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29121 MSG La Quinta Homes 99COUNCIL/RDA MEETING DATE: September .7, 1999 ITEM TITLE: Approval of Final Map and Subdivision Improvement Agreement for Tract 29121, MSG Enterprises, Inc. AGENDA CATEGORY: BUSINESS SESSION: CONSENT CALENDAR: STUDY SESSION: PUBLIC HEARING: Approve the Final Map and Subdivision Improvement Agreement for Tract 29121, MSG Enterprises, Inc. None. Ku—llillu'Lei None Tract 29121 (Attachment 1) is located on the Winged Foot, within the PGA West Development and consists of 17 residential lots (Attachment 2). This new tract, being developed by MSG Enterprises, Inc., was conditionally approved at the July 20, 1999 City Council Meeting. The developer failed to finalize and submit all the required documents within the 30-day conditional approval process. The developer has submitted the final map in substantial compliance with the tentative map, Subdivision Improvement Agreements and Improvement Security (Attachment 3) and has otherwise satisfied conditions prior to approval of the final map. The alternatives available to the City Council include: 1. Approve the Final Map and Subdivision Improvement Agreement for Tract 29121, MSG Enterprises, Inc.; or 2. Provide staff with alternative direction. 22� TA WDEMCOUNCIU1999\990907z.wpd Respectfully submitted, Chris A. Vogt Public Works Director/City Engineer Approved for submission by: rxxxvz'� /• Thomas P. Genovese, City Manager Attachments: 1. Tract Map 2. Vicinity Map 3. Subdivision Improvement Agreement 223 TAP W D EPT\COUNCIL\ 1999\990907z.wpd ATTACHMENT 1 C*7 52ND. AVE 53RD. AVE 0 }emu W 54TH AVE PGA WEST . 2 S ITE ; DIEMICH RD. AIRPORT BLVD. VICINITY MAP NTS 224 004 E a CS VS- A St 10 Ili A! TI 11��7i11���Y1�YiYlYi J r o lit 1 I I �� m 1 I I L_ -T. J{ I � I i hs � V) a < y r ! f lilt m o >— � b N � �Oil V!, oz I Iti I; 14%1H Q 2 0105 CITY of LA QUI -rA SUBDIVISION IMPROVEMENT AGREEMENT TRACT 29121 THIS SUBDIVISION IMPROVEMENT AGR EMENT (t a "Agreement") is made and entered into this )g day of �U, 19 59 , by and between MSG La Quinta Homes, LLC a California Limited Liability Company, hereinafter referred to as "Subdivider," and the City of La Quinta, a mun�cipal corporation of the State of California, hereinafter referred to as "City." RECITALS: A. Subdivider has prepared and filed a fir al 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. 29121 (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 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 Map for approval by the City Council, Subdivider shall 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 in Exhibit "A", 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 the Improvements, payment of Subdivider's fair share of Improvements which have been or will be constructed by others ("Participatory 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 Participatory Improvements. However, the City may utilize Monumentation Security for performance of or payment for the work in accordance with the Subdivision Map Act. 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. T:\PWDEPT\STAFF\GUZMAN\TRACTS\AGREEMEN.TS\29121.wpd Page 1 of 6 2) Surety bonds, of the form specified in subsection 66499.2 of the California Government Code, issued by a surety or sureties listed in the U.S. Department of Treasury Circular 570 (latest version). 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 (3), 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 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. 5) 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 than 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 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. 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 the 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, bonds and letters of credit as described in Paragraphs 2), 3) and 4) of SECTION 3.B., which require the establishment of evidence of the reliability of the surety or financial institution, the administrative fee shall be One Hundred Fifty Dollars ($150.00). 2) For liens on real property as described in Paragraph 5) of SECTION 3.B., 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). T:\PWDEPT\STAFF\GUZMAN\TRACTS\AGREEMEN.TS\29121.wpd Page 2 of 6 1 3) For other forms of security listed in Section 3 B, above, there will be no administrative fee. E. Participatory Improvements, if any, are identified in Exhibit A. Security for Participatory Improvements shall remain in place until the Participatory Improvements are constructed and actual costs are known and paid by Subdivider, or until Subdivider pays to City the estimated cost of the Participatory Improvements, and shall guarantee the reimbursement by Subdivider of Subdivider's share of the cost of the Participatory Improvements. Payment security and warranty security shall not be required for Participatory Improvements. Upon written demand from City, Subdivider shall deposit cash with City in lieu of or in replacement of security guaranteeing Participatory 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. F. Security shall not expire, be reduced or become wholly or partially invalid for any reason, including non-payment of premiums, modifications of this Agreement and/or expiration of the time for performance stated in this Agreement, without express authorization from City unless the surety provides City with sixty (60) days written notice by registered or certified mail, return receipt requested. G. Security shall be released in the following manner: 1) Performance security shall be released upon the final completion and acceptance or approval, by the City Council of the Improvements 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 Ten Percent (10%) 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 Ten Percent (10%). The City Engineer shall not allow more than two partial reductions of security furnished for any improvement agreement. 3) Participatory Improvement security shall be released upon payment by Subdivider of Subdivider's share of the cost or estimated cost of the Participatory 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 the Improvements. 