HomeMy WebLinkAboutA4646 - REGAL HOMES ESSI SHANANDEH SUBDIVISION 3101 3121 NPC PM30843 Regal Homes
Subdivision Improvement
AGREEMENT #4646
R20547, 2-19-03
SUBDIVISION IMPROVEMENT AGREEMENT
by and between
CITY OF PALM SPRINGS
and
REGAL HOMES, INC., A CALIFORNIA CORPORATION
TABLE OF CONTENTS
1.Construction Obligations........................................................... 1
1.1 Monumentation...................................................... 1
1.2 Intent of Map........................................................ 1
1.3 Survey Monuments................................................ 2
1.4 Performance of Work.............................................. 2
1.5 Changes in the Work.............................................. 2
1.6 Defective Work....................................................... 2
1.7 No Warranty by City............................................... 2
1.8 Authority of the City Engineer................................ 2
1.9 Inspection............................................................... 2
1.10 Compliance with Law............................................. 3
1.11 Final Acceptance of Works of Improvement........... 3
2. Time for Performance....................................................... 3
2.1 Commencement and Completion Dates................. 3
2.2 Force Majeure......................................................... 4
2.3 Continuous Work.................................................... 4
2.4 Time of the Essence................................................ 4
3. Labor................................................................................. 4
3.1 Labor Standards...................................................... 4
3.2 Nondiscrimination................................................... 4
3.3 Licensed Contractors.............................................. 4
3.4 Workers' Compensation.......................................... 4
4. Security............................................................................. 5
4.1 Required Security.................................................... 5
4.2 Form of Security Instruments.................................. 5
4.3 Subdivider's Liability................................................ 6
4.4 Letters of Credit....................................................... 6
4.5 Release of Security Instruments.............................. 7
5. Cost of Construction and Provision of Inspection
Service............................................................................... 7
5.1 Subdivider Responsible for All Related Costs of
Construction............................................................ 7
5.2 Payment to City for Cost of Related Inspection
and Engineering Services........................................ 7
6. Default............................................................................... 7
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6.1 Remedies Not Exclusive.......................................... 7
6.2 City Right to Perform Work...................................... 7
6.3 Attorney's Fees and Costs....................................... 7
7. Indemnity.......................................................................... 8
8. General Provisions............................................................. 8
8.1 Successors and Assigns........ ............................... 8
8.2 No Third Party Beneficiaries.................................... 8
8.3 Entire Agreement; Waivers and Amendments....... 8
9. Corporate Authority........................................................... 8
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SUBDIVISION IMPROVEMENT AGREEMENT
THIS SUBDIVISION IMPROVEMENT AGREEMENT (this "Agreement") is entered
into this 3rd day of February, 2003, by and between the CITY OF PALM SPRINGS, a
municipal corporation of the State of California("CITY"), and Regal Homes, Inc., a California
Corporation ("Subdivider").
RECITALS
A. Subdivider is the owner of, and has obtained approval of a subdivision map for
Parcel Map No. 30843 in the City of Palm Springs, County of Riverside, State of California
(the "Property"). The map contains conditions of approval for the development of the
Property (the "Conditions").
B. Subdivider has delivered to City and City has approved the map which
requires the setting of monuments, "Monumentation" (as hereinafter defined) which are
required to be installed in order to accommodate the development of the Property.
C. Subdivider's agreement to construct and install the Monumentation pursuant
to this Agreement are a material consideration to City in approving the final map for the
Property and permitting development of the Property to proceed.
COVENANTS
Based upon the foregoing Recitals which are incorporated herein by reference and
in consideration of City's approving the Map for the Property and permitting development of
the Property to proceed, Subdivider agrees to timely perform all of its obligations as set forth
herein.
1. Construction Obligations.
1.1 Monumentation. Subdivider agrees, at its sole cost and expense, to
install or cause to be installed the monuments(herein sometimes collectively referred
to as the "Monumentation"), as the same may be supplemented and revised from
time to time as set forth herein (said map, together with all related documents, are
referred to herein as the "Map"). The estimated construction cost for the
Monumentation is 2 500.00.
