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HomeMy WebLinkAboutA3771 - SOUTHLAND GROUP RACQUET CLUB PROPERTIES GRADING AGR R 18983 The Southland Group Grading Agr - Racquet Club Properties AGREEMENT #3771 Res 18983, 2-19-97 GRADING AGREEMENT by and between CITY OF PALM SPRINGS and THE SOUTHLAND GROUP I'A3 • • IIA y Grading Agreement TABLE OF CONTENTS 1 . Construction Obligations.................................................... 1 1 .1 Grading Obligations.................................................. 1 1 .2 Other Obligations Referenced in Conditions of Tentative MapApproval....................................................... .. 1 1 .3 Intent of Plans......................................................... 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................................................. 3 1 .8 Authority of the City Engineer.................................... 3 1 .9 Documents Available at the Site................................. 3 1 .10 Inspection................................................................ 3 1 .11 Compliance with Law................................................ 3 1 .12 Suspension of Work.................................................. 4 1 .13 Final Acceptance of Grading....................................... 4 2. Time for Performance.......................................................... 4 2.1 Commencement and Completion Dates......................... 4 2.2 Phasing Requirements................................................. 4 2.3 Force Majeure............................................................ 5 2.4 Continuous Work....................................................... 5 2.5 Reversion to Acreage.................................................. 5 2.6 Time of the Essence................................................... 5 3. Labor.................................................................................. 5 3.1 Labor Standards......................................................... 5 3.2 Nondiscrimination....................................................... 6 3.3 Licensed Contractors.................................................. 6 3.4 Workers' Compensation.............................................. 6 4. Security.............................................................................. 6 4.1 Required Security........................................................ 6 4.2 Form of Security Instruments........................................ 6 4.3 Subdivider's Liability.................................................... 8 4.4 Letters of Credit.......................................................... 8 4.5 Release of Security Instruments.................................... 9 -i i- Grading Agreement 5. Cost of Construction and Provision of Inspection Service........... 9 5.1 Subdivider Responsible for All Related Costs of Construction............................................................... 9 5.2 Payment to City for Cost of Related Inspection and Engineering Services.............................................. 9 6. Default................................................................................. 10 6.1 Remedies Not Exclusive................................................ 10 6.2 City Right to Perform Work........................................... 10 6.3 Attorney's Fees and Costs............................................ 10 7. Indemnity............................................................................. 10 8 General Provisions................................................................. 11 8.1 Successors and Assigns................................................. 11 8.2 No Third Party Beneficiaries........................................... 11 8.3 Entire Agreement; Waivers and Amendments................... 11 -iii- Grading Agreement GRADING AGREEMENT THIS GRADING AGREEMENT (this "Agreement") is entered into this l9lay of, �)-lb IV&f4 1992, by and between the CITY OF PALM SPRINGS, a municipal corporatioh of the State of California ("CITY"), and The Southland Group ("Subdivider"). RECITALS A. Subdivider is the owner of, and has obtained approval of a subdivision map for Tract No. 26364 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 has delivered to City and City has approved the grading plan(s) which grading is required to be done in order to accommodate the development of the Property. C. Subdivider's agreement to grade the Property pursuant to this Agreement are a material consideration to City in permitting grading 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 Grading Plan(s) for the Property and permitting grading of the Property to proceed, Subdivider agrees to timely perform all of its obligations as set forth herein. 1 . Grading Obligations. 1 .1 Grading. Subdivider agrees, at its sole cost and expense, to grade the Property in accordance with the "Grading Plan(s)", as the same may be supplemented and revised from time to time as set forth herein (said plans, together with all related documents, are referred to herein as the "Plans"). The estimated construction cost for the Grading is $69,071 .15. 1 .2 Other Obligations Referenced in Conditions of Tentative Map Approval. In addition to the foregoing, Subdivider shall satisfy all of the Conditions pertaining to the Grading of the Property. The conditions of approval which have not been satisfied prior to the date of this Agreement are identified on Exhibit "A" hereto. -1- Grading Agreement 1 .3 Intent of Plans. The intent of the Plans referenced in Section 1 .1 is to prescribe a complete work of grading 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 engineer who will seek approval of the City Engineer for furnishing 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 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 Grading 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. I 1 -2- Grading Agreement 10 1 .7 No Warranty by City. The Plans for the Grading 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 .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 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 City's inspectors and engineers at all times. 1 .10 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 Grading. Subdivider shall cause its contractor to furnish the City with every reasonable facility for ascertaining whether or not the Grading as performed is 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 Grading shall remove or uncover such portions of the finished work as may be directed which have not previously been inspected. After examination, the contractor shall restore said portions of the work to the standards required hereunder. Inspection or supervision by the City shall not be considered as direct control of the individual workmen on the job 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 unsuitable materials or work may be rejected notwithstanding that such materials or work may have been previously overlooked or accepted. 1 .11 Compliance With Law. In addition to the express provisions of this Agreement and the Plans, Subdivider shall cause the Grading to be completed in accordance with all other applicable federal, state, and local laws, ordinances, rules and regulations. -3- Grading Agreement 1 .12 Suspension of Work. City Engineer shall have authority to order suspension of the work for failure of 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 .13 Final Acceptance of Grading. After Subdivider's contractor has completed all of the Grading, 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 Grading 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. 2. Time for Performance. 