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Subdivision Improvement Agreement
Villages of Patterson Triplexes Phase 1
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
CITY OF PATTERSON
1 Plaza, 2nd Floor
Patterson, CA 95363
Attention: City Clerk
Exempt from recording fees
(Gov. Code §§ 6103 and 27383)
(Space above this line for Recorder’s use)
Assessor’s Parcel Numbers: A portion of 047-031-059
SUBDIVISION IMPROVEMENT AGREEMENT
VILLAGES OF PATTERSON TRIPLEXES – PHASE ONE
This SUBDIVISION IMPROVEMENT AGREEMENT (“Agreement”) is made and deemed effective as of , 2022, by and between the City of Patterson, a California municipal corporation (“City”) and TRIVO, LLC, a California limited liability company (“Subdivider”). City and Subdivider may herein be referred to individually as a “Party” and collectively as the “Parties”. There are no other parties to this Agreement.
RECITALS
A. Subdivider owns a tract of land consisting of approximately 7.13 gross acres, lying in the City of Patterson, County of Stanislaus, California, known as “Villages of Patterson Triplexes Phase One”, more particularly described as a portion of Stanislaus County Assessor Parcel Number 047-031-059 and shown in more detail on the legal description attached hereto as Exhibit A (the “Property” or the “Subdivision”).
B. On December 12, 2006, the City Council of the City of Patterson (“City Council”) adopted Resolution 2006-122, approving a number of entitlements related to the master planned community known as the Villages of Patterson (“VOP”), which encompasses the Subdivision, including, but not limited to: (1) the VOP Development Plan; (2) Vesting Tentative Subdivision “A” and “B” Maps (together, the “Tentative Map”); (3) the VOP Conditions of Approval; and (4) an environmental impact report, statement of overriding considerations and mitigation monitoring plan in accordance with CEQA for the VOP Development Plan.
C. On December 19, 2006, the City Council adopted Ordinance No. 681, approving a Development Agreement by and between the City of Patterson and Northeast Territories, LP and Relating to the Development known as “The Villages of Patterson” at Patterson, California, and {CW117401.3} Page 2 of 19
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on October 15, 2018, Subdivider and City entered into an Operating Memorandum to memorialize certain revisions to implement and update the 2006 Development Agreement (together, the “VOP Development Agreement”).
D. The Tentative Map and Final Map are subject to the Subdivision Map Act (Gov.
Code, § 66410 et seq.), City’s ordinances and regulations related to the filing, approval, and recordation of subdivision maps, the VOP Conditions of Approval, and other relevant conditions contained in Resolution 2006-122 (and any amendments thereto) (together, the “Subdivision Laws”). The Tentative Map is also subject to the terms, conditions and obligations contained in the VOP Development Agreement, and development within the Subdivision must be in accordance with the VOP Development Plan.
E. Complete improvement plans for the Property designating the construction, installation, and completion of certain public improvements, including, but not limited to, improvements in streets, alleys, water mains, sanitary sewers, storm drain systems, sidewalks, bike paths, easements and other rights-of-way as are deemed necessary by the City for the general use of residents of the Subdivision have been prepared by Subdivider and approved by the City Engineer or his designee (“Improvement Plans”), consistent with the Subdivision Laws, the Development Agreement, VOP Development Plan and Tentative Map.
F. Subdivider has submitted a proposed final map for the Property, reduced copies of which are attached hereto as Exhibit B (the “Final Map”).
G. In order for City to approve and record a Final Map for the Subdivision, Subdivider must either complete all of the improvements required by the Improvement Plans for the Final Map (“Improvements”), or execute an agreement with City to complete the Improvements for that Final Map within a specified period.
H. In order for City to approve and record a Final Map for the Subdivision, Subdivider desires to enter into this Agreement, whereby Subdivider promises to install and complete, at Subdivider’s sole cost, expense and risk, all of the Improvements required in connection with the Subdivision as required by the Improvement Plans, including but not limited to grading work and site clearance, the Improvements, and all labor required to complete the Improvements to the satisfaction of City (“Improvement Work”).
I. Subdivider has secured this Agreement by agreeing to deposit securities with City consisting of a cash deposit, bond, or letter of credit in form acceptable to City to secure the installation of remaining onsite and offsite Improvements, and a one-year warranty of workmanship for onsite and offsite improvements, in accordance with the terms provided herein (the “Securities”).
NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the Parties agree as follows:
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AGREEMENT
1. Recitals. The recitals above (“Recitals”) are true and correct and are hereby incorporated into and made part of this Agreement. In the event of any inconsistency between the Recitals and provisions contained in this Agreement, the provisions shall prevail.
2. Effective Date and Term. The City Engineer requires this Agreement to be executed by the Parties prior to Subdivider initiating the Improvements, and Securities for all the remaining onsite and offsite Improvements shall be provided prior to Subdivider initiating the Improvements. This Agreement shall become effective on the date that both Subdivider and City have executed this Agreement (the “Effective Date”), and shall terminate after the release of all Securities, unless this Agreement is terminated in writing, signed and notarized by both Parties and recorded. Notwithstanding the foregoing, this Agreement shall terminate prior to the release of all Securities as to any portion of the Property that City provides a Certificate of Completion relating to such Property or Final Map area, provided that the Warranty shall continue in accordance with this Agreement. Under all other circumstances, this Agreement, including the rights and obligations of the Parties hereunder, shall automatically terminate after any lot within the Subdivision has been conveyed to an individual homebuyer and a Certificate of Occupancy has been issued by City in accordance with this Agreement.
3. Dedication. Except as otherwise provided in this Agreement or in the action of the City Council approving the Final Map, City hereby rejects all lands, rights-of-way and easements offered for dedication on the Final Map or by separate instrument. Such offers, however, shall remain open and constitute irrevocable offers of dedication in accordance with Government Code section 66477.2. All such offers of dedication may be accepted by the City Council, in its sole discretion, as provided in Section 8.
