Attachment G
New Lien Agreement for Phase 3
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Recording Requested By:
The City of Victorville
When Recorded Please Return to:
City of Victorville
14343 Civic Drive
P O Box 5001
Victorville, CA 92393-5001
SPACE ABOVE FOR RECORDER’S USE
RECORDING OF THIS DOCUMENT IS FEE-EXEMPT
GOVERNMENT CODE SECTIONS 6103, 27383, AND 27388.1(2)(D) 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
TRACT 17308 MAPS LIEN AGREEMENT
As Substitute Security for
Master Tract Map No. 17308
and Constituent Tract Map Nos. 17309, 17310, and 17311
THIS Lien Agreement is entered into this day of
20 , by and among the City of Victorville, a California municipal corporation and charter city, hereinafter called “CITY”; (“Walton California”) acting in its own capacity as an owner of the Property, and as manager, oper ator, or agent, as applicable, for and on behalf of various individual owners of undi vided interests in the Property (the “ UDI Owners”); and WUSF 4 WEST CREEK, LLC, A CALIFORNIA LIMI TED LIABILITY COMPANY (“WUSF 4”). Walton California, acting in it s own capacity and as manager, operator, or agent, as applicable, for and on behalf of the UDI Owners, and WUSF 4 are collectively hereinafter called “ OWNER”. CITY and OWNER are at times collectively referred to hereinafter as the “PARTIES,” and individually as a “PARTY”.
RECITALS
A. OWNER is the current reco rd fee owner of that certain real property situated in West Creek Specific Plan area of t he City of Victorv ille, County of San Bernardino, State of California, as more particularly described in Exhibit A, attached hereto (hereinafter the “Property”).
B. Tract Map No. 17308 was recorded in the office of the County Recorder of San Bernardino (“ County Recorder’s Office ”) on October 1, 2020, for the subdivision of real proper ty within the CITY, as evidenced by Document No. 2020-0372961, pursuant to the Subdivision Map Act, Gov. Code Section 66410 et seq., (the “Map Act”), and the ordinances and regulations of the City relating to the filing, approval, and recordati on of subdivision maps and other City subdivision regulations, including without limitation, Title 17 and the applicable provisions of Title 16 of the Victorville Municipal Code (hereinafter the “VMC”).
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C. Tract Map No. 17308 is a mast er tract map (hereinafter the “ Master Tract 17308 Map”), which included most, but not all, of the land further subdivided by its individual constituent final Tract Map Nos. 17309, 17310 and 17311, which were recorded in the County Recorder’s Office as follows:
Tract Map No. 17309 - Document No. 2020-0509176 on December 15, 2020; Tract Map No. 17310 - Document No. 2020-0509252 on December 15, 2020; Tract Map No. 17311 - Document No. 2020-0516091 on December 18, 2020.
D. In conjunction with obtaini ng the City’s approval for recordation of said Master Tract 17308 Map and its constituent Tract Map Nos. 17309, 17310, and 17311 (hereinafter collectively the “ Tract 17308 Maps ”), OWNER entered into a secured Subdivision Impr ovement Agreement (“ SIA”) with the CITY, dated April 8, 2020, promising to perfo rm certain acts and construct certain improvements as a condition of CITY’s approval of said map (hereinafter the “Original SIA”). The Original SIA was recorded on April 15, 2021 as Document No. 2021-0174652 in the County Recorder’s office.
E. The Original SIA also required OWNER to perfo rm certain additional acts and construct various other improvements in conjunction with the conditions of approval for previously recorded master Tract Map No. 17110 and in order to receive the City’s approval of final Tract Map Nos. 17111, 17112, 17113, 17114, 17115, 17116 17986-1 and 17986-2 (as conditioned) which further subdivided most, but not all of the land covered by master Tract Map No. 17110 (collectively hereinafter the “Tract 17110 Maps”).
F. Tract Map No 17110 is not only a mast er tract map, but also an underlying preceding map (involving in dividual final subdivision maps conditioned to require installation or construction of required improvements in conjunction with said underlying preceding map for whic h required improvements still remain outstanding). To ensure that the public improvements required by a preceding underlying map can be completed prior to or simultaneously with the development/construction of each of t he tracts created by the associated individual final maps, or in such sequence as is mandated by the conditions of approval, lien agreements may only be used as security in accordance with the provisions of VMC Sections 17.64.065(i) and (m).