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 be released one year after final acceptance or approval by the City Council of all Tract Improvements. However, 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, 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 requires or necessitates the acquisition of real property not owned by Subdivider or City, Subdivider shall use its best efforts 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 in a form acceptable to the City Attorney. Said separate agreement shall provide that Subdivider advance to City One Hundred Fifty Percent (150%) of the appraised fair market value of the real property. Any unexpended portion of said advance shall be refunded to Subdivider. Any additional funds required for acquisition of the real property shall be paid by Subdivider to City upon the conveyance of said 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 Conditions of Approval. T:\PWDEPT\STAFF\GUZMAN\TRACTS\AGREEMEN.TS\29121.wpd Page 3 of 6 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. Failure by Subdivider to begin or complete construction of the Improvements within the specified time periods shall constitute cause for City, in its sole discretion and when it deems necessary, to declare Subdivider in default of this agreement, to revise improvement security requirements as necessary to ensure completion of the improvements, and/or to require modifications in the standards or sequencing of the Improvements in response to changes in standards or conditions affecting or affected by the Improvements. Said failure shall not otherwise affect the validity of this agreement or Subdivider's obligations hereunder. 7. Force Maieure. 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 SECTION 3 hereinabove, to cover the period of extension. The value of the securities shall be sufficient to ensure the performance of and payment for Improvements that remain 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 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 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, and any required construction quality documentation not previously submitted. receipt Upon t of said request, the City Engineer or a duly -authorized representative will review the required p P 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, obligations required by the Conditions of Approval and this Agreement have been satisfied, and Subdivider has provided revised plans as required in Paragraph 11, hereinafter, the City Engineer shall recommend acceptance of the 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 shall be resubmitted to the City Engineer. 12. Improvement Warranty. Subdivider hereby guarantees the Improvements to City for a period of one (1) year, beginning on the date of final acceptance of the 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 Securijy. 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, Page 4 of 6 T:\PWDEPT\STAFF\GUZMAN\TRACTS\AGREEMEN.TS\29121.wpd 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 herein under, 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. Severability. 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. 18. General Provisions 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. 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. T:\PWDEPT\STAFF\GUZMAN\TRACTS\AGREEMEN.TS\29121.wpd Page 5 of 6 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. CITY: Thomas P. Genovese, ATTEST: SUBDIVIDER: anager By: - wla��tl&t' VV I Title: 1'r1 A na By: Title: 000, Reviewed and Approved: ':Z0 City Engineer Approved as to Form: a" r City Attorney City of La Quinta 78-495 Calle Tampico La Quinta, CA 92253 760/777-7075 Date MSG La Quinta Homes, LLC 20700 Ventura BLVD, STE 128 Woodland Hills, CA 91364 (818) 710-0911 Date uate Date Myf Date T:\PWDEPT\STAFF\GUZMAN\TRACTSWGREEMEN.TS\29121.wpd Page 6 of 6 Exhibit A SECURITY - TRACT 29121 Except as otherwise provided herein, Subdivider shall furnish performance security and labor & materials security prior to agendization of the Map for approval by the City Council. Improvements designated as "Participatory" have been or will be constructed by others and consists of infrastructure improvements located around the perimeter of the PGA West Specific Plan area required by the Specific Plan including: street, landscaped median, water, sewer, electric power, storm drain, perimeter landscaping, and perimeter sound attenuation wall installed after January 1992. Subdivider will not be held responsible for participatory improvements other than cost participation as outlined in the Conditions of Approval and herein. Monumentation security shall guarantee performance of or payment for the work and shall be utilized or released as specified in Chapter 4, Article 9 of the Subdivision Map Act. As elements of the work are completed, Subdivider may request a maximum of two partial releases of performance security. Partial releases shall be for not less than ten percent (10%) of the total performance security for the tract and shall not reduce total performance security below the amount necessary to complete the Improvements plus ten percent (10%) of the original amount. 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. Labor & materials security shall remain in place until 90 days after all required tract improvements are complete and accepted by the City Council. Improvement Description Performance Labor & Materials Streets & Storm Drainage 72,780 72,780 Grading 39,120 39,120 Offsite Participatory Improvements' 47,680 0 Monumentation 5.000 0 Totals: $164,580 $111,900 improvement item will be paid in cash, to the City for redistribution to the party who constructs the offsite improvements, prior to final acceptance of the tract improvements. The actual amount will not exceed $47,680 ($16,000/gross acre subdivided), but may be reduced to a lower amount if actual costs confirm a lower participation amount. CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No. 5907 State of County of c On 9 before me, _ DATE personally appeared X NAME, TITLE OF OFFICER - E.G., -JANE ;eve C. NAME(S) OF SI NOTARY PUBLIC' ❑ personally known to me - OR - 9 p ved to me on the basis of satisfactory evidence to be the person(g) whose name(s) is/aot subscribed to the within instrument and ac- knowledged to me that he/slae/thee executed the same in his/l,-wr/toer authorized capacity(ips), and that by his/lam/th�lr f OFFICIAL SEAL signature(s) on the instrument the person.