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City of Hemet
City Council Meeting
STAFF REPORT
Meeting: City Council Meeting - Aug 09 2022
Department: Public Works
Submitted by: Eddie Pust, Interim City Manager
Charles Russell, Public Works Operations Manager;
☐ Receive and File ☒ Consent Calendar ☐ Business Item ☐ Public Hearing TITLE:
A Resolution of the City Council of the City of Hemet, California, Accepting the Funding Award in the Amount of $120,150 from the State of California, Department of Recycling Resources and Recovery, Through the SB 1383 Local Assistance Grant; and Authorizing the Finance Director to Record Revenues to Account 110-0454 in the amount of $120,150, and to Record a Supplemental Appropriation of $120,150 in the Public Works Park Fund 110-4250-2801 for Eligible Funding Expenditures
RECOMMENDED ACTION:
It is respectfully recommended that the City Council:
Adopt a Resolution of the City Council of the City of Hemet, California, accepting the funding award in the amount of $120,150 from the State of California, Department of Recycling Resources and Recovery, through the SB 1383 Local Assistance Grant; and authorizing the Finance Director to record revenues to account 110-0454 in the Amount of $120,150, and record a supplemental appropriation of $120,150 in the Public Works Park Fund 110-4250-2801 for eligible funding expenditures.
BACKGROUND:
The Department of Resources Recycling and Recovery (CalRecycle) offers the SB 1383 Local Assistance Grant Program pursuant to Chapter 395, Statutes of 2016. This non-competitive grant program will provide one-time funding to local jurisdictions to assist with the implementation of regulatory requirements associated with SB 1383. This grant will allow the City to expand its capacity to implement the requirements set forth in SB 1383. The grant allows the following activities:
• Capacity Planning
• Collection
• Edible Food Recovery
• Education and outreach (includes organic waste & edible food recovery) • Enforcement and Inspection
• Program Evaluation/Gap Analysis
• Procurement Requirements (using recycled organic products – compost, mulch,
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electricity, and/or renewable gas and recycled paper and paper products) • Record Keeping
In February 2022, the Public Works Department submitted the SB 1383 Local Assistance Grant Program application. The application was approved by CalRecycle, and the City of Hemet received a check in the amount of $120,150.
ANALYSIS:
SB 1383 requires the City to implement a variety of mandated activities within the City in order to comply with the requirements set forth in the State law. On November 9, 2021, the City adopted Ordinance 1986 which amended Chapter 62 of the Hemet Municipal Code to incorporate the State mandated requirements of SB1383, including authorizing enforcement actions for violations. The Ordinance added various mandated elements including the requirement that all commercial and residential customers receive the required organics waste collection program as part of the required three-bin program.
As part of the State requirements, the City is required to conduct educational programs to outreach to the community, as well as perform mandatory and documented inspections of businesses and residential accounts to ensure that each customer is complying with the separation requirements of the program. This grant will be used to assist the City in these two areas.
DISCUSSION:
The City of Hemet intends to utilize the grant funds to perform the following efforts:
First, the City intends to utilize the funds to supplement the education and outreach efforts of the City's franchise hauler, by expanding outreach to the Hemet Unified School District. The City intends to develop an outreach program that targets the 4th through 6th-grade school populations and to combine that with the City's other educational outreach programs, specifically, its water conservation program.
Second, the City intends to expand the inspection programs and focus on the commercial sector. Under the City's current National Pollutant Discharge Elimination System (NPDES) program, various commercial and industrial businesses are required to be inspected based on a high (once per fiscal year), medium (once every two years), and low (once every five years) priority schedule in order to ensure compliance with the NPDES program. The City proposes to include the inspection for SB1383 as an element of the NPDES program. In addition, the City will expand the inspections to include those businesses that may not be subject to the NPDES program currently. At this time, the City has 600 commercial accounts that are subject to the MOR/MCR programs, and it is expected to expand to approximately 1,000 businesses. The overlap of both NPDES and SB1383 is projected to be approximately 400 businesses. Funds for the NPDES/SB 1383 inspections are generated through the City's User Fee for NPDES inspections and represent a small incremental service addition to inspect for the SB1383 requirements. This grant will allow the City to perform these inspections through a contractor to the remaining 600 businesses.
The City also intends to use the funds to procure recovered organic waste products. SB 1383 requires that jurisdictions procure recovered organic waste products such as compost, renewable gas, and electricity from biomass conversion or mulch. It is most likely that the City will purchase mulch for land application.
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Finally, the City intends to explore additional capacity program outreach, looking for opportunities to align this grant with the City's Homeless outreach to ensure that the maximum amount of edible food can be redirected into food banks and homeless programs.
PREVIOUS COUNCIL ACTION:
November 9, 2021 - First Reading of Ordinance 1986 revising Section 62 of the Hemet Municipal Code to incorporate the State Mandated Requirements of SB 1383.
December 14, 2021 - Second Reading of Ordinance 1986.
February 22, 2022 - City Council authorized the submission of the SB 1383 Local Assistance Grant Application to CalRecycle and authorized the City Manager to execute all related documents necessary to obtain the grant.
STRATEGIC PLAN INTEGRATION:
GOAL TWO: ECONOMIC OPPORTUNITY
To ensure that Hemet is a hub, with access to quality jobs, shopping options, and a varied and sustained tax base.
Objective 2: Provide resources for new businesses to enhance the customer service experience.
This grant will allow the City to outreach to the business community in order to assist businesses with proactively complying with the requirements of SB 1383 and the City's Ordinance.
GOAL FIVE: ORGANIZATIONAL EFFECTIVENESS
To identify the work needed inside the City organization to effectively provide services to the community and ensure financial stability.
Objective 1: Operate in a financially sustainable manner.
This grant will allow the City to add the additional inspection requirements to an existing inspection program, thus reducing the number of City Delivered inspections to the business community.
FISCAL IMPACT:
The funds will be deposited into the General Fund for use by the Public Works Department. The allocation of $120,150 will offset costs associated with the implementation of regulatory requirements associated with SB 1383. There is no requirement for the City match of funds for this grant.
ATTACHMENT(S):
Attachment 1: Resolution
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CITY COUNCIL RESOLUTION NO. 2022-XXX
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CITY OF HEMET
HEMET, CALIFORNIA
RESOLUTION NO. 2022-XXX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF HEMET, CALIFORNIA, ACCEPTING THE FUDING
AWARD IN THE AMOUNT OF $120,150 FROM THE
STATE OF CALIFORNIA, DEPARTMENT OF
RECYCLING RESOURCES AND RECOVERY,
THROUGH THE SB 1383 LOCAL ASSISTANCE GRANT,
AND AUTHORIZING THE FINANCE DIRECTOR TO
RECORD REVENUES TO ACCOUNT 110-0454 IN THE
AMOUNT OF $120,150, AND TO RECORD A
SUPPLEMENTAL APPROPRIATION OF $120,150 IN
THE PUBLIC WORKS PARKS FUND 110-4250-2801
FOR ELIGIBLE FUNDING EXPENDITURES.
WHEREAS, the City of Hemet, approved Ordinance 1986 amending Chapter 62 of the Hemet Municipal Code to incorporate the State mandated requirements of Senate Bill 1383 on November 9, 2021, held a second reading on December 14, 2021 and that said Ordinance became effective on or about January 14, 2022; and WHEREAS, the Department of Resources Recycling and Recovery (CalRecycle) offers the SB 1383 Local Assistance Grant Program pursuant to Chapter 395, Statutes of 2016; and
WHEREAS, this non-competitive grant program will provide one-time funding to local jurisdictions to assist with the implementation of regulation requirements associated with SB 1383; and
WHEREAS, the City is eligible for the receipt of grant funds in the amount of $120,150 which may be used to provide implementation support to the City in the areas of business inspections and public education; and
WHEREAS, the Grant Application was submitted to CalRecycle on February 1, 2022 under a two-phase grant application, subject to adoption of a resolution of the City authorizing and accepting said grant and that said resolution shall be submitted no later than March 1, 2022; and
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CITY COUNCIL RESOLUTION NO. 2022-XXX
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WHEREAS, the Grant Application was approved by the State and the check for $120,150 was received by the City of Hemet in June of 2022.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF HEMET FINDS, DETERMINES, ORDERS AND RESOLVES AS FOLLOWS:
SECTION 1. Each of the above recitals is true and correct.
SECTION 2. The City Council of the City of Hemet, accepts the funding award in the amount of $120,150 from the State of California, Department of Recycling Resources and Recovery.
SECTION 3. The Finance Director is authorized to record revenues to account 110-0454 in the amount of $120,150 and to record a supplemental appropriation of $120,150 in the Public Works Parks Fund 110-4250-2801 for eligible funding expenditures.
SECTION 4. The City Clerk shall certify adoption of the resolution.
PASSED, APPROVED AND ADOPTED this 9
th day of August 2022.
____________________________
Malcolm Lilienthal, Mayor
ATTEST:
_____________________________
John Paul Maier, City Clerk
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CITY COUNCIL RESOLUTION NO. 2022-XXX
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State of California )
County of Riverside )
City of Hemet )
I, John Paul Maier, City Clerk of the City of Hemet, do hereby certify that the foregoing resolution was adopted by the Hemet City Council on the 9 th day of August
2022, and was passed by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
_____________________________
John Paul Maier, City Clerk
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City of Hemet
City Council Meeting
STAFF REPORT
Meeting: City Council Meeting - Aug 09 2022
Department: Human Resources
Submitted by: Eddie Pust, Interim City Manager
Norma Rangel, Human Resources Manager;
☐ Receive and File ☒ Consent Calendar ☐ Business Item ☐ Public Hearing TITLE:
A Resolution of the City Council of the City of Hemet, California, Approving the Ongoing Agreement with Liebert, Cassidy, Whitmore for Continued Representation in Employee-Related Matters, for an Annual Not-to-Exceed Amount of $100,000, with a One-Time Exception of an Adjusted Annual Not-toExceed Amount of $135,000 for FY 21/22 RECOMMENDED ACTION:
It is respectfully recommended that the City Council:
Adopt a Resolution of the City Council of the City of Hemet, California, Approving the Ongoing Agreement with Liebert, Cassidy, Whitmore for Continued Representation in Employee-Related Matters, for an Annual Not-to-Exceed Amount of $100,000, with a One-Time Exception of an Adjusted Annual Not-to-Exceed Amount of $135,000 for FY 21/22.
BACKGROUND:
The City has utilized Liebert Cassidy Whitmore (LCW) since August 2019 on all labor and personnel matters. LCW is a well-respected and known firm representing multiple California governmental agencies for personnel and labor legal support. Since assuming this role, LCW has successfully assisted the City with labor negotiations for all represented employee groups and consulted on multiple, complex personnel matters including discipline, termination, termination appeal, and agency reorganization.
ANALYSIS:
During FY 21/22, labor negotiations have been successfully completed with HPOA, HPMA, HFFA, HNSPEA, HMMA, and SEIU, in succession, months apart from each other. Additionally, there was an increased need for consultation on complex personnel matters including discipline, termination, and termination appeal. The increased demand for these services has incurred additional charges.
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Under the current $100,000 agreement with LCW, a representative fiscal year with minimal-to-no labor negotiations would remain within the limits of the agreement. However, given that negotiations were completed with all represented labor groups and the increased activity with personnel disciplinary actions, expenditures exceeded the limit by $35,000. While the City can anticipate increased costs due to labor negotiations, there is no way to accurately anticipate increased costs due to personnel matters.
DISCUSSION:
With Council's approval, staff will continue the ongoing agreement with LCW with a one-time adjusted expenditure limit of $135,000 for FY 21/22 only. The approval for additional funds is due to the increased demand for LCW's services for FY 21/22 only. Future expenditures for LCW's services are not anticipated to exceed $100,000 annually for the next two years as labor negotiations are not set to begin again until 2024.
STRATEGIC PLAN INTEGRATION:
GOAL THREE: COMMUNITY ENGAGEMENT
To connect and participate in a constant dialogue between members of the community, City staff, and elected officials to promote togetherness and positivity.
Objective 2: Increase transparency for the public.
GOAL FIVE: ORGANIZATIONAL EFFECTIVENESS
To identify the work needed inside the City organization to effectively provide services to the community and ensure financial stability.
Objective 1: Operate in a financially sustainable manner.
Objective 2: Evaluate existing practices to ensure continuity with industry best practices.
FISCAL IMPACT:
No fiscal impact as there are sufficient funds available in the legal fund remaining for FY 21/22.
REVIEWED BY LEGAL:
☒ Staff report ☒ Resolution
☐ Ordinance ☒ Agreement
ATTACHMENT(S):
Attachment 1: Resolution- LCW Amendment
Attachment 2: Liebert Cassidy Whitmore - Second Amendment to Agreement (Hemet)
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CITY OF HEMET
Hemet, California
RESOLUTION NO. 2022-XXX
A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF HEMET, CALIFORNIA,
APPROVING THE ONGOING AGREEMENT
WITH LIEBERT CASSIDY WHITMORE FOR
CONTINUED REPRESENTATION IN
EMPLOYEE-RELATED MATTERS, FOR AN
ANNUAL NOT-TO-EXCEED AMOUNT OF
$100,000, WITH A ONE-TIME EXCEPTION
OF AN ADJUSTED ANNUAL NOT-TOEXCEED AMOUNT OF $135,000 FOR FY 21/22.
WHEREAS, the City has utilized Liebert Cassidy
Whitmore (LCW), a well-respected and known firm
representing multiple California governmental
agencies for personnel and labor legal support, since
August 2019 on all labor and personnel matters.; and
WHEREAS, LCW has successfully assisted the City
with labor negotiations for all represented employee
groups and consulted on multiple, complex personnel
matters including discipline, termination, termination
appeal, and agency reorganization.; and
WHEREAS, increased demand for services during FY
21/22 included labor negotiations for all represented
employee groups and additional consulting for
complex personnel matters.; and
WHEREAS, the increased demand incurred
additional charges of $35,000 exceeding the current,
approved agreement of $100,000 annually.; and
WHEREAS, Council approves the ongoing agreement
with LCW with a one-time exception of an adjusted
annual not-to-exceed amount of $135,000 for FY
21/22.
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NOW, THEREFORE, BE lT RESOLVED, by the City
Council of the City of Hemet, California, the
recommended changes incorporated herein by
reference are hereby approved.
PASSED, APPROVED AND ADOPTED this 9th day
of August, 2022.
____________________________
Malcolm Lilienthal, Mayor
ATTEST:
_____________________________
John Maier, City Clerk
State of California )
County of Riverside )
City of Hemet )
I, John Maier, City Clerk of the City of Hemet, do
hereby certify that the foregoing resolution was adopted by the Hemet City Council on the 9th day of August, 2022, and was passed by the following vote:
AYES: Council Members:
NOES: Council Member:
ABSTAIN: Council Member:
ABSENT: Council Member:
_________________________________
John Maier, City Clerk
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SECOND AMENDMENT TO
SPECIAL SERVICES
by and between
the
CITY OF HEMET
and
LIEBERT CASSIDY WHITMORE
a professional corporation
Dated July 28, 2022
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SECOND AMENDMENT TO SPECIAL SERVICES
This Second Amendment to Special Services (“Second Amendment”), which is dated for reference as indicated on the cover page, is hereby entered into by and between the CITY OF HEMET, a California municipal corporation (“City”), and Liebert Cassidy Whitmore, a professional corporation (“Service Provider”), as follows:
RECITALS
A. City and Contractor entered in an agreement for special services on September 10, 2019 (“Agreement”). The Agreement provides that Contractor will provide consulting, representational and legal services pertaining to employment relations matters.
B. On May 1, 2020, the parties executed a First Amendment to Special Services (“First Amendment”) that increased the annual Not to Exceed amount from fifty thousand dollars ($50,000) to one hundred thousand dollars ($100,000).
C. The parties now desire to amend the Agreement to increase the total compensation only for the Fiscal Year 21/22, to one hundred and thirty-five thousand dollars ($135,000).
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the promises made and recited herein, the parties do hereby enter into this Second Amendment which modifies and amends the Agreement as follows:
1. AMENDMENT. The Agreement is hereby modified and amended as follows:
1.1 [Fees, Costs, Expenses]. Section 3 of the Agreement is hereby amended as follows:
City agrees to pay Attorney the sums billed monthly for time spent by Attorney in providing the services, including reasonable travel time, not to exceed $135,000 in FY21/22. Proceeding years are not to exceed $100,000.
2. GENERAL PROVISIONS.
2.1 Remainder Unchanged. Except as specifically modified and amended in this Second Amendment, the Agreement remains in full force and effect and binding upon the parties.
2.2 Integration. This Second Amendment consists of pages 1 through 3 inclusive, which constitute the entire understanding and agreement of the parties and
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2 supersedes all negotiations or previous agreements between the parties with respect to all or any part of the transaction discussed in this Second Amendment.
2.3 Effective Date. This Second Amendment shall not become effective until the date it has been formally approved by the City Council and executed by the appropriate authorities of the City and Contractor.
2.4 Applicable Law. The laws of the State of California shall govern the interpretation and enforcement of this Second Amendment.
2.5 References. All references to the Agreement include all their respective terms and provisions. All defined terms utilized in this Second Amendment have the same meaning as provided in the Agreement, unless expressly stated to the contrary in this Second Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment to the Agreement on the date and year first written above.
CITY:
THE CITY OF HEMET
By:_________________________________
Eddie Pust, Police Chief, Acting City
Manager
ATTEST:
______________________________
John Maier, City Clerk
APPROVED AS TO FORM
______
Steven Graham, City Attorney
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3 CONTRACTOR:
By:
Name:
Title:
By:
Name:
Title:
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City of Hemet
City Council Meeting
STAFF REPORT
Meeting: City Council Meeting - Aug 09 2022
Department: City Attorney
Submitted by: Eddie Pust, Interim City Manager
Steven Graham, Interim City Attorney;
☐ Receive and File ☒ Consent Calendar ☐ Business Item ☐ Public Hearing TITLE:
A Resolution of the City Council of the City of Hemet, California, Approving the First Amendment to Employment Agreement Between the City of Hemet and Edward J. Pust RECOMMENDED ACTION:
It is respectfully recommended that the City Council:
Adopt a Resolution of the City Council of the City of Hemet, California, Approving the First Amendment to Employment Agreement Between the City of Hemet and Edward J. Pust.
BACKGROUND:
Edward J. Pust ("Chief Pust") has served as the Police Chief of the City of Hemet since December 31, 2019 pursuant to an Employment Agreement entered into by the former City Manager. Under Section
2.1.1 of the Employment Agreement Chief Pust has a mandatory 7% minimum salary separation from the next highest paid management employee of the Hemet Police Department. It is reported that this 7% salary separation was originally intended as the salary separation between the rank of Captain in the Hemet Police Department and the Deputy Police Chief position, but with the elimination of the Deputy Police Chief position, the 7% separation was applied to the Police Chief position instead.
With the resignation of the City Manager, the City Council appointed Chief Pust as Interim City Manager on July 12, 2022. As Interim City Manager, Chief Pust will serve as the Chief Executive Officer of the City of Hemet until the City Council appoints a permanent City Manager. Chief Pust is currently responsible for the proper administration of all the affairs of the City of Hemet as City Manager as well as the Hemet Police Department as Police Chief.
The amendment to the Employment Agreement amends Chief Pust's mandatory salary separation from the next highest paid management employee of the Hemet Police Department from 7% to 17.7% Ordinarily, the City Manager would negotiate and approve any amendments to Chief Pust's contract, but in his role as Interim City Manager, the City Council's approval is required to proceed.
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DISCUSSION:
Please note that the City Attorney will provide a short oral report to the City Council at the time the Consent Calendar is called as required under Government Code Section 54953(c)(3).
STRATEGIC PLAN INTEGRATION:
GOAL FIVE: ORGANIZATIONAL EFFECTIVENESS
To identify the work needed inside the City organization to effectively provide services to the community and ensure financial stability.
Objective 1: Operate in a financially sustainable manner.
Objective 2: Evaluate existing practices to ensure continuity with industry best practices.
FISCAL IMPACT:
The Police Chief is already receiving the additional 10% pay as "acting" pay. There is therefore no financial impact while the Police Chief is the Interim City Manager. Assuming the City Council appoints a permanent City Manager by December 31, 2022, the First Amendment is estimated to result in an increase of $73,125 cost over the remaining term of the Police Chief's contract (until December 31, 2024).
This cost is more than offset by salary savings in the position of City Manager. That position was budgeted at the fully burdened rate of $498,365 for Fiscal Year 2022/23. The City is estimated to realize approximately $249,182.50 in salary savings if the position remains vacant through December 31, 2022.
Taken together, by approving the First Amendment and holding the City Manager position vacant through December 31, 2022, the City will realize an estimated savings of $176,057.50.
ATTACHMENT(S):
Attachment 1: Resolution Pust First Amendment
Attachment 2: Pust - First Amendment
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City of Hemet Resolution No. 2022-XXX
CITY OF HEMET
HEMET, CALIFORNIA
RESOLUTION NO. 2022- XXXX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF HEMET, CALIFORNIA, APPROVING THE FIRST
AMENDMENT TO THE EMPLOYMENT AGREEMENT
BETWEEN THE CITY OF HEMET AND EDWARD J.
PUST
THE CITY COUNCIL OF THE CITY OF HEMET DOES HEREBY FIND AND RESOLVE AS FOLLOWS:
SECTION 1. City Council Actions.
A. Approval of First Amendment. The City Council approves the First Amendment to the Employment Agreement with Edward J. Pust, attached hereto and incorporated here.
B. Mayor Authorization. The City Council authorizes the Mayor to execute the First Amendment to the Employment Agreement with Edward J. Pust, and authorize the Human Resources Director and Finance Director take any other actions necessary to carry out the effect of this authorization.
SECTION 2. Effective. This resolution shall take effect immediately. ____________________________
Malcolm Lilienthal, Mayor
ATTEST:
_____________________________
John Paul Maier, City Clerk
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FIRST AMENDMENT TO
EMPLOYMENT AGREEMENT
by and between
the
CITY OF HEMET
and
EDWARD J. PUST
Dated August 9, 2022
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1 FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This First Amendment to the Employment Agreement (“First Amendment”), which is dated for reference as indicated on the cover page, is hereby entered into by and between the CITY OF HEMET, a California municipal corporation (“City”), and EDWARD J. PUST (“Pust”), as follows:
RECITALS
A. City and Pust entered in an Employment Agreement effective December 31, 2019 (“Agreement”). The Agreement provides that Pust will serve as Police Chief for the City of Hemet for a term of five years.
B. On May 4, 2022, the City Council appointed Pust as Acting City Manager of the City of Hemet. On July 12, 2022, the City Council appointed Pust as Interim City Manager of the City of Hemet.
B. This First Amendment amends Section 2.1.1 to provide a 17.7% minimum base salary separation between Pust and the next highest paid management employee of the Hemet Police Department.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the promises made and recited herein, the parties do hereby enter into this First Amendment which modifies and amends the Agreement as follows:
1. AMENDMENT. SECTION 2.1.1 of the Agreement related to Maintenance of Base Salary Separation is hereby amended as follows:
It is the intent of the City that the position of POLICE CHIEF have and retain, at all times, a Base Salary that maintains a separation of at least seventeen and seven tenths percent (17.7%) from the top step of the base salary range for the next highest paid management employee in the Hemet Police Department, plus any certification pay and uniform allowance provided to the highest paid employee serving in that position with the Hemet Police Department (“Base Salary Separation”), except as is expressly provided for in Section
2.1.2 below or in the event the Parties amend this Agreement to provide for a different amount in accordance with Section 9.6 [Amendment] of this Agreement. The POLICE CHIEF hereby
waives any “Acting Pay” whenever he is appointed to the position of Acting City Manager or Interim City Manager.
//////////////////
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2 2. GENERAL PROVISIONS.
2.1 Remainder Unchanged. Except as specifically modified and amended in this First Amendment, the Agreement remains in full force and effect and binding upon the parties.
2.2 Integration. This First Amendment consists of pages 1 through 2 inclusive, which constitute the entire understanding and agreement of the parties and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the transaction discussed in this First Amendment.
2.3 Effective Date. This First Amendment shall not become effective until the date it has been formally approved by the City Council and executed by the appropriate authorities of the City and Pust.
2.4 Applicable Law. The laws of the State of California shall govern the interpretation and enforcement of this First Amendment.
2.5 References. All references to the Agreement include all their respective terms and provisions. All defined terms utilized in this First Amendment have the same meaning as provided in the Agreement, unless expressly stated to the contrary in this First Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to the Agreement on the date and year first written above.
CITY OF HEMET EDWARD J. PUST
_____________________________ _____________________________ Mayor Malcom Lilienthal Edward J. Pust
ATTEST:
_____________________________
John Maier, City Clerk
APPROVED AS TO FORM:
_____________________________
Steven Graham, City Attorney
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City of Hemet
City Council Meeting
STAFF REPORT
Meeting: City Council Meeting - Aug 09 2022
Department: Finance
Submitted by: Eddie Pust, Interim City Manager
Lorena Rocha, Finance Director;
☐ Receive and File ☒ Consent Calendar ☐ Business Item ☐ Public Hearing TITLE:
A Resolution of the City Council of the City of Hemet, California, Rescinding Resolution 2021-001, and Authorizing Investment of City of Hemet Monies in the Local Agency Investment Fund RECOMMENDED ACTION:
It is respectfully recommended that the City Council:
Adopt a Resolution of the City Council of the City of Hemet, California, Rescinding Resolution 2021- 001, and Authorizing Investment of City of Hemet Monies in the Local Agency Investment Fund.
BACKGROUND:
The City of Hemet uses the State's Local Agency Investment Fund (LAIF) for short-term investments in accordance with provisions of Section 16429.1 of the Government Code. LAIF requires a Resolution approved by City Council defining authorized users to conduct business with LAIF. Resolution 2021- 001 was approved by Council on January 12, 2021.
ANALYSIS:
On March 23, 2021, Council adopted an Ordinance delegating investment authority to the City Manager. The attached Resolution seeks to update the names of personnel authorized to conduct business with LAIF.
