EXHIBIT 10.87
DEVELOPMENT AND MARKETING AGREEMENT
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This DEVELOPMENT AND MARKETING AGREEMENT is made and entered into as of
this 21st day of October 1997 and between CAPITAL MUTUAL XXXXXX VALLEY, LLC., a
California Limited Liability Company ("Owner" herein) and INCO HOMES
CORPORATION, a Delaware corporation ("Builder" herein) with reference to the
following facts:
A. Owner has fee title to that certain parcel of undeveloped real
property located in Moreno Valley, California, the legal description of which is
set forth on Exhibit A (the "Property" herein). The Property has been
subdivided into One Hundred and Thirty-Nine (139) lots (the "Lots" herein) which
Owner desires to be developed with single family, detached homes (the "Homes"
herein). The development and construction of One Hundred and Thirty-Nine (139)
single family, detached Homes on the Lots together with all of the required on-
site and off-site infrastructure required therewith is collectively referred to
as the "Project" herein.
B. Builder is a licensed building contractor in the State of California
whose primary expertise is the construction and sale of single family, detached
homes.
C. Owner desires to engage the services of Builder to develop and
construct the Project and market the completed Homes. Such services shall
include coordinating existing and future entitlements, constructing all on-site
and off-site infrastructure improvements, constructing the Homes, marketing the
Homes, and providing warranty and customer service work for the completed and
sold Homes, all pursuant to the terms and conditions set forth in this
Agreement.
D. Provided that Owner delivers fully entitled Lots to Builder together
with all of the financing and bonding in amounts and at the time required to
develop the Project and to pay all of the costs (none of which shall be the
responsibility of Builder) to develop the Project and market the Homes, Builder
is willing to perform such development and marketing services for Owner pursuant
to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in reliance on the facts set forth in the above recitals
and in consideration of the mutual covenants and agreements set forth herein,
the parties hereto agree as follows:
1. Engagement.
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Owner hereby engages the services of Builder to develop and construct the
Project and market the Homes, and Builder hereby agrees to accept such
engagement and provide said services to Owner for the consideration and upon the
terms and conditions hereinafter set forth.
2. Development of the Project and Marketing of the Homes.
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Builder agrees to diligently develop and construct the Project and market
the completed Homes, as more specifically provided herein. Such development
responsibilities of Builder shall generally include coordinating both the
existing and future entitlements that benefit the Property, constructing the on-
site and off-site infrastructure for the Project, constructing the Homes and
providing all warranty and customer service construction and repairs for the
completed and sold Homes. Such marketing responsibilities of Builder shall
generally include designing the Homes, constructing, landscaping, and decorating
the model complex, holding a Grand Opening for the Project, setting the sale
prices of the Homes, signage, advertising, developing and printing marketing
brochures, sales contracts, and material, hiring and overview of sales personnel
and managing all other pre-closing and post-closing relationships with the Home
buyers. Builder agrees to use its reasonable best efforts under the
circumstances that exist from time to time during the term hereof to perform its
services hereunder in a manner that, subject to the
rights of Owner to direct Builder and subject to the performance of Owner of its
obligations (particularly funding) hereunder, shall be intended to maximize the
sales revenue from the completed Homes.
3. Term.
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The term of this Agreement shall commence on the date hereof and unless
earlier terminated by either Owner or Builder as provided herein, shall continue
until the close of the sale escrow of the last Home in the Project.
4. Title - Full Cooperation By Owner.
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Title to the Property shall remain in the name of Owner. Owner shall
fully cooperate with Builder as requested by Builder to perform its services
hereunder and Owner also agrees to promptly sign all maps, governmental forms,
utility agreements, deeds of trust, sales agreements, escrow instructions,
deeds, and all other documents required by Builder to develop the Project and
market the Homes.
5. Phase Budget.
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(a) Approval of Phase Budget. Prior to the commencement of any
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construction hereunder, Builder shall submit to Owner, for Owner's review and
reasonable approval, the proposed cost breakdown schedule for the development of
the first "Phase" of Homes (as defined in Paragraph 8 hereof) and related
improvements (the "Phase Budget" herein). Within Five (5) business days
following receipt by Owner of the proposed Phase Budget, Owner shall notify
Builder of Owner's approval or disapproval of the same, which approval Owner
shall not unreasonably withhold. Failure of Owner to timely notify Builder in
writing of the disapproval of any item in the Phase Budge, the Phase Budget as
submitted by Builder shall be deemed to be approved. If all or any portion of
the proposed Phase Budget is disapproved, the parties shall meet as soon as
reasonably practicable thereafter to endeavor in good faith to reach agreement
on the Phase Budget. Builder shall not make any commitment or contract which is
materially (more than 10%) more in cost for a line item than as set forth for
said line item in the Phase Budget as it may be amended from time to time
without the prior written consent of Owner which consent Owner shall not
unreasonably withhold. Builder shall submit to Owner a new Phase Budget for each
Phase of the Project which new Phase Budget shall be reviewed and reasonably
approved by Owner and followed by Builder as provided herein.
(b) Conformity with Phase Budget. Builder shall use its best
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efforts to cause each Phase to be completed in all reasonable respects in
conformity with the Phase Budget. Builder shall hold monthly job cost meetings
with representatives of the Owner and shall prepare monthly updates of the phase
Budget with variance explanations and Project cost reports showing actual
expenditures made during such month and from the beginning of the phase to date,
by category of expenditures, and a comparison thereof to budgeted expenses and
estimated cost of completion of the improvements.
6. Phase Schedule.
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(a) Approved Phase Schedule. Concurrently with the delivery of the
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proposed Phase Budge, Builder shall submit to Owner, for Owner's review and
reasonable approval, the proposed schedule for the design and construction of
the Phase, and the proposed schedule for the marketing and sales for the Homes
in the Phase (the "Phase Schedule"). The proposed Phase Schedule shall be
subjected to Owner's prior reasonable approval, which approval Owner shall not
unreasonably withhold, and the Phase Schedule shall be approved and updated for
each Phase in the same manner as the Phase Budget.
(b) Conformity with Phase Schedule. Builder shall use its reasonable
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best efforts to cause each Phase to be completed in all respects in conformity
with the Phase Schedule. Builder shall prepare and deliver to Owner monthly
progress reports setting forth the actual construction progress
achieved during such month and from the beginning of the Phase to date, and
comparison thereof to scheduled construction progress for the same period and
sales reports setting forth the actual sales consummated and escrows closed
during such month and from the beginning of the Phase to date.
7. Design of Homes.
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Builder has provided Owner with the design of the Homes it intends to
develop on the Property. Owner has reviewed the design of the Homes and has
agreed that Builder will construct and market the Homes pursuant to the design
therefor furnished by Builder to Owner.
8. Phasing of Development.
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Owner and Builder hereby agree that to minimize the financial risk to
Owner, Builder shall develop the Project in phases, with a phase typically (but
not limited to) approximately ten (10) to twenty (20) Homes (a "Phase" herein).