(, ,..�. REGENIAHENSLEY or the entity upon behalf of which the O COMM. # 1 107891 Notary Public - Californi RIVERSIDECOUNTY person(s) b eracted, executed the instrument. (�) \ My Commission Ex- fires " a AUGUST 7, 2N,,')C1 WITNESS my hand and official seal. SIGNAIfURE 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 DIVIDUAL 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) DESCRIPTION OF ATTACHED DOCUMENT %.. ",&e - WI-e e__ TITLE OR YPE OF DOCUM NT NUMBER OF XAGES 'T-i -�5; DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE ©1993 NATIONAL NOTARY ASSOCIATION 9 8236 Remmet Ave., P.O. Box 7184 • Canoga Park, CA 91309-7184 *BOND EXECUTED IN DUPLICATE inscqhl�rmo C�I�CUUI BOND NO: 830302S INITIAL. PREMIUM: $19870.00/2YRS. SUBJECT TO RENEWAL. SUBDIVISION IMPROVI?MENTS PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS: That we, MSG LA QUINTA HOMES, LLC --------- -------------- , as Principal, and I)I:Vt:I.OPERS INSURANCE COMPANY, a corporation OIgilllwcd it (Id (l()Ing I)tlslllcss llnder' alld by virtue of the laws oi' the State of California and duly licensed to conduct it general surety I)llsiness in the State ol, California as Surety, are held and finely bound unto CITY OF LA QUINTA as Obligee, in the suns of ONE HUNDRED SIXTEEN THOUSAND NINE HUNDRED AND NO/100 ($ 1169900.00 ) Dollars, for which payment, well and truly to be made, we bind ourselves, our heirs, executors and successors, jointly and severally firmly by these Presents. THE CONDITION OF THE OBLIGATION IS SUCH THAT: WHEREAS, (lie above named Principal, as a condition of the filing of the final subdivision map of (Tract/Parcel) Map No. TRACT #29121 said agreement or agreements. entered into an agreerllent or agreements with said Obligee to complete the improvements specified in NOW THEREFORE, the condition of this obligation is such, that if the above Principal shall well and truly perform said agreement or agreements during the original term thereof or of any extension ol' said term that may be granted by the Obligee with or without notice to the Surety, this obligation shall be void, otherwise it shall remain in full force and effect. IN WITNESS WHEREOF, the seal and signature of' said Principal is hereto affixed and the corporate seal and the name of the said Surety is hereto affixed and attested by its duly authorized Attorney -in -fact at GLENDALE California, this 11TH "PRINCIPAL" day of MSG LA Q TA HOMES LLC /X J - V� -24 AGh44/49 MVA AUGUST "SURETY" DEVELOPE S INSURANCE COMPANY By: R.D. OHNSON Attorney -in -Fact 17780 Fitch It -vine, California 92714 (714) 263-3300 DI 113 Rev. 2/91 ' *BOND EXECUTED IN DUPLICATE VmQ in9'c=%,1C0 BOND NO: 830302S PREMIUM INCLUDED IN PERFORMANCE BOND. SUBDIVISION IMPROVEMENTS LABOR AND MATERIAL BOND KNOW ALL MEN BY THESE PRESENTS: That we, MSG LA QUINTA HOMES, LLC , as Principal. and DEVELOPERS INSURANCE COMPANY, a corporation organized and doing business under and by virtue of the laws of the State of California and duly licensed to conduct a general surety business in the State of California as Surety, are held and firmly bound unto CITY OF LA OUINTA as Obliggee, in the sum of ONE HUNDRED ELEVEN THOUSAND NINE HUNDRED AND NO/ 100-------------------- ($ 111, 900.00 ) Dollars, for which payment, well and truly to be made, we bind ourbelves, our heirs, executors and successors, jointly and severally firmly by these presents. THE CONDITION OF THE OBLIGATION 1S SUCH THAT: WHEREAS, the above named Principal, has entered into an agreement or agreements which are made a part of this bond, with the CITY OF LA QUINTA subdivision designated as (Tract/ Parcel) Map No. by the Government Code of California. TRACT #29121 as Obligee for the improvements in the , as required NOW THEREFORE, the condition of this obligation is such, that if the above Principal fails to make payment to any contractor, his subcontractors, or to persons renting equipment or furnishing labor and materials to them for the improvement required by said agreement or agreements, the Surety on this bond will pay the same, in an amount not exceeding the sum specified in this bond. This bond is executed and filed to comply with Section 66499 through and including Section 66499.10 of the Government Code of California as improvement security, and shall inure to the benefit of any and all contractors, their subcontractors and persons renting equipment or furnishing labor or materials to them for the improvement. Notice of extension of time for completion is waived by the Surety. IN WITNESS WHEREOF, the seal and signature of said Principal is hereto affixed and the corporate seal and the name of the said Surety is hereto affixed and attested by its duly authorized Attorney -in -Fact at California, this 11TH "PRINCIPAL" MSG LA QUINTA HOMES, LLC day of AUGUST GLENDALE , 19 99 "SURETY" DEVELOPERS INSURANCE COMPANY BY: If . D . MHNSON Attorney -in -Fact 17780 Fitch Irvine, CA 92714 (714) 263-3300 FORM DI 112 (Rev. 5/92) 6 OUTSTANDING BOND REPORT Name: MSG La Quinta Homes Tract No. 29121 Date of Contract: July 14, 1999 Required Bond Amounts: Streets/Drainage $72,780 Grading $391120 Monumentation $ 5,000 Offsite Participatory Improvements" $47,680 **(to be paid prior to final acceptance) Dates of Bond Reductions: Outstanding Bonds: Amount: $116,900 $111,900 830302S same performance/labor same performance only performance only ASSIGNMENT AND ASSUMPTION AGREEMENT AND AMENDMENT TO SUBDIVISION IMPROVEMENT AGREEMENT TRACT 29121 This ASSIGNMENT AND ASSUMPTION AGREEMENT AND AMENDMENT TO SUBDIVISION IMPROVEMENT AGR=1120_ "gnmje t & Amendment") is made and entered into as of the day of�y and among the CITY OF LA QUINTA, a municipal corporation of the State of California ("City"), MSG La Quinta Homes, LLC, a California Limited Liability Company, ("Assignor'), and Riviera Villas, LLC, a California Limited Liability Company ("Assignee"). RECITALS A. City and Assignor entered into that certain Subdivision Improvement Agreement, dated July 14, 1999 ("SIA"), pursuant to which Assignor, as the "Subdivider' defined in the SIA, agreed to plan for, install, and construct certain public and/or private improvements