G. The Master Tract 17308 Map is not onl y a master tract map, but under the provisions of the Original SIA was deemed to be an underlying preceding map for which a lien agreement may only be used as security in accordance with the provisions of VMC Sections 17.64.065(i) and (m), to ensure that the public improvements required by the precedi ng underlying map can be completed prior to or simultaneously with the dev elopment/construction of each of the tracts created by the associated individual final maps, or in such sequence as is mandated by the conditions of approval.
H. Map Act Section 66499(a)(4) empowers the CITY to adopt an ordinance to allow the use of lien agreements to secure SIAs, based upon the CITY finding WEST CREEK Tract 17308 Maps
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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 map.
I. Pursuant to VMC Section 17.64.065(d), CITY is authorized to accept a lien agreement for the substitution of an existing security which was furnished under VMC Section 17.64.060, subject to th e conditions, requirements, and restrictions contained in VMC Section 17.64.065.
J. Pursuant to VMC Section 17.64.065(c), CITY is also authorized to accept a lien agreement recorded against a property to be subdivided as security for a SIA entered into to obtain approval of a fi nal subdivision map, subject to the conditions, requirements, and restrictions contained in VMC Section 17.64.065 and when the City Council finds it would not be in the public interest to require the installation of the improvements required by such map sooner than two (2) years after recordation thereof.
K. To secure the Original SIA, on or about April 8, 202 0, OWNER and CITY entered into a lien agreement (the “ Original Lien Agreement ”) for the Tract 17308 Maps and the Tract 17110 Maps, which as conditioned, provided for the development of a master-planned re sidential community consisting of approximately 827 single family homes and related infrastructure and amenities on the real property co vered by said maps (the “ Project”). The Original Lien Agreement was recor ded on April 14, 2021 as Document No. 2021-0169445 in the County Recorder’s Office.
L. To facilitate the build ing/development of the Project on the land encompassed and the parcels created by the Trac t 17308 Maps and the Tract 17110 Maps, and to ensure the orderly, timely, and financially feasible construction/installation of the asso ciated required publ ic improvements, OWNER sold/transferred ownership of cert ain portions of the real property subject to the Original SIA and Original Lien Agreement to D.R. Horton, while retaining ownership of the Property (as defined in Recital A) covered by the Tract 17308 Maps.
M. The changes in ownership and phased acquisition/development plans for the Project, as well as certain provisions of the VMC regulatin g the use of lien agreements as security for certain types of master tract maps, now require the Original SIA and Original Lien Agreem ent to be replaced by: (1) a new SIA secured by this Agreement (for the r eal property and entitle ments associated with the Tract 17308 Maps); and (2) a separate SIA secured in part with surety bonds and in part with a lien agreement (for the real property and entitlements associated with the Tract 17110 Maps).
N. OWNER is now entering into a new SIA with CITY (hereinafter the “Tract 17308 Maps SIA”) and is providing this Lien Agreement as security to replace in part the Original Lien Agreement executed by OWNER with the Original SIA to continue to provide security for its obligations to install the public improvements WEST CREEK Tract 17308 Maps
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in accordance with the provisions of the Tract 17308 Maps SIA for the Tract 17308 Maps and pursuant to Map Act Sections 66462 and 66499 and VMC Section 17.64.065.
O. As with the Original SIA and the Origi nal Lien Agreement, with respect to the Tract 17308 Maps, the City Council has found and determined that it would not be in the public interest to require the installation of the required improvements pursuant to the Tract 17308 Maps SIA sooner than two (2) years after the recordation of the Tract 17308 Maps.
P. OWNER warrants and represent s that OWNER has fee title interest to all of the individual lots in the Property, as i dentified on the Tract 17308 Maps, and has not sold any of the individual lots on the Property as divided and identified on said maps.
Q. OWNER has not commenced installation or construction of the improvements required by the Tract 17308 Maps SIA, has not been issued any construction permits, including without limitation, grading, or building permits for any of the work covered by the Tract 17308 Maps SIA, and any permits that may have been issued for prior improvement work associated with the Original SIA have expired.
R. OWNER has provided a title insurance pol icy and current title report from a title company approved by the CITY and issu ed within the 45 days prior to the execution of this Lien Agreement docum enting that the OWNER is the record owner of the Property, and the Property is not subject to any mortgages, deeds of trust, or liens (with the exception of the lien created in favor of the City by the recording of the Original Lien Agreement, which lien is to be released by the City as set forth in Section II.A hereof and the provisions of the SIA for the Tract 17308 Maps being executed concurrently herewith).
S. OWNER represents and CITY has c onfirmed that OWNER has paid all outstanding fees pursuant to Chapter 17.12 of the VMC and has a deposit- based fee account in good standing with the CITY.
