HomeMy WebLinkAboutRecorded Doc 2020-020 „,�, ,. , , 1)16',OZ()
RECORDING REQUESTED BY:
CITY CLERK 2020-0483624
WHEN RECORDED RETURN TO: 10/08/2020 01 :07 PM Fee: $ 0.00
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City Clerk Recorded in Official Records
County of Riverside
City of Cathedral City
Peter Aldana
68-700 Avenida Lalo Guerrero Assessor-County Clerk-Recorder
Cathedral City, CA 92234 I ,`''��'71 1� ,#,71114 i ®`til
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SPACE ABOVE THIS LINE FOR RECORDER'S USE
CITY OF CATHEDRAL CITY
SUBDIVISION IMPROVEMENT AGREEMENT
TRACT NO. 37647
DATE OF AGREEMENT: September 23 , 2020
NAME OF SUBDIVIDER: HPH Homebuiders 2000, LP, a California Limited Partnership,
(hereinafter referred to as "Subdivider").
NAME/NUMBER OF SUBDIVISION: Tract No. 37647 (hereinafter referred to as
"Subdivision").
TENTATIVE MAP APPROVED ON April 17, 2019, by action of the City Planning Commission
(the "Approval Action").
PROPERTY SUBJECT TO AGREEMENT: The real property which is the subject of this
Agreement is located in the City of Cathedral City, County of Riverside and is described in
Exhibit "A" attached hereto and incorporated herein (hereinafter the "Property").
EST. TOTAL COST OF ' EST. TOTAL COST OF EST. TOTAL COST OF
PUBLIC IMPROVEMENTS: PRIVATE IMPROVEMENTS: MONUMENTATION:
$ 552,000.00 $ N/A $ 5,500.00
(see Exhibit "B-1") (see Exhibit "B-1")
BOND NUMBERS:
LETTER OF CREDIT NUMBERS:
FINANCIAL INSTITUTION:
THIS SUBDIVISION IMPROVEMENT AGREEMENT ("Agreement") is made and
entered into by and between the City of Cathedral City, a California municipal corporation
(hereinafter referred to as "City"), and HPH Homebuilders 2000, LP, a California Limited
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I
,
Partnership, (hereinafter referred to as "Subdivider"). City and Subdivider are sometimes referred
to hereinafter individually as a "Party", and collectively as the "Parties".
RECITALS
A. Subdivider is the owner of certain real property located in the City of Cathedral City
legally described on Exhibit "A" attached hereto and incorporated and made part of this
Agreement by this reference (the "Property").
B. Subdivider has presented to City for approval and recordation a final subdivision
map of a proposed subdivision pursuant to provisions of the Subdivision Map Act of the State of
California (the "Act") and the ordinances and regulations of the City relating to the filing, approval
and recordation of subdivision maps. The Act, and the ordinances and regulations of the City are
collectively referred to in this Agreement as the "Subdivision Laws", and Subdivider acknowledges
familiarity with the Subdivision Laws and hereby agrees to comply therewith.
C. Pursuant to the Approval Action, a tentative map of the Subdivision has been
approved, subject to the Subdivision Laws and the requirements and conditions contained on the
tentative map approved thereby (hereinafter the "Tentative Map"). The Tentative Map and the
Approval Action are on file in the Office of the City Clerk, and such Tentative Map, and all
requirements and conditions imposed thereon by the Approval Action are incorporated into this
Agreement by this reference as if set forth fully herein.
D. The Subdivision Laws establish as a condition precedent to the approval of a final
map that Subdivider must have complied with the requirements and conditions of the Tentative
Map by either: (1) completing in accordance with City Standards, as hereinafter defined, all of the
public and private improvements and land development work required by the Subdivision Laws
and the Tentative Map; or (2) have entered in a secured agreement with the City to complete such
improvements.
E. In consideration of the approval of a final map for the Subdivision by the City Council,
Subdivider desires to enter into this Agreement to complete at its own expense all of the
improvements for the proposed Subdivision. Subdivider has secured this Agreement with
sufficient improvement securities in a form approved by the City Attorney (referred to collectively
hereinafter as "Improvement Securities" and individually as "Improvement Security") to guarantee
the construction and completion of all of the improvements.
F. Improvement Plans (the "Plans") for the construction, installation, and completion of
the public and private improvements have been or will be prepared by Subdivider and approved
by the City Engineer. The City has adopted standards (hereinafter "Standards") for the
construction and installation of improvements within the City, and the Plans have been or will be
prepared in conformance with the Standards in effect on the date of the Approval Action. The
Plans are on file in the Office of the Director of Engineering and are incorporated into this
Agreement by this reference as if set forth fully herein. All references in this Agreement to the
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Plans shall be deemed to include reference to any specifications for all of the improvements as
approved by the Director of Engineering.
G. An estimate of the cost for construction of the public and private improvements and
performing the land development work in connection with the improvements according to the
Plans has been made and approved by the Director of Engineering. The estimated cost of these
improvements is set forth on Page One (1) of this Agreement, and the basis for the estimate is
attached hereto as Exhibit "B-1" and incorporated and made part of this Agreement by this
reference. The amounts of the Improvement Securities required to be posted with this Agreement
are also based upon the estimate in Exhibit "B-1".
NOW, THEREFORE, in consideration of the City Council's approval and recordation of the
final map of the Subdivision, and the mutual covenants of the Subdivider and City herein
contained, Subdivider and City hereby agree as follows:
1. Subdivider's Obligation to Construct Improvements.
(a) In constructing and installing the Improvements (as hereinafter defined), Subdivider
shall comply with all the requirements and conditions of the Tentative Map, and any amendments
thereto, as well as the provisions of the Subdivision Laws.