1.2 Intent of Map. Approval of the Map referenced in Section 1.1 requires
a complete work of setting of monumentation which Subdivider shall perform or
cause to be performed in a manner acceptable to the City Engineer (or histher
designee) and in full compliance with all codes and the terms of this Agreement.
Subdivider shall complete the setting of all required Monumentation, even though the
Map may not specifically call out all items of work required for the contractor to
complete its tasks, incidental appurtenances, materials, and the like. If any omissions
are made or information necessary to carry out the full intent and meaning of the
Map, Subdivider or its contractor shall immediately notify its design engineer who will
seek approval of the City Engineer for furnishing of detailed instructions. In the event
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of any doubt or question arising regarding the true meaning of the setting of any of
the Monumentation, reference shall be made to the City Engineer whose decision
thereon shall be final.
1.3 Survey Monuments. Before final approval of street improvements,
Subdivider will place survey monument(s) as shown on the Map in accordance with
the provisions of the State Subdivision Map Act and the Subdivision Ordinance of the
City of Palm Springs. Subdivider shall provide security for such obligation as
provided in Section 4.1(a)(iii) and, after setting the monument(s), Subdivider shall
furnish the City Engineer of the City of Palm Springs written notice of the setting of
said monument(s) and written proof of having paid the engineer or surveyor for the
setting of said monument(s).
1.4 Performance of Work. Subdivider shall furnish or cause to be furnished
all materials, labor,tools, equipment, utilities,transportation, and incidentals required
to perform Subdivider's obligations under this Agreement.
1.5 Changes in the Work. The City Engineer, without invalidating this
Agreement and without notification to any of the sureties or financial institutions
referenced in Paragraph 4, may order extra work or may make changes by altering
or deleting any portion of the Works of Improvement as specified herein or as
deemed necessary or desirable by the City Engineer as determined necessary to
accomplish the purposes of this Agreement and to protect the public health, safety,
or welfare. The City Engineer shall notify Subdivider or Subdivider's contractor in
writing (by Correction Notice) at the time a determination has been made to require
changes in the work. No field changes performed or proposed by Subdivider or its
contractor shall be binding on City unless approved in writing by the City Engineer.
1.6 Defective Work. Subdivider shall cause its contractor to repair,
reconstruct, replace, or otherwise make acceptable any work found by the City
Engineer to be defective.
1.7 No Warranty by City. The Map for which the setting of Monumentation
is required has been prepared by or on behalf of Subdivider or its consultants or
contractors, and City makes no representation or warranty, express or implied, to
Subdivider or to any other person regarding the adequacy of the Map or related
documents.
1.8 Authority of the City Engineer. In addition to the authority granted to the
City Engineer elsewhere in this Agreement,the City Engineer shall have the authority
to decide all questions which may arise as to the quality and acceptability of
materials furnished and work performed, and all questions as to the satisfactory and
acceptable fulfillment of the terms of this Agreement by Subdivider and Subdivider's
contractor.
1.9 Inspection. The inspection of the work by City shall not relieve
Subdivider or the contractor of any obligations to fulfill this Agreement as herein
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provided, and unsuitable materials or work may be rejected notwithstanding that
such materials or work may have been previously overlooked or accepted.
1.10 Compliance With Law. In addition to the express provisions of this
Agreement and the Map, Subdivider shall cause construction of the setting of
Monumentation to be completed in accordance with all other applicable federal,
state, and local laws, ordinances, rules and regulations.
1.11 Final Acceptance of Monumentation. After Subdividers contractor has
completed all of the Monumentation, Subdivider shall then request a final inspection
of the work. It items are found by the inspector to be incomplete or not in compliance
with this Agreement or any of the requirements contained or referenced herein, City
will inform the contractor of such items. After the contractor has completed these
items, the procedure shall then be the same as specified above for the contractor's
initial request for final inspection. If items are found by City's inspector to be
incomplete or not in compliance after two (2) "final" inspections, City may require the
contractor, as a condition to performing further field inspections, to submit in writing
a detailed statement of the work performed subsequent to the date of the previous
inspection which was found to be incomplete or not in compliance at that time.
