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28150 KSL Land 96CITY OF LA QUINTA SUBDIVISION IMPROVEMENT AGREEMENT THIS SUBDIVISION IMPROVEMENT AGREEMENT (the "Agreement") is made and entered into this day ofal��ra-GL-rt� _, 19 ?t> , by and between KSL Land Corporation, a Delaware Corporation her i after referred to as "Subdivider," and the City of La Quinta, a municipal corporation of the State of California, hereinafter referred to as "City." RECITALS: A. Subdivider has prepiared and filed a final map or parcel map (the "Map") of a unit of land in the City of La Quinta, County of Riverside, which unit of land is known as Tract No. 28150 (the "Tract") pursuant to the provisions of Section 66410, et sec. of the California Government Code (the "Subdivision Map Act"). B. Prior to approval of the Map, Subdivider is required to install or agree to install certain public and private improvements (the "Improvements") C. The requisite improvements have not been installed and accepted at this time. D. It is therefore necessary that Subdivider and City enter into an agreement for the installation of the improvements as provided in Section 66462 of the Subdivision Map Act. NOW, THEREFORE, it is agreed by and between the parties hereto as follows: 1. Improvement Plans. Prior to submittal of the Ma for approval b the City Council, Subdivider shall � �� Y Y furnish original improvement plans meeting the requirements of the City Engineer. 2. Improvements. Subdivider shall construct the public and private street, drainage, utility, landscaping, and other improvements required to be constructed or agreed to be constructed under this Agreement as listed and described in Exhibit "A" (the "Improvements"), and shall bear the full cost thereof. The methods, standards, specifications, sequence, and scheduling of construction shall be as approved by the City Engineer. 3. Improvement Security. A. One class of security to be provided by Subdivider, hereinafter referred to as "performance security," shall assure the faithful performance of this Agreement including construction of required improvements, payment of Subdivider's fair share of improvements deferred for construction by others (deferred improvements), and payment of plan check and permit fees. A second class of security to be provided by Subdivider, hereinafter referred to as "payment security," shall assure the payment of the cost of labor, equipment and materials supplied to construct the Improvements. A third class of security to be provided by Subdivider, hereinafter referred to as "warranty security," shall serve as a guarantee and warranty of the Improvements for a period of one year following the completion and acceptance of the Improvements. Subdivider shall furnish performance and payment security prior to and as a condition of City Council approval of the Map. Subdivider shall provide warranty security after improvements are complete and accepted by the City Council and prior to or concurrently with the final release of performance security. Warranty security shall not be required for monumentation or deferred improvements. As part of the obligation secured by each of the performance security, payment security and warranty security, and in addition to the face amount of each such security, each such security shall include and assure the payment of costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by City in successfully enforcing the obligations thereby secured. B. Improvement security shall conform with Section 66499 of the California Government Code and one or more of the following: 1) A cash deposit with City or a responsible escrow agent or trust company, at City's option. 2) Surety bonds, of the form specified in Section 66499.2 of the California Government Code, issued by sureties listed in the U.S. Department of Treasury Circular 570 (latest version) which lists institutions authorized to issue bonds in the State of California and the bonding limitations of those institutions. 3) Certificates of deposit, in City's name, from one or more financial institutions subject to regulation by the state or federal government and having a financial quality rating of "A" or better and a commitment reliability rating of "R-2" or better on the Investment Data Exchange (of the Los Angeles County Treasurer's office). 4) Irrevocable letters of credit, issued by one or more financial institutions meeting the requirements of Paragraph (C), pledging that the funds necessary to carry out the completion of the improvements are on deposit, guaranteed for payment, and constitute a trust fund which Subdivision Improvement Agreement - Tract 28150 Page 1 of 5 is not subject to levy or attachment by any creditor of the depositor until released by City. Letters of credit shall guarantee that all or any portion of the funds available pursuant to the letters of credit will be paid upon the written demand of City and that such written demand need not present documentation of any type as a condition of payment, including proof of loss. The duration of any such letter of credit shall be for a period of not less than one year from the execution of the agreement with which it is provided and shall state, on its face, that the letter of credit will be automatically renewed until such time that City authorizes its expiration or until sixty (60) days after City receives notice from the financial institution of intent to allow expiration of the letter of credit. 