Attachment F
New Subdivision Improvement
Agreement for Tract Map 17308
RECORDING REQUESTED BY
CITY OF VICTORVILLE
WHEN RECORDED RETURN TO:
CITY OF VICTORVILLE
ENGINEERING DEPT.
14343 CIVIC DR.
VICTORVILLE, CA 92392
APN Nos. 0455-921-06 through 67, 0455-921-68 through 75, 0455-911-04 through 61, 0455-912-01 through 52, 0455-902-01 through 44, 0455-901-04 through 54
SPACE ABOVE FOR RECORDER’S USE
RECORDING OF THIS DOCUMENT IS FEE-EXEMPT
GOVERNMENT CODE SECTIONS 6103, 27383, AND 27388.1(2)(D)
TRACT 17308 MAPS SUBDIVISION IMPROVEMENT AGREEMENT
(Superseding SIA with Lien Agreement as Security)
Master Tract Map No. 17308
and
Constituent Tract Map Nos. 17309, 17310 and 17311
(CASE NOS: ESUB18-00040, ESUB18-00027, ESUB18-00028 and ESUB18-00029)
THIS SUBDIVISION IMPROVEMENT AGREEMENT (“Agreement”) dated _______________________ for reference purposes only, is made and entered into by and between the City of Victorville, a California municipal corporation and charter City, hereinafter referred to as “ City”; WALTON CALIFORNIA, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY (“Walton California”) acting in its own capacity as an owner of the Subdivision, and as manager, operator, or agent, as applicable, for and on behalf of various individual owners of undivided interests in the Subdivision (the “UDI Owners”); and WUSF 4 WEST CREEK, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY (“ WUSF 4”). Walton California, acting in its own capacity and as manager, operator, or agent, as applicable, for and on behalf of the UDI Owners, and WUSF 4 are collectively hereinafter referred to as “Subdivider”. City and Subdivider are sometimes hereinafter referred to individually as a “Party” and collectively referred to as the “Parties.”
RECITALS
WHEREAS, this Agreement is executed pursuant to the pr ovisions of the California Subdivision Map Act, Government Code section 66410 et seq. (the “Map Act”); the ordinances and regulations of the City relating to the filing, approval, and recordatio n of subdivision maps, including without limitation, Title 17 and the applicable provisions of Title 16 of the Victorville Municipal Code (the “VMC”); and the West Creek Specific
Plan (collectively, hereinafter the “ Subdivision Laws ”). Subdivider acknowledges familiarity with said Subdivision Laws and hereby agrees to comply therewith; and
WHEREAS, Subdivider is currently the record fee owner of that certain real property situated in the West Creek Specific Plan area of the City of Victorville, C ounty of San Bernardino, State of California, as more particularly described in Exhibit A attached hereto (hereinafter called the “Subdivision”); and
WHEREAS, the Subdivision was created by Subdivider’s recording of the following final subdivision maps (collectively the “Tract 17308 Maps”) in the Office of the San Bernardino County Recorder (the “County Recorder’s Office”) following the approval thereof by the Victorville City Council as follows:
Master Tract Map No. 17308 –Document No. 2020-0372961 recorded on October 1, 2020; Tract Map No. 17309 –Document No. 2020-0509176 recorded on December 15, 2020; Tract Map No. 17310 –Document No. 2020-0509252 recorded on December 15, 2020; and Tract Map No. 17311 –Document No. 2020-0516091 recorded on December 18, 2020.
The recorded Tract 17308 Maps are attached hereto as Exhibit B; and
WHEREAS, on or about April 8, 2020, City and Subdivider entered into a subdivision improvement agreement (the “Original SIA”) to obtain the City’s final approval for recordation of the Tract 17308 Maps and provide for the completion/installation of the pub lic improvements required by the Subdivision Laws and conditions of approval imposed on said maps by the City of Victorville Planning Commission (the “Commission”) by adopted Resolution Nos. P-17-045, P-17- 046, P-17-047, and P-17-048 (collectively, the “Conditions of Approval ”). The Original SIA was recorded in the County Recorder’s Office as Document No. 2021-0174652 on April 15, 2021; and
WHEREAS, the Original SIA also provided for the completion/installation of public improvements needed to gain City approval for the recordation of final maps for Tract Nos. 17111, 17112, 17113, 17114, 17115, 17116, 17986-1 and 17986-2 (which further subdivided most but not all of the real property encompassed by previously recorded master Tract Map No. 17110, hereinafter collectively the “Tract 17110 Maps”). The Tract 17110 Maps (as conditioned by the Commission), together with the Tract 17308 Maps, provided for the development of a master-planned residential community consisting of approximately 827 single family homes and related infrastructure and amenities on the real property covered by said maps (the “Project”); and
WHEREAS, because the Original SIA contemplated that construction/installation of the public improvements required for the Project would not occu r for at least two (2) years, as permitted by Section 66499(a)(4) of the Map Act and VMC Section 17.64.065, the Original SIA was secured by a lien agreement (instead of bonds or cash securities) en cumbering all the real property associated with the Project with a lien in an amount equal to the Vi ctorville City Engineer’s estimated cost of constructing/installing the required public improvements (approximately Fifty-Five Million Dollars). Said lien agreement was also entered into by the City and Or iginal Subdivider on or about April 8, 2020, and was recorded in the County Recorder’s office as Document No. 2021-0169445 on April 14, 2021 (the “Original Lien Agreement”); and
