01225.0006/366470.2 Updated 10-2020
SUBDIVISION IMPROVEMENT AGREEMENT
by and between
CITY OF CHINO
and
KG Investment LLC
01225.0006/366470.2
SUBDIVISION IMPROVEMENT AGREEMENT BETWEEN
THE CITY OF CHINO
AND
KG Investment LLC
Agreement Date: September 19, 2023
Subdivider Name: KG INVESTMENT LLC (hereinafter “Subdivider”)
Subdivision Description: A request to subdivide a 0.64-acre parcel into two parcels consisting of 14,532 and 13,621 square feet, located in the RD4.5 zoning district located at 13515 Monte Vista Avenue.
Parcel Map No.: 20207
Estimated Total Cost of Improvements: $14,700.00
Security:
Cash Deposits:
Faithful and Performance: Check No. 7489 in the amount of $14,700 Labor and Material: Check No. 7490 in the amount of $7,400 Warranty: Check No. 7491 in the amount of $1,500
Cash Deposit Agreement: See Exhibit D____________
01225.0006/366470.2
Designees for the Service of Written Notice:
CITY: SUBDIVIDER:
Jesus Plasencia
Assistant City Engineer
13220 Central Avenue
Chino, CA 91710
(909) 334-3417
[email protected]
KG Investment LLC
Kent Hsu
Managing Member
3318 El Dorado Street
Torrance, CA 90503
(310) 218-7991
[email protected]
CITY PROJECT INSPECTOR
Isaac Ortega
Permit & Inspection Supervisor
13220 Central Avenue
Chino, CA 91710
(909) 334-3501
[email protected]
01225.0006/366470.2
TABLE OF CONTENTS
1. Construction Obligations………........................................................................................ 1
1.1 Works of Improvement
1.2 Other Obligations Referenced in Conditions of Tentative Map Approval
1.3 Intent of Plans
1.4 Survey Monuments
1.5 Performance of Work
1.6 Changes in the Work
1.7 Defective Work
1.8 No Warranty by City
1.9 Authority of the City Engineer
1.10 Documents Available at the Site
1.11 Inspection
1.12 Compliance with Law; Applicable Standards for Improvements
1.13 Suspension of Work
1.14 Erosion and Dust Control and Environmental Mitigation
1.15 Final Acceptance of Works of Improvement
1.16 Vesting of Ownership
1.17 Subdivider’s Obligation to Warn Public During Construction
1.18 Injury to Public Improvements, Public Property or Public Utility
2. Time for Performance ...................................................................................................... 5
2.1 Commencement and Completion Dates
2.2 Phasing Requirements
2.3 Force Majeure
2.4 Continuous Work
2.5 Reversion to Acreage
3. Labor ............................................................................................................................. 6
3.1 Labor Standards
3.2 Nondiscrimination
3.3 Licensed Contractors
3.4 Workers’ Compensation
4. Security ........................................................................................................................... 7
4.1 Required Security
4.2 Form of Security Instruments
4.3 Subdivider’s Liability
4.4 Letters of Credit
4.5 Release of Security Instruments
5. Cost of Construction and Provision of Inspection Service ............................................. 10
5.1 Subdivider Responsible for All Related Costs of Construction 01225.0006/366470.2
5.2 Payment to City for Cost of Related Inspection and Engineering Services
5.3 Payment of Development Impact Fees
6. Acceptance of Offers of Dedication ............................................................................... 10
7. Warranty of Work .......................................................................................................... 11
8. Default ........................................................................................................................... 11
8.1 Default by Subdivider
8.2 Remedies
8.3 Remedies Not Exclusive
8.4 Attorney’s Fees and Costs
8.5 Waiver
9. Indemnity/Hold Harmless .............................................................................................. 12
10. Subdivider’s Indemnity of Project Approval .................................................................. 13
11. Insurance Requirements ............................................................................................... 13
12. Environmental Warranty ............................................................................................... 15
13. General Provisions ....................................................................................................... 16
13.1 Successors and Assigns
13.2 No Third-Party Beneficiaries
13.3 No Vesting Rights
13.4 Subdivider is Not Agent of City
13.5 Time of the Essence
13.6 Notices
13.7 No Apportionment
13.8 Severability
13.9 Captions
13.10 Incorporation of Recitals
13.11 Interpretation
13.12 Entire Agreement; Waivers and Amendments
13.13 Counterparts
14. Authority ....................................................................................................................... 18
01225.0006/366470.2
1 SUBDIVISION IMPROVEMENT AGREEMENT
THIS SUBDIVISION IMPROVEMENT AGREEMENT (this “Agreement”) is entered i nto this 19th day of September, 2023, by an d between th e CITY OF CHINO, a municipal corporation, o rganized and existing in the County of San Bernardino, under and by virtue of the laws of the State of California, (“CITY”), and KG Investment LLC (Subdivider”).
RECITALS
A. Subdivider is the owner of, and has obtained approval o f a subdivision map identified as Parcel Map No. 20207, (the “Map”), located in th e City o f Chino, County of San Bernardino, State of California (the “Property”), as described on Exhibit “A”. The Map requires Subdivider to comply with ce rtain conditions of a pproval for the development of the Property (the “Conditions”) as described on Exhibit “B”.
B. Pursuant to the Conditions, Subdivider, by the Map, has offered for dedication to City for public use of the streets and easements shown on the Map. City desires to accept the streets and easements shown on the Map for public use, and certa in other improvements described in this Agreement.
C. Subdivider has delivered to City, and City has approved, plans and specifications and related document s for certain “Works of Improvement” (as hereinafter defined) which are required to be constructed a nd insta lled in order to accommodate the development of the Property.
D. Subdivider’s agree ment to c onstruct and i nstall th e Wo rks of Improvement pursuant to t his Agreement and its offer of dedication of the streets, easements and other improvements and f acilities, as shown on t he Map, are a material consideration to City in approving Final Map No. 20207 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 a nd permitting development of the Property to pro ceed, Subdivide r agrees to t imely perform all of its obli gations as set forth herein.
1. Construction Obligations.
1.1. Works of Improve ment. 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 , street ligh ting, landscaping, utility, and other improvements more fully described in Exhibit “B” attached hereto (the “Works of Improvement ”), as the same may be supplemented and rev ised from ti me to time as s et forth in thi s Agreement (said plans and specifications, together with all related documents, the “Plans”). The estimated con struction cost for the Works of Improvement is $14,700.00.
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2 1.2. Other Obligations Re ferenced in Conditions of Tentativ e M ap Approval . In addition to the foregoi ng, Subdivider shall satisfy a ll of the Conditions on the Map for the Property. The Conditions associated with the Map are included in Exhibit “B” attached 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 E ngineer, (or designee), and in full compliance with all codes and the term s of this Agreement. Su bdivider shall complete a f unctional or op erable improvement or facility , even though the Plans may not specifically call out all items of wor k required for Subdivider’s contractor to complete its tasks, incidental appurte nances, materials, and the like. If any omissions are made o r information n ecessary to carry out the full intent and meaning of the Plans, Subdivider or its contractor shall i mmediately notify its design engineer who will seek approval of the City Enginee r for furnishing of detailed instructions. In the event of a ny doubt or que stion arising regarding the tr ue meaning of any of the Plans, reference shall be made to the City Engineer whose decision thereon shall be final.
