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EXHIBIT 10.48
DEVELOPMENT AND MARKETING AGREEMENT
This DEVELOPMENT AND MARKETING AGREEMENT is made and entered into as
of this 15th day of November 1996 by and between VICTORVILLE 163 PARTNERS,
L.P., a California limited partnership ("Owner" herein) and INCO HOMES
CORPORATION, a Delaware corporation ("Builder" herein) with reference to the
following facts:
A. Owner has unencumbered fee title to that certain
_________________ acre parcel of undeveloped real property located in
Victorville, California, the legal description of which is set forth on Exhibit
A (the "Property" herein). The Property has been subdivided into One Hundred
and Sixty-Three (163) 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 Sixty-Three (163) 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. Since 1987, Builder has developed and sold over 5,500
single family, detached homes in the Xxxxxx Valley which includes the City of
Victorville.
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.
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.
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
materials, 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.
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3. Term.
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.
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.
(a) Approval of Phase Budget. Prior to the commencement
of any 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 Budget, 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 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 expenditure, and a comparison thereof to budgeted expenses
and estimated cost of completion of the improvements.
6. Phase Schedule.
(a) Approved Phase Schedule. Concurrently with the
delivery of the proposed Phase Budget, 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 subject 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 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.
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7. Design of Homes.
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
(the Homes will be substantially similar to the homes currently being developed
and sold by Builder known as "Pride at Wildrose") 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.
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.
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 be
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, 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 impact 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
contractor for the 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 and material suppliers as are necessary
to cause the Homes to be constructed substantially in
accordance with this Agreement. All such contracts
shall be entered into by Builder and shall
specifically provide that (x) Owner is a third-party
beneficiary thereunder (y) at any time Owner may
request any information it deems necessary from the
subcontractors 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
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successor-in-interest to Builder under the
subcontract. Builder shall require all
subcontractors to obtain and maintain at all times
during performance of work on the Project an
occurrence form commercial general liability policy
on a primary and non-contributing basis on which the
Owner and Builder are named as additional insureds.
In addition, 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 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 in Owner's name and shall use its
reasonable best efforts to secure reimbursement 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, track
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 for the timely exoneration of same.
(d) Warranties and Customer Service. In consideration
for the warranty 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 not 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.
(a) Development and Implementation of Sales Program.
Promptly 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
promotional/advertising material, and disclaimer and disclosure programs.
Builder allowances and other public relations activities shall be subject to
Owner's prior review and reasonable approval. In connection with Builder's
sales program obligations, Builder has proposed and Owner has approved of the
engagement by Builder of the ______________ ("Sales Agent" herein). The Sales
Agent shall assist Builder in marketing and selling the Homes. Every cost and
expense of marketing the Homes (except sales commissions) shall be paid solely
by Owner including, the construction, landscaping, and decoration of 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
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the sales 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-site sales personnel.
All training and motivation will be conducted by the
Sales Agent at the sole expense of the 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 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 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 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 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 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
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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 Instructions. The persons who are
authorized to execute sales agreements on behalf of
Owner shall also be authorized to execute escrow
instructions 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 compensation set forth in Paragraph 27(c) hereof, neither Builder
nor Sales Agent shall be entitled to commissions 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 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.
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 required 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.
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 agrees to hold such
other meetings concerning the Project at such time as reasonably requested by
Owner.
13. Compliance with Laws.
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.
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14. Inspections.
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.
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, the item in question shall be
deemed to be approved by Owner.
16. Land Maintenance and Protection.
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.
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 or 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.
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 receive 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.
Builder and Owner acknowledge and expressly agree, and Builder
shall not make any representations to the contrary, that (as provided in
Paragraph 20 hereof) Builder is an independent contractor, and nothing
contained in
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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 person 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 sale 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.
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
acquire 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 no 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.
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
sale 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.
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 is 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 capital or revenues with the capital 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.
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
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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 soils, 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 taxes 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 costs 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 the 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.
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 fifteenth
of each month 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 this 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,
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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 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 Fifty Thousand Dollars ($50,000.00) 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 Ten Thousand Dollars ($10,000.00). 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 expenses 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 ___________ 1, 199__, computed on the projected 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
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of said Overhead Draw, if any, payable by Owner as the Homes are sold. The
monthly payment of the 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 the 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 of said Home. Builder shall pay the fee
of the Sales Agent and all other brokerage fees due to Builder's employees or
to the Sales Agent or its 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,
they shall equally share (50% - 50%) the Builder Design Center Profit for that
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 not 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 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,
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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 this 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 this Paragraph 29, Owner shall
remain obligated to Builder for all fees which would be earned by Builder
hereunder which fees shall be paid upon the closing of the sale escrow for each
and all of the One Hundred and Sixty-Three (163) 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 than 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 of 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 _______________ (_____) 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.
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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 breach of performance or wrongful act, error or
omission occurring prior to the termination, regardless of whether the
nonperformance, 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. All 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 cancelled 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 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 an
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.
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(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. Builder's 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 benefit 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 or 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
omissions 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 willful 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 loss, 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.
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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 any of the documentation between Owner and Builder,
including, but not limited to, 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 in Owner's sole discretion, withhold its
consent to any assignment or other transfer of any rights of Builder hereunder,
except the right to receive 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 other 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. (recipient's time) or on a nonbusiness 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 charges 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 addresses
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.
Suite 400
000 Xxxx 000xx Xxxxxx
Xxxxxxx, XX 00000
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To Owner: Victorville 163 Partners, L.P.
c/o Overland Company
000 X. Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxx X. Xxxx, General Partner
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 an "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 any appeal) and enforcing any judgment, order, ruling, or
award granted thereunder, including reasonable attorney's fees and court costs
as the Court or the arbitrator may award.
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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
obligation 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 obligations 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.
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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 either 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, Victorville 163 Partners, L.P.
a Delaware corporation a California limited partnership
By By
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Xxx X. Xxxxxx, Xxxx X. Xxxx, General Partner
Chairman of the Board ("Owner")
("Builder")
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