WHEREAS, VMC Section 17.64.065 prohibits the use of lien agreements as security for SIAs involving individual final subdivision maps conditioned to require installation or construction of required improvements in conjunction with an underlying preceding map (generally a master map) for which required improvements still remain outstanding unless certain conditions en suing that the public impr ovements required by the preceding underlying map can be completed prior to or simultaneously with the development/construction of each of the tracts created by the associated individual final maps; and
WHEREAS, final master Tract Map No. 17308 was deemed by the Original SIA and the Original Lien Agreement to be an underlying preceding map (because it involved individual final Tract Map Nos. 17309, 17310 and 17311, which maps further subdivided the real property encompassed by master Tract Map No. 17308 and were conditioned to require installa tion or construction of required improvements in conjunction with said master tract map for which construction/installation of certain required public improvements remained outstanding); and
WHEREAS, to facilitate the building/development of the Project on the parcels created by all of the above- referenced tract maps, and to ensure the orderly, timely, and financially feasible construction/installation of the associated required public improvements, Original Subdivider recently sold/transferred ownership of certain portions of the real property subject to the Original SIA and Original Lien Agreement to D.R. Horton Los Angeles Holding Company, Inc., a California corporation (“D.R. Horton”) while retaining ownership (for the time being) of certain remaining portions of said real property, including the real property which comprises the Subdivision; and
WHEREAS, the changes in ownership and phased acquisition and development plans of Subdivider for the Project, as well as the provisions of VMC Section 17.64.065 which permit lien agreements to be used as security for SIAs involving master tract maps which are underlying preceding tract maps for which required improvements remain outstanding (such as final master Tract Map No. 17308) only if the constituent tracts
are covered by the same SIA, now require the Original SIA and Original Lien Agreement to be superseded and replaced by four (4) new agreements as detailed in the following recital; and
WHEREAS; said four new agreements consist of: (1 ) this Agreement, which provides for the installation/construction of the public improvement s required by the above-referenced Conditions of Approval for the Tract 17308 Maps (hereinafter the “ Required Improvements”) and the use of a lien agreement as security therefor (the “Tract 17308 Maps Lien Agreement”); (2) the Tract 17308 Maps Lien Agreement attached hereto as Exhibit C securing Subdivider’s obligation to complete the Required Improvements for the Subdivision; (3) a separate SIA for the remaining real property and entitlements for the Project which are associated with master Tr act Map No. 17110 and its constituent maps (the “ Tract 17110 SIA”) secured by corporate surety bonds for the publ ic improvements required by the Subdivision Laws and the conditions of approval for master Tract Map No. 17110 and final Tract Map Nos. 17111. 17112, 17114, 17986-1 and 17986-2 (collectively the “Phase 1 Improvements”); and (4) a lien agreement (the “Phase 2 Lien Agreement ”) which secures Subdivider’s obligat ion to construct/install the public improvements under the Tract 17110 SIA as required by the Subdivision Laws and the conditions of approval for final Tract Map Nos. 17113, 17115, and 17116 (collectively the “ Phase 2 Improvements”).
The Tract 17110 SIA and Phase 2 Lien Agreement will be presented for approval by the Victorville City Council contemporaneously with this Agreement and the Tract 17308 Maps Lien Agreement; and
WHEREAS, provided that this Agreement and the Tract 17308 Maps Lien Agreement attached as Exhibit C are approved by the City Council and fully executed and recorded by the City in the County Recorder’s Office, and after all of the actions detailed in Sect ion 29 of this Agreement have been completed, the Original SIA will be terminated and superseded and the Ci ty will release the lien created by the recording of the Original Lien Agreement; and
WHEREAS, the City Council of the City has found and determined that it would not be in the public interest to require the installation of the Required Improvements sooner than two (2) years after the recordation of the Tract 17308 Maps; and
WHEREAS, the Required Improvements shall be constructed and installed in accordance with the plans and specifications currently on file, except as otherwise specified herein, in the office of the Victorville City Engineer (“City Engineer”).
NOW THEREFORE , for and in consideration of the promises contained herein and to ensure satisfactory construction and installation by Subdivider of the Required Improvements, the current costs of which have been estimated and included as part of t he Tract 17308 Maps Lien Agreement entered into between Subdivider (owner) and City and attached hereto as Exhibit C, the Parties hereto hereby agree as follows:
1. Performance of Work; Required Improvements
Subdivider agrees to construct and install, or cause to be constructed and installed, in a good and workmanlike manner, and furnish all required materials, all under the direction and to the satisfaction of the City Engineer, all of the work necessary to complete the Required Improvements pursuant to the Subdivision Laws and as specified by the Commission in the Conditions of Approval for this Subdivision (including without limitation any required installation or relocation of utilities) in accordance with the plans and specifications on file as herein specified, or with any changes required or ordered by said City Engineer, which in his opinion are necessar y or required to complete the work. All such construction, installation and other related work shall be performed at Subdivider's sole expense.