Subdivider recognizes that the P lans consis t of gener al drawings. All authorized alterations affecting the r equirements and information gi ven on the Plans shall be in writing and approved by the City Engineer . The Plans shal l be suppleme nted by such working or shop drawings as are neces sary to ade quately control the wor k. Without the City Engineer’s prior written approval, no change shall be made by Subdivider or its contractor to any plan, specification, or working or shop drawing after it has been stamped as approved.
1.4. Survey Monuments . Before f inal appro val of street improvements, Subdivider shall place survey monuments as shown on (Final/Parcel) Map No. 20207 in accordance with the provisions of the State Subdivision Map Act and the S ubdivision Ordinance of the City of Chino. Subdivider shall provide security for su ch obligation as provided in Section 4.1(a) (iii) and, after setting the monuments, Subdivider shall furnish the City Engineer written notice of the setting of said monuments and written proof of having paid the engineer or surveyor for the setting of said monuments.
1.5. Performance of W ork. Subdivider shall furnish or cause to be furnished all materials, labor, tools, equipment, utilities, transporta tion, and incide ntals required to perform Subdivider’s obligations under this Agreement.
1.6. Changes in the Work. The City Engineer, without invalidating this Agreement and without notific ation to any of the sureties or financial institutions referenced in Pa ragraph 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 Agre ement and to pro tect the public health, safety, or welfare. The City Engineer s hall notify Subdivider or its cont ractor in writi ng (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. The City and Subdivider may mutually agree upon changes to the Work s of Improvement , subject to the security requirements in Section 4.
1.7. Defective Work . Subdivider sha ll cause its contractor to repair, reconstruct, replace, or otherwise make acceptable any work found by the City Engineer to be defective. 01225.0006/366470.2
3 1.8. No Warranty by Ci ty. The Plans for the Works of Improvement have been prepared by or on behalf of Subdiv ider or its c onsultants or contractors, and City makes no representation or warranty, express or implied, to Subdivider or to any other pers on regarding the adequacy of the Plans or related documents.
1.9. Authority of the City Engineer . In add ition to the aut hority grante d t o the City Engineer elsewhere in this Agreement , the City Engineer shall have the authority to decide all questions which ma y arise as to the quality and acceptability of materials furnished and work performed, and all quest ions as to the s atisfactory and acceptable fulfillment of the terms of this Agreement by Subdivider and its contractor.
1.10. Documents Available at the Site . Subdivider shall cause its cont ractor to keep a copy of all approved Plans at the job site and shall g ive access thereto to the City’s inspectors and engineers at all times.
1.11. Inspection. Subdivider shall have an aut horized 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 S ubdivider’s c ontractor(s) regarding the Works of Improvement.
Subdivider shall cause its contrac tor to furnish the City wit h every reasonab le f acility for ascertaining whether or not the Works of Improvement as performed are in accordance with the require ments and int ent of this Agreement, including the Plans. If th e City insp ector requests it, the Subdivider’s contractor, at any time before acceptance of the Works of Improvement, shall remove or uncover such portions of the finished work as may be direct ed which have not previously been inspected. After examination, the Subdivider’s contractor shall restore said portions of the work to the standards required hereunder. Inspection or supervision by the City Engineer (or designee) shall not be considered as direct control of the individual workmen on the job site. City’s inspectors shall have the au thority 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 no t relieve Sub divider or its contractor of any obligations to fu lfill this Agreement as herein pro vided, and unsu itable materials or work may be rejected notwithstanding that such materials or work may have been previously overlooked or accepted.
1.12. Compliance with Law; Applicable Standards for Improvements. 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 applicab le federal, stat e, and local laws, ordinances, rules and regulations. In addition, without limiting the foregoing, the Subdivider shall, at its expense, obtain and comply with the conditions of all necessary permits and licenses for the construction of the Works of Improvement. The Subdivider shall also give all necessary notices and pay all fees and taxes as required by law.
Subdivider shall construct the im provements in accordance with the City standards in effect at the time of the adoption of the Approv ed Tentative Map . City reserv es the right to protect the public safety or welfa re or compl y with appl icable Feder al or State law or City zoning ordinances.
1.13. Suspension of Work. The City Engineer shall have authority to order suspension of the work for fa ilure of the Subdivider’s contractor to comply with law pursuant to Section 01225.0006/366470.2
4 1.12. In case of suspension of work for any cause w hatsoever, Subdivider and it s contractor shall be respons ible for all materials and shall store them properly if necessary , and shall provide suitable interim drainage and/or dust control measures, and erect temporary structures where necessary.
1.14. Erosion and Dust Control and Environmental Mitigation. All grading, landscaping, and construction activities shall be performed in a mann er to control er osion and pre vent flooding problems. The City Engineer shall h ave the aut hority to r equire erosi on plans to prescribe reasonable controls o n the method, manner, and tim e of grading, landscaping, and construction activities to prevent nuisa nces to surround ing propertie s. Plans shall include without limitation tempora ry drainage and erosio n control re quirements, dus t c ontrol procedures, restri ctions on truck and other con struction traffic routes, noise abatement procedures, storage of materi als and equipmen t, removal of garbage, trash, and refuse, securing the job site to prevent injury, and similar matters.
1.15. Final Ac ceptance of Works of Improve ment. After Subdivider ’s cont ractor has completed all of the Works of Improvement, Subdivider shall then request a f inal inspection of the work. If items are found by the City’s inspectors to be incomplete or not in compliance with this Agreement or any o f the requirements contained or referenced herein, City will inform the Subdivider or its contractor of such items. After the Subdivider’s contractor has completed these items, th e procedure shall then be the same as specified a bove for the Subdivider’s contractor’s initial request fo r final inspection. If items are found by City ’s inspector s to be incomplete or not in compliance a fter two (2) “final” inspections, the City may req uire the Subdivider or its contractor, as a condi tion to performing further f ield inspections, to submit i n writing a detailed statement of the work performed subsequent to the date of the prev ious inspection which was found to be incomplete or not in comp liance at t hat time. Subdivider shall be respons ible for pay ment to City Eng ineer of re -inspection fees i n the amount necessary to cover the City ’s costs for additional final i nspections, as d etermined by the City Engineer.
No inspection or acceptance per taining to specific parts of the W orks of Improve ment shall be construed as final acceptance of any part u ntil the overall final acceptance by the City Engineer is made. The City Engineer shall make a certi fication of completion and acceptance on the Works of Improvement by rec ordation of a Notice of Acc eptance on b ehalf of the Cit y.
Final acceptance shall not constitute a waiver by the City Engineer of defective work subsequently discovered.
The date on wh ich the Works of Improvement will be considered as complete shall be the date of the Notice of Acceptance.
1.16. Vesting of Ownership . Upon recordation of the Not ice of Acceptance, ownership of the Works of Improvement shall vest in the City.