51 A lien upon the subdivided property, if City finds that it would not be in the public interest to require the installation of the improvements sooner that two (2) years after recordation of the final map or parcel map for which the improvements are required. The lien shall provide a collateral value of three (3) times the estimated cost of the improvements secured thereby and shall include the power of sale of the real property, all buildings and improvements thereon, or that may be erected upon or made thereto, together with all hereditaments and appurtenances thereunto belonging, or in any wise appertaining, and the reservations, remainders, rents, issues, and profits thereof. The collateral value of the property shall be established at Subdivider's expense through an appraisal approved by City. 6) An instrument of credit from an agency of the state, federal or local government, when any agency of the state, federal, or local government provides at least twenty percent (20%) of the financing for the improvements to be completed, security may be . 7) When Subdivider is a non-profit organization, security may be negotiable bonds, of the kind approved for securing deposits of public moneys with City or in favor of City, as specified in Section 16430 of the California Government Code, deposited, at City's option, with City or a responsible escrow agent or trust company. C. All securities shall be furnished in accordance with the provisions of Exhibit A. The amount of the performance security shall equal One Hundred Percent (100%) of the estimated cost of constructing the Improvements, including payment of plan check and permit fees, as estimated by the City Engineer or a duly authorized representative of the City Engineer. The amount of Payment security shall equal the amount of the amount of performance security, except as otherwise set forth in Exhibit A, and shall be furnished as a separate security. Warranty security shall equal Ten Percent (10%) of the amount of performance security except as otherwise set forth in Exhibit A. D. At time of submittal of security, Subdivider shall pay to City administrative fees applicable to the form of security provided. Administrative fees shall apply to the subdivision (final map, parcel map or waiver of parcel map) rather than to individual security instruments. The fees shall be paid separately for each different form and/or source (surety or financial institution) of security initially submitted and for substitution of securities but shall not be required for submittal of warranty security if the warranty security is of the same form and from the same source as the performance security it replaces. Administrative fees for security shall be as follows: 1) For certificates of deposit and letters of credit as described in Paragraphs (C) and (D) of SECTION 1, for which establishment of evidence of reliability of the financial institution requires City's membership in the Investment Data Exchange, the administrative fee shall be One Hundred Fifty dollars ($150.00) . 2) For liens on real property as described in Paragraph (E) of SECTION 1, for which City will prepare lien agreements and subordination agreements, administer valuation of the real property and administer the agreements over the life of the lien, all of which require legal assistance and financial advice, Subdivider shall pay to City an administration fee of one half of one percent (0.5 %) of the estimated cost of the improvements secured but not less than Five Hundred dollars ($500.00) nor more than Five Thousand dollars ($5,000.00). 3) For other forms of security listed in Section 3 B, above, there will be no administrative fee. E. Certain Improvements required herein may be deferred for construction by others at a later date. Deferred improvements, if any, are identified in Exhibit A. Deferred improvement security shall remain in place until the deferred improvements are constructed and costs are known, or until City requires or allows Subdivider to furnish cash in place of the security, and shall guarantee the reimbursement by Subdivider of Subdivider's share of the cost of the deferred improvements. Payment security and warranty security shall not be required for improvements deferred for construction by others. Upon written demand from City, Subdivider shall deposit cash with City in lieu of