(b) Subdivider shall complete, at its own expense, all the public improvements and
related work on the Subdivision, as required by the conditions of approval of the Tentative Map in
conformance with the approved Plans and City Standards, including without limitation, those
improvements set forth in Exhibit "B-1" (hereinafter collectively the "Improvements"), within
twenty-four (24) months of the date of final map approval by the City Council, unless a time
extension is granted by the City as authorized by Section 20 of this Agreement.
(c) Notwithstanding the time limits specified in Section 1(b) above, no single family
dwelling unit or group of units shall be given final inspection and clearance for occupancy by City
unless the public improvements described in Exhibit B-1 are completed, and all wet and dry utility
services (e.g. sewer, water, electrical power, telephone, gas, etc.) to such units are in place and
are operational.
(d) Subdivider shall furnish the necessary materials for completion of the Improvements
in conformity with the Plans and City Standards.
(e) Subdivider shall acquire and dedicate, or pay the cost of acquisition by the City, of
all right-of-way, easements and other interests in real property required for construction or
installation of the Improvements, free and clear of all liens and encumbrances. Subdivider's
obligations relating to acquisition by City of off-site rights-of-way, easements and other interests
in real property shall be subject to a separate agreement between Subdivider and City. Subdivider
shall also be responsible for obtaining any public or private drainage easements or authorizations
therefor to accommodate the Subdivision.
(g) Subdivider shall furnish and install all monuments, stakes and property corners as
specified on the final map for the Subdivision in accordance with the provisions of the Subdivision
Laws, and submit centerline tie sheets to City, within thirty (30) days after completion of the
Improvements, or as specified in any separate monument agreement with the City, but in any
event prior to their acceptance by the City.
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2. Improvement Securities.
(a) Subdivider shall at all times guarantee Subdivider's performance of this Agreement
by furnishing and maintaining good and sufficient Improvement Securities with the City as required
by the Subdivision Laws on forms approved by City for the purposes and in the amounts as
follows:
(i)Five Hundred Fifty Two Thousand DOLLARS ($ 552,000.00) to ensure faithful
performance of the construction and installation of the Improvements required by this
Agreement ("Performance Security"), which amount is 100% of the estimated cost of the
Improvements as set forth in Exhibit "B-1"; and
(ii) Two Hundred Seventy Six Thousand DOLLARS ($ 276,000.00) to secure
payment to any contractor, subcontractor, persons renting equipment or furnishing labor
materials for the Improvements required to be constructed or installed pursuant to this
Agreement ("Labor & Materials Security"), which amount is 50% of the estimated cost of
the Improvements; and
(iii) Fifty Five Thousand Two Hundred DOLLARS ($ 55,200.00) in the form of a
Warranty Bond or cash deposit with the City to guarantee or warranty the Improvement
work done pursuant to this Agreement for a period of one (1) year following
acceptance/certification thereof by City, against any defective work or labor done or
defective materials furnished ("Warranty Security"). The Warranty Security is 10% of the
estimated cost of the Performance Security amount described above, and such Warranty
Security must be provided by Subdivider to City prior to the City's release of any bonds or
Improvement Securities filed with this Agreement.
(iv) Five Thousand Five Hundred DOLLARS ($ 5,500.00) in the form of a cash
deposit, which is 100% of the estimated cost of setting final subdivision monuments,
boundary corners, front and rear lot corners and providing centerline ties
("Monumentation Security") as set forth in Exhibit "B-1".
(b) The Improvement Securities required by this Agreement shall be kept on file with
the City Clerk. If surety bonds are used, they must be issued by a surety company currently
admitted to transact surety insurance business in California by the California Department of
Insurance, with a Best's Insurance Guide rating of no less than A-. The terms of any documents
evidencing such Improvement Securities as set forth in this Section 2 or referenced on Page One
(1) of this Agreement, are incorporated into this Agreement by this reference as if set forth fully
herein. If any Improvement Security is replaced by another type or kind of approved Improvement
Security, subject to the approval of the form thereof by the City Attorney, the replacement shall
be filed with City Clerk and, upon filing, shall be deemed to have been made a part of and
incorporated into this Agreement. Upon filing of a satisfactory replacement Improvement Security
with the City Clerk, the former Improvement Security shall be released.
(c) Subdivider agrees to keep its Improvement Securities in full force and effect until
they are reduced or released by City. If any Improvement Security provided by Subdivider is
cancelled or terminated for any reason by the action of a surety, financial institution or other party,
it shall be the responsibility of the Subdivider to immediately, upon written notice from City, provide
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a substitute Improvement Security which conforms to all the requirements of this Section 2 in the
same amount or amounts.
(d) Except as otherwise provided in this Agreement, any additions, changes,
alterations, or modifications of this Agreement or to the Plans, Specifications and Improvements
referred to herein, including any extension of time within which the work hereunder may be
completed, shall not release or exonerate any surety or sureties on the Improvement Security
given in connection with this Agreement.
