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Recorded in Official Records
County of Riverside
WHEN RECORDED RETURN TO: Peter Aldana
Assessor-County Clerk-Recorder
City Clerk �I ti..V5121.6'igiiilEhilCity of Cathedral City
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234 *- r77
SPACE ABOVE THIS LINE FOR RECORDER'S USE
CITY OF CATHEDRAL CITY
IMPROVEMENT AGREEMENT
TRACT NOS. 28561 & 28561-1
RIO DEL SOL — ESPANA
DATE OF AGREEMENT: p 13; 2-0L2
NAME OF DEVELOPER: RDS DEVELOPMENT, LLC, a California limited liability company, .
(hereinafter referred to as "Developer").
NAME/NUMBER OF DEVELOPMENT: ESPANA area of the Rio Del Sol subdivision
consisting of twenty-eight (28) residential lots, in a portion of Planned Unit Development PUD
97-4, originally approved on September 24, 1997 (and amended on June 6, 2018), and
Tentative Tract 28561, originally approved on September 24, 1997.
AMENDMENT TO PLANNED UNIT DEVELOPMENT 97-4 APPROVED ON June 6, 2018, BY
ACTION OF THE PLANNING COMMISSION (the "Approval Action").
ORIGINAL PLANNED UNIT DEVELOPMENT 97-4 APPROVED by Resolution of the City
Council No. on September 3, 1997.
FINAL MAPS FOR TRACTS No. 28561-1 & 28561 APPROVED RECORDED ON September
17, 2002 (No. 2002-515045), and October 14, 2003 (No. 2003-805429), respectively.
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 MONUMENTATION:
$ 127,700.00 IMPROVEMENTS: $ 4,000.00
(see Exhibit "B-1") $ 278,700.00 (see Exhibit "B-1")
(see Exhibit "B-1")
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BOND NUMBERS:
LETTER OF CREDIT NUMBERS:
FINANCIAL INSTITUTION:
THIS DEVELOPMENT 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 RDS Development, LLC, a California limited liability
company, (hereinafter referred to as "Developer"). City and Developer are sometimes referred
to hereinafter individually as a "Party", and collectively as the "Parties".
RECITALS
A. Developer is the lessee of certain real property located in the City of Cathedral City
wherein certain Indian Alloteees and members of the Agua Caliente Band of Cahuilla Indians
are the lessors, legally described on Exhibit "A" attached hereto and incorporated and made part
of this Agreement by this reference (the "Property"). The Property is owned by the Allotees and
is held in trust by the United States Department of Interior, Bureau of Indian Affairs which has
consented to the Development of the Property by the Developer.
B. Developer's predecessor in interest submitted an application to City for the
amendment of Planned Unit Development No. 97-4, generally known as the Rio Del Sol
development, as originally approved by City Council Resolution No. 97-55 on September 24,
1997, to allow the construction of single family detached residential units on property located
south of Gerald Ford Drive and west of Da Vali Drive. Developer now intends to construct said
dwelling units in four separate phases, one of which is designated the Espana area of the Rio
Del Sol development, consisting of 28 vacant lots.
C. Final subdivision maps for the Property have previously been approved and
recorded, pursuant to Tentative Tract No. 28561, as originally approved by City Council
Resolution No. 97-54 on September 24, 1997, as follows: Tract Map No. 28561-1, recorded on
September 17, 2002, in Book 323 at Pages 35 through 49, inclusive, of Maps, and Tract Map
No. 28561, recorded on October 14, 2003, in Book 343 at Pages 15 through 22, inclusive, of
Maps, both in the office of the Riverside County Recorder. All the requirements and conditions
of approval imposed on Planned Unit Development No. 97-4 and on Tentative Tract No. 28561
are incorporated into this Agreement by this reference as if set forth fully herein.
D. On June 6, 2018, the City Planning Commission reviewed and approved the
above-mentioned amendment of Planned Unit Development No. 97-4, subject to the original
conditions of approval, and those described in the Planning Commission Staff Report dated May
31, 2018, which are incorporated into this Agreement by this reference as if set forth fully herein.
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E. The conditions of approval of Planned Unit Development No. 97-4 and Tentative
Tract Map No. 28561 require that prior to the issuance of building permits, the Developer and
the City shall enter into an Improvement Agreement, secured with sufficient security, as a
guarantee of the construction and completion of all public and private improvements and land
development work required by said conditions of approval and by the City subdivision laws and
codes.
