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2007 - 32742 Monterra Holdings - On-Site & Off-Site ImprovmentsCrry of LA QUINTA SUBDIVISION IMPROVEMENT AGREEMENT TRACT MAP NO.32742 ON -SITE IMPROVEMENTS THIS SLI! IVVIS! IMPROVEMENT AGREEMENT (the "Agreement") is made and entered into this a/ day of _�/O//Pi»bci" , 30 4t5b' _, by and between Monterra Holdings, LLC, a Nevada Limited Liability Company, D.B.A. Monterra Investments, LLC, a California Limited Liability Company hereinafter 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 prepared and filed a final map or Tract 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. 32742 (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'l. 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 Gass 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. T1De\elopmeell Se"nces Dixswn\DeveJo -t PMAM%AgleemetlelSAGMM PWaWFe Seasons TM 32742ONSITE_SlAdoc `��" 1d7 B. Improvement security shall conform to 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 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 Tract 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, Tract map or waiver of Tract 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 T\O IWMeMSOMMS 0,smnl lopmenlprgtla preemeMGAVS]AhPmge Wour Seesav5TM32i42CNSITE_SWCoc 2of7 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). 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 T lOsxsbpment Senecas DmsiomDew1opmenl Rgeps%A;—menlsG1A1SIAs in pmpressWwr Seas. TM 32742ONSITE SIA aoc 3dl 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. 6. Completion of Imorovements. 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 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 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, at 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. /Y% T.Oe Iopmenl Seances DmswnlD Iopment PraletleWyeamenblSlAISIAS In PmgnmmAF"Se s TM M74MNSITE_SIXd0c 4of7 ,0{ 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 Improvements constructed. When necessary revisions have been made, each separate sheet of the plans shall be dearly 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. 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. T:VJ Jopment Seme pNsemg vdognent Prge vgreemetletSIAOM,n Pmgm=WQW Seasons TM 32742tONSITE_SIA.Joc 507 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 attomeys' 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: Cityof La Quinta 78-495 Calle Tampico La Quinta, CA 92253 l 75� /1 2/ 0 7 City Manager Date Principal Address . 55.255 Medallist Drive � /4 /, �/ La Quinta, CA 92253 A/o N Kyv�L/J/ J <<C By _a_�2 r,1 OYI.Z007 Date Title: I'll-,r�%P/ By: P 1��iLEIJ O�✓! ,�ia�✓ , 20 a 7 �D � Date / ( �NG Title: �i1i6L64 �' n'�^• � Revievq d and roved: ty E gineer Date ate T\Nw1opment Seances Dinsbn\Dev gxnent PfonZIApreemeMeGXSM in PropreselFour Se s TM 32742XONSITE_SIA We 6of7 Exhibit A ON -SITE SECURITY — TRACT MAP NO.32742 Improvements designated as 'Participatory' have been or will be constructed by others. Security for Participatory Improvements shall remain in place indefinitely until called upon or released by City. 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 Rough Grading & Walls Street and Sidewalk Domestic Water Storm Drain Dry Utilities Sewer Ret Basin & Perimeter Landscape Monumentation Totals Standard 10% Contingency Total Construction Cost Professional Fees, Design 10% Professional Fees, Const 10% Bond Amount $ 289,160 $ $ 319,977 $ $ 159,492 $ $ 61,695 $ $ 60,000 $ $ 135,345 $ $ 211,434 $ $ 6,000 $ $ 1,243,102 $ 124,310 $ 1,367,412 136,741 136,741 $ 1,640,895 T Wevelopmenl Services DivisiwTevelopment Prc ec \Agreements\SIA\41As in PmgmwTour Seasons W 32742W NSITE_SIA tloc 7 of 7 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California , ss. County of iitI C-� I On per: im *ersonally known to me ❑ proved to me on the basis of satisfactory evidence to be the person(64. whose name* ishl subscribed to the within instrument and acknowledged to me that he/shg" executed the same in his/Wr4heic authorized capacity(ree), and that by his/her/their signature*on the instrument the person(s4,or the entity upon behalf of which the person * acted, executed the instrument. b ESS my VAZ�7 official seal. ta ignatu of Notary P.N. - OPTIONAL 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. Attached Document Title