2. Work: Places and Grades to be Approved by Engineer (a) All of said work is to be done at the places, of the materials, in the manner, and at the grades, all as shown upon the plans and specifications heretofore approved by City Engineer and which are now on file in his office, except as otherwise specified in this Agreement (hereinafter collectively the “Approved Plans”). Any actual work of surveying shall be performed by the Subdivider’s engineer.
(b) The “ Park Improvement Plans”, the “Landscaping Improvement Plans”, and the “Drainage Facilities Improvement Plans” as those terms are defined in the Tract 17308 Lien Agreement attached hereto as Exhibit C, shall be submitted to and approved by the City, and placed on file with the City Engineer no later than six (6) months after said Tract 17308 Lien Agreement has been replaced with acceptable securities as set forth therein, and prior to the commencement of any work under this Agreement.
3. Specifications
(a) The Required Improvements and work embraced herein shall be done in accordance with the provisions of the Greenbook Standard Specificatio ns for Public Works Construction, as written and promulgated by Public Works Standards, In c., 2021 edition, insofar as they may apply (hereinafter the “Greenbook Specifications”), and the City of Victorville Standard Specifications for Public Improvements (hereinafter the “ City Standard Specifications ”). Whenever in the Greenbook Specifications the following terms are used, they shall be understood to mean the following:
(1) Agency: City of Victorville, California.
(2) Board: Victorville City Council
(3) Engineer: Whenever the term is not qualified, shall mean the City Engineer of the City of Victorville, California acting either directly or through his properly authorized agents, each agent acting only within the scope of the authority delegated to him.
(4) Laboratory: The laboratory to be approved by th e City of Victorville to test materials and work involved in the construction provided for under this Agreement.
(b) In case of conflict between the Greenbook Spec ifications and the City Standard Specifications, the City Standard Specifications shall prevail.
(c) In case of conflict between the Greenbook Sp ecifications, the City Standard Specifications, and the Approved Plans and this Agreement, the A pproved Plans and this Agreement shall take precedence over and be used in lieu of such conflicting portions of the Greenbook Specifications or City Standard Specifications.
4. Work; Time for Commencement and Completion of Required Improvements (a) The work of installing the Requ ired Improvements shall commence no later than the latter of the following dates: (i) six (6) years (ten (10) years in the event of an extension under VMC Section 17.64.065(h)) after the date the last of the four Tract 17308 Maps was recorded in the San Bernardino County Recorder’s Office, and (ii) the date specified for commencement of the Required Improvements in any superseding SIA or amendment to this Agreement executed and delivered in conjunction with t he replacement security contemplated by Section I.F of the Tract 17308 Lien Agreement attached hereto as Exhibit C. The date the work of installing the Required Improvements is commenced is hereinafter referred to as the “Commencement Date.”
(b) The City hereby fixes the time for the completion of said Required Improvements work to be not later than the date that is two (2) years a fter the Commencement Date (hereinafter the “Completion Date”), unless an extension is granted as set forth in Section 5, below.
5. Time of Essence - Extension
Time is of the essence in this Agreement; provided, that in the event good cause is shown therefor, the City Manager or the City Council may extend the Completion Date. Any such extension may be granted without notice to the Subdivider’s surety, and extensions so granted shall not relieve the surety’s liability on the bond to secure the faithful performance of th is Agreement. The City Manager or City Council shall be the sole and final judge as to whether or not good cause has been shown to entitle Subdivider
to an extension. All references to the City Ma nager in this Agreement shall be deemed to include his/her duly authorized designees.
6. Repairs and Replacements
Subdivider shall replace or repair, or have replaced or repaired, as the case may be, all pipes and monuments shown on the Tract 17308 Maps which have been destroyed or damaged. Subdivider shall also replace or repair, or have replaced or repaired, all public improvements, public utility facilities, and surveying or subdivision monuments which are destroyed or damaged in the performance of any work under this Agreement. Subdivider shall bear the entire cost of replacement or repairs of any and all public or private utility property damaged or destroyed in the performance of any work done under this Agreement, whether such property is owned by the United States or any agency thereof, or the State of California, or any agency or political subdivision thereof, or by the City, or any public or private utility corporation, or by any combination of such owne rs. Any such repair or replacement shall be to the satisfaction, and subject to the approval, of the Ci ty Engineer. In lieu of making the aforementioned replacements and repairs to any property damaged or destroyed by the work, Subdivider may pay to the owner(s) of said property, the entire cost of such replacement or repair.
7. Permits; Compliance with Laws
Subdivider shall, at Subdivider’s expense, obtain all necessary permits and licenses for the construction of such Required Improvements, give all necessary notices and pay all fees and taxes required by law.
Subdivider agrees to procure, at his expense, an y necessary permits required for the opening of any state or county roads or easements outside the juri sdiction of City. Subdivider shall comply with all applicable local, state, and federal laws, whether or not said laws are expressly stated in this Agreement.
