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HomeMy WebLinkAbout04489 - SPARTAN VILLA HERMOSA SUBDIVISION IMPROVEMENT R20317 Spartan Villa Hermosa, LLC ubdivision Improvement AGREEMENT #4489 R20317, 5-1-02 SUBDIVISION IMPROVEMENT AGREEMENT by and between CITY OF PALM SPRINGS and SPARTAN VILLA HERMOSA, LLC TABLE OF CONTENTS • 1 .Construction Obligations......................................................... 1 1 .1 Works of Improvement........................................... 1 1 .2 Other Obligations Referenced in Conditions of Tentative Map Approval.......................................... 2 1 .3 Intent of Plans....................................................... 2 1 .4 Survey Monuments................................................ 2 1 .5 Performance of Work............................................. 3 1 .6 Changes in the Work.............................................. 3 1 .7 Defective Work........................................................ 3 1 .8 No Warranty by City............................................... 3 1 .9 Authority of the City Engineer................................. 3 1 .10 Documents Available at the Site.............................. 3 1 .11 Inspection............................................................. 3 1 .12 Compliance with Law............................................. 4 1 .13 Suspension of Work............................................... 4 1 .14 Final Acceptance of Works of Improvement.............. 4 2. Time for Performance....................................................... 5 2.1 Commencement and Completion Dates.................... 5 2.2 Phasing Requirements............................................ 5 2.3 Force Majeure....................................................... 5 2.4 Continuous Work................................................... 6 2.5 Reversion to Acreage............................................. 6 2.6 Time of the Essence............................................... 6 3. Labor............................................................................. 6 3.1 Labor Standards.................................................... 6 3.2 Nondiscrimination.................................................. 6 3.3 Licensed Contractors............................................. 7 3.4 Workers' Compensation......................................... 7 4. Security......................................................................... 7 4.1 Required Security.................................................. 7 4.2 Form of Security Instruments.................................. 8 4.3 Subdivider's Liability.............................................. 9 4.4 Letters of Credit.................................................... 9 4.5 Release of Security Instruments.............................. 10 5. Cost of Construction and Provision of Inspection Service.......................................................................... 11 5.1 Subdivider Responsible for All Related Costs of i Constru*n.............................................9...... 11 5.2 Payment to City for Cost of Related Inspection and Engineering Services....................................:... 11 6. Acceptance of Offers of Dedication................................... 11 7. Warranty of Work............................................................. 11 8. Default.............................................................................. 12 8.1 Remedies Not Exclusive.......................................... 12 8.2 City Right to Perform Work..................................... 12 8.3 Attorneys Fees and Costs...................................... 12 9. Indemnity....................................................................... 12 10 General Provisions........................................................... 13 10.1 Successors and Assigns......................................... 13 10.2 No Third Party Beneficiaries.................................... 1.3 10.3 Entire Agreement; Waivers and Amendments........... 13 11 . Corporate Authcrity........................................................ 13 ii SUIWISION IMPROVEMENT AGREWNT THIS SUBDIVISION IMPROVEMENT AGREEMENT (this "Agreement") is entered intothis___Z 6/- dayof /, 2002, by and between the CITY OF PALM SPRINGS, a municipal corporati n of the State of California ("CITY"), and SPARTAN VILLA HERMOSA, LLC ("Subdivider"). RECITALS A. Subdivider is the owner of, and has obtained approval of a subdivision map for Tract No. 29987 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. Pursuant to the Conditions, Subdivider, by the Map, has offered dedication to Citythe easements shown on the Map as Lot(s) ". City desires to accept the easements shown on the Map as Lot(s) " " for emergency use and utilities, and certain other improvements described in this Agreement. C. Subdivider has delivered to City and City has approved plans and specifications and related documents for certain "Works of Improvement' (as hereinafter defined) which are required to be constructed and installed in order to accommodate the development of the Property. D. Subdivider's agreement to construct and install the Works of Improvement pursuant to this Agreement and its offer of dedication of the streets, easements and other improvements and facilities, as shown on the Map, 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 Citys 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 Works of Improvement. Subdivider agrees, at its sole cost and expense, to construct or install or cause to be constructed or installed the street, drainage, domestic water, sanitary sewer and other improvements (herein sometimes collectively referred to as the"Works of Improvement"),as the same may be supplemented and revised from time to time as set forth herein (said plans and specifications, together with all related documents, are referred to herein as the"Plans").The estimated construction costforthe Works of Improvement is $ 97,827.97. 