USA Properties Fund/Entry Improvements 96CITY OF LA QUINTA
IMPROVEMENT AGREEMENT
THIS IMPROVEMENT AGREEMENT (the "Agreement") is made and entered into this 20th
day of June 1996 , by and between USA Properties Fund,
a California Corporation hereinafter referred to as "Developer," and the City of La Quinta, a municipal
corporation of the State of California, hereinafter referred to as "City."
RECITALS:
A. Developer has prepared improvement plans for a unit of land in the City of La Quinta, County of
Riverside, which unit of land is known as Plot Plan 96-571 . Said improvement plans include widening of
an existing entry drive off of Washington Street (the "Shared -Entry Improvements").
B. Prior to construction of the Shared -Entry Improvements, City intends to construct traffic signal
improvements at the intersection of the entry drive with Washington Street (the "Traffic Signal
Improvements"). Said Traffic Signal Improvements include installation of support poles at the northwest
corner of the intersection of the entry drive with Washington Street.
C. Developer has requested that the City install the support poles in a revised location to accommodate
the Shared -Entry Improvements.
D. City will revise the plans for the Traffic Signal Improvements and install the support poles in a
revised position only if Developer guarantees construction of the Entry Improvements or of relocation of the
traffic signals to their originally -planned position (the "Signal Relocation Improvements").
E. It is therefore necessary that Developer and City enter into an agreement to guarantee Developer's
payment of the cost of the Shared -Entry Improvements or of the Signal Relocation Improvements.
NOW, THEREFORE, it is agreed by and between the parties hereto as follows:
1. Improvements. Developer shall, subject to Section 6, below, perform one of the following:
A. Construct the Shared -Entry Improvements and bear the full cost thereof. The methods,
standards, specifications, sequence, and scheduling of construction shall be as approved by the
City Engineer.
B. Construct the Signal Relocation Improvements.
2. Improvement Plans. Developer shall furnish original improvement plans for the Shared -Entry
Improvements meeting the requirements of the City Engineer.
3. Improvement Security.
A. One class of security to be provided by Developer, hereinafter referred to as "performance
security," shall assure the faithful performance of this Agreement including construction of the Shared -Entry
Improvements or the Signal Relocation Improvements, and payment of plan check and permit fees. The
Developer shall provide performance security in the amount listed for Shared -Entry Improvements or Signal
Relocation Improvements, whichever is greater, as specified in Exhibit "A". A second class of security to
be provided by Developer, hereinafter referred to as "warranty security," shall serve as a guarantee and
warranty of the Shared -Entry Improvements pr Signal Relocation Improvements for a period of one year
following the completion and acceptance of the Shared -Entry Improvements or Signal Relocation
Improvements. Developer shall provide warranty security after Shared -Entry Improvements or Signal
Improvement Agreement - Plot Plan 96-571 Page 1 of 6
Relocation Improvements are complete and accepted by the City Council and prior to or concurrently with
the final release of performance security.
As part of the obligation secured by each of the performance security and warranty security, and
in addition to the face amount of each such security, each such security shall include and assure the
payment of costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by City
in successfully enforcing the obligations thereby secured.
B. Improvement security shall conform with Section 66499 of the California Government Code and
one or more of the following:
1) A cash deposit with City or a responsible escrow agent or trust company, at City's option.
2) Surety bonds, of the form specified in Section 66499.2 of the California Government Code,
issued by sureties listed in the U.S. Department of Treasury Circular 570 (latest version)
which lists institutions authorized to issue bonds in the State of California and the bonding
limitations of those institutions.
3) Certificates of deposit, in City's name, from one or more financial institutions subject to
regulation by the state or federal government and having a financial quality rating of "A" or
better and a commitment reliability rating of "R-2" or better on the Investment Data
Exchange (of the Los Angeles County Treasurer's office).
4) Irrevocable letters of credit, issued by one or more financial institutions meeting the
requirements of Subparagraph (3), hereinabove, pledging that the funds necessary to carry
out the completion of the Shared -Entry Improvements or Signal Relocation 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.
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 Shared -Entry Improvements or Signal Relocation Improvements, whichever is greater, including payment
of plan check and permit fees, as estimated by the City Engineer or a duly authorized representative of the
City Engineer. Warranty security shall equal Ten Percent (10%) of the amount of performance security
except as otherwise set forth in Exhibit "A".