STRATEGIC PLAN INTEGRATION:
GOAL FIVE: ORGANIZATIONAL EFFECTIVENESS
To identify the work needed inside the City organization to effectively provide services to the community and ensure financial stability.
Objective 3: Provide Council with policies that are consistent while lessening liabilities.
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FISCAL IMPACT:
No fiscal impact.
ATTACHMENT(S):
Attachment 1: LAIF Resolution 2022
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CITY COUNCIL RESOLUTION NO. 2021-XXX
CITY OF HEMET
Hemet, California
RESOLUTION NO. 2022-XXX
A RESOLUTION OF THE
CITY COUNCIL OF THE
CITY OF HEMET,
CALIFORNIA RESCINDING
RESOLUTION 2021-001,
AND AUTHORIZING
INVESTMENT OF CITY OF
HEMET MONIES IN THE
LOCAL AGENCY
INVESTMENT FUND
WHEREAS, pursuant to Chapter 730 of the
statutes of 1976 Section 16529.1 was added to the
California Government Code to create a Local Agency
Investment Fund in the State Treasury for the deposit of money of a local agency for purposes of investment by
the State Treasurer; and
WHEREAS, the City Council does hereby find
that the deposit and withdrawal of money in the Local
Agency Investment Fund in accordance with the
provisions of Section 16429.1 of the Government Code
for the purpose of investment as stated therein are in
the best interests of the City of Hemet; and
NOW, THEREFORE, THE CITY COUNCIL OF
THE CITY OF HEMET DOES HEREBY RESOLVE,
that it does hereby authorize the deposit and withdrawal of City of Hemet monies in the Local Agency
Investment Fund in the State Treasury in accordance
with the provisions of Section 16429.1 of the
Government Code for the purpose of investment as
16.I
CITY COUNCIL RESOLUTION NO. 2021-XXX
stated therein, and verification by the State Treasurer’s Office of all banking information provided in that regard.
NOW THEREFORE, BE IT FURTHER RESOLVED,
that the following City officers and successors in office shall be authorized to order the deposit or withdrawal of monies in the Local Agency Investment Fund:
Eddie Pust, Interim City Manager
Lorena Rocha, Finance Director
PASSED, APPROVED AND ADOPTED this 9th day of
August 2022.
____________________________
Malcolm Lilienthal, Mayor
ATTEST:
_____________________________
John Maier, City Clerk
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CITY COUNCIL RESOLUTION NO. 2021-XXX
State of California )
County of Riverside )
City of Hemet )
I, John Maier, City Clerk of the City of Hemet,
do hereby certify that the foregoing resolution was
adopted by the Hemet City Council on the 9th day of
August, 2022, and was passed by the following vote:
AYES: Council Members:
NOES: Council Member:
ABSTAIN: Council Member:
ABSENT: Council Member:
_________________________________
John Maier, City Clerk
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City of Hemet
City Council Meeting
STAFF REPORT
Meeting: City Council Meeting - Aug 09 2022
Department: Public Works
Submitted by: Eddie Pust, Interim City Manager
Noah Rau, Public Works Director/City Engineer;
☐ Receive and File ☒ Consent Calendar ☐ Business Item ☐ Public Hearing TITLE:
Resolutions of the City Council of the City of Hemet, California, Approving Replacement Subdivision Improvement Agreements and Improvement Security for Tract Map Nos. 33825 and 33825-1, located in McSweeny Farms Specific Plan Area, north of McSweeny Parkway and east of State Street (Richmond American Homes)
RECOMMENDED ACTION:
It is respectfully recommended that the City Council:
1. Adopt a Resolution of the City Council of the City of Hemet, California, approving a replacement subdivision improvement agreement and improvement security for tract map No. 33825, located in the McSweeny Farms specific plan area, north of McSweeny Parkway and east of State Street (Richmond American Homes); and,
2. Adopt a Resolution of the City Council of the City of Hemet, California, approving a replacement subdivision improvement agreement and improvement security for tract map No. 33825-1, located in the McSweeny Farms specific plan area, north of McSweeny Parkway and east of State Street (Richmond American Homes).
BACKGROUND:
At a regularly scheduled City Council meeting held on September 27, 2016, the City Council approved Tract Map Nos. 33825 and 33825-1, along with the Subdivision Improvement Agreement ("Agreement"), and accepted the Performance Bond and Material and Labor Bond ("Bonds"). The Agreement was executed by McSweeny Recovery Acquisition, LLC, a Delaware Limited Liability Company ("Developer"), who also secured the Bonds necessary to ensure the public improvements associated with Tract Map Nos. 33825 and 33825-1 would be completed.
The Developer has since sold Tract Map Nos. 33825 and 33825-1 to Richmond American Homes. The remainder of the public improvements is to be completed by Richmond American Homes and require replacement Subdivision Improvement Agreements and associated bonds.
ANALYSIS:
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Tract Map No. 33825 provides for the development of 111 single-family residential units and Tract Map No. 33825-1 provides for the development of 148 single-family residential units and includes all associated road and utility improvements located in McSweeny Farms Specific Plan Area, north of McSweeny Parkway and east of State Street. The next step in the process is consideration of the replacement agreement for the subdivision work and accepting the new bonds to guarantee completion of the work.
The City Attorney has reviewed and approved the Subdivision Improvement Agreements and the Improvement Bond forms. Staff recommends that the City Council accept the replacement subdivision agreements and public improvement bonds.
DISCUSSION:
Approval of the replacement subdivision improvement agreements and associated bonds with the current owner of these tracts, Richmond American Homes, will ensure that the agreements and security for public improvements are current and with the correct entity responsible for making the improvements.
PREVIOUS COUNCIL ACTION:
At the City Council meeting of September 27, 2016, the City Council approved Tract Map Nos. 33825 and 33825-1; subdivision improvement agreement; and accepted offers of dedication and improvement bonds from the developer.
STRATEGIC PLAN INTEGRATION:
GOAL ONE: QUALITY OF LIFE:
To ensure that Hemet is safe, clean, attractive and comfortable for all who live, work, and visit.
Objective 1: Enhance the visual appearance of the community to make it attractive and reduce blight through the construction of new homes.
FISCAL IMPACT:
There are no impacts to the General Fund with this City Council action.
ALTERNATIVE(S):
1. Do not approve the Resolution to replace the Subdivision Improvement Agreements and Improvement Security.
2. Provide alternate directions to staff.
REVIEWED BY LEGAL:
☒ Staff report ☒ Resolution
☐ Ordinance ☒ Agreement
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ATTACHMENT(S):
Attachment 1: Resolution Approving Replacement SIA for Final Tract Map 33825 Attachment 2: Tract Map 33825
Attachment 3: TR 33825 Sept 2016 SIA with McSweeny Recovery Attachment 4: Replacement Subdivision Improvement Agreement - Final Tract Map No. 33825 Attachment 5: Resolution Approving Replacement SIA for Final Tract Map 33825-1 Attachment 6: Tract Map 33285-1
Attachment 7: TR 33825-1 Sept 2016 SIA with McSweeny Recovery Attachment 8: Replacement Subdivision Improvement Agreement - Final Tract Map No. 33825-1
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CITY COUNCIL RESOLUTION NO. 2022-xxx
CITY OF HEMET
Hemet, California
RESOLUTION NO. 2022-XXX
A RESOLUTION OF THE
CITY COUNCIL OF THE
CITY OF HEMET,
CALIFORNIA, APPROVING
A REPLACEMENT
SUBDIVISION
IMPROVEMENT
AGREEMENT AND
IMPROVEMENT
SECURITY FOR TRACT
MAP NO. 33825, LOCATED
IN THE MCSWEENY
FARMS SPECIFIC PLAN
AREA, NORTH OF
MCSWEENY PARKWAY
AND EAST OF STATE
STREET (RICHMOND
AMERICAN HOMES)
WHEREAS, Tract Map No. 33825, submitted for
approval by McSweeny Recovery Acquisition, LLC, a
Delaware Corporation (“Developer”), and approved by
the City of Hemet on September 28, 2016; and
WHEREAS, Richmond American Homes
(“Builder”), a California corporation has acquired the
land known as Tract Map No. 33825 from Developer (a
copy of which is attached as Exhibit “B”); and
WHEREAS, to meet and continue the
requirements established as a prerequisite to final
approval of Tract Map No. 33825, Builder agreed to
enter into a Subdivision Improvement Agreement
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CITY COUNCIL RESOLUTION NO. 2022-xxx
superseding and replacing Subdivision Improvement
Agreement known as Riverside County Recorder’s
Document No. 2016-0436392, together with good and
sufficient security, in conformance with the City
Attorney’s approved format, for approval and execution
by the City; and
WHEREAS, the Subdivision Improvement
Agreement and good and sufficient security have been
accepted by the City.
NOW, THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF HEMET AS
FOLLOWS:
SECTION 1. RECITALS
The foregoing recitals are true and correct.
SECTION 2. APPROVAL OF SUBDIVISION
IMPROVEMENT AGREEMENT
A. Subdivision Improvement Agreement attached
hereto as Exhibit “A” is approved and the City
Manager is authorized to execute it and the City
Clerk is authorized to attest thereto.
B. Said improvement security is accepted as good
and sufficient, subject to approval as to form and
content thereof by the City Attorney,
C. Pursuant to Government Code section 66458,
Tract Map No. 33825 was previously approved,
and City accepted the real property described
therein.
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CITY COUNCIL RESOLUTION NO. 2022-xxx
SECTION 3. CERTIFICATION
This Resolution shall take effect immediately upon its
adoption by the City Council. The City Clerk shall attest to and certify the vote adopting this Resolution.
PASSED, APPROVED AND ADOPTED this
9th day of August, 2022.
____________________________
Malcolm Lilienthal, Mayor
ATTEST:
_____________________________
John Maier, City Clerk
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CITY COUNCIL RESOLUTION NO. 2022-xxx
State of California )
County of Riverside )
City of Hemet )
I, John Maier, City Clerk of the City of Hemet,
do hereby certify that the foregoing resolution was
adopted by the Hemet City Council on the 9th day of
August, 2022, and was passed by the following vote:
AYES: Council Members:
NOES: Council Member:
ABSTAIN: Council Member:
ABSENT: Council Member:
_________________________________
John Maier, City Clerk
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2ØL6-0436392
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
(Document exempt from recording fees
pursuant to Cal. Gov. Code $ 27383)
CITY OF HEMET
Attn: City Manager
445 East Florida Avenue
Hemet, California 92543
7ø/ø512ø16 Ø1 :05 Ptl Fee: $ 0.Ø0
Page I of 19
Reeorded in Of'f.icial Recordg
County of Riversicle
Pet.er âldana Êssessor-County C lerk-Reeerder
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II
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SUBDIVISION IMPROVEMENT AGREEMENT
FINAL TRACT MAP 33825
By and Between
THE CITY OF HEMET,
a municipal corporation
and
McSweeny Recovery Acquisitiono LLC,
a Delaware limited liability company
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Dared:.1o/ø
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SUBDIVISION IMPROVEMENT AGREEMENT
FINAL TRACT MAP 33825
This Subdivision Improvement Agreement ("Agreement") is entered into as of this j\ day of A*q*lt 2016 by and between the City of Hemet, a municipal corporation ("City") and Mcswdeny Recovery Acquisition, LLC, a Delaware limited liability company. City and Developer are sometimes hereinafter individually referred to as "Panty" and hereinafter collectively referred to as the "Parties."
RECITALS
A. Developer has submitted to City an application for approval of a final tract map for real property located within City, a legal description of which is attached hereto as Exhibit ooA''.ThetractÃapisidentifiedinCityrecordsasTractMapNo.33825,on-,20-, the City conditionally approved Tract No. 33825.
B. Developer has not completed all of the work or made all of the Public Improvements required by the Subdivision Map Act (Government Code sections 66410 et seq.), ("Map Act") the City Ordinances, the conditions of approval for Tract No. 33825, or other ordinances, resolutions, or policies of City requiring construction of improvements in conjunction with the subdivision of land.
C. Pursuant to City Ordinances and the applicable provisions of the Map Act, Developer and City enter into this Agreement for the timely construction and completion of the Public Improvements and the furnishing of the security therefor, acceptable to the City Engineer and City Attomey, for Tract No. 33825.
D. City has authority to enter into this Subdivision Improvement Agreement pursuant to Government Code Sections 66499 - 66499.10.
E. Pursuant to Government Code Section 66499, Developer's execution of this Agreement and the provision of the security are made in consideration of City's approval of the final map for Tract No. 33825.
DEFINED TERMS
"'Developer" shall mean Mcsweeny Recovery Acquisition, LLC. The term "Developer" shall also include all assignees, to the extent permitted under this Agreement, of the rights and obligations of Developer under this Agreement, and any successor-in-interest to Developer having a legal andlor equitable interest in the Property. o'Estímøted Costso'shall mean the City Engineer's approximation of the actual cost to construct the Public Improvements, including the replacement cost for all landscaping.
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"Lítígatìon Expenses" shall mean all costs and expenses, to the extent reasonable in amount, actually and necessarily incurred by a party in good faith in the prosecution of an action or proceeding, including, but not limited to, court costs, filing, recording, and service fees, copying costs, exhibit production costs, special media rental costs, attorneys' fees, fees for investigators, witness fees (both lay and expert), travel expenses, deposition and transcript costs and any other cost or expense, the award of which a court of competent jurisdiction may determine to be just and reasonable.
*Møp Act' shall mean the Subdivision Map Act, Government Code Sections 66410 et seq "Property" shall mean the all of the real property contained within the boundaries of Tract Map No. 33825 located in the City of Hemet, California, as is more particularly described in the legal description and tract diagram attached hereto and incorporated hereby by reference at Attachment "4".
"Publíc Improvements" shall include, but not be limited to, all grading, roads, streets, paving, curbs and gutters, sidewalks, paseos, pathways, trails, sanitary sewers, utilities, storm drains, detention and retention basins and other drainage facilities, traffic controls, landscaping, street lights and all other facilities required to be constructed and dedicated to the City or other public entity as conditions of approval of Tentative Tract Map No. 33825 and as shown in detail on the plans, and specifications which have been approved by the City and incorporated into Tract Map No. 33825. The Parties agree that the Public Improvements to be completed by Developer are more specifically described in the diagram or plan attached hereto and incorporated herein by reference as Attachment "8. Notwithstanding, Attachment "B", Developer shall remain obligated to construct and complete all of the Public Improvements required as conditions ôf approval for Tentative Tract Map 33825.
o'Requíred Insurønce" shall mean the insurance required to be maintained by Developer under Section 17.
"Securíty" shall mean surety bonds in the amounts and under the terms of Section 12 or other security approved by City Engineer or City Attorney.
"Tract No 33825" shall mean the final map prepared and approved by the City for Tentative Tract Map No. 33825.
"Wawønþt" shall mean the one year period following completion of the Public Improvements by Developer and the acceptance of the Public Improvements by the City in which Developer warrants and guarantees all Public Improvements.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the parties and contained here and other consideration, the value and adequacy of which are hereby acknowledged, the parties agree as follows:
1. EFFECTIVENESS. This Agreement shall not be effective unless and until all four (4) of the following conditions are satisfied in the order provided:
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1.1 Securitv. Developer provides City with the Security of the type and in the amounts required by this Agreement;
1.2 Final Map and Asreement Approval. The City Council of the City ("City Council") approves the final map for Tract No. 33825 and this Agreement;
1.3 Record Agreement. Developer and City execute the Agreement and City records this Agreement in the Recorder's Office of the County of Riverside; and I.4 Record Final Map. Developer records the final map for Tract No. 33825 in the Recorder's Office of the County of Riverside.
If the above described conditions are not satisfied in the order, manner and within the time provided under this Agreement, this Agreement shall automatically terminate without need of further action by either City or Developer.
2. PUBLIC IMPROVEMENTS. Developer shall construct or have constructed at its own cost, expense, and liability the Public Improvements, as defined herein, within the time and in the manner required under this Agreement. Construction of the Public Improvements shall include any transitions andlor other incidental work deemed necessary for drainage or public safety. The Developer shall be responsible for the replacement, relocation, or removal of any component of any irngation water or sewer system in conflict with the construction or installation of the Public Improvements. Such replacement, relocation, or removal shall be performed to the complete satisfaction of the City Engineer and the owner of such water or sewer system. Developer further promises and agrees to provide all equipment, tools, materials, labor, tests, design work, and engineering services necessary or required by City to fully and adequately complete the Public Improvements.
2.1 Prior Partial Construction of Public Improvements. Where construction of any Public Improvements has been partially completed prior to this Agreement, Developer agrees to complete such Public Improvements or assure their completion in accordance with this Agreement.
2.2 Permits; Notices; Utilitv Statements. Prior to commencing arry work, Developer shall, at its sole cost, expense, and liability, obtain all necessary permits and approvals and give all necessary and incidental notices required for the lawful construction of the Public Improvements and performance of Developer's obligations under this Agreement. Developer shall conduct the work in full compliance with the regulations, rules, and other requirements contained in any permit or approval issued to Developer. Prior to commencin9 any work, Developer shall file a written statement with the City Clerk and the City Engineer, signed by Developer and each utility which will provide utility service to the Property, attesting that Developer has made all deposits legally required by the utility for the extension and provision of utility service to the Property.
2.3 Pre-approval of Plans and Specifications. Developer is prohibited from commencing work on any Public Improvement until all plans and specifications for such Public Improvement have been submitted to and approved by the City Engineer, or his or her designee.
Approval by the City Engineer shall not relieve Developer from ensuring that all Public Improvements conform with all other requirements and standards set forth in this Agreement.
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2.4 Oualitv of Work: C ce With Laws and Codes. The construction plans and specifications for the Public Improvements shall be prepared in accordance with all applicable federal, state and local laws, ordinances, regulations, codes, standards, and other requirements. The Public Improvements shall be completed in accordance with all approved maps, plans, specifications, standard drawings, and special amendments thereto on file with City, as well as all applicable federal, state, and local laws, ordinances, regulations, codes, standards, and other iequirements applicable at the time work is actually commenced.
2.5 Standard of Performance. Developer and its contractors, if any, shall perform all work required to construct the Public Improvements under this Agreement in a skillful and workmanlike manner, and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Developer represents and maintains that it or its contractors shall be skilled in the professional calling necessary to perform the work. Developer warrants that all of its employees and contractors shall have sufficient skill and experience to perform the work assigned to them, and that they shall have all licenses, permits, qualifications and approvals of whatever nature thàt are legally required to perform the work, and that such licenses, permits, qualifications and approvals shall be maintained throughout the term of this Agreement.
2.6 Alterations to Improvements. All work shall be done and improvements made and completed as shown on approved plans and specifications, and any subsequent alterations thereto. If during the course of construction and installation of the Public Improvements it is determined that the public interest requires alterations in the Public Improvements, Developer shall undertake such design and construction changes as may be reasonably required by City. Any and all alterations in the plans and specifications and the Public Improvements to be completed may be accomplished without giving prior notice thereof to Developer's surety for this Agreement.
2.7 Other Referenced in Conditions of Tentative Man
Approval. In addition to the foregoing, Developer shall satisfy all of the conditions of on the tentative map for the Property. The conditions of approval which have not been satisfied prior to the date of this Agreement are identified on Exhibit "D" hereto.
3. MAINTENANCE OF PUBLIC IMPROVEMENTS AND LAA{DSCAPING.
City shall not be responsible or liable for the maintenance or care of the Public Improvements until City formally approves and accepts them in accordance with its policies and procedures.
City shall exercise no control over the Public Improvements until approved and accepted. Any use by any person of the Public Improvements, or any portion thereof, shall be at the sole and exclusive risk of the Developer at all times prior to City's acceptance of the Public Improvements. Developer shall maintain all the Public Improvements in a state of good repair until they are completed by Developer and approved and accepted by City, and until the security for the performance of this Agreement is released. Maintenance shall include, but shall not be limited to, repair of pavement, curbs, gutters, sidewalks, signals, parkways, water mains, and sewers; maintaining all landscaping in a vigorous and thriving condition reasonably acceptable to City; removal of debris from sewers and storm drains; and sweeping, repairing, and maintaining in good and safe condition all streets and street improvements. It shall be Developer's responsibility to initiate all maintenance work, but if it shall fail to do so, it shall promptly perform such maintenance work when notified to do so by City. If Developer fails to properly RIV #4836-3917-8284 v2 -4- Page 20 of 140
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prosecute its maintenance obligation under this section, City may do all work necessary for such maintenance and the cost thereof shall be the responsibility of Developer and its surety under this Agreement. City shall not be responsible or liable for any damages or injury of any nature in any way related to or caused by the Public Improvements or their condition prior to acceptance.
4. CONSTRUCTION SCHEDULE. Unless extended pursuant to this Section 4.1 of this Agreement, Developer shall fully and adequately complete or have completed the Public Improvements within one year (12 months) following approval of the final map for Tract No. 33825.
4.1 Extensions. City may, in its sole and absolute discretion, provide Developer with additional time within which to complete the Public Improvements. It is understood that by providing the Security required under Section 12.0 et seq. of this Agreement, Developer and its surety consent in advance to any extension of time as may be given by City to Developer, and waives any and all right to notice of such extension(s). Developer's acceptance of an extension of time granted by City shall constitute a waiver by Developer and its surety of all defense of laches, estoppel, statutes of limitations, and other limitations of action in any action or proceeding filed by City following the date on which the Public Improvements were to have been completed hereunder. In addition, as consideration for granting such extension to Developer, City reserves the right to review the provisions of this Agreernent, including, but not limited to, the construction standards, the cost estimates established by City, and the sufficiency of the improvement security provided by Developer, and to require adjustments thereto when warranted according to City's reasonable discretion.
4.2 Accrual of Limitations Period. Any limitations period provided by law related to breach of this Agreement or the terms thereof shall not accrue until Developer has provided the City Engineer with written notice of Developer's intent to abandon or otherwise not complete required or agreed upon Public Improvements.
5. GRADING. Developer agrees that any and all grading done or to be done in conjunction with construction of the Public Improvements or development of Tract No. 33825 shall conform to all federal, state, and local laws, ordinances, regulations, and other requirements, including City's grading regulations. All grading, landscaping, and construction activities shall be performed in a manner to control erosion and prevent flooding problems. The City Engineer shall have the authority to require erosion plans to prescribe reasonable controls on the method, manner, and time of grading, landscapinç, and construction activities to prevent nuisances to surrounding properties. Plans shall include without limitation temporary drainage and erosion control requirements, dust control procedures, restrictions on truck and other construction traffic routes, noise abatement procedures, storage of materials and equipment, removal of garbage, trash, and refuse, securing the job site to prevent injury, and similar matters.
In order to prevent damage to the Public Improvements by improper drainage or other hazards, the grading shall be completed in accordance with the time schedule for completion of the Public Improvements established by this Agreement, and prior to City's approval and acceptance of the Public Improvements and release of the Security as set forth in Section 12.0 et seq. of this Agreement.
6. UTILITIES. Developer shall provide utility services, including water, sewer, power, gas, and telephone service to serve each parcel, lot, or unit of land within Tract No.
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33825 in accordance with all applicable federal, state, and local laws, rules, and regulations, including, but not limited to, the regulations, schedules and fees of the utilities or agencies providing such services. Except for commercial or industrial properties, Developer shall also provide cable television facilities to serve each parcel, lot, or unit of land in accordance with all applicable federal, state, and local laws, rules, and regulations, including, but not ìimited to, the requirements of the cable company possessing a valid franchise with City to provide such service within City's jurisdictional limits. All utilities shall be installed underground.
7. FEES AND CHARGES. Developer shall, at its sole cost, expense, and liability, pay all fees, charges, and taxes arising out of construction of the Public Improvements, including, but not limited to, all plan check, design review, engineering, inspection, and other service fees, and any impact or connection fees established by City ordinance, resolution, regulation, or policy, or as established by City relative to Tract No. 33825, or as required by other governmental agencies having jurisdiction over Tract No. 33825.
8. CITY INSPECTION OF PUBLIC IMPROVEMENTS. Developer shall, at its sole cost, expense, and liability, and at all times during construction of the Public Improvements, maintain reasonable and safe facilities and provide safe access for inspection by City of the Public Improvements and areas where construction of the Public Improvements is occurring or will occur. If the City inspector requests it, the Developer at any time before acceptance of the Public Improvements shall remove or uncover such portions of the finished work as may be directed which have not previously been inspected. After examination, the Developer 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 Developer or the contractor of any obligations to fuIfilIthis 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.
9. ADMINISTRATIVE COSTS. If Developer fails to construct and install all or any part of the Public Improvements within the time required by this Agreement, or if Developer fails to comply with any other obligation contained herein, Developer and its surety shall be jointly and severally liable to City for all administrative expenses, fees, and costs, including reasonable attorney's fees and costs, incurred in obtaining compliance with this Agreement or in processing any legal action or for any other remedies permitted by law.
10. ACCEPTANCE OF IMPROVEMENTS; AS-BUILT OR RECORI)
DRAWINGS. The City Council may, in its sole and absolute discretion, accept fully completed portions of the Public Improvements prior to such time as all of the Public Improvements are complete, which shall not release or modify Developer's obligation to complete the remainder of the Public Improvements within the time required by this Agreement.
10.1 Developer's Notice of Completion. Upon the total or partial acceptance of the Public Improvements by City, Developer shall file with the Recorder's Office of the County of Riverside a notice of completion for the accepted Public Improvements in accordance with California Civil Code section 3093, at which time the accepted Public Improvements shall become the sole and exclusive property of City without pa¡zment therefor.
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10.2 Cifv Acceptance of Public Improvements. If Tract No. 33825 was approved and recorded as a single phase map, City shall not accept any one or more of the improvements until all of the Public Improvements are completed by Developer and approved by City. Issuance by City of occupancy permits for any buildings or structures located on the Property shall not be construed in any manner to constitute City's acceptance or approval of any Public Improvements.