or Type of Document Date: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer Signer's Name: i Individual Corporate Officer — Ttle(s): Partner — ❑ Limited ❑ General Attorney -in -Fact Trustee Guardian or Conservator Other: Signer Is Representing: Number of Pages: 01999 Natmal Notary Asamaoon' 9350 De Solo Ave PO box 2Q2 - Ghats j, CA 91313-2i 2 • w %Wmin=W org PrW No 5907 ReoiaerCall TallFreet-800 876E 27 CITY OF LA QUINTA SUBDIVISION IMPROVEMENT AGREEMENT TRACT MAP NO.32742 OFF -SITE IMPROVEMENTS THIS SUBpIVI410N IMPROVEMENT AGREEMENT (the "Agreement") is made and entered into this 01 / �,ff day of /1 /D r/em6�1" , 2' a00 by and between MoMerra Holdings, LLC, a Nevada Limited Liability Company, D.B.A. Montera Investments, LLC, a California Limited Liability Company hereinafter 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 prepared and filed a final map or Tract 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. 32742 (the "Tract") pursuant to the provisions of Section 66410, at 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 Gass 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. �/ t%(J/ T\Dev Il OM Sern s DmumV)ae"pment Pmj tlft emeM SIAISIAs n PfogmnTwf$swaps TM 3274ZOFFSITE_SIA We 1M7 .1 ' 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 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 its 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 riot 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 Tract 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 fumished 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, Tract map or waiver of Tract 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 �U)� TiDevelopmem Servioea Di%� oiiD wbpmert Pmje AgmemenMa SLA\SlAsin PmgmsWow Seasons TM3274ZOFFSrrE_SIAMc V Tor] security i1the 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). 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 Subdividers 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 Ciity 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,^�/ T 1 wlWnnent Sen s DmmonrD wu pnnent PmpctsWpreemenlslSlAISIAs in PropressWeur Seasons TM 32]d2QFFSITE Slkdoc (n Y / 3 of 7 security shall be retained unfit the outstanding requests are satisfied or until Subdivider has made other arrangements satisfactory to the City Engineer. 4. Permits Reauired. 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. 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 specked 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 Clod, 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 Monurrients. 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 Ouinta 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. l T\development Semces DMvcmQevlopment Pmje 5i gwmentMSIAZIAs m Pmgress our Seasons TM K74WFFSITE_SIA Eoc rl f�N 407 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 he,; 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 flans. 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 sheel: 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 Varranty. 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. 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. T Oinoilopmenl Semms Dimmonaiwlopmem Pnij c WgmememslSIMSIAs in Pro mnWwr Seasons TM U74WFFSITE_SIA&c j� 507 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. 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: City of La Quinta 78-495 Calle Tampico La Quinta, CA 92253 Thomasy. Genovese, City Manager ///z//d-7 Date Principal Address 55-255 Medallist Drive La Quinta, CA 92253 By")-C� �J ✓1.7/ D 0 oZ 0 t7 7 n�i mP / Title: %" 1. � r r Date Jp i �T�/Date Title: / ni rcl . wC. Reviewed and proved: ngineer It L 1 Date Date T\Development Seances Dihvont wlopment Pmjec gnsementsOAU^IAs in Ping wTour Sassons TM 3V42WFFSITE_SIA Jac 607 Exhibit A OFF -SITE SECURITY — TRACT MAP NO. 32742 Improvements designated as "Participatory" have been or will be constructed by others. Security for Participatory Improvements shall remain in place indefinitely until called upon or released by City. Monumentation security shall guarantee performance of or payment for the work and shall be utilized or released as specked 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 Street 8' Meandering Sidewalk Median Landscaping Storm Drain Domestic Water Sanitary Sewer Totals Standard 10% Contingency Total Construction Cost Professional