1.17. Subdivider’s Obliga tion to Warn Public During Construction. Until recordation of the Notice of Acceptance, Subdivider shall give g ood and adequate warning to the public of any dangerous condition of the Works of Improvements, and shall take reaso nable actions to protect the public from such dangerous condition. Until re cordation of th e Notice of Acceptance, Subdivider sha ll provide forty-eight ( 48) hours’ advance written notice to all 01225.0006/366470.2
5 neighboring property owners and tenants affected by Subdivider’s operations or construction of the hours, dates and duration of any planned construction activities.
1.18. Injury to Public Improvements, Public Property or Pub lic Utility. Until recordation of the Notice of Acceptance of the Works of Improvement , Subdivider a ssumes responsibility for the care and maintenance of, and any damage to, the Works of Improvements. Subdivider shall replace or repair all Works of Improvements, public property, public utility facilities, and surveying or subdivision monuments and benchm arks which are d estroyed or d amaged for any reason, regardless whether resultin g from the acts of the Subdivider, prior to the recordation o f the Notice of Acceptance. Subdivider shall bear the entire cost of such replacement or repairs regardless of what entity owns the underlying property. Any repair or replacement shall be to the satisfaction, and subject to the approval, of the City Engineer.
Neither the City, nor any officer or emp loyee thereof, shall be liable or responsible for any accident, loss or damage, regardl ess of cause, occurring to the work or Works of Improvements prior to recordation of the Notice of Acceptance of the work or improvements.
2. Time for Performance.
2.1. Commencement and Completion Dates . Subject to Section s 2.2 and 2.3 below, Subdivider shall (i) commence wi th construction and installation of the Works of I mprovement thirty (30) days following City’s appr oval of the Plans ( “Commencement Date”); and (ii) complete or cause to be completed all of the Works of Improvement within two (2) years after the Commencement Date. In the event good cause exists as determined by the City Engineer, the tim e f or commencem ent of const ruction or compl etion of the Works of Improve ment hereunder may be extended by up to three (3) additional one year periods. Extensions shall be executed in writing by the City Engineer. The City Engineer in his or her sole discre tion determines whether or not the Subdivid er has established good cause for an extension. As a condition of such extension, the City Engineer may require Subd ivider to fur nish new security guaranteeing performance of this Agreement, as extende d, in an inc reased amount t o compensate for any increas e in construction costs as de termined by the City Engineer. If Subdivider requests and is granted an extension of ti me for comple tion of the improvements, City may apply the standards in effect at the time of the extension.
2.2. Phasing Requirements. Notwithstanding the provisions of Sect ion 2.1, the City reserves the right to control and regulate the phasin g of completion of specific W orks of Improvement as required to comply with app licable Cit y ordinance s, regulatio ns, and rules relating to t he timely provis ion of public services and fa cilities. In addition to whatever other remedies the City may have for Subdivider’s failure to sati sfy such phasing requirements, as the same now exi st or may b e amended f rom time to time, Subdivider a cknowledges City’s right to w ithhold the issuance of f urther building permits on the Property until such phasing requirements are satisfied. Prior to iss uance of building permits, Subdivider shall provid e satisfactory evidenc e that all a pplicable requi rements that are a condition to issuance of building perm its have been satisfied. Such requirements may include the payment of f ees, construction of improvem ents, or both. Final inspections or issuance of C ertificates of Occupancy may be wi thheld from the Subdivider by the City, if, upon a determination by the City Engineer, completion of specific Works of Improvements or other re quirements associated with th e d evelopment of the Property have not been comple ted to the City Engine er’s satisfaction.
01225.0006/366470.2
6 2.3. Force Majeure. Not withstanding the provisions of Section 2.1, S ubdivider’s time for commencement and completion of the Works of Improv ement shall be e xtended for t he period of any enforced delay caused due to circ umstances beyond the control and without the fault o f Subdivider, including t o th e extent applicable adver se weather conditions, flood, earthquakes, strikes, lockouts, pandemics, acts or failures to act of a public agency (including City), required changes to the sco pe of work required by City, and simil ar causes; provided, however, that the period of any enfo rced delay hereunder shall not include any period longer than five (5) days prior to Ci ty’s receipt of a written notice from Subdivider or its contractor detailing the grou nds for Subd ivider’s claim to a right t o extend its tim e fo r performance hereunder. The City Engineer shall evaluate all claims to Force Majeure and make a reasonable det ermination re garding the length of any extension of time for co mmencement and/or completion of the Works of Improvement and the City Engineer’s decision shall be final.
2.4. Continuous Work . After commencement of construction of the Works of Improvement (or sep arate portion thereof), Subdivider shall cause such work to be diligently pursued to completion, and shall not abandon the work for a consec utive 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 rever t the Property to acreage subject to the limitations and requirements set forth in California Government Code Section 66499.11 through Section 66499.20.1.
3. Labor.
3.1. Labor Standards. This Agreement is subject to, and Subdivider agrees to comply with, all o f the applicable provisions of the Labor Code includ ing, but not limite d to, the wage and hour, prev ailing wage, worker compensation, and various oth er labor req uirements i n Division 2 , P art 7, Chapter 1 , includ ing section 1720 to 1740, 1770 to 1780, 1810 to 1815, 1860 to 1861, which provisions are specific ally incorporated h erein by referen ce as set for th herein in their entirety. Subdivider shall expressly require compliance with the provisions of this Section in all agreement s wi th contractors and subcon tractors for the performance of the Works of Improvement.
3.2. Nondiscrimination. In accorda nce with the California Fair Employment and Housing Act (“FEHA”), California Government Code Section 12940 et seq., Subdivider agrees that Subdivider, its agents, employ ees, contractors, and subcontractor performing any o f the Works of Impr ovement shall not discriminate, in any way, against any person on the basis of race, ethnicity, religious creed, color, national ori gin, anc estry, physical disability, mental disability, medical condition, genetic information, marital st atus, sex, gender, gender identity, gender expre ssion, age, sexual orientation, or military and v eteran statu s. Subdivid er shall expressly require comp liance w ith the provisio ns o f this Section in all agr eements with contractors and subcontractors for the performance of this Agreement.
3.3. Licensed Contractors. Subdivider shall cause all of the Works of Improvement to be constructed by contractors and subcontractors with valid California Contractors’ licenses for the type of work being performed. All of Subdiv ider’s contractors and subcontracto rs shall obtain a valid City of Chino business license prior t o performing any work p ursuant to t his Agreement. Subdivider shall provide the City Engineer with a list of all of its contractors and 01225.0006/366470.2
7 subcontractors prior to initiating any work , and all valid Contractor’s licenses and business licenses issued thereto as a condition of constructing the Works of Improvements.
3.4. Worker’s Compensation . Subdivider shall cause every contractor and subcontractor performing any of the W orks of Improvement to carry Worker s’ 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 f urnish to City the follo wing bonds, letters of credit , instruments of credit (assignment of deposit accou nt) or other securi ty acceptable to City in its sole and absolute discretion and satisfying the r equirements of the appl icable provi sions of this Section 4 below (hereinafter “Security Instruments”):
(i) A Security Instrument securing Subdivider ’s faithful performance of all of the Works of Imp rovement ( “Faithful Performance Security Instrument”), in the amount of $14,700.00 equal to 100% of the estimated construction cost referenced in Section 1.1.