10.3 Develoner's Obliuation to P As-Built or Record Drawinss.
Notwithstanding the foregoing, City may not'accept any Public Improvements unless and until Developer provides one (1) set of "as-built" or record drawings or plans to the City Engineer for all such Public Improvements. The drawings shall be certified and shall reflect the condition of the Public Improvements as constructed, with all changes incorporated therein.
11. \ilARRANTY AND GUARANTEE. Developer hereby warrants and guarantees all Public Improvements against any defective work or labor done, or defective materials furnished in the performance of this Agreement, including the maintenance of all landscaping within the Property in a vigorous and thriving condition reasonably acceptable to City, for a period of one (1) year following completion of the work and acceptance by City. During the Warranty, Developer shall repair, replace, or reconstruct any defective or otherwise unsatisfactory portion of the Public Improvements, in accordance with the current ordinances, resolutions, regulations, codes, standards, or other requirements of City, and to the approval of the City Engineer. All repairs, replacements, or reconstruction during the Warranty shall be at the sole cost, expense, and liability of Developer and its surety. As to any Public Improvements which have been repaired, replaced, or reconstructed during the Warranty, Developer and its surety hereby agree to extend the Warranty for an additional one (1) year period following City's acceptance of the repaired, replaced, or reconstructed Public Improvements. Nothing herein shall relieve Developer from any other liability it may have under federal, state, or local law to repair, replace, or reconstruct arry Public Improvement following expiration of the Warranty or any extension thereof. Developer's warranty obligation under this section shall survive the expiration or termination of this Agreement.
12. SECURITY; SURETY BONDS. Prior to City's approval and execution of this Agreement, Developer shall provide City with surety bonds in the amounts and under the terms set forth below. The amount of the Security shall be based on the City Engineer's Estimated Costs. If City determines at any time prior to Developer's completion of the Public Improvements under Section 4 [Construction Schedule], in its sole and absolute discretion, that the Estimated Costs have changed, Developer shall adjust the Security in the amount requested by City. Developer's compliance with this provision (Section 12.0 et !gq.) shall in no way limit or modi$' Developer's indemnification obligation provided in Section 16.0 of this Agreement. l2.I Performance Bond. To guarantee the faithful performance of the Public Improvements and all the provisions of this Agreement, to protect City if Developer is in default as set forth in Section 18.0 et seq. of this Agreement, and to secure Developer's one-year guarantee and war-ranty of the Public Improvements, including the maintenance of all landscaping in a vigorous and thriving condition, Developer shall provide City a faithful performance bond in the amount of Two Million and Sixty Thousand and Five Hundred Dollars ($2,060,500.00), which sum shall be not less than one hundred percent (100%) of the Estimated Costs.
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I2.2 Partial Release. The City Council may, in its sole and absolute discretion and upon recoûtmendation of the City Engineer, partially release a portion or portions of the Security provided under this section as the Public Improvements are'accepted by City, provided that Developer is not in default on any provision of this Agreement or condition of approval for Tract No. 33825, and the total remaining Security is not less than twenty-five percent (25%) of the Estimated Costs. All Security provided under this section shall be released at the end of the Warranty period, or any extension thereof as provided in Section 11.0 of this Agreement, provided that Developer is not in default on any provision of this Agreement or condition of approval for Tract No. 33825.
I2.3 Labor & Material Bond. To secure payment to the contractors, subcontractors, laborers, material men, and other persons furnishing labor, materials, or equipment for performance of the Public Improvements and this Agreement, Developer shall provide City a labor and materials bond in the amount of Two Million and Sixty Thousand and Five Hundred Dollars ($200601500.00), which sum shall not be less than one hundred percent (100%) of the Estimated Costs. The Security provided under this section may be released by written authonzation of the City Engineer after six (6) months from the date City accepts the final Public Improvements. The amount of such Security shall be reduced by the total of all stop notice or mechanic's lien claims of which City is aware, plus an amount equal to twenty percent (20%) of such claims for reimbursement of City's anticipated administrative and legal expenses arising out of such claims.
I2.4 Additional Requirements. The surety for any surety bonds provided as Security shall have a current A.M. Best's rating of no less than A:VIII, be a bank or insurance company licensed to transact surety business in California, and shall be satisfactory to City. As part of the obligation secured by the Security and in addition to the face amount of the Security, the Developer or its surety shall secure the costs and reasonable expenses and fees, including reasonable attorney's fees and costs, incurred by City in enforcing the obligations of this Agreement. The Developer and its surety stipulate and agree that no change, extension of time, alteration, or addition to the terms of this Agreement, the Public Improvements, or the plans and specifications for the Public Improvements shall in any way affect its obligation on the Security.
12.5 Form of Security. The evidence of the Security shall be provided on the forms set forth in Attachment "C", unless other forms are deemed acceptable by the City Engineer and the City Attorney, and when such forms are completed to the satisfaction of City, the forms and evidence of the Security shall be attached hereto as Attachment "C" and incorporated herein by this reference.
12.6 Developer's Liabilitv. While no action of Developer shall be required in order for City to realize on its security under any Security instrument, Developer agrees to cooperate with City to facilitate City's realizatiot under any Security instrument, and to take no action to prevent City from such realization under 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, Developer shall be personally liable for performance under this Agreement and for payment of the cost of the labor and materials for the improvements required to be constructed or installed hereby and shall, within ten (10) days after written demand therefor, deliver to City such substitute Security as City shall require satisfying the requirements in this Section 12.
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13. MONUMENT SECURITY. Prior to City's execution of this Agreement, to guarantee payment to the engineer or surveyor for the setting of all subdivision boundaries, lot corners, and street centerline monuments for Tract No. 33825 in compliance with the applicable provisions of City's Municipal andlor Development Code ("subdivision Monuments"), Developer shall deposit cash with City in the amount of {Thirty Seven Thousand Dollars} ($37,000), which sum shall not be less than one hundred percent (100%) of the costs of setting the Subdivision Monuments as determined by the City Engineer. Said cash deposit may be released by written avthonzation of the City Engineer after all required Subdivision Monuments are accepted by the City Engineer, City has received written acknowledgment of pa1'rnent in full from the engineer or surveyor who set the Subdivision Monuments, and provided Developer is not in default of any provision of this Agreement or condition of approval for Tract No. 33825.
14. LIEN. To secure the timely performance of Developer's obligations under this Agreement, including those obligations for which security has been provided pursuant to Sections I2.0 et seq. and 13.0 of this Agreement, Developer hereby creates in favor of City a lien against all portions of the Property not dedicated to City or some other governmental agency for a public pu{pose. As to Developer's default on those obligations for which security has been provided pursuant to Sections 12.0 et seq. and 13.0 of this Agreement, City shall first attempt to collect against such security prior to exercising its .ights as a contract lienholder under this section.
15. SIGNS AND ADVERTISING. Developer understands and agrees to City's ordinances, regulations, and requirements goveming signs and advertising structures. Developer hereby agrees with and consents to the summary removal by City, without notice to Developer, of all signs or other advertising structures erected, placed, or situated in violation of any City ordinance, regulation, or other requirement. Removal shall be at the expense of Developer and its surety. Developer and its surety shall indemnify and hold City free and harmless from any claim or demand arising out of or incident to signs, advertising structures, or their removal.
16. INDEMNIFICATION. Developer shall defend, indemnify, and hold harmless City, its elected officials, officers, employees, and agents from any and all actual or alleged claims, demands, causes of action, liability, loss, damage, or injur¡ to property or persons, including wrongful death, whether imposed by a court of law or by administrative action of any federal, state, or local governmental body or agency, arising out of or incident to any acts, omissions, negligence, or willful misconduct of Developer, its personnel, employees, agents, or contractors in connection with or arising out of construction or maintenance of the Public Improvements, or performance of this Agreement. This indemnification includes, without limitation, the payment of all penalties, fines, judgments, awards, decrees, attomeys' fees, and related costs or expenses, and the reimbursement of Cit¡ its elected officials, officers, employees, andlor agents for all legal expenses and costs incurred by each of them. This indemnification excludes only such portion of any claim, demand, cause of action, liability, loss, damage, penalty, fine, or injury, to property or persons, including wrongful death, which is caused solely and exclusively by the gross negligence or willful misconduct of City as determined by a court or administrative body of competent jurisdiction. Developer's obligation to indemnify City shall survive the expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by City, its elected officials, officers, employees, or agents.
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17. INSURANCE
17.1 Types; Amounts. Developer shall procure and maintain, and shall require its contractors to procure and maintain, during construction of any Public Improvement pursuant to this Agreement, insurance of the types and in the amounts described below. If any of the Required Insurance contains a general aggregafe limit, such insurance shall apply separately to this Agreement or be no less than two times the specified occurrence limit. 17 .1.1 General Liabitity. Developer and its contractors shall procure and maintain occurrence version general liability insurance, or equivalent form, with a combined single limit of not less than $3,000,000 per occurrence for bodily injury, personal injury, and property damage.
l7.L2 Business Automobile Liability. Developer and its contractors shall procure and maintain business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occuffence. Such insurance shall include coverage for the ownership, operation, maintenance, use, loading, or unloading of any vehicle owned, leased, hired, or borrowed by the insured or for which the insured is responsible.
I7.I.3 \ilorkers' Compensation. Developer and its contractors shall procure and maintain workers' compensation insurance with limits as required by the Labor Code of the State of California and employers' liability insurance with limits of not less than $1,000,000 per occurrence, at all times during which insured retains employees.
17.L4 Professional Liability. For any consultant or other professional who will engineer or design the Public Improvements, liability insurance for errors and omissions with limits not less than $1,000,000 per occurence, shall be procured and maintained for a period of five (5) years following completion of the Public Improvements. Such insurance shall be endorsed to include contractual liability.
17.2 Deductibles. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either: (a) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City, its elected officials, officers, employees, agents, and volunteers; or (b) Developer and its contractors shall provide a financial guarantee satisfactory to City guaranteeing payrnent of losses and related investigation costs, claims, and administrative and defense expenses.
17.3 Additional Insured: Separation of Insureds. The Required Insurance shall name City, its elected offìcials, officers, employees, agents, and volunteers as additional insureds with respect to work performed by or on behalf of Developer or its contractors, including materials, parts, or equipment furnished in connection therewith. The Required Insurance shall contain standard separation of insured provisions, and shall contain no special limitations on the scope of its protection to City, its elected officials, officers, employees, agents, and volunteers.
17.4 Primary Insurance: \ilaiver of Subrogation. The Required Insurance shall be primary with respect to any insurance or self-insurance programs covering City, its elected officials, officers, employees, agents, and volunteers. All policies for the Required RIV #4836-3917-8284 v2 -10- Page 26 of 140
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Insurance shall provide that the insurance company waives all right of recovery by way of subrogation against City in connection with any damage or harm covered by such policy.
17.5 Certificates: Verification. Developer and its contractors shall fumish City with original certificates of insurance and endorsements effecting coverage for the Required Insurance. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by City before work pursuant to this Agreement can begin. City reserves the right to require complete, certified copies of all required insurance policies, at any time.
17.6 Term: Cancellation Notice. Developer and its contractors shall maintain the Required Insurance for the term of this Agreement and shall replace any certificate, policy, or endorsement which will expire prior to that date. All policies shall be endorsed to provide that the Required Insurance shall not be suspended, voided, reduced, canceled, or allowed to expire except on 30 days' prior written notice to City.
I7.7 Insurer Ratins. Unless approved in writing by City, all Required Insurance shall placed with insurers licensed to do business in the State of California and with a current A.M. Best rating of at least A:VIII.
18. DEFAULT; NOTICE; REMEDIES.
18.1 Notice. If Developer neglects, refuses, or fails to fulfill or timely complete any obligation, term, or condition of this Agreement, or if City determines there is a violation of any federal, state, or local law, ordinance, regulation, code, standard, or other requirement, City may at any time thereafter declare Developer to be in default or violation of this Agreement and make written demand upon Developer or its surety, or both, to immediately remedy the default or violation. Developer shall commence the work required to remedy the default or violation within ten (10) days of the written demand from the City. If the default or violation constitutes an immediate threat to the public health, safety, or welfare, City may provide the demand verbally, and Developer shall commence the required work within twentyfour (24) hours thereof. Immediately upon City's issuance of the demand to remedy the default, Developer and its surety shall be liable to City for all costs of construction and installation of the Public Improvements and all other administrative costs expenses as provided for in Section 9.0 of this Agreement.
18.2 Failure to Remedv; City Action. If the work required to remedy the noticed default or violation is not diligently prosecuted to a substantial completion acceptable to City within a reasonable time designated by the City, City may complete all remaining work, affange for the completion of all remaining work, andlor conduct such remedial activity as in its sole and absolute discretion it believes is required to remedy the default or violation. All such work or remedial activity shall be at the sole and absolute cost, expense, and liability of Developer and its surety, without the necessity of giving any further notice to Developer or surety. City's right to take such actions shall in no way be limited by the factthat Developer or its surety may have constructed dfy, or none of the required or agreed upon Public Improvements at the time of City's demand for performance. In the event City elects to complete or arrange for completion of the remaining work and improvements, City may require RIV #4836-3917-8284 v2 - 11- Page 27 of 140
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all work by Developer or its surety to cease in order to allow adequate coordination by City.
Notwithstanding the foregoing, if conditions precedent for reversion to acreage can be met and if the interests of City will not be prejudiced thereby, CiIy may also process a reversion to acreage and thereafter recover from Developer or its surety the full cost and expense incurred.
18.3 Other Remedies. No action by City pursuant to Section 18.0 et seq. of this Agreement shall prohibit City from exercising any other right or pursuing any other legal or equitable remedy available under this Agreement or any federal, state, or local law. City may exercise it rights and remedies independently or cumulatively, and City may pursue inconsistent remedies. City may institute an action for damages, injunctive relief, or specific performance.
19. GENERALPROVISIONS.
19.1 Authoritv to Enter Asreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority make this Agreement and bind each respective Party.
19.2 Cooperation: Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate, or convenient to attainthe purposes of this Agreement.
19.3 Construction: References: Captions. It being agreed the Parties or their agents have participated in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party.
Any term referencing time, days, or period for performance shall be deemed calendar days and not work days. All references to Developer include all personnel, employees, agents, and subcontractors of Developer, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
I9.4 Notices. All notices, demands, invoices, and written communications shall be in writing and delivered to the following addresses or such other addresses as the Parties may designate by written notice:
CITY:
City of Hemet
Attn: Alexander P. Meyerhoff, City Manager
445 E. Florida Avenue
Hemet, CA 92543
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DEVELOPER:
McSweeny Farms Recovery Acquisition, LLC
c/o Raintree Investment Corporation
Attn: Matthew Villalobos
5796 Armada Drive, Suite 375
Carlsbad, CA 92008
Depending upon the method of transmittal, notice shall be deemed received as follows: by facsimile, as of the date and time sent provided the original is contemporaneously deposited with United States Postal Service and delivered by regular mail; by messenger, as of the date delivered; and by U.S. Mail first class postage prepaid, as of 72 hours after deposit in the U.S.
Mail.
19.5 Amendment: Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
19.6 Waiver. City's failure to insist upon strict compliance with any provision of this Agreement or to exercise any right or privilege provided herein, or City's waiver of any breach of this Agreement, shall not relieve Developer of any of its obligations under this Agreement, whether of the same or similar type. The foregoing shall be true whether City's actions are intentional or unintentional. Developer agrees to waive, as a defense, counterclaim or set off, arry and all defects, irregularities or deficiencies in the atihonzation, execution or performance of the Public Improvements or this Agreement, as well as the laws, rules, regulations, ordinances or resolutions of City with regards to the authonzation, execution or performance of the Public Improvements or this Agreement.
19.7 Assignment or Transfer of Asreement. Developer shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without prior written consent of City. Any attempt to do so shall be null and void, and any assignee, hypothecatee, or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation, or transfer. Unless specifically stated to the contrary in City's written consent, any assignment, hypothecation, or transfer shall not release or discharge Developer from any duty or responsibility under this Agreement.
19.8 Bindine Effect. Each and all of the covenants and conditions shall be binding on and shall inure to the benefit of the Parties, and their successors, heirs, personal representatives, or assigns. This section shall not be construed as an authonzation for any Party to assign any right or obligation.
19.9 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
19.10 Invalidity: Severabilitv. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in fulIforce and effect.
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19.11 Consent to Jurisdiction and Venue. This Agreement shall be construed in accordance with and governed by the laws of the State of California. Any legal action or proceeding brought to interpret or enforce this Agreement, or which in any way arises out of the Parties' activities undertaken pursuant to this Agreement, shall be filed and prosecuted in the appropriate California State Court in the County of Riverside, California. Each Party waives the benefit ofany provision ofstate or federal law providing for a change ofvenue to any other court or jurisdiction including, without limitation, a change of venue based on the fact that a governmental entity is a party to the action or proceeding, or that a federal right or question is involved or alleged to be involved in the action or proceeding. Without limiting the generality of the foregoing waiver, Developer expressly waives any right to have venue transferred pursuant to California Code of Civil Procedure Section 394.
19.12 Attorneyso X'ees and Costs. If any arbitration, lawsuit, or other legal action or proceeding is brought by one Party against the other Party in connection with this Agreement or the Property, the prevailing party, whether by final judgment or arbitration award, shall be entitled to and recover from the other party all Litigation Expenses. Any judgment, order, or award entered in such legal action or proceeding shall contain a specific provision providing for the recovery of Litigation Expenses.
19.13 Relationship Between The Parties. The Parties hereby mutually agree that neither this Agreement, any map related to Tract No. 33825, nor any other related entitlement, permit, or approval issued by City for the Property shall operate to create the relationship of partnership, joint venture, or agency between City and Developer. Developer's contractors and subcontractors are exclusively and solely under the control and dominion of Developer. Nothing herein shall be deemed to make Developer or its contractors an agent or contractor of City.
19.14 Counterparts. This Agreement may be executed in counterpart originals, which taken together, shall constitute one and the same instrument.
19.15 Effective Date of Asreement. This Agreement shall not become effective until the date if has been formally approved by the City and executed by the appropriate authorities of City and Developer.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first-above written.
CITY OF HEMET
By:
P
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City Manager
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By:
ATTEST:
City Clerk
APPROVED AS TO FORM
By:
. Vail
City Attorney
McSweeny Farms Recovery Acquisition, LLC
J Shumaker
Its: Authorized Signatory ts:
NOTE: DEVELOPER'S SIGNATURES SHALL BE DULY NOTARIZED, AND
APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE
REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATIONO OR
OTHER RULES OR RE,GULATIONS APPLICABLE TO DEVELOPER'S
BUSINESS ENTITY.
MARSHA ROJAS
Notary Public, State of NewYork
No.01RO6064861
Qualified in Suffolk Coun$
Commission Expires October 1,2017
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EXIIIBIT OOA"
LEGAL DESCRIPTION OF PROPERTY
TRACT NO.33825
1 RIV #4836-3917-8284 v2 SUBDIVISION IMPROVEMENT AGREEMENT Page 32 of 140
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EXHIBIT "B''
LIST OF PUBLIC IMPROVEMENTS
TRACT NO.33825
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EXHIBIT "C'
SURETY BONDS AND OTHER SECURITY
TRACT NO. 33825
As evidence of understanding the provisions contained in this Agreement, and of the Developer's intent to comply with same, the Developer has submitted the below described security in the amounts required by this Agreement, and has affixed the appropriate signatures thereto:
PERFORMANCE BOND PRINCIPAL AMOUNT: $ 20060,500
Surety: Lexon / Ironshore
Attomey-in-fact:
Address: Ironshore Specialty Insurance Co.
P.O. Box 3407
New York, NY. 1008
LABOR & MATERIAL BOND PRINCIPAL AMOUNT: $ 2,060,500
Surety: Lexon / Ironshore
Attorney-in-fact:
Address: Ironshore Specialty Insurance Co.
P.O. Box 3407
New York, NY, 1008
$ 37,000
Date:
CASH MONUMENT SECURITY:
Amount deposited per Cash Receipt No
I
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þ
BOND NO.
INITIAL PREMIUM:
SUBJECT TO RENEWAL
CITY OF'HEMET
TRACT MAP NO. Tr-33825 IMPROVEMENTS
FORM OF PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS the City of Hemet, California ("City") and McSweeny Farms Recovery Acquisition, LLC, ("Principal"), have executed an agreement for work consisting of but not ümiìed to, the furnishing aÍl labot, materials, tools, equipment, services, and incidentals for all grading, roads, paving, curbs and gutters, pathways, storm drains, sanitary sewers, utilities, ãrainage facilities, traffic controls, landscaping, street lights, and all other required facilities for Tract Map No. Tr-33825 ("Public Improvements");
WHEREAS, the Public Improvements to be performed by Frincipal are more particularly set forth in that certainsubdivision Improvement Agreement dated Aq,a\20I6 ("Improvement Agreement"); J
WHEREAS, the Improvement Agreement is hereby referred to and incorporated herein by reference; and
WHEREAS, Principal is required by the Improvement Agreement to provide a good and sufficient bond for performance of the Improvement Agreement, and to guarantee and warranty the Public Improvements constructed thereunder.
NOW, THEREFORE, Principal and Ironshore Indemnity Inc. ("Surety"), a corporation organized and existing under the laws of the State of Minnesota, and duly authorized to transact suiety business under the laws of the State of California, are held and firmly bound unto City in the sum of Two Million Sixty Thousand Five Hundred and 00i100 Dollars ($2'060'500.00)' said sum being not less than one hundred percent (100%) of the total cost of the Public Improvements as set forth in the Improvement Agreement, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION is such, that if Principal, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions, agreements, guarantees, and warranties in the Impiovement Agreement and any alteration thereof made as therein provided, to be kept and performed at the time and in the manner therein specified and in all respects according to their intent and meaning, and to indemnify and save harmless City, its officers, employees, and agents, as stipulated in the Improvement Agreement, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.
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SUBDIVISION IMPROVEMENT AGREEMENT
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As part of the obligation secured hereby, and in addition to the face amount specified therefor, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered.
Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, oiaddition to the terms of the Imþrovement Agreement, or to any plans, profiles, and specifications related thereto, or to the Pubhõ Improvements to be constructed thereunder, shall in u.y *uy affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration, or addition.
This bond is executed and filed to comply with Section 66499 et Ëgg. of the Government Code of California as security for performance of the Improvement Agreement and security for the one-year guarantee and warranty of the Public Improvements.
IN WITNESS WHEREOF, the seal and signature ofthe Principal is hereto affixed, andthe corporate seal and the name of the Surety is hereto affi1ed and attested by its duly authorized Attãrney-in -Fact at Louisville. Kentucky ,
this 24th day of June ,2016.
Mcsweeny Farms Recovery Acquisition, LLC Ironshore Indemnity Inc.
Principal Surety
By: By:
ffi
JonathanìSlTumaker
In-Fact
Authorized Signatory Jessica Nowlin, Attorney-in-Fact
(print name) (print name)
APPROPRIATE NOTARIAL ACKNO\ilLEDGMENTS OF EXECUTION
BY PRINCIPAL AND SURETY, AND A COPY OF THE POWER OF
ATTORNEY TO LOCAL REPRESENTATIVES OF THE BONDING
COMPANY MUST BE ATTACHED TO THIS BOND.
NOTE:
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SUBDIVISION IMPROVEMENT AGREEMENT
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Acknowledsement Form
State of
County of (L
onrn"/faay or-$¡!- in the y"urhtb,before me, the undersigned notary public, personally appeared (fO**t*-^ Ñhu*, tt¿ I personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by hislher/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
Notary Public
)ss.
TIARSHA ROJAS
llotery Public, State of Ncwyo¡i
Nô.01RO6064961
Qualified in Suffolk Countu
Commission Expires October 1:2011
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CALIFORNIA ALL. PU RPOSE
CERTIFICATE OF ACKNOWLEDGMENT
State of
County of Jefferson
On .lrrne 24th. l6 before me,
personally appeared Jessica Nowlin, Attornev-ln-Fact ,
who provãd io me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that læ/she/ihey executed the same in {ris/her/their authorized capacity(ies), and that by -l+is/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
otary ic Signature (Notary Public Seal)
)
)
Sandra L. Fusinetti, Notary Public '
A nota ry publ tc or other offi cer completing thIS certificate VErifies only the dentity of the IndIVidual who Signed the docu ment to whi ch this certificate S attached and not the truthfulnESS accuracyt or validity of that document. t
Commission 13th,2020
ADDITIONAL OPTIONAL I NFORMATION
DESCRIPTION OF THE ATTACHED DOCUMENT
(Title or description of attached document)
(Title or descr¡ption of attached document continued)
Number of Pages
-
Document Date2tl 1 $ Vereion wvrw. Nol* ryâla$$â$.cóm Bt3ü-f,7 3-g8.8*
INSTRUCTIONS FOR COMPLETING THIS FORM
This form complies with current California statutes regarding notary wording and, ¡neided, shoutd be completed and attached to the document. Aclvtowledgments þom other states may be completedþr documents being sent to that state so long 'øs
the wording does not require lhe California notary to violate Caliþrnia notary løw.
. State and County information must be the State and County where the document signer(s) personally appeared before the notary public for acknowledgment. . Date ofnotarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. . The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). . Print the name(s) of document signer(s) who personally appear at the time ol notarization.
¡ lndicate the correct singular or plural forms by crossing off inconect forms (i e' he/she/theF is /*re ) or circling the conect forms. Failure to correctly indicate this information may lead to rejection of document recording. . The notary seal impression must be clear and photographically reproducible' Impression must noa cover text or lines. If seal impression smudges, re-seal if a suflicient area permits, otherwise complete a different acknowledgment form. ¡ Signature ofthe notary public must match the signature on file with the office of the county clerk.
¡ Ádditional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. * Indicate titie or type of attached document, number of pages and date. * Indicate the capacity claimed by the signer' If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). . Securely attach this document to the signed document with a staple.
CAPACITY CLAIMED BY THE SIGNER
fI lndividual (s)
¡ Corporate Offlcer
( r tile)
tr Partne(s)
E Attorney-in-Fact
ü Trustee(s)
rr Other
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nt-ô0üJ7qtr
lronshore lndemnity lnc.