4. Installation of Improvements. Upon execution of this Agreement and deposit of all Securities, Subdivider may proceed with onsite grading, horizontal improvements that do not require the issuance of a building permit for vertical construction, and street work for all approved Improvement Plans. Subdivider agrees to furnish, construct and install at Subdivider’s own expense the Improvements, as shown on the Improvement Plans, which are to be installed to the sole satisfaction of the City Engineer. The Improvement Plans may only be modified by Subdivider subject to prior written approval by the City Engineer.
5. Subdivider’s Obligations. Subdivider shall perform each of the following prior to conveying any legal parcel or lot created by the Final Map for the Subdivision, and prior to City’s issuance of any building permit to construct any residential units within the Subdivision:
A. Complete, at Subdivider’s sole cost and expense in a good and workmanlike manner, all of the Improvements within the Final Map in conformance with the Subdivision Laws, and all applicable standards under City codes and ordinances and City’s general plan related to the Improvements (collectively, the “Improvement Standards”). {CW117401.3} Page 4 of 19
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B. Commence construction of the Improvements within six (6) months from the Effective Date of this Agreement unless otherwise approved or extended in writing by the City Engineer, for good cause, after written application by Subdivider. Subdivider shall notify the City Engineer in writing at least three (3) calendar days before the commencement of construction of the Improvements.
C. Complete all Improvements within twelve (12) months from the Effective Date of this Agreement, unless otherwise approved or extended in writing by the City Engineer, for good cause, after written application by Subdivider. Such application shall state fully the grounds and facts showing good cause for such extension to be granted. In granting any extension of time, the City Engineer may require a new or amended subdivision improvement agreement, or new security, to reflect increases in the costs of constructing the Improvements or other conditions related to the extension of time.
D. Furnish and pay for all necessary equipment, labor and materials to complete the Improvements in conformity with the Improvement Standards.
E. Replace or repair all public improvements, private property, public utility facilities, and surveying or subdivision monuments that are destroyed or damaged in the performance of any work related to this Agreement to the same condition that existed prior to the destruction or damage. Subdivider shall bear the entire cost of replacement or repairs of any and all public or private property damaged or destroyed in the performance of any work related to this Agreement. Any repair or replacement work shall be to the satisfaction, and subject to the approval, of the City Engineer.
F. Provide safe access to City and its agents for inspection of the Improvements.
G. Give good and adequate warning to the public of each and every dangerous condition existing on or near the Improvements, and take reasonable action to protect the public from any such dangerous condition.
H. Perform all construction work related to installing the Improvements between 7:00 a.m. and 6:00 p.m. on weekdays and between 8:00 a.m. and 5:00 p.m. on weekends and legal holidays, unless otherwise approved in writing by the City Engineer.
I. Require each contractor and subcontractor to have a competent foreman on the job at all times when that contractor or subcontractor, or any employee or agent thereof, is performing any work related to the Improvements. Subdivider shall maintain an office with a telephone and Subdivider or a person authorized to make decisions and act for Subdivider in Subdivider’s absence shall be available at the site of any Improvements within three (3) hours of being called at such office by City at any time when construction work is being performed on the Improvements.
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J. Assume all costs for utility and cable television undergrounding or relocation which is not the responsibility of the cable television, electric, telephone or other utility company under the terms of any franchises with City or otherwise imposed upon the utility companies by law.
K. Obtain and comply with all necessary permits and licenses for the construction and installation of the Improvements, give all necessary notices, and pay all fees and taxes required by law.
L. Participate in the formation of a Community Facilities District (“CFD”) to finance ongoing maintenance of public improvements serving the Subdivision pursuant to the Mello-Roos Community Facilities District Act (Gov. Code, § 53311 et seq.), or provide alternate financing of ongoing maintenance obligations in a form acceptable to City, and complete all necessary proceedings to include the Property into such CFD. The Parties acknowledge Subdivider’s satisfaction of this obligation as the Property is subject to CFD 2018-1 and CFD 2018-2.
M. Participate in the formation of a CFD to finance ongoing maintenance and public services related to the Property and the VOP area, and complete annexation, and complete all necessary proceedings to include the Property into such CFD.
N. Complete all necessary proceedings to annex the Property into City CFD 2003-01, pursuant to the VOP Development Agreement.
O. Document Subdivider’s compliance with the School Facilities Funding and Mitigation Agreement, originally entered between NET and Patterson Joint Unified School District (“PJUSD”), or with a separate agreement implementing those portions of Subdivider’s obligations relative to the VOP area. Prior to the issuance of any building permits, Subdivider shall document such compliance through a letter provided by PJUSD.
P. Pay all amounts due at Final Map. Pursuant to the Operating Memorandum, City no longer requires payment of the Water Component of the City’s AB 1600 Capital Facilities Fee at Final Map recordation. Subdivider or its successor shall pay $7,567 per single-family residential unit, $4,540 per multifamily unit, and $6.23 per square foot of light industrial, commercial, and downtown core unit, at building permit issuance.
Q. Pursuant to the Operating Memorandum, prior to Final Map recordation, Subdivider shall certify to City that any offsite dedications, easements or rights-of-way required by adjacent landowners are reasonable and approved by the adjacent landowner. Subdivider shall coordinate with such landowners to execute and provide documentation of any easements, rightsof-way or dedications to City within fifteen (15) business days of receiving a written request for such by City.
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6. Estimated Cost of Improvements. The total cost of the remaining onsite and offsite Improvements, as provided by Subdivider and reviewed and confirmed by the City Engineer, is estimated to be $ 1,439,317 , of which the total cost of offsite Improvements is estimated to be $ 0.00 . Under this Agreement, City will allow Subdivider to bond against remaining onsite and offsite Improvements only, provided that City will not actually record the Final Map until Performance and Payment Securities are provided to City for the remaining onsite and offsite Improvements, and a Warranty Security is provided to City for all onsite and offsite Improvements.