Accordingly, Builder shall submit all budgets and schedules required pursuant to
this Agreement on a Phase-By-Phase basis. Budgets and schedules shall set forth
Builder's estimates of the proper allocation to particular phases of those items
which impact more than one phase of the project.
9. Builder's Development and Construction Duties.
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Subject to government restrictions and approvals (entitlements), the
physical condition of the Property, the availability from the Owner of adequate
funds/financing, the posting by the Owner of all required bonds, deposits, and
other required forms of security, and the market for new single family houses of
the type and in the price range of the Homes, Builder shall use its reasonable
best efforts to continuously and diligently to do all things necessary to cause
the Homes and other improvements in the Project to built, and the constructed
Homes to be offered for sale and sold in accordance with the Phase Schedule and
the Phase Budget. Without limiting the generality of the foregoing, Builder's
duties are described more particularly below:
(a) Development. Builder, at the sole cost and expense of Owner,
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shall work with the Owner to obtain all appropriate governmental authorities
having jurisdiction over the Project to obtain, maintain and process all
necessary zoning, permits, approvals, licenses, entitlements and consents
required to develop the Project including without limitation, any necessary
building permits, grading permits, and development agreements regarding the
construction of or funding of the Homes with the appropriate governmental
entities. In obtaining such zoning, permits, approvals, licenses, entitlements
and consents, Builder shall, at the sole cost and Expense of Owner, work with
the Owner to prepare and process as necessary all environmental impacts reports,
bonds, utility agreements, maps, studies, drawings, applications, and other
necessary or appropriate items of every description. Applications for approval
of licenses, permits, subdivision maps, bond and utility agreements shall be in
the name of and approved by Owner. Owner and Builder shall fully cooperate with
each other to obtain all such items required to develop the Project and Owner
shall promptly execute all documents and agreements required by Builder in
connection therewith.
(b) Construction. Builder shall act as the general contract for the
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construction of the Project and, as such shall be responsible for the following:
(i) Builder shall furnish or arrange for all consultants, skills
labor, materials, supplies, equipment, services, machinery, tools and other
items of every description reasonably required for the prompt and efficient
construction of the Homes and other improvements in the Project in a good and
workmanlike manner and substantially in accordance with the current Phase
Budget:
(ii) Builder shall enter into contracts with such subcontractors
material suppliers as are necessary to cause the Homes to be trusted
substantially in accordance with this
Agreement. All such acts shall be entered into by Builder and shall specifically
provide (x) Owner is a third-party beneficiary thereunder (y) at any time may
request any information it deems necessary from the contractors and such
information will be provided within Five (5) business days and (z) in the event
Builder's involvement in the Project terminates, the subcontractor will, upon
Owner's request, recognize Owner as the successor-in-interest to Builder under
the subcontract. Builder shall require all subcontractors to obtain and maintain
at all times during commercial general liability policy on a primary and non-
contributing basis on which the Owner and Builder shall require all
subcontractors to carry workers compensation coverage on a basis consistent with
Builder's customary practices as may change from time to time; and
(iii) Builder shall cause the Project to be constructed,
substantially in accordance with all governmental requirements and existing
plans and specifications as are approved by Owner.
(c) Bonds and Deposits. Builder shall prepare all necessary documents
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and instruments required for the posting of any bonds, letters of credit,
deposits or other forms of security required by any governmental entity or
utility in connection with the project. Builder shall prepare any and all
deposit agreements of the deposits in a timely fashion. Owner shall furnish, at
its sole cost and expense, all bonds, letters of credit, deposits or other forms
of security, required of any governmental entity or utility with respect to the
Project. Builder shall request, tack and cause any bonds, letters of credits,
deposits or other forms of security that have been posted by Owner in favor of
any governmental entity or utility in connection with the Project to be
exonerated when all obligations thereunder are satisfied. Builder shall
maintain a schedule of such security and assess the timing for such exoneration
and shall prepare all necessary documents and instruments required or the timely
exoneration of same.
(d) Warranties and Customer Service. In consideration for the warranty
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fee paid to Builder pursuant to Paragraph 27(d) hereof, Builder shall provide
and administer the warranty and customer service programs with respect to the
Project and for the Homes constructed and sold hereunder. In connection
therewith, Builder shall use all reasonable efforts to enforce the warranty
provisions of any subcontractors so that the subcontractors thereunder are
required to perform warranty work in accordance with the terms of their
respective contracts. To the extent no performed by a subcontractor at its cost
pursuant to a subcontract, Builder shall, at the sole cost and expense of
Builder, (either directly or through the engagement of subcontractors) provide
and administer all required warranty and customer service work. The performance
of such warranty work shall be conducted in accordance with the Builder's
customer service program, as such program may be established and modified by the
Builder during the term of this Agreement.
10. Builder's Sales Duties.
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(a) Development and Implementation of Sales Program. Promptly
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following the execution of this Agreement, Builder shall develop a program for
selling the Homes and shall arrange for the construction, preparation, and
availability of such models and other marketing sales tools and materials as
shall be necessary to such program. Builder shall deliver a schedule of proposed
pricing and plotting mixes for the Homes to Owner for its prior reasonable
approval. Based on the recommendation of Builder, Owner shall approve a range of
sales prices for the Homes and Builder is authorized to sell such Homes for a
price within such range. A Home may not be sold below the established sales
price without the prior reasonable consent of Owner. Builder shall, at the sole
cost and expense of Owner, construct and maintain both the interior and exterior
of the model Homes, including all decorating and landscaping, hold a Grand
Opening for the Project, establish the sales program, advertise the Project in
such media as the Builder may determine provide appropriate signage for the
Project, and prepare all sales tools, including allowances and other public
relations activities shall be subject to Owner's prior obligations, Builder has
proposed and Owner has approved of the engagement by Builder of Roddel &
Associates ("Sales Agent" herein). The Sales Agent Shall assist Builder in
marketing and selling the Homes. Every cost and expense of marketing the
construction, landscaping, and decoration o the model complex, holding a Grand
Opening for the
Project, Signage, advertising, developing and printing marketing brochures,
sales contracts and materials, and constructing and maintaining an on-site sales
office. Only the cost of all brokerage fees and sales commissions to sell the
Homes due to the dales personnel of Builder and Sales Agent shall be paid solely
by Builder, but all commissions due to third parties shall be paid by Owner. The
Sales Agent's services shall include:
(i) Providing at its sole cost all on-site sales staffing as
required, provided, however, that Owner will permit the Sales Agent to employ
members of Owner's and/or Builder's existing sales staff;
(ii) Preparing at its sole cost and submitting to Owner monthly
competitor reports and other outside market studies to review pricing,
incentives, absorption rates, demographics and the like:
(iii) Assigning a sales manager employed by Sales Agent to the
Project who will act as a liaison between Sales Agent and the on-conducted by
the Sales Agent at the sole expense of Sales Agent;
(iv) Sales Agent will strategically advertise the Project. Sales
Agent will conduct periodic advertising meetings and coordinate, supervise, and
furnish the advertising agency with advertising direction and focus. Actual
advertising costs and expenses will be subject to Owner's prior reasonable
approval and will be Owner's sole cost and responsibility. Ad placement will be
handled by Builder's or Sales Agent's account manager through the advertising
agency. A reputable and professional advertising firm shall be retained by
Builder's and/or Sales Agent in to assist with marketing and advertising the
Project;
(v) A weekly sales report will be furnished showing daily traffic,
media origin, and sources of the sales consistent with Builder's form for such
report as it may change from time to time.