NOW, THEREFORE, incorporating the above recitals, and for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the PARTIES hereto mutually agree as follows:
I. OWNER’s Performance and Obligations
A. OWNER hereby grants to CITY, in a ccordance with the terms and conditions of this Lien Agreement, a lien upon the Property described in the attached Exhibit A, as security for the following obligations of OWNER:
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(1) Construction of the “ Required Improvements” as defined and specified in the Tract 17308 Maps SIA being executed concurrently herewith by OWNER pursuant to VMC Sections 17.64.050 and/or 16-4.08.060, the total estimated costs of which equal SIXTEEN MILLION THREE HUNDRED SIXTY THOUSAND FOUR HUNDRED EIGHT AND EIGHTY-TWO/100
Dollars ($ 16,360,408.82) as specified in the approved Engineer’s Cost Estimate, a summary of which is atta ched hereto as Exhibit B. The full Engineer’s Cost Estimate documentation is on file with the office of the City Engineer of the City of Victorville (the " City Engineer"). Notwithstanding the total estimated costs of the Required Improvements specified in Exhibit B, OWNER acknowledges and agrees th at its obligation under this Lien Agreement and the Tract 17308 Maps SIA shall extend to the actual cost of construction of the Required Improv ements required by the Tract 17308 Maps SIA and the conditions of approval referenced therein, notwithstanding that such costs may e xceed the estimate set forth in said Exhibit B.
(2) Payment of the balance of any fees , including fees for improvements or services described in VMC Title 17 (collectively, “ Fees”), in the amount required in accordance with the VMC.
(3) Submission to CITY’s Development Department for re view and approval improvement plans for the park site identified on the attached Exhibit C (the “Park Improvement Plans” for Park D), as set forth below. a. The improvements to be made in park consist of the construction of said park, as well as the provisi on and installation of the amenities and facilities therein, including without limitation: playground equipment, restrooms, landscaping, irrigation, parking lots, lighting, picnic/BBQ facilities, sidewalks, and other improvements commonly found in parks of this nature in the City (the " Park Improvements") to be installed and thereafter ma intained by City Maintenance Assessment District No. 3.
b. As OWNER has requested that s ubmission to CITY of the Park Improvement Plans be delayed until the date that is not later than six (6) months after this Lien Agreem ent is replaced with acceptable securities (surety bonds), OWNER has provided certain estimates (and the City Engineer has confirmed) of the cost of constructing said Park Improvements in Exhibit B, with the understanding that OWNER’s obligation extends to the actual costs of constructing the Park Improvements in accordance with the Park Improvement Plans as submitted by OWNER and subsequently approved by CITY as set forth above.
(4) Submission to CITY’s Development Department for re view and approval improvement plans for the landscapi ng amenities to be installed and WEST CREEK Tract 17308 Maps
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thereafter maintained by Landscape Maintenance Assessment District No. 8 (LMAD 8) as specified on Sheet 5 of Tract Map No. 17308 (the “Landscaping Improvement Plans”) as set forth below.
a. The landscaping amenities include, but are not limited to, greenbelt and access trails, the SCE access corridor, as well as planting and installation of irrigation systems and related facilities in accordance with the City Landscaping Standards.
b. As OWNER has requested that submission to CITY of the Landscaping Improvement Plans be delayed until the date that is not later than six (6) months after this Lien Agreement is replaced with acceptable securities (surety bonds), OWNER has provided certain estimates (and the City Engineer has confirm ed) of the cost of constructing the landscaping amenities associated with the Tract 17308 Maps in Exhibit B, with t he understanding that OWNER’s obligation extends to the actual costs of constructing the landscaping amenities in accordance with th e Landscaping Improvement Plans as submitted by OWNER and subsequently approved by CITY as set forth above.
(5) Submission to the CITY’s Developm ent Department for review and approval improvement plans for the storm drai n and other drainage facilities to be installed for Tract No. 17308 and thereafter maintained by Drainage Facilities Maintenance Assessment District No. 3 (DFAD 3) (the “Drainage Facilities Improvement Plans ”) as specified on Exhibit B, as set forth below.
a. The drainage facilities include, but are not limited to, soft bottom storm drainage channels and rela ted drainage facilities in accordance with City specifications and standards.
b. As OWNER has request ed that submission to CITY of the Drainage Facilities Improvement Plans be del ayed until the date that is not later than six (6) months after this Lien Agreement is replaced with acceptable securities (surety bonds), OWNER has provided certain estimates (and the City Engineer has confirme d) of the cost of constructing the drainage facilities in Exhibit B, with the understanding that OWNER’s obligation extends to the actual costs of constructing the drainage faci lities in accordance with the Drainage Facilities Improvement Plans as submitted by OWNER and subsequently approved by the CITY as set forth above.
