Attachment C
Subdivision Improvement
Agreement
RECORDING REQUESTED BY
CITY OF VICTORVILLE
WHEN RECORDED RETURN TO:
CITY OF VICTORVILLE
ENGINEERING DEPT.
14343 CIVIC DR.
VICTORVILLE, CA 92392
APNs 0473-163-06 and 0473-181-27
SPACE ABOVE FOR RECORDER’S USE
RECORDING OF THIS DOCUMENT IS FEE-EXEMPT
GOVERNMENT CODE SECTIONS 6103, 27383, AND 27388.1(2)(D)
SUBDIVISION IMPROVEMENT AGREEMENT
(Lien Agreement as Security)
(CASE NO. ESUB22:00004)
THIS SUBDIVISION IMPROVEMENT AGREEMENT (“Agreement”) dated this ___ day of _____________, 20_____ 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”, and SLPR, L.L.C., AN ARIZONA LI MITED LIABILITY COMPANY and FONTANA LAND ASSOCIATES, LLC, A CALIFORNIA LIMITED LI ABILITY COMPANY, hereinafter referred to collectively 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”) and the ordinances and regulations of the City relating to the filing, approval, and recordation of subdivision maps, including without limitation, Title 17 and the applicable provisions of Title 16 of the Victorville Municipal Code (the “VMC”). The Map Act and the aforementioned ordinances and regulations of the City are collectively referred to hereinafter as the “Subdivision Laws ” and Subdivider acknowledges familiarity with said Subdivision Laws and hereby agrees to comply therewith; and
WHEREAS, Subdivider is currently the record fee owner
1 of that certain real property situated in the City of Victorville, County of San Bernardino, State of California, as more particularly described in Exhibit A, attached hereto (hereinafter called the “Subdivision”); and
WHEREAS, Subdivider has presented to the City for appro val a final subdivision or parcel map, entitled Tract Map No.14525, as more particularly depicted in Exhibit B attached hereto (hereinafter called the “Map”), recorded in Map Book _______, Pages _______, through _______, inclusive in the records of San Bernardino County, California; and
1 Exact fee title ownership vesting differs between Parc el 1 and Parcel 2 as follows: As to PARCEL 1, SLPR, L.L.C. HAS A 100% OWNERSHIP INTE REST; and as to PARCEL 2, FONTANA LAND ASSOCIATES, LLC, HAS AN UNDIVIDED 50.22% INTE REST and SLPR, L.L.C., HAS AN UNDIVIDED
49.78% INTEREST. However, the liabilities and obligat ions of Subdivider, as defined in this Agreement, shall be joint and several with respect to the entire Subdivision.
WHEREAS, Subdivider has requested approval of the Map prior to the construction and completion of the associated required public improvements which are a part of, or appurtenant to, the Subdivision designated in the Map, including installation of all streets, hi ghways, public ways, sidewalks, curbs, gutters, storm drainage and other drainage facilities, public utility fa cilities, recreation facilit ies, median and parkway landscaping and irrigation, and other public improvements that are r equired by the Subdivision Laws and the conditions of approval imposed on the Map, as se t forth on the tentative map previously approved by the City and in City Council Resolution Nos. 09-051 and 16-050 and in City Planning Commission Resolution No. P-19-047, and as provided for in the Development Agreement between the City and SLPR, L. L.C. (as amended) recorded as Instrument No. 2023-0239555 in the records of San Bernardino County, on September 28, 2023, (collectively hereinafter the “Conditions of Approval”); 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 public improvemen ts described in the preceding recital (collectively hereinafter the “Required Improvements”) sooner than two (2) years after the recordation of the Map; and
WHEREAS, Subdivider acknowledges and agrees that the development of Tract No. 14525 is further subject to the standards set out in the Planned Unit Development (PUD) PUD-09-001, as adopted by City Ordinance No. 2241 and amended by City Ordinance No. 2356, as well the Development Plan submitted by Subdivider as updated and adopted by Planning Commission Resolution No. P-24-040.
NOW THEREFORE , for and in consideration of the approval of the Map and of the acceptance of the dedications therein offered, and in order to en sure satisfactory performance by Subdivider of Subdivider’s obligations under the Subdivision Laws and this Agreement, the Parties agree as follows:
1. Performance of Work; Required Improvements
Subdivider will do and perform, or cause to be done and performed, at Subdivider’s own expense, 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 and Required Improvements pursuant to the Subdivision Laws and as specified in the Conditions of Approv al and PUD-09-001 for this Subdivision (including without limitation any required installation or relocati on of utilities) in accordance with the plans and specifications on file as herein sp ecified, or with any changes required or ordered by said Engineer, which in his opinion are necessary 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 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 (hereinafter the “Approved Plans”) and which are now on file in his office, and to the satisfaction of said City Engineer.