D. At time of submittal of security, Developer shall pay to City administrative fees applicable to the
form of security provided. The fees shall be paid separately for each different form and/or source (surety
or financial institution) of security initially submitted and for substitution of securities but shall not be
required for submittal of warranty security if the warranty security is of the same form and from the same
source as the performance security it replaces. Administrative fees for security shall be as follows:
1) For certificates of deposit and letters of credit as described in Subparagraphs (3) and (4) of
Section (3), Paragraph (B), for which establishment of evidence of reliability of the financial
institution requires City's membership in the Investment Data Exchange, the administrative
fee shall be One Hundred Fifty Dollars ($150.00).
Improvement Agreement - Plot Plan 96-571 Page 2 of 6
2) For other forms of security listed in Section (3), Paragraph (B), above, there will be no
administrative fee.
E. 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 Shared -Entry Improvements or Signal Relocation Improvements
subject to the provisions of Section (3), Paragraph (E), Subparagraph (2), hereinafter.
2) Warranty security not utilized during the warranty period shall normally be released one year
after final acceptance or approval by the City Council of the Shared -Entry Improvements or
Signal Relocation Improvements. If, at the end of the one-year warranty period, there are
one or more outstanding requests by City for performance of work or provision of materials
under the terms of the warranty, any remaining warranty security shall be retained until the
outstanding requests are satisfied or until Developer has made other arrangements
satisfactory to the City Engineer.
4. Permits Required. Prior to commencing any phase of work, Developer 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 Developer or City, Developer shall use its best
efforts to purchase such real property at a reasonable price. In the event that Developer is unsuccessful,
despite its best efforts, to acquire such real property at a reasonable price, Developer 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 Developer. If City so agrees, City and Developer shall enter a separate
written agreement in a form acceptable to the City Attorney. Said separate agreement shall provide that
Developer advance to City One Hundred Fifty Percent (1 50%) of the appraised fair market value of the real
property. Any unexpended portion of said advance shall be refunded to Developer. Any additional funds
required for acquisition of the real property shall be paid by Developer to City upon the conveyance of said
real property to Developer. In no event shall the failure of Developer or City to acquire such real property
excuse, waive, or otherwise terminate Developer's obligation to construct the applicable improvement
pursuant to this Agreement or the Conditions of Approval.
6. Completion of Improvements. In the event Developer fails to begin construction of the Shared -Entry
Improvements within six (6) months of the date of this Agreement, City shall determine which
Improvements are to be made, as described in Section (1), and shall notify Developer in writing of said
determination. Developer shall begin construction of the Shared -Entry Improvements or Signal Relocation
Improvements, as determined by City, within ninety (90) days and shall complete construction within one
hundred and eighty (180) days after the date of City's written notification.
7. Force Majeure. In the event that Developer is unable to perform within the time limits herein due
to strikes, act of God, or other events beyond Developer's control, the time limits for obligations affected
by such events will be extended by the period of such events.
S. Time Extension. Developer may make application in writing to the City Council for an extension of
time for completion of the Shared -Entry Improvements or Signal Relocation 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, Developer 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 the Shared -Entry Improvements or Signal
Improvement Agreement - Plot Plan 96-571 Page 3 of 6
Relocation Improvements that remain incomplete at the time of the extension, and to provide warranty
security on completed Shared -Entry Improvements or Signal Relocation Improvements.
9. Final Acceptance of Improvements. At the completion of construction of the Shared -Entry
Improvements or Signal Relocation Improvements by City, Developer shall submit a request for final
approval by City. The request shall be accompanied by any required certifications from Developer's
engineers or surveyors, approval letters from other agencies having jurisdiction over and approval authority
for improvements required by this Agreement, and any required construction quality documentation not
previously submitted.
Upon receipt of said request, the City Engineer or a duly -authorized representative will inspect the
Shared -Entry Improvements or Signal Relocation Improvements. If the Shared -Entry Improvements or Signal
Relocation Improvements are determined to be in accordance with applicable City standards and
specifications, and as provided herein, obligations required by this Agreement have been satisfied, and
Developer has provided revised plans as required in Section (11), hereinafter, the City Engineer shall
recommend acceptance of the Shared -Entry Improvements or Signal Relocation Improvements by the City
Council.