Fees & Plans, Design 10% Professional Fees, Const 10% Bond Amount Performance Labor & Materials $ 131,050 $ 131,050 $ 19,200 $ 19,200 $ 16,056 $ 16,056 $ 1,461 $ 1,461 $ 40,925 $ 40,925 $ 4,755 $ 4,755 $ 213,447 $ 213,447 $ 21,345 $ 21,345 $ 234,791 $ 234,791 $ 23,479 $ 23,479 $ 23,479 $ 23,479 281,749 281,749 TADevelopnwnl Services DmsmtDevelopnnent Prager Agwnnen1s1,S1XS1As in ProgressTmr Seasons TM 3274210FFSrrE_SIA doc 7 of J CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California n ss. County of �Ll�sio� On Qia l 1 before me, (�it'U1�YV UM f ff�I NQ�i1Yy (q10� Date Name and Title of On¢er (e ,'Jane Doa, Notary P id') personally appeared � ,��{� ♦TJ�A0 A-ilin:l personally known to me ❑ proved to me on the basis of satisfactory evidence to be the personIN whose nameN is/are. subscribed to the within instrument and acknowledged to me that he/apeitivy executed the same in hisAwiftbair authorized capacity(tee)f and that by hislpexRheir signaturel4on the instrument the person(s) or the entity upon behalf of which the person(.. acted, executed the instrument. NESS my )nda4nofficial seal. S not ry Publm OPTIONAL Though the mforma!lon 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 of Attached Document Title or Type of Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney -in -Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Number of Pages: ®1e39Naaomi Notary Ass iatm-9 'De Soto Ave,PO Box2M2•Cflatswor0,CA913132492-wwwnabom,mWa oy Pmtl No 597 Rennie, Call Toll -Free 1-90PE)7E2] OUTSTANDING BOND REPORT Name: Four Seasons Developer: Monterra Holdings, Inc. Tract No Date of Contract 32742 November 21, 2007 Required Bond Amounts: PM10 Onsite: Grading & Walls Streets & Sidewalk Water Storm Drain Utilities Sewer Ret Basin & Per. Land Monumentation Contingencies Offsite: Streets Sidewalk Median Landscaping Storm Drain Water Sewer Contingencies $ 29,080 $289,160 No L&M required for onsite imp $319,977 $159,492 $ 61,695 $ 60,000 $135,345 $211,434 $ 6,000 $124,310 / $136,741 / $136,741 $131,050 / $131,050 $ 19,200 / $ 19,200 $ 16,056 / $ 16,056 $ 1,461 / $ 1,461 $ 40,925 / $ 40,925 $ 4,755 / $ 4,755 $ 21,345 / $23,479 / $23,479 Bond Company: La Jolla Bank / Bond Safeguard Insurance Outstanding Bonds: . Amount: $ 29,080 $ 281,749 $ 281,749 $1,640,895 Bond No. Savings Amt. 30-03031633 5030162 5030163 5030164 Date Cancelled/Released: SUBDIVISION IMPROVEMENTS Parcel Map No. -19942 BOND NO. 5030162 PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS: THAT, the City Council of the City of La Quinta has approved the final map for Parcel Map No 32742 , prior to installation of certain designated public improvements required by the Conditions of Approval for the subject map, in accordance with the California Map Act (Government Code Section 66462) WHEREAS, the City Council of the City of La Quinta, State of California, and Monterra Holdings, LLC hereinafter designated as ("principal') have entered into an agreement whereby principal agrees to install and complete certain designated public improvements, which said agreement, dated .' , 2002 , and identified as Parcel Map No 32742 , is hereby referred to and made a part hereof, and WHEREAS, said principal is required under the terms of said agreement to furnish a bond for the faithful performance of said agreement. NOW, THEREFORE, we, the principal and Bond Safeguard Insurance Company as surety, are held and firmly bound unto the City of La Quinta hereinafter called ("City"), in the penal sum of Two Hundred Eighty One Thousand Seven ** DOLLARS($ 281,749.00 )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 **Hundred Forty Nine and No/100 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 SUBDIVISION IMPROVEMENTS Parcel Map No. 39742 Bond No. 5030163 LABOR AND MATERIAL BOND KNOW ALL MEN BY THESE PRESENTS: THAT, the City Council of the City of La Quinta has approved the final map for Parcel Map No 32742 , 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 City of La Quinta, State of California, and Moneterra Holdings, LLC hereinafter designated as "the principal" have entered Into an agreement whereby the principal agrees to install and complete certain designated public Improvements, which agreement, dated off. 7 , 200 7 and identified as Parcel Map No 32742 , is hereby referred to and made a part hereof; and WHEREAS, under the terms 