7. Title to Improvements. City shall not accept any property to be dedicated, or the Improvements, unless they are constructed in conformity with the Improvement Plans and Improvement Standards to the satisfaction of the City Engineer. Subdivider shall retain title to, shall be responsible for, and shall bear the risk of loss to, any of the Improvements constructed or installed, until such time as the Improvements are accepted by City. Title to and ownership of the Improvements and any real property to be dedicated shall vest absolutely in City upon completion and acceptance of such Improvements by the City Council pursuant to Section 9 below. City shall not accept the Improvements unless title to the Improvements is entirely free from all liens. Prior to acceptance, at City’s request, Subdivider shall supply City with appropriate lien releases, at no cost to and in a form acceptable to City.
8. Acquisition and Dedication of Easements or Rights-of-Way. If any of the Improvements are to be constructed or installed on land not within the Subdivision or an already existing public right-of-way, no construction or installation shall commence before:
A. The irrevocable offer of dedication or conveyance to City of appropriate rights-of-way, easements or other interests in real property, and appropriate authorization from the property owner to allow construction or installation of the Improvements; or B. The issuance of an order of possession by a court of competent jurisdiction pursuant to the State Eminent Domain Law (Cal. Code Civ. Proc. § 1230.010 et seq.). Subdivider shall comply in all respects with any such order of possession.
9. Final Acceptance of Work. The Improvements on the Final Map, together with the easements, rights-of-way, and other interests in real property, shall be deemed accepted by City only after (A) acceptance by the City Council upon recommendation of the City Engineer, after satisfactory completion and inspection of all Improvements, and (B) issuance of a Certificate of Completion by the City Engineer. City’s acceptance of the dedications shall not constitute a waiver by City of any defects or deficiencies in the Improvements.
10. Damage to Improvements. Subdivider is exclusively responsible for the care and maintenance of, and any damage to, the Improvements, prior to final acceptance as provided in Section 9 above. Subdivider shall replace or repair all Improvements, utility facilities and monuments that are damaged or destroyed for any reason, regardless of the cause of damage or the ownership of the underlying property. Any repair or replacement shall be to the satisfaction of the {CW117401.3} Page 7 of 19
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City Engineer.
11. Repair of Defective Work. If, however, within a period of one (1) year after final acceptance by the City Council of the Improvements, any portion of the Improvements or any work done under this Agreement fails to fulfill any of the requirements of this Agreement, the Improvement Plans or the Improvement Standards, Subdivider shall without delay and without any cost to City, repair, replace or reconstruct any defective or otherwise unsatisfactory part or parts of the Improvements or work. If Subdivider fails to act promptly in accordance with this requirement, or if the exigencies of the situation require repairs or replacements to be made before Subdivider can be notified or correct the situation, then City may, at its option, make the necessary repairs or replacements or perform the necessary work, and Subdivider shall pay to City the actual cost of such repairs within thirty (30) days of the date of billing for such work by City.
12. Securities.
A. Types of Security. Subdivider expressly agrees that City will not record the Final Map until the following securities are provided (collectively, the “Securities”):
i. Performance Security. An amount determined by the City Engineer to be one hundred percent (100%) of the total estimated Cost of Improvements (remaining onsite and offsite only), securing Subdivider’s faithful performance and completion of the Improvements, in a form substantially similar to Exhibit C attached hereto (“Performance Security”).
ii. Payment Security. An additional amount determined by the City Engineer to be not less than one hundred percent (100%) of the total estimated Cost of Improvements (remaining onsite and offsite only), securing Subdivider’s payment to any contractor, subcontractor, person renting or supplying equipment, or furnishing labor and materials related to installing and completing the Improvements, in a form substantially similar to Exhibit D attached hereto (“Payment Security”).
iii. Warranty. An additional amount of ten percent (10%) of the estimated Cost of Improvements, for the guarantee and warranty of the Improvements against any defective work or labor done, or defective materials (offsite and onsite), for a period of one (1) year following their completion and acceptance by City, in a form substantially similar to Exhibit E attached hereto (“Warranty”). Upon Subdivider’s reasonable request, the Warranty may be posted after the Final Map is recorded but immediately prior to all public Improvements being deemed complete and accepted by City.
B. Conditions of Security.
i. Bonds. Any bonds submitted as the Securities shall be executed by a surety company authorized to conduct a surety business in California and shall be in a form as specified by the Subdivision Laws and approved by the City Attorney. {CW117401.3} Page 8 of 19
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ii. Irrevocable. All Securities deposited as bonds under this Agreement shall be irrevocable, shall not be limited as to time (except as to the guarantee and warranty period set forth in Section 11.C.iii below), and shall provide that they may be released, in whole or part, only upon the written approval of the City Engineer, as provided under the Subdivision Laws and subdivision C below. All Securities shall expressly obligate the surety for any extension of time authorized by City for Subdivider’s completion of the Improvements, whether or not the surety is given notice of such an extension by City. No change, alteration or addition to the terms of this Agreement or the plans and specifications incorporated herein shall in any manner affect the obligation of the sureties, except as required by the Subdivision Laws. iii. Replacement. If Subdivider seeks to replace any of the Securities, such replacement shall: (1) comply with all requirements of this Agreement; (2) be provided by Subdivider to the City Engineer; and (3) upon written acceptance by the City Engineer, be deemed to be a part of this Agreement. Upon the City Engineer’s acceptance of any replacement Securities, the earlier provided Securities may be released by City.
C. Release of Securities. The Securities required by this Agreement shall be released in accordance with the Subdivision Laws and the following provisions:
i. Performance Security. City shall release or agree to a reduced Performance Security for the Improvements upon City’s acceptance of all dedications or the portions applicable to each Final Map area, or as may otherwise be authorized in accordance with the Subdivision Map Act (Gov. Code, § 66499.7).
ii. Payment Security. City shall release the Payment Security for the Improvements in accordance with the Subdivision Laws. The Payment Security may, six (6) months after the Certificate of Completion is issued by the City Engineer, be reduced to an amount equal to the amount of all claims filed and related to the Improvements of which notice has been given to City. The balance of the Payment Security shall be released upon the settlement of all claims and obligations for which the Payment Security was given. iii. Warranty. The Securities provided for guarantee and warranty of workmanship shall be released after one (1) year following the issuance of a Certificate of Completion for the Improvements. If, however, the City Engineer determines there are defects in the Improvements that require correction pursuant to Section 11 above, and such defects are not corrected within a reasonable time, the City Engineer shall utilize the Securities to make all necessary corrections, including payment of reasonable expenses and fees and attorney’s fees in connection with enforcement of any provision of this Agreement.