or in replacement of securities guaranteeing deferred improvements. If Subdivider fails to deposit said cash within 30 days of the date of the written demand from City, City may present a written demand to Subdivider's Surety for payment of said cash and Subdivider's Surety shall pay to City the lesser of: 1) the amount demanded, or 2) the amount of the security. Subdivision Improvement Agreement - Tract 28150 Page 2 of 5 F. Security shall be released in the following manner: 1) Performance security, except security for deferred improvements, shall be released upon the final completion and acceptance or approval, by the City Council, of all improvements required to be constructed by Subdivider subject to the provisions of paragraph B. 2) The City Engineer may authorize partial reduction of performance security as work progresses, upon application by Subdivider. However, no such reduction shall be for an amount less than 10 percent of the total performance security provided for the faithful performance of the act or work. In no event shall security be reduced below that required to guarantee the completion of the act or work or obligation secured, plus 10 percent. The City Engineer shall not allow more than two partial reductions of security furnished for any improvement agreement. 3) Deferred improvement security shall be released upon construction of the deferred improvements and payment by Subdivider of Subdivider's share of the cost of the deferred improvements. Subdivider may request, and City may approve or conditionally approve, release of deferred improvement security prior to construction of the deferred improvements upon pre- payment by Subdivider of the estimated cost of the deferred improvements. 4) If City receives no notice of recorded claims of lien, labor and materials security shall be released in full 90 days after final acceptance and/or approval by the City Council, of all improvements required to be constructed by Subdivider. If City receives notice of any recorded lien, the provisions of the Subdivision Map Act shall apply. 5) Warranty security not utilized during the warranty period shall normally be released one year after final acceptance or approval by the City Council of all improvements required to be constructed by Subdivider. If, at the end of the one-year warranty period, there are one or more outstanding requests by City for performance of work or provision of materials under the terms of the warranty, any remaining warranty security shall be retained until the outstanding requests are satisfied or until Subdivider has made other arrangements satisfactory to the City Engineer. 4. Permits Required. Prior to commencing any phase of work, Subdivider shall obtain all permits required for that phase of work and pay all required fees. Work performed under a permit or permits shall comply with all provisions of the required permits. 5. Off -site Improvements. When the construction of one or more of the Improvements required or necessitates the acquisition of real property not owned by Subdivider or City, Subdivider shall use its best efforts to purchase such real property at a reasonable price. In the event that Subdivider is unsuccessful, despite its best efforts, to acquire such real property at a reasonable price, Subdivider may request in writing that City attempt to acquire such real property. City may, but is not required to, agree to attempt to acquire such real property on behalf of Subdivider. If City so agrees, City and Subdivider shall enter a separate written agreement therefor in a form acceptable to the City Attorney. Such agreement shall provide that Subdivider will advance City One Hundred Fifty Percent (150%) of the appraised fair market value of the real property, with any unexpended funds refunded to Subdivider and any additional funds required for City's acquisition paid by Subdivider upon the conveyance of such real property to Subdivider. In no event shall the failure of Subdivider or City to acquire such real property excuse, waive, or otherwise terminate Subdivider's obligation to construct the applicable Improvement pursuant to this Agreement or the tentative map, parcel map or Map conditions of approval (Conditions of Approval). 6. Completion of Improvements. Subdivider shall begin construction of the Improvements within ninety (90) days and shall complete construction within twelve (12) months after the approval of this Agreement. Portions of the Improvements may be completed at a later date, as determined by the City Engineer or as set forth in Exhibit A. 7. Force Majeure. In the event that Subdivider is unable to perform within the time limits herein due to strikes, act of God, or other events beyond Subdivider's control, the time limits for obligations affected by such events will be extended by the period of such events. 