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 Quinta to secure the claims to which reference is made in Title 15 (commencing with Section 3082) of Part 4 of Division 3 of the Civil Code of the State of California. NOW, THEREFORE, the principal and the undersigned as corporate surety, are held firmly bound unto the City of La Quinta and all contractors, subcontractors, laborers, materialmen, 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 of Two Hundred Eighty One Thousand Seven Hundred Forty Nine and DOLLARS ($281,749.00 ), for materials furnished or labor thereon of any kind, or for No/100 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, including reasonable attorney' 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 (commencing 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 this bond. Should the condition of this bond be fully performed, then this obligation shall become null and void, otherwise it shall be and remain in full force and effect. F202 - Labor and Material Bond Page 1 of 2 SUBDIVISION IMPROVEMENTS Parcel Map No. 32742 Bond No. 5030164 PERFORMANCE BOND �, Qed5r KNOW ALL MEN BY THESE PRESENTS: THAT, the City Council of the City of La Quinta has approved the fr rra=Tap ror, -IV I a P No 32742 , 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 City of La Quinta, State of California, and Monterra Holdings. LLC hereinafter designated as ("principal") have entered into an agreement whereby principal agrees to install and complete certain designated public improvements, which said agreement, dated , 200 , and identified as Parcel Map No 32742 , 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 Bond Safeguard Insurance Company as surety, are held and firmly bound unto the City of La Quinta hereinafter called ("City"), in the penal sum of One Million Six Hundred Forty Thousand Eight*VOLLARS ($1,640,895.00 ) 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 **Hundred Ninety Five and No/100 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 The surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the agreement or to the work to be,performed thereunder or the specifications accompanying the same shall in any manner 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. In witness whereof, this instrument has been duly executed by the principal and surety above named, on October 1 2007 Monte-rza Holdings, LLC Pr' ipal c (Seal) Signature of Principal %yl a1'_'/AC; Al Title of Signatory Bond Safeguard Insurance Company Surety l p /� (Seal) 'i-t-CLQ,I Signature of Surety Heather A. Beck, Attorney -in -Fact Title of Signatory 1919 S. Highland Ave., Bldg. A -Suite 300 Lombard, IL 60146 Address of Surety 630-495-9360 Phone # of Surety T1aviA Camnhell Contact Person For Surety F201 - Performance Bond Page 2 of 2 POWER OF ATTORNEY AO 27501 Bond SafeguardINSURANCE COMPANY KNOW ALL MEN BY THESE PRESENTS, that BOND SAFEGUARD INSURANCE COMPANY, an Illinois Corporation with its James 1. Moore, here Diaz, Bonnie Kruse, Stephen T. Kazmer, Dawn L. Morgan, ••••' principal office in Lombard, Illinois, does hereby constitute and appoint: Peggy Faust, Kelly A. Jacobs, Elaine Marcus, Jennifer J. McComb, Melissa Schmidt, Joel E. Speckman, Heather A. Beck, Tariese M. Pisciotto its true and lawful Attorney(s)-In-Fact to make, execute, seal and deliver for, and on its behalf as surely, any and all bonds, undertakings or other writings obligatory in nature of a bond. This authority is made under and by the authority of a resolution which was passed by the Board of Directors of BOND SAFEGUARD INSURANCE COMPANY on the 7th day of November, 2001 as follows: Resolved, that the President of the Company is hereby authorized to appoint and empower any representative of the Company or other person or persons as Attorney -In -Fact to execute on behalf of the Company any bonds, undertakings, policies, contracts of indemnity or other writings obligatory in nature of*a bond, $ 2,000,000.00 fo min*Y* dollars .......................}y`•.+`..`*•.