10. Revisions to Plans. When the Shared -Entry Improvements or Signal Relocation Improvements
have been inspected and approved by the City Engineer, Developer shall make any necessary revisions to
the original plans held by City so the plans depict the actual Shared -Entry Improvements or Signal Relocation
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.
1 1 . Improvement Warranty. Developer hereby guarantees the Shared -Entry Improvements or Signal
Relocation Improvements to City for a period of one (1) year, beginning on the date of final acceptance of
the Shared -Entry Improvements or Signal Relocation 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.
12. Release of Security. City shall retain and release securities in accordance with the provisions
of Section (3), Paragraph (E), of this agreement.
13. Provision of Easement or Right of Way. In the event that Developer fails to construct the
Shared -Entry Improvements or Signal Relocation Improvements as required herein, Developer shall furnish
to City a non-exclusive public easement for access, construction, reconstruction, and maintenance across
that portion of Developer's property in and over which the Shared -Entry Improvements or Signal Relocation
Improvements are to be made.
14. City Right to Cure. If Developer fails to perform any obligation hereunder and such obligation
has not been performed within sixty (60) days after written request from City, then City may perform the
obligation, and Developer 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.
15. 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, including costs of suit and reasonable attorneys'
fees.
16. 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.
Improvement Agreement - Plot Plan 96-571 Page 4 of 6
17. 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.
(This space intentionally left blank.)
Improvement Agreement - Plot Plan 96-571 Page 5 of 6
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first
written above.
CITY OF LA QUINTA:
ZZ"Z
Tom Genovese
City Manager
Developer: USA Properties Fund
a
Titl
By:
Title:
Vice President
ADDRESS: 78-495 Calle Tampico
La Quinta, CA 92253
ADDRESS: 2200-B Douglas Blvd.
Suite 150
Roseville, CA 95661
Reviewed and Approved: 2 J,ci//Lj/l9-
City Engineer Date
Approved as to Form: (�� ,1. C, xP
City Attorney Date
Improvement Agreement - Plot Plan 96-571 Page 6 of 6
Exhibit A
LIST OF IMPROVEMENTS AND SECURITY AMOUNTS -PLOT PLAN 96-571 ,
Developer shall furnish performance security in the amount of the Shared -Entry Improvements or the Signal
Relocation Improvements, whichever is greater. If Developer fails to construct the Shared -Entry
Improvements or the Signal Relocation Improvements as required in the Improvement Agreement, and City
relies on the security provided for completion of the improvements, City shall have the sole determination
as to which improvements, the Shared -Entry Improvements or the Signal Relocation Improvements, are
constructed with the use of the security provided herewith.
Improvement Description
A. Shared -Entry Improvements
Performance
$5636
B. Signal Relocation Improvements $9000
CITY OF LA QUINTA
IMPROVEMENT AGREEMENT
THIS IMPROVEMENT AGREEMENT (the "Agreement") is made and entered into this
day of 19 by and between USA Properties Fund,
Inc., a Califorhig Corporation 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 filed a proposal for a project within the City of La Quinta, County of Riverside, which
project is known as Plot Plan 96-571 (the "Project").
B. Prior to issuance of permits for construction of the Project, Developer is required to participate or
agree to participate in the cost of certain public improvements, as listed in Exhibit A, which have been or
will be constructed by others (the "Improvements").
C. The Improvements have not been installed and accepted at this time.
D. It is therefore necessary that Developer and City enter into a secured agreement ensuring Developer's
payment for the cost of the Improvements.
NOW, THEREFORE, it is agreed by and between the parties hereto as follows:
1. Improvement Security.
a. Security to be provided by Developer shall assure payment of Developer's fair share of the cost
of the Improvements. As part of the obligation 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 City in successfully enforcing the obligations secured thereby.
b. Security shall conform with the provisions for performance security in 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
Subdivision Improvement Agreement - Plot Plan 96-571 Page 1 of 4
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) When Developer 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. Security shall be furnished in accordance with the provisions of Exhibit A. The amount of the
security shall equal One Hundred Percent (100%) of the estimated cost of constructing the Improvements,
as estimated by the City Engineer or a duly authorized representative of the City Engineer.
d. At the time of submittal of security, Developer shall pay to City administrative fees applicable
to the form of security provided. Administrative fees shall apply to the Project 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. Administrative fees for
security shall be as follows:
1) For certificates of deposit and letters of credit as described in Paragraphs 3) and 4) of
SECTION 1 .B., for which establishment of evidence of reliability of the financial institution
requires City's membership in the Investment Data Exchange, the administrative fee shall be
One Hundred Fifty Dollars ($150.00).