F. In consideration of the approval of the amendment to Planned Unit Development
No. 97-4 by the Planning Commission and for the issuance by City of building permits on the
lots and properties in the Espana area of Rio Del Sol as described in Exhibit "A" and depicted in
Exhibit "B-2", Developer desires to enter into this Agreement to complete at its own expense all
of the required public and private improvements and land development for the Espana area. .
G. Improvement Plans (the "Plans") for the construction, installation, and completion
of the public and private improvements are being or have been prepared by Developer and will
be subject to approval by the Director of Engineering/Public Works ("City Engineer"). The City
has adopted standards (hereinafter "Standards") for the construction and installation of
improvements within the City, and the Plans will be prepared in conformance with the Standards
in effect on the date of the approval of the Application. The Plans will be on file in the Office of
the City Engineer and are incorporated into this Agreement by this reference as if set forth fully
herein. All references in this Agreement to the Plans shall be deemed to include reference to
any specifications for all of the improvements as approved by the City Engineer.
H. An estimate of the cost for construction of the public and private improvements
and performing the land development work within the Espana area according to the Plans has
been made and approved by the City Engineer. 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".
I. For the purposes of this Agreement, the term "Public Improvements" means all
those water and sewer system improvements within Tract No. 28561-1 and Tract No. 28561,
which upon completion of their construction and installation, will come under the jurisdiction,
maintenance and control of the Coachella Valley Water District ("CVWD"). The estimated cost
of their construction is included in the above estimate included herein as Exhibit "B-1".
NOW, THEREFORE, in consideration of the Planning Commission's approval of the
Application and subsequent issuance of building permits, Developer and City hereby agree as
follows:
1. Developer's Obligation to Construct Improvements.
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(a) In constructing and installing the improvements in said Espana area, Developer
shall comply with all of the requirements and conditions of approval of Planned Unit
Development No. 97-4 and the amendment thereto, and Tentative Tract No, 28561, as well as
the provisions of the Municipal Code and Subdivision Laws.
(b) Developer shall complete, at its own expense, all the public and private
improvements and related work on the Development, 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" and shown in Exhibit "B-2"
(hereinafter collectively the "Improvements") within twenty-four (24) months of the date of this
Agreement , 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 private and public streets providing access to and fronting such units are
completed, the final lifts of pavement on the streets are in place, 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) Developer shall furnish the necessary materials for completion of the
Improvements in conformity with the Plans and City Standards.
(e) Developer 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. Developer'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 Developer and City.
Developer shall also be responsible for obtaining any public or private drainage easements or
authorizations therefor to accommodate the Development.
(f) Developer shall furnish and install all monuments, stakes and property corners on
the lots and streets in the Espana area as specified on the final recorded tract maps for the
Development in accordance with the provisions of the Subdivision Laws, and shall 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.
(g) Developer shall cause to be prepared and recorded a Record of Survey as
required by Section 8762, et. Seq. of the State Business and Professions Code, for any
previously recorded lot line adjustment within the Development, for which no Record of Survey
has previously been recorded. The estimated cost of such Record of Survey is included in the
above described Exhibit "B-1".
2. Improvement Securities.
(a) Developer agrees to secure this Agreement with good and sufficient improvement
securities in a form approved by the City Attorney (referred collectively hereinafter as
"Improvement Securities" and individually as "Improvement Security") to guarantee the
construction and completion of all the improvements in the Espana area. All such improvement
securities shall be posted with the City prior to the City's final building inspection and issuance
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of a Certificate of Occupancy for any single family dwelling constructed by Developer, its agents,
assigns or contractors, on any lot within the Espana area of the Rio Del Sol development, as
described in Exhibit "A" and depicted in Exhibit "B-2". Said securities are estimated at this time
in Exhibit "B-1" to be in the following amounts, and shall be for the purposes described as
follows:
(i) Four Hundred Six Thousand Four Hundred and 00/100 DOLLARS ($
406,400.00) to ensure faithful performance of the construction and installation of the
public and private 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 Three Thousand Two Hundred and 00/100 DOLLARS ($
203,200.00) 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
(iv) Forty Thousand Six Hundred and Forty and 00/100 DOLLARS ($40,640.00)
in the form of a Warranty Bond or cash deposit with the City to guarantee or warranty the
Improvement work done pursuant to this Agreement for a period of one (1) year following
acceptance/certification thereof by City, against any defective work or labor done or
defective materials furnished ("Warranty Security"). The Warranty Security is 10% of the
estimated cost of the Performance Security amount described above, and such Warranty
Security must be provided by Developer to City prior to the City's release of any bonds or
Improvement Securities filed with this Agreement.