(ii) A Security Instrument guaranteeing the payment to contracto rs, subcontractors, and other persons furnishing labor, materials, and/or equipment ( “Labor and M aterials Security Instrument”) with respect to the Works of Im provement in an amount equal to $7,400.00 equal to 50% of the estimated construction cost referenced in Section 1.1.
(iii) A Security Instrum ent gu aranteeing the payment of the cost of setting mon uments as requir ed in S ection 1.4 in the a mount of $0.00 equal to 100% of the cost thereof.
This Agreement shall n ot be effective for any purpose until s uch Security Instruments are supplied to and approved by City in accordance herewith. (b) Required Security Instrument for Maintenance and Warranty . Prior to the City C ouncil’s a cceptance of the Works of Improvement and recordation of a Notice of Completion, Subdivider shall de liver a Security Instrument w arranting the wo rk accepted for a period of one ( 1) year following said acceptance (“Maintenance and Warranty Se curity Instrume nt”), in the amount of $1,500.00 equal to 10% of the estimated construction c ost set forth in Se ction 1.1 or a suitable amount determined by the City Engineer.
4.2. Form of Securi ty Instrum ents. All S ecurity Instruments shall be i n the amounts required unde r Se ction 4.1 (a) or 4.1(b), as applicable, sh all meet the following minimum requirements and otherw ise shall be in a form provided b y City or otherw ise approved by the City Attorney:
01225.0006/366470.2
8 (a) Bonds. For Security Instruments provided in t he form of bonds , any such bond must be issued and executed by an insuran ce company or bank authorized to tr ansact surety busin ess in the State of California. A ny i nsurance com pany acting as surety shall h ave a mini mum rating of A-IX, as rated by the curre nt edition of Be st’s Key Rating Guide published by A.M. Best ’s Company, Oldwick, New Jersey, 08858. Any bank acting as surety s hall have a minimum rating of AA, as rated by Moody’s or Standard & Poor’s.
(b) Letters of C redit. For Security Instruments which ar e letters of cre dit, any letter of credit shall be an original separate u nconditional, irrevocable, negotiable and transferable commercial letter of credit issu ed by a financia l 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 un ilateral certification of the City Engineer of the Cit y that Subdivider is in default u nder its payment or performance obligations h ereunder o r in the ev ent Subdivider fails to delive r a replacement letter of c redit 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 Cre dit. For S ecurity Ins truments which are Instruments of Credit, any Instrument of C redit shall be an assignment of deposit ac count 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) Cash Deposit . For Sec urity Instruments which are Cash Deposits , Developer shall complete the C ash Deposit to Sec ure Faith ful Performance attached her eto as Exhibit D and Developer and City shall ab ide by the terms thereof..
(e) 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 Chino, State of Calif ornia (and the Security Instrument shall so provide).
(ii) Each Se curity Instrument shall have a minimum term of one (1) year after the dead line for Subdivider ’s completing the Works of Improvement, in accordance with Section 2.1 (other tha n Instruments of Cred it, 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 pursuan t to the terms of this Agreement without notice to any issuer or surety and wi thout affecting the obligations under such Security Instrument. (iv) If the Subdivider seeks to replace any security with another security, the replacement shall: (1) comply with all the requirements 01225.0006/366470.2
9 for security in this Agreement; (2) be provided by the Subdiv ider to the City Engi neer; and (3) upon its written acceptance by the City Engineer, be deemed a pa rt of this Agreement. Upon the City Engineer’s acceptance of a replacement secu rity, the former security shall be released by the City.
4.3. Subdivider’s Liability. While no action of Subdivider shall be required i n order for City to realize on its security und er any Security Instrument, Subdivider agrees to cooperat e with City to facilit ate City’s realization under any Security Instrument, and to take no actio n to prevent City from such realization of any Security Instrument. Notwithstanding the giving of any Security Instrument or the subsequent expiration of any Se curity Instrument or a ny failure by any surety or finan cial institution to perform its obligatio ns 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 t he improvements requir ed to be constructed or installed hereby and shall, within ten (10) days a fter wr itten d emand there for, deliver to City such subst itute security as City shall require satisfying the requirements in this Section 4.
4.4. Letters of Credit.
(a) In the event a letter o f credit is given pursuant to Sec tion 4.2(b), City shall be entitled to dr aw on a ny such letter of credit if a replacement letter of credit (expiring in not less than one (1) ye ar, unless City agrees to a lesser term in City’s sole and absolute discretion) is not delivered not less than t hirty (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 d elivered hereunder, is sued by a financial institution a cceptable 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 Ci ty may elect, in its sole and absolute discretion, to app ly any such funds drawn to the obligations secured by s uch letter of credit or to hold such fund s in an account under the control of the City, with no i nterest accruing t hereon f or t he benefit of the Subdivider. If the City elects to hold the funds in an account pursuant to th e foregoing, City may thereafter at any time elect instead to apply such f unds as provided in the f oregoing. Subdivider agrees an d hereby grants Ci ty a sec urity interest in suc h account to the extent required for City to realize on i ts interests therein, and agrees to execute and deliver to City any other documents requested by City i n order to evidenc e the creation and perfection o f City ’s security interest in such account.
4.5. Release of Security Instruments . The City shall release all Security Instruments consistent with Government Code Se ctions 66499.7 and 66499.8 , Section 19.09 .010 of the Chino Municipal Code, and as follows:
(a) City shall release the F aithful 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; 01225.0006/366470.2
10 (ii) the Works of Improvement have been accepted;
(iii) Subdivider has delivered the Maintenanc e and Warranty Security Instrument; and
(iv) after passage of the time within which lien claims are required to be made pursuant to Title 3 (commencing with Section 9000) of Part 6 of Division 4 of the Civil Code of the State of California. If lien claims have been timely filed, Cit y 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) City shall release the Maintenance and Warranty Secur ity Instrument upon Subdivider’s written request upon t he e xpiration of the warranty period, and settlement of any claims filed during the warranty period. (c) The City may r etain fr om a ny security relea sed, an amount sufficient to cover costs and reasonable e xpenses and fees, incl uding reasonable attorney ’s fees.
5. Cost of Construction and Provision of Inspection Service.
5.1. Subdivider Responsible for All Costs o f Construction . Subdivider shall be responsible for payment of all costs incurred for construction and i nstallation of the Wor ks of Improvement. In the event Subdivider is entitled to reimbursement f rom Cit y for a ny of the Works of Improvement, such reimb ursement shall be subject to a separate Reimbur sement Agreement to be entered into between Subdivider an d City prior to constr uction of the Works of Improvement.
5.2. Payment to City for Cost of Related In spection and E ngineering Services.
Subdivider shall co mpensate City for all of C ity’s costs reasonabl y incurred in having its authorized representative make t he us ual and customary inspections of the Works of Improvement. In addition, Subdivider shall co mpensate City for all des ign, plan check, evaluating any proposed or agreed-upon changes in the work. The procedures for deposit and payment of such fees shall be a s established by the City. In no event shall Subdi vider be entitled to additional inspectio ns or a final inspection and acceptance of any of the Wo rks of Improvement until all City fees and char ges have been fully paid, including without limitation, charges for applicable penalties and additional required inspections.