2) For other forms of security listed in Section 1 B, above, there will be no administrative fee.
e. Security shall remain in place until the Improvements are constructed and actual costs are known
and paid by Developer, or until Developer pays to City the estimated cost of the Improvements, and shall
guarantee the reimbursement by Developer of Developer's share of the cost of the Improvements.
Upon written demand from City, Developer shall deposit cash with City in lieu of or in replacement of
security guaranteeing the Improvements. If Developer fails to deposit said cash within 30 days of the date
of the written demand from City, City may present a written demand to Developer's Surety for payment of
said cash and Developer's Surety shall pay to City the lesser of: 1) the amount demanded, or 2) the amount
of the security.
f. Security shall be released upon payment by Developer of Developer's share of the cost or
estimated cost of the Improvements.
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 herein under, including costs of suit and reasonable attorneys' fees.
3. 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.
Subdivision Improvement Agreement - Plot Plan 96-571 Page 2 of 4
4. 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.
MWerMT-47.1111197MM-ToW
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.
(This space intentionally left blank.)
Subdivision Improvement Agreement - Plot Plan 96-571 Page 3 of 4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first
written above.
CITY OF LA QUINTA: ADDRESS: 78-495 Calle Tampico
La Quinta, CA 92253
ATTl(ST:
� f 1
I;
y Clerk
Developer: USA PROPERTIES FUND, INC.
By:
Title:
By:
Title
Reviewed and Approved:
City
Tom Genovese
City Manager
ADDRESS:
Approved as to Form: )
City Attorney
2200-B Douglas Blvd., Suite 150
Roseville, CA 95661
SP, .
Dat
Date
Subdivision Improvement Agreement - Plot Plan 96-571 Page 4 of 4
Exhibit A
LIST OF IMPROVEMENTS AND SECURITY AMOUNTS - PLOT PLAN 96-571
Except as otherwise provided herein, Developer shall furnish performance security prior to issuance of
permits for construction of the Project.
Security shall remain in place until Developer has made payment for the cost of the Improvements.
Improvement Description Security Amount
Traffic Signal (50% of total cost) $60,000
Median & Median Landscaping 50,732
Total: $110,732
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
N. 5907
State of
County of �lC�❑R
�1 NalAe
On lC before me, P1 4,6t
DATE NAME, TITLE OF OFFICER
E.G., "JANE DOE, N ARY PUBLIC'
personally appeared N Z k-i1 LilI —At)D— A2n-ua- P6y
NAME(S) OF SIGNER(S)
personally known to me - 8 peeved ta-aae..BR_the-basis a satisfactory evidence.
to be the person(s) whose name(s) i:I
subscribed to the within instrument and ac-
knowledged to me that I e0s*w/they executed
the same in her/their authorized
capacity(ies), and that by hTr/their
ried MAHIIE-LYNN VAVOUDS signature(s) on the instrument the person(s),
Cortrr"ont1067517 or the entity upon behalf of which the
N0I`WPu34c—C:@bM3 f
Flocer Coulty person(s) acted, executed the instrument.
My Comm. Emirs A Q 2.1999
WI NESS my and fficial se
NATURE OF NOTARY
_ OPTIONAL
Though the below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattach t of this form.
CAPACITY CLAIM Y SIGNER DESCRIPTION OF ATTACHED DOCUMENT
❑ INDIVIDUAL
❑ CORPORATE OFFICER
TITLES)
❑ PARTNER(S) ❑ LIMITED
❑ GENERAL
❑ ATTORNEY -IN -FACT
❑ TRUSTEE(S)
❑ GUARDIAN/CONSERVATOR
❑ OTHER:
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
TITLE OR TYPE OF DOCUMENT
NUMBER OF PAGES
DATE OF DOCUMENT
SIGNER(S) OTHER THAN NAMED ABOVE
01993 NATIONAL NOTARY ASSOCIATION • 8236 Remmet Ave., P.O. Box 7184 • Canoga Park, CA 91309-7184