8. Superintendence by Subdivider
Subdivider shall give personal superintendence to the work on said Required Improvements, or have a competent foreman or superintendent, satisfactory to the City Engineer, on the work at all times during progress, with authority to act for Subdivider.
9. Inspection by City
Subdivider shall at all times maintain proper facilities, and provide safe access for inspection by City, to all parts of the work, and to the shops wherein the work is in preparation.
10. Contract Security
(a) The City Council has made a finding that it would not be in the public interest to require installation of the Required Improvements sooner than two (2) years after the recordation of the Tract 17308 Maps. Pursuant to the Subdivision Laws, the Ci ty is authorized to accept a lien agreement to secure Subdivider’s performance under this Agreement, subject to the terms and conditions of Chapter 17.64 and in particular Section 17.64.065 of the VMC. Therefore, concurrently with the execution hereof, Subdivider has secured the performance of its obligations hereunder by entering into the Tract 17308 Maps Lien Agreement attached hereto as Exhibit C.
(b) In accordance with the provisions of said Tract 17308 Maps Lien Agreement, including but not limited to Section I.E and I.F thereof, Subdivider shall, prior to obtaining any construction or other permits required hereunder, and prior to commencing any work on the Required Improvements, substitute other forms of security as specified in VMC Sections 17.64.060(a)(1)-(3) and satisfactory to the City in place of said Lien Agreement. The substitute securities shall be in the amounts and for the purposes set forth below, except that the amounts shall be calculated using the estimated cost of the Required Improvements at the time of said substitution, as ascertained by the City Engineer:
(1) Performance security in an amount equal to at least one hundred percent (100%) of the approved Engineer’s estimate as security for the faithful performance of this Agreement.
(2) Labor and materials security in an amount equal to at least fifty percent (50%) of said estimate as security for the payment of all persons performing labor and furnishing materials in the construction of this tract, including any claims to which reference is made in Title 3 (commencing with Section 9000) of Part 6 of Division 4 of the California Civil Code.
(3) Monument security in the amount of one hu ndred percent (100%) of the total estimated cost of the installation of survey monument s, as determined by the City Engineer, to guarantee and secure the placement of such monuments.
(c) The substitute securities specified above shall be in the form of cash deposits, an irrevocable letter of credit which meets the requirements of VMC Section 17.64.060(a)(3), or bonds provided by a corporate surety admitted by the Californi a Department of Insurance to transact surety insurance business in California (with a Best’s Insurance Guide rating of no less than A-) and written on such forms as may be provided by St ate statute for such purposes and approved by the City, or in such other form as may be provided for by law and satisfactory to City. Security instruments shall be worded and dated to become effective immediately upon failure of the Subdivider to complete the Required Improvem ents specified in this Agreement by the Completion Date, including any extension(s) thereof which have been granted by the City Council or the City Manager as set forth in Section 5 hereof. In the event corporate surety bonds are used as substitute securities, at the time of substitution, the Parties will amend this Agreement to include the name and address of Surety for purpose s of providing notice as set forth in Section 20 hereof.
(d) Release of securities upon completion of the Required Improvements (less a portion thereof to be retained for a one-year period to guaranty the performance of any necessary repairs as set forth in Section 14 hereof) shall be in accordance with the provisions of Section 19 of this Agreement.
11. Defense, Indemnification, and Hold-Harmless Agreement (a) To the fullest extent permitted by law, Subdi vider agrees to and shall defend, indemnify, and hold harmless the City, its officers, employees, agents, and its elected or appointed officials or boards from and against any and all claims, losses, damages, including property damage, personal injury, including death, costs, including attorney fees, and liability of any kind or nature directly or indirectly arising out of or in any way connect ed with performance under this Agreement and/or the construction of the Required Improvement s by the Subdivider, its contractors or subcontractors, or of any person directly or i ndirectly employed by, or acting as agent for the Subdivider, its contractors or subcontractors, sa ve and except those matters arising from the active negligence, sole negligen ce, or willful misconduct of t he City, its officers, employees, agents, and its elected or appointed officials or boards.
(b) This defense, indemnification, and hold harmless provision shall extend to claims, losses, damage, injury, costs, including attorney fees, and liability for injuries occurring after completion of the construction of the Required Improvements as well as during construction, and shall apply regardless of whether or not the City has prepared, supplied or approved the plans and/or specifications for the Required Improvements or has inspected or accepted the same.
(c) Acceptance of insurance required under this Agr eement shall not relieve Subdivider from liability under this defense, indemnification, and hold ha rmless provision. Subdivider’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.
(d) The Parties intend that this Section 11 sha ll be broadly construed to effectuate its purpose.
12. Subdivider’s Insurance
(a) Subdivider and any of contractors or subcont ractors performing work hereunder on Subdivider’s behalf shall procure and maintain at its own expe nse, during the term of this Agreement (and during any extensions thereof) the following minimum policies of insurance and comply with all other provisions of this Section 12:
(1) Commercial General Liability Insurance (“CGL”): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury, and personal & advertising injury with limits no less than Two Million Dollars ( $2,000,000) per occurrence. If a general aggregate limit applies, either the general aggregate limit sha ll apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
(2) Commercial Vehicle (Autom obile) Liability Insurance : ISO Form Number CA 00 01 covering any auto (Code 1), with a combined single limit of not less than One Million Dollars ($1,000,000) per accident for bodily injury and property damage.