(vi) Sales Agent personnel will be assigned to organize and handle
the staffing, selection, and purchase of all standard design center option
equipment and promote the design center sales (Builder will coordinate and
provide for the installation of all such design center equipment in the
Homes); and
(vii) During the term of this Agreement, Sales Agent, acting under
the direction and control of Builder, shall act as the sales agent for the
Homes. Builder shall cause Sales Agent to comply with all requirements under
the California Real Estate Law.
(b) Escrow Coordination Program. Promptly following the execution of this
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Agreement, Builder shall establish an escrow program for processing and closing
Home sale escrows in coordination with Builder's customer/homeowner warranty
service department. The escrow coordination program shall also coordinate
and/or provide sources of end loan financing for the Home buyers.
(c) Builder's Role in Sales Activity. In addition to any duties relating
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to the sale of Homes set forth elsewhere in this Agreement, Builder shall
perform each of the following:
(i) Supervision of Sales Activity. Builder shall use its
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reasonable best efforts to ensure that all sales activities, including all
activities of the Sales Agent and its personnel, are supervised and conducted in
a manner that complies with this Agreement and all applicable laws and
regulations;
(ii) Review and Execution of Sales Agreements. Salespersons
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shall be authorized only to obtain offers from prospective buyers of the Homes
and shall have no authority to accept such offers or enter into binding
agreements for the sale of the Homes. A senior executive officer
of Builder shall be responsible for reviewing and approving each and every sales
agreement, and each sale shall be effected using only those forms of sales
agreements and other documents previously approved by both Builder and Owner. If
a sales agreement for a Home that is reviewed by Builder is in a form and
contains only those terms that have been approved by Owner, and if Builder
believes in good faith that the sale transaction proposed by such sales
agreement should be entered into by Owner, then one of the above-described
senior executive officers of Builder acting as an agent of Owner, shall execute
such sales agreement on behalf of Owner; and
(iii) Escrow Instruction. The persons who are authorized to
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execute sales agreements on behalf of Owner shall also be authorized to execute
escrow instruction on behalf of Owner to effectuate the closing of sales of the
Homes to buyers. The general form of escrow instructions to be used shall be
approved by both Builder and Owner prior to its use. Builder shall designate the
escrow holder for all Home sales. While Builder may recommend a title insurance
company to the Home buyer, all title insurance policies to be issued in
conjunction with the sale of Homes shall be issued by a title company selected
by the Home buyer.
(d) Commissions Payable to Builder/Sales Agent. Except for Builder's
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compensation set forth in Paragraph 27(c) hereof, neither Builder nor Sales
Agent shall be entitled to commission or other compensation in connection with
their activities performed pursuant to this Agreement with respect to sales.
(e) Sales Representations. Builder, Sales Agent, and any sales
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persons shall be authorized only to make representations concerning the Project
or sale of the Homes that are approved by Owner. Builder shall be responsible
for closely monitoring the activities and performance of all salespersons.
11. Coordination with Owner's Bank.
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Builder acknowledges that Owner intends to obtain various loans from
various financial institutions (collectively "Bank" herein) in connection with
the development of the Project and Builder shall assist Owner to obtain all such
requires financing but shall have no direct financial obligation with respect
thereto. Builder shall review and become familiar with the terms and
obligations of these loans and shall develop the Project in a manner which
complies with all loan covenants in order to minimize Owner's exposure under
such loans (i.e., start restrictions, accelerated payoffs, standing inventory,
etc.) At the request of Owner or Bank, Builder shall, at the sole cost of Owner,
prepare proforma and actual cost, income, cash flow and other financial
projections and reports for the Project, including product line profitability
analysis and projections of return on cost. These projections shall be
supplemented and/or updated throughout the course of development to reflect any
major changes or deviations. Builder shall obtain the approval of Owner and
Bank prior to commencing the construction of any Homes. At Owner's request,
Builder shall prepare bank loan submissions and draw requests.
12. Operation and Quarterly Review Meetings.
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In addition to all other meetings to be held by Builder and Sales
Agent pursuant to this Agreement, Builder shall hold monthly operations meetings
with representatives of Owner. All meetings required hereunder between Owner and
Builder shall, unless otherwise approved by both parties, be held at the
principal executive office of Builder. Builder agreed to hold such other
meetings concerning the Project at such time as reasonably requested by Owner.
13. Compliance with Laws.
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Builder, its employees, agents, and subcontractors shall use its
reasonable best efforts to comply with all laws, ordinances and regulations,
permits, licenses and approvals, obtained from any governmental entity in
connection with the Project.
14. Inspections.
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Owner shall, at its sole cost and expense, have the right, but not the
obligation, to inspect the progress and quality of all work performed by, or
under subcontract to, Builder in connection with the Project, to require the
replacement of any defective or improper work, and to refuse payment of any
funds until such matters have been remedied. Inspections by Owner shall not in
any manner constitute Owner's approval or acceptance of the progress or quality
of the work. The failure of Owner to inspect shall not relieve Builder of its
duties under this Agreement.
15. Approvals by Owner.
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Owner shall have the right to generally review and reasonably approve
all aspects of the Project including, but not limited to, all contracts, plans,
specifications, designs and schedules and all amendments thereto and deviations
therefrom. In addition, all requests or applications, together with all
supporting documentation for governmental approvals or permits of any kind,
shall be submitted to, and approved by, Owner prior to filing with the
governmental agency, and Owner may request copies of all written communications
between Builder and the governmental agencies processing such requests or
applications. Builder shall immediately notify Owner in writing of any changes
to requirements, conditions, or entitlements being sought by any governmental
entity whether the change has been requested by the entity either orally or in
writing. Builder shall furnish all such items from time to time to Owner and, if
Owner fails to notify Builder in writing within Five (5) business days of
receipt of such item in question shall be deemed to be approved by Owner.
16. Land Maintenance and Protection.
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During the term of this Agreement, Builder shall, at the sole cost of
Owner, maintain the property free of weeds, debris, pests and toxic or hazardous
substances with the exception of what is legal, reasonable, sufficient, and
prudent to operate equipment to construct the contemplated improvements thereon.
In addition, Builder shall, at the sole cost and expense of Owner, at all times
take such actions as are reasonably necessary to protect the Project and all
improvements thereon, whether or not completed, from being damaged by the work
of Builder or any subcontractor or other persons or cause including, but not
limited to, vandals and the elements.