KNOW ALL MEN By THESE PRESENTS, that TRONSHORE INDEMNITY lNC., a Minnesota Corporation, with its principal office in New York, NY does hereby constitute and appoint: Brook T. Smith, Raymond M. Hundley, Jason D. Cromwell, James H. Martin, Sandra L. Fusinetti, Deborah Neichter, Jill Kemp, Theresa Pickerrell, Sheryon Quinn, Bonnie J. Rowe, Amy Meredith, Lynnette Long, Barbara Duncan, Mark A. Guidry, Michele Lacrosse, Jessica Nowlin and Summer A. Bett¡ng its true and lawful Attorney(s)-ln-Fact to make, execute, seal and deliver for, and on its behalf as surety, any and all bonds, undertakings or other writings obligatory in nature of a bond.
This authority is made under and by the authority of a resolution which was passed by the Board of Directors of IRONSHORE INDEMNITY lNc. on the 22nd day of April, 2013 as follows:
Resolved, that the Director of the Company is hereby authorized to appoint and empower any representAt¡ve of the company or other person or persons as Attorney-ln-Fact to execute on behalf of the Company any bonds, undertakings, policies, contracts of indemnity or other writings obligatory in nature of a bond not to exceed SS,SOO,OOO dollars, which the Company might execute through its duly elected officers, and aifix the seal of the Company thereto. Any said execution of such documents by an Attorney-ln-Fact shall be as binding upon the Company as if they had been duly executed and acknowledged by the regularly elected officers of the Company. Any Attorney-ln-Fact, so appointed, may be removed for good cause and the authority so granted may be revoked as specified in the Power ofAttorney.
Resolved, that the signature of the Director and the seal of the Company may be affixed by facsimile on any power of attorney granted, and the signature of the Secretary, and the seal of the Company may be affixed by facsimile to any certificate of any such power and any such power or certificate bearing such facsimile signature and seal shall be valid and binding on the Company. Any such power so executed and sealed and certificate so executed and sealed shall, with respect to any bond of undertaking to which it is attached, continue to be valid and binding on the Company. lN WITNESS THEREOF, IRONSHORE INDEMNITY lNC. has caused this instrument to be signed by ¡ts Director, and its Corporate Seal to be affixed this 2nd day ofJuly, 20L3.
IRONSHORE INDEMNITY INC.
Daniel L.
Director
ACKNOWLEDGEMENT
On this 2nd day of Ju|y,2013, before me, personally came Daniel L. Sussman to me known, who being dulysworn, did depose and saythat he is the D¡rector of lronshore lndemnity lnc., the corporation described in and which executed the above ¡nstrument; that he executed said instrument on behalf of the corporation by authority of his office under the By-laws of said corporation.
A].IY TÅIIO R
H otãry PublìÊ- St8te o fTBn n essee
Davidson Couflty
Lly ÈomrÍissi0n Expires û7-0&.19
BY
aylor
Pub¡ic
CERTIFICATE
l, the undersigned, Secretary of IRONSHORE INDEMNITY lNC., a Minnesota Company, DO HEREBY CERTIFY that the original Power of Attorney of which the foregoing is a true and correct copy, is in full force and effect and has not been revoked and the resolutions as set forth are now in force. signed and seared at th¡sdl.v or T(-LÀo-- , zofâ.
tt:j;"^?i"
- gh-
"ä,
,
Peul 5 Giordano
5eÊfÊtãry
"WARNING: Any person who knowingly and with ¡ntent to defraud any ¡nsurance company or other percon, files and application for insurance or statement of cla¡m containing any materially false information, or conceals for the purpose of misleading information concerning any fact mate¡ial thereto, comm¡ts a fiaudulent insurance act, which is a crime and subjects such person to criminal and c¡v¡l penalties,"
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BOND NO.
INITIAL PREMIUM:
SI
SUBJECT TO RENEWAL
CITY OF HEMET
TRACT MAP No. Tr-33825 IMPROVEMENTS
FORM OF LABOR AND MATERIAL BOND
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS the City of Hemet California ("City") and McSweeny Farms Recovery Acquisition ,LLc("Principal"), have executed an agreement for work consisting of, but not limited to, the furnishing all labor, materials, tools, equipment, services, and incidentals for all grading, roads, paving, curbs and gutters, pathways, storm drains, sanitary sewers, utilities, drainage facilities, traffic controls, landscaping, street lights, and all other required facilities for Tract Map No. Tr-33 825 ("Public Improvements");
V/HEREAS, the Public Improvements to be performed by Principal are.more particularly set forth in that certain Subdivision Improvement Agreement dated 4îg.^S| 9t ,2016 ("Improvement Agreement") ;
WHEREAS, the Improvement Agreement is hereby referred to and incorporated herein by reference; and
WHEREAS, Principal is required to furnish a bond in connection with the Improvement Agreement providing that if Principal or any of its subcontractors shall fail to pay for any materials, próvisions, or other supplies, or terms used in, upon, for, or about the performance of the Public i-prove-ents, or for any work or labor done thereon of any kind, or for amounts due under the provisions of Title 15 (commencing with section 3082) of Part 4 of Division 3 of the California Civil Code, with respect to such work or labor, that the Surety on this bond will pay the same together with a reasonable attorney's fee in case suit is brought on the bond.
NOW, THEREFORE, Principal and Ironshore Indemnity Inc. (oosurety"), a corporation organizedand existing under the laws of the State of Minnesota, and duly authorized to transact buiiness under the laws of the State of California, are held and firmly bound unto City and to any and all material men, persons, companies or corporations furnishing materials, provisions, and other supplies used in, upon, for or about the performance of the Public Improvements, and all persons, companies or corporations renting or hiring teams, or implements or machinery, for or contributing to the Public Improvements to be done, and all persons performing work or labor upon the same and all persons supplying both work and materials as aforesaid excepting the Principal, the sum of Five H Dollars
($2.060,500.00), said sum being not less than l00o/o of the total cost of the Public Improvements under the terms of the Improvement Agreement, we bind ourselves, our heirs, executors administrators, successors and assigns jointly and severally, firmly by these presents. and
RIV #4836-3917-8284v2 1
SUBDIVISION IMPROVEMENT AGREEMENT
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THE CONDITION OF THIS OBLIGATION IS SUCH that if the Principal, his or its subcontractors, heirs, executors, administrators, successors, or assigns, shall fail to pay for any materials, provisions, or other supplies or machinery used in, upon, for or about the performance of the pubiic Improvements, or for work or labor thereon of any kind, or fail to pay any of the persons named in Camornia Civil Code Section 3181, or amounts due under the Unemployment irrrrrr*r" Code with respect to work or labor performed by any such claimant, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department frorn ttre wages of employees of the contractor and his subcontractors pursuant to Section 13020 of the UnemploymentÌnsurance Code with respect to such work and labor, and all other applicable laws of the Stut" of California and rules and regulations of its agencies, then said Surety will pay the same in or to an amount not exceeding the sum specified herein.
As part of the obligation secured hereby, and in addition to the face amount specified therefor, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered.
This bond is executed and filed to comply with Section 66499 et !9q. of the Califomia Government Code as security for payment to contractors, subcontractors, and persons furnishing labor, materials, or equipment for construction of the Public Improvements or performance of the Improvement Agreement. It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any and all persons, companies, and corporations entitled to file claims under Title 15 (commencing with Section 3082) of Part 4 of Division 3 of the California Civil Code, so as to give a right of action to them or their assigns in any suit brought upon this bond.
Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the Improvement Agreement, or to any plans, profiles, and specifications related thereto, or to the Public Improvements to be constructed thereunder, shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration, or addition.
IN V/ITNESS V/HEREOF, the seal and signature of the Principal is hereto affixed, and the corporate seal and the name of the Surety is hereto affixed and attested by its duly authorized Attomey-in-Fact at Louisville. Kentuckv, this 24th day of June, 20 I 6.
Mcsweeny Farms Recovery Acquisition, LLC Ironshore Indemnity Inc.
Principal Surety
By: By:
In-Fact
Jonathan
Jessica Nowlin, Attorney-in-Fact Authorized Signatory
(print name) (print name)
RIV #4836-391 7 -8284 v2 2
SUBDIVISION IMPROVEMENT AGREEMENT
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NOTE: APPROPRIATE NOTARIAL ACKNO\ilLEDGMENTS OF EXECUTION
BY PRINCIPAL AND SURETY, AND A COPY OF THE POWER OF
ATTORNEY TO LOCAL REPRESENTATIVES OF' THE BONDING
COMPANY MUST BE ATTACHED TO THIS BOND.
RIV #4836-3917-8284v2 J
SUBDTVISION IMPROVEMENT AGREEMENT
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Acknowledsement Form
State of
County of (L
onrn"lrÍs duy ot JUt in the y"urfuþ,before me, the undersigned notary public, personally appeared personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
Notary Public
MARSHA ROJAS
Nolary Public, State of NewYoû
No.01RO6064861
Qualified in Suffolk County
Gommission Expires October 1,2011
)ss
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CALIFORNIA ALL. PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
A nota ry publtc or other officer completing this certificate verifies onlv thô identity of the individ ual who signed the document to which thIS certificate is attached , and not the truthfu nes S accuracy or val id ity of that docu me nt.
State of Ke
County of
orì June 24th.2016 before t", trnor" t. trt'tt*'-noo***UU*ouu*r, ' personally appeared Jessica Nowlin, Attornev-ln-Fact '
*t.'o provêd io me on the basis of satisfactory evidence to be the person(s) whose n"rå1r¡ is/a+e subscribed to the within instrument and acknowledged to me that #e/she/they executed the same in his/her/their authorized capacity(ies), and that by åis/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY oF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct'
WITNESS mY hand and official seal
(Notary Public Seal)
)
)
My Commission 13th,2020
ADD ITIONAL OPTIONAL INFORMATION
DESCRIPTION OF THE ATTACHED DOCUMENT
(Title or description of attached document)
(title or description of attached document continued)
Number of Pages
-
Document Date2û1 5 Ver*io* ruøw.Noå4ry*la$ssÞ'cÕrll BSü-å73-S8#5
INSTRUCTIONS FOR COMPLETING THIS FORM
This form complies with current CaliforniT statutes regarding notary wording 1nd' ¡neided, should be completed and attached to lhe document. Aclcnowledgments þonr other states mtry bi completedfor documents being sent to that state so long -
as the wording does not require the Caliþrnia notary to violate Calífomia notary law-
. State and County information must be the State and County where the document signer(s) personally appeared before the notary public for acknowledgment' . Dãte ofnotarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. . The notary public must print his or her name as it appears within his or her commissioniollowed by a comma and then your title (noary public)' . Print the name(s) of document signer(s) who personally appear at the time of notarization.
. Indicate the correct singular or plural forms by crossing off inconect forms (i.e. he/she/the6 is /ere; oriircling ihe conect forms. Failure to correctly indicate this information may lead to rejection ofdocument recording. . The notary seal impression must be clear and photographically reproducible.
ImpressioÀ must noi cover text or lines. If seal impression smudges, re-seal if a sufTicient area permits, otherwise complete a different acknowledgment form' . signature ofthe notary public must match the signature on file with the offrce of the county clerk.
¡ Ádditional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document' ., Indicate titie orþpe ofattached document, number ofpages and dafe * Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary)' o Securely attach this document to the signed document
"¡/ith
a staple
CAPACITY CLAIMED BY THE SIGNER
¡ lndividual(s)
tr Corporate Officer
(Ttile)
Partne(s)
Attorney-in-Fact
Trustee(s)
Othe
tr
E
¡
tr r
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fi-GM7n(
lronshore lndemnity I nc.
KNOW ALL MEN BY THESE PRESENTS, that IRONSHORE INDEMNITY lNC., a Minnesota Corporation, with its principal office in New York, NY does hereby constitute and appoint: Brook T. Smith, Raymond M. Hundley, Jason D. Cromwell, James H. Martin, Sandra L. Fusinetti, Deborah Neichter, Jill Kemp,Theresa Pickerrell, Sheryon Quinn, Bonnie J. Rowe, Amy Meredith, Lynnette Long, Barbara Duncan, Mark A' Guidry, Michele Lacrosse, Jessica Nowlin and Summer A. Bett¡ng its true and lawful Attorney(s)-ln-Fact to make, execute, seal and deliver for, and on its behalf as surety, any and all bonds, undertakings or other writ¡ngs obligatory in nature of a bond.
This authority is made under and by the authority of a resolution which was passed by the Board of Directors of IRONSHORE INDEMNITY lNc. on the 22nd day of April, 2013 as follows:
Resolved, that the Director of the Company is hereby authorized to appoint and empower any representative of the company or other person or persons as Attorney-ln-Fact to execute on behalf of the Company any bonds, undertakings, policies, contracts of indemnity or other writings obligatory in nature of a bond not to exceed 55,500,000 dollars, which the Company might execute through its duly elected officers, and affix the seal of the Company thereto. Any said execution of such documents by an Attorney-ln-Fact shall be as binding upon the Company as if they had been duly executed and acknowledged by the regularly elected officers of the Company. Any Attorney-ln-Fact, so appointed, may be removed for good cause and the authority so granted may be revoked as specified in the Power of Attorney.
Resolved, that the signature of the Director and the seal of the Company may be affixed by facsimile on any power of attorney granted, and the signature of the Secretary, and the seal of the Company may be affixed by facsimile to any certificate of any such power and any such power or certif¡cate bearing such facsimile signature and seal shall be valid and binding on the Company. Any such power so executed and sealed and cert¡ficate so executed and sealed shall, with respect to any bond of undertaking to which it is attached, continue to be valid and binding on the Company. lN WITNESS THEREOF, IRONSHORE INDEMNITY lNC. has caused this instrument to be signed by its D¡rector, and its Corporate Seal to be affixed this 2nd day of J uly, 2013.
IRONSHORE INDEMNITY INC.
Dãn¡el L.
Director
ACKNOWLEDGEMENT
On this 2nd day of July, 2013, before me, personally came Daniel L. Sussman to me known, who being duly sworn, did depose and say that he is the Director of lronshore lndemnity lnc., the corporation described in and which executed the above instrument; that he executed said instrument on behalf of the corporation by authority of his office under the By-laws of said corporation. ...ì"s?q"ái :_ sËÁL
: tgis
A].IY TAILÛ R
I'lolary Públic- St8te rtTennessee
Davidson tounty
Lly Èommissìon Expires 07-08-19
Publ¡c
CERTIFICATE
l, the undersigned, Secretary of IRONSHORE INDEMNITY lNC., a Minnesota Company, DO HEREBY CERTIFY that the original Power of Attorney of which the foregoing is a true and correct copy, is in full force and effect and has not been revoked and the resolutions as set forth are now in force. -...ì{.Iltl..;2
-ir'*tt-: ::û'.4
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BY
signed and s".r"o .t *'¡.Qfly or S(rïú-
.,-",ì;r&,
\¡ãó'
zol:û-.
,
P¡ul S. Giordâno
SeerÊtary
"WARNING: Any pcrson who knowingly and with ¡ntent to defraud any insurance company or other person, files and application for insurance or statement of claim conta¡n¡ng any materially false information, or conceals for the purpose of misleading info¡mation concerning any fact mate¡ial thereto, commits a fiaudulent insurance act, whicl, is a ffime and subjects such person to cr¡m¡nal and civil penalties."
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RIV #4830-8901-9593 v1
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RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
(Document exempt from recording fees
pursuant to Cal. Gov. Code § 27383)
CITY OF HEMET
Attn: City Manager
445 East Florida Avenue
Hemet, California 92543
THIS SPACE FOR RECORDER’S USE ONLY
SUBDIVISION IMPROVEMENT AGREEMENT
FINAL TRACT MAP 33825
By and Between
THE CITY OF HEMET,
a municipal corporation
and
Richmond American Homes, a California Corporation
DATED August 9, 2022
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SUBDIVISION IMPROVEMENT AGREEMENT
FINAL TRACT MAP 33825
This Subdivision Improvement Agreement (“Agreement”) is entered into as of this 9th day of August, 2022 by and between the City of Hemet, a municipal corporation (“City”) and Richmond American Homes, a California corporation (“Builder”). City and Builder are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties.”
RECITALS
A. City of Hemet has previously approved Tract Map No. 33825 on September 28, 2016, along with proper and sufficient security.
B. McSweeny Recovery Acquisition, LLC, a Delaware Limited Liability Company, (“Developer”) has not completed all of the work or made all of the Public Improvements required by the Subdivision Map Act (Government Code sections 66410 et seq.), (“Map Act”) the City Ordinances, the conditions of approval for Tract No. 33825, or other ordinances, resolutions, or policies of City requiring construction of improvements in conjunction with the subdivision of land.
C. Builder has acquired the land known as Tract Map 33825 from Builder.
D. The City desires to enter into this Agreement amending and superseding the Subdivision Improvement Agreement by and between the City of Hemet, a municipal corporation and Builder, also known as Riverside County Recorder Office Document No. 2016- 0436392 (“Original Subdivision Improvement Agreement”).
E. Builder has not completed all of the work or made all of the Public Improvements required by the Subdivision Map Act (Government Code sections 66410 et seq.), (“Map Act”) the City Ordinances, the conditions of approval for Tract No. 33825, or other ordinances, resolutions, or policies of City requiring construction of improvements in conjunction with the subdivision of land.
F. Pursuant to City Ordinances and the applicable provisions of the Map Act, Builder and City enter into this Agreement for the timely construction and completion of the Public Improvements and the furnishing of the security therefor, acceptable to the City Engineer and City Attorney, for Tract Map No. 33825.
G. City has authority to enter into this Subdivision Improvement Agreement pursuant to Government Code Sections 66499 – 66499.10.
H. Pursuant to Government Code Section 66499, Builder’s execution of this Agreement and the provision of the security are made in consideration of City’s approval of the final map for Tract Map No. 33825.
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DEFINED TERMS
“Builder” shall mean Richmond American Homes, a California corporation. The term “Builder” shall also include all assignees, to the extent permitted under this Agreement, of the rights and obligations of Builder under this Agreement, and any successor-in-interest to Builder having a legal and/or equitable interest in the Property.
“Developer” shall mean McSweeny Recovery Acquisition, LLC, a Delaware Limited Liability Company. The term “Developer” shall also include all assignees, to the extent permitted under this Agreement, of the rights and obligations of Developer under this Agreement, and any successor-in-interest to Developer having a legal and/or equitable interest in the Property. “Estimated Costs” shall mean the City Engineer’s approximation of the actual cost to construct the Public Improvements, including the replacement cost for all landscaping. “Litigation Expenses” shall mean all costs and expenses, to the extent reasonable in amount, actually and necessarily incurred by a party in good faith in the prosecution of an action or proceeding, including, but not limited to, court costs, filing, recording, and service fees, copying costs, exhibit production costs, special media rental costs, attorneys’ fees, fees for investigators, witness fees (both lay and expert), travel expenses, deposition and transcript costs and any other cost or expense, the award of which a court of competent jurisdiction may determine to be just and reasonable.
“Map Act” shall mean the Subdivision Map Act, Government Code Sections 66410 et seq. “Property” shall mean the all of the real property contained within the boundaries of Tract Map No. 33825 located in the City of Hemet, California, as is more particularly described in the legal description and parcel diagram attached hereto and incorporated hereby by reference at Attachment “A”.
“Public Improvements” shall include, but not be limited to, recertification of rough graded pads, finish grade, repair existing streets, curbs and gutters, sidewalks, water systems, sanitary sewers, utilities, and drainage facilities (if any), landscaping, street lights and all other facilities required to be constructed and dedicated to the City or other public entity as conditions of approval of Tentative Tract Map No. 33825 and as shown in detail on the plans, and specifications which have been approved by the City and incorporated into Tract Map No. 33825. The Parties agree that the Public Improvements to be completed by Builder are more specifically described in the diagram or plan attached hereto and incorporated herein by reference as Attachment “B.
Notwithstanding, Attachment “B”, Builder shall remain obligated to construct and complete all of the Public Improvements required as conditions of approval for Tract Map No. 33825, a full copy of which is on file with and may be obtained from the Engineering Department of the City of Hemet.
“Required Insurance” shall mean the insurance required to be maintained by Builder under Section 17.
“Security” shall mean surety bonds in the amounts and under the terms of Section 12 or other security approved by City Engineer or City Attorney.
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“Tract No 33825.” shall mean the final map prepared and approved by the City for tentative tract map no. 33825.
“Warranty” shall mean the one year period following completion of the Public Improvements by Builder and the acceptance of the Public Improvements by the City in which Builder warrants and guarantees all Public Improvements.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the parties and contained here and other consideration, the value and adequacy of which are hereby acknowledged, the parties agree as follows:
1. SUPERSESSION. This Agreement supersedes and replaces the Original Subdivision Improvement Agreement in its entirety. Upon execution of this Agreement by the Builder, the Original Subdivision Improvement Agreement shall be of no further force and effect unless reinstated.
2. EFFECTIVENESS. This Agreement shall not be effective unless and until all four (4) of the following conditions are satisfied in the order provided:
2.1 Security. Builder provides City with the Security of the type and in the amounts required by this Agreement;
2.2 Final Map and Agreement Approval. The City Council of the City of Hemet (“City Council”) previously approved the final map for Tract Map No. 33825 and now approves this Agreement;
2.3 Record Agreement. Builder and City execute the Agreement and City records this Agreement in the Recorder’s Office of the County of Riverside; and If the above described conditions are not satisfied in the order, manner and within the time provided under this Agreement, this Agreement shall automatically terminate without need of further action by either City or Builder.
3. PUBLIC IMPROVEMENTS. Builder shall construct or have constructed at its own cost, expense, and liability the Public Improvements, as defined herein, within the time and in the manner required under this Agreement. Construction of the Public Improvements shall include any transitions and/or other incidental work deemed necessary for drainage or public safety. The Builder shall be responsible for the replacement, relocation, or removal of any component of any irrigation water or sewer system in conflict with the construction or installation of the Public Improvements. Such replacement, relocation, or removal shall be performed to the complete satisfaction of the City Engineer and the owner of such water or sewer system. Builder further promises and agrees to provide all equipment, tools, materials, labor, tests, design work, and engineering services necessary or required by City to fully and adequately complete the Public Improvements.
3.1 Prior Partial Construction of Public Improvements. Where construction of any Public Improvements has been partially completed prior to this Agreement,
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Builder agrees to complete such Public Improvements or assure their completion in accordance with this Agreement.
3.2 Permits; Notices; Utility Statements. Prior to commencing any work, Builder shall, at its sole cost, expense, and liability, obtain all necessary permits and approvals and give all necessary and incidental notices required for the lawful construction of the Public Improvements and performance of Builder’s obligations under this Agreement. Builder shall conduct the work in full compliance with the regulations, rules, and other requirements contained in any permit or approval issued to Builder. Prior to commencing any work, Builder shall file a written statement with the City Clerk and the City Engineer, signed by Builder and each utility which will provide utility service to the Property, attesting that Builder has made all deposits legally required by the utility for the extension and provision of utility service to the Property.
3.3 Pre-approval of Plans and Specifications. Builder is prohibited from commencing work on any Public Improvement until all plans and specifications for such Public Improvement have been submitted to and approved by the City Engineer, or his or her designee.
Approval by the City Engineer shall not relieve Builder from ensuring that all Public Improvements conform with all other requirements and standards set forth in this Agreement.
3.4 Quality of Work; Compliance With Laws and Codes. The construction plans and specifications for the Public Improvements shall be prepared in accordance with all applicable federal, state and local laws, ordinances, regulations, codes, standards, and other requirements. The Public Improvements shall be completed in accordance with all approved maps, plans, specifications, standard drawings, and special amendments thereto on file with City, as well as all applicable federal, state, and local laws, ordinances, regulations, codes, standards, and other requirements applicable at the time work is actually commenced.
3.5 Standard of Performance. Builder and its contractors, if any, shall perform all work required to construct the Public Improvements under this Agreement in a skillful and workmanlike manner, and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Builder represents and maintains that it or its contractors shall be skilled in the professional calling necessary to perform the work. Builder warrants that all of its employees and contractors shall have sufficient skill and experience to perform the work assigned to them, and that they shall have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the work, and that such licenses, permits, qualifications and approvals shall be maintained throughout the term of this Agreement.
3.6 Alterations to Improvements. All work shall be done and improvements made and completed as shown on approved plans and specifications, and any subsequent alterations thereto. If during the course of construction and installation of the Public Improvements it is determined that the public interest requires alterations in the Public Improvements, Builder shall undertake such design and construction changes as may be reasonably required by City. Any and all alterations in the plans and specifications and the Public Improvements to be completed may be accomplished without giving prior notice thereof to Builder’s surety for this Agreement.
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4. MAINTENANCE OF PUBLIC IMPROVEMENTS AND LANDSCAPING.
City shall not be responsible or liable for the maintenance or care of the Public Improvements until City formally approves and accepts them in accordance with its policies and procedures.
City shall exercise no control over the Public Improvements until approved and accepted. Any use by any person of the Public Improvements, or any portion thereof, shall be at the sole and exclusive risk of the Builder at all times prior to City’s acceptance of the Public Improvements.
Builder shall maintain all the Public Improvements in a state of good repair until they are completed by Builder and approved and accepted by City, and until the security for the performance of this Agreement is released. Maintenance shall include, but shall not be limited to, repair of pavement, curbs, gutters, sidewalks, signals, parkways, water mains, and sewers; maintaining all landscaping in a vigorous and thriving condition reasonably acceptable to City; removal of debris from sewers and storm drains; and sweeping, repairing, and maintaining in good and safe condition all streets and street improvements. It shall be Builder’s responsibility to initiate all maintenance work, but if it shall fail to do so, it shall promptly perform such maintenance work when notified to do so by City. If Builder fails to properly prosecute its maintenance obligation under this section, City may do all work necessary for such maintenance and the cost thereof shall be the responsibility of Builder and its surety under this Agreement.
City shall not be responsible or liable for any damages or injury of any nature in any way related to or caused by the Public Improvements or their condition prior to acceptance.