5.3. Payment of Development Impact Fees. Subdivider shall pay Development Impact Fees pu rsuant to and in a ccordance wi th Chino Municipa l Code Chapter 3.40 or 3.45, as applicable.
6. Acceptance of Offers of Dedication . The C ity Council shall pass as a ppropriate resolution or resolutions acce pting 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 Clerk to execute the Certificate made a part of the Map regarding said acceptance of the offer of dedication. 01225.0006/366470.2
11 7. Warranty of Work. Subdivider shal l guarantee all Works of Improvement against defective ma terials and workmanshi p for a period of one (1) year fr om t he date of final acceptance. If any of the Works of Improvement should fail or prove defecti ve within said one (1) year period due to any r eason other than improper maintenance, or if any settleme nt of fill or backfill occurs, or should any portion of the Works of Improvement fail to fulfill any requirements of the Plans, Subdivider, within fifte en (15) days after written notice of such defects, or within such shorter time as may reasonably be dete rmined by the City in the event of emergency, shall com mence to repair or replace the same toget her wit h any o ther work which may be damaged or displace d in so doing. Should Subdivider fail to remed y defective material and/or workmanship or make replaceme nts or repairs within the pe riod of time set forth above, City may make such repairs and replace ments and the actual cost of the required labor and mate rials shall be cha rgeable to and payable by Sub divider. The warranty provided herein shall not be in lie u of, but shall be in addition to, any warranties or ot her obligations otherwise imposed by law.
8. Default.
8.1. Default by Subdivider. Default by Subdivider shall include, but not be limited to:
(a) Subdivider’s failure to timely commence construction of Works of Improvement under this Agreement;
(b) Subdivider’s failure to timely complete construction of the Work s of Improvement;
(c) Subdivider’s failure to perform substantial construction work for a period for 20 consecutive calendar days after commencement of the work; (d) Subdivider’s insolvency, appointment of a receiver, or th e fi ling of any petition in bankruptcy, e ither v oluntary or involu ntary, which Subdivider fails t o discharge within 30 days;
(e) The commencement of a foreclosure action against the subdivision or a portion thereof, or any conveyance in lieu or in avoidance of foreclosure; or (f) Subdivider’s failure to perform any other obligation under this Agreement.
8.2. Remedies. The City rese rves all remedies available t o it at law or in equity for a default or breach of Subdi vider’s obligations un der th is Agreement. The City shal l ha ve the right, subject to this Section, to draw upon or use the appropriate security to mitigate the City’s damages in t he e vent of default b y Subdivider. The City ’s right to draw upon or use the security is in addition to any other remedy available to City. The parties acknowledge that the estimated costs and securit y amounts may not reflect the a ctual cost of cons truction of the improvements and, therefore, City ’s damages for Subdivider ’s default s hall be measured by the cost of completing the required improvements. The City may use the sums provided by the securities for the completion of the Wor ks of Improvement in accordance with the plans. In the event the Subdivider fails to cure any default un der this Agreement wit hin 20 days after the City mails a notice of such default to the Subdivide r and t he Subdivider’s surety, Subdivider authorizes the City to perform t he obligation for which Subdi vider is in default and agrees to 01225.0006/366470.2
12 pay the entire cost of such performance by th e City . The City may take over th e wo rk and complete the Works of Improvem ent, by contract or by an y other method City deems appropriate, at the expense of the Subdivider. In such event, City, without liability for doing so, may compl ete the Works of Impro vement using any of Subdivider ’s materials, appliances, plans and other pr operty that ar e at the wo rk site and that are necessary to complete the Works of Improvement.
8.3. Remedies Not Exclusive. In any case where this Agreement provides a specific remedy to City for a default by Subdivider hereunder, the Subdivider agrees that the choice of remedy or remedies for Subdivider’s breach sha ll be in the discr etion of the City. Additionally, any remedy specifically provided in this Agreement 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.
8.4. Attorney’s Fees and Costs. In th e event that Subd ivider fails to perform any obligation under this Agreeme nt, Subdivider agrees to pay all cos ts and expenses inc urred by City in securing performance of such ob ligations, includi ng costs of suit and reasonable attorney’s fees. In the e vent of any dispute a rising out of Subdivider ’s performance of its obligations under this Agreement or under any o f the Security Inst ruments referenced herein, the prevailing party in such action, in addition to any other relief w hich may be grante d, shall be entitled to recover its reasonable attorney ’s fees and costs. Such attorney’s fees and cost shall include fee s and costs on any appeal, and in addition a party entitled to atto rney’s fees and costs shall be entitled to all ot her reasonable cos ts incurred in investigating such action, taking depositions and discovery, retaining expert witnesses, and all other nece ssary and related costs with respect to the litigation. All such fe es 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.
8.5. Waiver. No waiver by t he City of any breach or default by the Subdivider shall be considered valid unless in writing, and no such waiver by the City sha ll be deemed a waiver of any subsequent breach or default by the Subdivider.
9. Indemnity/Hold Harmless . Ci ty or any officer, emp loyee or agent thereof shall not be liable for any injury to persons or property occasioned by reas on of the acts or omissions of Subdivider, its ag ents, employees, contractors and subcontractors in the performance of this Agreement. Subdivider further agrees to protect, defend, indemnify and hold harmless City, its officials, boards a nd comm issions, an d members thereof, agents, and employees from any and all claims, demands, cau ses of action, liability or loss of any sort, because of, or arising out of, acts or omissions of Subdivider, it s agents, employees, contractors and subcontract ors in the perform ance of this Agreement, except for such claims, d emands, causes of action, liability or loss arising out of the sole active negligence of the City, its offic ials, boards, commissions, the me mbers thereof, agents and employees, including a ll clai ms, demands , causes of action, liability o r loss because of or arising out of, in whole o r in part, the design or construction of the improvements . This indemnification and agreement to hold harmless s hall extend to injuries to persons and damages o r taking of proper ty resulting from the design or construction of s aid Subd ivision, and the publ ic improvements as provided herein, and in addition, to a djacent property owner s as a consequ ence of the diversi on o f waters from the design and construction of public drainage s ystems, streets and other impro vements.
Recordation of th e Notice of Acceptanc e by the City of the Works of Improvements shall not 01225.0006/366470.2
13 constitute an assumption by the City of any responsibility for any damage or taking covered by this Section. City shall not b e responsible for the design or construction of t he property to be dedicated o r the improvements pursuant to the approved improvement p lans or map, regardless of any negligent action or inac tion taken by the City in approving the plans or map, unless the p articular improvement design wa s specifically req uired by City over written objection by Subdivider submitted to the City Engineer befo re approval of the par ticular improvement design, which objection indicated that the particular improve ment de sign was dangerous or defective and suggested an alternative safe and feasible design.