17. Liens.
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Provided that Owner has provided Builder with sufficient funds to
develop the Project, Builder shall not suffer or permit to be enforced against
the Property of any part thereof, any mechanics', laborers', materialmen's,
contractors', subcontractors', or any other liens, except to the extent caused
solely by a default of Owner, arising from or any claim for damages growing out
of any work or construction or improvement in connection with the Project or
except for a bona fide dispute between Builder and subcontractor which Builder
may, but is not obligated to, bond against.
18. Ownership of Plans and Materials.
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As between Owner and Builder, all plans and specifications and all
marketing and sales materials, including advertising, signs, and promotional
materials prepared for and/or used in connection with the Project by or for
Builder shall, at all times, be solely the property of Builder. Builder shall,
however, deliver to Owner all advertising, sales materials, and the like which
relate only to the Project and which Builder cannot use on its other projects.
All consultants contracts shall provide that Owner is entitled to received from
the consultant upon demand all work-product for the Project generated by the
consultant which is not otherwise the property of Builder. Upon the expiration
or earlier termination of this Agreement, Builder shall deliver immediately to
Owner all copies in Builder's possession of all such documents not owned by
Builder for Owner's use as it deems appropriate.
19. Builder As Agent for Limited Purposes.
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Builder and Owner acknowledge and expressly agree and Builder shall
not make and representations to the contrary, that (as provided in Paragraph 20
hereof) Builder is an independent contractor, and nothing contained in this
Agreement, unless expressly to the contrary, shall be construed as making
Builder or any other person the agent or employee of Owner, whether actual,
implied or apparent, or as authorizing Builder or any other persons to bind or
obligate Owner, or as making Owner responsible or liable for any of Builder's
acts or obligations under this Agreement. Notwithstanding the provisions of the
foregoing sentence, Builder is hereby designated as the limited agent of Owner
during the term of this Agreement, specifically and only to: (I) carry out its
obligations in connection with the development of the Project and the sale of
the Homes, (ii) execute notices of completion pertaining to the work to be
completed by Builder pursuant to this Agreement, (iii) execute agreements in
connection with the marketing and sales of the Homes, provided that the terms
and conditions of all such agreements are approved in advance in writing by
Owner, and (iv) obtain any bond exonerations and utility refunds or other
deposits.
20. Builder As Independent Contractor - No Interest in Property.
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Builder is entering into this Agreement not as a partner or agent
(except to the limited extent provided herein) of Owner, but as an independent
contractor to provide the services set forth in this Agreement. By entering into
this Agreement, Builder acknowledges that Builder is acquiring no rights
whatsoever in the Property and under no circumstances whatsoever will aquifer
any interest in the Property except as may result under California Civil Code
Sections 3109 through 3154 or other laws relating to the enforcement of rights
by mechanics, materialmen, contractors, and the like. In acknowledging that
Builder is acquiring nor rights whatsoever in the Property, and will, under no
circumstances acquire any interest in the Property other than under mechanics'
lien laws to the extent they are applicable, Builder shall not assert, in any
legal action or otherwise, any right or interest in the Property and will not
record any lis pendens or any similar notice or lien against the Property other
than as expressly allowed under the mechanics' lien laws. By entering into this
Agreement, Builder acknowledges that it is acquiring no rights whatsoever in the
total revenues from the Project (except to the extent to receive funds due to
Builder hereunder from the sale escrow upon the close thereof) and that Owner
has no obligation to keep and maintain such revenues in a separate account,
account for the Project revenues to Builder, deposit or invest the Project
revenues to earn interest thereon, or otherwise take any other action with
respect to the Project revenues whether or not such actions would benefit the
Builder.
21. Non-Discrimination.
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Builder shall comply with all laws that require Builder to be an equal
opportunity, non-discriminatory employer and shall comply with the federal and
state laws with respect to non-discrimination with respect to the sales of the
Homes. The Builder agrees that there shall be no discrimination against or
segregation of any person or group of persons on account of race, color,
religion, age, politics, physical handicap, place of residence, creed, sex,
sexual preference, marital status or national origin in connection with respect
to the construction of the Project and the sale of the Homes.
22. Competition.
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Until the sale escrow for the last of the Homes is closed or until
this Agreement is terminated if such termination occurs before the sale escrow
for the last of the Homes id closed, Builder and its affiliates shall not,
without the prior written approval of Owner, have any interest nor may it engage
in any other activities of any type, including, without limitation, (I) being a
general or limited partner in any partnership or a shareholder, officer or
director of any corporation, (ii) rendering advice or services to other
investors, and (iii) investing its own capitol or revenues with the capitol or
revenues of others in any fashion in any competing single family housing project
which is situated within a one (1) mile radius from
the center point of the Project. Such competitive activity shall include,
without limitation, activities in connection with the ownership, development,
operation, management, leasing, sale. and syndication of single family detached
residential houses within the radius.
23. Owner's Responsibility for Funding.
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Owner shall pay all of the costs, fees, expenses, taxes, debt service,
bond premiums, deposits, insurance premiums, brokerage commissions to unrelated
third parties, and the like which are in any way directly or indirectly related
to the ownership of the Property, the development and construction of the
Project, and the sale of the Homes (except for the overhead of Builder and the
fee of Sales Agent), including, but not limited to:
(a) All costs for architectural, legal (including the cost due to
Builder's counsel to draft this Agreement), accounting, engineering and other
consultant services.
(b) All costs for soil, geological, and toxic and hazardous waste
studies incurred by consultants and under contracts designated or approved by
Owner.
(c) All construction costs, including labor and material costs and
equipment rental and repair, and the costs to maintain the Project free of
weeds, debris, pests, toxic, or hazardous waste.
(d) All costs for on-tract construction superintendents during the
course of construction (including reasonable payroll and transportation costs,
if any).
(e) All costs of establishing, maintaining, and operating an on-
tract construction field office.
(f) All governmental licenses and fees relating to the Project.
(g) All marketing and advertising costs and cost of sale, including
but not limited to: the construction, landscaping, and decoration of the model
Home complex, holding a Grand Opening for the Project, signage, advertising
sales brochures, constructing and operating an on-site sales office (exclusive
of the cost of sales personnel), escrow and title charges, and other closing
costs, brokerage commissions to unrelated third parties, but excluding any
brokerage commissions to the personnel of Builder and/or Sales Agent, and the
cost of on-site salespersons (the cost of which shall be paid by Builder or by
Sales Agent).
(h) All premiums on any insurance required by Owner to be carried by
Builder (but excluding insurance relating to the general operation of Builder's
business, other insurance which is specified in this Agreement as a cost to be
paid by Builder, and worker's compensation insurance to cover Builder's
employees, except to the extent it covers on-tract employees), the specific
arrangements for which have been approved by Owner.
(i) All real property taxes and assessments which are due and
payable against the Property.
(j) All payments of principal, interest, loan fees, discounts, costs
and fees related to any financing obtained by Owner to fund the construction of
the Project and the sale of Homes.
(k) All bond premiums, deposits, security, and all other similar
costs or security required by any governmental entity, utility, or any other
entity which requires any such item with respect to the Project.