1 1 .2 OthfObligations Referenced in Con0ons of Tentative Map Approval. In addition to the foregoing, Subdivider shall satisfy all of the conditions of approval on the tentative mapforthe Property.The conditions of approval which have not been satisfied prior to the date of this Agreement are identified on Exhibit "A" hereto. 1 .3 Intent of Plans. The intent of the Plans referenced in Section 1 .1 is to prescribe a complete work of improvement which Subdivider shall perform or cause to be performed in a manner acceptable to the City Engineer(or his/her designee) and in full compliance with all codes and the terms of this Agreement. Subdivider shall complete a functional or operable improvement or facility, even though the Plans 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 Plans, Subdivider or its contractor shall immediately notify its design engineerwho will seekapproval of the City Engineer forfurnishing of detailed instructions. In the event of any doubt or question arising regarding the true meaning of any of the Plans, reference shall be made to the City Engineer whose decision thereon shall be final. Subdivider recognizes that the Plans consist of general drawings.All authorized alterations affecting the requirements and information given on the Plans shall be in writing and approved by the City Engineer. The Plans shall be supplemented by such working or shop drawings as are necessary to adequately control the work. Without the City Engineer's prior written approval, no change shall be made by Subdivider or Subdivider's contractor to any plan, specification, or working or shop drawing after it has been stamped as approved. 1 .4 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 .5 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 .6 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 2 specified herei*as deemed necessary or desirabOythe City Engineer as determined necessaryto accomplish the purposes of this Agreement and to protect the public health, safety, or welfare. The City Engineer shall notify Subdivideror Subdivider's contractor in writing (by Correction Notice) atthe time a determination has been madeto 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 .7 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 .8 No Warranty by City. The Plans for the Works of Improvement have 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 Plans or related documents. 1 .9 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 .10 Documents Available at the Site. Subdivider shall cause its contractor to keep a copy of all approved Plans at the job site and shall give access thereto to the Citys inspectors and engineers at all times. 1 .11 Inspection. Subdivider shall have an authorized representative on the job site at all times during which work is being done who has full authority to act for Subdivider, or its design engineer, and Subdivider's contractor(s) regarding the Works of Improvement. Subdividershall cause its contractor to furnish the Citywith every reasonable facility for ascertaining whether or not the Works of Improvement as performed are in accordance with the requirements and intent of this Agreement, including the Plans. If the City inspector requests it,the contractor at any time before acceptance of the Works of Improvement shall remove or uncover such portions of the finished workas may be directed which have not previouslybeen inspected. After examination, the contractor shall restore said portions of the work to the standards required hereunder. Inspection orsupervision bythe Cityshall not be considered as direct control of the individual workmen on thejob site. City's inspector shall have the authority to stop any and all work not in accordance with the requirements contained or referenced in this Agreement. The inspection of the work by City shall not relieve Subdivider or the contractor of any obligations to fulfill this Agreement as herein provided, and 3 unsuitable ma0als or work may be rejected notithstanding that such materials or work may have been previously overlooked or accepted. 1 .12 Compliance With Law. In addition to the express provisions of this Agreement and the Plans, Subdivider shall cause construction of the Works of Improvement to be completed in accordance with all other applicable federal, state, and local laws, ordinances, rules and regulations. 1 .13 Suspension of Work. City Engineer shall have authority to order suspension of the work for failure of the contractor to comply with law pursuant to Section 1 .11 . In case of suspension of work for any cause whatever, Subdivider and its contractor shall be responsible for all materials and shall store them properly if necessary and shall provide suitable drainage and erect temporary structures where necessary. 