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Tradition Club/Grading Indemnity 96CITY OF LA QUINTA INDEMNIFICATION AND SECURITY AGREEMENT THIS INDEMNIFICATION AND SECURITY AGREEMENT (the "Agreement") is made and entered into this 2] tti day of , 19 96 , by and between Sienna Corporation, a CaliforniaCorporation hereinafter referred to as "Developer," and the City of La Quinta, a municipal corporation of the State of California, hereinafter referred to as "City." A. Developer has prepared proposed Tentative Tract Map 28470 (the "Map") and a proposed grading plan (the "Plan") for subdivision and development of a unit of land in the City of La Quinta, County of Riverside, which unit of land lies south of Avenue 52 and Francis Hack Lane and east of Avenida Bermudas (the "Project"). B. Prior to consideration of said Map and Plan for approval, City and Developer must complete various environmental, historical and zoning studies and reviews which are estimated to delay said consideration for several months from the date of this agreement. C. Developer contends that any delay in the beginning of construction of the development will cause a one-year delay in completion Of the project and substantial financial injury. D. To avoid such delay, D eloper has requested immediate issuance of an encroachment permit (the "Permit") allowing land clearing and grading (the "Improvements") according to the Plan. E. City will issue said Permit only with certain restrictions, assurances and guarantees in the event the Map and/or the Plan are not approved as presently proposed or in the event of legal actions, claims or other unanticipated costs associated with issuance of the Permit or construction of the Improvements. It is therefore necessary) that Developer and City enter into an agreement for issuance of the Permit. NOW, THEREFORE, it is agreed by and between the parties hereto as follows: 1. Scope of Work. Work on the project shall be limited to clearing and grading as shown on the Plan and as restricted or revised under the terms of the Permit. Said restrictions shall include a prohibition on clearing, grading or other disturbance of areas designated as "Hillside Conservation" under City's Zoning Ordinance and General Plan. All work shall conform with methods, standards, specifications, sequence, and scheduling as approved by City's Director of Public Works. 2. Indemnification. Developer 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 Developer's performance hereinunder or City's issuance of the Permit, including costs of suit and reasonable attorneys' fees for I gal counsel as approved by City. 3. Obliteration/Resto ratios has been performed which doe: anticipates will be approved, Ci restoration of the site and/or o Developer shall have sixty (60) directed. of Unapproved Improvements. If, at any time, City determines that work not comply with a Map and Plan which has been approved or which City y shall give written notice to Developer directing removal of the work and her measures determined necessary to mitigate the effects of such work. lays to complete such obliteration, site restoration and other measures as Indemnification and Security Agreement I Page 1 of 4 4. Force Majeure. In the vent that Developer is unable to perform within the time limits herein due to strikes, act of God, or other vents beyond Developer's control, the time limits for obligations affected by such events will be extende by the period of such events. 5. Time Extension. Developer may make application in writing to City for an extension of the sixty (60)-day time period for comp etion. City may approve or deny the request or conditionally approve an extension of time. 6. City Right to Cure. If eveloper 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 Developer s all 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. 7. Security. A. Developer shall fur ish security prior to and as a condition of issuance of the Permit. The amount of the security, which is fifty percent (50%) of the cost of work to be performed as approved by City, shall be SIX HUNDRED EIGHTY TWO THOUSAND FIVE HUNDRED DOLLARS ($682,500). The security shall assure the faithful performarice of this Agreement including the potential obliteration of Improvements, restoration of property to its or ginal condition, and/or other measures as may be required by City if work is performed in violation of thi agreement or beyond the Scope of Work or if the Map and Plan are not approved as presently proposed, and indemnification of City from legal actions and/or other costs or claims arising from issuance of the Pe mit or construction of the Improvements. As part of the obligatioi secured, and in addition to the face amount of the security, the security shall include and assure the payment of costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by CitV in successfully enforcing the obligations thereby secured. B. Security shall conform with Section 66499 of the California Government Code, Title 13 of the La Quints Municipal Code, and one or more of the following: 1) A cash depsit with City or a responsible escrow agent or trust company, at City's option. 2) 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). 3) Irrevocable I tters of credit, issued by one or more financial institutions meeting the requirements of of (3), pledging that the necessary funds are on deposit, guaranteed f r payment, and constitute a trust fund which is not subject to levy or attachment b any creditor of the depositor until released by City. Letters of credit shall guarantee tha all or any portion of the funds available pursuant to the letters of credit will be paid upon he 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 a y such letter of credit shall be for a period of not less than one year from the execution f the agreement with which it is provided and shall state, on its face, that the letter of redit will be automatically renewed until such time that City authorizes its expiration or ntil sixty (60) days after City receives notice from the financial institution of intent to al ow expiration of the letter of credit. C. Security shall be released when all work which has been conducted on the Project which does not conform with an approved Map and Plan has been obliterated, restored or otherwise returned to a Indemnification and Security Agreement Page 2 of 4 condition acceptable to City and City has determined that there are no pending, current or potential legal actions or claims or other unr imbursed costs for which City is indemnified under the provisions of this Agreement. 8. . Issuance of the Permit carries no warranty or guarantee, express or implied, that City will eventually approve a project conforming to the grading plans referenced in the Permit. Developer hereby agrees to release City from any claim of reliance on building the project based on issuance of the Permit. 9. Severability. In the event that any provision or provisions of this Agreement are held unenforceable, all provisions not so held shall emain in full force and effect. A. All notices pursuant to this Agreement shall be in writing and shall be personally delivered or sent by registered or certified mail, return receipt requested, to the parties at their respective addresses indicated hereon. Notices personally delivered shall be effective upon delivery. Notices mailed as provided herein and sent postage prepaid Shall be effective upon the date of delivery or refusal indicated on the return receipt. Either party may change its address for notices hereunder by notice to the other given in the manner provided in this subparagraph. B. The terms, conditions, covenants, and agreements set forth herein shall apply to and bind the heirs, executors, administrator , 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 shi California. E. Any failure or delay shall not operate as a waiver of I be governed by and interpreted with respect to the laws of the State of )y either party in asserting any of its rights and remedies as to any default any default or of any such rights or remedies provided for hereunder. (This space intentionally left blank.) Indemnification and Security Agreement I Page 3 of 4 IN WITNESS WHEREOF, the parties. hereto have executed this Agreement as of the day and year first written above. City: City of La Quinta ADDRESS: 78-495 Calle Tampico La Quinta, CA 92253 il� mas P. Genovese, City ATTEST: City Clerk Developer: Sienna Corporation ADDRESS: By: ve-l"Way Title: By: Title: ' - Indemnification and Security Agreement I Page 4 of 4 STATE OF C LiF9R#M MINI COUNTY OF-CCNtJll�t On personally appeared I� personally known to me -- OR -- T` , VIRGINIA A. SUCH NOTARY PUBLIC hiiikfi - HENNEPIN COUNTY lib Co . folno .an. 31, before me, A S+.-1G1-1 - Name, Title, e.g., "Jane Doe, Notary Public" Name(s) of Signer(s) ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. OPTIONAL hough the data below are not required by I iw, the information may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER: ❑ Individual �] Corporate Officer: Title(s) ❑ Partner(s): ❑ Limited ❑ General ❑ Attorney -in -Fact ❑ Trustee(s) ❑ Guardian/Conservator ❑ Other: SIGNER IS REPRESENTING Name of Person(s) or Entity(ies) DESCRIPTION OF ATTACHED DOCUMENT TflDrolm /Ipy!C 00C T- Title or Type of Document. WU <- Number of Pages OGz 27 117-?k Date of Document SIGNERS (Other than named above)