3. Alterations to Improvement Plans; Modification of City Standards.
(a) Any changes, alterations or additions to the Plans or to the Improvements, not
exceeding 10% of the original estimated cost of the Improvements, which are mutually agreed
upon by City and Subdivider, shall not require Subdivider to increase any Improvement Securities
provided under this Agreement. In the event such changes, alterations, or additions exceed 10%
of the original estimated cost of the Improvements, Subdivider shall provide additional
Performance Security as required by Section 2 of this Agreement for 100% of the total estimated
cost of the Improvements as changed, altered, or amended, minus any completed partial releases
allowed by Section 7 of this Agreement. Subdivider shall also provide additional Labor& Materials
Security as required by Section 2 of this Agreement for 50% of the total estimated cost of the
Improvements as changed, altered, or amended.
(b) Subdivider shall construct all Improvements in accordance with the City Standards
in effect as of the date of the Approval Action specified on Page One (1) hereof. The City reserves
the right to modify the Standards applicable to the Subdivision and this Agreement, when
necessary to protect the public safety or welfare or to comply with applicable State or Federal law
or City zoning ordinances. If Subdivider requests and is granted an extension of time for
completion of the Improvements, the City may apply the Standards in effect at the time the
extension is granted.
4. Reserved.
5. Reserved.
6. Inspections; Final Acceptance and Certification of Improvements.
(a) Subdivider shall at all times maintain proper facilities and safe access for inspection
of the Improvements by City inspectors and to the shops wherein any work is in preparation.
(b) Upon completion of the Improvements covered in this Agreement, the Subdivider
shall request a final inspection by the Director of Engineering or his/her authorized representative.
Following receipt of such request, the Director of Engineering shall inspect the Improvements,
make certain determinations and take certain actions as follows:
(i) If the Director of Engineering, or his/her authorized representative,
determines that the Improvements requiring dedication to and acceptance by the City for
public use (the "Public Improvements") have been completed in accordance with this
Agreement, then the Director of Engineering shall certify the completion of the Public
Improvements by placing a resolution on the next most convenient City Council agenda
seeking: (1) formal acceptance of the Public Improvements; (2) release of the Improvement
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Securities; and (3) authorization to file and record a Notice of Completion. Said
determination by the Director and agendization of the acceptance and release shall not be
unreasonably withheld or delayed. Any certification and/or acceptance of the Public
Improvements shall not constitute a waiver of any defects by City.
(c) Subdivider shall bear all costs of inspection and certification of the
Improvements.
7. Release of Improvement Securities. Except as otherwise provided in this
Agreement, the Improvement Securities shall be released only as specified in this Section:
(a) The Performance Security shall be fully released only upon the final completion and
certification of all Public Improvements, and after acceptance of the Public Improvements by the
City Council. Partial releases may be permitted subject to the provisions of Subsections (a)(i) and
(a)(ii) hereof. Upon final completion of the Public Improvements under this Agreement, and after
City Council acceptance, the City shall file a Notice of Completion in accordance with the
California Civil Code.
(i) The Director of Engineering may release a portion of the Performance
Security, as work on the Improvements progresses, upon written application thereof by the
Subdivider; provided, however, that no such release shall be considered by City until the
value of the work remaining to be completed is thirty percent (30%) or less of the estimate
of the total amount of work to be done as shown in Exhibit "B-1". Upon approval of a partial
release or the reduction of Performance Security, the City shall not reduce such
Performance Security to an amount less than one-hundred fifty percent (150%) of the value
of the work remaining to be done. City and Subdivider agree that not more than two
requests for reduction or partial release of Performance Security shall be considered
between the start of construction and the completion and acceptance of the Improvements
by the City.
(ii) In no event shall the City Engineer authorize a release of the Performance
Security which would reduce such security to an amount below that required to guarantee
the completion of the Improvements and any other obligations imposed upon Subdivider
by this Agreement.
(iii) No partial reduction or release of the Performance Security shall constitute
or be construed as the City's acceptance of any Improvements or related work. Such
partial reductions or releases (if any) will merely reflect that a certain portion of the required
work has been done.
(b) The Labor & Materials Security shall, ninety (90) days after the City's recordation of
the Notice of Completion described Subsection 7(a), be reduced to an amount equal to the total
claimed by all claimants for whom liens have been filed and of which notice has been given to
City, plus an amount reasonably determined by the Director of Engineering to be required to
assure the performance of any other obligations secured by the Labor & Materials Security and
to cover legal costs. The balance shall be released upon the settlement of all claims and
obligations for which the Labor & Materials Security was given. If no claims or liens have been
filed and no notice has been given to City within said ninety (90) day period, then the Labor &
Materials Security shall be released in full.
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(c) The Warranty Security shall not be released until after the expiration of the one-year
(1-year) warranty period and until any claims filed during the warranty period have been settled.
As provided in Section 11, below, the warranty period shall not commence until final
acceptance/certification of the Improvements and related work by the City Council.
(d) Except as otherwise provided in the Subdivision Laws (including, without limitation,
Section 66499.19 of the California Government Code), the City may retain from any Improvement
Securities released an amount sufficient to cover costs and reasonable expenses and fees
actually incurred by the City, including reasonable attorneys' fees.
8. Injury to Public Improvements, Public Property or Public Utilities Facilities.
Subdivider shall replace or repair, or cause the repair or replacement of any and all public or
private improvements, public utilities facilities and survey or subdivision monuments which are
destroyed or damaged as a result of any work done by Subdivider or its agents under this
Agreement. Subdivider shall bear the entire cost of replacement or repairs of any and all public
or private improvements or utility property damaged or destroyed by reason of any work done by
Subdivider or its agents under this Agreement, whether such property is owned by the United
States or any agency thereof, or the State of California, or any agency or political subdivision
thereof, or by the City or any public or private utility corporation or by any combination of such
owners. Any repair or replacement shall be made to the reasonable satisfaction, and subject to
the approval of the City Engineer and the owner of any such public or private improvement.