D. Records. Evidence of the Securities required by this Agreement shall be kept on file with the City Clerk. If the City Council or City Engineer gives specific, written approval to replace the Securities by another approved security, such replacement Securities shall be filed with the City Clerk and, upon filing, shall be deemed to be incorporated into this Agreement. Upon filing of replacement Securities with the City Clerk, the replaced Securities may {CW117401.3} Page 9 of 19
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be released.
13. Inspections. All Improvements shall be constructed under the inspection of the City Engineer or his or her designees (collectively “City Inspectors”). Subdivider shall at all times maintain safe access for inspection of the Improvements. Upon completion of the Improvements Subdivider may request a final inspection by City Inspectors. The City Engineer shall not issue the Certificate of Completion for the Improvements on a Final Map unless Subdivider has completed the Improvements for that Final Map in accordance with the Improvement Plans, Improvement Standards and Subdivision Laws. If the City Engineer determines that the Improvements have been completed in accordance with the Improvement Plans, Improvement Standards and Subdivision Laws, the City Engineer shall certify the completion of the Improvements to the City Council, to accept or reject in their sole discretion. City bears no liability for any costs or expenses resulting from delays in inspections. City Inspectors shall have the right to inspect the Improvements for a period of twelve (12) months after the Certificate of Completion has been issued. Subdivider shall bear all costs of inspection and certification, including but not limited to the direct costs of all third-party inspection agencies and City inspection consultants.
14. Fees. Subdivider shall maintain a deposit account with City in order to pay all costs incurred by City in processing this Agreement, and all fees imposed in connection with the construction and inspection of the Improvements, including but not limited to the costs of any thirdparty City Inspectors. The fees referred to herein are not inclusive of all City fees, charges or other costs that may be imposed on the Subdivision.
15. Default of Subdivider.
A. Breach. Subdivider shall be deemed to have materially breached this Agreement based on, but not limited to, any of the following occurrences: (i) failure to timely complete construction of the Improvements; (ii) failure to timely cure any defect in the Improvements to the satisfaction of the City Engineer; (iii) failure to timely deposit additional Securities as may be required by this Agreement; (iv) Subdivider’s insolvency, appointment of a receiver, or the filing of any petition in bankruptcy either voluntary or involuntary which Subdivider fails to discharge within thirty (30) days; (v) the commencement of a foreclosure action against the Subdivision or a portion thereof, or any conveyance in-lieu or in avoidance of foreclosure; or (vi) failure to perform any material obligation under this Agreement.
B. Notice of Breach; Default. In the event of any material breach of this Agreement, City may serve written notice upon Subdivider and Subdivider’s surety, if any, of the breach. Subdivider shall have twenty (20) calendar days from receipt of written notice by City to cure any breach. If the breach is not cured, or significant progress towards curing the breach is not made, Subdivider shall be in default.
C. Remedies; Performance by City.
i. In the event the applicable cure period set forth in Section 15.B has expired without such default having been cured or significant progress made, City may thereafter {CW117401.3} Page 10 of 19
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deliver a notice of default to Subdivider and Subdivider’s surety, if any, of the City’s intent to complete the work. If the default remains uncured within twenty (20) calendar days from Subdivider’s receipt of the written notice of default, Subdivider authorizes City to complete all work on the Improvements at the sole expense of Subdivider, and Subdivider authorizes to utilize the Securities to complete all work on the Improvements and to pay all labor costs of contractors, subcontractors and workers related to the Improvements. In the event of default of this Agreement, or abandonment of the Subdivision, City may take over the Improvements and prosecute them to completion, by contract or by any other method City may deem advisable, at the expense of Subdivider, and Subdivider shall be liable to City for any excess cost or damages incurred by City.
In the event City takes over the Improvements or prosecutes the same to completion, City, without liability for so doing, may take possession of, and utilize such materials, appliances, equipment, plant and other property belonging to Subdivider as may be necessary for completion of the Improvements.
ii. City reserves to itself all remedies available to it at law or in equity for breach of Subdivider’s obligations under this Agreement. The right of City to draw upon or utilize the Securities is additional to and not in-lieu of any other remedy available to City. All remedies are cumulative.
iii. Failure of Subdivider to comply with the terms of this Agreement shall constitute consent to the filing by City of a notice of violation against all the lots in the Subdivision or the Final Map as the case may be, or to rescind the approval or otherwise revert the Subdivision to acreage. The remedy provided by this Subsection is in addition to and not in lieu of other remedies available to City, and is not required to implement other available remedies.
Subdivider agrees that the choice of remedy or remedies for Subdivider’s default shall be at the discretion of City.
iv. In the event that Subdivider fails to perform any obligation hereunder, Subdivider agrees to pay all costs and expenses incurred by City in securing performance of such obligations, including but not limited to costs of suit and attorney’s fees, costs of Improvements in the event of failure of performance, and all administrative costs. Such costs and fees shall be a proper charge against the Securities of Subdivider. v. The failure of City to take an enforcement action with respect to a default or breach, or to declare a default or breach, shall not be construed as a waiver of that default or breach or any subsequent default or breach of Subdivider.
D. Lien. In accordance with the Subdivision Laws (Gov. Code § 66499), the recordation of this Agreement creates a lien attached to the property underlying the Subdivision and has the priority of a judgment lien in the amount necessary to complete the Improvements.