B. While the Property remains subj ect to this Lien Agreement, OWNER shall not:
(1) request issuance by the Department of Real Estate of the Final Subdivision Public Report for the Property;
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(2) transfer, sell, or permit the transfer or sale of any lot shown on the Tract 17308 Maps, which include all lots on the individual final tract maps which make up the Property, except as specified in the provisions of Section III.B, hereof; or
(3) commence work on any of the Requir ed Improvements except as necessary to correct or prevent threats to the public health, safety or general welfare and with the prior written consent or order of the CITY.
C. At the time OWNER executes this Li en Agreement, OWNER sh all post with the CITY a cash deposit in the amount of Twelve Thousand Dollars ($12,000) per tract map previously recorded (in this case , Tract Map Nos. 17308, 17309, 17310 and 17311), for the purpose of reverting the Pr operty to acreage if OWNER breaches or is in default of the terms of this Lien Agreement, an d to be used by CITY to reimburse CITY for any costs which CITY may incur in processing such reversion to acreage map initiated pursuant to this Lien Agreement as required for properties where none of the Required Improvements have been constructed. If there are no outstanding fees, any unused portion of such deposit shall be refunded to OWNER following completion of such reversion.
D. Reserved.
E. Prior to obtaining any construction permi ts, including but not limited to grading, construction, excavation, or water permits , or commencing the installation and/or construction of any portion of the Required Improvement s set forth in the Tract 17308 Maps SIA, OWNER shall:
(1) substitute other forms of security sati sfactory to CITY in place of this Lien Agreement, in the amounts and for the purposes set forth in the Tract 17308 Maps SIA and VMC Sections 17.64.060(a) and (b), except that the amounts shall be calculated using the estimated cost to complete the Improvements at the time of said substitution, as ascertained by the City Engineer; and (2) deposit fees for inspections, te sts and other related purposes.
F. OWNER shall substitute acceptable securi ty for this Lien Agreement within six (6) years following the date the last of the four Tract 17308 Maps was recorded in the San Bernardino County Recorder’s O ffice. Upon OWNER’s request and upon approval by the City Engineer or his/her designee, the time for delivery of acceptable replacement security may be extended once for an additional period not to exceed (4) four years, provi ded all the provisions of VMC Section
17.64.065(h) are met and further provided t hat the total amount of time a Lien Agreement (including the time period covered by t he Original Lien Agreement associated with these tracts) is used as security for the Property does not exceed ten (10) years.
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G. Once this Lien Agreement has been replaced with acceptable security in the types and amounts specified in VMC Sections 17.64.060(a) and (b) and approved by the City Council, substitution of a new lien agree ment for said security shall not be permitted.
H. OWNER agrees to appear in and def end any action or pr oceeding purporting to affect the City’s lien upon t he Property or the rights or powers of the City with respect to the Property; and also, if at any time the City is a party to or appears in any such action or proceeding, or in any action or proceeding to enforce any obligation hereby secured, to pay all co sts and expenses paid or incurred by the City in connection therewith, including, but not limited to, cost of evidence of title and reasonable attorneys’ fees. OWNER fu rther agrees that upon entry of any judgment, all such costs, expenses, and fees shall be taxed as costs and included in any judgment rendered.
I. OWNER agrees to indemnify , and hold harmless, the CITY, its officers, employees and agents from any liability whatsoever based or asserted upon any act or omission of OWNER, its officers, employees and agents relating to or in any way connected with the obligations arising under this Lien Ag reement. As part of the foregoing indemnity, OWNER agrees to pr otect and defend at its own expense, including attorneys’ fees, the CITY, its officers, employees, and agents in any legal action based upon such alleged acts or omissions.
J. OWNER agrees to pay when due any and all taxes and assessments affecting the Property, and all encumbrances, charges and liens, with interest, on the Property or any part thereof, which appear to be prior or superior to the lien created by this Lien Agreement.
K. OWNER agrees at its sole cost and expense, to main tain and keep the Property in good condition and repair, including but not limited to maintaining storm water facilities, erosion control and fire prevention maintenance activities on the Property; to comply with all laws, ordi nances, regulations, covenants, conditions and restrictions affecting the Property; not to commit or permit any waste thereof or any act upon the Property in violation of t he law; to cultivate, irrigate, fertilize, fumigate, prune and do all other acts whic h from the character or use of the Property may be reasonably necessary, th e specific enumerat ions herein not excluding the general.
