.000611 017572.1
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EXHIBITD
ESTIMATED CONSTRUCTION COSTS
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