9. Permits. Subdivider shall, at Subdivider's expense, obtain all necessary permits
and licenses for the construction and installation of the Improvements, give all necessary notices
and pay all fees and taxes required by law.
10. Notice of Breach/Default of Subdivider.
(a) Default of Subdivider shall include, but not be limited to: (1) Subdivider's failure to
timely complete construction of the Improvements; (2) Subdivider's failure to timely cure any
defect in the Improvements; (3) Subdivider's failure to perform substantial construction work for a
period of twenty (20) calendar days after commencement of the work; (4) Subdivider's insolvency,
appointment of a receiver, or the filing of any petition in bankruptcy either voluntary or involuntary
which Subdivider fails to discharge within thirty (30) days; (5) the commencement of a foreclosure
action against the Property or a portion thereof, or any conveyance in lieu or in avoidance of
foreclosure; (6) Subdivider's failure to keep the Improvement Securities in full force and effect; (7)
Subdivider's failure to notify the City of any sale, transfer or other disposition of the Property to a
purported new subdivider; (8) Subdivider's failure to maintain insurance; or (9) the failure of
Subdivider or Subdivider's contractors, subcontractors, agents or employees to comply with any
other terms and provisions of this Agreement.
(b) In the event of any such default, the Director of Engineering or the City Council may
serve written notice to Subdivider specifying in reasonable detail the nature of the default.
Subdivider shall have thirty (30) days from receipt of said notice to cure the default; provided that,
if the default is not reasonably susceptible to being cured within said thirty (30) days, Subdivider
shall have a reasonable period of time to cure the default so long as Subdivider commences to
cure the default within said thirty (30) days and diligently prosecutes the cure to completion.
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(c) If following service of such written notice of default, Subdivider fails to cure or
commence curing the default to the satisfaction of City within the cure period specified in
Subsection 10(b), above, the Director of Engineering or the City Council may serve notice of
Subdivider's default upon Subdivider and where applicable Subdivider's surety, or the holder(s)
of any other Improvement Securities, in accordance with the notice provisions set forth in Section
22 of this Agreement.
(d) In the event of service of the notice of default specified in Subsection 10(c), above,
Subdivider's surety shall have the duty to take over and complete the Improvements and related
work required under this Agreement; provided; however, that if the surety, within twenty (20) days
after the serving upon it of such notice of default, does not give the City written notice of its
intention to take over the construction of said Improvements or does not, within ten (10) days after
giving City notice of such election, commence to complete the Improvements, City may take over
the work and prosecute the Improvements to completion, by contract or by any other method City
may deem advisable, for the account and at the expense of Subdivider, and Subdivider's surety
shall be liable to City for any costs or damages occasioned City thereby; and, in such event, City,
without liability for so doing, may take possession of, and utilize in completing the Improvements,
such materials, appliances, plant and other property belonging to Subdivider as may be on the
site of the work and necessary for the completion of same.
(e) The City reserves to itself all remedies available to it at law or in equity for
Subdivider's default under this Agreement. The City shall have the right, subject to this Section,
to draw upon or utilize the appropriate Improvement Securities to mitigate City's damages in event
of default by Subdivider. The right of City to draw upon or utilize the Improvement Securities is
additional to and not in lieu of any other remedy available to City. It is specifically recognized that
the estimated costs and amounts of Improvement Securities may not reflect the actual cost of
construction or installation of the Improvements, and therefore, City's damages for Subdivider's
default shall be measured by the actual cost of completing the required Improvements. The sums
provided by the Improvement Securities may be used by City for the completion of the
Improvements in accordance with the Plans.
(f) Failure of Subdivider to comply with the terms of this Agreement, including but not
limited to, construction of all the Improvements as set forth herein and as required by the Tentative
Map, shall constitute Subdivider's consent to: (1) the filing by City of a notice of violation against
all of the lots in the Subdivision; (2) a rescission by the City Council of the map approval; and (3)
withholding of Building permits, utility connections and/or Certificates of Occupancy. The
remedies provided by this Subsection (f) are in addition to and not in lieu of any other remedies
available to City at law or in equity. Subdivider agrees that the choice of remedy or remedies for
Subdivider's default or breach shall be in the sole discretion of City.
(g) In the event that Subdivider fails t
o perform any obligation hereunder,eunder, Subdivider
agrees to pay all costs and expenses actually incurred by City in securing performances of such
obligations, including costs of suit and reasonable attorney's fees.
(h) The failure of City to take an enforcement action with respect to a default, or to
declare a default or breach, shall not be construed as a waiver of that default or breach, or of any
subsequent default or breach of Subdivider. Any failure by the City to enforce any provision of
this Agreement shall not be construed as a waiver of the right to compel enforcement of such
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provision(s) and further shall not act to release any surety from its obligations under this
Agreement.
11. Warranty.
(a) For a period of one (1) year after final acceptance/certification by the City Council
of the Improvements, Subdivider shall guarantee or warranty the Improvements against any
defective work or labor done or defective materials furnished. If within the warranty period any
work relating to the Improvements or any part of thereof furnished, installed, constructed or
caused to be done, furnished, installed or constructed by Subdivider fails to fulfill any of the
requirements of this Agreement or the Plans, Subdivider shall without delay and without any cost
to City, commence to repair or replace or reconstruct any defective or otherwise unsatisfactory
part or parts of the work or structure within thirty (30) days of receiving written notice from City of
the defect and diligently prosecute the repair or replacement work to completion.