L. OWNER agrees that the choice of rem edy or remedies for OWNER’s default or breach of this Lien Agreement shall be in the sole discretion of the CITY.
II. City’s Performance and Obligations
A. CITY, upon recordation of this Lien Agreement and the Tract 17308 Maps SIA with the County Recorder’s Office, and following: (1) the posting of bonds in favor of the City in accordance with the requirements of the SIA for the Tract 17110 Maps; (2) the execution of the SIA for the Tract 17110 Maps and the associated lien WEST CREEK Tract 17308 Maps
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agreement securing the completion the pub lic improvements for Tract Map Nos. 17113, 17115, and 17116 by all required parties ; and (3) City’s recordation of the SIA for the Tract 17110 Maps and the associated lien agreement with the County Recorder’s Office, shall release the lien created by the recording of the Original Lien Agreement.
B. Upon delivery by OWNER and acceptance by the City Council of one or more of the securities (as specified in Section 17.64.060 of the VMC and Section 10 of the Tract 17308 Maps SIA) in place of th is Lien Agreement, and upon OWNER’s request, the CITY shall release the Property from the provisions of this Lien Agreement and shall execute any necessary release in a form as required by law to enable the OWNER to clear the record of title of the Property so release of the lien created by this Lien Agreement is achieved.
C. Upon delivery by OWNER and acceptance by the City Council of one or more of the securities (as specified in Section 17.64.060 of the VMC and Section 10 of the Tract 17308 Maps SIA) in place of th is Lien Agreement, and upon OWNER’s request, the CITY shall release all remaining amounts of deposits paid pursuant to Sections I. C and I.D hereof.
D. Notwithstanding the provis ions of Section II.B above, any release of this Lien Agreement shall also be contingent upon CITY's satisfaction that the requirements of Section I.B have been complied with.
E. In the event of a sale/transfer by OW NER of the entire Property encumbered this Lien Agreement that is in full compliance with the provisions of Section III.B hereof, and upon OWNER’s request, the CITY sha ll release the Property from the provisions of this Lien Agreement and shall execute an y necessary release in a form as required by law to enable the OWNER or its duly authorized transferee to clear the record of title of the Property so release of the lien herein is achieved.
F. In no instance shall this Lien Agreement compel the City to construct the Required Improvements.
III. Effect of Lien Agreement
A. This Lien Agreement creates and constitute s a secured obligation in the form of a lien against the Property for the purposes of securing OWNER’s performance under the Tract 17308 Maps SIA and this Lien Agreement. From the date of recordation of this Lien Agreement, a lien shall attach to the entire Property which shall have the priority of a judgment lien in an amount necessary to discharge all obligations contained in the Tract 17308 Maps SIA and this Lien Agreement, and the payment of any Fees. The CITY shall under no circumstances be obligated to subordinate the lien, but may do so in its sole and absolute discretion in a manner provided by law.
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B. Pursuant to VMC Section 17.64.065(m), fee title to the entire Property encumbered by this Lien Agreement (regardless of the number of indivi dual recorded maps) may only be sold by OWNER as a whole to a single purchaser to ensure that the public improvements required by the preceding underlying maps can be completed prior to or simultaneously with the development/construction of each of the tracts created by the associated individual final maps, or in such sequence as is mandated by the conditions of approval. OWNER shall notify CI TY in writing at least sixty (60) days in advance of any such proposed sale, and any such sale shall further be subject to the following requirements and any provisions in the Tract 17308 Maps SIA relating to sale or transfer of the Property. (1) Prior to assuming title to the Proper ty, any such proposed single purchaser must either:
a. Execute a new or replacement SIA in a form acceptable to CITY to assume the obligations of OWNE R with respect to the Property encumbered by this Lien Agreement and deliver acceptable replacement security to the CITY (as set forth in VMC Section
17.64.065(g)) as a condition to development of the Property conveyed; or
b. Execute a new or replacement SIA in a form acceptable to CITY to assume the obligations of OWNE R with respect to the Property encumbered by this Lien Agr eement and execute a new lien agreement in a form acceptable to t he CITY as security to replace this Lien Agreement, which will encumber the Property to be conveyed. The foregoing sent ence notwithstanding, no new lien agreement may be used as security if the ten-year lim it for which a lien agreement may be used as secu rity for the Property has been reached, or if replacement security has already been provided as set forth in Section I.G of this Lien Agreement.