5. CONSTRUCTION SCHEDULE. Unless extended pursuant to this Section 4.1 of this Agreement, Builder shall fully and adequately complete or have completed the Public Improvements within three (3) years (36 months) following approval of the final map for Tract No. 33825.
5.1 Extensions. City may, in its sole and absolute discretion, provide Builder with additional time within which to complete the Public Improvements. It is understood that by providing the Security required under Section 12.0 et seq. of this Agreement, Builder and its surety consent in advance to any extension of time as may be given by City to Builder, and waives any and all right to notice of such extension(s). Builder’s acceptance of an extension of time granted by City shall constitute a waiver by Builder and its surety of all defense of laches, estoppel, statutes of limitations, and other limitations of action in any action or proceeding filed by City following the date on which the Public Improvements were to have been completed hereunder. In addition, as consideration for granting such extension to Builder, City reserves the right to review the provisions of this Agreement, including, but not limited to, the construction standards, the cost estimates established by City, and the sufficiency of the improvement security provided by Builder, and to require adjustments thereto when warranted according to City’s reasonable discretion.
5.2 Accrual of Limitations Period. Any limitations period provided by law related to breach of this Agreement or the terms thereof shall not accrue until Builder has provided the City Engineer with written notice of Builder’s intent to abandon or otherwise not complete required or agreed upon Public Improvements.
5.3 Builder Obligations Do Not Terminate. Notwithstanding the construction schedule and option for extensions provided in Sections 4.1 and 4.2, Builder’s failure to complete the Public Improvements or to otherwise satisfy all conditions of approval, or City’s non-extension of the time referenced in those sections shall not terminate or otherwise
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relieve the Builder of the obligation to complete the Public Improvements and conditions of approval and such obligations shall survive the term of this Agreement and shall survive until satisfied in full unless waived or modified by formal action of the City Council.
6. GRADING. Builder agrees that any and all grading done or to be done in conjunction with construction of the Public Improvements or development of Tract Map No. 33825 shall conform to all federal, state, and local laws, ordinances, regulations, and other requirements, including City’s grading regulations. All grading, landscaping, and construction activities shall be performed in a manner to control erosion and prevent flooding problems. The City Engineer shall have the authority to require erosion plans to prescribe reasonable controls on the method, manner, and time of grading, landscaping, and construction activities to prevent nuisances to surrounding properties. Plans shall include without limitation temporary drainage and erosion control requirements, dust control procedures, restrictions on truck and other construction traffic routes, noise abatement procedures, storage of materials and equipment, removal of garbage, trash, and refuse, securing the job site to prevent injury, and similar matters.
In order to prevent damage to the Public Improvements by improper drainage or other hazards, the grading shall be completed in accordance with the time schedule for completion of the Public Improvements established by this Agreement, and prior to City’s approval and acceptance of the Public Improvements and release of the Security as set forth in Section 12.0 et seq. of this Agreement.
7. UTILITIES. Builder shall provide utility services, including water, sewer, power, gas, and telephone service to serve each parcel, lot, or unit of land within Tract Map No. 33825 in accordance with all applicable federal, state, and local laws, rules, and regulations, including, but not limited to, the regulations, schedules and fees of the utilities or agencies providing such services. Except for commercial or industrial properties, Builder shall also provide cable television facilities to serve each parcel, lot, or unit of land in accordance with all applicable federal, state, and local laws, rules, and regulations, including, but not limited to, the requirements of the cable company possessing a valid franchise with City to provide such service within City’s jurisdictional limits. All utilities shall be installed underground.
8. FEES AND CHARGES. Builder shall, at its sole cost, expense, and liability, pay all fees, charges, and taxes arising out of construction of the Public Improvements, including, but not limited to, all plan check, design review, engineering, inspection, and other service fees, and any impact or connection fees established by City ordinance, resolution, regulation, or policy, or as established by City relative to Tract Map No. 33825, or as required by other governmental agencies having jurisdiction over Tract Map No. 33825.
9. CITY INSPECTION OF PUBLIC IMPROVEMENTS. Builder shall, at its sole cost, expense, and liability, and at all times during construction of the Public Improvements, maintain reasonable and safe facilities and provide safe access for inspection by City of the Public Improvements and areas where construction of the Public Improvements is occurring or will occur. If the City inspector requests it, the Builder at any time before acceptance of the Public Improvements shall remove or uncover such portions of the finished work as may be directed which have not previously been inspected. After examination, the Builder 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
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requirements contained or referenced in this Agreement. The inspection of the work by City shall not relieve Builder 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.
10. ADMINISTRATIVE COSTS. If Builder fails to construct and install all or any part of the Public Improvements within the time required by this Agreement, or if Builder fails to comply with any other obligation contained herein, Builder and its surety shall be jointly and severally liable to City for all administrative expenses, fees, and costs, including reasonable attorney’s fees and costs, incurred in obtaining compliance with this Agreement or in processing any legal action or for any other remedies permitted by law.
11. ACCEPTANCE OF IMPROVEMENTS; AS-BUILT OR RECORD
DRAWINGS. The City Council may, in its sole and absolute discretion, accept fully completed portions of the Public Improvements prior to such time as all of the Public Improvements are complete, which shall not release or modify Builder’s obligation to complete the remainder of the Public Improvements within the time required by this Agreement.
11.1 Builder’s Notice of Completion. Upon the total or partial acceptance of the Public Improvements by City, Builder shall file with the Recorder’s Office of the County of Riverside a notice of completion for the accepted Public Improvements in accordance with California Civil Code section 3093, at which time the accepted Public Improvements shall become the sole and exclusive property of City without payment therefor.
11.2 City Acceptance of Public Improvements. If Tract Map No. 33825 was approved and recorded as a single phase map, City shall not accept any one or more of the improvements until all of the Public Improvements are completed by Builder and approved by City. Issuance by City of occupancy permits for any buildings or structures located on the Property shall not be construed in any manner to constitute City’s acceptance or approval of any Public Improvements.
11.3 Builder’s Obligation to Provide As-Built or Record Drawings.
Notwithstanding the foregoing, City may not accept any Public Improvements unless and until Builder provides one (1) set of “as-built” or record drawings or plans to the City Engineer for all such Public Improvements. The drawings shall be certified and shall reflect the condition of the Public Improvements as constructed, with all changes incorporated therein.
12. WARRANTY AND GUARANTEE. Builder hereby warrants and guarantees all Public Improvements against any defective work or labor done, or defective materials furnished in the performance of this Agreement, including the maintenance of all landscaping within the Property in a vigorous and thriving condition reasonably acceptable to City, for a period of one (1) year following completion of the work and acceptance by City. During the Warranty, Builder shall repair, replace, or reconstruct any defective or otherwise unsatisfactory portion of the Public Improvements, in accordance with the current ordinances, resolutions, regulations, codes, standards, or other requirements of City, and to the approval of the City Engineer. All repairs, replacements, or reconstruction during the Warranty shall be at the sole cost, expense, and liability of Builder and its surety. As to any Public Improvements which have been repaired, replaced, or reconstructed during the Warranty, Builder and its surety hereby agree to extend the
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Warranty for an additional one (1) year period following City’s acceptance of the repaired, replaced, or reconstructed Public Improvements. Nothing herein shall relieve Builder from any other liability it may have under federal, state, or local law to repair, replace, or reconstruct any Public Improvement following expiration of the Warranty or any extension thereof. Builder’s warranty obligation under this section shall survive the expiration or termination of this Agreement.
13. SECURITY; SURETY BONDS. Prior to City’s approval and execution of this Agreement, Builder shall provide City with surety bonds in the amounts and under the terms set forth below. The amount of the Security shall be based on the City Engineer’s Estimated Costs.
If City determines at any time prior to Builder’s completion of the Public Improvements under Section 4 [Construction Schedule], in its sole and absolute discretion, that the Estimated Costs have changed, Builder shall adjust the Security in the amount requested by City. Builder’s compliance with this provision (Section 12.0 et seq.) shall in no way limit or modify Builder’s indemnification obligation provided in Section 16.0 of this Agreement.
13.1 Performance Bond. To guarantee the faithful performance of the Public Improvements and all the provisions of this Agreement, to protect City if Builder is in default as set forth in Section 18.0 et seq. of this Agreement, and to secure Builder’s one-year guarantee and warranty of the Public Improvements, including the maintenance of all landscaping in a vigorous and thriving condition, Builder shall provide City a faithful performance bond in the amount of Two Million and Sixty Thousand and Five Hundred Dollars, ($2,060,500), which sum shall be not less than one hundred percent (100%) of the Estimated Costs.
13.2 Partial Release. The City Council may, in its sole and absolute discretion and upon recommendation of the City Engineer, partially release a portion or portions of the Security provided under this section as the Public Improvements are accepted by City, provided that Builder is not in default on any provision of this Agreement or condition of approval for Tract Map No. 33825, and the total remaining Security is not less than twenty-five percent (25%) of the Estimated Costs. All Security provided under this section shall be released at the end of the Warranty period, or any extension thereof as provided in Section 11.0 of this Agreement, provided that Builder is not in default on any provision of this Agreement or condition of approval for Tract Map No. 33825.
13.3 Labor & Material Bond. To secure payment to the contractors, subcontractors, laborers, material men, and other persons furnishing labor, materials, or equipment for performance of the Public Improvements and this Agreement, Builder shall provide City a labor and materials bond in the amount of Two Million and Sixty Thousand and Five Hundred Dollars, ($2,060,500), which sum shall not be less than one hundred percent (100%) of the Estimated Costs. The Security provided under this section may be released by written authorization of the City Engineer after six (6) months from the date City accepts the final Public Improvements. The amount of such Security shall be reduced by the total of all stop notice or mechanic’s lien claims of which City is aware, plus an amount equal to twenty percent (20%) of such claims for reimbursement of City’s anticipated administrative and legal expenses arising out of such claims.
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13.4 Additional Requirements. The surety for any surety bonds provided as Security shall have a current A.M. Best’s rating of no less than A:VIII, be a bank or insurance company licensed to transact surety business in California, and shall be satisfactory to City. As part of the obligation secured by the Security and in addition to the face amount of the Security, the Builder or its surety shall secure the costs and reasonable expenses and fees, including reasonable attorney’s fees and costs, incurred by City in enforcing the obligations of this Agreement. The Builder and its surety stipulate and agree that no change, extension of time, alteration, or addition to the terms of this Agreement, the Public Improvements, or the plans and specifications for the Public Improvements shall in any way affect its obligation on the Security.
13.5 Form of Security. The evidence of the Security shall be provided on the forms set forth in Attachment “C”, unless other forms are deemed acceptable by the City Engineer and the City Attorney, and when such forms are completed to the satisfaction of City, the forms and evidence of the Security shall be attached hereto as Attachment “C” and incorporated herein by this reference.
13.6 Builder’s Liability. While no action of Builder shall be required in order for City to realize on its security under any Security instrument, Builder 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 under 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, Builder shall be personally liable for performance under this Agreement and for payment of the cost of the labor and materials for the improvements required to be constructed or installed hereby and shall, within ten (10) days after written demand therefor, deliver to City such substitute Security as City shall require satisfying the requirements in this Section 12.
14. MONUMENT SECURITY. Prior to City’s execution of this Agreement, to guarantee payment to the engineer or surveyor for the setting of all subdivision boundaries, lot corners, and street centerline monuments for Tract No. 33825 in compliance with the applicable provisions of City’s Municipal and/or Development Code (“Subdivision Monuments”), Builder shall deposit cash with City in the amount of Thirty Seven Thousand Dollars ($37,000), which sum shall not be less than one hundred percent (100%) of the costs of setting the Subdivision Monuments as determined by the City Engineer. Said cash deposit may be released by written authorization of the City Engineer after all required Subdivision Monuments are accepted by the City Engineer, City has received written acknowledgment of payment in full from the engineer or surveyor who set the Subdivision Monuments, and provided Builder is not in default of any provision of this Agreement or condition of approval for Tract Map No. 33825.
15. LIEN. To secure the timely performance of Builder’s obligations under this Agreement, including those obligations for which security has been provided pursuant to Sections 12.0 et seq. and 13.0 of this Agreement, Builder hereby creates in favor of City a lien against all portions of the Property not dedicated to City or some other governmental agency for a public purpose. As to Builder’s default on those obligations for which security has been provided pursuant to Sections 12.0 et seq. and 13.0 of this Agreement, City shall first attempt to collect against such security prior to exercising its rights as a contract lienholder under this section.
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16. SIGNS AND ADVERTISING. Builder understands and agrees to City’s ordinances, regulations, and requirements governing signs and advertising structures. Builder hereby agrees with and consents to the summary removal by City, without notice to Builder, of all signs or other advertising structures erected, placed, or situated in violation of any City ordinance, regulation, or other requirement. Removal shall be at the expense of Builder and its surety. Builder and its surety shall indemnify and hold City free and harmless from any claim or demand arising out of or incident to signs, advertising structures, or their removal.
17. INDEMNIFICATION. Builder shall defend, indemnify, and hold harmless City, its elected officials, officers, employees, and agents from any and all actual or alleged claims, demands, causes of action, liability, loss, damage, or injury, to property or persons, including wrongful death, whether imposed by a court of law or by administrative action of any federal, state, or local governmental body or agency, arising out of or incident to any acts, omissions, negligence, or willful misconduct of Builder, its personnel, employees, agents, or contractors in connection with or arising out of construction or maintenance of the Public Improvements, or performance of this Agreement. This indemnification includes, without limitation, the payment of all penalties, fines, judgments, awards, decrees, attorneys’ fees, and related costs or expenses, and the reimbursement of City, its elected officials, officers, employees, and/or agents for all legal expenses and costs incurred by each of them. This indemnification excludes only such portion of any claim, demand, cause of action, liability, loss, damage, penalty, fine, or injury, to property or persons, including wrongful death, which is caused solely and exclusively by the gross negligence or willful misconduct of City as determined by a court or administrative body of competent jurisdiction. Builder’s obligation to indemnify City shall survive the expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by City, its elected officials, officers, employees, or agents.
18. INSURANCE.
18.1 Types; Amounts. Builder shall procure and maintain, and shall require its contractors to procure and maintain, during construction of any Public Improvement pursuant to this Agreement, insurance of the types and in the amounts described below. If any of the Required Insurance contains a general aggregate limit, such insurance shall apply separately to this Agreement or be no less than two times the specified occurrence limit.
18.1.1 General Liability. Builder and its contractors shall procure and maintain occurrence version general liability insurance, or equivalent form, with a combined single limit of not less than $3,000,000 per occurrence for bodily injury, personal injury, and property damage.
18.1.2 Business Automobile Liability. Builder and its contractors shall procure and maintain business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for the ownership, operation, maintenance, use, loading, or unloading of any vehicle owned, leased, hired, or borrowed by the insured or for which the insured is responsible.
18.1.3 Workers’ Compensation. Builder and its contractors shall procure and maintain workers’ compensation insurance with limits as required by the Labor
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Code of the State of California and employers’ liability insurance with limits of not less than $1,000,000 per occurrence, at all times during which insured retains employees.
18.1.4 Professional Liability. For any consultant or other professional who will engineer or design the Public Improvements, liability insurance for errors and omissions with limits not less than $1,000,000 per occurrence, shall be procured and maintained for a period of five (5) years following completion of the Public Improvements. Such insurance shall be endorsed to include contractual liability.
18.2 Deductibles. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either: (a) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City, its elected officials, officers, employees, agents, and volunteers; or (b) Builder and its contractors shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigation costs, claims, and administrative and defense expenses.
18.3 Additional Insured; Separation of Insureds. The Required Insurance shall name City, its elected officials, officers, employees, agents, and volunteers as additional insureds with respect to work performed by or on behalf of Builder or its contractors, including materials, parts, or equipment furnished in connection therewith. The Required Insurance shall contain standard separation of insured provisions, and shall contain no special limitations on the scope of its protection to City, its elected officials, officers, employees, agents, and volunteers.
18.4 Primary Insurance; Waiver of Subrogation. The Required Insurance shall be primary with respect to any insurance or self-insurance programs covering City, its elected officials, officers, employees, agents, and volunteers. All policies for the Required Insurance shall provide that the insurance company waives all right of recovery by way of subrogation against City in connection with any damage or harm covered by such policy.
18.5 Certificates; Verification. Builder and its contractors shall furnish City with original certificates of insurance and endorsements effecting coverage for the Required Insurance. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by City before work pursuant to this Agreement can begin. City reserves the right to require complete, certified copies of all required insurance policies, at any time.
18.6 Term; Cancellation Notice. Builder and its contractors shall maintain the Required Insurance for the term of this Agreement and shall replace any certificate, policy, or endorsement which will expire prior to that date. All policies shall be endorsed to provide that the Required Insurance shall not be suspended, voided, reduced, canceled, or allowed to expire except on 30 days’ prior written notice to City.
18.7 Insurer Rating. Unless approved in writing by City, all Required Insurance shall placed with insurers licensed to do business in the State of California and with a current A.M. Best rating of at least A:VIII.
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19. DEFAULT; NOTICE; REMEDIES.
19.1 Notice. If Builder neglects, refuses, or fails to fulfill or timely complete any obligation, term, or condition of this Agreement, or if City determines there is a violation of any federal, state, or local law, ordinance, regulation, code, standard, or other requirement, City may at any time thereafter declare Builder to be in default or violation of this Agreement and make written demand upon Builder or its surety, or both, to immediately remedy the default or violation. Builder shall commence the work required to remedy the default or violation within ten (10) days of the written demand from the City. If the default or violation constitutes an immediate threat to the public health, safety, or welfare, City may provide the demand verbally, and Builder shall commence the required work within twenty-four (24) hours thereof.
Immediately upon City’s issuance of the demand to remedy the default, Builder and its surety shall be liable to City for all costs of construction and installation of the Public Improvements and all other administrative costs expenses as provided for in Section 9.0 of this Agreement.
19.2 Failure to Remedy; City Action. If the work required to remedy the noticed default or violation is not diligently prosecuted to a substantial completion acceptable to City within a reasonable time designated by the City, City may complete all remaining work, arrange for the completion of all remaining work, and/or conduct such remedial activity as in its sole and absolute discretion it believes is required to remedy the default or violation. All such work or remedial activity shall be at the sole and absolute cost, expense, and liability of Builder and its surety, without the necessity of giving any further notice to Builder or surety. City’s right to take such actions shall in no way be limited by the fact that Builder or its surety may have constructed any, or none of the required or agreed upon Public Improvements at the time of City’s demand for performance. In the event City elects to complete or arrange for completion of the remaining work and improvements, City may require all work by Builder or its surety to cease in order to allow adequate coordination by City. Notwithstanding the foregoing, if conditions precedent for reversion to acreage can be met and if the interests of City will not be prejudiced thereby, City may also process a reversion to acreage and thereafter recover from Builder or its surety the full cost and expense incurred.
19.3 Other Remedies. No action by City pursuant to Section 18.0 et seq. of this Agreement shall prohibit City from exercising any other right or pursuing any other legal or equitable remedy available under this Agreement or any federal, state, or local law. City may exercise it rights and remedies independently or cumulatively, and City may pursue inconsistent remedies. City may institute an action for damages, injunctive relief, or specific performance.
20. GENERAL PROVISIONS.
20.1 Authority to Enter Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority make this Agreement and bind each respective Party.
20.2 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate, or convenient to attain the purposes of this Agreement.
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20.3 Construction; References; Captions. It being agreed the Parties or their agents have participated in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party.
Any term referencing time, days, or period for performance shall be deemed calendar days and not work days. All references to Builder include all personnel, employees, agents, and subcontractors of Builder, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
20.4 Notices. All notices, demands, invoices, and written communications shall be in writing and delivered to the following addresses or such other addresses as the Parties may designate by written notice:
CITY:
City of Hemet
Attn: City Manager
445 E. Florida Avenue
Hemet, CA 92543
BUILDER:
Richmond American Homes, a California Corporation
Attn: Larry Liebel
391 N. Main Street, Suite 205
Corona, CA 92880
Depending upon the method of transmittal, notice shall be deemed received as follows: by facsimile, as of the date and time sent provided the original is contemporaneously deposited with United States Postal Service and delivered by regular mail; by messenger, as of the date delivered; and by U.S. Mail first class postage prepaid, as of 72 hours after deposit in the U.S.
Mail.
20.5 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
20.6 Waiver. City’s failure to insist upon strict compliance with any provision of this Agreement or to exercise any right or privilege provided herein, or City’s waiver of any breach of this Agreement, shall not relieve Builder of any of its obligations under this Agreement, whether of the same or similar type. The foregoing shall be true whether City’s actions are intentional or unintentional. Builder agrees to waive, as a defense, counterclaim or set off, any and all defects, irregularities or deficiencies in the authorization, execution or performance of the Public Improvements or this Agreement, as well as the laws, rules, regulations, ordinances or resolutions of City with regards to the authorization, execution or performance of the Public Improvements or this Agreement.
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20.7 Assignment or Transfer of Agreement. Builder shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without prior written consent of City. Any attempt to do so shall be null and void, and any assignee, hypothecatee, or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation, or transfer. Unless specifically stated to the contrary in City’s written consent, any assignment, hypothecation, or transfer shall not release or discharge Builder from any duty or responsibility under this Agreement.
20.8 Binding Effect. Each and all of the covenants and conditions shall be binding on and shall inure to the benefit of the Parties, and their successors, heirs, personal representatives, or assigns. This section shall not be construed as an authorization for any Party to assign any right or obligation.
20.9 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
20.10 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
20.11 Consent to Jurisdiction and Venue. This Agreement shall be construed in accordance with and governed by the laws of the State of California. Any legal action or proceeding brought to interpret or enforce this Agreement, or which in any way arises out of the Parties’ activities undertaken pursuant to this Agreement, shall be filed and prosecuted in the appropriate California State Court in the County of Riverside, California. Each Party waives the benefit of any provision of state or federal law providing for a change of venue to any other court or jurisdiction including, without limitation, a change of venue based on the fact that a governmental entity is a party to the action or proceeding, or that a federal right or question is involved or alleged to be involved in the action or proceeding. Without limiting the generality of the foregoing waiver, Builder expressly waives any right to have venue transferred pursuant to California Code of Civil Procedure Section 394.
20.12 Attorneys’ Fees and Costs. If any arbitration, lawsuit, or other legal action or proceeding is brought by one Party against the other Party in connection with this Agreement or the Property, the prevailing party, whether by final judgment or arbitration award, shall be entitled to and recover from the other party all Litigation Expenses. Any judgment, order, or award entered in such legal action or proceeding shall contain a specific provision providing for the recovery of Litigation Expenses.
20.13 Relationship Between The Parties. The Parties hereby mutually agree that neither this Agreement, any map related to Tract Map No. 33825, nor any other related entitlement, permit, or approval issued by City for the Property shall operate to create the relationship of partnership, joint venture, or agency between City and Builder. Builder’s contractors and subcontractors are exclusively and solely under the control and dominion of Builder. Nothing herein shall be deemed to make Builder or its contractors an agent or contractor of City.
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20.14 Counterparts. This Agreement may be executed in counterpart originals, which taken together, shall constitute one and the same instrument.
20.15 Effective Date of Agreement. This Agreement shall not become effective until the date it has been formally approved by the City and executed by the appropriate authorities of City and Builder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first-above written.
CITY OF HEMET
By:___________________________
City Manager
ATTEST:
___________________________
City Clerk
APPROVED AS TO FORM
By:_______________________________
City Attorney
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RICHMOND AMERICAN HOMES, A CALIFORNIA CORPORATION
By: By:
_________________________________
Its: ______________________________ Its: ___________________________ NOTE: BUILDER’S SIGNATURES SHALL BE DULY NOTARIZED, AND
APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE
REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR
OTHER RULES OR REGULATIONS APPLICABLE TO BUILDER’S
BUSINESS ENTITY.
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On __________, ____ before me, ________________, personally appeared ________________, proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: ______________________________________
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
_______________________________
TITLE(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER_______________________________
______________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
_____________________________________________
_____________________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED ABOVE
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On __________, ____ before me, ________________, personally appeared ________________, personally known to me - OR - proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
__________________________________________
(SIGNATURE OF NOTARY)
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
_______________________________
TITLE(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER_______________________________
______________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
_____________________________________________
_____________________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED ABOVE
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1 SUBDIVISION IMPROVEMENT AGREEMENT
EXHIBIT “A”
LEGAL DESCRIPTION OF PROPERTY
TRACT NO. 33825
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1 SUBDIVISION IMPROVEMENT AGREEMENT
EXHIBIT “B”
LIST OF PUBLIC IMPROVEMENTS
TRACT NO. 33825
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1 SUBDIVISION IMPROVEMENT AGREEMENT
EXHIBIT “C”
SURETY BONDS AND OTHER SECURITY
TRACT NO. 33825
As evidence of understanding the provisions contained in this Agreement, and of the Builder’s intent to comply with same, the Builder has submitted the below described security in the amounts required by this Agreement, and has affixed the appropriate signatures thereto:
PERFORMANCE BOND PRINCIPAL AMOUNT: $ 2,060,500
Surety:
Attorney-in-fact:
Address:
MATERIAL AND LABOR BOND PRINCIPAL AMOUNT: $ 2,060,500
Surety:
Attorney-in-fact:
Address:
CASH MONUMENT SECURITY: $ 37,000
Amount deposited per Cash Receipt No. Date:
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BOND NO. ___________________
INITIAL PREMIUM: ___________________
SUBJECT TO RENEWAL
CITY OF HEMET
TRACT MAP NO. 33825 IMPROVEMENTS
FORM OF PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS the City of Hemet, California (“City”) and Richmond American Homes, a California Corporation, a California corporation (“Principal”), have executed an agreement for work consisting of, but not limited to, the furnishing all labor, materials, tools, equipment, services, and incidentals for all grading, roads, paving, curbs and gutters, pathways, storm drains, water system, sanitary sewers, utilities, drainage facilities, traffic controls, landscaping, street lights, and all other required facilities for Tract Map No. 33825 (“Public Improvements”); WHEREAS, the Public Improvements to be performed by Principal are more particularly set forth in that certain Subdivision Improvement Agreement dated August 9, 2022 (“Improvement Agreement”);
WHEREAS, the Improvement Agreement is hereby referred to and incorporated herein by reference; and
WHEREAS, Principal is required by the Improvement Agreement to provide a good and sufficient bond for performance of the Improvement Agreement, and to guarantee and warranty the Public Improvements constructed thereunder.