8. Time Extension. Subdivider may make application in writing to the City Council for an extension of time for completion of the Improvements. The City Council, in its sole and absolute discretion, may approve or deny the request or conditionally approve the extension with additions or revisions to the terms and conditions of this Agreement. As a condition of the time extension, Subdivider shall furnish securities, similar in form and substance to those required in Article 3 hereinabove, to cover the period of extension. The value of the securities shall be sufficient to insure the performance of and payment for improvement work that remains incomplete at the time of the extension, and to provide warranty security on completed improvements. 9. Survey Monuments. Before final approval of street improvements, Subdivider shall place survey monuments in accordance with the provisions of Sections 66495, et sec. of the Subdivision Map Act and of the La Quinta Municipal Code. Subdivider shall provide the City Engineer written proof that the monuments Subdivision Improvement Agreement - Tract 28150 Page 3 of 5 have been set, evidence of payment and receipt thereof by the engineer or surveyor setting the monuments, and intersection monument tie -outs for monuments set in public streets. 10. Final Acceptance or Approval of Improvements. At the completion of construction and prior to acceptance of the improvements by City, Subdivider shall submit a request for final approval by City. The request shall be accompanied by any required certifications from Subdivider's engineers or surveyors, approval letters from other agencies having jurisdiction over and approval authority for improvements required by this Agreement or the Conditions of Approval of the subdivision, and any required construction quality documentation not previously submitted. Upon receipt of said request, the City Engineer or a duly authorized representative will review the required documentation and will inspect the Improvements. If the Improvements are determined to be in accordance with applicable City standards and specifications, and as provided herein, and Subdivider has provided revised plans as required in Paragraph 11, hereinafter, the City Engineer shall recommend approval of private improvements and acceptance of public improvements by the City Council. 11. Revisions to Plans. When the Improvements have been inspected and approved by the City Engineer, Subdivider shall make any necessary revisions to the original plans held by City so the plans depict the actual Improvements constructed. When necessary revisions have been made, each separate sheet of the plans shall be clearly marked with the words "As -Built," "As -Constructed," or "Record Drawing," the marking shall be stamped by an engineer or surveyor, as appropriate for the improvements thereon, who is licensed to practice in California, and the plans resubmitted to the City Engineer. 12. Improvement Guarantee. Subdivider hereby guarantees the improvements to City for a period of one (1) year, beginning on the date of final acceptance of all tract Improvements by the City Council, against any defective work or labor done, or defective materials furnished, and shall repair or replace such defective work or materials. 13. Release of Securiy. City shall retain and release securities in accordance with the provisions of Section 3 of this agreement. Prior to the release of payment security, the City Engineer may require Subdivider to provide a title report or other evidence sufficient to show claims of lien, if any, that may affect the amount of payment security released. 14. City Right to Cure. If Subdivider fails to perform any obligation hereunder and such obligation has not been performed within sixty (60) days after written notice of default from City, then City may perform the obligation, and Subdivider shall pay the entire cost of such performance by City including costs of suit and reasonable attorney's fees incurred by City in enforcing such obligation. In cases of emergency or compelling public interest, as determined by the City Engineer, the requirement for written notice of default and/or the passage of sixty (60) days shall be deemed waived and all other provisions of this Article shall remain in effect. 15. Indemnification. Subdivider hereby binds itself, its officers, employees, agents, representatives, executors, administrators, guarantors, heirs, and assigns, and agrees to indemnify, defend and hold City and its officers, employees, agents, representatives, and assigns harmless from and against any losses, claims, demands, actions, or causes of action of any nature whatsoever, arising out of or in any way connected with Subdivider's performance hereinunder, including costs of suit and reasonable attorneys' fees. 16. No Modification of Conditions. This Agreement shall in no respect act to modify or amend any provision of the Conditions of Approval. In the event that any requirement or condition of this Agreement is inconsistent with or fails to include one or more provisions of the Conditions of Approval, which document(s) is (are) incorporated herein by reference, the provisions in the Conditions of Approval shall remain in effect and shall control. 