*fe Yye• *+` . ... *• F*..... which the Company might execute through its duly elected officers, and affix the seal of the Company thereto. Any said execution of such documents by an Attorney -In -Fact shall be as binding upon the Company as if they had been duly executed and acknowledged by the regularly elected officers of the Company. Any Attorney -In -Fact, so appointed, may be removed for good cause and the authority so granted may be revoked as specified in the Power of Attorney. Resolved, that the signature of the President and the seal of the Company may be affixed by facsimile on any power of attorney granted, and the signature of the Vice President, and the seal of the Company may be affixed by facsimile to any certificate of any such power and any such power or certificate bearing such facsimile signature and seal shall be valid and binding on the Company. Any such power so executed and sealed and certificate so executed and sealed shall, with respect to any bond or undertaking to which it is attached, continue to be valid and binding on the Company. IN WITNESS THEREOF, BOND SAFEGUARD INSURANCE COMPANY has caused this instrument to be signed by its President, and its Corporate seal to be affixed this 7th day of November, 2001. WT�N;l BOND SAFEGUARD INSURANCE COMPANY BY David E. Campbell President ACKNOWLEDGEMENT On this 7th day of November, 2001, before me, personally came David E. Campbell to me known, who being duly sworn, did depose and say that he is the President of BOND SAFEGUARD INSURANCE COMPANY, the corporation described in and which executed the above instrument; that he executed said instrument on behalf of the corporation by authority of his office under the By-laws of said corporation. "OFFICIAL SEAL" MAUREEN K AYE aureen K. Aye o Notary Public, State of Illinois tary Public My Commission Expires 09/21/09 CERTIFICATE I, the undersigned, Secretary of BOND SAFEGUARD INSURANCE COMPANY, An Illinois Insurance Company, DO HEREBY CERTIFY that the original Power of Attorney of which the foregoing is a true and correct copy, is in full force and effect and has not been revoked and the resolutions as set forth are now in force. Signed and Sealed at Lombard, Illinois this 1st Day of - October , 20 07 W�� �Donald D. Buchanan Secretary J. State of. ILLINOIS Countv of. DUPAGE On October 1. 2007, before me, Jennifer J. McComb, a Notary Public in and for said County and State, residing therein, duly commissioned and sworn, personally appeared Heather A. Beck, known to me to be Attorney -in -Fact for Bond Safeguard Insurance Company the corporation described in and that executed the within and foregoing instrument, and known to me to be the person who executed the said instrument on behalf of the said corporation, and he duly acknowledged to me that such corporation executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year stated in this certificate above. OFFICIAL SEAL JENNIFER J MCCOMB NOTARY PUBLIC - STATE OF ILLINOIS MY COMMISSION EXPIRESA9123109 MONTERRA HOLDINGS, LLC P.O. Box 1396 La Quinta, California 92247-1396 (760)702-0648 May 3, 2007 SAVINGS PASSBOOK ACCOUNT NO. 30-03031633 PM-10 Dust Control Deposit Beneficiary: Amount: $29,080.00 City of La Quinta Public Works Department 78-495 Calle Tampico La Quinta, California 92253 To Beneficiary: La Jolla Bank hereby establishes our irrevocable Savings Passbook Account in the amount of Twenty Nine Thousand Eighty Dollars ($29,080.00), in your favor, by order of Monterm Holdings, LLC., P.O Box 1396, La Quinta, CA 92247-1396 for the purpose of guaranteeing that proper PM-10 control measures are adhered to for Tract 32742 located at 55101 Monroe Avenue, La Quinta, CA 92253. The amount set forth above will be available to you by submission of your Savings Passbook, through proper clearing channels, accompanied by this original Savings Passbook Agreement and the Beneficiary's officially -signed statement certifying that: Monterra Holdings, LLC has failed to adhere to PM-10 guidelines for Tract 32742 in accordance with City of La Quinta and/or Air Quality Management District guidelines. Any interest paid on the Savings Passbook Account received by the Beneficiary shall be paid to Monterra Holdings, LLC by the Beneficiary within ten (10) working days of receipt. This Agreement guarantees that all or any portion of the funds available pursuant to the Savings Passbook Account No. 30-03031633 will be paid upon the written demand of the City and that such written demand need not present documentation of any type as a condition of payment, including proof of loss. Each Savings Passbook Account withdrawal request, payable at sight, must state on its face, "Drawn under La Jolla Bank Savings Passbook Account No. 30-03031633 dated May 3, 2007". Page One of Two