24. Disbursement of Funds.
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Disbursement of funds by Owner pursuant to this Agreement shall be
according to the system provided below.
(a) Application for Payment. On the first and fifteen of each month
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during the term of this Agreement, Builder shall submit to Owner's designated
superintendent for the Project an itemized application for payment ("Application
for Payment"). Each Application for Payment submitted to the superintendent
shall include a detailed statement of all costs and expenses incurred in
connection therewith, and copies of appropriate bills and invoices evidencing
the total amount expended, incurred or due to a subcontractor, materialmen, or
laborer for work done pursuant to t his Agreement or materials furnished or
incorporated in such work. The Application for Payment shall reflect bills
incurred in accordance with the construction payment schedule. The presentation
to the superintendent of such an Application for Payment shall constitute a
representation on the part of Builder that the costs specified therein have been
incurred properly in the development of the Project and in accordance with this
Agreement, and Owner shall be entitled to rely thereon. Along with the
Application for Payment, Builder shall furnish such additional items as required
by Bank.
(b) Operating Account. Owner shall deposit funds equal to the
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amount of the Application for Payment in an account (the "Operating Account")
within ten (10) days after Owner's superintendent's receipt and approval of such
Application for Payment. Builder shall prepare and deliver to Owner monthly
reconciliations for the Operating Account.
(c) Payment from Operating Account. Owner shall fund the Operating
-------------------------------
Account with at least Twenty Thousand Dollars ($20,000.00) and shall maintain
that amount in said Account. Builder shall be permitted to draw checks without
restriction from the Operating Account for payment of approved outstanding
bills. Builder may, without the prior approval of Owner, pay bills for the
Project provided, however, that no single xxxx paid by Builder from said Account
may be more than Five Thousand Dollars ($5,000.00). Payment of bills in excess
of that amount shall require the prior approval of Owner.
25. Payment of Costs by Builder.
----------------------------
Except as otherwise provided herein, the following items of cost shall
be borne solely by Builder and shall not be deemed a Project cost, and Builder
shall hold Owner free and harmless therefrom:
(a) All overhead Expenses of Builder including, without limitation,
salaries and other payments or benefits to principals, shareholders, officers,
employees, and agents and the cost of maintaining off-site offices and operating
Builder's business.
(b) All cost of accounting and accounting personnel employed by
Builder and used to maintain the books and records of all work performed
pursuant to this Agreement.
(c) Business licenses and fees of Builder, except as required
specifically for the Project by governmental entities having jurisdiction
thereof.
(d) Builder's workers compensation and employer liability insurance
(except to the extent it covers on-tract employees which shall be a cost of
Owner) and other costs for insurance not specifically required by Owner to be
carried in connection with the Project.
(e) All brokerage commissions or sale fees paid to Builder's
employees or Sales Agent.
26. Real Property Taxes.
--------------------
During the period of this Agreement, Owner shall pay all real property
taxes imposed against the Property so long as, and to the extent, the Property
is owned by Owner. Builder shall be required to request and, if possible.
obtain from the County Tax Assessor a builder inventory exclusion to preclude
the obligation to pay a supplementary tax xxxx during construction of the
Project.
27. Builder's Compensation.
-----------------------
Owner shall pay, or cause to be paid, to Builder the following
compensation which shall be the only compensation or consideration paid to
Builder for its services hereunder:
(a) Overhead Draw. To reimburse the Builder for all of the overhead
--------------
administrative expense it incurs in administering the development of the Project
and the marketing of the Homes, Owner shall pay Builder an overhead draw (the
"Overhead Draw" herein) in the amount of Three Percent (3.0%) of the gross sales
price of the Homes. Said Overhead Draw may initially be payable in advance in
equal monthly payments over Thirty (30) months commencing on December 1,1997,
computed on the project gross sales price of the Homes. Such Overhead Draw shall
initially be paid from cash available from the construction loan or other
Project financing with the balance of said Overhead Draw, if any, payable by
Owner as the Homes are sold. The monthly payment of t he Overhead Draw shall be
adjusted from time to time as necessary to reflect the actual gross sale prices
of the Homes.
(b) Development Fee. As compensation for Builder developing and
----------------
constructing the Project, Owner shall pay Builder a development fee (the
"Development Fee" herein) in the amount of Three Percent (3.0%) of the gross
sales price of the Homes. The Development Fee shall be paid by Owner to Builder
on a Home by Home basis at the close of escrow for the sale of each Home. The
Development Fee shall be paid to Builder from the net sales proceeds of each
Home otherwise payable to Owner from the sale escrow or, if there are not
sufficient proceeds available through the escrow to pay the Development Fee to
Builder, Owner shall concurrently with the close of sale escrow for each Home,
pay Builder the balance of the Development Fee due to Builder as a result of the
sale of said Home.
(c) Sales/Marketing Fee. As compensation for Builder selling and
--------------------
marketing the Homes, Owner shall pay Builder a sales/marketing fee (the
"Sales/Marketing Fee" herein) in the amount of Two Percent (2.0%) of the gross
sales price of the Homes. The Sales/Marketing Fee shall be paid by Owner to
Builder on a Home by Home basis at the close of escrow for the sale of each
Home. The Sales/Marketing Fee shall be paid to Builder from the net sales
proceeds of each Home otherwise payable to Owner from the sale escrow or, if
there are not sufficient proceeds available through the escrow to pay the
Sales/Marketing Fee to Builder, Owner shall concurrently with the close of the
sale escrow for each Home, pay Builder the balance of the Sales/Marketing Fee
due to Builder as a result of the sale fees due to Builder's employees or to the
Sales Agent or it's employees from the Sales/Marketing Fee and shall, except for
the costs to be paid by Owner as set forth herein, indemnify and hold Owner free
and harmless therefrom.
(d) Warranty Fee. To compensate Builder to assume the Home
-------------
warranty and risk, Owner shall pay Builder a warranty fee in the amount of Seven
Hundred and Fifty Dollars ($750.00) for each Home payable to Builder at the
close of the sale escrow of each home.
(e) Builder Design Center Fee. Builder will provide the services of
--------------------------
its design center to the buyers of the Homes who may use such services to
purchase flooring upgrades and other options to their respective Home that are
not available on the standard production Home. The services of the Builder
Design Center are anticipated to earn a net profit. Builder shall calculate on a
Home by Home basis, after deducting all direct and indirect costs incurred by
the Builder Design Center and its personnel to provide the requested upgrades
and options, the net profit, if any, earned by the Builder Design Center for
each Home (the "Builder Design Center Profit" herein). Owner and Builder hereby
agree that at the close of the
sale escrow for each Home. The payment of the Builder Design Center Profit shall
be shared by Owner and Builder by adjusting the net amount of the Development
Fee and Sales/Marketing Fee paid to Builder at the close of the sale escrow for
each Home.