NOW, THEREFORE, Principal and _________________________________ (“Surety”), a corporation organized and existing under the laws of the State of __________, and duly authorized to transact surety business under the laws of the State of California, are held and firmly bound unto City in the sum of Two Million and Sixty Thousand and Five Hundred Dollars, ($2,060,500), said sum being not less than one hundred percent (100%) of the total cost of the Public Improvements as set forth in the Improvement Agreement, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION is such, that if Principal, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions, agreements, guarantees, and warranties in the Improvement Agreement and any alteration thereof made as therein provided, to be kept and performed at the time and in the manner therein specified and in all respects according to their intent and meaning, and to indemnify and save harmless City, its officers, employees, and agents, as stipulated in the Improvement Agreement, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.
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As part of the obligation secured hereby, and in addition to the face amount specified therefor, there shall be included costs and reasonable expenses and fees, including reasonable attorney’s fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered.
Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the Improvement Agreement, or to any plans, profiles, and specifications related thereto, or to the Public Improvements to be constructed thereunder, shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration, or addition.
This bond is executed and filed to comply with Section 66499 et seq. of the Government Code of California as security for performance of the Improvement Agreement and security for the one-year guarantee and warranty of the Public Improvements.
IN WITNESS WHEREOF, the seal and signature of the Principal is hereto affixed, and the corporate seal and the name of the Surety is hereto affixed and attested by its duly authorized Attorney-in-Fact at _______________________, this _____ day of _______________, ______.
Principal Surety
By: By:
Its: Managing Member Attorney-In-Fact
(print name) (print name)
NOTE: APPROPRIATE NOTARIAL ACKNOWLEDGMENTS OF EXECUTION
BY PRINCIPAL AND SURETY, AND A COPY OF THE POWER OF
ATTORNEY TO LOCAL REPRESENTATIVES OF THE BONDING
COMPANY MUST BE ATTACHED TO THIS BOND.
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RIV #4830-8901-9593 v1
DRAFT
1 SUBDIVISION IMPROVEMENT AGREEMENT
BOND NO. ___________________
INITIAL PREMIUM: ___________________
SUBJECT TO RENEWAL
CITY OF HEMET
TRACT MAP 33825 IMPROVEMENTS
FORM OF LABOR AND MATERIAL BOND
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS the City of Hemet California (“City”) and Richmond American Homes, a California Corporation, a California corporation (“Principal”), have executed an agreement for work consisting of, but not limited to, the furnishing all labor, materials, tools, equipment, services, and incidentals for all grading, roads, paving, curbs and gutters, pathways, storm drains, sanitary sewers, utilities, drainage facilities, traffic controls, landscaping, street lights, and all other required facilities for Tract Map No. 33825 (“Public Improvements”); WHEREAS, the Public Improvements to be performed by Principal are more particularly set forth in that certain Subdivision Improvement Agreement dated August 9, 2022 (“Improvement Agreement”);
WHEREAS, the Improvement Agreement is hereby referred to and incorporated herein by reference; and
WHEREAS, Principal is required to furnish a bond in connection with the Improvement Agreement providing that if Principal or any of its subcontractors shall fail to pay for any materials, provisions, or other supplies, or terms used in, upon, for, or about the performance of the Public Improvements, or for any work or labor done thereon of any kind, or for amounts due under the provisions of Title 15 (commencing with section 3082) of Part 4 of Division 3 of the California Civil Code, with respect to such work or labor, that the Surety on this bond will pay the same together with a reasonable attorney’s fee in case suit is brought on the bond.
NOW, THEREFORE, Principal and _________________________ (“Surety”), a corporation organized and existing under the laws of the State of _________________, and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto City and to any and all material men, persons, companies or corporations furnishing materials, provisions, and other supplies used in, upon, for or about the performance of the Public Improvements, and all persons, companies or corporations renting or hiring teams, or implements or machinery, for or contributing to the Public Improvements to be done, and all persons performing work or labor upon the same and all persons supplying both work and materials as aforesaid excepting the Principal, the sum of Two Million and Sixty Thousand and Five Hundred Dollars, ($2,060,500), said sum being not less than 100% of the total cost of the Public Improvements under the terms of the Improvement Agreement, we bind ourselves, our heirs, executors and administrators, successors and assigns jointly and severally, firmly by these presents.
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RIV #4830-8901-9593 v1
DRAFT
2 SUBDIVISION IMPROVEMENT AGREEMENT
THE CONDITION OF THIS OBLIGATION IS SUCH that if the Principal, his or its subcontractors, heirs, executors, administrators, successors, or assigns, shall fail to pay for any materials, provisions, or other supplies or machinery used in, upon, for or about the performance of the Public Improvements, or for work or labor thereon of any kind, or fail to pay any of the persons named in California Civil Code Section 3181, or amounts due under the Unemployment Insurance Code with respect to work or labor performed by any such claimant, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of the contractor and his subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to such work and labor, and all other applicable laws of the State of California and rules and regulations of its agencies, then said Surety will pay the same in or to an amount not exceeding the sum specified herein.
As part of the obligation secured hereby, and in addition to the face amount specified therefor, there shall be included costs and reasonable expenses and fees, including reasonable attorney’s fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered.
This bond is executed and filed to comply with Section 66499 et seq. of the California Government Code as security for payment to contractors, subcontractors, and persons furnishing labor, materials, or equipment for construction of the Public Improvements or performance of the Improvement Agreement. It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any and all persons, companies, and corporations entitled to file claims under Title 15 (commencing with Section 3082) of Part 4 of Division 3 of the California Civil Code, so as to give a right of action to them or their assigns in any suit brought upon this bond.
Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the Improvement Agreement, or to any plans, profiles, and specifications related thereto, or to the Public Improvements to be constructed thereunder, shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration, or addition.
IN WITNESS WHEREOF, the seal and signature of the Principal is hereto affixed, and the corporate seal and the name of the Surety is hereto affixed and attested by its duly authorized Attorney-in-Fact at _____________________, this _____ day of _______________, ______.
Principal Surety
By: By:
Its: Managing Member Attorney-In-Fact
(print name) (print name)
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RIV #4830-8901-9593 v1
DRAFT
3 SUBDIVISION IMPROVEMENT AGREEMENT
NOTE: APPROPRIATE NOTARIAL ACKNOWLEDGMENTS OF EXECUTION
BY PRINCIPAL AND SURETY, AND A COPY OF THE POWER OF
ATTORNEY TO LOCAL REPRESENTATIVES OF THE BONDING
COMPANY MUST BE ATTACHED TO THIS BOND.
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CITY COUNCIL RESOLUTION NO. 2022-xxx
CITY OF HEMET
Hemet, California
RESOLUTION NO. 2022-XXX
A RESOLUTION OF THE
CITY COUNCIL OF THE
CITY OF HEMET,
CALIFORNIA, APPROVING
A REPLACEMENT
SUBDIVISION
IMPROVEMENT
AGREEMENT AND
IMPROVEMENT
SECURITY FOR TRACT
MAP NO. 33825-1,
LOCATED IN THE
MCSWEENY FARMS
SPECIFIC PLAN AREA,
NORTH OF MCSWEENY
PARKWAY AND EAST OF
STATE STREET
(RICHMOND AMERICAN
HOMES)
WHEREAS, Tract Map No. 33825-1, submitted
for approval by McSweeny Recovery Acquisition, LLC,
a Delaware Corporation (“Developer”), and approved by
the City of Hemet on September 28, 2016; and
WHEREAS, Richmond American Homes
(“Builder”), a California corporation has acquired the
land known as Tract Map No. 33825-1 from Developer
(a copy of which is attached as Exhibit “B”); and
WHEREAS, to meet and continue the
requirements established as a prerequisite to final
approval of Tract Map No. 33825-1, Builder agreed to
enter into a Subdivision Improvement Agreement
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CITY COUNCIL RESOLUTION NO. 2022-xxx
superseding and replacing Subdivision Improvement
Agreement known as Riverside County Recorder’s
Document No. 2016-0436393, together with good and
sufficient security, in conformance with the City
Attorney’s approved format, for approval and execution
by the City; and
WHEREAS, the Subdivision Improvement
Agreement and good and sufficient security have been
accepted by the City.
NOW, THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF HEMET AS
FOLLOWS:
SECTION 1. RECITALS
The foregoing recitals are true and correct.
SECTION 2. APPROVAL OF SUBDIVISION
IMPROVEMENT AGREEMENT
A. Subdivision Improvement Agreement attached
hereto as Exhibit “A” is approved and the City
Manager is authorized to execute it and the City
Clerk is authorized to attest thereto.
B. Said improvement security is accepted as good
and sufficient, subject to approval as to form and
content thereof by the City Attorney,
C. Pursuant to Government Code section 66458,
Tract Map No. 33825-1 was previously
approved, and City accepted the real property
described therein.
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CITY COUNCIL RESOLUTION NO. 2022-xxx
SECTION 3. CERTIFICATION
This Resolution shall take effect immediately upon its
adoption by the City Council. The City Clerk shall attest to and certify the vote adopting this Resolution.
PASSED, APPROVED AND ADOPTED this
9th day of August, 2022.
____________________________
Malcolm Lilienthal,
Mayor
ATTEST:
_____________________________
John Maier, City Clerk
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CITY COUNCIL RESOLUTION NO. 2022-xxx
State of California )
County of Riverside )
City of Hemet )
I, John Maier, City Clerk of the City of Hemet,
do hereby certify that the foregoing resolution was
adopted by the Hemet City Council on the 9th day of
August, 2022, and was passed by the following vote:
AYES: Council Members:
NOES: Council Member:
ABSTAIN: Council Member:
ABSENT: Council Member:
_________________________________
John Maier, City Clerk
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2@L6-0436393
RECORDED AT THE REQUEST OF
AND \MHEN RECORDED RETURN TO:
(Document exempt from recording fees
pursuant to Cal. Gov. Code ç 27383)
CITY OF HEMET
Attn: City Manager
445 East Florida Avenue
Hemet, California 92543
lø/øã12ø16 01 :Ø5 Pff Fee: $ Ø.0Ø
Recarded in 0fficial Records
County of Riverside Peter Alclana
âssessor-Count y C lerk-Recorder
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R A Exam 57
Page DA PCOR Misc Long RFD 1st Pg Adtl Pg Cert cc
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SIZE NCOR SM( hcuc T>
SUBDIVISION IMPROVEMENT AGREEMENT
FINAL TRACT MAP 33825.1
By and Between
THE CITY OF HEMET,
a municipal corporation
and
McSweeny Recovery Acquisition, LLC,
a Delaware limited liability company
RIV #4836-3917-8284v2
Dared:lla/tb
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SUBDIVISION IMPROVEMENT AGREEMENT
FINAL TRACT MAP 33825.1
This Subdivision Improvement Agreement ("Agreement") is entered into as of this 3\ day of A*q,^<.t ZOt6 by and between the City of Hemet, a municipal corporation ("City") and McSwíeny Recovery Acquisition, LLC, a Delaware limited liability company. City and Developer are sometimes hereinafter individually referred to as "Parfy" and hereinafter collectively referred to as the "Parties."
RECITALS
A. Developer has submitted to City an application for approval of a final tract map for real property located within City, a legal description of which is attached hereto as Exhibit ..A,'.ThetactmapisidentifiedinCityrecordsasTractMapNo.33825-I.on-,20-, the City conditionally approved Tract No. 33825-1.
B. Developer has not completed all of the work or made all of the Public Improvements required by the Subdivision Map Act (Government Code sections 66410 et seq.), ("Map Act") the City Ordinances, the conditions of approval for Tract No. 33825-1, or other ordinances, resolutions, or policies of City requiring construction of improvements in conjunction with the subdivision of land.
C. Pursuant to City Ordinances and the applicable provisions of the Map Act, Developer and City enter into this Agreement for the timely construction and completion of the Public Improvements and the furnishing of the security therefor, acceptable to the City Engineer and City Attorney, for Tract No. 33825-1.
D. City has authority to enter into this Subdivision Improvement Agreement pursuant to Government Code Sections 66499 - 66499.10.
E. Pursuant to Government Code Section 66499, Developer's execution of this Agreement and the provision of the security are made in consideration of City's approval of the final map for Tract No. 33825-1.
DEFINED TERMS
"Developer" shall meaq McSweeny Recovery Acquisition, LLC. The term "Developer" shall also include all assignees, to the extent permitted under this Agreement, of the rights and obiigations of Developer under this Agreement, and any successor-in-interest to Developer having a legal andlor equitable interest in the Property.
KEstímøted Costs" shall mean the City Engineer's approximation of the actual cost to construct the Public Improvements, including the replacement cost for all landscaping.
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"Lítígatíon Expenses" shall mean all costs and expenses, to the extent reasonable in amount, actually and necessarily incurred by a party in good faith in the prosecution of an action or proceeding, including, but not limited to, court costs, filing, recording, and service fees, copying costs, exhibit production costs, special media rental costs, attomeys' fees, fees for investigators, witness fees (both lay and expert), travel expenses, deposition and transcript costs and any other cost or expense, the award of which a court of competent jurisdiction may determine to be just and reasonable.
*Map Act" shall mean the Subdivision Map Act, Government Code Sections 66410 et seq "Property" shall mean the all of the real property contained within the boundaries of Tract Map No. 33825-1 lqcated in the City of Hemet, California, as is more particularly described in the legal description and tract diagram attached hereto and incorporated hereby by reference at Attachment ooA".
"Publíc fmprovements" shall include, but not be limited to, all grading, roads, streets, paving, curbs and gutters, sidewalks, paseos, pathways, trails, sanitary sewers, utilities, storm drains, detention and retention basins and other drainage facilities, trafftc controls, landscaping, street lights and all other facilities required to be constructed and dedicated to the City or other public entity as conditions of approval of Tentative Tract Map No. 33825-1 and as shown in detail on the plans, and specifications which have been approved by the City and incorporated into Tract Map No. 33825-1. The Parties agree that the Public Improvements to be completed by Developer are more specifically described in the diagram or plan attached hereto and incorporated herein by reference as Attachment "8. Notwithstanding, Attachment "B", Developer shall remain obligated to construct and complete all of the Public Improvements required as conditions of approval for Tentative Tract Map 33825-1. "Requíred fnsurønce" shall mean the insurance required to be maintained by Developer under Section 17.
"Securíty" shall mean surety bonds in the amounts and under the terms of Section 12 or other security approved by City Engineer or City Attorney.
"Tract No 33825--1" shall mean the final map prepared and approved by the City for Tentative Tract Map No. 33825-1.
"Wøwanty" shall mean the one year period following completion of the Public Improvements by Developer and the acceptance of the Public Improvements by the City in which Developer warrants and gaarantees all Public Improvements.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the parties and contained here and other consideration, the value and adequacy of which are hereby acknowledged, the parties agree as follows:
1. EFFECTMNESS. This Agreement shall not be effective unless and until all four (4) of the following conditions are satisfied in the order provided:
RIV #4836-3917-8284 v2 n -L- Page 86 of 140
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1 .1 Securitv. Developer provides City with the Security of the type and in the amounts required by this Agreement;
I.2 Final Map and Agreement Approval. The City Council of the City ("City Council") approves the final map for Tract No. 33825-l and this Agreement;
1.3 Record Developer and City execute the Agreement and City records this Agreement in the Recorder's Office of the County of Riverside; and
1.4 Record Final Map. Developer records the final map for Tract No 33825-I in the Recorder's Office of the County of Riverside.
If the above described conditions are not satisfied in the order, manner and within the time provided under this Agreement, this Agreement shall automatically terminate without need of further action by either City or Developer.
2. PUBLIC IMPROVEMENTS. Developer shall construct or have constructed at its own cost, expense, and liability the Public Improvements, as defined herein, within the time and in the manner required under this Agreement. Construction of the Public Improvements shall include any transitions andlor other incidental work deemed necessary for drainage or public safety. The Developer shall be responsible for the replacement, relocation, or removal of any component of any irngation water or sewer system in conflict with the construction or installation of the Public Improvements. Such replacement, relocation, or removal shall be performed to the complete satisfaction of the City Engineer and the owner of such water or sewer system. Developer further promises and agrees to provide all equipment, tools, materials, labor, tests, design work, and engineering services necessary or required by City to fully and adequately complete the Public Improvements.
2.I Prior Partial Construction of Public mnrovements. Where construction of any Public Improvements has been partially completed prior to this Agreement, Developer agrees to complete such Public Improvements or assure their completion in accordance with this Agreement.
2.2 Permits: Notices: Utilitv Statements. Prior to commencing any work, Developer shall, at its sole cost, expense, and liability, obtain all necessary permits and approvals and give all necessary and incidental notices required for the lawful construction of the Public Improvements and performance of Developer's obligations under this Agreement. Developer shall conduct the work in fulI compliance with the regulations, rules, and other requirements contained in any permit or approval issued to Developer. Prior to commencing any work, Developer shall file a written statement with the City Clerk and the City Engineer, signed by Developer and each utility which will provide utility service to the Property, attesting that Developer has made all deposits legally required by the utility for the extension and provision of utility service to the Property.
2.3 Pre-approval of Plans and Specifications. Developer is prohibited from commencing work on any Public Improvement until all plans and specifications for such Public Improvement have been submitted to and approved by the City Engineer, or his or her designee.
Approval by the City Engineer shall not relieve Developer from ensuring that all Public Improvements conform with all other requirements and standards set forth in this Agreement.
RtV #4836-3917-8284 v2 -J- Page 87 of 140
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2.4 Oualitv of \üork: With Laws and Codes. The construction plans and specifications for the Public Improvements shall be prepared in accordance with all applicable federal, state and local laws, ordinances, regulations, codes, standards, and other requirements. The Public Improvements shall be completed in accordance with all approved maps, plans, specifications, standard drawings, and special amendments thereto on file with City, as well as all applicable federal, state, and local laws, ordinances, regulations, codes, standards, and other requirements applicable at the time work is actually commenced.
2.5 Standard of Performance. Developer and its contractors, if any, shall perform all work required to construct the Public Improvements under this Agreement in a skillful and workmanlike manner, and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Developer represents and maintains that it or its contractors shall be skilled in the professional calling necessary to perform the work. Developer warrants that all of its employees and contractors shall have sufficient skill and experience to perform the work assigned to them, and that they shall have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the work, and that such licenses, permits, qualifications and approvals shall be maintained throughout the term of this Agreement.
2.6 Alterations to Improvements. All work shall be done and improvements made and completed as shown on approved plans and specifications, and any subsequent alterations thereto. If during the course of construction and installation of the Public Improvements it is determined that the public interest requires alterations in the Public Improvements, Developer shall undertake such design and construction changes as may be reasonably required by City. Any and all alterations in the plans and specifications and the Public lmprovements to be completed may be accomplished without giving prior notice thereof to Developer's surety for this Agreement.
2.7 Other Oblisations Referenced in Conditions of Tentative Map Approval. In addition to the foregoing, Developer shall satisfy all of the conditions of approval on the tentative map for the Property. The conditions of approval which have not been satisfied prior to the date of this Agreement are identified on Exhibit ooD" hereto.
3. MAINTENANCE OF PUBLIC IMPROVEMENTS AND LANDSCAPING.
City shall not be responsible or liable for the maintenance or care of the Public Improvements until City formally approves and accepts them in accordance with its policies and procedures.
City shall exercise no control over the Public Improvements until approved and accepted. Any use by any person of the Public Improvements, or any portion thereof, shall be at the sole and exclusive risk of the Developer at all times prior to City's acceptance of the Public Improvements. Developer shall maintnn all the Public Improvements in a state of good repair until they are completed by Developer and approved and accepted by City, and until the security for the performance of this Agreement is released. Maintenance shall include, but shall not be limited to, repair of pavement, curbs, gutters, sidewalks, signals, parkways, water mains, and sewers; maintaining all landscaping in a vigorous and thriving condition reasonably acceptable to City; removal of debris from sewers and storm drains; and sweeping, repairin5, md maintaining in good and safe condition all streets and street improvements. It shall be Developer's responsibility to initiate all maintenance work, but if it shall fail to do so, it shall promptly perform such maintenance work when notified to do so by City. If Developer fails to properly RIV #4836-3917-8284 v2 -4- Page 88 of 140
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prosecute its maintenance obligation under this section, City may do all work necessary for such maintenance and the cost thereof shall be the responsibility of Developer and its surety under this Agreement. City shall not be responsible or liable for any damages or injury of any nature in any way related to or caused by the Public Improvements or their condition prior to acceptance.
4. CONSTRUCTION SCHEDULE. Unless extended pursuant to this Section 4.1 of this Agreement, Developer shall fully and adequately complete or have completed the Public Improvements within one year (12 months) following approval of the final map for Tract No. 33825-1.
4.1 Extensions. City may, in its sole and absolute discretion, provide Developer with additional time within which to complete the Public Improvements. It is understood that by providing the Security required under Section 12.0 et seq. of this Agreement, Developer and its surety consent in advance to any extension of time as may be given by City to Developer, and waives any and all right to notice of such extension(s). Developer's acceptance of an extension of time granted by City shall constitute a waiver by Developer and its surety of all defense of laches, estoppel, statutes of limitations, and other limitations of action in any action or proceeding filed by City following the date on which the Public Improvements were to have been completed hereunder. In addition, as consideration for granting such extension to Developer, City reserves the right to review the provisions of this Agreement, including, but not limited to, the construction standards, the cost estimates established by City, and the sufficiency of the improvement security provided by Developér, and to require adjustments thereto when warranted according to City's reasonable discretion.
4.2 Accrual of Limitations Period. Any limitations period provided by law related to breach of this Agreement or the terms thereof shall not accrue until Developer has provided the City Engineer with written notice of Developer's intent to abandon or otherwise not complete required or agteed upon Public Improvements.
5. GRADING. Developer agrees that any and all grading done or to be done in conjunction with construction of the Public Improvements or development of Tract No. 33825-1 shall conform to all federal, state, and local laws, ordinances, regulations, and other requirements, including City's grading regulations. All grading, landscaping, and construction activities shall be performed in a manner to control erosion and prevent flooding problems. The City Engineer shall have the authority to require erosion plans to prescribe reasonable controls on the method, manner, and time of grading, landscaping, and construction activities to prevent nuisances to surrounding properties. Plans shall include without limitation temporary drainage and erbsion control requirements, dust control procedures, restrictions on truck and other construction traffic routes, noise abatement procedures, storage of materials and equipment, removal of garbage, trash, and refuse, securing the job site to prevent injury, and similar matters.
In order to prevent damage to the Public Improvements by improper drainage or other hazards, the grading shall be completed in accordance with the time schedule for completion of the Public Improvements established by this Agreement, and prior to City's approval and acceptance of the Public Improvements and release of the Security as set forth in Section I2.0 et seq. of this Agteement.
6. UTILITIES. Developer shall provide utility services, including water, sewer, power, gas, and telephone service to serve each parcel, lot, or unit of land within Tract No.
RIV #4836-3917 -8284 v2 -5- Page 89 of 140
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33825-I in accordance with all applicable federal, state, and local laws, rules, and regulations, including, but not limited to, the regulations, schedules and fees of the utilities or agencies providing such services. Except for commercial or industrial properties, Developer shall also provide cable television facilities to serve each parcel, lot, or unit of land in accordance with all applicable federal, state, and local laws, rules, and regulations, including, but not limited to, the requirements of the cable company possessing a valid franchise with City to provide such service within City's jurisdictional limits. All utilities shall be installed underground.
7. FEES AND CHARGES. Developer shall, at its sole cost, expense, and liability, pay all fees, charges, and taxes arising out of construction of the Public Improvements, including, but not limited to, all plan check, design review, engineering, inspection, and other service fees, and any impact or connection fees established by City ordinance, resolution, regulation, or policy, or as established by City relative to Tract No. 33825-1, or as required by other governmental agencies having jurisdiction over Tract No. 33825-1.
8. CITY INSPECTION OF PUBLIC IMPROVEMENTS. Developer shall, at its sole cost, expense, and liability, and at all times during construction of the Public Improvements, maintain reasonable and safe facilities and provide safe access for inspection by City of the Public Improvements and areas where construction of the Public Improvements is occurring or will occur. If the City inspector requests it, the Developer at any time before acceptance of the Public Improvements shall remove or uncover such portions of the finished work as may be directed which have not previously been inspected. After examination, the Developer 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 Developer 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.
9. ADMINISTRATM COSTS. If Developer fails to construct and install all or any part of the Public Improvements within the time required by this Agreement, or if Developer fails to comply with any other obligation contained herein, Developer and its surety shall be jointly and severally liable to City for all administrative expenses, fees, and costs, including reasonable attorney's fees and costs, incurred in obtaining compliance with this Agreement or in processing any legal action or for any other remedies permitted by law.
10. ACCEPTANCE OF IMPROVEMENTS; AS-BUILT OR RECORI)
DRAWINGS. The City Council may, in its sole and absolute discretion, accept fully completed portions of the Public Improvements prior to such time as all of the Public Improvements are complete, which shall not release or modify Developer's obligation to complete the remainder of the Public Improvements within the time required by this Agreement.
10.1 Developeros Notice of Completion. Upon the total or partial acceptance of the Public Improvements by City, Developer shall file with the Recorder's Office of the County of Riverside a notice of completion for the accepted Public Improvements in accordance with Califomia Civil Code section 3093, at which time the accepted Public Improvements shall become the sole and exclusive property of City without payrnent therefor.
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I0.2 City Acceptance of Public Improvements. If Tract No. 33825-1 was approved and recorded as a single phase map, City shall not accept any one or more of the improvemenls until all of the Public Improvements are completed by Developer and approved by City. Issuance by City of occupancy permits for any buildings or structures located on the Property shall not be construed in any manner to constitute City's acceptance or approval of any Public Improvements.