1 .14 Final Acceptance of Works of Improvement. After Subdivider's contractor has completed all of the Works of Improvement, Subdivider shall then request a final inspection of the work. It items are found by the inspectorto 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.Afterthe contractor has completed these items,the procedure shall then be the same as specified above for the contractors initial req uest fer final inspection. If items are found by City's inspectorto be incomplete or not in compliance after two (2) "final" inspections, City may require the contractor,as a condition to performing furtherfield 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 Works of Improvement shall be construed as final acceptance of any part until the overall final acceptance by City is made. Final acceptance shall not constitute a waiver by City of defective work subsequently discovered. The date on which the Works of Improvement will be considered as complete shall be the date of the Notice of Acceptance. 2. Time for Performance. 2.1 Commencement and Completion Dates. Subject to Section 2.2 and 2.3 below, Subdivider shall (i) commence with construction and installation of the Works of Improvement thirty (30) days following City's approval of the Plans ("Commencement Date"); and (ii) complete or cause to be completed all of the Works of Improvement nine (9) months after the Commencement Date. 2.2 Phasing Requirements. Notwithstanding the provisions of Section 2.1 , City reserves the right to control and regulate the phasing of completion of specific Works of Improvement as required to comply with 4 applicable City0dinances, regulations, and ruloelating to the timely provision of public services and facilities. In addition to whatever other remedies City may have for Subdivider's failure to satisfy such phasing requirements,as the same now exist or maybe amended from time to time. Subdivider acknowledges Cit/s right to withhold the issuance of further building permits on the Property until such phasing requirements are satisfies. Prior to issuance of building permits, Subdivider shall provide satisfactory evidencethat all applicable requirements that area condition to issuance of building permits have been satisfied. Such requirements may include the payment of fees, construction of improvements, or both. 2.3 Force Majeure. Notwithstanding the provisions of Section 2.1, Subdivider's time for commencement and completion of the Works of Improvement 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,thatthe period of anyenforced delay hereunder shall not include any period longerthan five(5)days priorto 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. 2.4 Continuous Work. After commencement of construction of the Works of Improvement(or separate portion thereof), Subdivider shall cause such workto be diligently pursued to completion,and shall not abandon the workfor a consecutive period or more than thirty(30) days, events of Force Majeure excepted. 2.5 Reversion to Acreage. In addition to whatever other rights City may have due to Subdivider's failure to timely perform its obligations hereunder, Subdivider recognizes that City reserves the right to revert the Propertyto acreage subjectto the limitations and requirements setforth in California Government Code Sections 66499.11-66499.20-3/4. In this regard, Subdivider agrees that if the Works of Improvement have not been completed on or before the later of two (2) years from the date of this Agreement or within the time allowed herein, whichever is the later, and if City thereafter initiates proceedings to revert the Property to acreage, pursuant to Government Code Section 66499.16 Subdivider hereby consents to reversion and agrees that any improvements made by or on behalf of Subdivider shall not be considered in determining City's authorityto revert the Property to acreage. 2.6 Time of the Essence. Time is of the essence of Subdivider's performance of all of its obligations under this Agreement, 3. Labor. 5 3.1 Labstandards. Subdivider shall be Oonsible for causing all contractors and subcontractors performing any of the Works of Improvement to comply with all applicable federal and state labor sta nda rds, including to the extent applicable the prevailing wage requirements promulgated bythe 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 Works of Improvement shall discriminate against any employee or prospective employee with respect to such workin hiring, promotion,seniority, oranyotherterms and conditions of employmenton the grounds of race,creed,color, national origin,ancestry, religion, sex, or marital status. 3.3 Licensed Contractors. Subdivider shall cause all of the Works of I mprovement to be constructed by contractors and subcontractors with valid California Contractors' licenses for the type of work being performed. 3.4 Worker's Compensation. Subdivider shall cause every contractor and subcontractor performing any of the Works of Improvement to carry Workers'Compensation I nsu rance as required bythe Labor Code of the.State of California and shall cause each such contractor and subcontractor to submitto City a Certificate of Insurance verifying such coverage priorto such contractor or s•Abcontractor entering onto the job site. 4. Security. 