(v) Four Thousand and 00/100 Dollars ($ 4,000.00) in the form of a cash
deposit, which is 100% of the estimated cost of setting all final subdivision monuments,
boundary corners, front and rear lot corners and centerline ties not previously set or
submitted on the lots and streets within the Property as described in Exhibit "A", and for
the preparation and recordation of any related Certificate of Correction, as required by
Section 66469 of the State Subdivision Map Act.
(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) Developer 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 Developer is
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cancelled or terminated for any reason by the action of a surety, financial institution or other
party, it shall be the responsibility of the Developer to immediately, upon written notice from City,
provide a substitute Improvement Security which conforms to all the requirements of this
Section 2 in the same amount or amounts.
(d) 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 Developer, shall not require Developer 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, Developer 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. Developer 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) Developer 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 Developer 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. Modification of Drainage Plan. Developer agrees that if during the course of
construction and installation of Improvements it shall be determined by the City Engineer that
revision of the drainage plan is necessary in the public interest, it will undertake such design and
construction changes as may be reasonable and as are indicated by the City Engineer and
approved by City. Said changes, if any, shall be confined to the Property.
5. Reserved.
6. Inspections; Final Acceptance and Certification of Improvements.
(a) Developer 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 Developer
shall request a final inspection by the City Engineer or his/her authorized representative.
Following receipt of such request, the City Engineer shall inspect the Improvements, make
certain determinations and take certain actions as follows:
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(i) If the City Engineer, or his/her authorized representative, determines that
the Public Improvements requiring acceptance by the Coachella Valley Water District
have been completed in accordance with this Agreement, then the City Engineer shall
request said District to make a final inspection of such improvements and certify to the
City that such improvements have been completed and installed to the satisfaction of
said District. Upon receipt of such certification, the City Engineer may release or reduce
the securities held for such improvements. Any certification and/or acceptance of the
Public Improvements shall not constitute a waiver of any defects by City.
(ii) For Improvements not requiring dedication to or acceptance by the
Coachella Valley Water District (the "Private Improvements"), the City Engineer or his/her
authorized representative shall inspect such improvements, and/or shall have the
discretion to accept a certification from Developer's registered civil engineer stating that
the Private Improvements have been completed in accordance with the approved Plans,
City Standards and the Tentative Map. If the City Engineer, or his/her authorized
representative, makes a finding, based on his/her own inspection (and/or any certification
submitted by Developer's registered civil engineer) that the Private Improvements have
been installed and constructed in accordance with the approved Plans, City Standards
and the Tentative Map, the City Engineer shall recommend certification of the completion
of the Private Improvements by placing an item on the next most convenient City Council
agenda requesting certification and authorization to release the Improvement Securities.
Said determination by the City Engineer and agendization of the certification and release
shall not be unreasonably withheld or delayed.
(c) Developer shall bear all costs of inspection and certification of the Improvements.
7. Release of Improvement Securities.
(a) The Performance Security shall be fully released only upon the final completion
and certification of all Private Improvements, and after acceptance of the Public Improvements
by the Coachella Valley Water District. Partial releases may be permitted subject to the
provisions of Subsections (a)(i) and (a)(ii) hereof. Upon final completion of the Public and
Private Improvements under this Agreement, and after City Council acceptance/certification, the
City shall file a Notice of Completion in accordance with the California Civil Code.
(i) The City Engineer may release a portion of the Performance Security, as
work on the Improvements progresses, upon written application thereof by the Developer;
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 Developer 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/certification of the Improvements
by the City.
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(ii) In no event shall the City Engineer authorize a release or reduction 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 Developer by this Agreement.
(iii) No partial reduction or release of the Performance Security shall constitute
or be construed as the City's acceptance or certification 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 in 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 City Engineer to be required to assure the
performance of any other obligations secured by the Labor & Materials Security and to cover
related 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.
(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) The Monumentation Security may be released in full by the City Engineer in
accordance with the terms of the separate monument agreement with the City, or if there is
none, upon submittal of the following:
(i) a written certification from the professional engineer or surveyor responsible
for setting the monuments stating that all the final monuments for the Subdivision have
been set in accordance with the Professional Land Surveyors Act and the Subdivision
Map Act, and that the professional engineer or surveyor has been paid in full by
Developer for such services; and
(ii) centerline tie sheets prepared in a manner acceptable to the City Engineer
showing the locations of centerline monuments in existing public or private streets; and
(iii) any Record of Survey required by this Agreement has been filed with the
County of Riverside and recorded.