16. Environmental Warranty.
A. For purposes of this Agreement, the terms below have the following meanings:
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i. “Environmental Laws” shall mean any federal, state, or local law, rule, regulation administrative or court order, ordinance, regulatory guidance document, standard, or requirements of any government authority regulating, relating to, or imposing liability standards of conduct concerning Hazardous Substances, or that pertains to the protection of human health or the environment, including, but not limited to, the Comprehensive Environmental Response, Conservation and Liability Act of 1980 (42 U.S.C. § 9601 et seq.); the Resource Conservation and Recovery Act of 1976 (42 U.S.C. § 6901 et seq.); the Clean Water Act (33 U.S.C. §§1251 et seq.); the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.); the Hazardous Materials Transportation Act (29049 U.S.C. § 1801 et seq.); the Insecticide, Fungicide and Rodenticide Act (7 U.S.C. § 136 et seq.); the Superfund Amendments and Reauthorization Act (42 U.S.C. § 6901 et seq.); the Clean Air Act (42 U.S.C. § 7401 et seq.); the Safe Drinking Water Act (42 U.S.C. § 300f et seq.); the Solid Waste Disposal Act (42 U.S.C. § 6901 et seq.); the Surface Mining Control and Reclamation Act (30 U.S.C. § 1201 et seq.); the Occupational Safety and Health Act (29 U.S.C. § 655, 657); the California Underground Storage of Hazardous Substances Act (Health and Safety Code § 25280 et seq.); the California Hazardous Waste Control Act (Health and Safety Code, § 25100 et seq.); the California Safe Drinking Water and Toxic Enforcement Act (Health and Safety Code, § 24249.5 et seq.); and the Porter-Cologne Water Quality Control Act (Water Code, § 13000 et seq.); together with any amendments of or regulations promulgated under the statutes cited above.
ii. “Hazardous Substances” or “Hazardous Substance” shall include any hazardous, toxic or dangerous waste, substance or material, pollutant or contaminant, as so defined under any Environmental Laws or any substance which is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise hazardous, or any substance which contains gasoline, diesel fuel or other petroleum hydrocarbons, polychlorinated biphenyls (PCBs), radon gas, urea formaldehyde, asbestos, lead, or electromagnetic waves.
Hazardous Substances include any hazardous or toxic substance, material or waste which is regulated by the State of California, the United States government, or any other governmental authority with jurisdiction over the Property. Hazardous Materials include asbestos and any other hazardous waste or substance which has, as of the date hereof, been determined to be hazardous or a pollutant by the U.S. Environmental Protection Agency, the U.S. Department of Transportation, or any instrumentality authorized to regulate substances in the environment which has jurisdiction over the Property which substance causes the Property (or any part thereof) to be in material violation of Environmental Laws.
B. Subdivider hereby warrants to City that to the best of Subdivider’s knowledge that, as of the time of dedication and the City Council’s consideration of the Certificate of Completion:
i. Subdivider and the property being dedicated are in compliance with all Environmental Laws and are not subject to any existing, pending or threatened investigation by a federal, state, or local governmental authority regarding violations of Environmental Laws. ii. Subdivider and its third party agents, contractors and subcontractors {CW117401.3} Page 12 of 19
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have not used, generated, manufactured, produced, discharged, or released on, under, or about the property to be dedicated, any Hazardous Substance except in accordance with all applicable Environmental Laws.
iii. Subdivider has not caused or permitted the release or discharge of, and has no knowledge of the release, discharge, or presence of Hazardous Substances on the property to be dedicated or the migration of any Hazardous Substances from or to any other property adjacent to, or in the vicinity of, the property to be dedicated.
C. Throughout the term of this Agreement, Subdivider shall give written notice within fifteen (15) days to City of:
i. Any proceeding or investigation by any federal, California, or local governmental authority regarding the presence of Hazardous Substances on the property to be dedicated or the migration thereof from or to any other property adjacent to, or in the vicinity of, the property to be dedicated;
ii. Any claims made or threatened by any third party against City or property to be dedicated regarding any loss or injury resulting from any Hazardous Substances; and
iii. Subdivider’s discovery of any occurrence or condition on any property to be dedicated or any property adjacent to, or in the vicinity of the property to be dedicated that could cause the property to be dedicated or any part thereof to be subject to any restrictions on its ownership, occupancy, use for the purpose for which it is intended, transferability, or suit under any Environmental Law.
17. No Agency Relationship. Neither Subdivider nor any of Subdivider’s agents or contractors are or shall be considered to be agents of City in connection with the performance of Subdivider’s obligations under this Agreement.
18. Other Agreements. Nothing contained in this Agreement shall preclude City from expending monies pursuant to agreements concurrently or previously executed between the Parties, or from entering into agreements with other subdividers for the apportionment of costs of water and sewer mains, or other improvements, pursuant to the provisions of City ordinances providing therefore, nor shall anything in this Agreement commit City to any such apportionment.
19. Indemnity.
A. Indemnity/Hold Harmless. City, and elected and appointed councils, commissions, officers, agents, employees and representatives of City (“City Agents”) shall not be liable and Subdivider agrees to indemnify, hold harmless and defend City and City Agents from any and all claims, costs, and liability for claims of damage, for any property damage or personal injury, including death, which may arise as a result of any negligent acts or omissions by Subdivider or Subdivider’s contractors, subcontractors, agents, or employees in connection with {CW117401.3} Page 13 of 19
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the construction, improvement, or operation, of the Improvements, including all claims, demands, causes of action, liability, or loss because of, or arising out of, in whole or in part, the design or construction of the Improvements. This indemnification and agreement to hold harmless shall extend to injuries to persons and damages or taking of property resulting from the design or construction of the Subdivision and the Improvements as provided herein, and in addition, to injuries to adjacent property owners as a consequence of the diversion of waters from the design or construction of public drainage systems, streets and other Improvements. Acceptance by City of the Improvements shall not constitute an assumption by City of any responsibility for damage covered by this Section. This provision shall survive the termination of this Agreement as it relates to any Final Map for a period of one (1) year following the Certificate of Completion.
B. Indemnity of Project Approval. Subdivider shall defend, indemnify, and hold harmless City and City Agents from any claim, action, or proceeding against City or City Agents to attack, set aside, void, or annul, any approval of City concerning the Subdivision.