10.3 Developeros Obligation to Provide As-Built or Record Drawinss.
Notwithstanding the foregoing, City may not accept any Public Improvements unless and until Developer provides one (1) set of "as-built" or record drawings or plans to the City Engineer for all such Public Improvements. The drawings shall be certified and shall reflect the condition of the Public Improvements as constructed, with all changes incorporated therein.
11. WARRANTY AND GUARANTEE. Developer hereby warrants and guarantees all Public Improvements against any defective work or labor done, or defective materials furnished in the performance of this Agreement, including the maintenance of all landscaping within the Property in a vigorous and thriving condition reasonably acceptable to City, for a period of one (1) year following completion of the work and acceptance by City. During the Warranty, Developer shall repair, replace, or reconstruct any defective or otherwise unsatisfactory portion of the Public Improvements, in accordance with the current ordinances, resolutions, regulations, codes, standards, or other requirements of City, and to the approval of the City Engineer. All repairs, replacements, or reconstruction during the Warranty shall be at the sole cost, expense, and liability of Developer and its surety. As to any Public Improvements which have been repaired, replaced, or reconstructed during the Warranty, Developer and its surety hereby agree to extend the Warranty for an additional one (1) year period following City's acceptance of the repaired, replaced, or reconstructed Public Improvements. Nothing herein shall relieve Developer from any other liability it may have under federal, state, or local law to rcpair, replace, or reconstruct any Public Improvement following expiration of the Warranty or any extension thereof. Developer's warranty obligation under this section shall survive the expiration or termination of this Agreement.
12. SECURITY; SURETY BONDS. Prior to City's approval and execution of this Agreement, Developer shall provide City with surety bonds in the amounts and under the terms set forth below. The amount of the Security shall be based on the City Engineer's Estimated Costs. If City determines at any time prior to Developer's completion of the Public Improvements under Section 4 [Construction Schedule], in its sole and absolute discretion, that the Estimated Costs have changed, Developer shall adjust the Security in the amount requested by City. Developer's compliance with this provision (Section I2.0 et ggq.) shall in no way limit or modify Developer's indemnification obligation provided in Section 16.0 of this Agreement.
I2.l Performance Bond. To guarantee the faithful performance of the Public Improvements and all the provisions of this Agreement, to protect City if Developer is in default as set forth in Section 18.0 et seq. of this Agreement, and to secure Developer's one-year guarantee and warranty of the Public Improvements, including the maintenance of all landscaping in a vigorous and thriving condition, Developer shall provide City a faithful performance bond in the amount of Two Million and Fifty-Nine Thousand and Five Hundred Dollars ($2,059,500.00), which sum shall be not less than one hundred percent (100%) of the Estimated Costs.
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12.2 Partial Release. The City Council may, in its sole and absolute discretion and upon recommendation of the City Engineer, partially release a portion or portions of the Security provided under this section as the Public Improvements are accepted by City, provided that Developer is not in default on any provision of this Agreement or condition of approval for Tract No. 33825-1, and the total remaining Security is not less than twenty-five percent (25%) of the Estimated Costs. All Security provided under this section shall be released at the end of the Warranty period, or any extension thereof as provided in Section 1 1.0 of this Agreement, provided that Developer is not in default on any provision of this Agreement or condition of approval for Tract No. 33825-1.
I2.3 Labor & Material Bond. To secure payment to the contractors, subcontractors, laborers, material men, and other persons furnishing labor, materials, or equipment for performance of the Public Improvements and this Agreement, Developer shall provide City a labor and materials bond in the amount of Two Million and Fifty-Nine Thousand and Five Hundred Dollars ($200590500.00), which sum shall not be less than one hundred percent (100%) of the Estimated Costs. The Security provided under this section may be released by written atthonzation of the City Engineer after six (6) months from the date City accepts the final Public Improvements. The amount of such Security shall be reduced by the total of all stop notice or mechanic's lien claims of which City is aware, plus an amount equal to twenty percent (20%) of such claims for reimbursement of City's anticipated administrative and legal expenses arising out of such claims.
12.4 Additional Requirements. The surety for any surety bonds provided as Security shall have a current A.M. Best's rating of no less than A:VIII, be a bank or insurance company licensed to transact surety business in California, and shall be satisfactory to City. As part of the obligation secured by the Security and in addition to the face amount of the Security, the Developer or its surety shall secure the costs and reasonable expenses and fees, including reasonable attorney's fees and costs, incurred by City in enforcing the obligations of this Agreement. The Developer and its surety stipulate and agree that no change, extension of time, alteration, or addition to the terms of this Agreement, the Public Improvements, or the plans and specifications for the Public Improvements shall in any way affect its obligation on the Security.
12.5 Form of Securitv. The evidence of the Security shall be provided on the forms set forth in Attachment "C", unless other forms are deemed acceptable by the City Engineer and the City Attorney, and when such forms are completed to the satisfaction of City, the forms and evidence of the Security shall be attached hereto as Attachment "C" and incorporated herein by this reference.
12.6 Developer's Liability. While no action of Developer shall be required in order for City to realize on its security under any Security instrument, Developer agrees to cooperate with City to facilitate City's rcalization under any Security instrument, and to take no action to prevent City from such realization under 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, Developer shall be personally liable for performance under this Agreement and for payment of the cost of the labor and materials for the improvements required to be constructed or installed hereby and shall, within ten (10) days after written demand therefor, deliver to City such substitute Security as City shall require satisfying the requirements in this Section 12.
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13. MONUMENT SECURITY. Prior to City's execution of this Agreement, to guarantee payment to the engineer or surveyor for the setting of all subdivision boundaries, lot corners, and street centerline monuments for Tract No. 33825-1 in compliance with the applicable provisions of City's Municipal andlor Development Code ("Subdivision Monuments"), Developer shall deposit cash with City in the amount of {Twenty Seven Thousand Seven-Hundred Fifty Dollars) ($271750), which sum shall not be less than one hundred percent (100%) of the costs of setting the Subdivision Monuments as determined by the City Engineer. Said cash deposit may be released by written authonzation of the City Engineer after all required Subdivision Monuments are accepted by the City Engineer, City has received written acknowledgment of payment in fulI from the engineer or surveyor who set the Subdivision Monuments, and provided Developer is not in default of any provision of this Agreement or condition of approval for Tract No. 33825-I.
14. LIEN. To secure the timely performance of Developer's obligations under this Agreement, including those obligationS for which security has been provided pursuant to Sections 12.0 et seq. and 13.0 of this Agreement, Developer hereby creates in favor of City a lien against all portions of the Property not dedicated to City or some other governmental agency for a public purpose. As to Developer's default on those obligations for which security has been provided pursuant to Sections 12.0 et seq. and 13.0 of this Agreement, City shall first attempt to collect against such security prior to exercising its rights as a contract lienholder under this section.
15. SIGNS AND ADVERTISING. Developer understands and agrees to City's ordinances, regulations, and requirements governing signs and advertising structures. Developer hereby agrees with and consents to the summary removal by City, without notice to Developer, of all signs or other advertising structures erected, placed, or situated in violation of any City ordinance, regulation, or other requirement. Removal shall be at the expense of Developer and its surety. Developer and its surety shall indemnify and hold City free and harmless from any claim or demand arising out of or incident to signs, advertising structures, or their removal.
16. INDEMNIFICATION. Developer shall defend, indemnify, and hold harmless Cit¡ its elected officials, officers, employees, and agents from any and all actsal or alleged claims, demands, causes of action, liability, loss, damage, or injury, to property or persons, including wrongful death, whether imposed by a court of law or by administrative action of any federal, state, or local govemmental body or agency, arising out of or incident to any acts, omissions, negligence, or willful misconduct of Developer, its personnel, employees, agents, or contractors in connection with or arising out of construction or maintenance of the Public Improvements, or performance of this Agreement. This indemnification includes, without limitation, the payment of all penalties, fines, judgments, awards, decrees, attorneys' fees, and related costs or expenses, and the reimbursement of City, its elected officials, officers, employees, andlor agents for all legal expenses and costs incurred by each of them. This indemnification excludes only such portion of any claim, demand, cause of action, liability, loss, damage, penalty, fine, or injury, to property or persons, including wrongful death, which is caused solely and exclusively by the gross negligence or willful misconduct of City as determined by a court or administrative body of competent jurisdiction. Developer's obligation to indemnifu City shall survive the expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by City, its elected officials, officers, employees, or agents.
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17. INSURANCE
l1.l Tvpes: Amounts. Developer shall procure and maintain, and shall require its contractors to procure and maintain, during construction of any Public Improvement pursuant to this Agreement, insurance of the types and in the amounts described below. If any of the Required Insurance contains a general aggregate limit, such insurance shall apply separately to this Agreement or be no less than two times the specified occurrence limit.
17.1.1 General Liabitity. Developer and its contractors shall procure and maintain occurrence version general liability insurance, or equivalent form, with a combined single limit of not less than $3,000,000 per occurrence for bodily injury, personal injury, and property damage.
17.1.2 Business Automobile Liability. Developer and its contractors shall procure and maintain business automobile liability insurance, or equivalent form, with a combined single limit of not less than $ 1,000,000 per occurrence. Such insurance shall include coverage for the ownership, operation, maintenance, use, loading, or unloading of any vehicle owned, leased, hired, or borrowed by the insured or for which the insured is responsible.
17.I.3 Workerso Compensation. Developer and its contractors shall procure and maintain workers' compensation insurance with limits as required by the Labor Code of the State of California and employers' liability insurance with limits of not less than $1,000,000 per occuffence, at all times during which insured retains employees.
I7.1.4 Professional LiabilÍfy. For any consultant or other professional who will engineer or design the Public Improvements, liability insurance for errors and omissions with limits not less than $1,000,000 per occurrence, shall be procured and maintained for a period of five (5) years following completion of the Public Improvements. Such insurance shall be endorsed to include contractual liability.
17.2 Deductibles. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either: (a) the insurer shall reduce or eliminate such deductibles or selÊinsured retentions as respects City, its elected officials, officers, employees, agents, and volunteers; or (b) Developer and its contractors shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigation costs, claims, and administrative and defense expenses.
17.3 Additional Insured: Separation of Insureds. The Required Insurance shall name City, its elected officials, officers, employees, agents, and volunteers as additional insureds with respect to work performed by or on behalf of Developer or its contractors, including materials, parts, or equipment furnished in connection therewith. The Required Insurance shall contain standard separation of insured provisions, and shall contain no special limitations on the scope of its protection to City, its elected officials, officers, employees, agents, and volunteers.
17.4 Primarv Insurance: Waiver of Subrogation. The Required Insurance shall be primary with respect to any insurance or selÊinsurance programs covering City, its elected officials, officers, employees, agents, and volunteers. All policies for the Required RIV #4836-3917-8284 v2 -10- Page 94 of 140
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Insurance shall provide that the insurance company waives all right of recovery by way of subrogation against City in connection with any damage or harm covered by such policy.
I7.5 Certificates: Verification. Developer and its contractors shall furnish City with original certificates of insurance and endorsements effecting coverage for the Required Insurance. The certificates and endorsements for each insurance policy shall be signed by a person authonzed by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by City before work pursuant to this Agreement can begin. City reserves the right to require complete, certified copies of all required insurance policies, at any time.
17.6 Term: Cancellation Notice. Developer and its contractors shall maintain the Required Insurance for the term of this Agreement and shall replace any certificate, policy, or endorsement which will expire prior to that date. All policies shall be endorsed to provide that the Required Insurance shall not be suspended, voided, reduced, canceled, or allowed to expire except on 30 days' prior written notice to City.
I7.7 Insurer Ratins. Unless approved in writing by City, all Required Insurance shall placed with insurers licensed to do business in the State of California and with a current A.M. Best rating of at least A:VIII.
18. DEFAULT; NOTICE; REMEDIES.
18.1 Notice. If Developer neglects, refuses, or fails to fulfiII or timely complete any obligation, term, or condition of this Agreement, or if City determines there is a violation of any federal, state, or local law, ordinance, regulation, code, standard, or other requirement, Cíty may at any time thereafter declare Developer to be in default or violation of this Agreement and make written demand upon Developer or its surety, or both, to immediately remedy the default or violation. Developer shall commence the work required to remedy the default or violation within ten (10) days of the written demand from the City. If the default or violation constitutes an immediate threat to the public health, safety, or welfare, City may provide the demand verbally, and Developer shall conìmence the required work within twentyfour (24) hours thereof. Immediately upon City's issuance of the demand to remedy the default, Developer and its surety shall be liable to City for all costs of construction and installation of the Public Improvements and all other administrative costs expenses as provided for in Section 9.0 of this Agreement.
18.2 Failure to Remedv: City Action. If the work required to remedy the noticed default or violation is not diligently prosecuted to a substantial completion acceptable to City within a reasonable time designated by the City, City may complete all remaining work, arrange for the completion of all remaining wotk, andlor conduct such remedial activity as in its sole and absolute discretion it believes is required to remedy the default or violation. All such work or remedial activity shall be at the sole and absolute cost, expense, and liability of Developer and its surety, without the necessity of giving any further notice to Developer or surety. City's right to take such actions shall in no way be limited by the fact that Developer or its surety may have constructed any, or none of the required or agreed upon Public Improvements at the time of City's demand for performance. In the event City elects to complete or affange for completion of the remaining work and improvements, City may require RIV #4836-39 I 7 -8284 v2 - 11- Page 95 of 140
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all work by Developer or its surety to cease in order to allow adequate coordination by City.
Notwithstanding the foregoing, if conditions precedent for reversion to acreage can be met and if the interests of City will not be prejudiced thereby, City may also process a reversion to acreage and thereafter recover from Developer or its surety the full cost and expense incurred.
18.3 Other Remedies. No action by City pursuant to Section 18.0 et seq. of this Agreement shall prohibit City from exercising any other right or pursuing any other legal or equitable remedy available under this Agreement or any federal, state, or local law. City may exercise it rights and remedies independently or cumulatively, and City may pursue inconsistent remedies. City may institute an action for damages, injunctive relief, or specific performance. 19, GENERALPROVISIONS.
I9.1 Authoritv to Enter Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority make this Agreement and bind each respective Party.
19.2 Cooperation: Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate, or convenient to attain the purposes of this Agreement.
19.3 Construction: References: Captions. It being agreed the Parties or their agents have participated in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party.
Any term referencing time, days, or period for performance shall be deemed calendar days and not work days. All references to Developer include all personnel, employees, agents, and subcontractors of Developer, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
19.4 Notices. All notices, demands, invoices, and written communications shall be in writing and delivered to the following addresses or such other addresses as the Parties may designate by written notice:
CITY:
City of Hemet
Attn: Alexander P. Meyerhoff, City Manager
445 E. Florida Avenue
Hemet, CA 92543
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DEVELOPER:
McSweeny Farms Recovery Acquisition, LLC
c/o Raintree Investment Corporation
Attn: Matthew Villalobos
5796 Armada Drive, Suite 375
Carlsbad, CA 92008
Depending upon the method of transmittal, notice shall be deemed received as follows: by facsimile, as of the date and time sent provided the original is contemporaneously deposited with United States Postal Service and delivered by regular mail; by messenger, as of the date delivered; and by U.S. Mail first class postage prepaid, as of 72 hours after deposit in the U.S.
Mail.
19.5 Amendment: Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
19.6 \üaiver. City's failure to insist upon strict compliance with any provision of this Agreement or to exercise any right or privilege provided herein, or City's waiver of any breach of this Agreement, shall not relieve Developer of any of its obligations under this Agteement, whether of the same or similar type. The foregoing shall be true whether City's actions are intentional or unintentional. Developer agrees to waive, as a defense, counterclaim or set off, any and all defects, irregularities or deficiencies in the authonzation, oxecution or performance of the Public Improvements or this Agreement, as well as the laws, rules, regulations, ordinances or resolutions of City with regards to the authonzation, execution or performance of the Public Improvements or this Agreement.
I9.7 Assisnment or Transfer of Aqreement. Developer shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without prior written consent of City. Any attempt to do so shall be null and void, and any assignee, hypothecatee, or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation, or transfer. Unless specifically stated to the contrary in City's written consent, any assignment, hypothecation, or transfer shall not release or discharge Developer from any duty or responsibility under this Agreement.
19.8 Bindine Effect. Each and all of the covenants and conditions shall be binding on and shall inure to the benefit of the Parties, and their successors, heirs, personal representatives, or assigns. This section shall not be construed as an authonzation for any Party to assign any right or obligation.
19.9 No Third Partv Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
19.10 Invalidity: Severabilitv. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
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19.11 Consent to Jurisdiction and Venue. This Agreement shall be construed in accordance with and governed by the laws of the State of California. Any legal action or proceeding brought to interpret or enforce this Agreement, or which in any way arises out of the Parties' activities undertaken pursuant to this Agreement, shall be filed and prosecuted in the appropriate California State Court in the County of Riverside, California. Each Party waives the benefit of any provision of state or federal law providing for a change of venue to any other court or jurisdiction including, without limitation, a change of venue based on the fact that a goveflìmental entity is a party to the action or proceeding, or that a federal right or question is involved or alleged to be involved in the action or proceeding. Without limiting the generality of the foregoing waiver, Developer expressly waives any right to have venue transferred pursuant to California Code of Civil Procedure Section 394.
19.12 Attornevso Fees and Costs. If any arbitration, lawsuit, or other legal action or proceeding is brought by one Party against the other Party in connection with this Agreement or the Property, the prevailing party, whether by final judgment or arbitration award, shall be entitled to and recover from the other party all Litigation Expenses. Any judgment, order, or award entered in such legal action or proceeding shall contain a specific provision providing for the recovery of Litigation Expenses. '
19.13 Relationship Between The Parties. The Parties hereby mutually agree that neither this Agreement, any map related to Tract No. 33825-1, nor any other related entitlement, permit, or approval issued by City for the Property shall operate to create the relationship of partnership, joint venture, or agency between City and Developer. Developer's contractors and'subcontractors are exclusively and solely under the control and dominion of Developer. Nothing herein shall be deemed to make Developer or its contractors an agent or contractor of City.
19.14 Counterparts. This Agreement may be executed in counterpart originals, which taken together, shall constitute one and the same instrument.
19.15 Effective Date of Asreement. This Agreement shall not become effective until the date it has been formally approved by the City and executed by the appropriate authorities of City and Developer.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first-above written.
CITY OF HEMET
By:
P
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City Manager
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ATTEST:
McComas
City Clerk
APPROVED AS TO FORM
By:
Eric S. Vail
City Attorney
McSweeny Farms Recovery Acquisition, LLC
By:
J Shumaker
Its: Authorized Signatory
DEVELOPER'S SIGNATURES SHALL BE DULY NOTARIZED, AND
APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE
REQUIRED BY THE BYLAWSO ARTICLES OF INCORPORATION, OR
OTHER RULES OR REGULATIONS APPLICABLE TO DEVELOPER'S
BUSINESS ENTITY
MARSHA
Notary Public, State of NewYork
No.01RO6064861
Qualified in Suffolk County
Commission Expires October 1, 20'|'7
NOTE:
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EXHIBIT "A'
LEGAL DESCRIPTION OF PROPERTY
TRACT NO.33825.1
RIV 1#4836-391 7-8284 v2 SUBDTVISION IMPROVEMENT AGREEMENT
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EXHIBIT "8"
LIST OF PUBLIC IMPROVEMENTS
TRACT NO. 33825-1
RIV 1#4836-391 7-8284 v2 SUBDIVISION IMPROVEMENT AGREEMENT
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EXHIBIT "C''
SURETY BONDS AND OTHER SECURITY
TRACT NO. 33825.1
As evidence of understanding the provisions contained in this Agreement, and of the Developer's intent to comply with same, the Developer has submitted the below described security in the amounts required by this Agreement, and has affixed the appropriate signatures thereto:
PERFORMANCE BOND PRINCIPAL AMOUNT: $ 2,059,500
Surety: Lexon / Ironshore
Attorney-in-fact:
Address: Ironshore Specialty Insurance Co.
P.O. Box 3407
New York, NY, 1008
LABOR & MATERIAL BOND PRINCIPAL AMOUNT: $ 2,059,500
Surety: Lexon / Ironshore
Attorney-in-fact:
Address: Ironshore Specialty Insurance Co.
P.O. Box 3407
New York, NY" 1008
s 27,750
Date:
CASH MONUMENT SECURITY:
Amount deposited per Cash Receipt No.
1 RIV #4836-3917-8284 v2
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.L
BOND NO.
INITIAL PREMIUM:
SI
SUBJECT TO RENEWAL
CITY OF'HEMET
TRACT MAP NO. TR.33825-1 IMPROVEMENTS
FORM OF PERX'ORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS the City of Hemet, California ("City") and McSweeny Farms Recovery Acquisition, LLC, ("Principal"), have executed an agreement for work consisting of, but not ümiìed to, the furnishing all labor, materials, tools, equipment, services, and incidentals for all grading, roads, paving, curbs and gutters, pathways, storm drains, sanitary sewers, utilities, ãrainage facilities, traffic controls, landscaping, street lights, and all other required facilities for Tract Map No. TR-3382 ("Public Improvements");
WHEREAS, the Public Improvements to be performed by Principal are more particularly set forth in that certain Subdivision Improvement Agreement dated A,¡g,il ,2016 ("Improvement Agreement");
WHEREAS, the Improvement Agreement is hereby referred to and incorporated herein by reference; and
WHEREAS, Principal is required by the Improvement Agreement to provide a good and sufficient bond for performance of the Improvement Agreement, and to guarantee and warranty the Public Improvements constructed thereunder'
NOW, THEREFORE, Principal and Ironshore Indemnity Inc. ("Surety"), a corporation organized and existing under the laws of the State of Minnesota, and duly authorized to transact surety business under the laws of the State of California, are held and firmly bound unto City in the sum of Two Million Fifty Nine Thousand Five Hundred and 00/100 Dollars ($2'059'500.00)' said sum being not less than one hundred percent (100%) of the total cost of the Public Improvements as set forth in the Improvement Agreement, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION is such, that if Principal, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions, agreements, guarantees, and warranties in the Improvement Agreement and any alteration thereof made as therein provided, to be kept and performed at the time and in the manner therein specified and in all respects according to their intent and meaning, and to indemniff and save harmless City, its officers, employees, and agents, as stipulated in the Improvement Agreement, then this obligation shall become null and void; otherwise it shall be and remain in fulI force and effect.
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As part of the obligation secured hereby, and in addition to the face amount specified therefor, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by Cþ in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered.
Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the Improvement Agreement, or to any plans, profiles, and specifications related thereto, or to the Public Improvements to be constructed thereunder, shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration, or addition.
This bond is executed and filed to comply with Section 66499 et 5eq. of the Government Code of California as security for performance of the Improvement Agreement and security for the one-year guarantee and warranty of the Public Improvements.
IN V/ITNESS WHEREOF, the seal and signature ofthe Principal is hereto affixed, andthe corporate seal and the name of the Surety is hereto affixed and attested by its duly authorized Attorney-in-Fact at Louisville" Kentucky, this 24lh day of June, 201 6.
McSweeny Farms Recovery Acquisition, LLC Ironshore Indemnity Inc.
Principal
By:
Surety
By: À.
In-Fact
F
r
@
Jonathan Shumaker
atúhoriaed Signatory
NOTE:
JessicaNowlin, Attomey-in-Fact
þrint name) (print name)
APPROPRIATE NOTARIAL ACKNOWLEDGMENTS OF EXECUTION
BY PRINCIPAL AND SURETY, AND A COPY OF' THE POWER OF
ATTORNEY TO LOCAL REPRESENTATIVES OF THE BONDING
COMPANY MUST BE ATTACHED TO THIS BOND.
RIV #4836-3917-8284v2 2
SUBDIVISION IMPROVEMENT AGREEMENT
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Acknowledeement Form
State of
instrument.
)ss
County of (L
ontn"?rÍs auy or óJ¡¿ in the y"urfuþ,before me, the undersigned notary public, personally appeared lO**t*-^ ,\htt*t tt¿ f personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by hislher/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the Notary Public
MARSHA ROJAS
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A notary pubtic or other officer completing this certificate VErifies only the identity of the ndividua who srgned the docu ment to which thiS certificate S attached t and not the truthfu lnESS accuracy or vali dity of that document. t CALIFORNIA ALL. PU RPOSE
CERTIFICATE OF ACKNOWLEDGMENT
State of Kentuckv )
County of Jefferson )
On June fh 9016, before me, sandra L. FusilfJ#rluuno;t*llaåH¡?tir1rca¡i¡¡et , personally appeared
atisfactory evidence to be the person(s) whose who proved to me on the basis of s n instrument and acknowledged to me that name(s) is/are subscribed to the withi r/their authorized capacity(ies), and that by åe/she/they executed the same in his/he nt the person(s), or the entity upon behalf of åis/her/their signature(s) on the instrume which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WTNESS my hand and official seal
Public re (Notary Public Seal)
Commission February 13th 2020
ADDITIONAL OPTIONAL INFORMATION
INSTRUCTIONS FOR COMPLETING THIS FORM
This form complies with current Caliþrnia statutes regatding nolary wording and, i¡neided, shoittd be completed and øttached 10 the documenL Achtowledgmenrs þont other states may bi completedfot documents being sent to thnt state so long -
as the wording does not require the Calìfornia notary to violate California notary løw.
. state and county information must be the state and county where the document signer(s) personàlly appeared before the notary public for acknowledgment' . Dãte of nòtarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. . The notary public must print his or her name as it appears within his or her commission iollowed by a comma and then your title (notary public). o Print the name(s) of document signer(s) who personally appear at the time of nofariTfüon.
o Indicate the conect singular or plural forms by crossing off inconect lorms (i e' he/she/theyr is /ere ) oriircling the conect forms. Failure to conectly indicate this information may lead to rejection of document recording o The notary seal impression must be clear and photographically reproducible Impression must noa cover text or lines. If seal impression smudges, re-seal if a suffi"ient a.ea p".mits, otherwise complete a different acknowledgment form' . signature of the notary public must match the signature on file with the office ol the county clerk.