28. Termination for Cause by Owner.
-------------------------------
In the event Builder is in default of any of its covenants, duties or
obligations hereunder and Builder fails to correct such default within a
reasonable time given the nature of the covenant, duty or obligation in question
(but no less than Thirty (30) days following written notice from Owner
specifying in reasonable detail such default), Owner shall have the right, at
its option, to terminate this Agreement for "cause" upon written notice to the
Builder. In the event Owner terminates this Agreement for "cause" pursuant to
this Paragraph, the following provisions shall apply:
(a) Builder's Compensation. In the event this Agreement is
----------------------
terminated by Owner for "cause" pursuant to this Paragraph 28, Builder shall
have no right to receive any portion of the fees set forth in Paragraph 27 that
have not been paid to it as of the date of termination. Builder shall have no
right after such termination to enter upon the Property, except for the sole
purpose of collecting property of Builder and the personal effects of Builder's
employees.
(b) Right of Entry. In addition to Owner's rights pursuant to
--------------
Paragraph 33, Owner may take possession of and use, in completing the Project or
any portion thereof, such materials, machinery, tools, equipment, appliances,
and other items of personal property as may be located on the Property upon such
termination for "cause" which have been paid for by Owner or which are not
timely removed by Builder, free of charge and without liability to Builder for
any use or damage.
29. Termination Without Cause by Owner.
-----------------------------------
Notwithstanding any other provision of this Agreement, Owner shall
have the right to terminate the Agreement without cause in Owner's sole
discretion, upon Ninety (90) days written notice to Builder. In the event Owner
terminates this Agreement pursuant to the Paragraph 29, Owner shall remain
obligated to Builder for all fees which would be earned by Builder hereunder
which fees shall by paid upon the closing of the sale escrow for each and all of
the One Hundred and Thirty-Nine (139) Homes. Owner shall pay such fees to
Builder in accordance with the terms of this Agreement, provided, however, all
unpaid fees shall be due and payable in full, irrespective if the Homes have
been constructed or sold, One (1) year from the date of termination by Owner
without cause under this Paragraph 29. Owner shall provide Builder with
reasonable access to the Property and all portions of the Project for the
purposes of removing its movable personal property as described in Paragraph 33
In the event Builder does not remove an item of its movable personal property
with Thirty (30) days following such termination, in addition to Owner's rights
pursuant to Paragraph 33, Owner shall have the right to use such property in
completing the Project or any portion thereof, free of charge and without
liability to Builder for the use thereof or damage thereto.
30. Termination for Cause by Builder.
---------------------------------
In the event Owner defaults and fails to cure the default under this
Agreement within a reasonable time after written notice from Builder specifying
in reasonable detail such default (but in no event more than Five (5) business
days for the payment of money and no more then Thirty (30) days for all other
duties of Owner), if Builder is not also in default, Builder shall have the
right, at its option, to terminate this Agreement for "cause" upon written
notice to Owner. In the event Builder terminates this Agreement for "cause"
pursuant to this Paragraph 30, the rights of Owner and Builder shall be as set
forth in Paragraph 29.
31. Termination Due to Lack or Performance.
---------------------------------------
(a) Owner and Builder acknowledge that it is in the best interest of
both parties that this Agreement remain in force provided that Builder is able
to develop and successfully market an acceptable number of Homes over a given
period of time. Accordingly, if, due to no fault of either Owner or Builder,
Builder is not able to successfully develop and close the sale escrow on at
least eighteen (18) Homes during any six calendar month period commencing with
the first full calendar month after the close of the sale escrow for the first
Home sold hereunder, then upon the written notice from one party to the other,
either party may terminate this Agreement due to lack of performance.
(b) In the event that either party cancels this Agreement for lack of
performance pursuant to Paragraph 31(a) above, Builder agrees to complete the
construction of any Homes then under construction and to market all such Homes.
Owner and Builder agree that all of the terms and conditions hereunder,
including the payment of all fees due to Builder, shall continue in full force
and effect until the close of the sale escrow for the last of such Homes. At
that time, this Agreement shall terminate and neither party shall have any
further obligation to the other hereunder.
32. Owner's Unfettered Right to Deal With the Property Upon Any
-----------------------------------------------------------
Termination.
------------
Builder acknowledges that, upon any termination of this Agreement
whether with or without cause, Owner shall have the right to deal with the
Property in any way it desires including, but not limited to, selling all or a
portion of the Project or any of the Homes whether or not completed or Property
completely changing any existing plan for the development of the Property, or
postponing or terminating any development of the Property. Builder acknowledges
that it shall have no right whatsoever to dictate or provide any input regarding
the development of the Property after any termination of this Agreement.
33. Removal by Builder.
-------------------
Upon termination of this Agreement, Builder shall cease and quit all
activities and entry upon the Property. Upon such termination, Builder shall,
without expense to Owner, remove or cause to be removed from the Property all
movable signs, furnishings, equipment, trade fixtures, merchandise and other
movable personal property owned by Builder and installed or placed thereon.
Builder shall repair all damage to the Property and remove debris and rubbish
resulting from such removal. If Builder fails to remove any of such signs,
furnishings, equipment, trade fixtures, merchandise or other personal property
within Thirty (30) days after such expiration or termination of this Agreement,
then Owner may, at its sole option: (I) deem any or all of such items abandoned
as the sole property of Owner, or (ii) remove any or all of such items and
dispose of same in any manner, or store same for Builder, in which event the
expense of such disposition or storage shall be borne by Builder and shall be
immediately due and payable and Owner may, at its option, deduct such expenses
from any amount due and payable to Builder.
34. Other Rights Upon Termination.
------------------------------
In the event of any termination of this Agreement whether with or
without cause, Owner shall be free to make any changes and arrangements as Owner
deems appropriate in order to obtain completion of the duties which are the
obligation of Builder under this Agreement. Upon any termination of this
Agreement, Owner and Builder shall be relieved of further performance under this
Agreement except as expressly set forth and except that a termination shall in
no way affect Builder's indemnity obligations or other legal liability to Owner
or invalidate, reduce or restrict the rights of Builder or Owner to pursue
remedies for any branch of performance of wrongful act, error or omission
occurring prior to the termination, regardless of whether the non performance,
act, error or omission was known by the aggrieved party at the time of
termination. In addition, Builder shall perform all obligations under this
Agreement relating to the cessation and quitting of activities; entry upon the
Property; and turnover of all documents and other materials relating to the
Project or the sale of the Homes, regardless of whether Builder believes the
termination is proper or justified.
35. Insurance.
----------
(a) Owner at its sole cost and expense shall at all times hereunder
cause to be issued the insurance coverage hereinafter set forth from companies
reasonably acceptable to both Owner and Builder. If at any time such required
insurance coverage is not timely provided by Owner or such required coverage
lapses, Builder, at the sole cost and expense of Owner, may cause such required
insurance to be issued. Al policies of insurance shall be in such amounts as
reasonably required by Builder, and shall include Builder as an additional
insured, certificates of the required insurance coverage shall be delivered by
the insurance carrier to Builder promptly following the issuance of an insurance
policy and all such policies shall provide that the coverage thereunder cannot
be canceled or diminished upon not less than Thirty (30) days prior written
notice thereof delivered to Builder by certified mail.