No inspection or acceptance pertaining to specific parts of the setting of
Monumentation shall be construed as final acceptance of any part until the overall
final acceptance by City is made and the Engineer of Record has submitted written
confirmation to the City that the Monumentation has been set and he has been paid
in full for said work. Final acceptance shall not constitute a waiver by City of defective
work subsequently discovered.
2. Time for Performance.
2.1 Commencement and Completion Dates. Subject to Section 2.2 and 2,.3
below, Subdivider shall (i) commence with installation of the Monuments when the
final grading and street improvements have been completed ("Commencement
Date"); and (ii) complete or cause to be completed all of the Setting of
Monumentation two (2) weeks after the Commencement Date.
2.2 Force Majeure. Notwithstanding the provisions of Section 2.1,
Subdivider's time for commencement and completion of the setting of
Monumentation shall be extended for the period of any enforced delay caused due
to circumstances beyond the control and without the fault of Subdivider, including to
the extent applicable adverse weather conditions, flood, earthquakes, strikers,
lockouts, acts or failures to act of a public agency (including City), required changes
to the Scope of Work required by City, and similar causes; provided, however, that
the period of any enforced delay hereunder shall not include any period longer than
five (5) days prior to City's receipt of a written notice from Subdivider or its Contractor
detailing the grounds for Subdivider's claim to a right to extend its time for
performance hereunder. City Engineer shall evaluate all claims to Force Majeure and
his decision shall be final.
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2.3 Continuous Work. After commencement of installation of the
Monumentation(or separate portion thereof), Subdivider shall cause such work to be
diligently pursued to completion, and shall not abandon the work for a consecutive
period or more than five (5) days, events of Force Majeure excepted.
2A Time of the Essence. Time is of the essence of Subdivider's
performance of all of its obligations under this Agreement,
3. Labor,
3.1 Labor Standards. Subdivider shall be responsible for causing all
contractors and subcontractors performing any of the setting of Monumentation to
comply with ail applicable federal and state labor standards, including to the extent
applicable the prevailing wage requirements promulgated by the Director of Industrial
Relations of the State of California Department of Labor.
3.2 Nondiscrimination. Subdivider agrees that no contractor or
subcontractor performing any of the setting of Monumentation shall discriminate
against any employee or prospective employee with respect to such work in hiring,
promotion, seniority, or any other terms and conditions of employment on the
grounds of race, creed, color, national origin, ancestry, religion, sex, or marital status.
3.3 Licensed Surveyor. Subdivider shall cause all of the setting of
Monumentation to be installed under the direct supervision of a California licensed
land surveyor in conformance with the map.
3.4 Worker's Compensation. Subdivider shall cause every contractor and
subcontractor performing any of the setting of Monumentation to carry Workers'
Compensation Insurance as required by the Labor Code of the State of California
and shall cause each such contractor and subcontractor to submit to City a
Certificate of Insurance verifying such coverage prior to such contractor or
subcontractor entering onto the job site.
4. Securit .
4.1 Required Securily.
(a) At the time Subdivider executes this Agreement, Subdivider shall
furnish to City the following bond, letter of credit, instrument of credit
(assignment of deposit account) or other security acceptable to City in its sole
and absolute discretion and satisfying the requirements of the applicable
provisions of this Section 4 (hereinafter"Security Instruments"):
(i) A Security Instrument guaranteeing the payment of the cost
of setting monuments as required in Section 1.4 in the amount of
2 500,00.
This Agreement shall not be effective for any purpose until such Security
Instruments are supplied to and approved by City in accordance herewith.