on Tract No. 29121 ("Tract"), as more fully described in Exhibit "A" of the SIA ("Improvements"). B. Assignor desires to assign the SIA, and all of Assignor's rights and obligations thereunder, to Assignee and Assignee desires to assume Assignor's position with respect to the SIA and of Assignor's rights and obligations under the SIA subject to the terms of this Assignment & Amendment. C. In connection with the foregoing described assignment and assumption, the City and Assignee have agreed to certain modifications to the SIA as set forth herein to be effective upon full execution of this Assignment & Amendment by all the parties hereto. AGREEMENT NOW, THEREFORE, in consideration of the foregoing Recitals and the covenants and promises hereinafter contained, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Assianment and Assumption. Assignor hereby transfers and assigns to Assignee all of the Assignor's rights, title, and interest in and to, and obligations under, the SIA, and Assignee hereby assumes all rights, title, and interest in and to, and obligations under, the SIA. City hereby consents to the foregoing assignment and assumption. F220 2. Replacement of Improvement Security. Pursuant to the SIA, Assignor has furnished the City security for the Improvements in the form of: (a) A Faithful Performance Bond in the amount of $116,900.00 for the following improvements: Streets/Drainage, Grading, and Monumentation. (b) A Labor and Material Bond in the amount of $111,900.00 for the following improvements: Streets/Drainage and Grading. For purposes of this Assignment & Assumption, such security in the aggregate shall be hereinafter referred to as "Improvement Security." Assignee hereby warrants that within five (5) days of this executed Assignment and Amendment, it shall replace Assignor's Improvement Security with security of its own in an amount as specified in the Amended Subdivision Improvement Agreement. Assignee's security shall be in full compliance with the terms and conditions stated in the SIA for such security. The City agrees that upon receipt of evidence that Assignee has obtained such new security in a form satisfactory to the City, the City shall release the Original Subdivider's Improvement Security. 3. Incorporation of SIA Provisions. The Amended SIA, and each provision therein, unless otherwise modified in writing, is incorporated in this Assignment & Amendment in its entirety and Assignee agrees and warrants that it assumes and is bound by each obligation found in the Amended SIA in the same manner as Assignor prior to this assignment. F220 -2- IN WITNESS WHEREOF, the parties hereto have executed this Assignment & Amendment onf4' -�` day of , 200'I CITY: City of La Quinta 78-495 Calle Tampico La Quinta, CA 92253 (760) 777-7075 6 Thomas P. Genovese ate City Manager ATTEST: (te S. Greek City Clerk ASSIGNOR: MSG La Quinta Homes, LLC 21200 Burbank Blvd, Suite 300 Woodland Hills, CA 91367 Ug �-- 3��& -OY Title: dMa^ay�, P"1144 Date ASSIGNEE: Riviera Villas, LLC 300 E. State Street, Ste Redlands, CA 92373 By: First Pacifica Development 100 Corp. a CA Corporation, Manager 3-JL-v A Date F220 -3- AME R, STATE OF CALIFORNIA }ss. COUNTY OF Riverside } On March 5, 2004 before me Constance Gorsuch personally appeared so xuo . 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 Vagb and official seal. ANC NSTMICE GORSUCH COfMV00n 1357487 way ft4ft - CaNlorn 0 OMWO ountV C*QM CJun 24 3006 • /) /���/ (This area for official notarial seal) Title of Document Assignment and Assumption Agreement and Amendment to Subdivision Date of Document 3/5/04 No. of Pages 3 Other signatures not acknowledged None 3008 (1/94) (General) FirFt Amariran Titla incnranro rn-- CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ss. County of Ui s AV 11 RAkA On (AQ.N-C)^ L O LA-i0"Abefore me, Date personally appeared M L C^ t F ommNiln12�kuy ltbLos Anpantu. S Name and Title of OfBoer (e.g., "Jane Doe, NotQ Publicl d l eAL- Name(s)��oi Signer(s) =Personally known to me ❑ 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. WITNE my han nd official seal. 1 Signauire of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type_,pf Docurpent: 1 e.�k ` e `t K; v�o'Ir-k SJtod1tvlStO✓\ Document Date: 3 115-- 1 0 Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: ❑ Individual Top of thumb here ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attomey-in-Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: 0 1999 National Notary Association - 9360 De Soto Ave., P.O. Box 2402 - Chatsworth, CA 91313.2402 - www riationalnotaryorg Prod. No. 5907 Reorder: Cell Toll -Free 1.800.876-6827 CITY OF LA QUINTA AMENDED SUBDIVISION IMPROVEMENT AGREEMENT TRACT 29121 THIS SUBDIVISI N IMPROVEMENT AGREEMENT (the "Agreement") is made and 20e © into this � day of and between RIVIERA VILLAS, LLC , a California Limited Liability Company, hereinafter referred to as' ISubdivider," and the City of La Quinta, a municipal corporation of the State of California, hereinafter referred to as "City." RECITALS: A. Subdivider has prepared 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. 29121 (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 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 Map for approval by the City Council, Subdivider shall 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 in Exhibit "A", 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 the Improvements, payment of Subdivider's fair share of Improvements which have been or will be constructed by others ("Participatory 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 Participatory Improvements. However, the City may utilize Monumentation Security for performance of or payment for the work in accordance with the Subdivision Map Act. 