4.1 Reauired Security. (a) At the time Subdivider executes this Agreement, Subdivider shall furnish to City the following bonds, letters of credit, instruments 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 below (hereinafter "Security Instruments"): (i) A Security Instrument securing Subdivider's faithful performance of all of the Works of Improvement ("Faithful Performance Security Instrument"), in the amount of $97,8 77.97 estimated construction costs listed in Section 1 .1 . (ii) A Security Instrument guaranteeing the payment to contractors,subcontractors,and other persons furnishing labor, materials, and/or equipment ("Labor and materials Security Instrument") with respect to the Works of Improvement in an amount equal to $ 48, 113.99 o f the estimated construction cost referenced in Section 1 .1 . (iii) A Security Instrument guaranteeing the payment of the cost of setting monuments as required in Section 1 .4 in the amount of $ 3.8 55.00 of the estimated monumentation cost. 6 This Agreement shall not be effective for any purpose until such Security Instruments are supplied to and approved by City in accordance herewith. (b) Required Security Instrument for Maintenance and Warranty. Prior to the City Council's acceptance of the Works of Improvement and recordation of a Notice of Completion, Subdivider shall deliver a Security Instrument warranting the work accepted far a period of one(1)yearfollowing said acceptance("Maintenance and Warranty Security Instrument"), with the amount of such Security Instrument to be equal to $ 24,456.99 of the estimated construction cost set forth in Section 1 .1 or a suitable amount determined by the City Engineer. 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 thefollowing 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*he State of California. Any insurance company acting as surety shall have a minimum rating of A-IX, as rated by the current edition of Bests Key Rating Guide published by A.M. Bests Company, Oldwick, New Jersey, 08858. Any bank acting as surety shall have a minimum rating of AA, as rated by Moodys or Standard Er 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 bya 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 bean 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 Sec# Instruments shall be required to be made(and, with respectto 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 Subdividers 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. 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 Citys realization under any Security Instrument, and to take no action to prevent Cityfrom 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 Od the funds in an account pursu*to the foregoing, City may thereafter at any time elect instead to apply such funds as provided in theforegoing. 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 Citys security interest in such account. 4.5 Release of Security Instruments. (a) City shall release the Faithful Performance Security Instrument and Labor and Materials Security Instrument when all of the following have occurred: (i) Subdivider has made written request for release and provided evidence of satisfaction of all other requirements in this Section 4.5; (ii) the Works of Improvement have been accepted; (iii) Subdivider has delivered the Maintenance and Warranty Security Instrument; and (iv) subject to the following sentences after passage of the time within which lien claims are required to be made pursuant to Article 3 (commencing with Section 3114) of Chapter 2 of Title 15 of Part IV of Division 3 of the California Civil Code. If lien claims have been timely filed, City shall hold the Labor and Materials Security Instrument until such claims have been resolved, Subdivider has provided a statutory bond, or otherwise as required by applicable law. (b) Cityshall releasethe Maintenanceand Warranty Security Instrument upon Subdivider's written request upon the expiration of the warranty period, provided no claims are outstanding at that time regarding defective work. 5. Cost of Construction and Provision of Inspection Service. 5.1 Subdivider Responsible for All Costs of Construction. Subdivider shall be responsible for payment of all costs incurred for construction and installation of the Works of Improvement. In the event Subdivider is entitled to reimbursement from City for any of the Works of Improvement, such reimbursement shall be subjectto a separate Reimbursement Agreement to be entered into between Subdivider and City prior to construction of the works. 5.2 Payment to City for Cost of Related Inspection and Engineering Services. Subdivider shal I compensate City for all of Citys costs reasonably incurred in having its authorized representative make the usual and 9 customary inspRions of the Works of Improvemaln addition, Subdivider shall compensate Cityfor 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 Works of Improvement until all City fees and charges have been fully paid, including without limitation, charges for applicable penalties and additional required inspections. 6. Acceptance of Offers of Dedication. The City Council shall pass as appropriate resolution or resolutions accepting all offers of dedication shown on the Map for the Property, with acceptance to become effective upon completion and acceptance by City of the Works of Improvement. Such resolution(s) shall authorize the City Clerkto execute the Certificate made a part of the Map regarding said acceptance of the offer of dedication. 