(e) The City may retain from any Improvement Securities released an amount
sufficient to cover costs and reasonable expenses and fees, including reasonable attorneys'
fees.
8. Injury to Public Improvements, Public Property or Public Utilities Facilities.
Developer 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 under this Agreement. Developer 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 under this Agreement, whether
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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. Developer shall, at Developer'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 Developer.
(a) Default of Developer shall include, but not be limited to: (1) Developer's failure to
timely complete construction of the Improvements; (2) Developer's unwarranted failure to timely
cure any defect in the Improvements; (3) Developer's failure to perform substantial construction
work for a period of twenty (20) consecutive calendar days after commencement of the work; (4)
Developer's insolvency, appointment of a receiver, or the filing of any petition in bankruptcy
either voluntary or involuntary which Developer 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) Developer's failure to keep the
Improvement Securities in full force and effect; (7) Developer's failure to notify the City of any
sale, transfer or other disposition of the Property to a purported new Developer; (8) Developer's
failure to maintain insurance; or (9) the failure of Developer or Developer'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 City Engineer or the City Council may serve
written notice to Developer specifying in reasonable detail the nature of the default. Developer
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, Developer shall
have a reasonable period of time to cure the default so long as Developer commences to cure
the default within said thirty (30) days and diligently prosecutes the cure to completion.
(c) If following service of such written notice of default, Developer fails to cure or
commence curing the default to the satisfaction of City within the cure period specified in
Subsection 10(b), above, the City Engineer or the City Council may serve notice of Developer's
default upon Developer and where applicable Developer'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,
Developer'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 Developer, and
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Developer'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
Developer 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
Developer'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 Developer. 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
Developer'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 Developer 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 Developer's consent to: (1) the filing by City of a notice of
violation against all of the lots in the Subdivision; (2) 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.
Developer agrees that the choice of remedy or remedies for Developer's default or breach shall
be in the sole discretion of City.
(g) In the event that Developer fails to perform any obligation hereunder, Developer
agrees to pay all costs and expenses 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 Developer. 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
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, Developer shall guarantee or warranty all 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 Developer fails to fulfill any of the
requirements of this Agreement or the Plans, Developer 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 Developer fail to act promptly or in accordance with the repair/replacement
requirements set forth herein, Developer hereby authorizes City, at City's option, to perform the
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1
repair/replacement work twenty (20) days after mailing written notice to Developer and to
Developer's surety, and Developer 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 Developer can be notified, City may, in its sole discretion,
make the necessary repairs or replacements or perform the necessary work and Developer
shall pay to City the cost of such repairs.
12. Developer Not Agent of City. Neither Developer nor any of Developer's agents,
officers, employees, or contractors are or shall be considered to be agents of City in connection
with the performance of Developer's obligations under this Agreement.
13. Injury to Improvement Work; Risk of Loss. Until such time as the Public
Improvements are accepted by City, Developer 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 Developer. Developer 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 Developers 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.
15. Developer'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), Developer
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 in, 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 constructed within the Private streets in the Development shall vest in the
name of the Coachella Valley Water District , or applicable utility company, and any
improvement constructed on any public street 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
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f
omissions of Developer, its agents, subcontractors or employees in the performance of this
Agreement. Developer hereby agrees to, and shall defend 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 Developer's operations, or
any subcontractor's operations, to be performed under this Agreement for Developer'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 Developer 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) Developer'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 Developer has insurance or other indemnification covering any of these matters.
(c) Developer'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
Developer, 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, Developer shall remain obligated to correct or
eliminate all dangerous conditions caused by defects in design or construction; provided,
however, that the Developer shall not be responsible for routine maintenance. Developer
acknowledges and agrees that Developer 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. Developer's Improvement Securities shall not be
required to secure Developer's obligations under this Section 17.