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. T:\PWDEPT\COUNCIL\2004\03-16-04\29121 \SIA.DOC Page 1 of 6 2 Surety bonds, of the form specified in subsection 66499.2 of the Cali version. Government Code, Y issued b a surety or sureties listed in the U.S. Department of Treasury Circular 570 (latest) 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 andcooffice).nt reliability rating of "R-2" or better on the Investment Data Exchange (of the Los Angeles County Treasurer's 4) Irr evocable letters of credit, issued by one or more financial institutions meeting the require deposit,nt s of Paragraph (3), pledging that the funds necessary to carry out the completion of the improvements are on guaranteed for payment, and constitute a trust fund which is not subject to levy or portion attachment the funds a a nby acre pursuant creditor of e depositor until released by City. Letters the ecwritten demand of City andit shall guarantee that ll or d that written demand need not present the letters of credit well be paid upon hof any documentation of any type as a condition of payment, including proof of loss. The duration ch it ssuch letter and shall shall be for a period of not less than one year from the exileution of the agreement such time that City authorizes its expiration state, on its face, that the letter of credit will be automatically renewed until or until sixty ( 60 days after City receives notice from the financial institution of intent to allow expiration of the letter of ) credit. 5) A lien upon the subdivided property, if City finds that it would not be inithe public Pli arceerest map forwhich to require the installation of the Improvements sooner than two (2) year's after recordation of the finsp of the the improvements are required. The lien shall provide a collateral value of three (3) ti s andme thprove estimated ents thereon fcost or that Improvements and shall include the power of sale th all hexed t menu and appuf the real property, all rtenances thereunto belonging, or in may be erected upon or made thereto, together n wise appertaining, and the reservations, remainders, rents, issues, and profits thereof. The collateral value of the any PP appraisal approved b property shall be established at Subdivider's expense through an app pp Y 6) An instrument of credit from an agency of the state, federal °r local government, when any agency of the financing for the Improvements. of the state, federal, or local government provides at least Twenty Percent( ) 7 When Subdivider is a non-profit organization, security may benegotiable h City or in favor of City, as specified oSectd , of the of the kind approved for securing deposits of public moneys wt on, w th City or a responsible ble escrow agent or trust company. California Government Code, deposited, at City s op C. All securities shall be furnished in accordance with the provisions of Exhibit A. The constructing the Improvements, of the performance security shall equal One Hundred Percent (10by the Citymated cost of Engineer or a duly authorized representative including payment of plan check and permit fees, as estimatedy the tY of the City Engineer. The amount of Payment security shall equal the amount of the amount Warranty rperform e f orsecan shale) equal except as otherwise set forth in Exhibit A, and shall be furnished as a separate security. Ten Percent (10%) of the amount of performance security except as otherwise set forth in Exhibit A. D. At the time of submittal of security, Subdivider shall pay to City administrative afeoes applicableaiver ofto the map) of security provided. Administrative fees shall apply to the besion paid sepnal map, arately crate y for parcelmap different form and/or source rather than to individual security instruments. The fees shallp P (surety or financial institution) of security initially submitted and for substitution of securities but Cell not the requir performance ed for submittal of warranty security if the warranty security is of the same form and from the same sou security it replaces. Administrative fees for security shall be as follows: 1 For certificates of deposit, bonds and letters of credit as described in Paragraphs financial ), 3 a on4) of SECTION 3.B., which require the establishment of evidence of the reliability of the surety or administrative fee shall be One Hundred Fifty Dollars ($150.00). 2) For liens on real property as described in Paragraph 5) of SECTION 3.B., for which d admwilliniprepater e re lien agreements and subordination agreements, administer valuation of the re property agreements over the life of the lien, all of which require legal assistance and financial advice, Subdivider secured but of shall pay to City an administration fee of One Half of One Percent (0.5%) of the estimated cost o theimprovements 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. T:\PWDEPT\COUNCIL\2004\03-16-04\29121 \SIA.DOC Page 2 of 6 E. Participatory Improvements, if any, are identified in Exhibit A. Security for Participatory Improvements main in lace until the Participatory Improvements are constructed and actual costs areknown and hall d paaid by Subdivider, or until Subdivider shall re p pays to City the estimated cost of the Participatory Improvements, the reimbursement by Subdivider of Subdivider's share of the cost of the Participatory Improvements. Payment security and warranty security shall not be required for Participatory Improvements. Upon written demand from City, Subdivider shall deposit cash with City in lieu within 30 daor in lacement of s of the date oft security P guaranteeing Participatory Improvements. If Subdivider demalndeo Subdivider's v der's Surety for payment of said cash and written demand from City, City may present a written Subdivider's Surety shall pay to City the lesser of: 1) the amount demanded, or 2) the amount of the security. F. Security shall not expire, be reduced or become wholly or partially invalid for any reason, includinstated g non- payment of premiums, modifications of this Agreement and/or expiration of the time for performancei written notice Agreement, without express authorization from City unless the surety provides City with sixty (60) days Y registered or certified mail, return receipt requested. G. Security shall be released in the following manner: 1 Performance security shall be released upon the final completion and acceptance or approval, by the City Council of the Improvements subject to the provisions of paragraph B. 2) The City Engineer may authorize partial reduction of performance ess than Ten Percent (10%) of the total application by Subdivider. However, no such reduction shall be for an amount per formance security provided for the faithful performance of the act or work. In no evelus Ten security Percent be reduced below that required to guarantee the completion the reduct reductions of security fui�nished for any improvement agreement. City Engineer shall not allow more than two partial 3 Participatory Improvement security shall be released upon payment by Subdivider of Subdivider's share of the cost or estimated cost of the Participatory Improvements. 