After recordation of the Notice of Acceptance , the Subdivi der shall remain oblig ated to eliminate any latent defe ct i n design or dangerous condition caused by th e design or construction defect for a period of one (1) year ; however, Subdivider shall not be r esponsible for routine maintenance. It is the intent of t his section that Subdi vider shall be responsible for all liability for design and construction of the i mprovements installed or work do ne pursuant to this Agreement and that City shall not be liable for any negligence, nonfeasance, misfeasance or malfeasance in approving or rev iewing any work or construction. The improvement security shall not be required to cover the provisions of this Paragraph.
Subdivider shall reimburse the City for all costs and expenses, including but not limited to fees and charges of architects, enginee rs, attorneys, and other professi onals, and court costs, incurred by City in enforcing this Section.
10. Subdivider’s Indemnity of Project Approval. Subdivider shall defend, indemnify, and hold harmless the City and its agents, officers, and employees from an y claim, action, or proceeding against the City or its agents, officers, or emplo yees to attack, set aside, void, or annul, an app roval of the City, advisory agency, appeal boar d, or legislative body concerning the Subdivision. The Ci ty shall promptly noti fy the Subdivider of any claim, a ction, or proceeding and cooperate fully in the defense of any such claim, action, or proceeding. In the event City fails to promptly notify the Subdivider of any claim, action, or proceeding, or if th e City fails to cooper ate in the defense, the Subdivide r sh all not thereafter be responsible to defend, indemnify, or hol d harmless the City. Nothing in this Section proh ibits the Ci ty from participating in the defense of any claim, action, or proceeding i f City bears its own a ttorney’s fees and costs and defe nds the action in good faith. Subdivider shall n ot be required to pay or perform any settlement unless the settlement is approved by the Subdivider.
11. Insurance Requirements. Subdivider, at Subdivider’s sole cost and expense and for the full term of this Ag reement and any extensions thereto, shall obtain and ma intain all of the following minimum insura nce requirements i n a form approved by the City’s authorized designee for Risk Management prior to commencing any work:
(a) Commercial General Liability policy wi th a minimum $1 million combined single limit fo r bodil y injury an d property dam age providing all of the following minimum coverage without deductibles:
(i) Premises operations; including X, C, and U coverage; (ii) Owners’ and contractors’ protection;
(iii) Blanket contractual;
01225.0006/366470.2
14 (iv) Completed operations; and
(v) Products.
(b) Commercial Business Auto policy w ith a minimum $1 million combined single li mit for bodily injury and property damage, providing all of the following minimum coverage without deductibles:
(i) Coverage shall apply to any and all leased, owned, hired, or non - owned vehi cles used i n pursuit of a ny of the activit ies associated with this Agreement; and
(ii) Any an d all mobile equipment including cranes which are not covered under the above C ommercial Business Auto policy sh all have said coverage provided under the Commer cial Ge neral Liability policy.
(c) Workers Compensation and Employers ’ Liability policy in accordan ce with the laws of the State of California and providing coverage for any and all employees of the Subdivider:
(i) This policy shall provide coverage for Workers ’ Compensation (Coverage A); and
(i) This policy shal l provide coverage for $1,000,000 Employers’ Liability (Coverage B).
(ii) Pursuant to Labor Code section 186 1, Subdivider by execu ting this Agreement certifies: “I am aware of the provisions of Section 3700 of t he Labo r Code whic h requires eve ry employer to be insured against l iability for Workers’ Compensation or to undertake self - insurance in accordance with t he provisions of that Code, and I will comply with such provisions before commencing the performance of the work of this contract.”
(iii) Prior to commencemen t of work, the Sub divider shall file with the City’s Risk Manager a Certificate of Insurance or certific ation of permission to self-insure workers’ compensation conforming to the requirements of the Labor Code.
(d) Endorsements. All of the fo llowing endorsements are required t o be made a part of each of the above-required policies as stipulated below:
(i) “The City of Chino, its officers, employees and agents are here by added as additional insureds.”
(ii) “This policy shall be considered primary insurance with respec t to any other val id a nd c ollectible insurance the City may possess, including any self - insured retenti on the City may have a nd any 01225.0006/366470.2
15 other insurance the City d oes possess shall be considered excess insurance only.”
(iii) “This insurance shall act for each insured and additional insured as though a separate policy has been written for each. This, however, will not act to increase the limit of the insuring company.” (iv) “Thirty (30) days prior written notice of cancellation shall be given to the City of Chino in the event of cancellat ion and/or r eduction in coverage, except that ten (10) days prior written notice shall apply in the event of cancellation for non -payment of premium.” Such notice shall be sent to the Risk Manager at the address indicated in Subsection f below.
(v) Subsection d(iv) h ereinabove “Cancellation Notice ” is the only endorsement required of the Worke rs’ Compensation and
Employers’ Liability policy.
(e) Admitted Insurers. All insurance companies providing insurance to the Subdivider und er this Agreement shall be admitted to transact the business of insurance by the California Insurance Commissioner.
(f) Proof of Coverage. Copies of all required endorsements shal l be attached to the Certificate of Insurance wh ich sha ll be provi ded by the Sub divider’s insurance company as evid ence of the coverage required herein and shall be mailed to:
City of Chino
Risk Management
13220 Central Avenue
Chino, CA 91710
12. Environmental Warranty.
12.1. Prior to the acceptance of any de dications or Works of Improvemen t by City, Subdivider shall provide City with a written warranty in a form substantially similar to Exhibit “C” attached hereto and incorporated herein by reference, that:
(a) Neither the property to be dedicated nor Subdivider are in violation of any environmental law, and n either the propert y to be dedicated nor the Sub divider are subject to any existing, pending or threatene d investigation by any federal, state or local governme ntal authority under or in connection with the environmental laws relating to the property to be dedicated. (b) Neither Subdivider nor any other person with Subdivider’s permission to be upon the property to be dedicated shall use, generate, manufacture, prod uce, or release, on, under, or about the propert y to be dedicated, any Hazardous Substance except in compliance wit h all applicable environmental laws. For the purposes of this Agreement, the term “Hazardous Substances ” shall mean any 01225.0006/366470.2
16 substance or material which is capable of posing a risk of injury to health, safety or property, incl uding all those m aterials and subst ances de signated as hazardous or toxic by any federal, state or local law, ordinance, rule, regulation or po licy, including but not limited t o, a ll of those materials and substances defined as “Toxic Materials” in Sections 66680 through 6 6685 of Title 22 o f the California Code of Regu lations, Division 4, Chapter 30, as the same shall be amended from time to time , or any other materials requirin g remediation under federal, state or local laws, ordinances, rules, regulations or policies. (c) Subdivider has not c aused or permitted the releas e of, and has no knowledge of the release or presence of, any Hazardous Substan ce on the property to be dedicate d or the migration of any hazardous substance fr om or to any other property adjacent to, or in the vicinity of, the property to be dedicated. (d) Subdivider’s prior and present use of the property to be d edicated has not resulted in the release of any hazardo us s ubstance on the property to be dedicated.