7. Warranty of Work. Subdivider shall guarantee all Works of Improvement against defective materials and workmanship for a period of one (1) year from the date of final acceptance. If any of the Works of Improvement should fail or prove defective within said one (1) year period due to any reason other than improper maintenance, or if any settlement of fill or back-fill occurs, or should any portion of the Works of Improvementfail to fulfill any requirements of the Plans, Subdivider, within fifteen (15) days after written notice of such defects, or within such shorter time as may reasonably be determined by the City in the event of emergency, shall commence to repair or replace the same together with any other work which may be damaged or displaced in so doing. Should Subdividerfail to remedy defective material and/or workmanship or make replacements or repairs within the period of time set forth above, City may make such repairs and replacements and the actual cost of the required labor and materials shall be chargeable to and payable by Subdivider.The warranty provided herein shall not be in lieu of, but shall be in addition to, any warranties or other obligations otherwise imposed by law. 8. Default. 8.1 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, Citys right to pursue anyother administrative, legal, or equitable remedyto which it may by entitled. 8.2 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 underthis Agreementand such failure shall continuefor 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 10 Property and pfoorm any of the uncompleted A 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. 8.3 Attornev'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 attorneys fees and cost shall include fees and costs on any appeal, and in addition a party entitled to attorneys 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. 9. Indemnity. Subdivider agrees to indemnify, defend, and hold harmless City and Citys officers, employees, and agents from and against any and all claims, liabilities, losses,damages,causes of action,and obligations arising out of Subdivider's failure to perform the construction and installation of the Works of Improvement 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, attorneys 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. 10. General Provisions. 10.1 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. 10.2 No Third Party Beneficiaries. This Agreement is intended to benefit onlythe parties hereto and their respective successors and assigns. Neither City nor Subdivider intend to create anythird party beneficiary rights in this Agreement in any contractor, subcontractor, member of the general public, or other person or entity. 10.3 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 11 the parties witospect to all or part of the subjecOatter 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 partyto be charged, and all amendments hereto must be in writing and signed by the appropriate representatives of both parties. 11 . Corporate Authority. The persons executing this Agreement on behalf of the parties hereeto warrantthe(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 Ag reement, and(iv)the enteri ng into of this Agreement does not violate any provisions of any other Agreement to which said party is bound. 12 IN WITNESS WHEREOF, the parties hereto have executed this Subdivision Improvement Agreement as of the date first above written. DATED ocY' ATTEST: CITYOF PALM SPRINGS, CALIFORNIA nc a A. Sanders, City Clerk David Ready, City Ma r APPROVED AS TO FORM: C t Attornk CONTRACTOR: Spartan Villa Hermosa, LLC (Managing Member is Spartan Equity, Inc.) (Check One: _ individual, _ partnership X corporation) (Notarize Signature) By: 4ww Terrance Buckle resident Print Name and Title (Notarize Signature) By: Print Name and Title "Subdivider" Byy Z&UU t II Mailing Address: �lC,tB� Spartan Equity, Inc. 27 South Bruner Street Hinsdale, IL 60521 13 Page 1 of 3 EXHIBIT "A" CONDITIONS OF TENTATIVE MAP APPROVAL APPLICABLE TO PROJECT STREETS 1. Any improvements within the street right-of-way require a City of Palm Springs Encroachment Permit. Work shall be allowed according to Resolution 17950 - Restricting Street Work on Major and Secondary Thoroughfares. 2. The existing street improvement plans can be revised by a Registered Civil Engineer to show the proposed improvements.The plans shall be approved by the City Engineer prior to Final Map submittal to the City Council for approval.The plans are in the City of Palm Springs Engineering Department, HERMOSA PLACE 3. Construct a 6 inch curb and gutter, 20 feet SOUTH of centerline along the entire frontage ofthe subject property per City of Palm Springs Standard Drawing No.200. 4. The driveway approach shall be constructed in accordance with City ofPalm Springs Standard Drawing No. 201 and have minimum width of 10 feet. 5. Construct a minimum 5 foot wide sidewalk behind the curb along the entire frontage in accordance with City of Palm Springs Standard Drawing No. 210. 