4 if City receives no notice of recorded claims of lien; labor and materialse City shallbereceives lease ed n full 90 days after final acceptance and/or approval by the City Council, s of the Improvem If tY any recorded lien, the provisions of the Subdivision Map Act shall apply. Warranty security not utilized during the warranty period shall be released onear after warrfifinal acceptance or approval by the City Council of all Tract Improvements. However, if at the end of the one-year ty ls period, there are one or more outstanding requests by City for performance of :work or provision satisfied or untof il Subdevider r the terms of the warranty, warranty security shall be retained until the outstanding requests has made other arrangements satisfactory to the City Engineer. 4. Permits Re uired. Prior to commencing any phase of work, Subdivider shall obtain permits all prov srequired for that phase of work and pay all required fees. Work performed under a permit or permits s com P Yw ns of the required permits. 5. Off -site Imp rovements. When the construction of one or more of the Improvements requires ornecessitates eucha es the acquisition of real property not owned by Subdivider or City, Subdivider lsuits best effortsbest , acquire such real property at a reasonable price. In the al event that Subdivider is unsuccessful,despite erty at a reasonable price, Subdivider may request in writing that City attempt to acquire re s der ch ref City so agrees al property. Ct propproperty on behalf of may, but is not required to, agree to attempt to acquire such n al form acceptable to the City Attorney. Said separate City and Subdivider shall enter a separate written agreeme of the agreement shall provide that Subdivider advance to City One Hundred Fifty Percent (150 refundedt) Subdivider. appraised Any additionalmarket vale value of the real property. Any unexpended portion of said advancebSubdivider o City upon the conveyance of said real funds required for acquisition of the real property shall be paid y property to Subdivider. In no event shall the failure of Subdivider or City to acquire such re nt to this ty A cuss, waive, or otherwise terminate Subdivider's obligation to construct the applicable improvement pu Conditions of Approval. T:\PWDEPT\COUNCIL\2004\03-16-04\29121 \SIA.DOC Page 3 of 6 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. Failure by Subdivider to begin or complete construction of the Improvements within the specified time periods shall constitute cause for City, in its sole discretion and when it deems necessary, to declare Subdivider in default of this agreement, to revise improvement security requirements as necessary to ensure completion of the improvements, and/or to require modifications in the standards or sequencing of the Improvements in response to changes in standards or conditions affecting or affected by the Improvements. Said failure shall not otherwise affect the validity of this agreement or Subdivider's obligations hereunder. 7. Force Maieure. 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 SECTION 3 hereinabove, to cover the period of extension. The value of the securities shall be sufficient to ensure the performance of and payment for Improvements that remain 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 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 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, 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, obligations required by the Conditions of Approval and this Agreement have been satisfied, and Subdivider has provided revised plans as required in Paragraph 11, hereinafter, the City Engineer shall recommend acceptance of the 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 revision have been made, each separate sheet of the plans shall be Improvements constructed. When necessary rev 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 shall be resubmitted to the City Engineer. 12. Improvement Warranty. Subdivider hereby guarantees the Improvements to City for a period of one (1) year, beginning on the date of final acceptance of the 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 Security. 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. T:\PWDEPT\COUNCIL\2004\03-16-04\29121 \SIA.DOC Page 4 of 6 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 herein under, 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. Severability. 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. 18. General Provisions 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. 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. T:\PWDEPT\COUNCIL\2004\03-16-04\29121 \SIA.DOC Page 5 of 6 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. CITY: City of La Quinta Thomas P. Genovese, City Manager ATTEST: SUBDIVIDER: RIVIERA VILLAS, LLC Local Address 78-371 Highway 111 La Quinta, CA 92253 By. First Pacifica Development Corp. a California Corp. Title: Manager By: 9� Title: , Reviewed and Approve) Approved as to Form: 78-495 Calle Tampico La Quinta, CA 92253 760/777-7075 Date Principal Address 300 E. State Street, Suite 100 Redlands, CA 92373 I� 0 Date V/ ? let) Date Date Date T:\PWDEPT\COUNCIL\2004\03-16-04\29121 \SIA.DOC Page 6 of 6 Exhibit A SECURITY - TRACT 29121 Except as otherwise provided herein, Subdivider shall furnish performance security and labor & materials security prior to agendization of the Map for approval by the City Council. Improvements designated as "Participatory" have been or will be constructed by others and consists of infrastructure improvements located around the perimeter of the PGA West Specific Plan area required by the Specific Plan including: street, landscaped median, water, sewer, electric power, storm drain, perimeter landscaping, and perimeter sound attenuation wall installed after January 1992. Subdivider will not be held responsible for participatory improvements other than cost participation as outlined in the Conditions of Approval and herein. Monumentation security shall guarantee performance of or payment for the work and shall be utilized or released as specified in Chapter 4, Article 9 of the Subdivision Map Act. As elements of the work are completed, Subdivider may request a maximum of two partial releases of performand nce security. Partial releases shall be for not less than ten percent (10%) of the total performance security for the tract shall not reduce total performance security below the amount necessary to complete the Improvements plus ten percent (10%) of the original amount. 