18. Sale or Disposition of Subdivision; Assignment.
(a) Developer acknowledges and agrees that sale, transfer or other disposition of the
Property prior to completion of the Improvements required hereunder will not relieve Developer
from the obligations set forth in this Agreement, and Developer 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 Developer sells or otherwise transfers the Property to any
other person or entity prior to final completion of the Improvements, or wishes to assign this
Page 12 of 20
•
Agreement, Developer may request 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"). Developer shall be required 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 Developer 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 Developer, Successor and City), posting of
satisfactory Improvement Securities and submission of required insurance by Successor, City
shall release or reduce the securities posted by Developer in accordance with the provisions of
such novation and release Developer of its obligations under this Agreement. Nothing in the
novation (or other such release or assignment and assumption agreement entered into by
Developer, Successor and City) shall relieve Developer of its obligations under any other
Section of this Agreement for work or Improvements performed by Developer prior to the
novation.
19. Time of the Essence. Time is of the essence in this Agreement.
20. Time for Completion of Improvements; Extensions.
(a) Developer 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 Developer of good cause. Any such extension
granted 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 Developer'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 Developer 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 Developer 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
Page 13 of 20
contributed to by Developer, provided that Developer 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, Developer 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 Developer 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. 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
Burke, Williams & Sorensen, LLP
1600 Iowa Ave, Suite 250
Riverside, CA 92507
Notice to Developer: RDS Development, LLC
1300 Esther Street, Suite 200
Vancouver, WA 98660
22. Severability. The provisions of this Agreement are severable. 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.
23. 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.
Page 14 of 20
24. Insurance.
(a) Developer 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 Developer 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 Developer, 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 Developer'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 is sublet, Developer 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 Developer.
(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, Developer
shall provide and shall cause each contractor or subcontractor to provide,
adequate insurance for the protection of employees not otherwise protected.
(2) Developer hereby indemnifies City for any damages or claims resulting from
failure of either Developer 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 bythis Section shall be issued bya California-admitted insurer with a ratingof at least
q
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 Developer, 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 Developer, and further provided such insurer remains admitted in
California and is otherwise financially acceptable to City.
Page 15 of 20
(c) Deductibles. Any deductibles or self-insured retentions must be declared in writing
by Developer 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, Developer shall either
reduce or eliminate the deductibles or self-insured retentions with respect to City, or Developer
shall procure a bond guaranteeing payment of losses and expenses.
(d) Certificates and Endorsements Verification. Developer 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 approval or execution of this
Agreement. The City reserves the right to require complete, certified copies of all required
insurance policies at any time and/or to require Developer 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 Developer; and with respect to liability arising out
of work or operations performed by or on behalf of the Developer including
materials, parts or equipment furnished in connection with such work or
operations.
(2) Primary Insurance. For any claims related to this project, the Developer'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
Developer'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 Developer (ten (10) days' notice for cancellation due to
non-payment). Developer 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.
Page 16 of 20
(g) Commencement of Work. Developer shall not commence work under this
Agreement until Developer has obtained all insurance required pursuant to this Section, and
such insurance has been obtained by Developer and approved by City; nor shall Developer
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 Developer 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 Developer. Any available insurance proceeds in excess of the specified
minimum limits of insurance and coverage shall be available to the City.
25. 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.
26. Incorporation of Recitals. The Recitals to this Agreement are hereby
incorporated into in the terms of this Agreement.
27. 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.
28. 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.
29. 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 29(a) notwithstanding, Developer 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 or assignment
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.
Page 17 of 20
30. 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 Developer. The undersigned, on behalf of Developer, binds Developer, 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 18 of 20
IN WITNESS WHEREOF, this Agreement is executed by the Parties hereto on the date above
first written.
Developer: City:
RDS DEVELOPMENT, LLC CITY OF CATHEDRAL CITY
a California limited liability company a Municipal orporation
By: Holt Group Holdings, LLC By: :1
a Delaware limited liability company Charles P. McClendon
Its: Sole Member City Manager
By: J
Name: Gree!:ice
Title: Chain n ATTEST:
A_ A
Tracey R. 'artine , CMC tip
City Clerk
APPROVED AS TO FORM:
Eric S. Vail, City Attorney
APPROVED AS TO CONTENT:
Oh
John 'Fore a,
Dir. 0 ngineering/Public Works
Attachments: Exhibit A Legal description of Property
Exhibit B-1 Cost estimates
Exhibit B-2 Sketch of Elements area
(Proper Notarization of Developer's Signature is required and shall be attached)
Page 19 of 20
STATE OF WASHINGTON )
) ss.
COUNTY OF CLARK )
This record was acknowledged before me on , 2022, by
, as Chairman for Holt Group Holdings, LLC,
Sole Member of RDS Development, LLC.