(b) Should Subdivider fail to act promptly or in accordance with the repair/replacement
requirements set forth herein, Subdivider hereby authorizes City, at City's option, to perform the
repair/replacement work twenty (20) days after mailing written notice to Subdivider and to
Subdivider's surety, and Subdivider agrees to pay City for the cost of such work.
(c) Should the City determine that an emergency or a threat to the public safety and
welfare exists from the condition of the Improvements which require repairs, replacements or
remedial measures to be made before Subdivider can be notified, City may, in its sole discretion,
make the necessary repairs or replacements or perform the necessary work and Subdivider shall
pay to City the cost of such repairs.
12. Subdivider Not Agent of City. Neither Subdivider nor any of Subdivider's agents,
officers, employees, or contractors are or shall be considered to be agents of City in connection
with the performance of Subdivider's obligations under this Agreement.
13. Injury to Improvement Work; Risk of Loss. Until such time as the Public
Improvements are accepted by City, Subdivider shall be responsible for and bear the risk of loss
to any of the Public Improvements constructed or installed and shall be responsible for the care,
maintenance of and any damage to such Public Improvements. Neither City, nor any of its agents,
officers or employees shall be liable or responsible for any accident, loss or damage, regardless
of cause, happening or occurring to the Public Improvements specified in this Agreement prior to
the completion and acceptance of the Public Improvements by City. All such risks shall be the
responsibility of and are hereby assumed by Subdivider. Subdivider is responsible for and shall
bear the risk of loss for all Private Improvements at all times.
14. Other Agreements. Nothing contained in this Agreement shall preclude City from
expending monies pursuant to agreements concurrently or previously executed between the
Parties, or from entering into agreements with other subdividers for the apportionment of costs of
water and sewer mains, or other improvements, pursuant to the provisions of City ordinances
providing therefor, nor shall anything in this Agreement commit to any such apportionment.
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15. Subdivider's Obligation to Warn Public During Construction. Until final
acceptance/certification of the Public Improvements pursuant to Section 6(b)(i), and final
certification of construction of the Private Improvements pursuant to Section 6(b)(ii), Subdivider
shall give good and adequate warning to the public of each and every dangerous condition
existent in said Improvements, and will take all reasonable actions to protect the public from such
dangerous conditions on or around the work site.
16. Vesting of Ownership. Upon acceptance of the Public Improvements and related
work on behalf of the City, and after recordation of the Notice of Completion, ownership of the
Public Improvements and any improvement constructed on any public street or alley pursuant to
this Agreement shall vest in City.
17. Indemnity/Hold Harmless.
(a) Neither the City, nor any official, officer, employee, contractor or agent thereof, shall
be liable for any injury to persons or property occasioned by reason of the acts or omissions of
Subdivider, its agents, subcontractors or employees in the performance of this Agreement.
Subdivider hereby agrees to, and shall defend (with legal counsel reasonably acceptable to the
City) and hold harmless City, its elective and appointive boards, commissions and officers, and
its agents, contractors and employees from and against any and all claims, demands, causes of
action, damages, costs, expenses, actual attorneys' fees, consultant's fees, expert's fees, losses
or liability, in law or in equity, of every kind and nature whatsoever arising out of or in connection
with Subdivider's operations, or any subcontractor's operations, to be performed under this
Agreement for Subdivider's or subcontractor's tort negligence including active or passive, or strict
negligence, including but not limited to personal injury including, but not limited to bodily injury,
emotional injury, sickness or disease, or death to persons and/or damage to property of anyone,
including loss of use thereof, caused or alleged to be caused by any act or omission of Subdivider
or any subcontractor, or anyone directly or indirectly employed by any of them or anyone for the
full period of time allowed by law, with the exception of the sole negligence or willful misconduct
of City.
(b) Subdivider's indemnity, defense and hold harmless obligations under this Section
17 are not conditioned or dependent upon whether City, or its elective and appointive boards,
commissions and officers, or its agents, contractors and employees, prepared, supplied or
reviewed any Plans or related specifications in connection with the Improvements, or whether City
or Subdivider has insurance or other indemnification covering any of these matters.
(c) Subdivider's obligation to indemnify, hold harmless and defend City shall extend to
injuries to persons and damages to or alleged taking of property resulting from the design or
construction of the Improvements. City's acceptance and/or certification of the Improvements
shall not constitute an assumption by City of any responsibility or liability for any damage or
alleged taking of property referenced herein. City shall not be responsible or liable for the design
or construction of the Improvements constructed or installed pursuant to the Plans, unless the
particular Improvement design was required by City over the written objection of Subdivider, which
objection stated that the Improvement design was potentially dangerous or defective and set forth
a safe and feasible alternative design. After City's acceptance/certification of the Improvements,
Subdivider shall remain obligated to correct or eliminate all dangerous conditions caused by
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defects in design or construction; provided, however, that the Subdivider shall not be responsible
for routine maintenance. Subdivider acknowledges and agrees that Subdivider shall be
responsible and liable for the design and construction of the Improvements and other work done
pursuant to this Agreement, and except as may be provided above, City shall not be liable for any
acts or omissions in approving, reviewing, checking, correcting or modifying any Plans, or in
inspecting, reviewing or approving any work or construction of Improvements. Subdivider's
Improvement Securities shall not be required to secure, and shall not secure, Subdivider's
obligations under this Section 17.