Any proposed purchaser shall also comply with all other applicable provisions of VMC Chapter 17.64, including without limitation, the provisions of Section 17.64.065.
(2) OWNER may proceed with selling a ll lots designated on any of the individual final maps only after: (i) the required improvem ents associated with the preceding underlying maps have been completed; or (ii) acceptable replacement security for the impr ovements required by the preceding underlying maps, in the types and am ounts specified in VMC Sections
17.64.060(a) and (b) and approved by the City Council, has been furnished to CITY by OWNER, which CITY shall be entitled to retain until such time as the required improv ements associated with the preceding underlying maps have been completed. Any such sales shall further require execution of new or replacement SIAs by the purchasers in a form acceptable to CITY to assume the obligations of OWNER and the delivery of any additional WEST CREEK Tract 17308 Maps
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securities deemed necessary by CITY to ensure proper completion of all Required Improvements.
C. Notwithstanding any provisi ons of VMC Title 17 or Title 16 to the contrary, so long as this Lien Agreement is utilized for security as described herein, the CITY is not obligated to accept offers of dedication for street or drainage purposes on the Property.
IV. Events of Default; Breach
A. Upon the occurrence of any one of the following events, OWNER shall be deemed in default hereunder if OWNER fails to cure such occurrence within thirty (30) days after receipt of written notic e of default from the CITY; provided, however, that if such event is of such a nat ure that it cannot be cured wit hin such thirty (30) day period, then OWNER shall not be in default if it comm ences a cure in good faith within such thirty (30) day period and thereafter diligently prosecutes the cure to completion:
(1) Commencement of any work on t he Required Improvements by OWNER, its agents, or employees, prior to substitution of acceptable security with the CITY in place of this Lien Agreement, except as specifically authorized by CITY with prior authorizati on in writing or by order to correct or prevent threats to the public health, safety, or general welfare; (2) Filing of any proceedings or action by or against OWNER to declare OWNER bankrupt or to appoint a receiv er or trustee for OWNER or to reorganize OWNER or to make an assignment for the benefit of creditors or to do anything else of a similar nature or purpose under any state or federal bankruptcy or insolvency laws, if such proceedings or actions are not discharged within sixty (60) days;
(3) Levy of any attachment or writ of execution against OWNER and the Property whereby the Property is tak en or occupied or attempted to be taken or occupied by someone other than OWNER and such attachment or execution is not released within sixty (60) days;
(4) Sale of any individual lot or Trac t which is part of the Property prior to release of the lien created by this Lien Agreement, except in compliance with the provisions of Sections I.B and III.B of this Lien Agreement; (5) Request by OWNER of issuance by t he Department of Real Estate of the Final Subdivision Public Report for the Property;
(6) Allowing the Property to be mainta ined in manner that falls below the required maintenance satisfactory to the CITY or as required by Section I.K hereof;
(7) The attachment of any other li en or judgment lien upon the Property; WEST CREEK Tract 17308 Maps
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(8) Breach by OWNER of any other term or condition of this Lien Agreement, or of the Tract 17308 Maps SIA, or OWNER’s failure to fully and faithfully discharge its obligations hereunder within the time specified herein.
V. CITY’s Remedies.
A. Upon the occurrence of any of the ev ents described in Sect ion IV, above, CITY may declare a breach of this Lien Agreement if OWNER fails to cure or to diligently prosecute the cure to completion, and the CITY, at CITY’s option, may exercise any one or more of the following remedies:
(1) Pursue any or all of the remedies provided in the Tract 17308 Maps SIA and all remedies available to it by law;
(2) Enforce this lien by appropriate action in court or as provided by law and in the event the enforcement is by action in court, the OWNER agrees that the amount of said lien shall include reasonable attorneys’ fees which shall be taxed as a cost in any suit for such enforcement;
(3) Estimate the cost of the work required to complete the Required Improvements, and all Fees, and foreclose said lien in said amount; (4) Rescind the approval of any and a ll entitlements, permits or licenses associated with the Property;
(5) Initiate proceedings for re version of the Property to acreage, at the expense of OWNER, in accordance with the provisions of the Map Act and Chapter
17.92 of the VMC;
(6) Pursue any other remedy, legal or equita ble, for the foreclosure of a lien.
OWNER, its heirs, successors, and assigns, shall pay reasonable attorneys’ fees to be taxed as a cost in said proceedings.