Notary Public for the State of Washington
Residing at 1g.0-��. \ w�
My Commission Expires: c+1t g aC,�3
NOTARY PUBLIC
STATE OF WASHINGTON
LYNNE E GRAY
COMMISSION NO. 206878
MY COMMISSION EXPIRES
APRIL 18,2023
Page 20 of 20
EXHIBIT "A"
LEGAL DESCRIPTION OF "ESPANA" PROPERTY
Espana lejial description
LETTERED LOTS K AND S OF TRACT NO. 28561-1 AS SHOWN
ON A MAP FILED IN BOOK 323, PAGES 35 TO 49, INCLUSIVE OF
MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
MODIFIED LOT 63 AS SHOWN ON CERTIFICATE OF
COMPLIANCE LOT LINE ADJUSTMENT NO. 2004-383,
RECORDED AUGUST 24, 2004 AS INSTRUMENT NO. 2004-
0667908 OF OFFICIAL RECORDS. BEING PORTIONS OF LOTS 63
AND 64 OF TRACT NO. 28561-1, AS PER MAP RECORDED IN
BOOK 323 PAGES 35 THROUGH 49, INCLUSIVE OF MAPS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
ADJUSTED LOTS 64 AND 65 AS SHOWN ON CERTIFICATE OF
COMPLIANCE LOT LINE ADJUSTMENT NO. 2004-383,
RECORDED AUGUST 24, 2004 AS INSTRUMENT NO. 2004-
0667908 OF OFFICIAL RECORDS. BEING A PORTION OF LOTS
63, 64, 65 AND 66 OF TRACT NO. 28561-1, AS PER MAP
RECORDED IN BOOK 323 PAGES 35 THROUGH 49, INCLUSIVE
OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY.
ADJUSTED LOTS 75 AND L AS SHOWN ON CERTIFICATE OF
COMPLIANCE LOT LINE ADJUSTMENT NO. 2004-355,
RECORDED JUNE 2, 2004 AS INSTRUMENT NO. 2004-0417696 OF
OFFICIAL RECORDS. BEING A PORTION OF LOTS 75, 76 AND L
OF TRACT NO. 28561-1, AS PER MAP RECORDED IN BOOK 323
PAGES 35 THROUGH 49, INCLUSIVE OF MAPS, IN THE OFFICE
OF THE COUNTY RECORDER OF SAID COUNTY.
LOTS 42 TO 65, INCLUSIVE AND LETTERED LOTS B, H, I, J AND
T OF TRACT NO. 28561 AS SHOWN ON A MAP FILED IN BOOK
343, PAGES 15 TO 22, INCLUSIVE OF MAPS, RECORDS OF
RIVERSIDE COUNTY, CALIFORNIA.
1
EXHIBIT "B-1" "ESPANA"
ESTIMATED COST OF IMPROVEMENTS AND REQUIRED SECURITY AMOUNTS
The following estimates are based upon a cost estimate from Fomotor Engineering,
dated November 5, 2021
STREET IMPROVEMENTS: $ 183.780
STORM DRAIN IMPROVEMENTS: 58,600
SUBTOTAL: $ 242,380
PLUS 15% CONTINGENCIES: 36.357
TOTAL: $ 278.737
ROUNDED TOTAL: $ 278,700
WATER IMPROVEMENTS: $ 55,342
SEWER IMPROVEMENTS: 55,700
SUBTOTAL: $ 111,042
PLUS 15% CONTINGENCIES: 16,656
TOTAL: $ 127,698
ROUNDED TOTAL: $ 127,700
GRAND TOTAL: $ 406,400
REQUIRED SECURITIES (Note 1):
FAITHFUL PERFORMANCE SECURITY: $ 406,400
LABOR & MATERIALS SECURITY: $ 203,200
WARRANTY SECURITY: $ 40,640
MONUMENTATION CASH SECURITY: $ 4,000
Note 1: Improvement securities to be posted prior to final inspection of release
of any single family dwellings. Warranty security to be posted prior to City
acceptance of tract improvements or release of faithful performance or labor and
materials securities.
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SCALE 1" 100' WriatyWk HOMESITES„IN_ ESPANA NEIGHBORHOOD
54TFPREPARED 11/27/2021 EXHIBIT B-2
ESPANA FOMOTOR ENGINEERING
225 S. CMC DR11g, SURE 1-5, PALM SPRIHCg CA 92262
STREET IMPROVEMENTS ASE (760),12,1-1842 FAX: (760)31J-1742
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