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. Labor & materials security shall remain in place until 90 days after all required tract improvements are complete and accepted by the City Council. Improvement Description Streets & Storm Drainage Grading Monumentation Offsite Participatory Improvements' Performance 21,834 11,736 5.000 Totals: $38,570 $47,680 Labor & Materials 72,780 39,120 0 !t111 goo r\ � &A 13g�ri 5b (,%bU 4V&-V^ Nj This improvement item will be paid in cash, to the City for redi _ -ucts the offsite improvements, prior to final acceptance of the tract improvements. The actual amount will not exceed $47,680 ($16,000/gross acre subdivided), but may be reduced to a lower amount if actual costs confirm a lower participation amount. `SST AMER.,� A STATE OF CALIFORNIA }ss. COUNTY OF A4 �4 A I 1 On March 5, 2004 before me Constance Gorsuch personally appeared Bo Kuo personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons) 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 hgnd and official seal. Signature Title of Document GLOG�- Date of Document d Other signatures not acknowledged H wivid ron 0135,MV Ndkn PUbft - C fO COR1f1<t. Junes (This area for official notarial seal) No. of Pages UK 3008 (1 /94) (General) First American Title Insurance Company ASSIGNMENT AND ASSUMPTION AGREEMENT AND AMENDMENT TO SUBDIVISION IMPROVEMENT AGREEMENT TRACT 29121 This ASSIGNMENT AND ASSUMPTION AGREEMENT AND AMENDMENT TO SUBDIVISION IMPROVEMENT AGREEMENT ("Assignme t & Amendment") is made and entered into as of the _,:f- day of 2061 , by and among the CITY OF LA QUINTA, a municipal corporation of the State of California ("City"), MSG La Quinta Homes, LLC, a California Limited Liability Company, ("Assignor"), and Riviera Villas, LLC, a California Limited Liability Company ("Assignee"). RECITALS A. City and Assignor entered into that certain Subdivision Improvement Agreement, dated July 14, 1999 ("SIA"), pursuant to which Assignor, as the "Subdivider" defined in the SIA, agreed to plan for, install, and construct certain public and/or private improvements on Tract No. 29121 ("Tract"), as more fully described in Exhibit "A" of the SIA ("Improvements"). B. Assignor desires to assign the SIA, and all of Assignor's rights and obligations thereunder, to Assignee and Assignee desires to assume Assignors position with respect to the SIA and of Assignor's rights and obligations under the S IA subject to the terms of this Assignment & Amendment. C. In connection with the foregoing described assignment and assumption, the City and Assignee have agreed to certain modifications to the SIA as set fort herein to be effective upon full execution of this Assignment & Amendment by all the parties hereto. AGREEMENT NOW, THEREFORE, in consideration of the foregoing Recitals and the covenants and promises hereinafter contained, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Assignment and Assumption. Assignor hereby transfers and assigns to Assignee all of the Assignor's rights, title, and interest in and to, and obligations under, the SIA, and Assignee hereby assumes all rights, title, and interest in and to, and obligations under, the SIA. City hereby consents to the foregoing assignment and assumption. F220 2. Replacement of Improvement Security. Pursuant to the SIA, Assignor has furnished the City security for the Improvements in the form of: (a) A Faithful Performance Bond in the amount of $116,900.00 for the following improvements: Streets/Drainage, Grading, and Monumentation. (b) A Labor and Material Bond in the amount of $111,900.00 for the following improvements: Streets/Drainage and Grading. For purposes of this Assignment & Assumption, such security in the aggregate shall be hereinafter referred to as "Improvement Security." Assignee hereby warrants that within five (5) days of this executed Assignment and Amendment, it shall replace Assignor's Improvement Security with security of its own in an amount as specified in the Amended Subdivision Improvement Agreement. Assignee's security shall be in full compliance with the terms and conditions stated in the SIA for such security. The City agrees that upon receipt of evidence that Assignee has obtained such new security in a form satisfactory to the City, the City shall release the Original Subdividers Improvement Security. 3. Incorporation of SIA Provisions. The Amended SIA, and each provision therein, unless otherwise modified in writing, is incorporated in this Assignment & Amendment in its entirety and Assignee agrees and warrants that it assumes and is bound by each obligation found in the Amended SIA in the same manner as Assignor prior to this assignment. F220 2 IN WITNESS WHEREOF, the parties hereto have executed this Assignment & Amendment onl°tn- day of 200 CITY: City of La Quinta 78-495 Calle Tampico La Quinta, CA 92253 (760) 777-7075 / 4 Thomas P. Genovese ate City Manager ATTEST: e S. Greek City Clerk ASSIGNOR: MSG La Quinta Homes, LLC 21200 Burbank Blvd, Suite 300 Woodland Hills, CA 91367 3.7 Title: ir1011,(A9k rt*-.k/- Date ASSIGNEE: Riviera Villas, LLC 300 E. State Street, Ste Redlands, CA 92373 By: First Pacifica Development 100 Corp. a CA Corporation, Manager 3--5--0A Date F220 -3- ��� AMEBIC } STATE OF CALIFORNIA }ss. COUNTY OF Riverside } On March 5, 2004 personally appeared before me, Constance Gorsuch Bo Kuo 1 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 Signature. and official seal. AIL- I1NCE 6QRSt1CH ConwrMllk>In 01357687 ,.Nokxy Pubk No caNrorr,rbl � ty Carrxr�. Ju M 2006 (This area for official notarial seal) Title of Document Assignment and 'Assumption Agreement and Amendment to Subdivision improvement ]kgreement: Date of Document 3/5/04 No. of Pages .3 Other signatures not acknowledged None 3008 (1/94) (General) First Amarirnn Titic Inci i.anec r`^. nn..,, CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ss. County of On N�QAVi-Gk^ L 0 . 