.:. Ádditional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document' * Indicate titlè ortype ofattached document, number ofpages and date + Indicate the capacity claimed by the signer' Ifthe claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). o Securely attach this document to the signed document \ryith a staple
DESCRIPTION OF THE ATTACHED DOCUMENT
(Title or description of attached document)
(Title or descr¡ption of attached document continued)
Number of Pages
-
Document ñaÍa
CAPACITY CLAIMED BY THE SIGNER
¡ lndividual (s)
¡ Corporate Officer
( ilile)
Partne(s)
Attorney-in-Fact
Trustee(s)
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il-6crivr71q
lronshore Indemnity Inc.
KNOW ALL MEN BY THESE PRESENTS, that IRONSHORE INDEMNITY lNC., a Minnesota Corporation, with its principal office in New York, NY does hereby constitute and appoint: Brook T. Smith, Raymond M. Hundley, Jason D. Cromwell, James H. Martin, Sandra L. Fusinett¡, Deborah Neichter, Jill Kemp,Theresa Pickerrell, Sheryon Quinn, Bonnie i. Rowe, Amy Meredith, Lynnette Long, Barbara Duncan, Mark A. Guidry, Michele Lacrosse, Jessica Nowlin and Summer A. Bett¡ng its true and lawful Attorney(s)-ln-Fact to make, execute, seal and deliver for, and on its behalf as surety, any and all bonds, undertakings or other writings obligatory in nature of a bond.
This authority is made under and by the author¡ty of a resolution which was passed by the Board of Directors of IRONSHORE INDEMNITY lNC. on the 22nd day of April, 2013 as follows:
Resolved, that the Director of the Company is hereby authorized to appoint and empower any representative of the company or other person or persons as Attorney-ln-Fact to execute on behalf of the Company any bonds, undertakings, policies, contracts of indemnity or other writings obligatory in nature of a bond not to exceed SS,SOO,OOO dollars, which the Company might execute through its duly elected officers, and affix the seal of the Company thereto. Any said execution of such documents by an Attorney-ln-tact shall be as binding upon the Company as if they had been duly executed and acknowledged by the regularly elected officers of the Company. Any Attorney-ln-Fact, so appointed, may be removed for good cause and the authority so granted may be revoked as specified in the Power of Attorney.
Resolved, that the signature of the Director and the seal of the Company may be affixed by facsimile on any power of attorney granted, and the signature of the Secretary, and the seal of the Company may be affixed by facsimile to any certificate of any such power and any such power or certificate bearing such facsimile signature and seal shall be valid and binding on the Company. Any such power so executed and sealed and certificate so executed and sealed shall, with respect to any bond of undertaking to which it is attached, continue to be valid and binding on the Company. lN WITNESS THEREOF, IRONSHORE INDEMNITY lNC. has caused this instrument to be signed by its Director, and its Corporate Seal to be affixed this 2"d day ofJuly, 2013.
IRONSHORE INDEMNITY INC.
:- "e-læ'*.1'u SEÀL
i 19i9
oaniel L.
Director
ACKNOWTEDGEMENT
On this 2nd day of July, 2013, before me, personally came Daniel L. Sussman to me known, who being duly sworn, did depose and say that he is the Director of lronshore lndemnity lnc., the corporation described in and which executed the above instrument; that he executed said instrument on behalf of the corporation by authority of his office under the By-laws of said corporation.
Á',!Y TÅYLOR
ilotary Fubl¡c- StatB otTenne$see
Dôv¡dson Couflty
Ily Commiss¡0fl Expires 07-0Ë{9
..1rlllll¡lr¡r,
..sÞ.1ltfl9+,2
-lj*",7- ::æ'.=
=iffi,': 7 ..- * --' -¡
".,%*"$o
BY
PuÞlic
CERTIFICATE
l, the undersigned, Secretary of IRONSHORE INDEMNITY lNC., a Minnesota Company, DO HEREBY CERTIFY that the original Power of Attorney of which the foregoing is a true and correct copy, is in full force and effect and has not been revoked and the resolutions as set forth are now in force.
I
Pãul 5. G¡ordeno
Secrêtary
"WARNING: Any peßon ìflho knowingly and w¡th ¡ntent to defraud any insurance company or other percon, files and appl¡cation for insurance or statement of claim contain¡ng any materíally false information, or conceals for the purpose of misleading information concerning any fact mater¡al thereto, comm¡ts a fraudulent insurance act, which is a crime and subjects such person to criminal and c¡vil penalt¡es,"
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BOND NO. SUR6OO
INITIAL PREMIUM:
SUBJECT TO RENEV/AL
CITY OF HEMET
TRACT MAP No. TR-33825-1 IMPROVEMENTS
F'ORM OF LABOR AND MATERIAL BOND
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS the City of Hemet California ("City") and McSweeny Farms Recovery Acquisition ,LLC ("Principal"), have executed an agreement for work consisting of, but not limited to, ihe furnishing all labor, materials, tools, equipment, services, and incidentals for all grading, roads, paving, curbs and gutters, pathways, storm drains, sanitary sewers, utilities, drainage facilities, trafftc controls, landscaping, street lights, and all other required facilities for Tract Map No. TR-33 825- 1 ("Public Improvements");
WHEREAS, the Public Improvements to be performed by Principal are more particularly set forth in that certain Subdivision Improvement Agreement dated á,^3.^<t 3 t , 2016 (oolmprovement Agreement") ;
WHEREAS, the Improvement Agreement is hereby referred to and incorporated herein by reference; and
V/HEREAS, Principal is required to furnish a bond in connection with the Improvement Agreement providing that if Principal or any of its subcontractors shall fail to pay for any materials, provisions, or other supplies, or terms used in, upon, for, or about the performance of the Public Improvements, or for any work or labor done thereon of any kind, or for amounts due under the provisions of Title 15 (commencing with section 3082) of Part 4 of Division 3 of the California Civil Code, with respect to such work or labor, that the Surety on this bond will pay the same together with a reasonable attorney's fee in case suit is brought on the bond.
NOW, THEREFORE, Principal and Ironshore Indemnit)¡ Inc. ("Surety"), a corporation organized and existing under the laws of the State of Minnesota, and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto City and to any and all material men, persons, companies or corporations furnishing materials, provisions, and other supplies used in, upon, for or about the performance of the Public Improvements, and all persons, companies or corporations renting or hiring teams, or implements or machinery, for or contributing to the Public Improvements to be done, and all persons performing work or labor upon the same and all persons supplying both work and materials as aforesaid excepting the Principal, the sum of Two Million Fifty Nine Thousand Five Hundred and 00/100 Dollars ($2.059,500.00), said sum being not less than l00Yo of the total cost of the Public Improvements under the terms of the Improvement Agreement, we bind ourselves, our heirs, executors and administrators, successors and assigns jointly and severally, firmly by these presents.
RIV #4836-3917 I-8284 v2 SUBDIVISION IMPROVEMENT AGREEMENT
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THE CONDITION OF THIS OBLIGATION IS SUCH that if the Principal, his or its subcontractors, heirs, executors, administrators, successors, or assigns, shall fail to pay for any materials, provisions, or other supplies or machinery used in, upon, for or about the performance of the Public Improvements, or for work or labor thereon of any kind, or fail to pay any of the persons named in California Civil Code Section 3181, or amounts due under the Unemployment Insurance Code with respect to work or labor performed by any such claimant, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of the contractor and his subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to such work and labor, and all other applicable laws of the State of California and rules and regulations of its agencies, then said Surety will pay the same in or to an amount not exceeding the sum specified herein.
As part of the obligation secured hereby, and in addition to the face amount specified therefor, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered.
This bond is executed and filed to comply with Section 66499 et Sgg. of the California Government Code as security for payment to contractors, subcontractors, and persons furnishing labor, materials, or equipment for construction of the Public Improvements or performance of the Improvement Agreement. It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any and all persons, companies, and corporations entitled to fîle claims under Title 15 (commencing with Section 3082) of Part 4 of Division 3 of the California Civil Code, so as to give a right of action to them or their assigns in any suit brought upon this bond.
Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the Improvement Agreement, or to any plans, profiles, and specifications related thereto, or to the Public Improvements to be constructed thereunder, shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration, or addition.
IN WITNESS WHEREOF, the seal and signature of the Principal is hereto affixed, and the corporate seal and the name of the Surety is hereto affixed and attested by its duly authorized Attorney-in-Fact at Louisville. Kentucky, this 24th day of June, 20 I 6.
Mcsweeny Farms Recovery Acquisition, LLC Ironshore Indemnity Inc.
Principal
By:
Surety
By: J-ùh t t"*t q.-
ffiwtn-racf Jonathan m
Authorized Signatory
þrint name)
Jessica Nowlin, Attorne'r'-in-F'act
þrint name)
RIV #4836-3917-8284 v2 2
ST]BDIVISION IMPROVEMENT AGREEMENT
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NOTE: APPROPRIATE NOTARIAL ACKNOWLEDGMENTS OF' EXECUTION
BY PRINCIPAL AND SURETY, AND A COPY OF THE POWER OF
ATTORNEY TO LOCAL REPRESENTATIVES OX' THE BONDING
COMPANY MUST BE ATTACHED TO THIS BOND.
RM4836-3917-8284 v2 J
SUBDTVISION MPROVEMENT AGREEMENT
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Acknowledgement Form
State of
)ss.:
County of (L
ontn"?rÍs duy or JJ¡¿ in the yearþþ,before me, the undersigned notary public, personally appeared CO**t*-^ Ñhtr*, tt¿ f personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and thatby his/herltheir signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
Notary Public
MARSHA ROJAS
n" t" u
¡
ü o
¡"t*t¿¿¡"u?tuä i* t"*
OuaiitieO in Suffolk Countv
c"*tì'iË!iäüËxii ies octooe r 1'' 2017
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CALIFORNIA ALL. PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
State of ckv
County of Jefferson )
Orì June 24th. 16 before t", '
personally appeared Jessica Nowlin. Attornev-ln-Fact '
w¡o ptovêd to me on ttle bas¡s of satisfactory evidence to be the person(s) whose n"rå1r¡ is/are subscribed to the within instrument and acknowledged to me that +e/she/they executed the same in {tis/her/their authorized capacity(ies), and that by åis/her/flreir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Notary Public Seal)
)
A notary pubtic or other office r completing thts certificate VEnf¡ES only the idântity of the lnd ividu aI who Slgned the document to which th¡S certificate S attached and not the truthfuln ess accuracy or VAtid ¡ty of that document.
My Commission 13th,2020
ADDITIONAL OPTIONAL INFORMATION
2*1 S Ver*ior¡ www.NotaryClasse$.{ót'}1 8üt}-8?3-St}S5
INSTRUCTIONS FOR COMPLETING THIS FORM
This form complies with current Caliþrnia statutes regatding notary wording and' ¡needed, shoutd be completed and attached to the document' Acknowledgments þom othár ttot"s møy bi completedfor documents being sent to that state so long 'as
the ttording does not require the califomia notary to violate caliÍornia notary law,
¡ State and Cotulty information must be the State and County where the document signer(s) personálly appeared before the notary public for acknowledgment . Dáte of notarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. . The notary public must print his or her name as it appears within his or her commissiõn?ollowed by a comma and then your title (notary public)' . print the name(s) of document signer(s) who personally appear at the time of notarization.
. lndicate the conect singular or plural forms by crossing off incorrect forms (i.e. he/she/theyr is /a+e ) or circling ihe correct forms. Failure to correctly indicate this information may lead to rejection of document recording. . The notary seal impression must be clear and photographically reproducible.
Impression must nof cover text or lines. If seal impression smudges, re-seal if a sutïcient area permits, otherwise complete a different acknowledgment form' o signature of the notary public must match the signature on file with the oflice of the county clerk.
* Ádditional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document' .:. Indicate title or type of attached document, number of pages and date' .:. lndicate the capàõity claimed by the signer. If the claimed capacity is a corporate officér, indicate the title (i.e. CEO, CFO, Secretary)' . Securely attach this document to the signed document with a staple'
DESCRIPTION OF THE ATTACHED DOCUMENT
(f¡tle or description of attached document)
(Title or description of attached document continued)
Number of Pages
-
Document Date
CAPACITY CLAIMED BY THE SIGNER
¡ lndividual(s)
! Corporate Officer
( lrue)
! Partner(s)
E AttorneY-in-Fact
¡ Trustee(s)
- Other
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POWER
w-Goûo7q
lronshore Indemnity Inc.
KNOW ALL MEN BY THESE PRESENTS, that IRONSHORE INDEMNITY lNC., a Minnesota Corporation, with its principal office in New York, NY does hereby constitute and appoint: Brook T. Smith, Raymond M. Hundley, Jason D. Cromwell, James H. Martin, Sandra L. Fusinetti, Deborah Neichter, Jill Kemp, Theresa Pickerrell, Sheryon Quinn, Bonnie J. Rowe, Amy Meredith, Lynnette Long, Barbara Duncan, Mark A. Guidry, Michele Lacrosse, Jessica Nowlin and Summer A. Betting ¡ts true and lawful Attorney(s)-ln-Fact to make, execute, seal and deliver for, and on its behalf as surety, any and all bonds, undertakings or other writings obligatory in nature of a bond.
This authority is made under and by the authority of a resolution which was passed by the Board of Directors of IRONSHORE INDEMNITY lNC. on the 22nd day of April, 20L3 as follows:
Resolved, that the Director of the Company is hereby authorized to appoint and empower any representative of the company or other person or persons as Attorney-ln-Fact to execute on behalf of the Company any bonds, undertakings, policies, contracts of indemnity or other writings obligatory in nature of a bond not to exceed SS,SOO,OOO dollars, which the Company might execute through its duly elected officers, and affix the seal of the Company thereto. Any said execution of such documents by an Attorney-ln-Fact shall be as binding upon the Company as if they had been duly executed and acknowledged by the regularly elected officers of the Company. Any Attorney-ln-Fact, so appointed, may be removed for good cause and the authority so granted may be revoked as specified in the Power of Attorney.
Resolved, that the signature of the Director and the seal of the Company may be affixed by facsimile on any power of attorney granted, and the signature of the Secretary, and the seal of the Company may be affixed by facsimile to any certif¡cate of any such power and any such power or certificate bearing such facsimile signature and seal shall be valid and binding on the Company. Any such power so executed and sealed and certificate so executed and sealed shall, with respect to any bond of undertaking to which it is attached, continue to be valid and binding on the Company. tN WTTNESS THEREOF, IRONSHORE INDEMNITY lNC. has caused this instrument to be signed by its Director, and its Corporate Seal to be affixed this 2"d day of J uly, 2013.
IRONSHORE INDEMNITY INC.
-ô'þto<" :- SEÀL "
: l9r8 ;
Dåfliel L.
Dire.tor
ACKNOWLEDGEMENT
On this 2nd day of July, 2013, before me, personally came Daniel L. Sussman to me known, who being duly sworn, did depose and say that he is the Director of lronshore lndemnity lnc., the corporation described in and which executed the above instrumenu that he executed said instrument on behalf of the corporat¡on by authority of his office under the By-laws of said corporation.
ÂJ.IY TÅ\tTR
Not6ry Public- State ofTÊnne3see
ÞaYidBon County
Lly Commi33ion Expires 07-t&.19
Public
CERTIFICATE
l, the undersigned, Secretary of IRONSHORE INDEMNITY lNC., a Minnesota Company, DO HEREBY CERTIFY that the original Power of Attorney of which the foregoing is a true and correct copy, ¡s in full force and effect and has not been revoked and the resolut¡ons as set forth are now in force. ."."È!:d*!;"o
-_- .¡ * "r 'z
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=:ffi¡: i- ". úE ...' _-- ,,,hn,n$.
BY
s¡sned and seale¿ at tr¡st$av or
..incr6-
.d."*""*fra. _ ahL
1919
t fìhêdtr
\l^-lg 20&-.
t
Paul 5. Giordano
secfÉtãry
"WARNING: Any person who knowingly and with ¡ntent to defraud any insurance company or other person, files and application for insurance or statement of claim conta¡ning any materially false info¡mation, or conceals for the purpose of misleading information concerning any fact mater¡al thereto, comm¡ts a fiaudulent insurance act, which is a crime and subjects such person to crim¡nal and civ¡l penalt¡es,"
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RIV #4830-8901-9593 v1
DRAFT
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
(Document exempt from recording fees
pursuant to Cal. Gov. Code § 27383)
CITY OF HEMET
Attn: City Manager
445 East Florida Avenue
Hemet, California 92543
THIS SPACE FOR RECORDER’S USE ONLY
SUBDIVISION IMPROVEMENT AGREEMENT
FINAL TRACT MAP 33825-1
By and Between
THE CITY OF HEMET,
a municipal corporation
and
Richmond American Homes, a California Corporation
DATED August 9, 2022
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RIV #4830-8901-9593 v1
DRAFT
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SUBDIVISION IMPROVEMENT AGREEMENT
FINAL TRACT MAP 33825-1
This Subdivision Improvement Agreement (“Agreement”) is entered into as of this 9th day of August, 2022 by and between the City of Hemet, a municipal corporation (“City”) and Richmond American Homes, a California corporation (“Builder”). City and Builder are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties.”
RECITALS
A. City of Hemet has previously approved Tract Map No. 33825-1 on September 28, 2016, along with proper and sufficient security.
B. McSweeny Recovery Acquisition, LLC, a Delaware Limited Liability Company, (“Developer”) has not completed all of the work or made all of the Public Improvements required by the Subdivision Map Act (Government Code sections 66410 et seq.), (“Map Act”) the City Ordinances, the conditions of approval for Tract No. 33825-1, or other ordinances, resolutions, or policies of City requiring construction of improvements in conjunction with the subdivision of land.
C. Builder has acquired the land known as Tract Map 33825-1 from Builder.
D. The City desires to enter into this Agreement amending and superseding the Subdivision Improvement Agreement by and between the City of Hemet, a municipal corporation and Builder, also known as Riverside County Recorder Office Document No. 2016- 0436392 (“Original Subdivision Improvement Agreement”).
E. Builder has not completed all of the work or made all of the Public Improvements required by the Subdivision Map Act (Government Code sections 66410 et seq.), (“Map Act”) the City Ordinances, the conditions of approval for Tract No. 33825-1, or other ordinances, resolutions, or policies of City requiring construction of improvements in conjunction with the subdivision of land.
F. Pursuant to City Ordinances and the applicable provisions of the Map Act, Builder and City enter into this Agreement for the timely construction and completion of the Public Improvements and the furnishing of the security therefor, acceptable to the City Engineer and City Attorney, for Tract Map No. 33825-1.
G. City has authority to enter into this Subdivision Improvement Agreement pursuant to Government Code Sections 66499 – 66499.10.
H. Pursuant to Government Code Section 66499, Builder’s execution of this Agreement and the provision of the security are made in consideration of City’s approval of the final map for Tract Map No. 33825-1.
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RIV #4830-8901-9593 v1
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DEFINED TERMS
“Builder” shall mean Richmond American Homes, a California corporation. The term “Builder” shall also include all assignees, to the extent permitted under this Agreement, of the rights and obligations of Builder under this Agreement, and any successor-in-interest to Builder having a legal and/or equitable interest in the Property.
“Developer” shall mean McSweeny Recovery Acquisition, LLC, a Delaware Limited Liability Company. The term “Developer” shall also include all assignees, to the extent permitted under this Agreement, of the rights and obligations of Developer under this Agreement, and any successor-in-interest to Developer having a legal and/or equitable interest in the Property. “Estimated Costs” shall mean the City Engineer’s approximation of the actual cost to construct the Public Improvements, including the replacement cost for all landscaping. “Litigation Expenses” shall mean all costs and expenses, to the extent reasonable in amount, actually and necessarily incurred by a party in good faith in the prosecution of an action or proceeding, including, but not limited to, court costs, filing, recording, and service fees, copying costs, exhibit production costs, special media rental costs, attorneys’ fees, fees for investigators, witness fees (both lay and expert), travel expenses, deposition and transcript costs and any other cost or expense, the award of which a court of competent jurisdiction may determine to be just and reasonable.
“Map Act” shall mean the Subdivision Map Act, Government Code Sections 66410 et seq. “Property” shall mean the all of the real property contained within the boundaries of Tract Map No. 33825-1 located in the City of Hemet, California, as is more particularly described in the legal description and parcel diagram attached hereto and incorporated hereby by reference at Attachment “A”.
“Public Improvements” shall include, but not be limited to, recertification of rough graded pads, finish grade, repair existing streets, curbs and gutters, sidewalks, water systems, sanitary sewers, utilities, and drainage facilities (if any), landscaping, street lights and all other facilities required to be constructed and dedicated to the City or other public entity as conditions of approval of Tentative Tract Map No. 33825-1 and as shown in detail on the plans, and specifications which have been approved by the City and incorporated into Tract Map No. 33825-1. The Parties agree that the Public Improvements to be completed by Builder are more specifically described in the diagram or plan attached hereto and incorporated herein by reference as Attachment “B.
Notwithstanding, Attachment “B”, Builder shall remain obligated to construct and complete all of the Public Improvements required as conditions of approval for Tract Map No. 33825-1, a full copy of which is on file with and may be obtained from the Engineering Department of the City of Hemet.
“Required Insurance” shall mean the insurance required to be maintained by Builder under Section 17.
“Security” shall mean surety bonds in the amounts and under the terms of Section 12 or other security approved by City Engineer or City Attorney.
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RIV #4830-8901-9593 v1
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“Tract No 33825-1.” shall mean the final map prepared and approved by the City for tentative tract map no. 33825-1.
“Warranty” shall mean the one year period following completion of the Public Improvements by Builder and the acceptance of the Public Improvements by the City in which Builder warrants and guarantees all Public Improvements.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the parties and contained here and other consideration, the value and adequacy of which are hereby acknowledged, the parties agree as follows:
1. SUPERSESSION. This Agreement supersedes and replaces the Original Subdivision Improvement Agreement in its entirety. Upon execution of this Agreement by the Builder, the Original Subdivision Improvement Agreement shall be of no further force and effect unless reinstated.
2. EFFECTIVENESS. This Agreement shall not be effective unless and until all four (4) of the following conditions are satisfied in the order provided:
2.1 Security. Builder provides City with the Security of the type and in the amounts required by this Agreement;
2.2 Final Map and Agreement Approval. The City Council of the City of Hemet (“City Council”) previously approved the final map for Tract Map No. 33825-1 and now approves this Agreement;
2.3 Record Agreement. Builder and City execute the Agreement and City records this Agreement in the Recorder’s Office of the County of Riverside; and If the above described conditions are not satisfied in the order, manner and within the time provided under this Agreement, this Agreement shall automatically terminate without need of further action by either City or Builder.
3. PUBLIC IMPROVEMENTS. Builder shall construct or have constructed at its own cost, expense, and liability the Public Improvements, as defined herein, within the time and in the manner required under this Agreement. Construction of the Public Improvements shall include any transitions and/or other incidental work deemed necessary for drainage or public safety. The Builder shall be responsible for the replacement, relocation, or removal of any component of any irrigation water or sewer system in conflict with the construction or installation of the Public Improvements. Such replacement, relocation, or removal shall be performed to the complete satisfaction of the City Engineer and the owner of such water or sewer system. Builder further promises and agrees to provide all equipment, tools, materials, labor, tests, design work, and engineering services necessary or required by City to fully and adequately complete the Public Improvements.
3.1 Prior Partial Construction of Public Improvements. Where construction of any Public Improvements has been partially completed prior to this Agreement,
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RIV #4830-8901-9593 v1
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Builder agrees to complete such Public Improvements or assure their completion in accordance with this Agreement.
3.2 Permits; Notices; Utility Statements. Prior to commencing any work, Builder shall, at its sole cost, expense, and liability, obtain all necessary permits and approvals and give all necessary and incidental notices required for the lawful construction of the Public Improvements and performance of Builder’s obligations under this Agreement. Builder shall conduct the work in full compliance with the regulations, rules, and other requirements contained in any permit or approval issued to Builder. Prior to commencing any work, Builder shall file a written statement with the City Clerk and the City Engineer, signed by Builder and each utility which will provide utility service to the Property, attesting that Builder has made all deposits legally required by the utility for the extension and provision of utility service to the Property.
3.3 Pre-approval of Plans and Specifications. Builder is prohibited from commencing work on any Public Improvement until all plans and specifications for such Public Improvement have been submitted to and approved by the City Engineer, or his or her designee.
Approval by the City Engineer shall not relieve Builder from ensuring that all Public Improvements conform with all other requirements and standards set forth in this Agreement.
3.4 Quality of Work; Compliance With Laws and Codes. The construction plans and specifications for the Public Improvements shall be prepared in accordance with all applicable federal, state and local laws, ordinances, regulations, codes, standards, and other requirements. The Public Improvements shall be completed in accordance with all approved maps, plans, specifications, standard drawings, and special amendments thereto on file with City, as well as all applicable federal, state, and local laws, ordinances, regulations, codes, standards, and other requirements applicable at the time work is actually commenced.
3.5 Standard of Performance. Builder and its contractors, if any, shall perform all work required to construct the Public Improvements under this Agreement in a skillful and workmanlike manner, and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Builder represents and maintains that it or its contractors shall be skilled in the professional calling necessary to perform the work. Builder warrants that all of its employees and contractors shall have sufficient skill and experience to perform the work assigned to them, and that they shall have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the work, and that such licenses, permits, qualifications and approvals shall be maintained throughout the term of this Agreement.
3.6 Alterations to Improvements. All work shall be done and improvements made and completed as shown on approved plans and specifications, and any subsequent alterations thereto. If during the course of construction and installation of the Public Improvements it is determined that the public interest requires alterations in the Public Improvements, Builder shall undertake such design and construction changes as may be reasonably required by City. Any and all alterations in the plans and specifications and the Public Improvements to be completed may be accomplished without giving prior notice thereof to Builder’s surety for this Agreement.