Subdivider shall not be required to pay or perform any settlement unless the settlement is approved by Subdivider.
C. Design Defects. After acceptance of the Improvements by City, Subdivider shall remain obligated to eliminate any defect in design or dangerous condition caused by a latent design or construction defect. Provisions of this paragraph shall remain in full force and effect for one (1) year following the City’s Certificate of Completion of the Improvements. It is the intent of this section that Subdivider shall be responsible for all liability for design and construction of the Improvements installed or Improvement Work done pursuant to this Agreement and that City shall not be liable for any negligence, nonfeasance, misfeasance, or malfeasance in approving, reviewing, checking, or correcting any plans or specifications or in approving, reviewing or inspecting any Improvement Work. The Security shall not be required to cover the provisions of this section.
D. No City Liability. City shall not be liable for approving, reviewing, checking, or correcting any plans or specifications or for approving, reviewing or inspecting any Improvement Work. Nothing contained in this section is intended to, or shall be deemed to, limit or waive any protections or immunities afforded by law to City or City Agents for the approval of the plan or design of the Improvements, including but not limited to the protections and immunities afforded by Government Code section 830.6.
20. Insurance. Without limiting Subdivider’s duty to indemnify City, Subdivider or Subdivider’s contractor shall maintain in effect throughout this Agreement a policy or policies of insurance with the specifications and limits of liability specified herein.
A. Proof of Insurance.
i. Subdivider shall provide to City a properly executed certificate of insurance, in a form satisfactory to the City Attorney for commercial general liability coverage from an insurance provider approved by City and licensed by the California Department of Insurance (“Certificates”).
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ii. The Certificates shall provide that such insurance will not be cancelled, reduced in coverage, or allowed to expire without thirty (30) days’ prior written notice to City.
B. Minimum insurance limits. Contractor shall maintain limits no less than:
i. General Liability. Subdivider shall maintain commercial general liability insurance with insurance ratings acceptable to City of not less than A, as shall protect City, City’s Agents, Subdivider, contractors, and subcontractors from claims for damages for personal injury, including death, as well as from claims of property damage which may arise from acts or omissions from Subdivider, contractors, or subcontractors for in relation to this Agreement. The amount of such insurance shall not be less than two million dollars ($2,000,000.00) per occurrence with umbrella liability coverage of not less than two million dollars ($2,000,000.00). Such insurance shall also:
1. Name City and City Agents as insured by endorsement with respect to performance of this Agreement. The coverage shall contain no special limitation on the scope of its protection afforded to the above-listed additional insured; and
2. Be primary with respect to any insurance or self-insurance programs covering City and City Agents.
ii. Automotive Liability Insurance. Subdivider shall ensure that all builders and agents of Subdivider maintain automotive liability insurance covering all motor vehicles, including owned, leased, non-owned, and hired vehicles, used in providing services or performing work under this Agreement for bodily injury and property damage with a limit of not less than two million dollars ($2,000,000.00) for each occurrence. Such insurance shall also:
1. Name City and City Agents as insured by endorsement with respect to performance of this Agreement. The coverage shall contain no special limitation on the scope of its protection afforded to the above-listed additional insured; and
2. Be primary with respect to any insurance or self-insurance programs covering City and City Agents.
iii. Worker’s Compensation Insurance.
1. Subdivider represents to City that they have no obligation to maintain worker’s compensation insurance in accordance with California Labor Code section 3700, as Subdivider has no employees and does not intend to hire any employees throughout the term of this Agreement.
2. In the event any work is sublet, Subdivider shall require its {CW117401.3} Page 15 of 19
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agents, builders and contractors or subcontractors to provide worker’s compensation insurance, with a limit of not less than one million dollars ($1,000,000.00) per occurrence for employer’s liability for all contractor’s employees or subcontractor’s employees.
3. Pursuant to Labor Code section 1861, by executing this Agreement, Subdivider certifies they are aware of the provisions of Labor Code section 3700, which requires every employer to be insured against liability for Workers’ Compensation or to undertake self-insurance in accordance with the provisions of that Code, and Subdivider will comply with such provisions before commencing the performance of the work of this contract.
21. No Vesting of Rights. Performance of this Agreement shall not be construed to vest Subdivider’s rights with respect to any change in any zoning or building law or ordinance.
22. Notices. Any notice or communication required hereunder between City and Subdivider must be in writing, and may be given either personally, by registered or certified mail (return receipt requested), or by Federal Express, UPS or other similar couriers providing overnight delivery. If personally delivered, a notice shall be deemed to have been given when delivered to the Party to whom it is addressed. If given by registered or certified mail, such notice or communication shall be deemed to have been given and received on the first to occur of (a) actual receipt by any of the addressees designated below as the Party to whom notices are to be sent, or (b) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If given by Federal Express or similar courier, a notice or communication shall be deemed to have been given and received on the date delivered as shown on a receipt issued by the courier. Any Party may at any time, by giving ten (10) days written notice to the other Party, designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the Parties at their addresses set forth below:
If to City: City of Patterson
1 Plaza, 2
nd Floor
Patterson, CA 95363
Attn: City Manager
with copy to: City of Patterson
1 Plaza, 2
nd Floor
Patterson, CA 95363
Attn: City Clerk
and White Brenner, LLP
1414 K Street, 3rd Floor
Sacramento, California 95814
Attn: Nubia I. Goldstein, Esq.
Email: [email protected]
{CW117401.3} Page 16 of 19
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If to Subdivider: TRIVO LLC
233 ½ E. Colorado Blvd
Pasadena CA 91101
Attention: Alicia Barclay
Email: [email protected]
23. General Provisions:
A. Governing Law. The validity, interpretation and performance of this Agreement shall be controlled by and construed pursuant to the laws of the State of California.
B. Compliance with Laws. Subdivider, its agents, employees, contractors, and subcontractors shall comply with all federal, state and local laws in the performance of the work required by this Agreement, including but not limited to all Improvement Standards, and all federal, State and local labor laws. Subdivider shall, at its expense, be responsible for obtaining all applicable licenses and permits. In the event it is determined that Subdivider is required to pay prevailing wages for work performed under this Agreement, Subdivider shall pay all penalties and wages as required by the applicable law.