6. Remove and replace existing pavement with a minimum pavement section of 3 inch asphalt concrete pavement over 6 inch aggregate base with a minimum subgrade of24 inches at 95% relative compaction, OR equal, from edge of proposed gutter to centerline along the entire frontage in accordance with City ofPalm Springs Standard Drawing No. 110 AND 315. The pavement section shall be designed, using "R" values,by a licensed Soils Engineer and submitted to the City Engineer for approval. PRESCOTT DRIVE N.E. 7. Developershallapplyforthe vacation ofPRESCOTTDRIVEN.E.fromHERMOSA PLACE to EL ALAMEDA. Developer shall be responsible for final resolution of all utilities, demolition of all existing improvements, reconstruction of affected intersecting streets and coordination of improvements with adjacent property owners, if applicable,for the streetvacation.All agreements and improvement plans relative to the above mentioned items shall be approved by the City Engineer prior to the submittal of the street improvement plans. All underlying ownership of the proposed 14 Page 2of3 vacated street shall be appropriately transferred and copies of the recorded deeds provided to the City Engineer prior to issuance of building permits. EL ALAMEDA 8. Construct a 6 inch curb and gutter, 18 feet NORTH of centerline along the entire frontage of the subject property per City of Palm Springs Standard Drawing No.200. 9. Construct modified driveway approaches to accommodate bay parking stalls along the EL ALAMEDA frontage per City of Palm Springs Standard Drawing No. 201 (See Note 5 and Section A-A for depressed top of curb). 10. The driveway approach at the Main Entry shall be constructed in accordance with City of Palm Springs Standard Drawing No. 201 and have minimum width of 24 feet. 11. Construct a minimum 5 foot wide sidewalk behind the curb along the entire frontage in accordance with City of Palm Springs Standard Drawing No. 210. 12. Remove and replace existing pavement with a minimum pavement section of 2-1/2 inch asphalt concrete pavement over 4 inch aggregate base with a minimum subgrade of 24 inches at 95%relative compaction,OR equal,from edge of proposed gutter to centerline along the entire frontage in accordance with City of Palm Springs Standard Drawing No. 110 AND 300. The pavement section shall be designed, using "R" values,by a licensed Soils Engineer and submitted to the City Engineer for approval. TRAFFIC 33. The developer shall provide a minimum of 48 inches of sidewalk clearance around all street furniture, fire hydrants and other above-ground facilities for handicap accessibility.The developer shall provide same through dedication ofadditional right- of-way and widening of the sidewalk or shall be responsible for the relocation of all existing traffic signal/safety light poles, conduit, pull boxes and all appurtenances located on the HERMOSA PLACE and EL ALAMEDA frontages of the subject property. 34. The developer shall replace all damaged,destroyed,or modifiedpavement legends and striping that is required by the City Engineer on the HERMOSA PLACE and EL ALAMEDA frontages prior to issuance of a Certificate of Occupancy. 35. Construction signing,lighting and barricading shall be provided for on all projects as required by City Standards or as directed by the City Engineer. As a minimum, all construction signing, lighting and barricading shall be in accordance with State of 15 Page 3 of 3 California,Department ofTransportation,"MANUAL OF TRAFFIC CONTROLS FORCONSTRUCTION AND MAINTENANCE WORKZONES"dated 1996,or subsequent additions in force at the time of construction. 16 CALIFORNIA ALL-PURPOSEICKNOWLEDGMENT No 5907 State of County of 1 S)Ecs�&e On c, - D,\-O�), before me, DATE NAME,TITLE OF OFFICER-E G,'JANE DOE,NOTARY PUBLIC" personally appeared \ -eccGor,e V `-,\-e� NAME(S)OF SIGNERS) personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence to be the person() whose name(�o is/a-re subscribed to the within instrument and ac- knowledged to me that he/si-ieAhey executed �.CILLE the same in his/he- fth-e-ir authorized LUCILLE E SWgNNER capacity(i-es}, and that by his/Li-er-f-t-h-e.ir Commission#1308264 signature(%) on the instrument the person(), 'vd Notary Public-California z Riverside County or the entity upon behalf of which the My Comm EaPires Aun27,2006 person() acted, executed the instrument. s WITNESS my hand and official seal. d___UCA SIGNATURE OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE(S) TITLE OR TYPE OF DOCUMENT ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL El ATTORNEY-IN-FACTNUMBER OF PAGES ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: DATE OF DOCUMENT SIGNER IS REPRESENTING: NAME OF PERSON(S)OR ENTITY(IES) SIGNER(S)OTHER THAN NAMED ABOVE ©1993 NATIONAL NOTARY ASSOCIATION-8236 Remmet Ave.,P.O.Box 7184-Canoga Park,CA 91309-7184 IRREVOCABLE LETTER OF CREDIT Canyon National Bank, N.A. 1711 E. Palm Canyon Drive Palm Springs, CA 92264 Date of Issue: April 3, 2002 Our Irrevocable Standby Credit: No. 329512 Date of Expiry: October 3, 2002 Place of Expiry: At Our Counters Applicant: Spartan Villa Hermosa, LLC Beneficiary: City of Palm Springs P.O. Box 2743 3200 E. Tahquitz Canyon Way Palm Springs, CA 92263-2743 Amount: USD $ 152,876.73 U.S. DOLLARS Canyon National Bank, N.A. hereby establishes in favor of Beneficiary this Irrevocable Letter of Credit No. 329512 available with Canyon National Bank, N.A. (Issuer)by payment of Beneficiary's draft at sight drawn on Canyon National Bank, N.A. (Issuer) accompanied by a statement from Beneficiary