(3) Workers’ Compensation Insurance: As required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than One Million Dollars ($1,000,000) per accident for bodily injury or disease.
(b) Additional Insurance Requirements. With respect to the policies of insurance set forth above, compliance with the following is also required:
(1) Additional Named Insured. Notwithstanding any inconsistent statement in any required insurance policies or any subsequent endorsements attached thereto, the CGL policy, shall be endorsed to name the City and its officers, officials, employees, servants, volunteers, agents and independent contractors, including, wi thout limitation, the City Attorney, as Additional Insureds with respect to liability aris ing out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Subdivider’s insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used).
(2) Waiver of Subrogation Rights . Subdivider shall require the carriers of all required insurance policies to waive all rights of s ubrogation against the City and its officers, officials, employees, servants, volunteer s, agents, and indepe ndent contractors and subcontractors which any insurer of said Subdivider may acquire against the City by virtue of the payment of any loss under such in surance. Subdivider agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
(3) Proof of Insurance Coverage; Required Additional Endorsements . Subdivider shall secure from a good and responsible company or companies authorized to transact insurance business in the State of California , the policies of insurance required by this Agreement and furnish to the City Clerk cert ificates of insurance evidencing the required coverage, and the following policy endorsements, at least ten (10) business days prior to commencement of any work required under this Agreement.
(A) Each insurance policy required by this Agreement shall provide that coverage shall not be canceled, except with written notice to the City.
(B) For any claims related to this Agreement, the Subdivider’s insurance coverage shall be primary and non-contributory and at least as broad as ISO CG 20 01 04
13 as respects the City, it’s officers, of ficials, employees, servants, volunteers, agents and independent contractors and subcontractors. Any insurance or self- insurance maintained by the City, its officers, officials, employees, servants, volunteers, agents and indepe ndent contractors and su bcontractors shall be excess on the Subdivider’s insurance and shall not contribute with it. This requirement shall also apply to any Excess or Umbrella liability policies.
(4) The Subdivider may use Umbrella or Excess Policies to provide the liability limits as required in this Agreement. This form of insurance will be acceptable provided that all of the Primary and Umbrella or Excess Policies s hall provide all of the insurance coverages herein required, including, but not limited to, primary and non-contributory, additional insured, Self-Insured Retentions (SIRs) , indemnity, and defense requirements. The Umbrella or Excess policies shall be provided on a true “following form” or broader coverage basis, with coverage at least as broad as provided on the underlying Commercial General Liability insurance. No insurance policies maintained by the Additional Insureds, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until the Subdivider’s primary and excess liability policies are exhausted.
(c) All insurance requirements contained in this Agreement are applicable to any contract for completion of the work entered into by Subdivi der and/or any of Subdi vider’s contractors, subcontractors, agents, and/or employees. Subdivider shall not commence any work under this Agreement until Subdivider has obtained all insura nce required under this Section, nor shall Subdivider allow any contractor or subcontractor to commence work on any contract or subcontract until all insurance required to be obtained by Subdivider has been obtained by such contractor or subcontractor and approved by the City. Subdivider and its contractors or subcontractors shall provide the City with not less than thirty (30) days’ notice prior to the cancellation, reduction or termination of any in surance coverages required by this section and shall provide replacement policies acceptable to the City prior to any such cancellation, reduction, or termination of coverage.
(d) All requirements set forth in this Section shall appear either in the body of the insurance policies or as endorsements and shall specifically bind the insurance carrier.
13. Title to Required Improvements; Risk of Loss
Title to, and ownership of all Required Improvement s constructed hereunder by Subdivider shall vest absolutely in City upon completion and acceptance of such Required Improvements by City. Until such time as the Required Improvements are accepted by City, Subdivider shall be responsible for and bear the risk of loss to any of the Required Improvements constructed or installed and shall be responsible for the care, maintenance of, and any damage to such Required Improvements. Neither City, nor any of its agents, officers, or employees shall be liable or responsible for any accident, loss, or damage, regardless of cause, happening or occurring to the Required Improvements prior to the completion by Subdivider and acceptance of same by City.
14. Repair or Reconstruction of Defective Work
If, within a period of one year after final acceptance of the Required Improvements and work performed under this Agreement, any structure or part of any st ructure furnished and/or installed or constructed, or caused to be installed or constructed by Subdivider, or any of the work done under this Agreement, fails to fulfill any of the requirements of this Ag reement or the specifications referred to herein, Subdivider shall without delay and without any cost to City, repair or replace or reconstruct any defective or otherwise unsatisfactory part or parts of the work or structure. Should Subdivider fail to act promptly or in accordance with this requirement, or should the exigencies of the case require repairs or replacements to be made before Subdivider can be notified, City may, at its option, make the necessary repairs or replacements or perform the necessary work and Subdivider shall pay to City the actual cost of such repairs plus fifteen percent (15%).