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4.2 Form of Security Instruments. All Security Instruments shall be in the
amounts required under Section 4.1 (a) or 4.1(b), as applicable, shall meet the
following minimum requirements and otherwise shall be in a form provided by City or
otherwise approved by the City Attorney:
(a) Bonds. For Security Instruments provided in the form of bonds,
any such bond must be issued and executed by an insurance company or
bank authorized to transact surety business in the State of California. Any
insurance company acting as surety shall have a minimum rating ofA-IX, as
rated by the current edition of Bests Key Rating Guide published by A.M.
Best's Company, Oldwick, New Jersey, 08858. Any bank acting as surety
shall have a minimum rating of AA, as rated by Moody's or Standard &Poor's.
(b) Letters of Credit. For Security Instruments which are letters of
credit, any letter of credit shall be an original separate unconditional,
Irrevocable, negotiable and transferable commercial letter of credit issued by
a financial institution with offices in the State of California acceptable to City.
Any such letter of credit shall specifically permit City to draw on same by
unilateral certification of the City Engineer of the City that Subdivider is in
default under its payment or performance obligations hereunder or in the
event Subdivider fails to deliver a replacement letter of credit not less than
thirty (30) days prior to the date of expiration of any such letter of credit and
shall further be subject to the provisions of Section 4.4.
(c) Instrument of Credit. For Security Instruments which are
Instruments of Credit, any Instrument of Credit shall be an assignment of
deposit account assigning as security to City all of Subdivider's interest in
funds on deposit in one or more bank accounts with financial institutions
acceptable to City.
(d) General Requirements for all Security Instruments.
(i) Payments under any Security Instruments shall be required
to be made (and, with respect to bonds, litigation shall be required to
be instituted and maintained) in the City of Palm Springs, State of
California (and the Security Instrument shall so provide).
(ii) Each Security Instrument shall have a minimum term of
one (1) year after the deadline for Subdivider's completing the Works
of Improvement, in accordance with Section 2.1 (other than
Instruments of Credit, which shall have no defined term or expiration
date).
(iii) Each Security Instrument shall provide that changes may
be made in the Works of Improvement pursuant to the terms of this
Agreement without notice to any issuer or surety and without affecting
the obligations under such Security Instrument.
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4.3 Subdivider's Liability. While no action of Subdivider shall be required in
order for City to realize on its security under any Security Instrument, Subdivider
agrees to cooperate with City to facilitate City's realization under any Security
Instrument, and to take no action to prevent City from such realization of any Security
Instrument. Notwithstanding the giving of any Security Instrument or the subsequent
expiration of any Security Instrument or any failure by any surety or financial
institution to perform its obligations with respect thereto, Subdivider shall be
personally liable for performance under this Agreement and for payment of the cost
of the labor and materials for the improvements required to be constructed or
installed hereby and shall, within ten (10) days after written demand therefor, deliver
to City such substitute security as City shall require satisfying the requirements in this
Section 4.
4.4 Letters of Credit.
(a) In the event a letter of credit is given pursuant to Section 4.2(b),
City shall be entitled to draw on any such letter of credit if a replacement letter
of credit (expiring in not less than one (1) year, unless City agrees to a lesser
term in City's sole and absolute discretion) is not delivered not less than thirty
(30) days prior to the expiration of the original letter of credit, such substitute
letter of credit being in the same amount and having the terms and conditions
as the initial letter of credit delivered hereunder, issued by a financial
institution acceptable to City as of the date of delivery of the replacement
letter of credit.
(b) In the event of draw by the City on a letter of credit, the City may
elect, in its sole and absolute discretion, to apply any such funds drawn to the
obligations secured by such letter of credit or to hold such funds in an account
under the control of the City, with no interest accruing thereon for the benefit
of the Subdivider. If the City elects to hold the funds in an account pursuant to
the foregoing, City may thereafter at any time elect instead to apply such
funds as provided in the foregoing. Subdivider agrees and hereby grants City
a security interest in such account to the extent required for City to realize on
its interests therein and agrees to execute and deliver to City any other
documents requested by City in order to evidence the creation and perfection
of City's security interest in such account.