2.1 Commencement and Completion Dates. Subject to Section 2.2 and 2.3 below, Subdivider shall (ill commence with the Grading on or before thirty (30) days following City's approval of the Plans ("Commencement Date"); and (ii) complete or cause to be completed all of the Grading no later than six (6) 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 Grading as required to comply with applicable City ordinances, regulations, and rules relating 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 may be amended from time to time. Subdivider acknowledges City's right to withhold the issuance of further buiUng permits on the Property until such phasing requirements are satisfies. Prior to issuance of building permits, Subdivider shall provide satisfactory evidence that all applicable requirements that are a -4- Grading Agreement condition to issuance of building permits have been satisfied. Such requirements may include the payment of fees. 2.3 Force Majeure. Notwithstanding the provisions of Section 2.1, Subdivider's time for commencement and completion of the Grading 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. 2.4 Continuous Work. After commencement of the Grading (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 thirty (30) days, events of Force Majeure excepted. 2.5 Reversion to Original Condition. 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 Property to original condition subject to the limitations and requirements set forth in California Government Code Sections 66499.11-66499.20-3/4. In this regard, Subdivider agrees that if the Grading has 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 original condition, pursuant to Government Code Section 66499.16 Subdivider hereby consents to reversion and agrees that Grading made by or on behalf of Subdivider shall not be considered in determining City's authority to revert the Property to original condition. 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. 3.1 Labor Standards. Subdivider shall be responsible for causing all contractors and subcontractors performing any of the Grading to comply with all applicable federal and state labor standards, including to the extent -5- Grading Agreement 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 Grading 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 Contractors. Subdivider shall cause all of the Grading 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 Grading 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. Security. 4.1 Required 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 Grading ("Faithful Performance Security Instrument"), in the amount of 25% of the estimated construction costs listed in Section 1 .1 . This Agreement shall not be effective for any purpose until such Security Instruments are supplied to and approved by City in accordance herewith. 4.2 Form of Security Instruments. All Security Instruments shall be in the amounts required under Section 4.1 (a), as applicable, shall meet the -6- Grading Agreement 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 of A-IX, as rated by the current edition of Best's 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 Director of Transportation 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 Grading, in accordance with Section 2.1 (other than Instruments of Credit, which shall have no defined term or expiration date). -7- Grading Agreement (iii) Each Security Instrument shall provide that changes may be made in the Grading 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 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 Grading improvements required to be done 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 -8- Grading Agreement 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 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 Grading has been completed and approved to the satisfaction of the City; 5. Cost of Grading and Provision of Inspection Service. 5.1 Subdivider Responsible for All Costs of Gradinnc . Subdivider shall be responsible for payment of all costs incurred for construction and installation of the Grading In the event Subdivider is entitled to reimbursement from City for any of the Grading, such reimbursement shall be subject to 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 shall compensate City for all of City's costs reasonably incurred in having its authorized representative make the usual and customary inspections of the Grading. 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 Grading 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.' -9- r 0 Grading Agreement 6.2 CitV Right to Perform Work. In addition to whatever other rights or rernedies 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 judgement. 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, losses, damages, causes of action, and obligations arising out of Subdivider's failure to perform the Grading 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. 8A 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- Grading Agreement 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. IN WITNESS WHEREOF, the parties hereto have executed this Subdivision Improvement Agreement as of the date first above written. -11- y Grading Agreement / / CITY OF S, CALIFORNIA DATED: c( "I ( �7 7 By: \ City Man'�9 \k "City" ATTEST: I L C'ty-Clerk APPROVED AS TO FORM: a City Attorne-y� Dated: I— 3/-9 7 jriE c 07W6-Iq lO c_wzOU10 By —� Its: "Subdivider" Address J,,??RoVFD BY Tup CITY COUNCIL V RES- Neap -12- t Grading Agreement 11 A i 6 EXHIBIT "A" 1 CONDITIONS OF TENTATIVE MAP APPROVAL APPLICABLE TO PROJECT GRADING 43. Submit cut and fill quantities to City Engineer to determine if a Grading Plan is required. If required, the Grading Plan shall be prepared by a Registered Professional and submitted to the Engineering Division for plan check. Grading plan shall be submitted to the Planning Department for comments prior to submittal to the Engineering Division. The Grading Plan shall be approved by the City Engineer prior to issuance of any grading or building permits. Minimum submittal includes the following: A. Copy of final Planning Department comments. B. Copy of signed Conditions of Approval from Planning Department. C. Copy of Site Plan stamped approved and signed by the Planning Department. D. Copy of Title Report prepared/updated within past 3 months. E. Copy of Soils Report, IF required by these conditions. F. Copy of Hydrology Study/Report, IF required by these conditions. G. Copy of the General Construction Activity Stonn Water Permit from the State Water Resources Control Board (Phone No. 916 657-0687) to the City Engineer prior to issuance of the grading permit. 45. Developer shall obtain a General Construction Activity Storm Water Permit from the State Water Resources Control Board (Phone No. (916)-657-0687) and provide a copy of same, when executed, to the City Engineer prior to issuance of the grading pen-nit. 46. In accordance with City of Palm Springs Municipal Code, Section 8.50.00, the developer shall post with the City a cash bond of two thousand dollars ($2,000.00) per acre for mitigation measures of erosion/blowsand relating to his property and development. -13- CITY 01- ow SPRINGS, CALIFORNIA DEPARTMENT OF FINANCE , 7 (619)323.8229 TREASURER'S RECEIPT DATE 1/31/97 AMOUNT 17,267.80 THE SOUTHLAND GROUP RECEIVED FROM: 0 to w H F DISTRIBUTION � Lou F- IN PAYMENT OF -- ACCOUNT AMOUNT <uJ J GRADING SECURITY TR26364 562-241 17,267.80 en F $ Un z 2 J SECURITY WILL BE REFUNDED PER z 75 Q z Er? Q LL F �n-0 AGREEMENT g z 0-4 5 wo q o ai i(�I JAN 3 1 1991 z z TOTAL $ 17,267.80 RECEIVED BY: -