(b) Owner shall provide all insurance coverage as may from time to
time be reasonably be requested by Builder or by Bank to protect the interests
of Owner, Builder, and/or Bank, or any other lender which makes a loan to the
Project, and any other person or entity who may from time to time have an
insurable interest in the Project. Such required insurance shall include, but
not be limited to:
(I) All risks insurance including, without limitation, fire,
earthquake (as may be required by a third party lender), theft, and the like
covering the full insurable value of the constructed improvements to the
Project;
(ii) General Liability insurance with coverage for any one person
or entity from one insured event of not less than Two Million Dollars
($2,000,000) and a total policy limit for all claims from all insured events of
not less than Five Million Dollars ($5,000,000);
(iii) Xxxxxxx'x compensation insurance; and
(iv) Non-owned automobile insurance.
(c) All insurance proceeds from any claim under an insurance policy
maintained hereunder shall be delivered to Builder which shall distribute or use
such proceeds to cover, pay, or reimburse the person or entity which suffered
the loss. Notwithstanding the foregoing, insurance proceeds from all risks
insurance shall be distributed and utilized as required by any construction
lender or other lender who has an insurable interest in the Project.
36. Builders Representations and Warranties to Owner.
-------------------------------------------------
In addition to any other representations and warranties of Builder
contained in this Agreement, Builder warrants and represents that the following
facts are true and correct as of the date of this Agreement, and Builder's
making of each request for disbursement of funds by Owner pursuant to Paragraph
24 shall constitute a new representation and warranty that the following facts
remain true and correct as of the date of the request, unless previously
disclosed in writing by Builder to Owner. These representations and warranties,
and any liability of Builder arising therefrom, shall survive any termination of
this Agreement.
(a) Authority. Builder has the full right and authority to enter
----------
into this Agreement and to perform all of Builder's obligations hereunder, and
each of the persons signing this Agreement on behalf of Builder is authorized to
do so, and the signature or consent of no other person or entity is required.
(b) Licenses Held by Builder. To the extent required by law in
-------------------------
order to fully perform its obligations pursuant to this Agreement, Builder is
licensed and in good standing as a building contractor under the laws of the
State of California and Builder holds all other licenses and is in compliance
with all other laws and regulations which may affect Builder's ability to
perform pursuant to this Agreement.
(c) Licenses Held by Sales Agent. To the extent required by law
-----------------------------
in order to fully perform its obligations pursuant to this Agreement, Sales
Agent is licensed and in good standing as a real estate broker under the laws of
the State of California.
(d) Insolvency. Builder has not: (I) made a general assignment
-----------
for the benefits of creditors; (ii) filed any voluntary petition in bankruptcy
or suffered the filing of an involuntary petition by Builder's creditors; (iii)
suffered the appointment of a receiver to take possession of all of
substantially all of Builder's assets; or (iv) suffered the attachment or other
judicial seizure of all, or substantially all, of Builder's assets.
(e) No Defaults by Builder. There have been no acts or omission of
-----------------------
Builder which would constitute a default under this Agreement.
37. Owner's Limited Liability.
--------------------------
Owner shall not be liable to Builder for any loss, damage, injury, or
claim of any kind or character to any person or property , except to the extent
caused by the willed misconduct of Owner or its officers, directors, affiliates,
or employees, arising from or caused in connection with the development of the
Property or the construction or sale or other conveyance of Homes.
38. Builder's Liability Indemnity.
------------------------------
Builder hereby indemnifies and shall defend and hold harmless Owner,
and its officers, directors, affiliates, partners, agents, employees, licensees,
invitees, and contractors against all lost, expense (including, but not limited
to, attorneys fees and court costs), damage, injury, liability, cause of action
or claim of any kind or character to any person or property due in any part to
the gross negligence, willful misconduct, or material breach of any agreement by
Builder with respect to the obligations of Builder to develop the Project and
market the Homes as provided herein. The indemnity and agreement to defend and
hold harmless by Builder are intended to apply with respect to loss, expense,
damage, injury, or claim arising during the terms of this Agreement, or
following any expiration or other termination of this Agreement and shall
survive the expiration or other termination of this Agreement.
39. Confidentiality and Restrictions on Disclosure.
-----------------------------------------------
Builder and Owner shall not, unless it has obtained the prior written
consent of the other party, release, publish or otherwise distribute, and shall
not authorize or permit any person or entity to release, publish or distribute,
any information regarding the financial arrangements between Owner and Builder
pursuant to this Agreement, any marketing studies for the Project, and financial
information regarding the construction of the Project or the sale of the homes,
and this Agreement, except as shall be required to perform the disclosing
party's obligations hereunder or as may be required by law. Owner acknowledges
that Builder may have to file this Agreement with the Securities and Exchange
Commission.
40. Assignment
----------
Builder may not encumber, assign, or otherwise transfer this Agreement
or any right or interest hereunder without the prior written consent of Owner.
Builder acknowledges that in entering into this Agreement, Owner has bargained
for the services specifically of Builder, and therefore, Builder agrees that
Owner may for any reason on Owner's sole discretion, withhold its consent to any
assignment or other transfer of any rights of Builder hereunder except the right
to received the monies set forth in Paragraph 27 hereof which Builder may assign
without restriction.
41. Notices.
-------
All notices, requests, demands, and other communications required to
or permitted to be given under this Agreement shall be in writing and shall be
conclusively deemed to have been duly given (I) when hand delivered to the other
party; or (ii) when received when sent by facsimile to the facsimile number set
forth below (provided, however, that notices given by facsimile shall not be
effective unless either (x) a duplicate copy of such facsimile notice is
promptly given by depositing same in a United States post office with first-
class postage prepaid and addressed to each party hereto as set forth below, or
(y) the receiving party delivers a written confirmation of receipt for such
notice either by facsimile or any other method permitted hereunder;
additionally, any notice given by facsimile shall be deemed received on the next
business day if such notice is received after 5:00 p.m. (recipients time) or on
a non-business day); or (iii) three (3) business days after the same have been
deposited in a United States post office with first-class or certified mail
return receipt requested with postage prepaid and addressed to each other party
hereto as set forth below; or (iv) the next business day after same have been
deposited with a national overnight delivery service delivery charge prepaid,
addressed to each other party as set forth below with next-business-day delivery
guaranteed. Each party shall make an ordinary, good faith effort to ensure that
any person to be given notice actually receives such notice. A party may change
or supplement the addressees and facsimile numbers given below, or designate
additional addresses and facsimile numbers, by giving each other party hereto
written notice of the new address and/or facsimile number in the manner set
forth below. All such communications shall be addressed as follows:
To Builder: Inco Homes Corporation
X.X. Xxx 000
Xxxxxx, XX 00000
Attn: Xxx X. Xxxxxx, Chairman
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxxx X. Xxxxx, Xx., Esq.