18. Sale or Disposition of Subdivision; Assignment.
(a) Subdivider acknowledges and agrees that sale, transfer or other disposition of the
Property prior to completion of the Improvements required hereunder will not relieve Subdivider
from the obligations set forth in this Agreement, and Subdivider shall be required to notify City
sixty (60) day in advance of any sale or transfer of ownership of the Property or any proposed
assignment of this Agreement. If Subdivider sells or otherwise transfers the Property to any other
person or entity prior to final completion of the Improvements, or wishes to assign this Agreement,
Subdivider shall request that the City prepare a novation of this Agreement and a substitution of
Improvement Securities by the new owner or proposed assignee (hereinafter collectively for
purposes of this Section, "Successor"). Subdivider shall be required to pay for the costs of any
such novation by the City and to provide any documentation reasonably required by City to
determine the appropriateness of any proposed Successor.
(b) Any proposed Successor must demonstrate to the City its ability to perform and
complete the obligations of Subdivider under this Agreement, as determined by objective
standards of financial capability, creditworthiness and experience required for such performance,
and the City shall have the right to compel the Successor to disclose all documents, information
and other material which, in City's sole reasonable discretion, may establish or tend to establish
that the proposed Successor meets the standards specified herein. Following approval by City
and full execution of a novation (or other such release or assignment and assumption
agreement(s) entered into by Subdivider, Successor and City), posting of satisfactory replacement
Improvement Securities and submission of required insurance by Successor, City shall
immediately release the Improvement Securities posted by Subdivider in accordance with the
provisions of such novation (or other such release or assignment and assumption agreement
entered into by Subdivider, Successor and City), and Subdivider shall have no further obligations
under this Agreement except as otherwise provided in the novation (or other such release or
assignment and assumption agreement entered into by Subdivider, Successor and City).
19. Time of the Essence. Time is of the essence in this Agreement.
20. Time for Completion of Improvements; Extensions.
(a) Subdivider shall commence and diligently prosecute to completion construction of
all the Improvements required by this Agreement. The time for completion of the Improvements
as specified in Subsection 1(b) of this Agreement may be extended as permitted by City
ordinance. The City Manager may grant an extension of time for such period as may be in the
public interest upon the showing of the Subdivider of good cause. Any such extension granted
Page 11 of 19
shall be subject to the limitations and conditions set forth in Subsections 20(b) and (c), below,
and shall be made by a writing executed by the in a form as approved by the City Attorney.
(b) Any such extension may be granted without notice to Subdivider's surety and shall
not affect the validity of this Agreement or release the surety or sureties on any Improvement
Securities given for this Agreement. However, City reserves the right to require as part of any
extension amendment a written assurance from the surety acceptable to the City Attorney that
the Improvement Securities required by Section 2 of this Agreement shall remain enforceable
throughout the term of any extension.
(c) The City Manager shall be the sole and final judge as to whether or not good cause
has been shown to entitle Subdivider to an extension. In addition, the time for completion of the
Improvements shall be extended for any delay resulting from an act of City, or from an act of God,
which Subdivider could not have reasonably foreseen, or by storm or inclement weather which
prevents the conducting of work, or by strikes, boycotts, similar actions by employees or labor
organizations, which prevent the conducting of work, and which were not caused by or contributed
to by Subdivider, provided that Subdivider provides City with written notice of the delaying event
within fifteen (15) days of the commencement of the delay. In the event of such delaying event,
Subdivider shall use all reasonable efforts to remedy same and resume completion of the
Improvements as promptly as practicable.
(d) As a condition of granting an extension of time to complete the Improvements
required by this Agreement, the City Manager may require Subdivider to furnish new or additional
Improvement Securities guaranteeing performance of this Agreement as extended in an
increased amount as necessary to compensate for any increase in construction costs as
determined by the City Engineer.
21. No Vesting of Rights. Performance by Subdivider of this Agreement shall not be
construed to vest Subdivider's rights with respect to any change in any zoning or building law or
ordinance.
22. Notice. All notices required by or provided for under this Agreement shall be in
writing and delivered in person or sent by certified or registered mail, postage prepaid and
addressed as provided in this Section. Notice shall be effective on the date it is delivered in
person, or, if mailed, on the date of deposit in the United States Mail. Notices shall be addressed
as follows unless a written change of address is filed with City:
Notice to City: City of Cathedral City
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
Attn: City Manager
With a Copy to: Eric S. Vail, City Attorney
Burke, Williams & Sorensen, LLP
1600 Iowa Ave, Suite 250
Riverside, CA 92507
Page 12 of 19
Notice to Subdivider:
With a Copy To:
Notice to surety:
23. Severability. The provisions of this Agreement may be severed from the remainder
of this Agreement in accordance with the provisions of this Section 23 and applicable law. If any
portion of this Agreement is held invalid by a court of competent jurisdiction, the remainder of the
Agreement shall remain in full force and effect unless amended or modified in writing by the mutual
consent of the Parties.
24. Captions. The captions of this Agreement are for convenience and reference only
and shall not define, explain, modify, limit, exemplify, or aid in the interpretation, construction or
meaning of any provisions of this Agreement.
25. Insurance.
(a) Subdivider shall, at all times during the construction of the Improvements, obtain, carry,
maintain, and keep in full force and effect, at its sole cost and expense, policies of insurance of
the types and in at least the minimum amounts described below:
(i) Commercial General Liability policy with a minimum combined single limit of
One Million Dollars ($1,000,000) for each occurrence and Two Million Dollars ($2,000,000)
in the aggregate for bodily injury, death, personal injury and property damage arising out
of or in connection with the activities of the Subdivider and its contractors and
subcontractors in performance of the work under this Agreement. Coverage shall be at
least as broad as Insurance Services Office Commercial General Liability coverage
(Occurrence Form CG 0001) and shall, in addition to the other coverages specified in this
subsection, include coverage for independent contractors, ongoing operations, products
and completed operations, contractual liability and personal and advertising injury.