12.2. Subdivider shall give prompt written notice to City of:
(a) Any proceeding or investigation by any federal, state or local governmental (b) authority with respe ct to the presence of any hazardous substance on the property to be dedicated or the migration thereof from or to any oth er property adjacent to, or in the vicinity of, the property to be dedicated. (c) Any claims made or threatened by any third party against City or the property to be dedicated relating to any l oss or injury resulting from any hazardous substance; and
(d) Subdivider’s discover y of any occurren ce or condition on any property adjoining or in the vicinity of the property to be dedicated that could cause the property to be dedicated or any part thereof to be subject to any restrictions on its ownership, occupancy, use for the purpose for which it is intended, transferability or suit under any environmental law.
13. General Provisions.
13.1. Successors and Ass igns. This Agreement s hall be binding upon all successo rs and assigns to Subdivider ’s right, title, and interest in and t o the Property and any portion thereof. Subdivider h ereby co nsents to City re cording this Agreement as official records of San Bernardino County, affecting fee title interest to the Property to provide constructive notice of the rights and obligations incurred by Subdivider in the City’s approval of this Agreement. In the event th e Property is subsequently conveyed by Subdivider to a th ird party prior to completion of the Works of Improveme nt, whereby the third party is intended to assum e Subdivider’s res ponsibilities with regard to th is Agreement, (the “Replacement Subdivider”), the rights and obligations of this Agreement shall transfe r to the Replacement S ubdivider; however, the Security Instruments required pursuant to Section 4 of th is Agre ement, and furnished by S ubdivider as a co ndition of the Cit y’s approval of this Agreemen t, shall remain 01225.0006/366470.2
17 Subdivider’s responsibility to maintain u ntil such time as Subd ivider and its Replacement Subdivider enter into a Transfer and Assignment of Sub division Agreement , (the “Transfer Agreement”), to acknowledge the transfer of fee title to the Property from the Subdivider to its Replacement Subdivider, and to acknowledge the rights and obligations associ ated with this Agreement upon the Replacement Su bdivider, includin g Replacement Subdivider’s responsibility to furnish replacement Security Instruments meeting the City’s approval pursuant to Section 4 of this Agreement. U ntil such time as a Transfer Agre ement, meeting the City ’s approval, is executed by Subd ivider and its Replacemen t Subdivider, and replacement Security Instruments meeting City ’s approval are furnished by the Replacement Subdivider, Subdivider retains sole responsibility for maintaining all Security Instruments required pursuant to Section 4 of this Agreement.
13.2. No Thi rd-Party Benefici aries. This Agreem ent is i ntended to benefit on ly the parties hereto and their respective successors and assigns. Neither City nor Subdivider intend to create any third-party beneficiary rights in this Agree ment in any contractor, subcontractor, member of the general public, or other person or entity.
13.3. No Vesting Rights. Performance by the Subdivider of this Agreement shall not be construed to vest Subdivider ’s rights with respect to any change in any zoning o r building law or ordinance.
13.4. Subdivider is Not Ag ent of City. Neither S ubdivider nor Subdivider ’s agents, contractors, or subcontractors are agents or co ntractors of the City in connection with the performance of Subdivider’s obligations under this Agreement.
13.5. Time of the Essence. Time is of the essence of Subdivider’s performance of all of its obligations under this Agreement.
13.6. Notices. Unless otherwise spe cified in this Agreeme nt, all notices required or provided for under this Agreement shall be in writing and delivered in person or sent by mail, postage prepaid and addre ssed as provided in this Sect ion. Notice shall be effective on the date is delivered i n person, or, if maile d, on the date of deposit in the United States Mail.
Notice shall be provided to the per sons listed on Pages 1 an d 2 of this Agree ment by the parties for this purpose.
Either pa rty may provide a new designated representative and/or ad dress by written notice as provided in this Section.
13.7. No Apportionment. Nothing contained in this Agreem ent shall preclude City from expending monies pur suant to agreement s concurrently or previously executed between the parties, or from entering into agree ments with other subdividers for the apportionment of c osts of water and sewer mains, or other improvem ents pu rsuant to t he provisions of the City ordinances providing th erefore. Nor shall anything i n the Agreement commit City to any such apportionment.
13.8. Severability. I f any por tion of this Agreement is held in valid by a court of competent jurisdiction, the remainder of the A greement shall remain in full f orce and effect unless amended or modified by mutual written consent of the parties. 01225.0006/366470.2
18 13.9. Captions. The captions of this Agreement are for convenience and reference only and shall not be used in the interpretation of any provision of this Agreement.
13.10. Incorporation of Recitals. The recitals to this Agreement are hereby incorporated into the terms of this Agreement.
13.11. Interpretation. This Agreement shall be interpreted in accordance with the laws of the State of California.
13.12. Entire A greement; Waiv ers and Amendment s. This Agreement integrates a ll of the terms a nd conditions mentioned herein, or incidental hereto, and supersedes all negotiations and previous agreements be tween the parties with respect to all or part of the subject matte r hereof, exce pt as may be expr essly provided her ein. All waivers of the provisions of this Agreement must be in writing and signed by an authorized representative of the party to be charged , an d all amendments hereto must be in writing a nd sign ed by the appropriate representatives of both parties.
13.13. Counterparts. This Agreement may be executed in one or more counterparts, all of which taken together shall be deemed one original.
14. Authority. The persons executing this Agreement on behalf of t he parties warrant the (I) party is duly organize d and existing, (i i) they are duly authorized t o execute and deliver this Agreement on behalf of said pa rty, (iii) by so execu ting this Agreement, such party i s formally bound to the provisions of this Agree ment, and (iv) the entering into of this Agreemen t does not violate any provisions of any other agreement to which said party is bound. [SIGNATURES ON NEXT PAGE]
01225.0006/366470.2
19 IN WITNESS WHEREOF, the City and the Subdivider have caused this Agreement to be executed the day and year first above written.
APPROVED AS TO FORM: APPROVED AS TO CONTENT:
___________________________ _____________________________ Fred Galante, City Attorney Warren Morelion, AICP
Interim Director of Development Services
SUBDIVIDER: KG INVESTMENT LLC
By:__________________________
(Signature and Date)
Name:__________________________
(Please type or print name)
Title:__________________________
(Please type or print title)
CITY OF CHINO
______________________________
Dr. Linda Reich, City Manager
Dated: ______________________________
ATTEST:
By
Natalie Gonzaga, City Clerk
Dated: ___________________________
01225.0006/366470.2
01225.0006/366470.2 A-1
EXHIBIT “A”
PARCEL MAP 20207
01225.0006/366470.2 B-1
EXHIBIT “B”
PARCEL MAP 20207 WORKS OF IMPROVEMENT
A. Removal of undesirable, dangerous and dead plant materials and roots.
B. All onsite and offsite grading as specified on the approved grading plan.
C. Relocation of all public utility struct ures as necessary t o properly construct the required improvements.
D. Storm drain facilities as required and shown on the approved construction plans and in accordance with City Standards.
E. Sanitary sewers constructed as s hown on the approved, en gineered plans and in accordance with City Standards.
F. Water mains, valves, hydrants, s ervices, meters and appur tenances to serve each lot as shown o n the approved construction plans a nd in accordance w ith City Standards.