15. Subdivider not Agent of City
Neither Subdivider nor any of Subdivider’s agents or contractors are or shall be considered to be agents of City in connection with the performance of Subdivider’s obligations under this Agreement.
16. Cost of Engineering and Inspection
Subdivider shall pay City in accordance with Titl e 17 of the VMC for all engineering, inspection, and other services furnished by City in connection with the Subdivision.
17. Events of Default; Notice and Cure Opportunity
(a) Events of Default Not Requiring Previous Notice or Cure Opportunity. Each of the following shall constitute an Event of Default by the Subdivider for which the City may immediately exercise its remedies under this Agreement without any requirement of the City having given notice previously or of providing any cure opportunity:
(1) Subdivider’s failure to timely complete construction of the Required Improvements in accordance with this Agreement;
(2) Subdivider’s assignment or transfer, or attempted assignment or transfer, of this Agreement or any right or interest therein without the City’s prior written consent;
(3) Subdivider’s failure to obtain and maintain in full force and effect any contract security or required insurance in accordance with this Agreement;
(4) The commencement of a foreclosure action or the recording of a notice of default against the Subdivision or any portion thereof, or any conveyance in lieu or in avoidance of foreclosure;
(5) Subdivider’s insolvency, as determi ned under the U.S. Bankruptcy Code;
(6) Subdivider’s filing, or Subdivider’s consent to the filing against it, of any petition in bankruptcy; or
(7) The issuance of an order of a court of competent jurisdiction appointing a receiver, liquidator, custodian or trustee of the Subdivide r, or the filing of any petition against the Subdivider, which order has not been dischar ged or which filing has not been dismissed within sixty (60) days after such issuance or filing.
(b) Events of Default Requiring Previous Notice or Cure Opportunity . Subdivider’s breach of any obligation under this Agreement that is not lis ted in Section 17(a) above shall constitute an Event of Default if not cured in accordance with Section 17(c) below.
(c) Notice and Cure Opportunity. For the breach of any obligation under this Agreement that is not listed in Section 17(a), Subdivider shall have the following notice and cure opportunity before the breach constitutes an Event of Default and the City may exercise its remedies under this Agreement. The City shall mail written notice of the breach to the Subdivider and the Surety. The Subdivider shall have thirty (30) calendar days following the City’s notice in which to complete a cure of the breach and carry out all actions nece ssary to prevent its reoccurrence. If Subdivider has not cured the breach by the thirty-first (3 1st) consecutive calendar day following the City’s notice, the uncured breach shall constitute an Event of Default and the Subdivider shall have no further right to notice or cure before the City is entitled to exercise its rights under Section 18.
18. City Rights Upon Event of Default
(a) In addition to all other remedies available at law or in equity for breach of Subdivider’s obligations under this Agreement, the City shall have the following rights upon the occurrence of an Event of Default:
(1) Draw upon and utilize the contract security to mitigate the City’s damages and complete the Required Improvements regardless of w hether the actual cost of completing the Required Improvements exceeds the Engineer’s Estimate;
(2) Take over the work and complete the Requi red Improvements by contract or by any other method the City deems appropriate. In such ev ent, the City, without liability for so doing, may complete the Required Improvements using any of Subdivider’s materials, appliances, plans and other property that are at the work site and that are necessary to complete the Required Improvements; and
(3) File a notice of violation against all lots in the Subdivision, resc ind the Subdivision, or otherwise revert the Subdivision to acreage.
(b) The Subdivider hereby grants the City all rights or authorizations necessary in order for the City to exercise the foregoing remedies without the need for the City to obtain any additional rights or authorizations at the time it exercises its remedies.
(c) The Subdivider shall promptly reimburse the City upon demand for all costs and expenses incurred by the City in constructing the Requi red Improvements, enforcing this Agreement and otherwise seeking to remedy an Event of Default. Such costs and expenses may include, without limitation: City staff time; fees and charge s of architects, engineers, attorneys, and other professionals; and court costs.
(d) The City’s choice of remedy for an Event of De fault shall be in the City’s sole discretion. The City’s failure to declare Subdivider in default under this Agreement or take action with respect to an Event of Default shall not be construed as the City’s waiver of any breach of the Agreement.
19. Completion; Release of Securities; Warranty
(a) Subject to the provisions of subdivision (b) of this Section, upon completion of all the Required Improvements, and upon the City Council authorizing a written Notice of Completion and acceptance of said work, the City will release all hold and any claims to eighty percent (80%) of the amount of securities posted for faithful per formance as specified in Section 10, above. The remaining twenty percent (20%) shall be held by the Ci ty for a period of one (1) year after the date of the Notice of Completion as a guarantee (warranty) bond to secure the performance of Section 14 of this Agreement and shall thereafter be released.
(b) The provisions of subdivision (a) of this Secti on notwithstanding, if the Subdivision is part of any City maintenance assessment district, the faithf ul performance security shall not be released, and no Required Improvements sha ll be accepted by the City unless and until Subdivider has paid to City any fees required to operate and maintain the Required Improvements and until such time as the City has received the first maintenance assessment disbursement from the County.