1,00 [ before me, Date ,, I personally appeared M t, �C^ CornnN dm #t 1 • Notary PubMc - CaNWIft Los Arm Cot* MyC�rn. Etov2. Name and Tile of Officer (e.g., "Jane Doe, d l evL— Name(s) of Signer(s) personally known to me Public") ❑ 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. WITNEY3 my han nd official seal. Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or T e f DM. I Ant: 1 Q:� ` •> v e e `� YP I Sob v �S ��✓� Document Date: X. I !_- n Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: ❑ Individual Top of thumb here ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney -in -Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: 01999 National Notary Association - 9350 De Soto Ave., P.O. Box 2402 - Chatsworth, CA 91313-2402 - www.nationainotary.org Prod. No. 5907 Reorder: Call Toll -Free 1-800-876-6827 OUTSTANDING BOND REPORT Name: MSG La Quinta Homes (SIA assumed on 3/16/04 under Riviera Villas) Tract No. 29121 Date of Contract: July 14, 1999 / March 16, 2004 Required Bond Amounts: Streets/Drainage $72,780 performance/labor Grading $39,120 same Monumentation $ 5,000 performance only Offsite Participatory Improvements* * $47,680 performance only * *(to be paid prior to final acceptance) Dates of Bond Reductions: Perf. bonds reduced to $38,570 by P.W. on 8/15/02 Outstanding Bonds: Insurance Co: American Contractors Indemnity Company Amount: Bond No. $116,900 830302S $ 38,750 (s/13 38,570) 203397 $111,900 $111,900 830302S 203397 Date Cancelled/Released: Replaced w/warranty 3/29/04 Replaced 3/29/04 BOND,NO. 203397 PREMIUM: $775.00 SUBDIVISION IMPROVEMENTS Tract Map No. 29121 PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS: THAT, the City Council of the City of La Quinta has approved the final map for Tract Map No. 29121 , prior to installation of certain designated public improvements required by the Conditions of Approval for the subject map, in accordance with the California Map Act (Government Code Section 66462) WHEREAS, the City Council of the C' of La Quinta, State of California, and FIRST PACIFICA DEVELOPMENT'CORP hereinafter designated as ("principal") have entered into an agreement whereby principal agrees to install and complete certain designated public improvements, which said agreement, dated 5 , 2004 , and identified as Tract Map No. 19 12 1 , is hereby referred to and made a part hereof; and WHEREAS, said principal is required under the terms of said agreement to furnish a bond for the faithful performance of said agreement. NOW, THEREFORE, we, the principal and AMERICAN CONTRACTORS INDEMNITY COMPANY as surety, are held and firmly bound unto the City of La Quinta hereinafter called ("City"), in the penal sum of THIRTY-EIGHT SEVEN HUNDRED FIFTY DOLLARS ($ 38, 750. 00 ) lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, successors, executors and administrators, jointly and severally, firmly by these presents. The condition of this obligation is such that if the above bounded 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 and provisions in the said agreement and any alteration thereof made as therein provided, on his or their part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless the City, its officers, agents and employees, as therein stipulated, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect. As a 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. F201 - Performance Bond Page 1 of 2 BOND NO. 203397 PREMIUM: INCLUDED SUBDMSION IMPROVEMENTS Tract Map No. 29121 LABOR AND MATERIAL. BOND KNOW ALL MEN BY THESE PRESENTS: THAT, the City Council of the City of La Gents has approved the final map for Tract Map No. , prior to installation of certain designated public improtieni wen ts required by the Conditions of Approval for the subject map, in accordance with the Callornis Map Act (Government Code Section 66462) WHEREAS, the City Council of the City of La Quints, State of California. and FIRST PACIFICA DEVELOPMENT CORP herdesignated as "the principal" have entered into an agreement whereby the nclal agrees to install and complete certain designated public improvements, which agreement, dated 5 , 20d+ , and identified as Tract Map No. 29121 , is hereby referred to and made a part hereof, and WHEREAS, under the terns of the agreement, the principal is required before entering upon the performance of the work, to file a good and sufficient payment bond with the City of La Quints to secure the claim to which reference is made in Tide 15 (commencing with Section 3082) of Part 4 of Division 3 of the Civil Code of the State of Cafifomia. NOW, THEREFORE, the principal and the unKlersigned as corporate surety, are held firmly bound undo the City of La Quinta and all contractors, subcontractors, laborers, ialmen, and other persons employed In the performance of the agreement and referred to in Title 15 (commencing with Section 3082) of Part 4 of Division 3 of the Civil Code in the sum orJDNE HUNDRED ELEVEN THOUSAND , NINE HUNDRED DOLLARS ($ 111, 900.00-,1, for materials furnished or labor thereon of any kind, or for amounts due under the Unemployment Insurance Act with respect to this work or labor, that the surety will pay the same in an amount not exceeding the amount hereinabove set forth, and also in case suit is brought upon this bond. will pay, in addition to the face amount thereof, costs and reasonable expenses and fees, i x*jcwq reasonable attorW s fees, incurred by city in successfully enforcing this obligation. to be awarded and fixed by the court, and to be taxed as costs and to be included in the judgment therein rendered. 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 (aDmmenci)g with Section 3082) of Part 4 of Division 3 of the Civil Code, so as to give a right of action to them or their assigns in any suit brought upon #ft bond. Should the condition of this bond be h0/ performed, then this obligation shall become null and void, otherwise it shall be and remain in full force and effect. PX2 - Labor snit Mst W Bond Page 1 of 2