(ii) Commercial Vehicle/Automotive Liability policy covering personal injury and
property damage, with minimum limits of One Million Dollars ($1,000,000) per occurrence,
combined single limit, covering any vehicle utilized by Subdivider, its officers, agents,
employees, subcontractors or independent contractors in performing the work required by
this Agreement.
(iii) Workers' Compensation and Employer's Liability policy for all Subdivider's
employees, with Workers' Compensation limits as required by State law and Employer's
Liability coverage of$1,000,000 per accident for bodily injury or disease. In case any work
Page 13 of 19
is sublet, Subdivider shall require any contractor or subcontractor similarly to provide
Workers' Compensation and Employer's Liability Insurance for all contractor's or
subcontractor's employees, unless such employees are covered by the protection afforded
by Subdivider.
(1) In case any class of employees engaged in work under this Agreement at the
work site(s) is not protected under any Workers' Compensation law, Subdivider shall
provide and shall cause each contractor or subcontractor to provide, adequate
insurance for the protection of employees not otherwise protected.
(2) Subdivider hereby indemnifies City for any damages or claims resulting from
failure of either Subdivider or any contractor of subcontractor to take out or maintain
such liability or Workers' Compensation insurance.
(b) Insurer Rating; Acceptability. Except as set forth otherwise herein, the policies
required by this Section shall be issued by a California-admitted insurer with a rating of at least a
B+;VII in the latest edition of Best's Insurance Guide. A Commercial General Liability policy issued
by an insurer that is on the California Department of Insurance's List of Approved Surplus Line
Insurers ("LASLI") will be acceptable, if no coverage from an admitted insurer can be obtained by
Subdivider, and further provided that such insurer maintains a Best's rating of at least "A-; X" and
remains on the LASLI during the term hereof. Workers' Compensation coverage issued by the
State Compensation Insurance Fund shall be acceptable if no other coverage can be obtained by
Subdivider, and further provided such insurer remains admitted in California and is otherwise
financially acceptable to City.
(c) Deductibles. Any deductibles or self-insured retentions must be declared in writing
by Subdivider to City and subsequently approved by City prior to its execution of this Agreement
and prior to commencement of any work hereunder. At City's option, Subdivider shall either
reduce or eliminate the deductibles or self-insured retentions with respect to City, or Subdivider
shall procure a bond guaranteeing payment of losses and expenses.
(d) Certificates and Endorsements Verification. Subdivider shall submit to the City
original certificates of insurance and endorsements evidencing the coverages required by this
Section. The certificates and endorsements for each insurance policy shall be signed by a person
authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must
be approved by City Attorney prior to the City's issuance of any permits for work on or in Tract
32858. The City reserves the right to require complete, certified copies of all required insurance
policies at any time and/or to require Subdivider to shall provide reports or status updates to
evidence compliance of its contractors and subcontractors with the provisions of this Section.
(e) Required Endorsements.
(i) The Commercial General Liability and Commercial Vehicle/Automotive
Liability policies are to contain or be endorsed to contain the following provisions:
(1) Additional Insureds. The City of Cathedral City, its officials, officers,
employees, agents and independent contractors shall be named as additional
insured with respect to liability arising out of automobiles owned, leased, hired or
borrowed by or on behalf of the Subdivider; and with respect to liability arising out
of work or operations performed by or on behalf of the Subdivider including
materials, parts or equipment furnished in connection with such work or operations.
Page 14 of 19
(2) Primary Insurance. For any claims related to this project, the Subdivider's
insurance coverage shall be primary insurance as respects the City of Cathedral
City, its officials, officers, employees, agents and independent contractors. Any
insurance or self-insurance maintained by the City of Cathedral City, its officials,
officers, employees, agents and independent contractors shall be excess of the
Subdivider's insurance and shall not contribute with it. This endorsement is not
applicable to the Commercial Vehicle/Automotive Liability Policy.
(3) Waiver of Subrogation. Endorsements waiving all rights of subrogation
against the City of Cathedral City, its officials, officers, employees, agents and
independent contractors shall be provided.
(ii) The Workers' Compensation policy shall be endorsed to waive all rights of
subrogation against the City of Cathedral City, its officials, officers, employees, agents
and independent contractors.
(f) Other Insurance Requirements. All policies required under this Agreement shall
contain provisions stating that such policies cannot be canceled or reduced except on at least
thirty (30) days prior written notice to Subdivider (ten (10) days' notice for cancellation due to non-
payment). Subdivider further agrees to: (1) provide to City copies of any notices relating to
cancellation or reduction of insurance within two (2) days of receipt; and (2) cause all certificates
of insurance to include language indicating that the issuers or producers of such policies will
endeavor to provide copies of any such notices directly to City.
(g) Commencement of Work. Subdivider shall not be issued permits to commence work
under this Agreement until Subdivider has obtained all insurance required pursuant to this
Section, and such insurance has been approved by City; nor shall Subdivider allow any contractor
or subcontractor to commence work on the Improvements until all similar insurance required of
the contractor or subcontractor has been obtained. Certificates, endorsements, and where
applicable, full copies of policies shall be maintained on file with the City Clerk.