17. Severabilitx. In the event that any provision or provisions of this Agreement are held unenforceable, all provisions not so held shall remain in full force and effect. A. All notices pursuant to this Agreement shall be in writing and shall be personally delivered or sent by registered or certified mail, return receipt requested, to the parties at their respective addresses indicated hereon. Notices personally delivered shall be effective upon delivery. Notices mailed as provided herein and sent postage prepaid shall be effective upon the date of delivery or refusal indicated on the return receipt. Either party may change its address for notices hereunder by notice to the other given in the manner provided in this subparagraph. B. The terms, conditions, covenants, and agreements set forth herein shall apply to and bind the heirs, executors, administrators, assigns, and successors of the parties hereto. C. Neither party to this Agreement relies upon any warranty or representation not contained in this Agreement. D. This Agreement shall be governed by and interpreted with respect to the laws of the State of California. Subdivision Improvement Agreement - Tract 28150 Page 4 of 5 E. In the event of any dispute between the parties with respect to this Agreement, the prevailing party shall be entitled to prompt payment of its reasonable attorneys' fees from the non -prevailing party. F. Any failure or delay by either party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies provided for hereunder. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. CITY OF LA QUINTA: ADDRESS: 78-495 Calle Tampico La Quinta, CA 92253 Tom Genovese City Manager SUBDIVIDER: KSL Land Corporation ADDRESS: By: Z& L Title: V ((, P � S C0� By Title: Reviewed and Approved: 56-140 PGA Blvd. La Quinta, CA 92253 Mifec.� 6, 19 Date Approved as to Form: City Attorney Date Subdivision Improvement Agreement - Tract 28150 Page 5 of 5 Exhibit A LIST OF IMPROVEMENTS AND SECURITY AMOUNTS - TRACT 28150 Except as otherwise provided herein, Subdivider shall furnish performance security and payment security prior to City Council approval of the Map. As elements of the work are completed, Subdivider may request a maximum of two partial releases of performance security. Partial releases of performance security will be evaluated and may be granted, in whole or in part, by the City Engineer. Requests for partial releases, setting forth in detail the amount of work completed and the value thereof, shall be made in writing to the City Engineer. Improvement Description Performance Payment Grading, Paving & Drainage $2,200 $2,200 Domestic Water 2,300 2,300 Sanitary Sewer 6,000 6,000 Underground Electric 20,960 20,960 Monumentation 4.000 --Q Totals: $35,460 $31,460 CALIFORNIA TWA n n � ALL-PURPOSE' ACKNOWLEDGEMENT STATE OF CALIFORNIA COUNTY OFy On 0 , before me, DA personally appeared, WA ( 11 'A NAME. TITLE OF OFFICER - E.G.. "JANE DOE. NOTARY PUBLIC" personally known to me (or 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. WITNESS my hand and official seal. (SEAL) (VOTARY PUBLICSIGNATURE 0:r• BARBARA T. LARSH o COMM. #978568 z 4 Notary Public -California _ RIVERSIDE COUNTY p My Commission Exxppires November 22, 1996 t ` OPTIONAL INFORMATION TITLE OR TYPE OF DOCUMENT S r,1"vIrtlaa4 jo�610nmf — DATE OF DOCUMENT NUMBER OF PAGES SIGNERS) OTHER THAN NAMED ABOVE C-1 j 1, W, Executed in One (1) Original SUBDIVISION IMPROVEMENT BOND FAITHFUL. PERFORMANCE (CALIFORNIAi Bond #3916—FP Initial Premium S 532.00 KNOW ALL BY THBSE Pam, That KSL LAND CORPORATION 56-140- PGA Boulevard, LaQuinta, California 92253 as Principa an tl,c FRONTIER PACIFIC INSURANCE COMPANy.6404 Wilshire Blvd . Los An eles , CA 90048 a Corporation orgacuzoi and arcs ng under the laws of the Statcof California and authorized to transact surety businoss in the State of California, as Surety, arc hcld and firmly bound unto City o LaQuinta, California as Obligee, inthe sum of Thirty —Five Thousand Four Hundred Sixty and Noj�00 (S 35 460.00 or the payment whereof, well and truly to be made, said principal and Surety bind themselves, their heirs, administrators. successors and assigns. jointly and severally, firmly by theso presents. THE CONDITION OP THIS OBIWATION IS SUCH, That WHEREAS, the Principal on or of ter February 20, 19 96 entered into a certain Agreement or Contract with the Obligee wherein the Principal agreed to complete the following improvements: Grading, Paving . & •Drainage; Domestic Water; Sanitary Sewer; Underground Electric and Monumentation; Tract No. 28150, City of LaQuinta, California as more fully set forth in said Agreement. NOW, THEMPORK