B. The failure of the CITY to take an enf orcement action with respect to a default, or to declare a default or breach, shall not constitute a waiver of that default or breach, or any subsequent default or breach of OWNER.
VI. General Provisions.
A. Recordation. This Lien Agreement shall be recorded, concurrently with the Tract 17308 Maps SIA, by the CITY in the o ffice of the County Recorder of San Bernardino County immediat ely following execution of this Lien Agreement and shall be indexed by the names of all record title owners of the Property as specified on the on the Tract 17308 Maps.
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B. Contingency. This Lien Agreement shall not take effect until it has been approved by the City Council of the CITY and has been recorded against the Property.
C. Final Integrated Agreement. This Lien Agreement, together with all exhibits, the Tract 17308 Maps SIA, and the Tract 17308 Maps expressly referred to herein, is intended to be the final expression of understanding between the Parties and supersedes any and all prior restrictions, promises, representations, warranties, agreements, understandings and undertakings between the PARTIES with respect to the within subject matter. No other statement or representation, written or oral, express or implied, has been received or relied upon entering into this Lien Agreement. All prior discussions, st atements and negotiations shall be deemed merged into this Lien Agreement and the SIA which it secures.
D. Further Assurances. The PARTIES agree to perform such further acts and to execute and deliver such additional doc uments and instrume nts as may be reasonably required in order to carry out the provisions of this Lien Agreement and the intentions of the PARTIES.
E. Governing Law. This Lien Agreement s hall 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 Lien Agreement shall be tried and litig ated only in the state courts located in the County of San Bernardino, State of Californ ia, or federal courts locat ed in the Central District of California.
F. Headings. The captions and Section headings used in this Lien 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.
G. Modification, Waiver and Amendment. No breach of this Lien Agreement or of any provision 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 breac h or provision of this Lien Agreement. This Lien Agreement may be amended, al tered, modified, or ot herwise changed only by a writing duly executed by the PARTIES hereto or their authorized representatives.
No modification, waiver, amendment, or discharge of this Lien Agreement shall be valid unless the same is in writing and signed by all PARTIES.
H. No Other Inducement. The making, execution and delivery of this Lien Agreement by the PARTIES hereto has been induced by no representations, statements, warranties or agreements other than those expressed herein.
I. Severability. If any term, provision, covenant or condition of this Lien Agreement is held to be invalid, void or otherwise unenforceable, to any extent, by any court of competent jurisdiction, the remainder of this Lien Agreement shall not be affected thereby, and each term, provision, covenant or condition of this Lien Agreement shall be valid and enforceable to the fullest extent permitted by law.
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J. Binding Upon Heirs, Successors and Assigns. The lien created by this Lien Agreement shall run with the Property and the terms, conditions, and requirements set forth herein shall be binding upon the hei rs, successors and assigns of the Property until satisfied in full.
K. Attorney Fees. In the event any action at law or in equity is brought to enforce the terms of this Lien Agreement, the prevailing PARTY shall be entitled to litigation costs and reasonable attorney fees.
L. OWNER not Agent of CI TY. Neither OWNER nor any of OWNER’s officers, directors, agents, employees, contractors, or successors in interest are or shall be considered to be agents of the CITY in connection with the performance of any of the OWNER’s obligations under this Lien Agreement.
M. Notice. All notices required by or provided under this Lien Agreement shall be in writing and delivered in person or sent by certified or registered mail, postage prepaid and addressed as provided in this Se ction. 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.
Notice to CITY: City of Victorville
Attention: City Engineer
14343 Civic Drive
Victorville, CA 92392
With Copy to: Andre de Bortnowsky, City Attorney
Green de Bortnowsky, LLP
30077 Agoura Court, Suite 210
Agoura Hills, CA 91301
Notice to OWNER: 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
N. Counterparts. This Lien Agreement ma y be executed in counterparts, each of which shall be deemed as original but a ll of which shall constitute one and the same instrument.
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Lien Agreement - Page 15
O. Authority. Each pers on signing this Lien Agreement warrants that s/he is duly authorized to execute this Lien Agreement on behalf of and bind the PARTY each purports to represent.
P. Incorporation of Exhibits. The followi ng exhibits are attached to this Lien Agreement and incorporated herein by this reference:
Exhibit A: Legal Description of Property
Exhibit B: Engineer’s Cost Estimate Summary
Exhibit C: West Creek Park Areas Diagram
[END OF PAGE – SIGNATURE PAGES FOLLOW]
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Lien Agreement - Page 16
IN WITNESS WHEREOF, the PARTIES hereto have executed this Lien Agreement.