The actual work of surveying shall be performed by the Subdivider’s engineer.
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, Inc. , 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 Required Improvemen ts shall commence within the time provided for in Section I.E of the Lien Agreement attached hereto as Exhibit C, but in no event later than the date that is six (6) years (ten (10) years in the event of an extension under VMC Section
17.64.065(h)) after the date this Agreement, the Map, and the Lien Agreement are recorded in the San Bernardino County Recorder’s Office (hereinafter the “ Commencement Date ”).
Recordation shall take place only after the City Council has approved the Map, the Lien Agreement, and this Agreement.
(b) The City hereby fixes the time for the completion of said Required Improvements work to be not less than two (2) years after the Co mmencement 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 Map 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 t he 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 Law
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 Map. Pursuant to the Subdivision Laws, the City 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. Theref ore, concurrently with the execution hereof, Subdivider has secured the performance of its ob ligations hereunder by entering into the Lien Agreement attached hereto as Exhibit C.
(b) In accordance with the provisions of said Lien Agreement, including but not limited to Sections I.D and I.E 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 se curities shall be in the amounts and for the purposes set forth below, except that the amount s 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 Victorville Municipal Code, 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 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: SLPR, L.L.C.
and
FONTANA LAND ASSOCIATES, LLC
If to surety:
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 Map and Lien Agreement for the Subdivision.
22. Sale or Disposition of Subdivision; Assignment; Obligations
(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.
(b) Subdivider shall not assign this Agreement without the City’s prior written consent. The City shall consider a request for an assignment or no vation on a case-by-case basis where unusual circumstances render the Subdivider’s perf ormance 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 sha ll 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 nov ation 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 Subdivider.
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, including all Recitals, together with all exhibits, the Lien Agreement, the Conditions of Approval, Map(s), and other matters expressly referred to herein, cons titutes 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 set forth therein, are hereby incorporated into and made an operative part of the terms and conditions of this Agreement by this reference. The following exhibits are attached to this Agreement and are also incorporated into this Agreement by this reference:
Exhibit A – Legal Description of Subdivision
Exhibit B – Tract Map No. 14525 (Map)
Exhibit C – 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.
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EXHIBIT A
LEGAL DESCRIPTION
Real property in the City of Victorville, County of San Bernardino, State of California, described as follows:
PARCEL 1: (APN: 0473-163-06-0-000)
THAT PORTION OF THE WEST ½ OF SECTION 3, TOWNSHIP 5 NORTH, RANGE 4 WEST, SAN BERNARDINO
BASE AND MERIDIAN, IN THE COUNTY OF SAN BE RNARDINO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND, APPROVED BY THE SURVEYOR GENERAL, DATED MARCH 19, 1856, DESCRIBED AS FOLLOWS:
COMMENCING AT THE MOST SOUTHERLY CORNER OF LOT 11, TRACT NO. 3213, AS PER PLAT RECORDED IN BOOK 42 OF MAPS, PAGE 96, RECORDS OF SAID COUNTY; THENCE SOUTH 54° 03' 54" EAST, BASED ON THE BEARING OF THE CENTER LINE OF IMPROVEMENT OF STATE HIGHWAY 15 (SAID BEARING ALSO SHOWN AS SOUTH 53° 18' 53" EAST, ON MAP OF SAID TRACT NO. 3213, AND AS SOUTH 54° 25' 35" EAST IN THE DEED TO THE COUNTY OF SAN BE RNARDINO, RECORDED IN BOOK 7459, PAGE 670, OFFICIAL RECORDS), FOR A DISTANCE OF 41.97; THENCE NORTH 89° 40' 45" EAST, 53.23 FEET TO THE WESTERLY RIGHT-OF-WAY LINE OF STODDARD WELLS ROAD, 100 FEET WIDE, AS CONVEYED TO THE COUNTY OF SAN BERNARDINO BY EASEMENT RE CORDED APRIL 22, 1968 IN BOOK 7013, PAGE 206,
OFFICIAL RECORDS, SAID POINT BEING ON A NO N-TANGENT CURVE CONCAV E TO THE EAST AND HAVING A RADIUS OF 1850 FEET, THE RADIAL FR OM SAID POINT BEARS NORTH 80° 40' 42" EAST; THENCE SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 6° 58' 17", FOR A DISTANCE OF 225.10 FEET TO THE TRUE POINT OF BEGINN ING, SAID POINT BEING A NONTANGENT CURVE CONCAVE NORTHEASTERLY WITH A RADIUS OF 70 FEET, THE RADIAL FROM SAID POINT BEARS NORTH 4° 13' 27" WEST; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 80° 32' 26", FOR A DISTANCE OF 98.40 FEET TO THE EN D OF SAID CURVE; THENCE NORTH 13° 43' 01" WEST, 29.53 FEET; THENCE SOUTH 49° 12' 49" WEST, 1078.05 FEET; THENCE NORTH 40° 25' 01" WEST,
65.00 FEET; THENCE NORTH 39° 44' 35" WEST, 120.25 FEET; THENCE NORTH 55° 42' 38" WEST, 243.40 FEET; THENCE NORTH 43° 20' 15" WEST, 154.00 FEET TO THE SOUTHEASTERLY RIGHT OF WAY LINE
OF THE STATE HIGHWAY CONVEYED TO THE STATE OF CALIFORNIA BY DEED RECORDED DECEMBER 19, 1955 IN BOOK 3813, PAGE 526, OFFICIAL RECORDS; THENCE SOUTH 53° 01' 11" WEST ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE TO THE WESTERLY LINE OF SAID SECTION 3; THENCE SOUTHERLY ALONG SAID WESTERLY LINE TO THE SOUTHWEST CO RNER OF SAID SECTION 3; THENCE NORTH 89° 01' 31" EAST ALONG THE SOUTH LINE OF SAID SE CTION 3, A DISTANCE OF 2318.11 FEET TO A POINT
IN THE CENTER LINE OF STODDARD WELLS ROAD, SAID POINT BEING A POINT ON A NON-TANGENT CURVE CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 1800 FEET, THE LONG CHORD OF SAID NON-TANGENT CURVE BEARS NORTH 13° 25' 45" WEST, A DISTANCE OF 463.82 FEET; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 14° 48' 03", AN ARC DISTANCE OF 464.98 FEET (DEED RECORD 14° 48' 17", A DISTAN CE OF 465.10 FEET); THENCE NORTH 5° 39' 56" WEST, 1062.18 FEET (DEED RECORD NORTH 6° 01' 37" WEST, 1061.72 FEET) TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 1800 FEET; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CE NTRAL ANGLE OF 11° 05' 57", A DISTANCE OF 348.69 FEET; THENCE NORTH 16° 45' 53" WEST, 406.58 FEET (DEED RECORD NORTH 17° 07' 33" WEST, 406.08 FEET) TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE EAST, HAVING A RADIUS OF 1800 FEET; THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 0° 26' 18", AN ARC DISTANCE OF 15.23 FEET; THENCE LEAVING SAID CENTER LINE OF SAID STODDARD WELLS ROAD, 100 FEET WIDE, ON A RADIAL BEARING OF SOUTH 73° 42' 25" WEST, FOR A DISTANCE OF 50 FEET TO
A POINT ON THE WESTERLY RIGHT-OF-WAY LINE OF ABOVE SAID STODDARD WELLS ROAD, SAID POINT BEING THE TRUE POINT OF BEGINNING.
EXCEPTING THE WESTERLY 50 FEET OF THE ABOVE SAID STODDARD WELLS ROAD, 100 FEET WIDE, AS RESERVED BY HAZLETT E. ANDERSON AND ORTRUD CECELIA ANDERSON IN DEED RECORDED IN BOOK 7759, PAGE 56, OFFICIAL RECORDS.
ALSO EXCEPTING THAT PORTION OF THE WEST ½ OF SAID SECTION 3, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE SOUTH LINE OF SECTION 3 WHICH IS 370 FEET EAST OF THE SOUTHWEST CORNER THEREOF; THENCE NORTHWESTERLY IN A STRAIGHT LINE TO A POINT ON THE
WEST LINE OF SAID SECTION WHERE SAID STRA IGHT LINE WOULD INTERSECT THE SAME EXACTLY 1600 FEET FROM THE POINT OF BEGINNING; THENCE SOUTH TO THE SOUTHWEST CORNER OF SAID SECTION; THENCE EAST 370 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION OF LAND CONVEYED TO CITY OF VICTORVILLE, A MUNICIPAL CORPORATION BY THAT CERTAIN GRANT DEED RE CORDED NOVEMBER 28, 2023 AS INSTRUMENT NO. 2023-0291705 OF OFFICIAL RECORDS.
PARCEL 2: (APN: 0473-181-27-0-000)
PARCEL 1 AS SHOWN ON THAT CERTAIN PARCEL MAP NO. 15883 FILED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA ON NOVEMBER 14, 2002, IN BOOK 197 OF MAPS PAGES 32-39
APN: 0473-163-06 and 0473-181-27
EXHIBIT B
TRACT MAP
EXHIBIT C
LIEN
AGREEMENT