C. Nondiscrimination. Subdivider, its agents, employees, contractors, and subcontractors shall not discriminate, in any way, against any person on the basis of age, sex, race, color, religion, sexual orientation, actual or perceived gender identity, disability, ethnicity or national origin in connection with or related to the performance of this Agreement. Subdivider shall expressly require compliance with the provisions of this Section in all agreements with contractors and subcontractors for the performance of the improvements hereunder.
D. Venue. Venue for any legal proceedings initiated in connection with this Agreement shall be in the Superior Court for the County of Stanislaus.
E. Severability. If any provision of this Agreement is held invalid by a court of competent jurisdiction, or if any provision of this Agreement is rendered invalid or unenforceable according to the terms of any federal or state statute, which becomes effective after the Effective Date of this Agreement, the remaining provisions shall continue in full force and effect and shall be construed to give effect to the intent of this Agreement.
F. Waiver. The waiver by either Party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of the same or a different provision of this Agreement. No Party shall be deemed to have made any such waiver unless it is in writing and signed by the Party so waiving.
G. Approvals by City. Any approval or consent that is to be given by City under this Agreement shall be in writing, and any approval or consent that is not in writing shall not be binding on City.
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H. Integration. Notwithstanding the provisions of Section 5, above, this Agreement, together with its specific references, attachments and Exhibits, constitute all of the agreements, understandings, representations, conditions, warranties and covenants made by and between the Parties with respect to the construction, installation and warranty of the Improvements.
Neither Party shall be liable for any representations made, express or implied, not specifically set forth herein. It is the intention of the Parties that this Agreement shall supersede any prior agreements, discussions, commitments, representations or agreements, written, electronic or oral, between the Parties with respect to the subject matter of this Agreement.
I. Captions. The captions of this Agreement are for convenience and reference only and the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Agreement.
J. Mandatory and Permissive. “Shall” and “will” and “agrees” are mandatory. “May” or “can” are permissive.
K. Successors and Assigns – Covenant Running With the Land. Subdivider shall not assign any of its obligations under this Agreement without the prior written consent of City. Notwithstanding the above, all representations, covenants and warranties specifically set forth in this Agreement, by or on behalf of or for the benefit of any or all of the Parties, shall be binding upon and inure to the benefit of such Party, its successors and assigns. If assignment is permitted, City in its sole discretion may release Subdivider from its obligations so assigned hereunder, and may release any Securities posted by Subdivider to secure any Improvements so assigned; provided, however, that City shall not release any security or undertakings given to secure the performance of any Improvements not assigned.
L. Counterparts. This Agreement may be executed simultaneously and in several counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument.
M. Other Documents. Parties agree that they shall cooperate in good faith to accomplish the objectives of this Agreement and to that end, agree to execute and deliver such other instruments or documents as may be necessary and convenient to fulfill the purposes and intentions of this Agreement.
N. Time is of the Essence. Time is of the essence in this Agreement in each covenant and term and condition herein.
O. Authority. The Parties warrant and represent that they have the power and authority to enter into this Agreement and the names, titles and capacities herein stated on behalf of any entities, persons, states or firms represented or purported to be represented by such entities, persons, states or firms and that all former requirements necessary or required by the state or federal law in order to enter into this Agreement have been fully complied with.
P. Construction and Interpretation. It is agreed and acknowledged by {CW117401.3} Page 18 of 19
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Subdivider that the provisions of this Agreement have been arrived at through negotiation, and that Subdivider has had a full and fair opportunity to revise the provisions of this Agreement and to have such provisions reviewed by legal counsel. Therefore, the normal rule of construction that any ambiguities are to be resolved against the drafting Party shall not apply in construing or interpreting this Agreement.
Q. Advice of Legal Counsel. Each Party acknowledges that it has reviewed this Agreement with its own legal counsel, and based upon the advice of that counsel, freely entered into this Agreement.
R. Attorney Fees and Costs. If any action at law or in equity, including action for declaratory relief, is brought to enforce or interpret any provision of this Agreement, the prevailing Party shall be entitled to an award of reasonable attorney fees and costs, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which such Party may be entitled.
S. Modification; Approvals. This Agreement may be amended only by a written instrument signed by the Parties. Subdivider shall bear all costs of amendments to this Agreement that are requested by Subdivider. Any approval or consent that is to be given by City pursuant to this Agreement shall be in writing, and any approval or consent that is not in writing shall not be binding on City.
T. Exhibits. All exhibits attached hereto are incorporated into this Agreement:
[Signatures on following page]
{CW117401.3} Page 19 of 19
Subdivision Improvement Agreement
Villages of Patterson Triplexes Phase 1
IN WITNESS WHEREOF, this Agreement has been entered into by and between Subdivider and City as of the above-referenced Effective Date.