(h) Higher Limits. If Subdivider maintains higher limits than the minimums specified in
this Section 25, the City requires and shall be entitled to coverage for the higher limits maintained
by Subdivider. Any available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
26. Attorneys' Fees. In the event any action at law or in equity is brought to enforce
the terms of this Agreement, the prevailing Party shall be entitled to litigation costs and reasonable
attorneys' fees.
27. Incorporation of Recitals. The Recitals to this Agreement are hereby incorporated
into the terms of this Agreement.
28. Entire Agreement. This Agreement constitutes the entire agreement of the Parties
and supersedes any prior written or oral agreements between them with respect to the subject
matter hereof. All modifications, amendments, or waivers of the terms of this Agreement must be
in writing and signed by the appropriate representatives of the Parties.
Page 15 of 19
29. Governing Law; Venue. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of California. In the event that suit shall be brought by either
Party to this contract, the Parties agree that venue shall be exclusively vested in the State courts
of the County of Riverside, California or where appropriate, in the United States District Court,
Southern District of California, Riverside, California.
30. Runs with the Land; Recordation.
(a) The Parties agree that the terms and provisions set forth in this Agreement shall be
deemed provisions, terms and/or covenants running with the Property in accordance with
applicable law, including without limitation, California Civil Code section 1468, and shall pass to
and be binding upon the heirs, successors and assigns of the Parties to this Agreement, and on
any successor owner of the Property.
(b) The provisions of Subsection 30(a) notwithstanding, Subdivider shall remain jointly
and severally liable with its heirs, successors, assigns or successor owners of the Property for
the responsibilities and liabilities imposed by this Agreement unless a novation agreement is
executed in accordance with the provisions of Section 18 of this Agreement.
(c) Upon execution, this Agreement shall be recorded in the Official Records of
Riverside County, and by such recordation, it is the intention of the Parties to give notice to and
bind their successors, heirs and assigns hereto.
31. Authority of Executing Parties. Each person executing this Agreement on behalf
of a Party represents and warrants that such person is duly and validly authorized to do so all
behalf of the entity it purports to bind and that he/she is authorized to enter into contracts on behalf
of Subdivider. The undersigned, on behalf of Subdivider, binds Subdivider, its partners,
successors, executors, administrators, and assigns with respect to the terms and provisions of
this Agreement.
[END OF THIS PAGE; SIGNATURES ON FOLLOWING PAGE]
Page 16 of 19
•
IN WITNESS WHEREOF, this Agreement is executed by the Parties hereto on the date above
first written.
Subdivider: City:
HPH HOMEBUILDERS 2000, LP CITY OF CATHEDRAL CITY
a California Limited Partnership a Municipal Corporation
By: Western Pacific Housing Management Inc.
a California Corporation, its
General Partner John A; . ilar, Mayor
By: 1/( 4 411/(14/.. A' EST:
1
Vicki Gullion
Assistant Secretary _� t
Trace artiner CMC, Cit rk
Y,R.� Y
APPROVED AS TO FORM:
Eric S. Vail, City Attorney
APPROVED AS TO CONTENT:
Jon . orella, Director of
Engineering/Public Works
APPROVED:
410
_AA-' Ci--(1--c
Charles P. McClendon
City Manager
(Proper Notarization of Subdivider's Signature is required and shall be attached)
Page 17 of 19
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of Riverside
On 9/1/2020 before me, Alyssa M. Bottinelli, Notary Public
(insert name and title of the officer)
personally appeared Vicki Gullion
who 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.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
LyssA M, 16".h. i"l
WITNESS my hand and official seal. ABO TT
- ,/fit,,, NotaryPublic-California
Riverside County r.
2278107
My Com=.E_pires Feb 19,2023
Signature ,. ,• 'I t (Seal)
EXHIBIT "A"
Legal Description of Real Property Subject to this Agreement
Tract No. 37647, being a subdivision of a portion of Lot 270 of Tract No. 28639-1, as shown by
map on file in Book 300, at Pages 53 through 66, inclusive, of Maps, Records of Riverside County,
California.
(portion of Assessor Parcel No. 687-330-015)
Page 18 of 19
EXHIBIT "B-1"
Estimated Costs of Public Improvements for Tract 37647
(the following cost summary is based upon costs in the attached Improvement Estimate
Worksheets prepared by Ceazar V. Aguilar, RCE 41679, dated March 2, 2020, on file in the office
of the City Engineer. Monument bond estimate was prepared by Dennis C. Farnsworth, RCE
31653, dated March 12, 2020, on file in the office of the City Engineer.
1. Street improvements: $ 313,358.00
2. Signing and Striping: $ 1,344.00
3. Landscaping and Irrigation: $ 9,435.00
4. Water improvements: $ 81,058.00
5. Sewer improvements: $ 51,300.00
6. Storm drain improvements: $ 23,190.00
Subtotal: $ 479,685.00
Contingencies @ 15%: $ 71,952.75
Subtotal: $ 551,637.75
Rounded Grand Total: $ 552,000.00
IMPROVEMENT SECURITY SUMMARY:
FAITHFUL PERFORMANCE BOND: @100% $ 552,000
PAYMENT BOND (LABOR & MATERIALS):@ 50% $ 276,000
WARRANTY BOND: @10% $ 55,200**
SURVEY MONUMENT CASH BOND: $ 5,500
** Note: Warranty bond to be posted upon completion of all work
Attachments: Estimate Worksheets (7 pages)
Page 19 of 19