4.5 Release of Security Instruments.
(a) City shall release the Faithful Performance of Monumentation
upon Subdivider's written request upon the completion of the setting of the
monumentation and written proof that the Engineer'of Record has been paid
for said work, provided no claims are outstanding at that time regarding
defective work.
5. Cost of Construction and Provision of Inspection Service.
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5.1 Subdivider Responsible for All Costs of Construction. Subdivider shall
be responsible for payment of all costs incurred for installation of the Monumentation.
5.2 Payment to City for Cost of Related Inspection and Engineering
Services. Subdivider shall compensate City for all of City's costs reasonably
incurred in having its authorized representative make the usual and customary
inspections of the setting of Monumentation. In addition, Subdivider shall
compensate City for all design, plan check, evaluating any proposed or agreed-upon
changes in the work. The procedures for deposit and payment of such fees shall be
as established by the City Council. In no event shall Subdivider be entitled to
additional inspections or a final inspection and acceptance of any of the setting of
Monumentation until all City fees and charges have been fully paid, including without
limitation, charges for applicable penalties and additional required inspections.
6. Default.
6.1 Remedies Not Exclusive. In any case where this Agreement provides
a specific remedy to City for a default by Subdivider hereunder, such remedy shall be
in addition to, and not exclusive of, City's right to pursue any other administrative,
legal, or equitable remedy to which it may by entitled.
6.2 City Right to Perform Work. In addition to whatever other rights or
remedies it may have for Subdivider's default hereunder, in the event Subdivider
shall fail to timely perform any work required to be performed under this Agreement
and such failure shall continue for a period of twenty(20) days after receipt of written
notice of default from City, or thereafter Subdivider shall fail to diligently and
continuously pursue the cure of any such default to completion, City shall have the
right to enter into the Property and perform any of the uncompleted work by force
account or contract or both and thereupon recover from Subdivider or any Security
Instrument, or both, the full cost and expense thereby incurred by City.
6.3 Attorney's Fees and Costs. In the event that Subdivider fails to perform
any obligation under this Agreement, Subdivider agrees to pay all costs and
expenses incurred by City in securing performance of such obligations, including
costs of suit and reasonable attorney's fees. In the event of any dispute arising out of
Subdivider's performance of its obligations under this Agreement or under any of the
Security Instruments referenced herein, the prevailing party in such action, in
addition to any other relief which may be granted, shall be entitled to recover its
reasonable attorney's fees and costs. Such attorney's fees and cost shall include
fees and costs on any appeal, and in addition a party entitled to attorney's fees and
costs shall be entitled to all other reasonable costs incurred in investigating such
action, taking depositions and discovery, retaining expert witnesses, and all other
necessary and related costs with respect to the litigation. All such fees and costs
shall be deemed to have accrued on commencement of the action and shall be
enforceable whether or not the action is prosecuted to judgment.
7. Indemnity. Subdivider agrees to indemnify, defend, and hold harmless City and
City's officers, employees, and agents from and against any and all claims, liabilities,
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losses, damages, causes of action, and obligations arising out of Subdivider's failure
to perform the installation of the Monumentation in accordance with the requirements
contained or referenced in this Agreement. Said indemnity obligation shall apply to
personal injury, death, property damage, economic loss, and any other monetary
damage or penalty to which City may be subjected, including without limitation,
attorney's fees and costs and the costs of realizing on any Security Instrument
provided by Subdivider pursuant to the terms hereof. Such indemnity obligation shall
not extend to any loss resulting from City's sole negligence or wilful misconduct.
8. General Provisions.
8.1 Successors and Assigns. This Agreement shall be binding upon all
successors and assigns to Subdivider's right, title, and interest in and to the Property
and any portion thereof.
8.2 No Third Party Beneficiaries. This Agreement is intended to benefit
only the parties hereto and their respective successors and assigns. Neither City nor
Subdivider intend to create any third party beneficiary rights in this Agreement in any
contractor, subcontractor, member of the general public, or other person or entity.