G. Underground installation of all ele ctrical, telephone, cable televis ion and any other energy or communication lines that abut or are within the project site.
H. A street lighting system (City-owned) in accordance with City Standards.
I. Disposal of all rock s and debris loc ated within any public r ight-of-way wi thin said development or on the boundary streets thereof.
J. Installation o f concre te curbs, gutters , sidewalks, cross gutters, driveways and intersections as shown on appr oved construction plans and in ac cordance with City Standards.
K. Installation of asphalt concrete or Portlan d Cement Co ncrete s treet pavement on base material as shown on approved construction plans and in accordance with C ity Standards.
L. Street signs at intersections per the City Standards.
M. Installation of approved landscaping (plants and materials).
N. Setting monuments as required by the State Code.
The Subdivider shall also perform all wo rk and furnish all materials necessar y, in the opinion of the Director of Development Serv ices or his des ignee and on his order, to complete the improvements in accordance wi th the plans and specif ications on file as hereinbefore specified, or any changes required or ordered by said Engineer which, in his opinion, are necessary or required to complete this work. 01225.0006/366470.2 C-1
EXHIBIT “C”
PARCEL MAP NO. 20207
KG Investment LLC
ENVIRONMENTAL WARRANTY
As a condition precedent to acc eptance of the dedicat ions and public improvements to be conveyed by the above -named Subdivider t o the City of Chino for the above-referenced Subdivision, Subdivider hereby warrants to the City of Chino that:
1. Neither the property to be dedicated nor Sub divider are in violati on of any environmental law, and neither the property to be dedicated nor t he Subdivider are subject to any existing, pending or threatened investigation by any federal, state or local governmental authority under or in connection wit h the e nvironmental laws relating to the property to be dedicated.
2. Neither Subdivider nor any other person with Su bdivider’s p ermission to be upon the prop erty to be dedicated ha s used, generated, manu factured, produced, or released, on, under, or abou t the p roperty to be d edicated, any Hazar dous Substance except in compliance with all applicable environmental laws. F or the purpo ses of this warranty, the ter m “Hazardous Substances ” shall mean any substa nce or material which is capable of posing a risk o f injur y to health, sa fety or property, i ncluding all those materials and substances designated a s hazardous or toxic by any federal, state or local law, ordinance, rule, regulation or policy, including but not limited to, all of those materials and substances defined as “Toxic Materials” in Sections 66680 through 66685 of Title 22 of the California C ode of Regulations, D ivision 4, C hapter 30, as the same shall be amended from time to time, or any other mat erials requiring remediation under federal, state or local laws, ordinances, rules, regulations or policies.
3. Subdivider has not caused or permit ted the release of, a nd has no knowledge of th e rel ease or pre sence of, any Hazardous Substance on the prope rty to be dedicated or the migration of any hazardo us substance from or t o any other propert y adjacent to, or in the vicinity of, the property to be dedicated.
4. Subdi vider’s prio r and present use of the prop erty to be dedicated ha s not resulted in the release of any Hazardous Substance on the property to be dedicated.
5. All persons executing this warranty hereby represent and warrant to the City of Chino, and Subdivider hereby r epresents and warrants, that the signators hereto ha ve the legal power, rig ht and authority to execute this warranty on behalf of the Subdivider and that the signators hereto have sufficient knowledge or expertise, either p ersonally, through reasonable inspection and i nvestigation of the property, or throug h reasonable reliance upon the investigation and professional opinion of S ubdivider’s environmental experts, to mak e the representations herein, and that no consent of any other party is 01225.0006/366470.2 C-2
required to execute this warranty and make the representations herein on behalf of the Subdivider to the City of Chino.
Each of the undersigne d perso ns declares und er penalty of perju ry that the foregoing is true and correct.
Dated: _________________________
SUBDIVIDER*
KG Investment LLC
*Proof of authorization for Subdivider ’s signatures is required to be submitted concurrently with this environmental warranty.
01225.0006/366470.2 D-1
EXHIBIT “D”
See Cash Deposit Agreement to Secure Performance of Public Improvements following this page
CASH DEPOSIT AGREEMENT TO SECURE
PERFORMANCE OF PUBLIC IMPROVEMENTS
This Cash Deposit Agreement to Secure Performance of Public Improvements (“Deposit Agreement”) is provided with the Public Improvement Agreement between KG Investment, LLC, (“Developer”) and the City of Chino (“City”), dated September 5, 202 3 (“Public Improvement Agreement”), together with any changes or alterations there to agreed upon in writing by the Developer and the City, to secure the construction of public improvements described in the Public Improvement Agreement . By this Deposit Agreement, Developer pledges that a Cash Deposit in the separate amounts described as follows:
1. Faithful and Performance: $14,700.00,
2. Labor and Material: $7,400.00,
3. Warranty: $1,500.00
The above amounts sh all collectively be described herein as “Cash Deposit” and be deposited with the City concurrently with Developer’s execution of the Public Improvement Agreement and shall be held by the City in trust for the purpose of guaranteeing t he faithful performance by the Developer of co nstructing the public improvements referred to in the Public Improvement Agreement as the Works of Impr ovement. The Works of Improvement shall be constructed in accordance with the Public Improvement Agreement . Any other security required under the Public Improvement Agreement not listed above shall be provided in the form of separate bonds or other acceptable security pursuant to Section 4.2.
The City will hold said Cash Deposit until such time that the City a uthorizes its release per the terms of t he Public Improvement Agreement. Developer and City acknowledge that the funds will be available for immediate use and no interest will be due Developer or owed by the City on the Cash Deposit. Prior to the completio n and acceptance of the Works of Improvement by the City and with the written authorization of the City Engineer and/or his/her designee , in his/her discretion, said funds may be reduced as the required improvements are satisfactorily completed and tentatively accepted by the City Engineer and/or his/her designee.
If the Developer fails to complete the Works of Improvement pursuant to the Public Improvement Agreement, then the City Engineer and/or his/her designee shall submit a signed statement to the Developer providing notice that said improvements have not been completed to the satisfaction of the City and as required by the Developer pursuant to the Public Improvement Agreement. The Developer shall complete said improvements within the times provided in the Public Improvement Agreement. If the Developer is not granted time extension or fails to comply with the revised construction schedule, then t he Developer agrees the Cash Deposit shall be released by the City to complete said Works of Improvement. No further notice is required by the City to the Developer for the City to use the Cash Deposit to complete the Works of Improvement and no additional permission from the Developer will be required for the Cash Deposit to be used for completing the improvements.
The City agrees that if Developer fails to perform and the Cash Deposit is spent by the City to complete the Works of Improvement, then the Cash Deposit shall be used solely for the purpose of completing said Works of I mprovement, and for no other p urpose. Upon completion of the improvements, in accordance with the Public Improvement Agreement attached hereto, and the acceptance thereof by the City Engineer and/or his/her designee , any portion of said Cash Deposit, minus those additional expenses described below, remaining shall be returned to the Developer or its assignee. The City shall keep records of how the Cash Deposit was spent to complete the Works of Improvement.