OWNER: CITY:
WALTON CALIFORNIA, LLC, a California CITYOFVICTORVILLE limited liability company, on behalf of itself and on behalf of the UDI Owners in its capacity as
manager, operator or agent, as applicable
BY:
By: Walton International Group, Inc., a Nevada
Corporation
Its: Manager
Elizabeth Becerra, Mayor
Date:
Sig
(Notarization of Mayor's Signature is
required and shall be attached)
Date ATTEST:
WUSF 4 WEST CREEK, LLC, a California limited
liabilitycompany By:
By: Walton u.s. Land Fund 4, LP, a Delaware
limited partnership
Its: Manager
Jennfier Thompson, City Clerk
By: WUSF 4 GP, LLC, a Delaware limited
liability company
Its: General Partner
By: Walton Land Management (USA), Inc., a
Delaware corporation
Its: Manager
Sig
Date
(Proper Notarization of Owner's Signatures is
required and must be attached)
APPROVED AS TO FORM:
Andre de Bortnowsky, City Attorney
APPROVED:
City of Victorville Risk Manager
Sandra Bostick
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which tliis certificate is attached and not t}ie truthfulness, accuracy, or validity of tbat document.
STATEOF Aat4tAk
cotmry OF Mm-k
ons)zq(m ,be:roreme,krokmezd ,NotaryPublic,
personallyappeared l%i % 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 instrument.
IcertifyunderpenaltyofperjuryunderthelawsoftheStateof J'@tzos4- is tnue and correct.
thatthe foregoing paragraph
WITNESS my hand and official seal.
Signature (Seal)
HECTOR MEZAM
!No!aqPublic-SlaleolAtizonad MARICOPA COUNTYfl Commission # 668738*-* ' 06,2028- - Expttes July 1102505161l1lAMERICAS
A notary public or other officer completing this certificate vertfies only the identity of the individual who signed the document to wJiicli tliis certificate is attached and not the truthfulness, accuracy, or validity of tliat document.
STATEOF %xk
COUNTY OF %zA 1
personallyappeared %ty4"Y %rA whoprovedtomeonthebasisof satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instiument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted. executed the instrument.
Icertifytu'iderpenaltyofperjuryunderthelawsoftheStateof W is tnie and correct.
that the foregoing paragraph
WITNESS my hand and official seal.
Signature 4,.>h (Seal)
Commission # 668738
jffl" Expires July 06, 2028
1102505l61l1lAMERICAS
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Lien Agreement - Page 17
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, Re corded 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, Count y of San Bernardino, State of Ca lifornia. Being a subdivision of Lot 1 and Lot 2 of Tract Map No. 17308, Record ed 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, Count y of San Bernardino, State of Ca lifornia. Being a subdivision of Lot 3 of Tract Map No. 17308, Recorded in Map Book 356, Pages 74 th rough 78 inclusive, Records of said county, within the West ½ of th e Northeast ¼ of Section 11, Township 5 North, Range 5 West, S.B.M.
Tract Map No. 17311
In the City of Victorville, Count y of San Bernardino, State of Ca lifornia. Being a subdivision of Lot 4 of Tract Map No. 17308, Recorded in Map Book 356, Pages 74 th rough 78 inclusive, Records of said county, within the West ½ of th e Northeast ¼ of Section 11, Township 5 North, Range 5 West, S.B.M.
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EXHIBIT B
ENGINEER’S COST ESTIMATE SUMMARY
Phase 1 Phase 2 Phase 3
Tract No. Amount Tract No. Amount Tract No. Amount
17110 $15,130,790 17113 $3,142,559 17308 $3,656,113
17111 $5,955,780 17115 $3,388,797 17309 $2,834,639
17112 $2,988,707 17116 $4,907,427 17310 $4,430,739
17114 $3,279,920 Bridge 2 $163,193 17311 $5,042,551
17986 $590,244 Greenbelt Trail
& Access Trails $2,050,190 Park D $396,368
Bridge 1 $231,179 SCE Corridor $658,026
Park A $159,291
Park B & C $2,128,401
Total
Total FP Bond for Phase 1 $30,464,311.65 Phase 2 FP $14,310,191.98 Phase 3 FP $16,360,408.82 $61,134,912.45 Total L&M Bond for Phase 1 $15,232,155.83 Phase 2 L&M $7,155,095.99 Phase 3 L&M $8,180,204.41
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EXHIBIT C
WEST CREEK PARK AREAS DIAGRAM