executed by a person purporting to be the City Manager or the City Engineer of Beneficiary or authorized agent thereof in one or both of the forms set forth in Exhibit "1" attached hereto. Draft drawn under this Letter of Credit must bear the clause "Drawn"under Canyon National Bank, N.A. (Issuer) Letter of Credit No. 329512 dated April 3, 2002. Each draft presented hereunder must be accompanied by this original credit for Canyon National Bank, N.A. (Issuer's) endorsement thereon of the amount of such draft. The docrnnent must be forwarded to Canyon National Bank, N.A. (Issuer) at Issuer's address: 1711E Palm Canyon Drive Palm Springs CA 92264 Canyon National Bank, N.A. (Issuer) shall have no duty to and shall not investigate into the veracity of any certification to be given under the terms of this Letter of Credit, but shall be entitled to rely solely upon receipt of such certification in permitting draws render this Letter of Credit. Applicant's sole recourse in the event of any false certification by the Beneficiary shall be against Beneficiary and there shall be no recourse against Canyon National Bank,N.A. (Issuer), provided that Canyon National Bank, N.A. (Issuer) has complied with its obligations under this Letter of Credit. This Letter of Credit shall be automatically extended, without amendment, for an additional period or periods up to six 6 moths from the present expiration date, unless not less than thirty(30) day prior to any expiration date, Canyon National Bank. N.A. (Issuer) shall notify Beneficiary in writing that either Canyon National Bank,N.A. (Issuer) or Application elected not to renew or extend this Letter of Credit for such additional period, nor has Applicant procured a replacement letter of credit, at which time Beneficiary may draw against this Letter of Credit by presenting its draft and certification as stated above. This credit is subject to the Uniform Customs and Practice for Documentaiy Credits (1983 Revision), International Chamber of Commerce Publication No. 400, and engages us in accordance with the teens hereof. Can n National Bank By /� c— Robert Cross Senior Vice President INSTRUMENT OF CREDIT (Faithful Performance The undersigned, being a financial institution which is subject to regulation by the State of California or by the Federal Government hereby pledges that moneys to the extent of Ninety-nine thousand thr.Qe hundred sixty-seven dollars and eighty-two cents ($99,367.82) and on deposit by rjn, q�y , j�'Zl, Q 7/1yL 2 LGC' hereinafter referred to as Improver, for th e of securing Improver's perfonnance of all the terms and conditions of that certain Agreement for Completion of Improvement Work dated Vw� 2�a1 , by and between Improver and the City of Palm Springs, a Municipal Corporation, an executed copy of which is hereto attached and incorporated herein by reference and that said funds are trust funds for the sole purpose of guaranteeing the payment thereof to the City of Palm Springs or such portions thereof as said City may request for the completion of the improvements set forth in said Agreement in event of default by hnprover. The undersigned agrees that upon receipt of written notice of default by Improver in Improver's performance of the terns and conditions of said Agreement, singed by the City Engineer of said City, the undersigned shall immediately pay said fiords or such amount thereof as shall be set forth in said notice, to the City of Palm Springs. The undersigned further agrees that it shall hold said funds on deposit as trust finds for the uses and purposes herein set forth or such amount as may remain, until such time as it receives written notice signed by the City Engineer of said City to the effect that said Agreement has been fully performed and authorizing the release of said funds to the depositor. This instrument of Credit is executed and delivered in addition to the Instrument of Credit bearing the same date guaranteeing payment of labor and materials under said Improvement Agreement by Improver. By execution and delivery of this Instrument to the City of Palm Springs, the undersigned is relieved of any and all liability to Improver except as herein specifically set forth. 2 Date at California, this /""day of Ae J/ , 200,2— �—Cq4yon National Bank Robert Cross Senio o-ear By y Gobble Vice President Page 1 of 2 (Faithful Perfonnance) The undersigned, being the Improver referred to in the foregoing Instrument of Credit, hereby agrees to all the tenus and conditions therein set forth and releases the financial institution executing said Instrument of Credit from all liability except as therein specifically set forth. Dated at Aota[t/e Califo;4a, this day of , 200y � r Approved: City Engineer City of Palm Springs L� Approved as to fonn: City Attorney C)F90AL SEAS. ' City of Palm Springs CORA MAE CORLEY nooOTARN P4JO"r',$aa><rs®F ILL6Pd J9.�. 