(c) The amount specified in Section 10(b) above for labor and materials security shall be reduced or released pursuant to the provisions of Section 66499.7(h) of the Map Act.
20. Notices
All notices required by or provided for under this Agreement shall be in writing and delivered in person or sent by certified or register ed mail, postage prepaid and addressed as provided in this Section.
Notice shall be effective on the date it is delivered in person, or, if mailed, on the date of deposit in the United States Mail. Notices shall be addressed as follows:
If to City: City of Victorville
Attention: City Engineer
P.O. Box 5001
14343 Civic Drive
Victorville, CA 92393-5001
With a copy to: Green de Bortnowsky, LLP
30077 Agoura Court, Suite 210
Agoura Hills, CA 91301-2713
Attn: Andre de Bortnowsky, City Attorney
If to Subdivider: Walton California, LLC
8800 N. Gainey Center Dr., Suite 345
Scottsdale, AZ 85258
Attn: Legal Department
a n d
WUSF 4 West Creek, LLC
8800 N. Gainey Center Dr., Suite 345
Scottsdale, AZ 85258
Attn: Legal Department
If to surety: N/A
Any Party or the surety may change such address by providing notice in writing to the other Party and thereafter notices shall be addressed and transmitted to such new address.
21. Recordation
This Agreement shall be recorded in the San Bernar dino County Recorder's Office concurrently with the Lien Agreement for the Subdivision.
22. Sale or Disposition of Subdivision; Assignment.
(a) The Subdivider’s obligations under this Agreement are personal obligations of the Subdivider and shall remain so notwithstanding the Subdivider’s sa le or transfer of all or any part of the Subdivision. The foregoing notwithstanding, if and when ownership of all the real property and entitlements associated with the Subdivision have been transferred to D.R. Horton and confirmed by the City, the obligations her eunder will become the personal obligations of D.R. Horton, and the Parties shall work in good faith to amend (or replace) this Agreement accordingly.
(b) Subdivider shall not assign this Agreement to other than D.R. Horton without the City’s prior written consent. The City shall consider a request for an assignment or novation on a case-by- case basis where unusual circumstances render the Subdivider’s performance of the Agreement impossible or impracticable. The sale or transfer of all or any part of the Subdivision shall not, standing alone, constitute good cause for assignment of this Agreement. If the City approves an assignment or novation of this Agreement, the assignee shall assume the performance of and observe all obligations, representations, and warranties of the Subdivider under the Agreement.
The City’s approval of any assignment or no vation shall not operate to release the Subdivider from any of its obligations under this Agreement for work previously performed by the Subdivider unless such approval specifically provides otherwise.
(c) The obligations of the Subdivider under this Agreement shall be the joint and several obligations of each and all of the entities comprising Subdi vider (but not the individual UDI Owners) unless and until such time as ownership of all the real property and entitlements associated with the Subdivision have been transferred to D.R. Ho rton and confirmed by the City. Upon said
confirmation, the City shall provide any requ ired releases to Walton California and WUSF 4 provided this Agreement has been appropriately amended (or replaced) to ensure that D.R. Horton will complete all the Required Improvements for the Subdivision as required by the Conditions of Approval, this Agreement, and any amendments thereto.
23. Severability; Entire Agreement
The provisions of this Agreement ar e severable. If any portion of this Agreement is held invalid by a court of competent jurisdiction, the remainder of the Agreement shall remain in full force and effect unless amended or modified in writing by the mutual consent of the Parties. This Agreement, together with all exhibits, the Tract 17308 Maps Lien Agreement, the Conditions of Approval, and Tract 17308 Maps expressly referred to herein, constitutes the entire agreement of the Parties and supersedes any prior written or oral agreements between them with respect to the subject matter hereof.
24. Authority of Executing Parties
The persons executing this Agreement warrant and represent that they are duly authorized to execute this Agreement on behalf of and bind the Party each purports to represent.
25. Incorporation of Recitals and Exhibits
The Recitals to this Agreement, and any definitions se t forth therein, are hereby incorporated into the terms of this Agreement by this reference. The following exhibits are attached to this Agreement and incorporated into this Agreement by this reference:
Exhibit A – Legal Description of Subdivision
Exhibit B – Recorded Tract Map Nos. 17308 (master map), 17309, 17310 and 17311 Exhibit C – Tract 17308 Maps Lien Agreement
26. Headings.
The captions and Section headings used in this Agreement are inserted for convenience of reference only and are not intended to define, limit, or affect the construction or interpretation of any term or provision hereof.
27. Modification, Waiver, and Amendment
No breach of this Agreement or of any provisi on herein may be waived except by an express written waiver executed by the Party waiving such breach. Waiver of any one breach shall not be deemed a waiver of any other breach or provision of this Agreement. This Agreement may be amended, altered, modified, or otherwise changed only by a writing duly executed by the Parties hereto or their authorized representatives. No modification, waiver, amendmen t, or discharge of this Agreement shall be valid unless the same is in writing and signed by all Parties.