if the Principal shall well and truly perform and fulfill all of the covenants, terms and conditions of the said Agreement, then this obligation shall be null and void; otherwise to remain in full force and effect. Provided however: (1) That as a part of tho obligation eccurcd horoby avid in addition to the fact amount specified therefore, there shall be included costs and reasonable expenses and fees. including reasonable attorney's fees, incurred by Obligee in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered: (2) That the Surety heroby 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 specificationR Accompanying the same shall in anywise affect its obligations on this bond,. and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Agreement or to the work or to the specifications: (3) That no right of action shall accrue hereunder to or for the benefit of any person, firm or corporation other than the Obligee named herein. Signed, sealed and dated January 26, KSL LAND C?,qORAET4N Al I Principal By: 4z,�� 19 96 - FRONTIER PACIFIC INSURANCE COMPANY Bett J.Arffm, Attorney -in -pact 6404 Wilshire Boulevard Los Angeles, California 90048-5510 Agent's Address: Willis Corroon Corporation of 'ems Nashville Office 26 Century Boulevard (37214) P.O. Box 305025 Nashville, Tennessee 37230-5025 SG-8211EP 8190 Printed tn U.J.A. SUBDIVISION IMPROVEMENT BOND LABOR AND MATERIAL (CALIFORNIA) cuted in One (1) Original Bond #3916-FP KNOW ALL BY THSSB pRPSp, M, That KSL LAND CORPORATION 56-140 PGA Boulevard, LaQuinta, California 92253 *FRONTIER PACIFIC INSURANCE COMPANY Los An ales CA 90048 a rporatton organized TmicIed exl. isting e under the laws of the State of California and authorized to transact surety business in the Staff of California, as Surety, are held and firmly bound unto City of La uinta, California tc or the use a it of any and all persons entitled to -file claim under Title 15 commencin wxt of Division 3 of the Civil Code of tha State of California. in the sum of Thirty -One Thousand, 3 82 of art 4 Four Hundred Sixty -and No 100 _____ ________ 00 for the payment whereof, well and truly to be made, said Principal and Surety bind themselves,lth _IrO it a successors and assigns.dmtnistretors, E Address -of Surety jointly Wilshire r Boulevay by rd presents. Los Angeles, California 90048-5510 TBB CONDTTMON OF TMS OBLIGATION is UCH That WFMRBAS, the Principal entered into a certain Agreement or Contract with the Obligee, dated on or ter,),,-,, 20th �Y of February 19 96 ' , wherein the Principel has agreed to complete the following improvements: Grading, Paving & Drainage; Domestic Water as more fully set forth in ,said agreement_ Sanitary Sewer; Underground Electric; Tract 28150, City of LaQuinta, California NOW TBERBFORB, if the Principal shall pay all contractors, subcontractors, laborers, materialmen and other persons cmployed in the performance of thv Agreement, for materials furnished or labor thereon of any kind, or for amounts due under the Unemployment Insurance Act with respect to such work or labor, then this obligation shall be null and void' otherwise, to remain in full force and effect. Provided, however: (1) That said Surety will pay the same in an amount not exceeding the amount hereinafter set forth, and also in case suit is brought upon this bond, will pay, in addition to the fact &mount thcroof, costs and rcusomble expenses and fees, including attorneys fees, incurred by County (or City) in successfully enforcing such oblto beigation, awarded and fixed by the court, and to be tared as costs and to be included in the judgment therein :rendered: (2) That the Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of said Agreement or the speeificlltionc accompanying the same shall in any manner affect its obligations on this bond, and it does hereby waive notice of any such change, extension, alteration or addition- (3) That the time for filing suit on this bond shall bo limited to cix (6) months from date of c improvements as "completion" is defined under applicable sections of the Civil Code of The Staepof oCalifornia. Signed and sealed this KSL LAND CORPORA By: SG-822/EP 121s2 26th day of January 1996 Principal FRONTIER PACIFIC INSURANCE COMPANY Surety 13y Ve y rown Attorney -In -Pact 6404 Wilshire Boulevard Los Angeles, California 90048-5510 Agent's Address: Willis Corroon Corporation of Henn s Nashville Office 26 Century Boulevard P.O. Box 305025 Nashville, Tennessee (37214) 37230-5025 PRINTED IN U-SA. It OUTSTANDING BOND REPORT Name: KSL Land Corporation Tract No. 28150 Date of Contract: February 7, 1996 Required Bond Amounts: Grading/Paving/Drainage - $ 2,200 - performance/labor materials Water - $ 2,300 - (same) Sewer - $ 6,000 - (same) Electric - $ 20,960 - (same) Monumentation - $ 4,000 - performance only Dates of Bond Reductions: Outstanding Bonds: Amount: Bond No. Date Cancelled/Released: $ 35,460 3916-FP $ 31,460 3916-FP