'i C21AAMGO.nTbO'_^N':(".'3F^.E5:051'_T�lo",> C Page 2 of 2 INSTRUMENT OF CREDIT (Labor and Material) The undersigned, being a financial institution which is subject to regulation by the State of California or by the Federal Government hereby pledges that moneys to the extent of Forty-nine thousand six undr d ei hty-thre dollars and ninety-one cents ($49,683.91) and on 4, a;0' hereinafter referred to as Improver, for the purpose of securing payment to the engineer, contractor, his sub- contractors and to persons renting equipment or furnishing labor or materials to them for the improvement provided for the certain Agreement for Completion of Improvement Work dated `2V4_ti� Je Z by and between Improver and the City of Palm Springs, a Mun ici pal Corporation, an executed copy of which is hereto attached and incorporated herein by reference and that said funds are trust finds for the sole purposed of guaranteeing the payment thereof to the City of Palm Springs or such portion thereof as said City may request for payment to the engineer, contractor, his subcontractor and to persons renting equipment or furnishing labor or material to them in construction of the improvements set forth in said Agreement in event of default by Improver. The undersigned agrees that upon receipt of written notice of default by Improver in Improver's payment of payment as above set forth, signed by the City Engineer, the undersigned shall immediately pay said finds or such amount thereof as shall be set forth in said notice, to the City of Palm Springs. The undersigned further agrees that is shall hold said funds on deposit as trust fiords for the uses and purposes herein set forth or such amount as may remain, until such time as it receives written notice singed by the City Engineer of said City to the effect that all said payments have been made and authorizing the release of said funds to the depositor. This Instrument of Credit is executed and delivered in addition to the Instrument of Credit bearing the same date securing the faithful performance of said Agreement for Completion of Improvement Work by Improver. By execution and delivery of this Instrument to the City of Palm Springs, the undersigned is relieved of any and all liability to Improver except as herein specifically set forth. Date at , California, tlus�day of U , 20oa . Can n National Bank a� By Robert Cross Se r By -41�ey Gobble Vice President Page 1 of 2 Instrument of Credit (Labor and Materials) The undersigned, being the Improver referred to in the foregoing Instrument of Credit, hereby agrees to all the terms and conditions therein set forth and releases the financial institution executing said Instrument of Credit from all liability except as therein specifically set forth. Q � Dated at C-�, this day of ,20j� Approved: G� City Engineer City of Palm Springs O R SAL SEAL Approved as to form: CORA MAE CORLrY NOTARY FLPSLIC,SFXWE Of ILLINOIS '� �'!!°f COflfip,PSSS0I�P EXNRES:05/25/03 -' City Attorney City of Palm Springs Page 2 of 2 INSTRUMENT OF CREDIT (Survey Monument Security) The undersigned, being a financial institution which is subject to regulation by the State of California or by the Federal Government hereby pledges that moneys to the extent of Three thousand eight lnutdred twenty-five dollars ($3,825.00) and on deposit by T�2 H P'Id?, Fiulrya� LLB hereinafter referred to as Improver, for the purposed of securing payment of engineer or surveyor for setting survey monument s in accordance with the terns and condition of that certain Agreement for Completion of Monumentation Work dated 12 / Z4 //"? o0 by and between Improver and the City of Palm Springs, a Municipal Corporation, an executed copy of which is hereto attached and incorporated herein by reference and that said funds are trust funds for the sole purposed of guaranteeing the payment thereof to the City of Palm Springs or such portion thereof as said City may request for the completion f Monumentation set forth in said Agreement in event of default by Improver. The undersigned agrees that upon receipt of written notice of default by Improver in Improver's monurnentation of the terns and conditions of said Agreement, signed by the City Engineer of said City, the undersigned shall immediately pay said funds or such amount thereof as shall be set forth in said notice, to the City of Palm Springs. The undersigned further agrees that it shall hold said funds on deposit as trust fluids for the uses and purposes herein set forth or such amount as may remain, until such time as it receives written notice signed by the City Engineer of said City to the effect that said Agreement has been filly performed and authorizing the release of said funds to the depositor. This Instrument of Credit is executed and delivered in addition to the Instrument of Credit bearing the same date guaranteeing payment, faithful performance of labor and materials under said Improvement Agreement by Improver. By execution and delivery of this Instrument to the City of Palm Springs, the undersigned is relieved of any and all liability to Improver except as herein specifically set forth. Date at California, this 3"Dday of (�Q�f�(� , 200„ti (C' n on National Bank By i�G / l ir- „.J Robert Cross Senior Vice President By ey Gobble Vice President Page 1 of 2 Instrument of Credit (Sutvey Mon unent Security) The undersigned, being the Improver referred to in the foregoing Instrumit of Credity, hereby agrees to all the terns and conditions therein set forth and releases the financial institution executing said Instrument of Credit from all liability except as therein specifically set forth. Dated r f�tatf��lG 'a, this day of_/,( id 200.4. Approved: pp City Engineer City ofPahn Springs �G Approved as to form: CO RA �°� CRt F y, Pp ;b n �r.,cav VIES 0,/25/03 City Attorney City of Palm Springs Page 2 of 2