8.3 Entire Agreement: Waivers and Amendments. This Agreement
integrates all of the terms and conditions mentioned herein, or incidental hereto, and
supersedes all negotiations and previous agreements between the parties with
respect to all or part of the subject matter hereof, except as may be expressly
provided herein. All waivers of the provisions of this Agreement must be in writing
and signed by an authorized representative of the party to be charged, and all
amendments hereto must be in writing and signed by the appropriate representatives
of both parties.
9. Corporate Authority. The persons executing this Agreement on behalf of the
parties hereeto warrant the (1) such party is duly organized and existing, (ii) they are
duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by
so executing this Agreement, such party is formally bound to the provisions of this
Agreement, and (iv) the entering into of this Agreement does not violate any
provisions of any other Agreement to which said party is bound.
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IN WITNESS WHEREOF, the parties hereto have executed this Subdivision
Improvement Agreement as of the date first above written.
DATED: t 24d.5
ATTEST: CITY OF PALM SPRINGS, CALIFORNIA
Y i
Patricia A. Sanders, City Clerk David Ready, City Mana r `
APPROVED AS TO FORM:
�L7fe�C.u�:.1�,;1_,
City Attorne �
SUBDIVIDER:
Regal Homes Inc, a California Corporation
(Check One: _ individual, _partnership
X corporation)
(Notarize Signature) By:
Jim/R. �Lintz, President
"Subdivider"
Mailing Address:
1720 Skylark Lane
Newport Beach, CA 92660
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
as.
County of R ve lrsicle. n pp �� `` __ �(�
Om )CtY1lA ' 31, 9D(D' before me, OArrl e, ��1 ylP U N)o- icui PuU t G
Bale �7 I Name and Title of Off eer(e g,'Jane Doe,Nolary Pal
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personally appeared TI m
Namara)of Signer(s)
gproved to me on the basis of satisfactory
evidence
to be the persons} whose name( Ware
_ subscribed to the within instrument and
d tlE R NE`! acknowledged to me that heishekhey executed
C^
Commission#1348447 the same in hisifher{1Fietr authorized
=� Natir,1 Public-California � p cit �-"`-'-ca a y(tesj, and that by
fuverside County signature(s)ron the instrument the personrl or
My Comm.Expires W26,= the entity upon behalf of which the person(sj-
. :---- acted, executed the instrument.
WITNES my )aV lia d official seal.
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1
OPTIONAL
Though the information below is not required by law,it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document,
Description of Attached`Document
Title or Type`of Document:
yJllC& -S6On 11��n�r0���1
Document Date: ��r l�u 3( aCoj Number of Pages:
Signers) Other Than Named Above:
Capacity(ies) Claimed byy�Signer
Signer's Name: \Yv, 11 f1T2 Yf P S 1r�P_Jf� k
❑ Individual n Top 0 thumb here
GYCorporateOfficer—Title(s): p(eSIC�PV1 �
❑ Partner-0 Limited 0 General
❑ Attorney-in-Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other: �j
Signer Is Representing: 1�jCl=��G
01999 National Nolary Anneallon•9350 Be Solo Ave.P0.pox 2402•Chatsworm,CA 91313242.veww noomalnolary mg Prod.No 6907 Reorder Call Toll Free 1-800-876-6827
City of Palm Springs
Engineering Department
3200 Tahquitz Canyon Way East
Palm Springs, CA 92262
Phone: (760) 323-8253 Fax: (760) 322-8360
MEMORANDUM
Date: February 21, 2003
To: City Clerk
From: Carol Templeton, Engineering Assistant
Subject: Subdivison Improvement Agreements for PM30843
Enclosed, please find 4 copies of the Subdivision Improvement Agreement for PM30843. We are in receipt
of$2500 cash as monumentation security. Please process the agreements with notarized signatures of the
City Clerk, City Manager, and City Attorney and return 3 copies to Carol Templeton in the Engineering
Department.