00000 Xxxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxx Xxxxx Xxxxxxx, XX 00000
To Owner: Capital Mutual Xxxxxx Valley, LLC
c/o Xxxx X. Xxxx
000 X. Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
42. Applicable Law - Consent to Jurisdiction and Venue.
---------------------------------------------------
This Agreement shall in all respects be governed by the laws of the
State of California which are applicable to agreements executed and to be fully
performed therein. The parties further agree that all actions or proceedings
arising in connection with this Agreement shall be litigated or arbitrated
exclusively either in the State or the Federal Courts or by an arbitrator, as
appropriate, located in the County of San Bernardino, State of California which
courts shall have personal jurisdiction over the parties hereto.
43. Severability.
-------------
No term, condition or provision of this Agreement shall be interpreted
or construed to require the performance of any act, duty or obligation that is
contrary to law. If any term, condition or provision of this Agreement is
determined to be illegal, unenforceable or invalid in whole or part for any
reason, such provision shall be stricken from this Agreement to the limited
extent necessary to bring this Agreement within the requirements of the law and
this Agreement to the fullest extent practical shall otherwise be deemed legal
and valid and shall continue in full force and effect.
44. Further Assurances.
-------------------
Each of the parties hereto shall execute and deliver any and all
additional papers, documents and other assurances, and shall do any and all acts
and things reasonably necessary in connection with the performance of their
respective obligations hereunder and to carry out the intent of the parties
hereto.
45. Successors and Assigns.
-----------------------
All of the terms and provisions contained herein shall inure to the
benefit of and shall be binding upon the parties hereto and their respective
heirs personal representatives, successors and assigns.
46. Entire Agreement.
-----------------
This Agreement constitutes the entire understanding and agreement of
the parties and any and all prior agreements, understandings, or representations
and/or warranties of any kind are hereby terminated and canceled in their
entirety and are of no further force or effect. No amendment, change or
modification of this Agreement shall be valid unless such document is in writing
and signed by all of the parties hereto.
47. Attorney's Fees.
----------------
In the event any action of any type, including, but not limited to,
suit, collection, counterclaim, appeal, arbitration and/or mediation, is
instituted or brought by a party to enforce any of the terms and provisions
hereof and/or to obtain a declaratory judgment with respect to the status of his
rights hereunder (collectively and "Action" herein), the losing party shall pay
the prevailing party all costs, expenses and fees whatsoever incurred by the
prevailing party with respect to bringing and prosecuting such Action (including
and appeal) and enforcing and judgment, order ruling, or award granted
thereunder, including reasonable attorney's fees and court costs as the Court or
the arbitrator may award.
48. Captions.
---------
The captions appearing at the commencement of the paragraphs hereof
are descriptive only and for convenience in reference. Should there be any
conflict between any such caption and the paragraph at the head of which it
appears, the paragraph and not such caption shall control and govern in the
construction of this Agreement.
49. Incorporation of Exhibits.
--------------------------
All exhibits attached hereto and referred to herein are incorporated
in this Agreement as though fully set forth in the body hereof.
50. Waiver.
-------
No consent to any action, waiver of any provision, or waiver of any
breach of any duty or obligation hereunder shall constitute a waiver of any
other provision or consent to any other action or subsequent breach, whether or
not similar. No waiver or consent shall constitute a continuing waiver or
consent or commit a party to provide a waiver in the future except to the extent
specifically set forth in writing. Any waiver given by a party shall be null and
void if the party requesting such waiver has not provided to the waiving party a
full and complete disclosure of all material facts relevant to the waiver
requested.
51. Third Party Beneficiaries.
--------------------------
This Agreement and every provision herein is made exclusively for the
benefit of the parties hereto and their respective successors and permitted
assigns. Nothing in this Agreement is intended to confer any rights or remedies
under or by reason of this Agreement on any persons other than the parties to it
and their respective successors and permitted assigns; provided, however,
nothing in this Agreement is intended to relieve or discharge the obligations or
liability of any third person to any party to this Agreement.
52. Time of the Essence.
--------------------
Time is of the essence with respect to the performance of all of the
duties and obligations set forth in this Agreement.
53. General Interpretation.
-----------------------
The terms of this Agreement have been negotiated by the parties hereto
and the language used in this Agreement shall be deemed to be the language
chosen by the parties hereto to express their mutual intent. No rule of strict
construction will be applied against any party hereto. This Agreement shall be
construed equally against all parties hereto without regard to any presumption
or rule requiring construction against the party who drafted this Agreement or
any portion thereof.
54. Representation of Authority of Signatories.
-------------------------------------------
Each person signing this Agreement represents and warrants to each
other party hereto that he or she is duly authorized and has legal capacity to
execute and deliver this Agreement. Each party further represents and warrants
to each other party hereto that the execution and delivery of this Agreement and
the performance of such party's obligation hereunder have been duly authorized
and that the Agreement is a valid and legal agreement binding on such party and
enforceable in accordance with its terms.
55. Execution of Agreement.
-----------------------
Each party has been represented by counsel in the negotiation and
execution of this Agreement. This Agreement was executed voluntarily without any
duress or undue influence on the part of or on behalf of the parties hereto. The
parties acknowledge that they have read and understood this Agreement and its
legal effect. Each party acknowledges that it has had a reasonable opportunity
to obtain independent legal counsel for advice and representation in connection
with this Agreement.
56. Arbitration.
------------
The parties shall, at the request of wither party, submit any dispute
concerning the interpretation of or the enforcement of rights and duties under
this Agreement to final and binding arbitration pursuant to the rules of the
American Arbitration Association. At the request of any party, the arbitrators,
attorneys, parties to the arbitration, witnesses, experts, court reporters, or
other persons present at the arbitration shall agree in writing to maintain the
strict confidentiality of the arbitration proceedings. Arbitration shall be
conducted by a single, neutral arbitrator, or, at the election of any party,
three neutral arbitrators, appointed in accordance with the rules of the
American Arbitration Association. The award of the arbitrator(s) shall be
enforceable according to the applicable provisions of the California Code of
Civil Procedure. The arbitrator(s) may award damages and/or permanent injunctive
relief, but in no event shall the arbitrator(s) have the authority to award
punitive or exemplary damages. If proper notice of any hearing has been given,
the arbitrator(s) will have full power to proceed to take evidence or to perform
any other acts necessary to arbitrate the matter in the absence of any party who
fails to appear.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Development and Marketing Agreement as of the day and year first above written.
Inco Homes Corporation Capital Mutual Xxxxxx Valley, LLC
a Delaware Corporation a California Limited Liability Company
By:___________________________ By:__________________________________
Xxx X. Xxxxxx, Xxxx X. Xxxx
Chairman of the Board Manager
("Builder") ("Owner")
EXHIBIT "A"
-----------
THE LAND REFERRED TO IN THIS REPORT IS LEGALLY DESCRIBED AS FOLLOWS:
PARCEL A - XXXX 0 XXXXXXX 000, XXXXXXXXX, XX XXXXX XX. 00000-0, IN THE CITY OF
XXXXXX VALLEY, AS SHOWN BY MAP ON FILE IN BOOK 197, PAGES 48 THROUGH 56,
INCLUSIVE, OF MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