SUBDIVIDER:
TRIVO, LLC,
a California limited liability company
By:
Name:
Title:
Date:
CITY:
CITY OF PATTERSON, a California
municipal corporation:
By:
Ken Irwin, City Manager
Date: ___________________________
ATTEST:
By:
Aracely Alegre, City Clerk
Date: ___________________________
APPROVED AS TO FORM:
By:
Nubia Goldstein, City Attorney
Date: __________________________
{CW113562.2} {CW117401.3}
California All-Purpose Acknowledgment
State of California )
)
County of )
On , before me , a Notary
Public, personally appeared who proved to
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 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)
(Seal)
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. {CW113562.2} {CW117401.3}
EXHIBIT A
Legal Description
{CW113562.2} {CW117401.3}
EXHIBIT B
Copy of Final Map
R D G GDR ENGINEERING, Inc. OWNER'S STATEMENT CITY CLERK'S STATEMENT TAX COLLECTOR'S STATEMENT CITY ENGINEER'S STATEMENT COUNTY RECORDER'S STATEMENT CITY'S SURVEYOR'S STATEMENT PLANNING COMMISSION'S STATEMENT SURVEYOR'S STATEMENT CLERK OF THE BOARD OF SUPERVISOR'S CERTIFICATE TRIPLEXES PHASE 1 Vil ages of Patterson BEING A SUBDIVISION OF A PORTION OF LOTS 72, 73 AND 74 OF THE PATTERSON RANCH COLONY SUB-TRACT NO. 1 AS SHOWN ON THE MAP RECORDED IN VOLUME 4 OF MAPS, PAGE 40, STANISLAUS COUNTY RECORDS, CITY OF PATTERSON, STANISLAUS COUNTY, CALIFORNIA OMITTED SIGNATURES STATEMENT FEE TITLE DEDICATION NOTARY STATEMENT DO NOT STAMP NOTARY STATEMENT DO NOT STAMP 72 73 73 74 72 73 73 74 71 72
PATTERSON COLONY
SUB TRACT NO. ONE
( 4 - M - 40 ) LOT 72 (4 - M - 40) (27 - S - 11) PATTERSON RANCH UNIT NO. 2 (44 - M - 84) LOT 73 (4 - M - 40) 52 46 40 30 18 28 16 29 17 33 21 32 20 48 65 19 47515049 37 232227262572 1514131211 10 43 39 41 35 4245 3634 44 1 2 3 4 6 7 8 9 LOT "A" 5 53 38 545556 58 57 5960 6973687174677075 6665646362 838281807978777684 88 89 93 94 95 87 86 85 90 91 92 CAMDEN SHIRE PHASE 1 ( 45- M - 21 ) CAMDEN SHIRE PHASE 2 ( 45 - M - 22 ) 34 LOT "A" 56 16 15 14 9 8 7 LOT "B" 13 12 11 10 21 72 61 REMAINDER R DG GDR ENGINEERING, Inc. R
SYCAMORE
AVENUE DETAIL ''A'' BEING A SUBDIVISION OF A PORTION OF LOTS 72, 73 AND 74 OF THE PATTERSON RANCH COLONY SUB-TRACT NO. 1, AS SHOWN ON THE MAP RECORDED IN VOLUME 4 OF MAPS, PAGE 40, STANISLAUS COUNTY RECORDS, SITUATED IN THE CITY OF PATTERSON, STANISLAUS COUNTY, CALIFORNIA TRIPLEXES PHASE 1 Vil ages of Patterson OLIVE AVENUE ENGLISH BIRCH AVENUE DETAIL ''C'' LEGEND MONUMENTATION NOTE GENERAL NOTES BASIS OF BEARINGS DETAIL ''B'' GD LOT "A" 12 REMAINDER SEE SHEET 3 FOR LINE AND CURVE TABLES 72 73 73 74
TTERSON RANCH UNIT NO. 2 (44 - M - 84) 52 46 40 30 18 28 16 29 17 33 21 32 20 48 65 19 47 515049 37 232227262572 1514131211 10 43 39 41 35 4245 3634 44 1 2 3 4 6 7 8 9 LOT "A" 5 53 38 54555657 90 91 92 93 94 95
RLINGTON WAY
CHATHAM LANE WOODSTOCK DRIVE
HELMSLEY LANE
CHESHAM LANE
SUTTON DRIVE
EASTWOOD WAY DARLINGTON WAY
ASHWOOD LANE SCHALI LANE
SUTTON DRIVE LOT "A"
LOT "B" ENGLISH BIRCH AVENUE 15 16 13 12 11 10 14 654321 8 7 9 WIMBLEY PARKWAY PATTERSON RANCH UNIT NO. 2 (44 - M - 84) CURVE TABLE CURVE RADIUS LENGTH CHORD DELTA LINE TABLE LINE DIRECTION LENGTH LINE TABLE LINE DIRECTION LENGTH RADIAL TABLE LINE DIRECTION R DG GDR ENGINEERING, Inc. R GD BEING A SUBDIVISION OF A PORTION OF LOTS 72, 73 AND 74 OF THE PATTERSON RANCH COLONY SUB-TRACT NO. 1, AS SHOWN ON THE MAP RECORDED IN VOLUME 4 OF MAPS, PAGE 40, STANISLAUS COUNTY RECORDS, SITUATED IN THE CITY OF PATTERSON, STANISLAUS COUNTY, CALIFORNIA TRIPLEXES PHASE 1 Vil ages of Patterson CAMDEN SHIRE PHASE 1 (45-M-21) MONUMENTATION NOTE
{CW113562.2} {CW117401.3}
EXHIBIT E
Warranty Bond
Warranty Bond
WHEREAS, the City of Patterson, State of California (“City”), and, __________________ ("Principal") have entered into a subdivision improvement agreement dated (the "Agreement") which is incorporated herein by reference, in which Principal has agreed to warrant and guarantee the installation and maintenance of certain designated public improvements; and WHEREAS, under the terms of the Agreement, Principal is required to file before acceptance of improvements by the City a good and sufficient bond with the City to secure the performance of its warranty and guarantee obligation under the Agreement.
NOW, THEREFORE, Principal and the undersigned as Surety, are held firmly bound unto the City in the sum of ($_______________) to secure the warranty and guarantee of Principal against any defective work or labor or material furnished in connection with the installation and maintenance of the public improvements for a period of one (1) year, as required by the Agreement.
The condition of this obligation is such that, if the Principal shall well and truly make good and protect the City against the results of any work or labor done or materials or equipment furnished which are defective or not in accordance with the terms of the Agreement, which shall have appeared or been discovered within said one (1) year period from and after completion of all work under the Agreement and final acceptance by City of said work, then this obligation shall be null and void; otherwise, it shall be and remain in full force and effect.
The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Agreement or to the work to be performed thereunder or the specifications accompanying the same shall in any way affect its obligations on this bond, and it does hereby waive notice of any change, extension of time, alteration or addition.
SIGNED, SEALED, AND DATED this __________ day of ____________________, ______.
Principal:
By:
Name:
Title:
Surety:
By:
Name:
Title:
(SURETY’S SEAL)