28. Governing Law
This Agreement shall be governed, interpreted, construed, and enforced in accordance with the laws of the State of California. The Parties agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated only in the state courts located in the County of San Bernardino, State of California, or federal courts located in the Central District of California.
29. Termination of Original SIA and Release of Lien
Following: (1) City Council approval and full executi on by the Parties of this Agreement and the Tract 17308 Maps Lien Agreement attached hereto as Exhibit C; (2) the posting of bonds in favor of the City to secure the Tract 17110 SIA Phase 1 Improvements ; (3) City Council approval and full execution of the Tract 17110 SIA and Phase 2 Lien Agreement; and (4) recordation by the City of all four (4) of the aforementioned agreements in the County Recorder’s Office, the Original SIA will be terminated and superseded by the four (4) aforementioned agreements and the City will release the lien created by the recording of the Original Lien Agreement.
[END OF THIS PAGE - SIGNATURES FOLLOW]
Page '13 of 16
IN WITNESS WHEREOF, the Parties hereto have executed this Subdivision Improvement Agreement.
SUBDMDER: CITY:
WALTON CALIFORNIA, LLC, a California limited CITY OF VICTORVILLE liability company, on behalf of itself and on behalf of the UDI Owners in its capacity as manager, operator or agent, as applicable
Group, Inc., a Nevada By:
Elizabeth Becerra, Mayor
Date:
(Notarization of Mayor's Signature is required
and shall be attached)
slzqfQ-z4
ATTEST:
Date
BY:
WUSF 4 WEST CREEK, LLC, a California limited
liability company
By: Walton u.s. Land Fund 4, LP, a Delaware
limited partnership
Its: Manager
By: WUSF 4 GP, LLC, a Delaware limited
liability company
Its: General Partner
By: Walton Land Management (USA), Inc., a
Delaware corporation
Its: Manager
Signa
Jennfier Thompson, City Clerk
APPROVED AS TO FORM:
Andre de Bortnowsky, City Attorney
VICTORVILLE RISK MANAGEMENT
Sandra Bostick, Risk Manager
Date
(Proper Notarization of Subdividers'
Signatures is required and must be
attached)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to whicli tliis certificate is attached and not the truthfulness, accuracy, or validity of that document.
STATEOF Ag,ik
COUNTY OF SmucofA
On %l2-1 )'uhtZ='l , before me, 431HCYdL M$&'ZA , Notary Public, personallyappeared krJlu'l '/6#A!1 whoprovedtomeonthebasisof 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 instniment.
IcertifyunderpenaltyofperjuryunderthelawsoftheStateof %ns4 is tnie and correct.
that the foregoing paragraph
WITNESS my hand and official seal.
Signature (Seal)
HECTOR MEZA
Notary Public - Stale of Atizona
!aV';
%9 Commission # 668738" l' ; ')n')Q
Expires
11025051 61lilAMERICAS
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to whicli tliis certificate is attached and not tlie truthfulness, accuracy, or validity of that document.
STATE OF kiaA
CO{JNTY OF Mkh € -
On ,beforeme, Mb' ,NotaryPublic,
personally appeared 4N(%NY YO@fiA 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 instniment.
IcertifyunderpenaltyofperjuryunderthelawsoftheStateof %gos4 is true and correct.
that the foregoing paragraph
WITNESS my hand and official seal.
Signahire (Seal)
HECTOR MEZA
1l0250516Tl1lAMERICAS
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
Tract Map No. 17308
In the City of Victorville, County of San Bernardino, State of California. Being a subdivision of a Portion of Lot 1 of Tract Map No. 16065, Recorded in Map Book 282 pages 21 through 24 inclusive, Records of Said County, within the West ½ of the Northeast ¼ of Section 11, Township 5 North, Range 5 West, S.B.M.
Tract Map No. 17309
In the City of Victorville, County of San Bernardino, State of California. Being a subdiv ision of Lot 1 and Lot 2 of Tract Map No. 17308, Recorded in Map Book 356, Pages 74 through 78 inclusive, Records of said county, within the West ½ of the Northeast ¼ of Section 11, Township 5 North, Range 5 West, S.B.M.
Tract Map No. 17310
In the City of Victorville, County of San Bernardino, State of California. Being a subdivision of Lot 3 of Tract Map No. 17308, Recorded in Map Book 356, Pages 74 through 78 inclusive, Records of said county, within the West ½ of the Northeast ¼ of Section 11, Township 5 North, Range 5 West, S.B.M.
Tract Map No. 17311
In the City of Victorville, County of San Bernardino, State of California. Being a subdivision of Lot 4 of Tract Map No. 17308, Recorded in Map Book 356, Pages 74 through 78 inclusive, Records of said county, within the West ½ of the Northeast ¼ of Section 11, Township 5 North, Range 5 West, S.B.M.
EXHIBIT B
RECORDED TRACT MAP NOS. 17308 (MASTER MAP), 17309, 17310 AND 17311
EXHIBIT C
TRACT
17308 MAPS LIEN AGREEMENT